In times of extreme drought, will a parched community be able to assert public rights to a scarce water supply? Or instead, will a profiteering corporation monopolize the water and charge citizens exorbitant rates to sustain their very survival? Will the law treat water as a commodity or a protected life source? These questions loom as corporations make swift maneuvers across the globe to privatize water. Maude Barlow observes in her book, Blue Covenant: “[T]he world is moving toward a corporate-controlled freshwater cartel, with private companies, backed by governments and global institutions, making fundamental decisions about who has access to water and under what conditions.” The public’s right to waters hinges on the matter taken up in this chapter: the scope of resources protected under of the public trust. Identifying trust assets begins the process of casting a net of fiduciary obligation over government trustees and setting boundaries on private exploits of crucial resources.

The trust res consists of assets held in the trust, designed to serve the trust’s purpose and requiring protection so as to meet that purpose when the time comes. Private trusts hold financial assets like stocks and bonds. The res of Nature’s Trust consists of ecological assets, natural wealth that must sustain all foreseeable future generations of humanity. It amounts to humanity’s survival account – the only one it has. Government trustees must protect trust resources for the benefit of present and future generations, allowing their privatization only in limited circumstances. Cleaving any category of natural resource from the trust endowment leaves it open to destruction for profit, with seemingly no end. As the Supreme Court of India remarked in recognizing a public trust in natural gas reserves: “Historically, and all across the globe, predatory forms of capitalism seem to organize themselves, first and foremost, around the extractive industries that seek to exploit the vast, but exhaustible, natural resources. Water, forests, minerals and oil – they are all being privatized; and not yet satisfied, the voices that speak for predatory capitalism seek more.”