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If you or your conservation organization want to participate in the protection of private land, you will need to develop a strategy for achieving your goals. This chapter outlines the issues a group should consider when choosing a strategy to protect land. Developing your strategy should include:
The first thing that you must consider in developing a strategy is the kind and location of land you want to protect.
Your goal might be as broad as ensuring that land on Hornby Island is used in ways consistent with its carrying capacity. Or, your goal might be to protect certain kinds of land, such as wetlands, greenspace or virgin forests. Alternatively, you may want to protect a broad variety of environmental interests in a particular area, for example, to prevent certain types of development in a sensitive location, such as the Gulf Islands.
Once you have identified the kind of land or the specific parcel of land you want to protect, you will need to decide whether you want to protect the land because of its location or your connection to it, or because of certain features of the land such as a particular plant species present on it. If you are not the owner, you also will have to find out who owns the land you want protected.
This report is about land which is privately owned. If the land you are concerned about is Crown land, or owned by a municipality or a regional district, you may want to become involved in negotiations with the landholding Ministry, or in public participation processes, such as the Commission on Resources and Environment (CORE), which primarily relate to the uses of Crown land.
However, if the land is owned privately and you are interested in legal tools to protect it, then this report may be useful to you.
If the owner of the land is not concerned with conserving the land and not willing to sell the land to you — or you do not have the resources to acquire the land outright — your choices will be restricted. You will have to try to affect the uses of the land through changes in zoning, having input into an official community plan, or lobbying to have legislation passed which will limit the permissible uses of the land to avoid, prevent or minimize damage to the land. Or, you will be in the position of lobbying the government to acquire the land itself for protection purposes.
Those strategies to protect land — participation in land use processes, lobbying for effective legislative change to protect land, or having governments acquire sensitive properties — are very valuable. But they are not within the scope of this report, which is about working with landowners who do want to cooperate in protecting the land, even if their cooperation is limited to selling their land or an interest in it to your group at fair market value.
If the owner of the land wants to protect the land or some ecological feature of the land, then this report will show you ways to give legal weight to an agreement with the landowner about what uses should be preserved, how that is best accomplished, and other related issues.
This chapter will help you to create a protection strategy that makes sense in your situation, given the nature of the conservation group, the features of the land you are trying to protect, the resources of the group, the wishes of the landowner, the necessity for long-term monitoring and maintenance, and certain liability issues.
At the outset, every group should consider seriously whether to get involved at all in protecting private land, since it may entail assuming responsibilities, sometimes legal, over long periods of time. At the beginning of the process your group should carefully consider those responsibilities and your ability to carry them out.
Look carefully at the resources and commitment of the people in your group. If you want to protect land by acquiring a long-term interest in it, two things are crucial: the resources to acquire the interest in land, and the resources to manage it. Is your group able to raise funds to purchase a parcel of land, or to generate donations of land as a protection strategy? To do that, the group must undertake serious fundraising and public awareness campaigns.
It is not necessary that the group be able to provide all the resources itself, but it must have a plan which provides for those resources. For example, an ad hoc group of people critically concerned about a particular piece of property now on the market may not be incorporated and, therefore, not in a position to hold title to the property itself. The group may want to find an already established conservation organization to hold title and to take on the fundraising necessary to buy the land.
Managing the land over the long term requires that the needs of the land be assessed. What is the land's carrying capacity? Does the land need to be preserved in its natural state with no human uses? Can it sustain some human uses? If so, what uses? Is only one feature of the land in need of special protection or all of the land? What will need to be done to maintain the land as time passes?
A conservation organization needs to possess or have access to the appropriate expertise to assess land for acquisition, establish baseline documentation of the state of the land, and monitor, manage, and defend the conservation interest in the land. 16 However, it is not essential that the group itself be able to provide all of those resources. The conservation organization may decide that its role is not to assess or manage interests in land itself, but instead to facilitate stewardship by helping landowners make contact with another organization. If the group decides it wants to steward the land or some feature of it, the group might work with the Conservation Data Centre, a large land trust organization, or a local naturalist club to determine what the needs of the land are. If a group acquires land, it could contract with someone else — an individual, a naturalist club, or possibly a government Ministry — to care for the land, rather than deciding to do that work itself. But the group must have a long-term plan which provides the necessary resources for its role in stewarding land.
Undertaking a long-term commitment to stewardship of a piece of property requires that the organization is committed to staying in existence indefinitely. It is important for a conservation organization to consider its own structure and energy. Two very important questions to address before they become contentious issues are:
You will need to do a formal or informal baseline assessment of the land and its capacity to sustain different kinds of activities. This will provide some of the information you will need to consider in deciding whether the uses you contemplate for the land in the future are consistent with what the land can sustain. This also will enable you to think carefully about what specific features of the land need to be protected and what other kinds of uses of the land are consistent or inconsistent with the protection of the land. Whether other uses are possible depends in part on your reasons for protecting the land. Some examples are:
The natural features of the land will determine, in part, the type of monitoring and maintenance that will be needed. If the land is in a remote location, it may be vulnerable to having garbage dumped on it or its forests cut. If it is property in a developing part of the province, and if the landowner is going to continue to live on the property, conflict may arise between the landowner and the conservation organization, for example, regarding what is permitted on the land.
You will need to investigate the present and possible uses of the land. Issues to consider include:
You will need to find out who owns the land now, the state of the title, whether the land is mortgaged, and whether it is subject to a covenant or some other charge on title. This information is available from the local land title office.
There are a number of economic issues you should address. These include:
If a conservation group is planning to acquire land or an interest in land it must consider what its liability may be for accidents which happen on the land. 17 It is essential to have liability insurance to cover risks which the group may be responsible for if it takes on the stewardship of land.
Although it may seem that you would want to accept any and all donations of land or any interest in land which a landowner might want to donate, that is not necessarily true. In deciding what donations to accept you have to take into account the cost of an assessment of the land, the cost of monitoring and maintaining the land, the property taxes, whether the landowner is putting conditions on the donation and whether those conditions are workable for you, and where that parcel of land fits in your land protection priorities.
Effective conservation of privately owned land is a cooperative and voluntary undertaking. The conservation organization will need to involve the current owner of the land. But effective support for the conservation of privately owned land also means that other parts of the community will need to be involved.
The interests of First Nations, neighbours, and the community need to be considered in fashioning an effective private land protection strategy. And part of generating consensus about the protection of land is considering, in advance, how to resolve conflicts which may arise in the future.
Since First Nations have land claims affecting much of the province, in considering a land protection strategy it is important to investigate, understand, and take into account the interests of First Nations people in the lands. A detailed discussion of this issue is beyond the scope of this report.
However, you can get information about First Nations' interest in the land in your community by talking to the band office or tribal council of the First Nations in your area.
Neighbours of land which you want to protect are important in two ways.
First, it may be possible to get neighbours to work together to protect adjoining pieces of property by giving each other mutual easements, or covenants.
Second, even if there are reasons why it is impractical to involve the neighbours directly, neighbours are an important source of help in monitoring the condition of the land. Since they are closer to the land than you may be, their willingness to let you know if the land is being misused will be very helpful to you.
Consider who are your allies, potential allies, and potential adversaries in the protection of private land. Environmental groups, trade unions, women's groups, small business owners, First Nations, service groups, youth groups, rod and gun clubs and other organizations can be helpful in supporting your efforts. Also, keeping them informed and supportive has the benefit of carrying the stewardship ethic beyond one particular parcel of land.
Once you have decided on these strategic issues, you will need to consider what legal tools you should use to protect your conservation efforts. Part Three of this report describes a number of legal tools that may be appropriate.
The legal tools outlined in this report are just that — tools to make it possible to accomplish the stewardship goals in connection with private land over a long period of time. No one tool is inherently better than another. Each chapter in Part Three outlines what the tool is, when you might consider it, and what some of the advantages and disadvantages may be. Which tools you find useful will depend on what you want to achieve.
In choosing the appropriate tool or tools, readers are reminded that this report contains general information only. It is essential that readers obtain legal advice specific to the particular parcel of land being considered for protection.
16. See Chapter 4, Conservation Organizations.
17. See the discussion of the Occupiers Liability Act in Chapter 5, Everything You Always Wanted to Know About Land ...
