3. Options for Protecting Privately Owned Wetlands

There are a number of different legal tools that may be used to protect privately owned land. Descriptions of these tools can be found in a series of recent publications from West Coast Environmental Law Research Foundation.³⁸

Some of the legal tools are well known. For example, one of the most common ways to protect private land is to transfer title to the land from one owner to another party who wants to protect it by way of a sale or a gift. Other legal tools are less common, but may be useful in certain situations.

Since the problem of legal protection for wetlands has both a water and land component, it is important to look at land laws as well as laws that focus more on water. To protect wetlands the law must address both the water quality in terms of what enters the water and what is taken out of the water (including the water itself) as well as the physical space or land around the water, which can be in the form of culverts, or pavement, or erosion of the banks of a stream.

The Land Title Act is the chief statute controlling land disposition in the province. The Land Title Act contains provisions for a legal tool called a “conservation covenant,” first created in 1978 under section 215 of the Land Title Act. This type of covenant is an agreement between a private landowner and the Crown or Crown corporation or agency, municipality or regional district or a local trust committee under the Islands Trust Act. It is designed to conserve land or a particular feature of the land. The agreement is registered against title to the affected land; the burden of the covenant runs with title to the land and; therefore, binds the successors in title to it.

Municipal governments have used section 215 covenants to protect fish habitat on privately owned land. Many covenants of this type have been signed between a landowner and the Ministry of Environment, Lands and Parks in which the landowner agrees not to alter the riparian portion of his or her property covered by the covenant.

However, a study done by DFO and the City of Surrey, titled “Protection of Aquatic and Riparian Habitat on Private Land — Evaluating the Effectiveness of Covenants in the City of Surrey 1995,” did look at the use of section 215 covenants in a study area. Of the 261 lots that were the subject of the survey, 185 or 71 per cent had covenants. The frequency of encroachment into these covenanted areas was 75 per cent. This means that the covenants were not being followed. Landowners had either intentionally or unintentionally affected the riparian setback area in a negative way.

The study also concluded that section 215 covenants granted to government agencies were not effective by themselves in protecting fish habitat in the Municipality of Surrey under the current management regime. Suggested reasons for this failure included lack of enforcement and lack of resident knowledge of the conditions attached to the covenant. The study found a big gap between those landowners who said they knew the conditions of the covenant and those who actually understood it. More public education about the terms of such covenants was recommended.

What Is A Conservation Covenant?

British Columbia’s Land Title Act recently has been amended to allow conservation covenants to be granted to qualified conservation organizations to protect private land in British Columbia. This greatly increases the potential for this legal tool to be effective in protecting private land, since conservation covenants can now be held by private organizations which give high priority to conservation objectives.

Conservation covenants are voluntary agreements and are used to protect private land where the owner has willingly granted the covenant on terms acceptable to the owner. An owner may be motivated to grant the covenant by concern for preserving the land, by payment for it, or by receiving other benefits such as a possible reduction in real property tax.

With this new amendment, section 215 of the Land Title Act offers great flexibility for parties to fashion an instrument appropriate to the needs of the situation at hand. A covenant under section 215 may include any one or more of the following:

• provisions in respect of the use of land, or the use of a building that exists on the land or that is to be built on the land;
• provisions stipulating that the land is not to be built upon, or that it is to built on only in accordance with the covenant;
• provisions regarding subdivision of the land, including a prohibition on subdivision or provisions regulating the manner of subdivision; and,
• provisions stipulating that parcels of land identified in the covenant, and registered under more than one indefeasible title, are not to be sold or otherwise transferred separately.

In addition to these provisions, section 215(1.3) permits a conservation covenant to include provisions:

... that land or a specified amenity in relation to it be protected, preserved, conserved, maintained, enhanced, restored or kept in its natural or existing state in accordance with the covenant and to the extent provided in the covenant.

The word “amenity” is defined in section 215(1.4) as including:

... any natural, historical, heritage, cultural, scientific, architectural, environmental, wildlife or plant life value relating to the land that is subject to the covenant.

Moreover, by virtue of section 215(2), a covenant may include “as an integral part” an indemnity in favour of the covenantee “against any matter agreed to by the covenantor and covenantee.” The indemnity may provide for “the just and equitable apportionment of the obligations under the covenant as between the owners of the land affected.” Last, performance of the covenant can be secured by way of a rent charge, charging the land and payable by the covenantor and the successors in title to the covenantor.

Uses of Conservation Covenants

Conservation covenants held by conservation organizations are useful in a wide variety of situations that may increase the legal protection of wetlands:

• protecting ecologically valuable features of the land;
• providing a buffer zone adjoining a park or other protected area;
• requiring agricultural land to be used for farming without damaging important waterfowl habitat;
• limiting private forest land to ecologically sustainable forestry;
• requiring specific management or development practices that protect a variety of values relating to the land, including natural, historical, heritage, cultural, scientific, architectural, environmental, wildlife or plant life values;
• providing a buffer zone to protect riparian habitat from logging on private land; and,
• protecting a rails-to-trails or other linear conservation project.

Like any law or legal tool, a conservation covenant has limitations. As noted above, it may be difficult to enforce. A conservation covenant has the potential to add to a landowner’s risk of liability, if members of the conservation organization or the public are injured while on the land for purposes allowed by the covenant (although proposed amendments to the Occupier’s Liability Act may alleviate this problem). The proposed covenant holder must be prepared to effectively monitor and enforce the covenant. A landowner must also obtain legal and tax advice before entering into a covenant.