In Court on April 1, Judge Brothers asked Jamie Simpson to explain:
If Canadian courts were to recognize the public trust doctrine, then future Ministers of Lands & Forestry could more easily be held responsible if they failed to consult the public on critical decisions that appeared to be in violation of the public trust.Owls Head Goes to Court by Richard Bell
So it was not surprising that Judge Brothers asked Simpson to explain, “Why should I be the first judge in Canada” to rely on the public trust doctrine, given the reluctance thus far of other Canadian judges to cite the doctrine. Simpson went through statements of Canadian judges from a series of cases arguing for the benefits of incorporating public interest doctrine into Canadian law; from their perspective, the common law is not a fixed, unchanging entity, but something that has changed over time in order to deal with changes in the world at large.
I can answer Judge Brothers’s question: because somebody has to be the first.