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The explosion of concern about the environment over the last two decades has generated a renewed consciousness about the need to conserve and protect the earth's resources. Perhaps because humans are terrestrial creatures, our concern about the land has occupied a central role in our awareness. We have come to recognize our responsibility to care for the land if future generations are to be sustained by the land as we are. Caring for the land in some cases means protecting land from all human use, while in other cases it means limiting the human impact on land.
Whether it is a vast wilderness area occupied by grizzlies or a small patch of rare grass in vanishing urban greenspace, the quest to preserve natural spaces in British Columbia is constantly in the public eye. Sometimes the desire to protect a parcel of land stems from the unique character of the place itself. At other times it is because the place is the home to a rare plant species or the temporary home to a migrating bird.
With growing population pressures and creeping urban sprawl, many communities are facing the loss of greenspaces that have remained untouched for as long as anyone can remember. The conventional approach has been to look to a government body to protect important areas by creating a park or ecological reserve. 1 However, government is frequently unable or unwilling to intervene in land disputes and set aside all areas deemed important for protection. Scarce resources may be the reason. But there are also many situations where protection of a particular parcel of land does not fit within existing government land protection goals. Furthermore, government is not always the best caretaker of every piece of land worthy of protection. As a result, citizens and conservation organizations increasingly are involved in efforts to preserve land in its natural state or to protect a significant feature of the land.
This report has been inspired by the growing interest among conservation groups and landowners in British Columbia in a variety of these initiatives to protect private land in the province. The purpose of the report is to help with one small part of our collective efforts to conserve the earth. It is written for conservation groups, individual landowners, real estate professionals and other interested parties who want information about the legal tools available to conserve private land.
However, successful conservation of private land requires more information than is contained in this report. It requires landowners to learn about the land, its ecological sensitivities and its ability to sustain human uses. Whether the project involves developing a green trail in the city through easements along a railroad track, conserving rural land in its original state, developing low-cost housing on land trust property, or preserving old growth forest, an assessment of the land must be done and information particular to the specific parcel must be compiled. Some of the resources referred to in this report may be of assistance in compiling the information needed about private land targeted for protection.
The primary purpose of this report is to explore how current laws can be used to allow us to make careful decisions about how to conserve land now owned privately.
Specifically, this report discusses:
The many different legal tools available to protect privately owned land include tools designed to:
Having identified which aspect or purpose of the land the owner wants to protect, it is possible to select a legal tool, or tools, to achieve the desired result. In some cases tools can be used together. For example, an owner may want to restrict the use of land in some way, such as by prohibiting logging or preventing construction of buildings within a certain distance from a pond. It may be possible and, indeed, desirable in many cases to bind the land with a common law restrictive covenant drawn in favour of a neighbour's property together with a section 215 covenant drawn in favour of the Crown, both containing the same restrictions on land use.
However, property law was not designed with the conservation of land in mind. See Chapter 5. So the legal tools sometimes have serious deficiencies when they come to be considered in a conservation context. These deficiencies are discussed in each of the chapters of this report describing the various legal tools. For example, common law restrictive covenants require that there be two pieces of property adjacent to each other and that the covenant over one of the pieces benefit the other. This limits the practical application of this tool.
In view of some of these deficiencies, West Coast Environmental Law Research Foundation has recommended the enactment of legislation which would permit a covenant for conservation purposes to be placed on land by a private landowner in favour of a conservation organization. 3 Such a provision would simplify the task of conserving private land enormously, because it would permit a landowner to give the responsibility for monitoring compliance with a covenant to a conservation organization that had the interests of the land uppermost.
But even without the enactment of new legislation, current legal tools provide an array of possibilities for the conservation of privately owned land. This report is intended to encourage individual landowners and conservation organizations to explore opportunities for effective voluntary protection of land without government intervention.
1. While this report focuses on the protection of private land in British Columbia, there are many important initiatives underway regarding the protection of public or Crown land in the province. These include the Protected Areas Strategy, the Commission on Resources and Environment and other initiatives.
2. Land Title Act, R.S.B.C. 1979, c. 219, s. 215.
3. David Loukidelis, Using Conservation Covenants to Preserve Private Land in British Columbia, Ann Hillyer, ed. (Vancouver, West Coast Environmental Law Research Foundation, 1992).
