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[Note: This chapter makes recommendations for law reform which were substantially adopted by the B.C. Legislature in 1994. The new legal tool is described in a new Chapter 14A, NGO Conservation Covenants. Also, West Coast Environmental Law Research Foundation has published a book on the new legal tool, called Leaving a Living Legacy, Using Conservation Covenants in BC. The current chapter is retained here for historical purposes.]
The best legal tools for protecting private land are tools that are designed for that purpose. With relatively simple law reform, British Columbia could permit one of the most effective tools used elsewhere for the protection of private land — a conservation covenant held by a non-governmental organization. 269
While each of the tools described in this report could be usefully employed for land conservation, most of tools did not originate with conservation as the focus. Except for the covenants permitted under section 215 of the Land Title Act and under section 27 of the Heritage Conservation Act, the tools are primarily aimed at purposes other than land preservation or conservation.
For that reason, British Columbia should enact legislation to permit conservation covenants to be granted voluntarily by landowners in favour of private conservation organizations. 270 The conservation covenant is similar to a tool that enjoys wide use in the United States and elsewhere by private organizations, sometimes called land trusts, involved in the protection of ecologically significant land.
In 1992, West Coast Environmental Law Research Foundation released a report entitled Using Conservation Covenants to Preserve Private Land in British Columbia. 271 The 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 could be granted to private conservation organizations. It contains a number of detailed recommendations to permit the use of conservation covenants and to encourage their use through appropriate tax measures.
If the law reform measures outlined in the report were in effect, conservation organizations and private landowners working on land preservation initiatives would be well advised to consider using a conservation covenant, alone or in addition to other tools currently available.
Some of the key features of the law reform proposal are outlined in this chapter.
WHAT IS IT? The proposed conservation covenant is a written agreement entered into by a private landowner in which the landowner voluntarily agrees with a qualified private conservation organization to protect the owner's land for purposes permissible in the legislation and as specified in the conservation covenant.
It should be possible to create a conservation covenant for a broad variety of conservation purposes. Any incorporated society or not-for-profit corporation whose constitutional purposes include any purpose for which a conservation covenant could be granted should be able to hold a conservation covenant. In keeping with its nature as a legal instrument for use between private parties, the conservation covenant should not require government approval prior to registration.
Unlike the common law covenant, a conservation covenant should not require the holder to be the owner of an adjacent parcel of land.
POSSIBLE APPLICATIONS. The proposed conservation covenant would have a wide variety of applications. For example, a landowner could grant a conservation covenant to a conservation organization to protect important wildlife habitat on the landowner's property. The conservation covenant would describe the area to be protected and the measures necessary to maintain the particular habitat. The landowner would be permitted to continue to use the property in ways that did not jeopardize habitat protection. The conservation covenant might cover all, or just a portion, of the landowner's property.
Another situation in which a conservation covenant might be used is where a farmer wants to leave farmland to the family's next generation, but wants to ensure that the land remains farmland, rather than being converted to other uses. A conservation covenant in favour of a local conservation organization would allow the farm to remain in the family with an outside organization being in a position to enforce the use as farmland into the future.
A conservation covenant also might be granted by a landowner wishing to preserve a parcel of land in its natural state indefinitely if the land in an area is experiencing pressures of urban growth. A parcel of ecological significance might otherwise be subject to urban development by future owners.
PROPOSED LEGAL BASIS. The proposed conservation covenant would have a statutory basis. A simple amendment to section 215 of the Land Title Act could permit a conservation covenant to be held by a non-governmental organization. Amendments to the Property Law Act could ensure that certain rules that are incompatible with conservation covenants do not apply.
HOW WOULD IT BE CREATED? A conservation covenant would be created by a landowner voluntarily granting the conservation covenant to a conservation organization, which would register it on title to the property.
HOW LONG COULD IT LAST? The conservation covenant would be registered on title to the land. Therefore, it would run with title to the land and bind subsequent owners of the land. Provided the conservation organization or its successor continued to exist, the conservation covenant could last indefinitely.
WHO WOULD MONITOR AND MAINTAIN THE LAND? The obligations regarding monitoring the provisions of the conservation covenant and maintaining the land according to the terms of the conservation covenant would be set out in the conservation covenant itself. For example, the obligation to maintain the land in a particular state might be the responsibility of the owner, with the holder of the conservation covenant entitled to monitor that the land was being maintained for the purposes contained in the conservation covenant.
HOW COULD THE LAND BE PROTECTED OVER TIME? The conservation covenant would be granted to a non-governmental organization that would have the ability to enforce the conservation covenant against the owner or a subsequent purchaser.
HOW COULD IT BE TERMINATED? The conservation covenant should be able to be discharged or modified only with an application to a court by a holder of the conservation covenant, the owner of the property or any other party the court determined to have a sufficient interest. Prior to discharging or modifying the conservation covenant, the court should be satisfied that two requirements were met. First, the court should ensure that the original purposes of the conservation covenant and the intention of the party who granted the conservation covenant were no longer being achieved. Second, the court should ensure that the discharge or modification served the original purposes of the conservation covenant and the intention of the party who granted the conservation covenant, rather than other societal purposes.
The common law and Property Law Act rules regarding the discharge of covenants and easements should not apply to conservation covenants. 272
269. For a full discussion of this topic, see David Loukidelis, Using Conservation Covenants to Preserve Private Land in British Columbia, above at footnote 3.
270. In the spring 1993 Legislative Assembly of British Columbia, Bill 70, the Heritage Conservation Statutes Amendment Act, 1993 was introduced containing a provision which would have amended section 215 of the Land Title Act to permit non-governmental organizations designated by the Minister of Environment, Lands and Parks to hold covenants for conservation purposes. Unfortunately, this bill was not passed during the legislative session so the present law remains unchanged. The authors are hopeful that appropriate law reform will be enacted in 1994 to permit the recommendations contained in this chapter.
271. David Loukidelis, Using Conservation Covenants to Preserve Land in British Columbia>, above at footnote 3.
272. The conservation covenant legislation should provide that the existing common law rules and the rules set out in section 31 of the Property Law Act do not apply to conservation covenants.
