letter to Minister for the Environment, Alex White TD

Public Trust Ireland (PTI) www.pubictrust.ie 17 November 2014 Dear Minister White, I am writing to you on behalf of Public Trust Ireland (PTI), in relation our proposals for a referendum on the right to natural resources, including water, and the Public Trust Doctrine, which would impose a duty of trusteeship on the State in relation to natural resources. Public Trust Ireland (PTI) is an academically based, independent campaign that was founded in 2013 during the public consultation for the Convention on the Constitution. A submission was made to the Convention, calling for amendment of Articles 10 and 45 which would reaffirm that ownership of public natural resources rests with the people of Ireland, as a fundamental right, and that the State would act as a trustee on their behalf. Proposed changes to the Constitution include recognition that the Right to Natural Resources is: 1. an indefeasible and indivisible, fundamental human right; 2. an essential attribute of the sovereignty and right to self-determination of the Irish people, who own Ireland's natural resources; 3. contained in, and essential to the fulfillment the International Covenant on Economic Social and Cultural Rights (ICESCR) 4. contained in, and essential to the Right to Sustainable Development; 5. contained in, and essential to the beneficial rights of the public under the Public Trust Doctrine (PTD), which holds the State to the duty of trustee of public natural resources; As a law lecturer, I recently gave a paper on these issues at the 3rd Yale/UNITAR Conference on Environmental Governance and Democracy: Human Rights, Environmental Sustainability, Post-2015 Development, and the Future Climate Regime, held at Yale University, 5-7 September 2014. The title of my paper was "A Constitutional Equation for Sustainable Development; Constitutionalising Economic, Social and Natural Resource Rights, With the Public Trust Doctrine, in Ireland." I have also written about these issues in the 2014 book, Own Our Oil: the Fight for Irish Economic Freedom, edited by Eddie Hobbs. chapter was entitled, "Resource Nationalism and the Public Trust Doctrine: A Constitutional Solution to Ireland's Inequitable Oil and Gas Regime." The chapter outlined the history of the Public Trust Doctrine, and showed how Ireland is out of step with the international trend of 'resource nationalism' which is seeing Governments reclaim ownership and a greater share of profits for natural resources from multinational corporations, due to national public demands. Eddie Hobbs quoted from the chapter in his column in the Sunday Business Post, on 11 November 2014:

"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." I read with interest your comments in the Sunday Independent (9/11/14) regarding the possibility of a referendum on the right to water: Speaking to RTE’s This Week in Politics, Minister White said a referendum is a 'reasonable suggestion' but he's not sure if it would work. "[A referendum] is a reasonable suggestion, but I think we need to do a lot more work on it," he said. “I think we’ve had a bad experience in this country in terms of putting stuff into the Constitution that we thought meant one thing and it turns out it meant something else. “In recent days, some people have been saying, ‘No, we won’t put Irish Water into the Constitution, we’ll just put ‘water’ as a resource into the Constitution’. “It’s not really clear to me exactly how we would achieve that," he continued. “I think it’s well-intentioned what the proposal is, but if you’re to have a referendum to secure water, would you then want to secure other important public bodies like ESB, Coillte, all of these bodies that there’s controversy about as to whether they should be in the private or the public sector.” I would like to welcome your comments, as they are thoughtful, considered, and reasonable, leaving open the possibility of a referendum, and acknowledging the importance and complexity of the constitutional issues involved. These issues not just central to the issue of potential privatization of Irish Water, but also to the decision you and the Government are currently making with regards recommendations of the Convention on the Constitution. A decision must be made as to whether or not rights to natural resources will be included in a referendum on Economic, Social and Cultural (ESC) rights. Convention on the Constitution | Economic, Social and Cultural Rights In February, 2014, 85% of the members of the Convention on the Constitution voted “to afford greater constitutional protection to Economic, Social and Cultural (ESC) rights,” and recommended that the Oireachtas hold a referendum on the matter. In voting to strengthen ESC rights the Convention on the Constitution, also voted to highlight certain rights which should be expressly stated in the Constitution. They voted in favour of: housing (84%); social security (78%); essential health care (87%); rights of people with disabilities (90%); linguistic and cultural rights (75%); and, rights covered in the International Covenant on ESC Rights (ICESCR) (80%).

PTI welcomed this recommendation, since we had made a submission to the Convention on behalf of PTI, showing that rights to natural resources are included ESC rights, and calling for a referendum on the right to natural resources and the Public Trust Doctrine, which recognizes the State as having duties of trusteeship with regards to natural resources. Both ICESCR and the International Covenant on Civil and Political Rights (ICCPR)(1966), have identical provisions relating to natural resources at the forefront, in Articles 1(2): “All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.” This provision flows from Article 10 of the Universal Declaration on Human Rights (UDHR) which states, “Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.” This means that natural resource rights are and integral part of ESC rights. The resources themselves are acknowledged to belong to the people, not the State, and the level of protection of all other ESC rights is dependent on the availability of the benefits derived from those resources. UN Declaration on Permanent Sovereignty In terms of international law, absolute sovereignty or ownership of the nations natural resources by the State does not legally exist. It contradicts the 1962 UN Declaration on Permanent Sovereignty over Natural Resources, in international law, which declared: The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned. Public Trust Ireland (PTI) is calling for a referendum on an amendment to Article 10, which will confirm sovereignty and ownership over natural resources by the people of Ireland, rather than the State, and which will give citizens the power to challenge Government decisions, and legislation, regarding public natural resources.

UN Resolution 64/292 | The human right to water The PTI submission to the Convention on the Constitution also showed that natural resource rights are essential for both fulfillment of ESC rights under the Constitution of Ireland, and the fulfillment of Ireland’s obligations under the ICESCR). This particularly true for the right to water. Water was declared a human right by the United Nations (UN) General Assembly in 2010, in Resolution 64/292, despite Ireland’s abstention from the vote. The Resolution explicitly 'recognised' the right to safe and clean drinking water and sanitation "as a human right that is essential for the full enjoyment of life and all human rights." The Resolution ‘recalls’, “general comment No. 15 (2002) of the Committee on Economic, Social and Cultural Rights, on the right to water (articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights).” General Comment 15 provides guidelines for the interpretation of the right to water, under ICESCR, framing it within two articles, Article 11, the right to an adequate standard of living, and Article 12, the right to the highest attainable standard of health. The Comment clearly outlines States parties obligations to the right and defines what actions would constitute as a violation. Article I.1 states: “Water is a limited natural resource and a public good fundamental for life and health. The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights.” Article 1.2 of General Comment 15 states: “The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.” Article 1.3 of General Comment 15 addresses the source of the right to water as being Article 11 and Article 12 of ICESCR. It also states that, “The right should also be seen in conjunction with other rights enshrined in the International Bill of Human Rights, foremost amongst them the right to life and human dignity.” Article 1.3 states, in relevant part: Article 11, paragraph 1, of the Covenant specifies a number of rights emanating from, and indispensable for, the realization of the right to an adequate standard of living “including adequate food, clothing and housing”. The use of the word “including” indicates that this catalogue of rights was not intended to be exhaustive. The right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival. Moreover, the Committee has previously recognized that water is a human right contained in article 11, paragraph 1, (see General Comment No. 6 (1995)). The right to water is also inextricably related to the right to the highest attainable standard of health (art. 12, para. 1) and the rights to adequate housing and adequate food (art. 11, para. 1).

It is vital that Irish law reflects, and implements international law, both in terms of implementing the human right to water, and the strengthening ESC rights, in order to meet the requirements of ICESCR. Article 11 | Constitution of the Irish Free State ESC Rights are also found in Article 45 of Bunreacht na hÉireann, which is partly derived from of the bill of rights, entitled Fundamental Rights, in the 1922 Free State Constitution, Articles 1-11. Article 11 contained a fundamental, inalienable and indefeasible right to natural resources. It included a ban on alienation of public natural resources, and stated that natural resources “shall not, nor shall any part thereof, 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…” The Hon. Hugh Kennedy, Chief Justice of the Supreme Court, who had served a member of the Constitution Committee, wrote in the 1928 American Bar Association Journal, “History made it inevitable that in the forefront of the instrument, those doctrines which have come to be accepted as the great fundamental rights and liberties of the citizen should be stated as fundamental principles of this constitution.” He said, “all these principles”, including “the national ownership of the natural resources of the country…receive guarantees as constitutional rights.” W.P.M. Kennedy, former Dean of University of Toronto law School, writing in the North American Review in 1923, said, “…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; the inalienable possession of their natural resources…” The drafting history shows that Article 11 was based on the Democratic Programme, adopted by the First Dáil, in 1919, which stated, in relevant part: We declare in the words of the Irish Republican Proclamation the right of the people of Ireland to the ownership of Ireland…and we declare that the nation's sovereignty extends…to all its material possessions, the Nation's soil and all its resources, all the wealth and all the wealth-producing processes within the Nation, and with him we reaffirm that all right to private property must be subordinated to the public right and welfare… It shall be our duty to promote the development of the Nation’s resources, to increase the productivity of its soil, to exploit its mineral deposits, peat bogs, and fisheries, its waterways and harbours, in the interests and for the benefit of the Irish people. R.N. Tweedy succinctly described the link between natural resources and other social and economic rights, in his analysis of Article 11 of the Free State Constitution, saying, “This Article in the Constitution is very important, because the natural resources of Ireland are so great that every citizen can live in decency and comfort if the State directs their use properly.”

It is time that the explicit promises made in both the Free State and 1937 Constitution are realized. Only by granting justiciable rights, and enforcing a fiduciary duty on the State, in relation to public natural resources, can that promise be fulfilled.

The Public Trust Doctrine | Article 45 & Article 10 The ‘public trust doctrine’ is an English common law principle that posits that the sovereign or state is under a duty act as a trustee over certain natural resources, and to protect and manage them on behalf of the people. It has its roots in the Roman law of Justinian, and early English law; Chapter 16 of Magna Charta. In modern times it came to the fore in the United States, in a series of U.S. Supreme Court and State court decisions, beginning with cases involving ‘the oyster wars’. Many of these decisions actually rely on early Irish cases, such as the Case of the Royal Fishery of the Banne (1610), and Murphy v Ryan, (1868) another fisheries case. Ironically, those same cases are used in Ireland to deny the public rights to fishing and natural resources, such as in Inland Fisheries Ireland v. Ó Baoill [2012] IEHC 550 (High Court, Laffoy J). Since the 1970s, the PTD has spread from the U.S. to ten other countries, including Canada, India, Pakistan, South Africa, and Australia, which are all common law countries like Ireland. It is also being used in climate change litigation in both the U.S. and Europe. The PTD imposes a fiduciary standard of care on the State, which is the highest standard of care, in relation to natural resources. This means that the State is under an active duty of care to manage the trust property in the public interest only. It means that the public can go to court and challenge decisions that are made by the State, in relation to public natural resources. It also includes rights to information, the right to an accounting, and forbids any ‘self-dealing’ on the part of the State, or its representatives. This ‘beneficial’ ownership by the people, as opposed to the legal ownership of the State, is what lies at the heart of the PTD, and indeed the right to natural resources itself. With the many challenges facing natural resources, and indeed public finances, it is vital that natural resources are subject to the highest standards of care and scrutiny, and it is only by making the natural resources in Article 45 justiciable, along with the other ESC rights, that this can be achieved. Amendment of Article 10 & Article 45 As you pointed out in your interview, it is necessary to consider rights to natural resources, in general, when considering constitutionalising the right to water. Oil and gas, minerals, state forests, fisheries, air and other natural resources and State assets must also be considered. Article 10 of Bunreacht na hEireann currently regulates the ownership and management of natural resources: “All natural resources, including the air and all forms of potential energy…belong to the State.” However, the State does not have complete ownership of natural resources, since Article 45(2)(ii) states:

“The State shall, in particular, direct its policy towards securing: That the ownership and control of the material resources of the community may be so distributed amongst private individuals and the various classes as best to subserve the common good.” The term “material resources of the community” includes natural resources, and acts as a guide to the Oireachtas in terms of legislation and policy-making. However, since Article 45 is entitled Directive Principles of Social Policy, and is nonjusticiable by its own terms, citizens are left with no means of exercising their internationally recognized human rights to natural resources. The wording of Article 45, and its relationship to Article 10, indicates that the Constitution already contains the PTD, in the form of the right to natural resources. The fact that Article 45 places a restriction on the State, requiring it to consider the public interest, in decision-making with regards to natural resources, means that the ownership of natural resources by the State, in Article 10, is not absolute ownership, but is subject to the beneficial rights of ownership in the Irish people. Article 10 was also contradicted by the Terms of Reference (TOR) issued by the Department of Communications, Energy and Natural Resources (DCENR) on 24 September 2013, for a public procurement process, seeking the provision of expert advice on the fitness-for-purpose of the fiscal regime for oil and gas. The TOR stated: “Having regard to the fact that Ireland’s indigenous oil and gas resources belong to the people and to the policy goal of maximising the benefits to the State, from exploration for and extraction of those resources, the Minister for Communications, Energy and Natural Resources seeks expert advice…” (emphasis added) Former Minister for Communications, Energy and Natural Resources, Pat Rabbitte TD, addressing the Institute of International and European Affairs on The Future of Energy Policy in Ireland and Europe, on Friday 24 February 2012, affirmed that while Article 10 appears to grant total State ownership, that ownership is limited by other public and private rights: State participation need not be active: it can instead consist of profit-sharing, perhaps through our taxation system. The starting point must be the Constitution, Article 10.1 of which states that all natural resources, “including the air and all forms of potential energy”, belong to the State. This legal claim is stated in the text to be subject to any private interests that are for the time being lawfully vested in any person or body. But the wind, of course, is not owned by any private interests. It belongs therefore to the State and its exploitation as a natural resource must be on behalf of the people and driven by the public interest. (emphasis added). Article 10 does not place any such restrictions on the ability of the State to alienate public natural resources, and Article 45 is nonjusticiable. Only Article 6.1 places restrictions on the State power, generally:

All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good. This means that all powers of ownership and control over public natural resources are derived from the people, who are sovereign, under Article 1, which states: The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions. Article 10 has never been successfully used by a citizen to challenge a decision by the State to alienate natural resources. Instead, Article 10 has been used by the Courts to effectively grant complete ownership of natural resources to the State. Drafting the Constitutional Amendment | Wording for the Referendum In terms of drafting the ESC rights amendment, special care must be taken to ensure that public rights and State duties in relation to natural resources are included, and clearly defined, so as to make them justiciable. The Convention on the Constitution voted for Option 3: “Insert provision that the State shall progressively realise ESC rights, subject to maximum available resources and that this duty is cognisable by the Courts.” The enjoyment of all ESC rights depends on the justiciability of natural resource rights, since ‘progressive delivery’ of those rights is subject to limitation by the state, under the guise of the “maximum available resources” provisions found in ESC rights protections such as ICESCR. Traditionally, this language provides the ‘wiggle room’, which permits states to argue that they simply did not have enough resources to deliver the required ESC rights. One possible model for such an amendment could be Article 27 of the Constitution of Pennsylvania, which states: Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people. Another model can be the Constitution of the Irish Free State, and its drafting history. Art. 81.2, First Draft, Constitution of the Irish Free State, 1922 said: "Dáil Éireann shall regulate and control natural resources as trustees of the people of Ireland." Request for Committee Hearings Clearly, Irish law had not kept pace with international law, in terms of ESC rights and natural resources. If the Government decides to hold a referendum on the

strengthening of ESC rights, which it should, it is necessary to include the right to water in that proposed amendment, along with rights to other natural resources. Considering the complexity of the issues involved in drafting a constitutional amendment, which you yourself have acknowledged, PTI is requesting that the matter is brought before two Committees, in order to explore the options, and to give the public and recognized experts an opportunity to consider the matter further, before it is voted on by members of the Oireachtas. We ask that you refer this matter to both the Committee on the Environment, Culture and the Gaeltacht and the Select sub-Committee on Communications, Energy and Natural Resources. Kind regards, Vincent Salafia,