Land use issues have long occupied a central role in environmental disputes in British Columbia. How land and its resources are managed and whether land will be subject to any human impact at all are questions that frequently generate heated public debate. Increasingly, citizens and conservation organizations are interested in the preservation or conservation of land for a variety of ecological reasons, including
- preserving wilderness areas,
- preserving important plant or wildlife habitat,
- maintaining a particular use of the land, such as agricultural use, and
- conserving green spaces for recreational and aesthetic purposes.
This report recommends that the Province of British Columbia enact legislation permitting the use of conservation covenants for the voluntary protection and preservation of private land in British Columbia. One of the most important features of this tool is that it would be possible for a landowner to grant a conservation covenant to a private conservation organization.
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 conservation easement has enjoyed wide success as a private land protection measure. The conservation covenant recommended in this report is similar to the U.S. conservation easement. It is a tool that is flexible, requires a minimum of government resources, and could take advantage of the expertise of local and regional conservation organizations in land protection.
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.
- Any incorporated society or not-for-profit corporation whose constitutional purposes include any purpose for which a conservation covenant may be granted should be able to hold a conservation covenant.
- A conservation covenant should not require the approval of government prior to registration.
- The common law and Property Law Act rules regarding the discharge of covenants and easements should not apply to conservation covenants.
- It should be possible to modify or discharge a conservation covenant only when it serves the original purposes of the conservation covenant.
- It should be possible to create a conservation covenant for a broad variety of conservation purposes.
- The common law requirement that a covenant must benefit adjacent land should not apply to conservation covenants.
- A conservation covenant should bind successor owners of the land.
- The rules regarding when parties who hold an interest other than title to the land are bound by the terms of a conservation covenant should be set out clearly.
- It should be possible for a conservation covenant to specify that a third party has the right to enforce the covenant.
- It should be possible for the holder of a conservation covenant to assign it to another party who is qualified to hold a conservation covenant.
- Various tax reforms should be implemented to optimize the use of conservation covenants in British Columbia.
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.