|
The range of activities of conservation groups working on the conservation of privately owned land in British Columbia is extremely broad and includes protecting wildlife habitat, conserving local waterfront access, working towards sustainable economic uses of land, and combining human habitat with land conservation.
Some groups focus their activities on particular kinds of land — estuary protection or old growth forests. Other groups focus on land in their community which may be valuable for its scenic or public access features. And sometimes groups work together in coalitions for a specific purpose. Some groups acquire land; some negotiate stewardship agreements with current owners. Others lease the land to be protected. A description of a number of the groups active in private land conservation in British Columbia is in Appendix B.
A group of people interested in protecting privately owned land will want to consider whether to incorporate as a society or a federal nonprofit corporation. Incorporating is essential if the group intends to own land or hold an interest in land such as an easement, or to apply for approval to issue charitable tax receipts. Part Three of this report, describing the tools that can be used in the protection of privately owned land, assumes that conservation organizations using these tools are incorporated societies.
On the other hand, establishing a conservation organization may not be necessary. If there is another appropriate, already existing conservation organization which you could work with to protect the land you are concerned about, it may not be worth going through the time and expense necessary to set up another conservation organization. The same thing may be true if you are concerned with only one piece of property and can acquire it as easily as an individual.
This chapter reviews how to incorporate as a conservation organization, and the effect of incorporation. It also describes the role of conservation organizations, the resources such an organization needs, and discusses the American experience with land trusts. Finally, it identifies some gaps of information and resources which exist in British Columbia for the development and coordination of the work of conservation organizations in the province.
There is no magic in what a conservation organization is called. It may be called a conservancy association, a conservation society, a stewardship foundation, or some other name. 18 In the United States, conservation organizations involved in private land protection frequently are called land trusts. A land trust is simply another name for a conservation organization. It is not a trust in the legal sense, 19 but is a name which has caught on for American organizations involved in land conservation. For consistency in this book, we have referred to incorporated societies which have as one of their objects the conservation of private land as conservation organizations.
In British Columbia, a conservation organization is formed by incorporating a society under the Society Act. Footnote: (20] -- 20. It is also possible to incorporate a society under federal legislation, the Canada Corporations Act, R.S.C. 1970, c. C-32. Federal incorporation is useful if your society will be operating in more than one province. End of Footnote]] z Once incorporated, a society has all the powers and capacity of a person. It can own property, and sue and be sued in its own name, rather than in the name of the individuals who may be its members at any given time. As long as it continues to fulfil the requirements of the Society Act, such as filing its annual reports with the Registrar of Companies, a society can have an indefinite existence. 21
The conservation organization can use any of the legal tools in this catalogue to acquire land or an interest in land, or to manage the land.
Forming a society is quite straightforward. 22 A group of at least five people send to the provincial Registrar of Companies a copy of the proposed constitution and bylaws of the society, its proposed name, a list of people who will be the first directors, and the prescribed fees for incorporation. 23
You will need to consider carefully the objects of the society, the part of the constitution that says what the society is allowed to do. If the society's objects are charitable in nature, it also may be possible to obtain a charitable tax number from Revenue Canada. This will enable you to grant charitable tax receipts to donors of property or money. 24
You will also want to give serious thought to the drafting of the constitution and bylaws to make sure they meet your needs. Consider in particular how your conservation organization will resolve conflicts among the members if conflicts should arise. 25
Starting a conservation organization is a major enterprise. It is advisable to get advice from other land conservancy organizations. 26 A very useful resource book is Starting a Land Trust: A Guide to Forming a Land Trust. 27
The people forming a conservation organization which will be active in protecting private land must consider:
Whether a conservation organization is involved in acquiring land, taking covenants and easements over land, or using other legal tools for conservation purposes, the essence of its work is its willingness to take responsibility for monitoring the condition of the land and protecting it over time. This means two things.
First, the organization must learn how to assess the environmental status of a piece of property in the first place. What is it about the land which makes it important to conserve? Is it wildlife habitat? A watershed? What human uses are compatible or incompatible with the conservation of the land? Is the land to be conserved as it is? Rehabilitated?
Second, the group must be prepared to defend that property against degradation over time, both by the way it cares for the land and in the legal steps it may have to take to enforce the protection of the land.
The best defence of land protected by a conservation organization is:
The Land Trust Alliance, an American coalition of land trusts, says that one of the most effective tools to protect land owned by the trust is to inform the neighbours and enlist their support in protecting the land. Since neighbours are nearby all the time, they are in a position to notice abuses as they occur. 29
The American experience with conservation organizations has evolved so that many conservation organizations are now acting in cooperation with state environmental protection agencies. They are often funded by those agencies to acquire sensitive lands, which they then resell to the government agency. They also provide support to local land trusts. Some of these partnerships have specifically framed laws which set out how the relationship between the conservation organization and the government agency works. One author notes:
A 1991 reconnaissance ... identified 14 land conservation programs in 13 states with a significant statutory role for nonprofits. All but two of these programs were established in 1985 or later. Ten state programs provide direct funding for nonprofits for acquisition and in some cases for planning and stewardship projects, either in a special nonprofit set-aside or in a funding category that both land trusts and government entities share. These direct grants programs ... have involved 358 nonprofit projects and protected about 53,300 acres, with the assistance of about $99.7 million in state funds.
... The other four state programs have important formalized roles for nonprofits that present interesting variations on the partnership theme but do not provide direct project grants. 30
A survey of the various partnership forms and recommendations is found in Lessons from the States: Strengthening Land Conservation Programs through Grants to Nonprofit Land Trusts. 31 That book outlines some of the benefits of partnerships between the public and private sectors:
Land trusts are often able to buy land at a better price than government; landowners are sometimes more willing to negotiate with land trusts than with government; land trusts may have ready money from a revolving fund, a loan, a foundation, or donations; land trusts can rally community support for a project; the magnitude of the nation's conservation agenda requires government-raised funds as well as private dollars; public agencies provide an option for long-term stewardship; [and], government involvement may confer a useful stamp of credibility that helps private groups raise private dollars. 32
Organizations like the Land Trust Alliance or the Coastal Conservancy in California provide a number of services for their member organizations, including producing informational materials, serving as a resource for expertise, acting as a communication centre, and acting as a political voice for conservation of private land. 33
There are many organizations in British Columbia active in protecting privately owned land. They range in size from large organizations like the Nature Trust of British Columbia> and Ducks Unlimited Canada>, who have worked to protect many thousands of acres of property in the province, to small organizations like the Heron Rocks Friendship Society> on Hornby Island, which owns one piece of property. Other organizations concentrate on education rather than land acquisition.
Each organization operates within the framework of its own goals and priorities in deciding what land needs protecting and what legal tool is best to accomplish its protection.
In addition to individual organizations, there are some coordinated efforts. For example, the Pacific Estuary Conservation Program> is a cooperative plan between Ducks Unlimited Canada>, Wildlife Habitat Canada>, the Nature Trust of British Columbia>, and B.C. Environment to acquire and protect wetlands. In another area, the Coast Islands Conservancy> provides information to its member organizations, which are mostly small Gulf Islands conservation organizations.
What does not exist in British Columbia is any central or coordinating body which would be able to provide information and expertise to assist small conservation organizations to develop plans to protect privately owned land. There is no agency which will provide an overall ecological assessment of all pieces of land that may be considered for protection. 34 So, groups doing baseline assessments of a piece of property frequently must rely on their own expertise, if they have it, or on the written materials which exist, to decide whether and how the land should be conserved. 35 Groups such as the Nature Trust of British Columbia> and Ducks Unlimited do ecological assessments for their own protection programs, but only for properties which may be in their areas of interest. For example, Ducks Unlimited Canada> assesses whether land is valuable as wetland habitat.
This chapter is not intended to be a handbook on how to set up a conservation organization. Therefore, you may wish to call some of the organizations listed in the resource list at Appendix B> and read the American materials referred to in this chapter. You also will want to have legal advice during your incorporation.
18. The name must be acceptable to the Registrar of Companies when the organization is formed.
19. See Chapter 13 on Trusts.
21. The Society Act, R.S.B.C. 1979, c. 390, s. 4 gives an incorporated society the powers and capacity "of a natural person of full capacity" and "perpetual succession."
22. This section deals only with provincially incorporated societies. Parallel provisions in the federal jurisdiction exist in the Canada Corporations Act, Part II. If you are considering creating an organization which will be active in more than one province or territory you may want to consider a nonprofit corporation under the Canada Corporations Act, Part II.
23. The Society Act, R.S.B.C. 1979, s. 3.
24. Step by step instructions for this process are contained in Gerald C. Scott, Society Guide for British Columbia (Vancouver: Community Legal Assistance Society, 1990-91). Note however, that some of the examples in this Guide are out of date.
25. You may want to review the constitutions of other conservation organizations. The Coast Islands Conservancy, for example, has developed a sample constitution and bylaws for a conservation organization. However, it is essential to get a lawyer's advice about what provisions in the incorporation documents are most appropriate for governing the internal affairs of the group, and how to draft the organization's purpose so that it will be considered to be charitable by Revenue Canada.
26. See the list in Appendix B of this report.
27. Land Trust Alliance, Starting a Land Trust: A Guide to Forming a Land Trust (Alexandria, Virginia: Land Trust Alliance, 1990). Though it is American, much of the content is directly useful and will alert you to the issues you want to consider. Its chapters include an overview of land trusts, the board of directors, nonprofit incorporation, tax-exempt status, financial management, volunteers and staff, building public support, and stewardship.
28. If the conservation organization is acquiring an interest in property and the landowner will contine to hold title to the property, the landowner should agree in writing to the baseline assessment and its results.
29. Janet Diehl & Thomas S. Barrett, The Conservation Easement Handbook: Managing Land Conservation and Historic Preservation Easement Programs (San Francisco: Trust for Public Lands, 1988) at 88.
30. Phillis Myers, Lessons from the States: Strengthening Land Conservation Programs through Grants to Nonprofit Land Trusts (Washington D.C.: Land Trust Alliance, 1992) at ix.
31. Ibid. at ix.
32. Ibid. at ix.
33. A description of some of the major U.S. land trust agencies is included in Appendix B> to this report.
34. Some assistance may be obtained from the Conservation Data Centre> in Victoria.
35. There are some excellent American materials about how to do a baseline assessment, for example, The Conservation Easement Handbook, above at footnote 29. There are fewer Canadian resources. The North American Wetlands Conservation Council (Canada) in Ottawa has published Wetland Evaluation Guide as part of its series of reports concerning wetland management, policy and science issues. See W.K. Bond et al., Wetland Evaluation Guide: Final Report of the Wetlands are not Wastelands Project, Sustaining Wetlands Issues Paper, No. 1992-1 (Ottawa: North American Wetlands Conservation Council (Canada), 1992).
