[Note: The amendments to statutes recommended in this paper have since been adopted by the B.C. Legislature. See Leaving a Living Legacy: Using Conservation Covenants in British Columbia.]
Land use issues have long occupied a central role in environmental disputes in British
Columbia. How This report recommends that the Province of British Columbia enact legislation
permitting the use of While a variety of tools are available to protect land, there is a growing need in
British Columbia to expand the initiatives available to private parties for the protection
of private land. In the United States and elsewhere, the This report examines and makes recommendations on key issues that need to be addressed
in the conservation covenant legislation. A summary of some of the main recommendations is
set out below.
There are serious constraints on the ability of government to preserve land in British
Columbia. The focus on larger areas and the need for public financial restraint together
hamper government's ability to preserve anything other than British Columbia's publicly
owned land base. Given the limits to what government can do itself to protect all of the
natural areas in British Columbia that warrant protection, there is a pressing need for
private methods of protecting land as well. One of the most promising tools for the
private protection of land is the conservation covenant. The government of British
Columbia should act quickly to make this tool available. 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 report has been prompted by a growing awareness among conservation groups and
landowners in British Columbia that there are serious limits to what government can do to
preserve the environment. This report urges law reform in British Columbia to enable the
voluntary preservation of privately owned land through a new statutory tool called a
conservation covenant, that may be granted to private conservation organizations. There
are various methods currently available to protect private land in British Columbia.
However, experience elsewhere illustrates that a tool similar to the conservation covenant
recommmended in this report would be a valuable addition to the existing tools. The views expressed in this report are those of the author alone. Readers are reminded that this report is educational and does not constitute legal
advice. Readers concerned about specific land preservation issues in a particular
situation are urged to seek legal advice from a lawyer. David Loukidelis Vancouver, July 1992 The author is indebted to the staff at the West Coast
Environmental Law Research Foundation , particularly: Ann Hillyer, William J. Andrews
and Murray Mollard for their cogent comments and editing; and Catherine Ludgate, Denice
Regnier and Morgan Ashbridge for production and desktop publishing. I would also like to
give special thanks to Rick O'Neill and Judith White for their excellent photographs. The study was funded by the Real Estate Foundation of British Columbia. Special thanks
are owed to Tim Pringle, Executive Director of the Real Estate Foundation, for
encouragement and direction. I am also pleased to acknowledge that the Law Foundation of
the British Columbia provides core funding for the West Coast
Environmental Law Research Foundation. Many individuals helped in the preparation of the this study. I would like to thank the
following people with whom we consulted in the course of our research: Alan Andison,
Ministry of Environment, Lands and Parks; Marc Denhez; Bo Fodchuk, Russell & DuMoulin;
Ray Halladay, Ministry of Environment, Lands and Parks; Bill Huot, Ministry of Tourism and
Ministry Responsible for Culture; Lindsay Jones, Nature Trust; Randy Klarenbach, Lawson,
Lundell, Lawson & McIntosh; Art Martell, Canadian Wildlife Service; Professor Sandra
McCallum, University of Victoria; Rick Paige, Ministry of Environment, Lands and Parks;
Tom Slater, Ducks Unlimited; Gerry Townsend, Canadian Wildlife Service; Wes Umphrey,
Ministry of Environment, Lands and Parks; and Bill Wareham, Ducks Unlimited. The views expressed are those of the author and the West Coast
Environmental Law Research Foundation . Any errors or omissions are, of course, solely
the responsibility of the author. Concern about the natural environment has increased dramatically in recent years. Many
of the most pressing environmental issues in British Columbia are land use issues
involving questions about allocation and management of land and resources. [[Footnote: (1) -- 1. For a discussion about a number of the environmental issues
connected to land use issues, see British Columbia Round Table on the Environment and the
Economy, Sustainable Land and Water Use (Victoria: British Columbia Round Table on
the Environment and the Economy, 1991).]] There often is intense -- and sometimes
acrimonious -- struggle over how land and resources are to be used, if at all. Many
parties involved in land use struggles look to one level of government or another for
resolution of the conflict. However, in many cases there are limits to what government can
do to solve these problems. Therefore, private measures to preserve private land in
British Columbia are becoming increasingly important. This report examines the conservation covenant, a tool that offers maximum flexibility
in the use of land while ensuring protection for defined purposes. This report also
identifies key areas of law reform aimed at making this tool available to private
conservation organizations, thereby creating new opportunities for the voluntary
preservation of private land in British Columbia. There are serious constraints on the ability of government to preserve land in British
Columbia. First, land use planning and protection mechanisms usually operate on a large
scale. [[Footnote: (2) -- 2. This is not universally the case. For
example, many ecological reserves in British Columbia protect relatively small areas.]]
Traditional preservation tools, such as parks, apply to relatively large areas; they
encompass valleys, forests or watersheds. Opportunities to protect smaller parcels of
land, especially privately-held land, are frequently overlooked. The second important limit on what government can do is financial. Despite broad public
support for land preservation, the financial resources of government available for that
purpose are increasingly limited. Moreover, land values in all areas of the province are
climbing. For those reasons, government is often unable to purchase privately owned
parcels of land for conservation purposes. Publicly funded preservation initiatives are
therefore likely to continue to focus on Crown land. Privately held parcels of land are
less likely to be preserved even if they are environmentally significant. The focus on larger areas and the need for public financial restraint together hamper
government's ability to preserve anything other than British Columbia's publicly owned
land base. This has led many people to pursue private initiatives in land preservation to
complement government action. [[Footnote: (3) -- 3. An example of
the growing recognition that traditional conservation tools must be supplemented by
private sector conservation tools is found in the opinion piece by D. Anderson, "More
Than Mountaintops" The Vancouver Sun (21 December 1991) B5, where the author
argues that there is a need for "an increase in the use of private sector legal tools
for environmental protection." ]] Private purchase of private land for conservation purposes is a major option. However,
the cost of land in British Columbia presents an increasingly serious obstacle to private
land preservation through outright acquisition. Land values are an obstacle not only to
government intervention, but also seriously limit the ability of private conservation
organizations to acquire land for conservation purposes. Cost is not the only reason private conservation organizations are interested in
alternatives to land purchases. Some landowners have no interest in selling their land, in
spite of possible tax benefits. For example, a farmer may wish to ensure that her land
will continue to be used for agricultural purposes forever. Sale or donation of the land
to a private conservation group may not provide sufficient assurance to the farmer that
the use of the land will remain unchanged. In other cases, the landowner's desire to
retain control may make outright disposition unworkable. In addition to the purchase of land by a conservation organization, there are other
legal tools available in British Columbia that offer opportunities for land preservation
by private methods. There are two types of tools, statutory and non-statutory, and they
include the following:
For reasons similar to those discussed above, methods of protecting land, other than
through outright purchase, have become popular in the United States. Experience in the
United States and elsewhere has shown that one of the most useful tools is what is
referred to in the United States as a conservation easement, [[Footnote: (4) -- 4. In this report the term conservation covenant is used to refer
to a registrable interest in land created for the purpose of preserving or conserving the
land or some feature of the land. This interest is similar to that referred to as a
conservation easement in the United States. While some authors draw a distinction between
conservation covenants and conservation easements, in this report the terms are used
interchangeably to refer to the same type of interest in land. End of Footnote]] z which can be held by private organizations. It is one of the most
popular tools used by land trusts [[Footnote: (5) -- 5. Many United
States land preservation groups refer to themselves as land trusts, many of which are
not-for-profit corporations. The term land trust is not a technical legal term. It arises
from the fact that a land trust holds land, or interests in land, for the public purpose
of preservation. Although land trusts may be formed and used in British Columbia,
examination of various practical and legal issues related to land trusts is beyond the
scope of this report. End of Footnote]] z and other conservation groups in the United
States. A similar method of land preservation is not available in British Columbia to
private groups. Other tools used by private conservation groups in the United States are already
available in British Columbia. A detailed discussion of those tools is beyond the scope of
this report. However, some require a brief discussion largely to underscore the need for
law reform in British Columbia to permit the use of conservation covenants held by private
groups. The land preservation tools currently available for the protection of private land in
British Columbia are both statutory [[Footnote: (6) -- 6. In
addition to the statutory instruments discussed in the text, there are other statutory
powers which may be useful in the preservation of private land. For example, a local
government may co-operate in the designation of privately owned land as an environmentally
sensitive area under the development permit area provisions of Part 29 of the Municipal
Act, R.S.B.C. 1979, c. 290 [the "Municipal Act"].]] and
non-statutory. If a landowner wishes to involve government in land preservation, the Land Title Act
[[Footnote: (7) -- 7. R.S.B.C. 1979, c. 219 [the "Land
Title Act"].]] offers two useful tools. First, section 215 of that Act permits a landowner to enter into an agreement with the
government, by way of a covenant registered on title to the land, to restrict the use of
the land in question, including what can or cannot be built on it. The agreement can also
require the landowner to do something positive on the land, such as undertake a program of
works preserving wetlands. Recent amendments to the Land Title Act allow a covenant of this kind to be
granted for environmental purposes. The new provision, section 215(1.1)(e), permits a
covenant to be registered for the purpose of protecting, preserving, conserving or keeping
land in its natural state according to the terms of the covenant. While a section 215
covenant is enforceable against successors in title and does not need to benefit adjacent
land, it can only be granted in favour of a provincial or local government body. It cannot
be granted in favour of a private party. This seriously limits its application for the
protection of private land. In this report, the covenant permitted under section 215(1.1)(e) of the Land Title
Act is referred to as a " Second, under section 214 of the Land Title Act it is possible for a landowner
to give the provincial or a local government a statutory right of way over land.
[[Footnote: (8) -- 8. Section 214 of the Land Title Act also
allows a statutory right of way to be granted to anyone designated by the Minister of
Lands, Parks and Housing -- as the section now reads -- as qualified to receive such
rights of way. This could be very useful for conservation groups, if the government were
willing to make the necessary designations under section 214.]] This permits the
government to use specified parts of the land for purposes necessary to a government
undertaking. Some local governments have used this power to secure rural and urban trails.
Another existing statutory tool, similar to a covenant granted under section 215 of the
Land Title Act, is the heritage conservation covenant or easement under sections 13
and 27 of the Heritage Conservation Act. [[Footnote: (9) --
9. R.S.B.C. 1979, c. 165 [the "Heritage Conservation Act"]. ]] That Act
allows a landowner to grant a covenant or easement in favour of the Province, the British
Columbia Heritage Trust or a local government for the purpose of protecting or conserving
a heritage object or heritage site. A heritage site is defined in section 1 of the Heritage
Conservation Act as "land, including land covered by water" which has
"historic, architectural, archaeological, palaeontological or scenic significance to
the Province or a municipality." It is clear from the language of the Heritage Conservation Act that land can
have heritage significance apart from the structures located on the land. A heritage
covenant or easement could be used, for example, to preserve a landscape of scenic or
historic significance. Further, unlike section 215 of the Land Title Act, the Heritage Conservation
Act expressly contemplates assignment of interests created under it. Section 27(3) of
that Act provides that a heritage easement or covenant may be "assigned ... to any
person and shall continue to run with the land and may be enforced ... by and in the name
of that person." The assignability of such interests offers considerable flexibility.
For instance, it would be possible for a local government to act as a facilitator by
accepting a covenant or easement and then assigning it to a private conservation
organization. However, one significant restriction on the use of heritage covenants or
easements is the limited list of heritage purposes for which they can be created. For
example, there will be many cases where wildlife habitat which merits preservation is
neither scenically nor historically significant to the Province or a local government. There are four main non-statutory preservation techniques available in British Columbia
to landowners and private conservation groups or governments, in addition to the option of
purchasing the land outright. First, a landowner may grant a long term lease of land to a conservation group for 99
years or longer. The lease could include a base-line ecological inventory of the land,
using written descriptions, data, graphs, photographs and maps, and detailed conditions
for the use of the land by the conservation group. Breach of the conditions, such as use
of the land for prohibited purposes, might entitle the landowner or his or her heirs to
terminate the lease. This would give the landowner ongoing control over land use while
giving the conservation group some security of tenure. [[Footnote: (10)
-- 10. There may be tax consequences which would limit the utility of this technique.]] Second, a variation of the long term lease is a "lease-back". In this case a
landowner transfers title to the land to a conservation group. As part of the deal the
conservation group leases the land back to the owner on a long term lease, subject to
conditions designed to ensure preservation of the land or particular aspects of it. Breach
of the lease could entitle the conservation group to terminate the lease and take
possession of the land. Third, a landowner could transfer title to the land to a conservation group, but
reserve a life interest in the land. This allows the landowner to remain on the land for
life undisturbed. However, the landowner has the assurance that the conservation group
will assume control of the land upon the landowner's death, without further legal action. A fourth tool currently available involves carving up property rights and transferring
a specific right to a conservation group. One such property right is known as a profit a
prendre, a right which entitles its holder to enter the land and carry away or harvest a
specified part or produce of the land. For example, if a landowner wished to preserve old
growth forest on his or her land, the landowner could grant a conservation organization a
profit a prendre entitling the organization to enter the land and cut trees growing on it.
By granting such a right to a conservation group, the landowner would prevent future
owners of the land from harvesting the trees, since that right has been given away. The
profit a prendre itself -- or perhaps a collateral agreement in some cases -- would place
conditions on the use of the profit a prendre. If it was the landowner's intention to
preserve the old growth forest on the land, the conditions would prohibit cutting old
growth trees. Profits a prendre also can be given with respect to the land's soil, water, and other
commonly exploited components. [[Footnote: (11) -- 11. See A.H.
Oosterhoff & W.B. Rayner, 2d ed., Anger & Honsberger: Law of Real Property
(Aurora, Ontario: Canada Law Book, 1985) at 973-977 ["Anger & Honsberger"].
In British Columbia, the Mineral Tenure Act, R.S.B.C. 1979, c. 263.3 removes the
power of almost all landowners in the province over minerals on their land. There are
exceptions, such as where the original Crown grant included minerals of certain kinds
(which varies from case to case).]] While the tools discussed above -- and other statutory and non-statutory tools -- are
currently available for preserving private land in British Columbia, each has limits to
its application. For example, one serious drawback to using the available statutory tools
is that each involves a level of government, thus limiting private conservation
organization initiatives. Experience in the United States suggests that what is referred to in this report as a
conservation covenant is the most flexible and widely used private land preservation tool
in the various states. Even though in British Columbia it is possible to grant a covenant
for conservation purposes under section 215 of the Land Title Act, the section 215
environmental covenant, it must be held by a government body. Law reform is needed in
British Columbia to allow private organizations to hold conservation covenants. It is necessary to discuss briefly the land title system in British Columbia, since the
legal effectiveness of conservation covenants -- and the legal tools just outlined --
depends on that regime. The following discussion, intended for the general reader, deals
only with those aspects of the British Columbia land title system relevant to this report. The law conceives of land, which is also known as real property or realty, as a bundle
of individual property rights which can be divided into component property rights. A
landowner can transfer some or all of these rights to another person, a conservation group
or a government. For instance, a landowner can lease land or grant a profit a prendre by
carving out specific rights from the overall bundle of property rights and transferring
them to someone else. In earlier times there was no system for keeping track of who had done what with that
bundle of property rights. This had serious drawbacks, since it was difficult for anyone
dealing with a landowner, such as a prospective purchaser or lender, to know if the
landowner really owned all the rights to the land. A basic legal rule is that a purchaser
cannot acquire any legal rights which were not the seller's to give. So purchasers were
always nervous that someone would claim to have acquired an interest in the land from a
previous owner. The problems resulting from this state of affairs led to legislation in various
jurisdictions creating systems for registration of all dealings with land. The current
land title system in British Columbia, which is established by the Land Title Act,
provides certainty as to dealings with land. Subject to certain exceptions, [[Footnote: (12) -- 12. Such as the limits set out in section 23 of the Land
Title Act regarding municipal taxes.]] the present statutory regime is designed to
ensure that anyone who wishes to purchase land can search the title records kept by the
Land Title Office and be certain of what they are getting. This certainty has been achieved by providing in the Land Title Act that every
owner registered in the Land Title Office has a good and marketable title to the land he
or she is shown as owning. [[Footnote: (13) -- 13. Land Title
Act, s. 23.]] Therefore, if Jane Doe is registered in the Land Title Office as the
owner of certain land, that normally settles the matter. Subject to some rarely
encountered exceptions, [[Footnote: (14) -- 14. Such as the right
of a person to show fraud in which the registered owner has participated. See Land
Title Act, s. 23(1)(j). End of Footnote]] z her registration under the Land Title
Act as owner of the land assures everyone that she is the owner of the land. The system also records lesser interests in land, such as the rights of mortgagees or
holders of easements. [[Footnote: (15) -- 15. It should be noted
that section 26 of the Land Title Act provides that only the fee simple interest is
indefeasible; lesser interests such as easements -- or conservation covenants -- are open
to challenges to their validity. Although beyond the scope of this report, some
consideration should be given to whether conservation covenants should also be
indefeasible and immune from challenge.]] For example, if Jane Doe has mortgaged her land,
registration of the mortgage in the Land Title Office gives everyone notice of the
mortgage company's rights under the mortgage. Everyone who deals with the land -- for
example, a second mortgagee -- is subject to the first mortgagee's rights. If anyone buys
the land from Jane Doe and the two mortgages are not discharged, the purchaser becomes
bound by them. This has important implications in the land preservation context. If it were possible
to register a conservation covenant of the type recommended by this report against title
to Jane Doe's land, anyone who later bought the land from Jane Doe, or who was later
registered as the holder of a mortgage of the land, would be bound by the covenant and
would be required to observe it. Anyone who acquired an interest in the land after the
covenant had been registered would be deemed by the Land Title Act to have had
notice of the obligation and therefore would be bound by it. [[Footnote: (16) -- 16. As always in the law, there are important exceptions to
this, some of which are discussed in this report in connection with conservation
covenants.]] Despite some important exceptions to this system, if law reform in British Columbia
proceeds as recommended in this report, conservation covenants could very effectively bind
parties who later deal with the land. This ability to affect people who later deal with
the land would make conservation covenants an effective tool for the voluntary
preservation of private land. The remainder of this report is organized as follows:
Executive summary
PREFACE
ACKNOWLEDGEMENTS
CHAPTER 1
INTRODUCTION1.1 Limits on Government Action
1.2 Private Purchase of Land
1.3 The U.S. Conservation Easement
1.4 Tools Available in British Columbia
1.4.1 Statutory Tools
1.4.2 Non-Statutory Tools
1.5 Need for Law Reform
1.6 Land Title System in British Columbia
1.7 Organization of this Report
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