We rely for our understanding of the doctrine on an article entitled Highways, Parks and the Public Trust Doctrine, by Andrew Gage of West Coast Environmental Law in the Journal of Environmental Law and Practice, October 2007 published by Thomson Canada Limited.

While the common law doctrine of dedication and acceptance is most well known as a means of creating public highways, Canadian courts have also applied it to the creation of other public spaces, including “playgrounds, greenbelts, [and] parks.” This doctrine, which applies equally to private and government actors, has huge implications for understanding both private and public actions in relation to lands used by the public. Under the Doctrine, a private property owner's actions (or in some cases inaction) may result in the creation of legally enforceable public rights of use of lands for recreational or other public purposes. Similarly, the Doctrine provides an important tool in understanding the legal effect of government actions that set aside lands for public purposes--including, but not limited to, designations under parks and other protected spaces legislation.

The cases discussing the public rights created in this way often describe them in terms of a trust owed to the public. A review of the case law suggests that governments hold public spaces subject to a fiduciary obligation to the public, likely arising from the relationship between the creation of such rights and the creation of charitable trusts as well as from the nature of fiduciary duties generally.

The consequences of such public rights depend upon the specific public use for which the land has been dedicated, but generally prevent a property owner from using his or her property in a way that infringes upon the public use (thereby creating a public nuisance). For government the trust-like obligations are still broader, including a positive obligation not to allow others to infringe on the public's right, and possibly an obligation to take positive steps to prevent infringement of the public rights from occurring. While there are barriers for a member of the public seeking standing to bring such a claim, these rights may still be asserted in a number of contexts.

For the full text of the article read here: HighwaysParksAndThePublicTrustDoctrine.pdf

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