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Conservation covenants, trail licences, and GaLTTIn 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? What is a conservation covenant?A conservation covenant is an agreement entered into between a landowner and a covenant holder, the purpose of which is to conserve perpetually in their current state certain lands and/or buildings 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 the covenant may prohibit the owner from removing or altering a historic building, or may not allow the owner to cut down trees, alter or dam a watercourse, remove plants, and so on. 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 have preserved forever 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 on line, or from the local Islands Trust office. 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 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?Co-holders are initially involved in negotiating with a willing landowner the terms of the conservation covenant. 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?Should it be determined that the agreement 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. Role of The Land Conservancy of BC and Islands Trust FundThe 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. You can also find downloadable Sensitive Ecosystem Maps (SEMs) on the Islands Trust website by clicking here. These two organizations, each operating over a large area and with numerous covenants to monitor and inspect, often wish to have a local body as a co–holder of a covenant. The role of GaLTTThere is seen to be an advantage to have a local authorized body involved in negotiating the terms of a conservation covenant, and in monitoring, inspecting, and dealing with dispute resolution. This is where GaLTT comes in. GaLTT is now in a position to be a co-holder for conservation covenant agreements involving property on Gabriola Island. This role fits with GaLTT’s mandate to assist in conserving properties of environmental or historic significance. GaLTT's covenantsGaLTT, in March 2011, became a co-holder, along with the Islands Trust Fund, of a conservation covenant on Gabriola Island which will protect and preserve a portion of lands owned by Karl Bachmann and Marianne Koenig. These owners took advantage of the tax savings to be realized by entering into an agreement pursuant to the provisions of NAPTEP, and all of us on Gabriola have benefitted by the conservation of important hillside forest habitat in perpetuity, preserving it against development. Elder Cedar Nature Reserve (S'ul-hween X'pey) is owned by the Islands Trust Fund. The covenant on this Nature Reserve is co-held by GaLTT and NALT; GaLTT signed the covenant at their AGM in February 2012. GaLTT's covenant coordinator is Norm Harburn. Contact him if you would like more information about putting a covenant on your land. Trail licencesGaLTT is now authorized to enter into trail licence agreements with willing land owners. This may prove to be a valuable tool to help 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 land owner permits a trail for public use to be constructed on his/her land with the understanding that the trail will be kept in repair and managed by the licensee (such as GaLTT). A trail licence usually sets out the type of traffic permitted on the trail. For example, use of the trail may be restricted to foot traffic, cyclists, and horse riders, or some combination thereof. How long does the agreement last?A trail licence contract usually has a fixed term (such as 3 years, 5 years, etc.). A trail licence simply expires at the end of the fixed term of the agreement, although normally there are terms in the agreement allowing for renewal or extension of the licence. In addition, terms may be negotiated which allow GaLTT or the land owner 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. Of course, a new owner could agree to continue the licence, or, equally, indicate that there is no interest in having an agreement of this kind. A trail license 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. The licensee or its agents are usually 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). At this time GaLTT is reviewing the insurance issue to determine the nature, extent, and cost of insurance coverage required. Who gains from such a licence?There is potential for crafting trail licences which meet the needs of GaLTT and the needs of individual land owners; licences satisfying the concerns of generous land owners and GaLTT’s desire to provide an integrated network of trails on Gabriola Island. GaLTT's first trail licence agreements
The agreement allows public access (on foot, bike or horse) through private land on a beautiful forested trail connecting Barrett Road to Rollo Park. In January 2012 GaLTT signed two more licence agreements for trails across land owned by Sally Robinson between Cooper and Thompson Roads; and by the Brockley family on Bruce Lynn Drive, connecting to a public circuit trail in Cox Community Park. Contact GaLTT if you are interested in finding a legal, risk-free way to allow the public to use a trail over a restricted part of your property. |
On October 18, 2011 GaLTT signed its first trail licence agreement with Gabriola landowners Diane and Bill Cornish, shown here with GaLTT President John Peirce.