Leaving a Living Legacy:
Using Conservation Covenants in BC
by
William J. Andrews
and
David Loukidelis

January 1996
West Coast Environmental Law
Research Foundation
Vancouver, Canada

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COPYRIGHT © 1995 BY THE WEST COAST ENVIRONMENTAL LAW
RESEARCH FOUNDATION ISBN 0-919365-13-2
West Coast Environmental Law Research Foundation 1001 - 207 West Hastings Street
Vancouver, BC, Canada, V6B 1H7
phone: (604) 684-7378
fax: (604) 684-1312
email: admin@wcel.org
http://www.wcel.org

The West Coast Environmental Law Research Foundation is a non-profit charitable society which supports and conducts legal research to develop standards and objectives that will ensure the maintenance of environmental quality.

The Law Foundation of British Columbia provides major funding for West Coast Environmental Law Research Foundation. The Real Estate Foundation, the Vancouver Foundation, and the Environmental Partners Fund all provided project funding for the production of Leaving a Living Legacy: Using Conservation Covenants in BC. These agencies endorse the research but not necessarily the opinions expressed in this publication. This guide is for educational purposes only. Individuals with specific legal problems are urged to seek legal advice from a lawyer.

Canadian Cataloguing in Publication Data
Andrews, William J.
Leaving a living legacy
Includes bibliographical references.
ISBN 0-919365-13-2
1. Conservation easements--British Columbia. 2. Land trusts
British Columbia. 3. Land use--Law and legislation British
Columbia. 4. Conservation of natural resources--Law and
legislation--British Columbia. I. Loukidelis, David, 1957- II.
West Coast Environmental Law Research Foundation. III.
Title.

KEB227.R54A92 1995 346.71104'35 C95-911217-0
KF658.C65A92 1995

Photographs: Jennifer Balke, p. 67 (top); Janice Doane, p. 1, 11, 15, 31, 66 (left), 67 (middle & bottom), 68 (all); Christopher Heald, cover, p. 10, 20; Chris Hilliar, p. 6, 25; Rick Marotz, p. 66 (right). Copyright for the photographs remains with the photographers.

Sundance cover stock is 100% recycled, with 20% post-consumer fibre. Unity DP text stock is made from 100% de-inked recycled fibre, including 50% post-consumer fibre (100% from old newspapers and magazines). Printed with Alpha-Veg ink, chosen for its relatively low volatile organic compound (VOC) weight of 13%, and its linseed oil content at weight of 28%.

Preface

The West Coast Environmental Law Research Foundation (WCELRF) is a non- profit, charitable society devoted to legal research and education aimed at protection of the environment and promotion of public participation in environmental decision making. It operates in conjunction with the West Coast Environmental Law Association (WCELA), which provides legal services to concerned members of the public for the same two purposes.

This guide is about conservation covenants, a new legal tool that allows the voluntary preservation of privately owned land in British Columbia. A conservation covenant may be granted by a landowner to a non-governmental conservation organization. The guide provides information and encouragement to landowners and conservation organizations that may be interested in placing conservation covenants on privately owned land to protect ecological and other important values of that land. It also provides information to other parties who may be interested in the voluntary protection of private land — local government, lawyers and real estate professionals.

This guide is educational and does not constitute legal advice. Readers concerned about specific land preservation issues in a particular situation, or readers wishing to place a conservation covenant on a specific parcel of land, are strongly urged to seek legal advice from a lawyer.

WJA

Vancouver, December 1995

Acknowledgements

This guide is the result of a project called Partners for Stewardship: Using Conservation Covenants for the Voluntary Legal Protection of Private Land in British Columbia.

Substantial credit goes to the Islands Trust Fund Board for sponsoring the project. Lidstone, Young, Anderson, Barristers & Solicitors, generously donated invaluable legal work. Numerous large and small conservation organizations contributed along the way: BC Conservation Foundation, BC Wildlife Federation, Coast Islands Conservancy, Comox Valley Project Watershed Society, Denman Island Conservancy, Ducks Unlimited, Greenways Committee of the Provincial Capital Commission, Nature Conservancy of Canada, Nature Trust of BC, Pender Island Conservancy, Quadra Island Conservancy, Salt Spring Conservancy, Silva Forest Foundation, Slocan Valley Watershed Alliance, and Turtle Island Earth Stewards.

The authors wish to thank the staff and directors of WCELRF for their hard work and persistence in taking this publication from concept to distribution. In particular, we'd like to thank Ann Hillyer for research and editing, Morgan Ashbridge and Alexandra Melnyk for word processing, Catherine Ludgate for project coordination and document design, Christopher Heald for desktop publishing and photographs, and Patricia Houlihan and Linda Nowlan for commenting on drafts.

WCELRF gratefully acknowledges funding for the project from The Real Estate Foundation of British Columbia, the Vancouver Foundation (celebrating its 50th anniversary), and the federal Environmental Partners Fund. Core funding of WCELRF is provided by The Law Foundation of British Columbia.

Special thanks to Pamela Cowtan, formerly of the Island Trust staff, for her able and enthusiastic guidance.

Special thanks also to Janice Doane of the Islands Trust Fund, and Jennifer Balke of the Denman Conservancy Association, for photographs and text; to Chris Hilliar and Rick Marotz for photographs; and to Jan Kirkby for additional covenant photo text and information.

The views expressed in this guide are those of the authors and WCELRF. Any errors or omissions are also the responsibility of the authors.

Table of Contents

Chapter 1: Introduction 1 Protecting private land 1 A new legal tool 2 History of conservation covenants 2 Many uses 2 What is in this guide 3 Not legal advice 4

Chapter 2: About conservation covenants 5 Kinds of provisions 5 Positive or negative promises 6 Binding on successors in title 6 Personal release 7 Modification or termination 7 Modification or discharge by a court 7 Designation 8 Dissolution of the organization holding the covenant 8 Non-compliance with the covenant 9 A legal survey 9

Chapter 3: Getting started 11 Is a conservation covenant required? 11 The landowner 11 The conservation organization 12

Chapter 4: Objectives and plans 14 Ecological values and conservation objectives 14 Specific requirements 15 Recording the baseline 15 Management plans 16 Monitoring 18

Chapter 5: Enforcement 20 Court remedies 20 Alternative dispute resolution 21 Self help 21 Rent charge 21 Bonding and letters of credit 22

Chapter 6: Tax issues 23 Income tax 23 Property tax 25 Property transfer tax 26

Chapter 7: Liability 27 The landowner 27 The conservation organization 28

Chapter 8: Tips for participants 29 Tips for landowners 29 Tips for lawyers 30 Tips for provincial or national conservation groups 31 Tips for local conservation groups 32 Tips for real estate professionals 32 Tips for local government 32

Appendix A: Covenant, with comments 33 Purpose 33 A modular covenant 33

Appendix B: Frequently asked questions 45

Appendix C: Glossary 49

Appendix D: Organizations 52 National 52 Provincial 52 Regional 53 WWW Sites

Appendix E: Bibliography 55

Appendix F: Excerpts from statutes 57 Disclaimers 57 Land Title Act, section 215 57 Property Transfer Tax Act, section 5.2 59 Assessment Act, section 26(3.5) 62 Property Law Act, section 31 62

Appendix G: Letter requesting designation 64

Appendix H: Priority agreement 65

Appendix I: Example covenants 66 Sadler/Medicine Beach Covenant 66 Inner Island Nature Reserve 67 Cunningham Conservation Covenant 67 Scott Covenant 68 Enchanted Forest 68

Appendix J: Management agreement 69

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