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.