CONSERVATION EASEMENTS, COVENANTS AND SERVITUDES IN CANADA A Legal Review Published in partnership with: Report No. 04–1 North American Wetlands Conservation Council (Canada) Printed 2004 Ottawa, Ontario ISBN: CW69-18/2004-1E Cat. No. 0-662-37796-6 The North American Wetlands Conservation Council (Canada) Reports are devoted to the publication of information concerning wetland management, policy and science issues. The objective is to make people in Canada and elsewhere more aware of the importance of the wise use and conservation of wetland ecosystems and their natural resource values. Readers are reminded that this report is educational only and does not constitute legal or tax advice. All parties involved in the legal protection of a specific parcel of land are strongly urged to seek legal and tax advice at their earliest opportunity. This paper was produced through the cooperation and funding of the: • North American Wetlands Conservation Council (Canada) • Canadian Wildlife Service, Environment Canada Copies of this report are available from the: Secretariat North American Wetlands Conservation Council (Canada) Suite 200, 1750 Courtwood Crescent Ottawa, Ontario K2C 2B5 or Canadian Wildlife Service Environment Canada Ottawa, Ontario Over 50% recycled Canada K1A 0H3 paper including 10% post-consumer fibre. Également disponible en français. Plus de 50 p. 100 de papier recyclé dont 10 p. 100 de fibres post consommation. E Cover printed on recycled paper (50% recycled fibre, 10% post-consumer fibre) *An official mark of Environment Canada Interior pages printed on 100% recycled paper *Marque officielle d’Environnement Canada CONSERVATION EASEMENTS, COVENANTS AND SERVITUDES IN CANADA A Legal Review Judy Atkins Ann Hillyer Arlene Kwasniak Report No. 04–1 North American Wetlands Conservation Council (Canada) FOREWORD There has been a dramatic increase during the last decade in the role of legislative tools to facilitate action by private individual and corporate landowners in Canada. An array of easements, covenants, servitudes and similar tools now exist or are being considered in almost all jurisdictions in our nation. These tools allow the private and corporate landowner to engage in conservation of ecologically sensitive lands and to promote landscape conservation. These efforts are part of the growing support for land stewardship through an array of initiatives based on a national environmental ethic.This ethic is exemplified in Canada’s Stewardship Agenda, endorsed by federal, provincial and territorial resource ministers in the fall of 2002. Canadians from all walks of life and sectors of our economy share a common vision of supporting protection of our land, water and air resources. They recognize, when working in their community and contributing through voluntary and incentive-based programs, that their time and personal resources can make a difference. One way to do this is through the use of conservation instruments tied to their ownership and use of private lands in Canada. The growth of national and local non-government organizations and provincial watershed or conservation authorities supports this. They are actively implementing and using these conservation tools in all our provinces and territories. This publication enhances our national knowledge-base on landscape conservation. Following the first publication on this subject entitled Land, Law and Wildlife Conservation: The Role and Use of Conservation Easements and Covenants in Canada (Trombetti and Cox 1990), the North American Wetlands Conservation Council (Canada) published a more comprehensive review entitled Canadian Legislation for Conservation Covenants, Easements and Servitudes: The Current Situation (Silver, Attridge, MacRae and Cox 1995). It reviewed the role of partial interests in land to support environmental conservation in each province and territory. At that time, the Governments of Canada and Quebec through their respective income tax acts had only recently introduced tax-based incentives to promote ecological gifts. Much has changed since then. The number of local land trusts has increased greatly. Major new stewardship programs, the federal Species At Risk Act and many additional pieces of supporting provincial legislation have been created. Half of the $70 million in charitable donations in the nine years of Environment Canada’s Ecological Gifts Program have been conservation instruments. And we are just getting started! This past year has seen several national conferences on environmental stewardship and conservation. They focused on watersheds and coastal zones, wetlands and broadly-based stewardship in the public and private sectors. It thus is timely and i appropriate that this fully updated and expanded report entitled Conservation Easements, Covenants and Servitudes in Canada: A Legal Review should now be published. The Canadian conservation community will welcome this effort with thanks not only to its authors, Judy Atkins,Ann Hillyer and Arlene Kwasniak, but also to its sponsor, Environment Canada. Kenneth W.Cox Executive Secretary Secretariat, North American Bird Conservation Initiative and North American Wetlands Conservation Council (Canada) ii ACKNOWLEDGEMENTS The authors are indebted to a number of individuals who made generous contributions of their time and knowledge to assist us with the preparation of this report. Particular thanks go to Ian Attridge, Barrister and Solicitor, for his detailed review of the entire report and his most helpful insights.We also thank the following people, with whom we consulted in the course of our research, for their advice, review of sections of the report, and helpful suggestions for improvement: Amy Parker, Nova Scotia Department of Justice; Bruce Smith, Island Nature Trust (Prince Edward Island); Paul Peterson, Barrister and Solicitor; Gary Goodwin, Ducks Unlimited Canada; Margo Sheppard, Nature Trust of New Brunswick; Kenneth Cox, North American Wetlands Conservation Council (Canada); Manjit Kerr-Upal, Ecological Gifts Program National Secretariat; and Réal Bisson, Ecological Gifts Program National Secretariat. We are grateful to Aaron Welch for his valuable assistance and helpful comments. Special thanks go to Annie Gariépy of the Quebec Environmental Law Centre for reviewing sections related to civil law and Quebec legislation. Readers are encouraged to contact the Centre for further information (Centre québécois du droit de l’environnement/ Quebec Environmental Law Centre, Telephone: (514) 861-7022, www.cqde.org). We would also like to thank the regional coordinators of the Ecological Gifts Program for reviewing and commenting on portions of the report: Blair Hammond, Ron Bennett, Ron Bazin, Pat Rakowski, Graham Bryan, Lesley Dunn, Paul Chamberland, and Renée Langevin. We thank the North American Wetlands Conservation Council (Canada) and Environment Canada for their generous support of this project. The views expressed are those of the authors. Any errors and omissions are,of course,solely the responsibility of the authors. iii THE AUTHORS Judy Atkins practises law in Victoria with Hillyer Atkins.Judy has practised environmental law for several years during which she has worked on legal issues related to protecting private land in British Columbia.She is the co-author of Giving It Away:Tax Implications of Gifts to Protect Private Land; Greening Your Title: A Guide to Best Practices for Conservation Covenants; and Land Conservation Transactions: Tax Implications of Gifts of Land and Interests in Land. She has provided advice to both landowners and conservancy organizations about measures for protecting land, including conservation covenants and other forms of agreement. She has conducted workshops for landowners and conservation organizations about the use of conservation covenants for the voluntary protection of ecologically significant private land and the tax implications of gifts to protect private land. Ann Hillyer practises environmental law in Victoria with Hillyer Atkins. She has been involved in the development and implementation of environmental law and policy in connection with a wide range of issues including protection of private land, land use planning, urban growth management, fish protection, forestry, climate change, pollution prevention,environmental assessment,and compliance and enforcement. Ann has worked for many years on legal issues related to protecting private land and land stewardship. She is the co-author of Giving It Away: Tax Implications of Gifts to Protect Private Land; Greening Your Title:A Guide to Best Practices for Conservation Covenants; Here Today, Here Tomorrow, Legal Tools for the Voluntary Protection of Private Land in British Columbia; Land Conservation Transactions: Tax Implications of Gifts of Land and Interests in Land; and Appraising Easements (the latter forthcoming). Ann is a member of the Appraisal Review Panel for the federal Ecological Gifts Program. Arlene Kwasniak has practised law in Alberta since 1981.She was with the Environmental Law Centre from 1991 to January, 2002, being the Executive Director for the last two years. Arlene joined the Faculty of Law,University of Calgary,in July 2003. Arlene’s interests focus on public interest, environmental conservation, natural resources, and municipal law and policy. Arlene’s books include Alberta Public Rangeland Law and Policy (1991); A Conservation Easement Guide to Alberta (1997); Reconciling Political and Ecosystem Borders:A Legal Map (1998); and Alberta Wetlands:A Law and Policy