You won’t find “Public Rights” in the index of any of the main texts on statutory interpretation in Canada. You will find sections on aboriginal rights, possibly customary rights, and definitely private rights.
The legal commentaries seem to suggest that public rights don’t really influence how the courts interpret statutes, perhaps taking the view that such rights exist only at the pleasure of the Crown. This is astounding, as the case law is clear that statutes should be interpreted as affirming and protecting public rights unless they contain clear language to the contrary.
By ignoring this lost rule of statutory interpretation, Canadian law has tended to emphasize private rights over the rights of the public, viewing statutes that affirm public rights at the expense of private rights with suspicion. The result is a bias in the legal system against such issues as the environment and public health, particularly when they interfere with powerful economic interests.
If the Canadian courts instead choose to recognize and affirm the importance of public rights, Canadian law can use an old principle of statutory interpretation to advance a new and more balanced approach to dealing with the environment and other disputes affecting public rights.
This paper will briefly consider what is meant by public rights before turning to a broader review of the cases that have interpreted government action that impacts on public rights. The relevant principle – that legal documents should be interpreted as not derogating from, and where appropriate affirming, public rights – will be illustrated and discussed in the context of:
- constraints that the courts put on the monarch’s exercise of prerogative powers;
- interpretation given by the courts to statutory instruments that have the effect of negatively impacting public rights;
- procedural measures designed by the courts to protect public rights; and
- interpretation given by the courts to legislation intended to advance the interests underlying existing public rights.
The paper will then consider some issues arising from the principle established by the above review of the case law: whether such principles are limited to particular public rights (specifically the rights of navigation, fishing and the use of highways); how this approach is related to the American public trust doctrine; and, finally, what public policy benefits result from such an approach to statutory interpretation.