Private Lands

“A man’s castle is his domain.”  The belief that people can do what they like with their property is firmly ingrained in Canadian culture. 

There is no piece of legislation that comprehensively says what a person can or cannot do on their land.  B.C.’s Land Title Act provides a few details about registering the sale of land, but for the most part the rights of private land owners are found in judge-made common law. 

In most cases a property owner gets to determine what happens on his or her property.  As a result a private land owner concerned about watershed management or a watershed advocate who is willing to work with a private land owner may want to explore watershed plans developed outside of government.  Nonetheless, a property owners rights are not absolute:

·          Government can regulate, restrict, or even, in some cases, eliminate private property rights if done through valid legislation;

·          When government actually eliminates property rights it is called “expropriation” and will usually (although not always) require government to pay the property owner financial “compensation” equivalent to the value of the property; however, restrictions on how property can be used may not require compensation;

·          A property owner cannot use his or her land in a way that interferes with the property and personal rights of others;

·          A property owner or previous owners can restrict their use of the property, or transfer some or all of the rights of use to someone else, through leases, covenants and other means. 

Legislation Governing Private Land

Some of B.C.’s environmental legislation is aimed at public lands – not surprising considering that 95% of the province is publicly owned.  However, much of it does relate to private land – here’s some legal tools to think about:

·          Legislation relating to publicly owned resources – Private property ownership doesn’t mean you own everything on your property.  Wildlife and water, for example, are owned by the provincial government.  As a result, the Wildlife Act and the Water Act both apply to wildlife and water that happen to be located on private land.  Similarly, the federal Fisheries Act applies to fish bearing streams passing through private land. 

·          Legislation relating to public nuisances – Not everything that occurs on a property stays on it.  Both federal and provincial legislation related to regulating pollution that goes beyond the boundaries of a property apply.  For example, the provincial Waste Management Act and the federal Canadian Environmental Protection Act both apply to private land. 

·          Sub-surface Rights – Private property ownership does not (with a few exceptions) convey the right to minerals underneath the property.  Consequently, legislation related to mining and oil and gas exploration can have a huge impact on private property, as the owners of the sub-surface rights access their “property”.

·          Local Government – Municipalities and Regional Districts are given wide-ranging powers to regulate the use of private land within their borders under the Local Government Act. 

·          Land Reserves – The Agricultural Land Reserve and the Forest Land Reserve Acts are both aimed at ensuring that private land is managed in a manner which will not undermine future use of the land. 

The above is not a comprehensive list of legislation, but some of the major statutes that you may wish to think about in relation to private land problems. 

Buying and Managing Land for Watershed Management

One of the best ways to protect land is to own it.  Not only do you then have a right to control what activities take place on that land, but you have legal rights against anything that impacts on how you choose to use the land (including conserving it).  You can control levels of logging and other surface resource use, although you may not have control over water use, subsurface mineral use and other resources owned by the provincial government. 

Purchasing land can take a lot of money.  Once you own the land, you’ll need to pay taxes on it, as well as be responsible for managing the land.  It’s not a cheap option.  Fortunately there are a few options if your primary purpose in owning the land is conservation:

·          Land Conservancies or Land Trusts are organizations that exist to purchase private land for public interest purposes.  They have experience both with raising money to purchase land and with managing the land.  Find out if there is a conservancy or trust based near you if you are considering purchasing (or selling) ecologically significant land.

·          Conservation Covenants may be cheaper to buy than outright ownership of the land, and easier to manage.  A conservation covenant is a right to have the land managed in a particular way (e.g. to have buffers left around streams, to have steep slopes undeveloped, to have key wildlife habitat undeveloped, etc.).  It is a flexible instrument that can be registered with the legal description of the land under the Land Title Act. 

·          If you own land, conservation covenants can be used to reduce your tax burden.  You can get a tax receipt for donating a conservation covenant (or other interest in land) to a registered charity (such as a land trust or conservancy).  In addition, local governments can pass bylaws giving a reduced property tax rate for land with conservation covenants in place.

Negotiating with Land Owners

If you need to deal with a land owner, try not to lecture them about the need for watershed management.  Many land owners will resent being told how to manage their land.  Instead, try to look for a win-win solution which protects the environment while giving something to the land owner. 

Assess your strengths and weaknesses: if you can block a development through political means, that may strengthen your hand in negotiating with a developer. 

Some things to think about in negotiations with a land owner include:

·          Can you raise money to purchase some or all of the property, or a conservation covenant?

·          Do you have influence with local government that can either make life difficult for the developer or result in favourable decisions for the developer (better zoning, tax exemptions, etc.) if your concerns are resolved?

·          Does the land owner owe money or favours to someone who might support environmental protection?  Find out about mortgages, existing covenants or legal obligations.  You may wish to search the land title registry for official information.

·          Does the land owner want to be (or appear to be) a good citizen?  Does he or she have a history with the community?

Even sympathetic land owners may have financial demands that make it difficult for them to protect the environment.  To the extent that they can get something out of the deal, it may be easier for them to do the right thing.

 

Related Guide Pages:

·          Land Title Act

·          Property Ownership

·          Common Law Rights

·          Planning Outside of Government

For more information about private land ownership:

·          West Coast Environmental Law’s Greening your Title and Giving it Away.

·          The Land Trust Alliance of B.C. – A coalition of many of B.C.’s Land Trusts and other groups which support the acquisition of private land for public purposes. 

·          The Land Conservancy of B.C.