The Public Trust Doctrine and Liability for Historic Water Pollution in South Africa

Abstract

The public trust doctrine is now, in the post-constitutional era, part and parcel of South African natural resources law. However, the precise meaning and content remain, to some extent, unclear. This is particularly true in respect of the relationship between the public trust doctrine and the polluter pays principle and the extent to which liability for pollution and degradation of natural resources also lies within the realm of the public trust doctrine. This article sets out to explore the public trust doctrine in South African law and its potential for assigning liability in a natural resources law context. It does so in the context of South Africa’s challenges in dealing with acid mine drainage (AMD), a legacy from defunct mines, but a continuing by-product of existing mining. It revisits the traditional scope of the public trust doctrine and argues for an expansive view in line not only with the constitutional imperatives embodied in South Africa’s environmental right, but also by way of an analogy between the public trust doctrine and the common heritage of mankind principle as it presents itself in international environmental law. In doing so this article also explores the development of the doctrine in US law which in some respects has set the course for its application with respect to natural resources law.

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