West Coast Environmental Law
Research Foundation Workshop

SFU Harbour Centre, Vancouver, Friday, June 14, 1996

Speaking Notes What is a Conservation Covenant?

A conservation covenant is a voluntary, written agreement between a landowner and a conservation organization in which the owner of the land promises to protect the land in specified ways. The conservation organization holds the covenant and can enforce it, if necessary, against the owner. The covenant is filed in the B.C. Land Title Office. The conservation covenant is intended to last permanently and binds future owners of the land, not just the current landowner. The covenant can cover all or just a portion of the landowner's property.

1994 Law Reform

Experience in the United States and elsewhere has shown that a conservation covenant can be a powerful tool for successfully protecting private land for ecological purposes. Even though private land is a relatively small portion of the total land base in British Columbia, much of the environmentally important land in the province is privately owned.

Amendments in 1994 to the Land Title Act significantly expand the potential to use conservation covenants for protecting private land in BC. Prior to the change in the Act, a conservation covenant to protect ecological features of land could be held by a provincial or local government body, but not by a private conservation organization. The amendments to the Act expanded this and provide that a conservation covenant now can be held by "any person designated by the Minister of Environment, Lands and Parks on terms and conditions he or she thinks proper." Essentially, it allows designated, non-government organizations to enter into conservation covenants with private property owners. It also provides the mechanism to have these covenants registered on title to the property, remaining on property even if the land subsequently is sold to a new owner.

Covenant Provisions Permitted by the Land Title Act

The Act sets out a number of types of provisions that can be included in a conservation covenant:

provisions that the land or a specified amenity in relation to the land 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 by the covenant" (amenity is defined broadly in the Act to include any natural, historical, heritage, cultural, scientific, architectural, environmental, wildlife or plant life value relating to the land that is subject to the covenant)

provisions regarding the use of the land or the use of a building on or to be erected on the land

requirements that the land is to be built on in accordance with the covenant — or that the land is not to be built on except in accordance with the covenant — or that the land is not to be built on at all

requirements that the land is not to be subdivided except in accordance with the covenant — or that it is not to be subdivided at all

provisions that parcels of land designated in the covenant and registered under one or more titles are not to be sold or otherwise transferred separately

Issues to Address in a Conservation Covenant

There are a number of other provisions parties to a conservation covenant should consider including in the covenant document, including:

provisions describing the ecological values of the land and the conservation objectives of the parties to the agreement

baseline information about important features of the property

provisions regarding ongoing management of the land (this could also be done by way of a separate document)

provisions regarding access to the property by the covenant holder, if this is part of the arrangement

provisions dealing with monitoring of the provisions of the covenant and enforcement if there is a violation

a dispute resolution mechanism

Other Issues

There are a number of other issues that people interested in holding or granting conservation covenants should consider, including:

whether a legal survey of the property is required

liability insurance

priority over any existing financial charges registered on title to the property

tax issues

Anyone wishing to place a conservation covenant on a specific parcel of land should obtain legal advice from a lawyer.

Publications on Private Land Protection from West Coast Environmental Law Research Foundation

Andrews, William J. & David Loukidelis, Leaving a Living Legacy: Using Conservation Covenants in BC, (Vancouver, BC: West Coast Environmental Law Research Foundation, 1996).

findlay, barbara & Ann Hillyer, Here Today, Here Tomorrow: Legal Tools for the Voluntary Protection of Private Land in British Columbia, (Vancouver, BC: West Coast Environmental Law Research Foundation, 1994).

Loukidelis, David, Using Conservation Covenants to Preserve Private Land in British Columbia, Ann Hillyer, editor, (Vancouver, BC: West Coast Environmental Law Research Foundation, 1992).

Overheads

Summary Conservation covenants as a tool are probably more akin to gardening tools than hammers or scalpels. They are small and specific and quite useful because people like to use them. Conservation covenants can only be used for private land, and although 95% of the province is Crown land, private land is where most urban streams are.

WCELA has been working on conservation covenants for a couple of years and has produced a law reform report (1994) and the publications Here Today, Here Tomorrow and Leaving a Living Legacy, funded by the Real Estate Foundation of BC.

For years, the United States has been using conservation easements for years for a number of reasons. In BC before 1994 they could only held by a "government" or the Islands Trust. Law reform involving s. 215 of the Land Title Act expanded the capability of covenants, which can now be held by conservation organizations. In this context conservation covenants are voluntary written agreements between a landowner and a conservation group to protect private land. They are enforceable against the owner. There is no need to convince the government or to purchase land. The covenant is permanently on the title of the land, filed in the Land Title Office. It binds all future owners and can cover all or a portion of the land. The covenant can be tailored to fit the needs of the site and the parties. For example there could be a prohibition against paving, or a covenant on a lot saying that building can only happen at the back of the land.

There has been an explosion of use of covenants but this has occurred largely in rural settings. Only now are we seeing an increase in more tailor made ones. In addition to those mentioned above, the benefits of conservation covenants include: that they can be held by an NGO, that other uses of the land are allowed, and that they are voluntary. Conservation organizations may not have competing priorities, and have some resources to monitor and enforce covenants. They can build up expertise about the value of the land. Furthermore, landowners are generally more comfortable with NGOs than government.

With regard to urban streams, conservation covenants could be used to protect sensitive habitat, create buffer zones for streams, restrict uses of land adjoining streams, put conditions on subdivision, contain building areas or for other site specific purposes. Possible examples of those who could hold conservation covenants include; local groups, large national/ provincial groups, local government (jointly with NGOs), or government agencies such as the Islands Trust. Non-governmental bodies must be designated by the Minister of the Environment to hold conservation covenants. The involvement of NGOs may help with compliance.

Ann Hillyer is optimistic that there will be more use of conservation covenants in urban areas.