Lecturer – Environmental Legislation | Planning & Risk Management

Vincent Salafia, B.A., J.D., LL.M. (TCD)  – Lecturer in Environmental Legislation and Planning and Risk Management. Lectured in the Management School – Queen’s University Belfast (QUB) as part of the MSc in Environmental Management program (2009-2013). Member of the Irish Association of Law Teachers (IALT). He was a founder of TaraWatch, that campaigned against the M3 motorway at the Hill of Tara, a founder of Save Newgrange, that successfully challenged the routing of the Slane bypass near the  Brú na Bóinne UNESCO World Heritage Site in 2012.

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Irish Examiner – Analysis: Rocky history of our right to natural riches

The Irish Examiner – 24 November 2014

The 1937 Constitution removed Irish citizens’ rights to the natural resources of their nation that are enjoyed by the citizens of other countries the world over, writes Vincent Salafia

SINCE time immemorial, the practical reality of kingship or sovereignty over a nation has involved a system whereby the leader of a particular dynasty or group takes power over national resources, then plunders and divides them between his relatives and supporters.

It happened under ancient Irish kings, and then in earnest under the Norman feudal system, beginning in 1169.

That practice continues to this day in Ireland. With each successive government we see a selling-off of national assets and resources in order to benefit the ruling parties, as opposed to the common good.

It is happening now with water, as it has with other natural resources and national assets, such as oil and gas, minerals, fisheries, wind energy, telecoms, even agriculture, due to the 1937 Constitution which granted ownership of natural resources, including all forms of energy, to the State, in Article 10.

Historically, legal protections over public natural resources were developed to limit the power of the sovereign to alienate them. The Roman law of the Emperor Justinian held that the sea, the shores of the sea, the air, and running water was common to everyone. In feudal law, Magna Carta and the Charter of the Forest limited the king’s ability to privatise certain public resources such as fisheries and forests. The king was designated as trustee over those resources, and had a duty to maintain them.

When the US won independence from Britain, and the people became sovereign, that principle of trusteeship developed into what is called the public trust doctrine (PTD), which holds the state to a fiduciary duty, the highest legal standard of care, over public natural resources and grants citizens beneficial rights.

It is written into most state US constitutions, and was recognized by the US supreme court for the first time in 1842 in a case over oyster farming on the foreshore in New Jersey. Since then, it has spread through roughly 14 countries, mostly English common law jurisdictions, such as Canada, India, Pakistan, Australia, and South Africa. It is also being applied to international law, and being used in court in an attempt to enforce climate change duties on states.

When Ireland achieved its independence from Britain, it also sought to enshrine the trustee principle into Irish law. The fight for Irish independence was based on the idea, espoused by James Fintan Lalor, and then Pádraic Pearse, that the sovereignty of the Irish people could not exist unless the Irish people owned the land and all the resources within it. That idea lay at the heart of the Proclamation of Independence, which read:

“We declare the right of the people of Ireland to the ownership of Ireland, and to the unfettered control of Irish destinies, to be sovereign and indefeasible.”

It lay at the forefront of the Democratic Programme, drafted by the Labour Party, and passed by the First Dáil in 1919:

“We declare that the Nation’s sovereignty extends not only to all men and women of the Nation, but to all its material possessions, the Nation’s soil and all its resources.”

The PTD lay at the heart of the 1922 Constitution of the Irish Free State, the drafting of which was overseen by Michael Collins, as chairman of the Committee on the Constitution.

Article 81 of the first draft of the 1922 Constitution, written by Daryl Figgis, stated:

“1. The sovereignty of the people extends over the natural resources of Saorstát Éireann.

“2. None of these resources may be so used as to impair the welfare of the citizens of Saorstát Éireann…”

Article 82 said:

“2. Dáil Éireann shall regulate and control the same as trustees of the people of Ireland.”

The final draft of the 1922 Constitution, adopted by the First Dáil in 1922, left out the word “trustee”, but inserted an implied trust. Article 11 said that natural resources “shall not… be alienated, but may in the public interest be from time to time granted by way of lease or licence to be worked or enjoyed under the authority and subject to the control of the Oireachtas”.

Article 11 was described by Hugh Kennedy, Chief Justice of the Supreme Court of the Irish Free State, as containing “guarantees as constitutional rights” of the Irish people in their natural resources. Indeed Article 11 lay within the bill of rights, entitled Fundamental Rights, in that Constitution.

William Paul McClure Kennedy, the former dean of University of Toronto law school, wrote: “The Constitution contains clauses in which its creators lay down their fundamental rights which are indefeasible” and which “the people reserve to themselves from the processes of ordinary legislation”, including “the inalienable possession of their natural resources”.

The 1937 Constitution reversed and removed any enforceable rights of the people, and duties on the State, in relation to natural resources. Article 10 remains essentially nonjusticiable to this day, and has never given rise to public rights.

In recent weeks we have seen a number of political parties call for a referendum to prevent the privatization of Irish Water. But none of the proposals go far enough, and will offer Irish citizens scant protection for the economic, social, and cultural (ESC) rights which natural resources are a part of and essential to.

The Convention on the Constitution voted in January to recommend to the Oireachtas that it hold a referendum on the strengthening of ESC rights.

Public Trust Ireland is calling on the Government to hold committee hearing on this matter, and to bring forward an amendment for a referendum that restores the fundamental right to natural resources to the people of Ireland, and also imposes a duty of trusteeship on the State, in relation to their management and alienation.

We are also calling for all political parties to adopt this proposal, and to make a commitment to adopt it, should they come to power before there is a referendum in 2016.

This would be the most appropriate gesture of respect to all of the heroes of 1916, and their relatives. Otherwise, we will celebrate the centenary of the Rising while enjoying less sovereignty, and fewer rights over our natural resources, than we did under British rule, uttering, “Was it for this…?”

Vincent Salafia is a law lecturer and spokesman for Public Trust Ireland This article draws from his chapter, ‘Resource Nationalism and the Public Trust Doctrine’, in the 2014 book, Own Our Oil, edited by Eddie Hobbs, and also from a paper given at the 2014 Unitar-Yale Conference on Environmental Governance and Democracy.

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Paper presented at the 3rd Yale/UNITAR Conference on Environmental Governance and Democracy

unitar_conference

I was honoured to be accepted to present a conference paper at the 3rd Conference on Environmental Governance and Democracy, held at Yale University Law School and School of Forestry, 5-7 September 2014. The event was organised under the UNITAR-Yale Environment & Democracy Initiative by the United Nations Institute for Training and Research (UNITAR), in partnership with: the United Nations Environment Programme (UNEP); the United Nations Development Programme (UNDP); and the World Resources Institute (WRI). Professor John Knox, UN Independent Expert on Human Rights and the Environment, provided the keynote presentation, I got to speak to him one on one, regarding the right to natural resources, and Ireland’s Convention on the Constitution.

The conference brought together more than 150 scholars and policy experts to discuss state-of-the-art knowledge concerning  the nexus of human rights and the environment

1. Constitutional Environmental Rights: A Driver for Environmental Policy Making?
2. Human Rights and Environmental Justice: Cases from Countries and the Field
3. Procedural Environmental Rights: Why and How Do They Matter?
4. Human Rights, Environment, and Corporate Responsibility
5. Effective Participation of Civil Society and Vulnerable Groups
6. Environmental Rights, Post-2015 Development, and the Future Climate Regime

The title of my paper was A Constitutional Equation for Sustainable Development: Constitutionalising Economic, Social and Natural Resource Rights and the Public Trust Doctrine in Ireland, and can be downloaded from the Yale UNITAR 2014 conference web site.  My paper was given in Session 1: Taking Stock of State-of-the-Art Knowledge on the Human Rights-Environment Interface. It addressed Topic 1: Constitutional Environmental Rights: A Driver for Environmental Policy-Making?

The paper gives the history of the fundamental human right to natural resources, that had been enshrined in Article 11, in the Fundamental Rights section of the Constitution of the Irish Free State (Saorstát Eireann), from 1922 until the adoption of the 1937 Constitution, (Bunreacht na hÉireann). It also outlines how a referendum on the reinstatement of the fundamental right to natural resources, in conjunction with social and economic rights, could create a constitutional equation for sustainable development. It would also lead to the adoption of the Public Trust Doctrine (PTD), i.e., that the public natural resources belong to the people of Ireland, and that the State is subject to the fiduciary duties of a trustee, in relation to those resources, which places real limits on its ability to privatise public natural resources, that are enforceable by the the beneficiaries, the public. The paper got a good response, and I received a number of questions, during panel discussions, in relation to the issues raised.

According to the organisers: “The outcomes and conclusions of the Conference are expected to inform:

  1. the discussion on sustainable development goals and a post-2015 development agenda by the 69th UN General Assembly in 2014/2015;
  2. the negotiation of a new climate change regime by the end of 2015 under the UNFCCC;
  3. the 2014 World Conference on Indigenous Peoples; and
  4. the 2015 report of the UN Independent Expert on Human Rights and the Environment whose mandate was initiated by the Human Rights Council in 2012.

ABSTRACT

“A Constitutional Equation for Sustainable Development; Constitutionalising Social, Economic and Natural Resource Rights, and the Public Trust Doctrine, in Ireland.”

Constitutionalisation has been a prerequisite for sustainable development since its very inception. The 1980 World Conservation Strategy stated: “Ideally, a commitment to conserve the country’s living resources should be incorporated in the constitution or other appropriate legal instrument.” This case study on Ireland formulates a constitutional equation for achieving the policy goal of sustainable development within the context of the Ireland’s current Convention on the Constitution, which has recommended making social and economic rights justiciable. The study concludes that constitutionalization of sustainable development in Ireland, by combining social, economic and environmental rights and duties, is necessary to meet international human rights and environmental obligations. Collectively, these rights equate to ‘the right to sustainable development’, which the 1992 UNFCCC identified, but has yet to be defined or fulfilled.

State duties are to be imposed by constitutionalising the Public Trust Doctrine (PTD) in Ireland. An historical analysis shows: how the first draft of the 1922 Constitution of the Irish Free State said, “Dáil Éireann (Parliament) shall regulate and control the same (natural resources) as trustees of the people of Ireland”; how rights to natural resources were enumerated within “fundamental rights”; how these rights were removed in the 1937 Constitution; and, how this can be remedied. State duties and procedural and substantive rights associated the American and Indian PTD are compared with those of sustainable development; contributing to knowledge by showing they are almost identical.

References

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Book Launch of “Own Our Oil – The Fight for Irish Economic Freedom” – Today at the Royal Dublin Society

launch
Launch of Own Our Oil, from www.broadsheet.ie

OOOFinalI am pleased to announce that the book, Own Our Oil: The Fight for Irish Economic Freedom, published by Liberties Press, Dublin, was launched today at the Royal Dublin Society (RDS). The book is edited by economist, Eddie Hobbs, on behalf of the Irish NGO of the same name – Own Our Oil.

The book contains a chapter I was invited to contribute, entitled, ‘Resource Nationalism and the Public Trust Doctrine: A Constitutional Solution to Ireland’s Inequitable Oil and Gas Regime’.  An summarised copy of the book is now available for download from Own Our Oil – and the full version of the book can also be downloaded for free from Trinity College Dublin. The following is the description, from the Liberties Press web site:

Own Our Oil: The Fight for Irish Economic Freedom is an anthology of essays that packs a punch. The team of multidisciplinary writers led by Eddie Hobbs describe how Ireland’s leaders have, over several decades, built a system that has been excessively generous to the oil and gas industry abroad. To remedy this, Hobbs and his team propose a new approach to regulate and tax this lucrative industry, so that Ireland can benefit from Irish resources.

Seeking to emulate the Norwegian model of resource management, the book shows how we, as Irish citizens, can become empowered and regain control of our natural resources, demand a fair share of the profits and wisely allocate our gains. Own Our Oil: The Fight for Economic Freedom offers readers information on the latest developments in the international oil and gas arena and the potential economic upside of Ireland changing course and ‘getting it right’. This book is armed with a strong message,

When the herd stands together, the lion lies down hungry! Buy this book, sign it, pass it on!

 On Sunday, 9 November, Eddie Hobbs quoted from my chapter in his column in the Sunday Business Post – calling for a referendum on all natural resources, including water:

“The fundamental issue is Article 10 of the 1937 Constitution which alienates the Irish people from their natural resources and places ownership in the hands of the state. What is needed is a constitutional amendment that embeds public ownership of natural resources and that no longer prevents citizens from taking court action when the state, acting as trustee, behaves against the interests of the people.

The Chief Justice of the New Jersey Supreme Court, Andrew Kirkpatrick, summed it up as a basic human right in 1821: “The sovereign power itself, therefore, cannot, consistently with the principles of the law of nature and the constitution of a well ordered society, make an absolute grant of the waters of the state, divesting all the citizens of their common right. It would be a grievance which never could be long bourne by a free people.”

Precisely.

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