RECLAIMING THE PUBLIC TRUST IN SINGAPORE

• Citation: (2005) 17 SAcLJ 717
• Published date: 01 December 2005
• Date: 01 December 2005
• Author: Joseph CHUN LLB (Hons) (National University of Singapore), PhD (University College London); Advocate and Solicitor (Singapore); Solicitor (England and Wales); Assistant Professor, School of Design and Environment, National University of Singapore.

The public trust doctrine has been extensively used in American environmental legal advocacy. The doctrine has also been judicially applied in other jurisdictions, albeit to a lesser extent. Offering as a case study the recent events leading to the Government’s decision to temporarily defer plans to reclaim Tanjung Chek Jawa, the article considers the application of the doctrine in Singapore, and concludes that the doctrine has a potentially useful role to play in improving environmental governance in view of the limited availability of avenues for citizens to hold the state legally accountable for the management of ecologically valuable land.

1 The public trust doctrine has been extensively used in American environmental legal advocacy. Said to originate in Roman law and English law, the doctrine essentially provides that certain natural resources are held “on trust” for the public and therefore legal owners of these resources are entrusted to use these resources for specific public purposes. In Singapore, 90% of the land is “owned” by the State and its statutory boards. When applied to the State, it draws a distinction between ordinary land generally owned by the State as a corporate entity as though it were a private landowner, and public trust land held by the State as the sovereign as though it were a trustee for specific purposes in the common interest of the public. The doctrine has also been judicially applied in other jurisdictions, albeit to a lesser extent.

2 Offering as a case study the recent events leading to the Government’s decision to temporarily defer plans to reclaim Tanjung Chek Jawa, I consider the application of the doctrine in Singapore, and conclude that the doctrine has a potentially useful role to play in improving environmental governance by supplementing the limited availability of avenues for citizens to hold the State legally accountable for the management of ecologically valuable land.

I. The deferred land reclamation off Chek Jawa

3 Tanjung Chek Jawa is located at the eastern tip of Pulau Ubin, an island slated for residential and light industrial use, off the north-eastern coast of the main island of Singapore. It is unique in Singapore in that this intertidal area hosts several rare and relatively unspoilt ecosystems, such as coastal forest, mangrove, sandy beach, sandflats, coral rubble and a tiny island, all within an area of about one square kilometre.

4 The plan to reclaim Ubin, including Chek Jawa, was approved by Parliament in 1992 pursuant to s 4(2) of the Foreshores Act,1 after a brief description by the Minister of the Government’s general plans for the island. Prior to parliamentary approval, the plan to reclaim the island had been publicised in the Urban Redevelopment Authority’s non-statutory Concept Plan 1991, Living the Next Lap. The long-term plan was to enlarge the island and link it to mainland Singapore by tunnel or bridges.2 In the interim, the island would be put to recreation uses; and at a later stage, to housing and other uses. The approved reclamation was subsequently reflected in the 1998 Master Plan, a statutory land use plan under the Planning Act.3 As for the Chek Jawa site, it was formally zoned in the Master Plan 1998 as a “reserve site”, ie, its specific use had yet to be determined.4 The Urban Redevelopment Authority (“URA”) disclosed, however, that it was slated for military training use after reclamation.5

5 Environmental impact assessments are not required by law in Singapore. However, the URA claimed in 2001 that in fact a study had been commissioned in 1995 to determine the impact of the reclamation on dugongs.6 The study concluded that the sea grass in the area was patchy and not abundant, and the area did not appear to have a resident

population of dugongs. Hence, the reclamation would not have any significant impact on a dugong population. In addition, the study concluded that the area did not have any established coral reefs or reef communities, nor would the conditions favour the development of such. As for the plants that would be affected by reclamation work, the National Parks Board was working on transplanting these plants to other parts of the island.7 The study has however not been made available to members of the public. This led a biologist to comment:8

[W]ho had phrased the original terms of reference? Was the report available to the public? … it appeared that value of Chek Jawa for the EIA had been considered from only two parameters—the presence of marine mammals and the presence of coral reefs. The apparent ignorance of the presence, functions and diversity of all other marine ecosystems seemed either too convenient, or otherwise sadly ignorant.

6 In February 2000, Parliament was presented with an opportunity to reconsider the proposal to reclaim Ubin. Subsequent to the approval in 1992, the Ministry of National Development (“MND”) directed a review

of the reclamation profile “with the objective of increasing the amount of land that can be reclaimed and to optimise land use”.9 At the end of the review, it was proposed to increase the area of Ubin to be reclaimed and to carry out the reclamation works between October 2000 and 2008. Once again, Parliament approved the proposal, seemingly without having sought any elaboration on the specific intended use of the proposed reclaimed land. There is also no record in the official report of the parliamentary debates that Parliament raised any issue about possible impacts of the proposed reclamation on existing public uses or the environment at the sites to be reclaimed. Neither is it clear from the official report that Parliament was at the time aware of the “internal” environmental study carried out in 1995.

7 The revised reclamation proposal was reflected in the URA’s Concept Plan 2001 following “extensive” public consultation of the plan, including the formation of two focus groups, a public forum, provision for public feedback via the Internet and other channels, and public exhibitions of the draft and final concept plans.10 The public was however not told of or given access to any environmental impact studies that might have been undertaken on the proposed reclamations.

8 A botanist stumbled on the richness of Chek Jawa by accident sometime in January 2001.11 The initial official response to this discovery was that the reclamation would not be put off. It had been approved, and was necessary for meeting other competing needs. The environmental impact of the reclamation would be minimised.12 Marine biologists, research officers and members of the public then frantically descended on Chek Jawa to survey its biodiversity, collect specimens and photograph the area. With the help of volunteers, public educational talks and walks were organised to give the public a glimpse of the soon to be reclaimed mudflat life. The public responded overwhelmingly. They wrote to the press and the Minister for National Development, and also petitioned for Chek Jawa not to be reclaimed.

9 At the eleventh hour, MND made an interim announcement to defer the reclamation works at Ubin. According to MND’s press statement dated 20 December 2001,13 the reclamation works had been scheduled to commence in December 2001, but would now be deferred to allow MND to discuss with relevant experts how best to protect the marine life there. MND also said that its decision to defer the reclamation works followed careful consideration of all public submissions and extensive consultations among various government agencies, and marine life experts. On 14 January 2002, MND released another press statement to announce that it would put off the reclamation of Ubin “for as long as the island is not required for development”.14 An alternative site was found on the mainland for the Defence Ministry’s use.15

10 Today, the site is managed by the National Parks Board. Free guided tours to Chek Jawa led by volunteers are regularly organised for the public to learn more about its rich biodiversity. These visits are very popular and visitation slots are often fully booked months ahead.16 Aside from involving volunteers from the public to act as guides for the walks, the National Parks Board also recruits volunteers to help in projects to restore and rehabilitate the damage to the ecosystem arising from past human activities, and in field research.17 Yet, Chek Jawa continues to be zoned a “reserve site”.18 Despite its ecological merits19 and popularity, there

are no plans to designate it as a national park or nature reserve, or even a natural area;20 even though the MND does not foresee any need for the area to be developed, it wants to keep its options open.21

11 For Chek Jawa not to be even designated as a nature area is an indication of how legally vulnerable this ecological “jewel” is. The present state of affairs is unsatisfactory from an environmental governance point of view. Foreshores may be reclaimed with the perfunctory approval of Parliament; there is no need for the intended uses or likely ecological impacts to be scrutinised by Parliament or the public. When the ecological value of a site to be reclaimed is discovered, parliamentary approval for the proposed reclamation remains in force, and reclamation works are deferred only as a matter of administrative discretion. Yet, concerned members of the public have little legal recourse because of the lack of any avenue to hold the state legally accountable for its environmentally-sensitive decisions. Underlying such a void is an administrative system of environmental governance in which the state has the legal power to protect natural resources, but no legal duty to even take environmental and ecological considerations into account in its decisions. It is submitted that in these circumstances, the public trust doctrine can make a potent contribution towards rendering environmental decision-making by the state more sensitive to...