In 2010, GaLTT received formal government authorisation to be a conservation covenant holder. GaLTT also became authorized to issue trail licences to local property owners. These simple statements raise some basic questions: What is a conservation covenant? What is a covenant holder? What is a trail licence? How can they help or protect the land owner? How can they help or protect the land?
A conservation covenant is an agreement entered into between a landowner and a covenant holder, the purpose of which is to conserve certain lands and/or buildings in their current state in perpetuity for environmental or historic reasons.
A typical conservation covenant is restrictive in nature—that is, it prevents the landowner from doing certain things with the land. For example, the terms of a conservation covenant may prohibit the owner from cutting down trees, altering or damming a watercourse, removing plants, and so on. Alternatively it may forbid the removal or alteration of a historic building.
A conservation covenant "runs with the land”. This means that the covenant document is registered on the title to the property and becomes a permanent attachment to the title. If the property changes hands the covenant remains in force.
Why do people enter conservation covenant agreements?
Some owners choose to enter into a conservation covenant agreement simply because they want to preserve a property or portion of property that has unique historic significance or ecological features such as a wetland or rare species.
Other owners may find there is a tax benefit in entering into such an agreement. For example, the Natural Areas Protection Tax Exemption Program (NAPTEP) a program operated by the Islands Trust Fund may provide such a benefit. You can obtain more information about NAPTEP from the Islands Trust Fund website, or from the local Islands Trust office on Gabriola (on North Road just past the school).
Does this mean that covenanted land becomes public land?
The fact that a landowner has entered into a covenant agreement to preserve a wetland or forested area on his/her property does NOT make that property accessible to the public. Of course, an owner may agree to allow public access to the land if he/she wishes; but, equally, the covenant may allow the owner to prohibit or restrict access to the land.
What is a covenant holder or co-holder?
The other party (besides the landowner) to a conservation covenant is the covenant holder. In some cases there may be more than one covenant holder in a covenant agreement, in which case the covenant holders are called "co-holders".
What does the co-holder do?
At the beginning of the process, co-holders negotiate the terms of the conservation covenant with a willing landowner. After agreement has been reached and the document registered against the title to the property, the covenant holder’s major responsibility is to inspect the property at least once per year to ensure that no breaches of the agreement have occurred. If the covenant states that no trees are to be cut, no soil or gravel removed, or no grazing of livestock permitted on the property, the covenant holder’s inspection must determine if the owner has complied with these restrictive provisions.
What happens if the agreement is breached?
If a term of the covenant has been breached, an attempt will be made to resolve the issue through an agreed dispute-resolution process, which is characteristically found in the covenant document. The covenant normally provides for substantial fines or damages to be paid in the event of a breach.
If an owner refuses to pay a penalty called for under the conservation covenant, the covenant holder has the option of taking the matter to court. In sum, the covenant holder’s role is to make sure the terms of the covenant are carried out.
US citizens donating or covenanting Canadian land—AFoCLT
US citizens who wish to donate environmentally significant Canadian land or put a protective covenant on it may find it advantageous to work with the American Friends of Canadian Land Trusts (AFoCLT or "American Friends"). AFoCLT is recognized by the US Internal Revenue Service as a publicly supported charitable organization. Gifts to them are tax deductible in the US and such gifts of land and conservation easements are not subject to Canadian capital gains tax.
Visit their website at www.afoclt.org, which contains details of how American Friends works and includes many of the forms required to complete a transaction. For specific information, you can call 360-515-7171 or email them at firstname.lastname@example.org
Gabriola landowner Sally Robinson, who is an American citizen, has put a covenant on her forested property (known locally as Robinson Woods) between Cooper and Thompson Roads. American Friends holds this covenant—their first in BC. As the local land trust, GaLTT carries out the annual monitoring of the covenant as well as maintaining the public trails and controlling invasive plants on the property.
Role of The Land Conservancy of BC and Islands Trust Fund
The Land Conservancy of BC holds more than 220 covenants across the province, and the Islands Trust Fund (ITF) is a covenant holder in a number of NAPTEP agreements. Click here to find information about Island Trust Fund covenants on Gabriola Island.
These two organizations each operate over a large area and with numerous covenants to monitor and inspect. They often wish to have a local body co–hold covenants.
The role of GaLTT
Having a local authorized body involved in negotiating the terms of a conservation covenant can be advantageous, and the local body can assist in dealing with dispute resolution. This is where GaLTT comes in. GaLTT can be a co-holder for conservation covenant agreements involving property on Gabriola Island and its local Islands Trust Area. This role fits with GaLTT’s mandate to assist in conserving properties of environmental or historic significance.
GaLTT's covenant coordinator is Anne Landry. Contact her if you would like more information about putting a covenant on your land.
In March 2011, GaLTT became a co-holder, along with the Islands Trust Fund, of a NAPTEP conservation covenant to protect and preserve a portion of lands on Gabriola Island known as the Bachmann property. All Gabriolans have benefitted by the conservation of important hillside forest habitat in perpetuity.
Elder Cedar Nature Reserve (S'ul-hween X'pey) is owned by the Islands Trust Fund. The 65-acre reserve on the north side of North Road was established in 2006. The covenant on this Nature Reserve is co-held by GaLTT and NALT.
Elder Cedar covenant signing
President John Peirce signing the covenant on Elder Cedar Nature Reserve (S'ul-hween X'pey) on behalf of GaLTT. Trustee Giselle Rudischer witnessed Peirce's signature at the GaLTT AGM in February, 2012.
GaLTT is authorized to enter into trail licence agreements with willing landowners. This is a valuable tool in helping GaLTT to achieve a public trail system that runs from “Descanso Bay to Drumbeg”.
What is a trail licence?
A trail licence is a contract, in which a landowner permits a trail for public use to be constructed on their land with the understanding that the trail will be maintained by GaLTT.
A trail licence usually sets out the type of use permitted on the trail. For example, use of the trail is typically restricted to walkers, cyclists, and horse riders, but this is adapted as needed for each trail licence.
How long does the agreement last?
A trail licence contract usually has a fixed term of two years that can be renewed automatically with the agreement of the landowner and GaLTT. In addition, terms may be negotiated which allow GaLTT or the landowner to terminate the agreement prior to the end of the term in specific circumstances.
What happens if the land owner sells the property?
Commonly a trail licence permits the land owner to terminate the agreement prior to the end of the term in the event of sale of the property in question. Thus, a trail licence is not binding on the new owner. A new owner could agree to continue the licence, or, equally, could indicate that there is no interest in having an agreement of this kind. (For example, one GaLTT trail licence agreement signed in 2012 was removed in 2014 when the property was sold and the new owner wished to fence the land for livestock.)
A trail licence does not exist in perpetuity, nor is it necessarily transferred if the land is sold. In these and many other ways, a trail licence differs from a conservation covenant.
Who maintains the trail in good condition?
Usually, a trail licence provides that the owner bears no responsibility for upkeep of the trail (unless it is their wish to do so). GaLTT is typically responsible for trail maintenance as specified in the contract.
What happens if someone is injured on the trail?
Under a trail licence, the land owner has no liability in regard to injuries or damage sustained by users of the trail. Insurance is held by the licensee (such as GaLTT). GaLTT regularly reviews the nature and extent of their insurance coverage to ensure all current trail licences are covered adequately for the users and maintainers of the trails.
Who gains from such a licence?
Through the generosity of landowners, all Gabriolans benefit from access to trails, and trail licences help GaLTT to fulfil its goal of providing a comprehensive and integrated network of trails on Gabriola Island.
GaLTT's first trail licence agreements
On October 18, 2011 Gabriola landowners Diane and Bill Cornish and GaLTT's President John Peirce signed GaLTT's first trail licence agreement. This licence allows public access (on foot, bike or horse) through private land on a beautiful forested trail connecting Barrett Road to Rollo Park.
To date, GaLTT has signed over a dozen such agreements with landowners for trails across their land on Gabriola.
Contact GaLTT if you are interested in using this legal, risk-free way to allow the public to use a trail over a restricted part of your property.