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

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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.... {con't

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