Conservation covenants

An agreement forever or not worth the paper they’re written on?

By Mat Hardy (RMIT University), James Fitzsimons (The Nature Conservancy), Sarah Bekessy (RMIT University) & Ascelin Gordon (RMIT University)


Key messages:
  • Conservation covenants are an important and enduring mechanism for conserving biodiversity on private land
  • Multi-party covenants offer greater permanence than single-party agreements
  • We need ongoing monitoring and reporting to assess the true contribution of these agreements

Conservation covenants are usually legally binding agreements that place restrictions on what activities can take place on land in order to protect its natural values. (Image by James Fitzsimons)

Conservation covenants are usually legally binding agreements that place restrictions on what activities can take place on land in order to protect its natural values. (Image by James Fitzsimons)

There’s a growing trend in many parts of the world for land owners to enter into conservation covenants and easements. These formal agreements are an increasingly popular strategy for conserving biodiversity on private land but how effective are they? Our analysis of covenants in Australia has revealed there’s much to commend in these agreements but there’s also work needed to ensure their ongoing effectiveness (Hardy et al, 2016).

Conservation covenants are legally binding agreements that place ‘permanent’ restrictions on what activities landholders can undertake on their land; for example they often prevent the clearing of native vegetation. These agreements are registered on the title of the property, obligating the current and future owners to look after their property’s ecological values.

Landowners voluntarily enter into these agreements because it helps them preserve the natural values of the land they love. Governments like these agreements because it helps them meet their obligations to conserve biodiversity (see the box on what’s in a covenant).

The first conservation covenant in Australia was a Wildlife Refuge established back in 1951 (in New South Wales). Since then the number of covenants has grown considerably to around 7,500 across Australia (Figure 1), with most of those being established in the last 25 years.

Figure 1: Cumulative trend in the number and area of covenanted properties in Australia. Columns represent covenanted area, and the triangles represent the number of covenants. Lighter green columns and hollow triangles indicate National Conservation Lands Database data, and the darker green column and the filled triangle represent data collected for this study.

Figure 1: Cumulative trend in the number and area of covenanted properties in Australia. Columns represent covenanted area, and the triangles represent the number of covenants. Lighter green columns and hollow triangles indicate National Conservation Lands Database data, and the darker green column and the filled triangle represent data collected for this study.

From a conservation policy perspective, the permanence and security of these agreements with private landholders are central issues. In theory, most conservation covenants in Australia are permanent in that the conditions they impose are passed on to the new owners when the land is sold. They are designed to last forever. However, landholders can change frequently with potentially negative consequences for protected land. And what about mining? Have covenants been affected by mining activities?

There was little information available on the permanence and security of covenants in Australia. So we asked the 13 major covenanting organisations that operate in this country whether the covenants they oversaw had remained in place and whether the obligations they prescribed had been observed.

The information we collected showed that of the 6,818 multi-party covenants created across Australia, only eight had been released (0.12%). Of the 673 single-party (NSW Wildlife Refuge) covenants formed, 130 had been released.

Based on these figures, very few covenants have been released, and multi-party covenants are clearly a better agreement in terms of permanence. Part of that would relate to the greater difficulty of exiting a multi-party agreement.

We also asked what’s happening with covenant breaches. Are landholders abiding by the terms of the covenant?

Unfortunately, we found that detailed breach data was hard to get hold of, making it very difficult to accurately determine the number and types of breaches that had occurred. It was also difficult to assess what impact the breaches were having on the natural values the covenants had been established to protect (if any). This relates to the bigger issue of needing improved monitoring and recording of conservation covenants.

Our study showed the agreements are, on the whole, relatively secure and enduring but we need ongoing monitoring and reporting to assess the true contribution of these agreements. What’s more, some organizations suggested that the turnover of conservation covenants to ‘successor landholders’ may be developing into a policy issue, requiring agencies to engage with the new landholders and ensure they are as committed to the terms of the covenant as the original owners.

Keep in mind that the majority of existing covenants were created in the last 25 years so we would expect to see a growing number of these agreements being transferred to new owners in the coming years.

Given this, coupled with a growing enthusiasm by governments to encourage new conservation covenants, the need for ongoing and effective monitoring has never been greater.


More info: Mat Hardy mat.hardy@rmit.edu.au
Reference: Hardy MJ, JA Fitzsimons, SA Bekessy & A Gordon (2016). Exploring
the permanence of conservation covenants. Conservation Letters. DOI: 10.1111/conl.12243 


What’s in a covenant?

Conservation covenants are an important component of Australia’s private-land conservation policy mix. Similar to conservation easements in North America, conservation covenants are mostly voluntary, legally binding agreements between an authorized organization and a landholder. They can apply to all or part of a property and are registered on the property title, usually running in perpetuity (forever).

Covenants are established primarily to protect land with high nature conservation value, where the landholder retains ownership but has a reduced ‘bundle of rights’, in effect giving up development and land-use rights incompatible with conservation. Whilst covenants can be tailored to individual properties, each covenant contains a standard set of obligations which remain relatively fixed over the term of the agreement, with site-specific management requirements determined during establishment.

Although security provisions vary between programs, all covenants in Australia are backed by specific, enabling legislation, with release (ie, the removal of the covenant) usually requiring approval from multiple parties including the landholder and the relevant government Minister. The exception is the Wildlife Refuge program, which is only available in New South Wales and is unique amongst Australian covenants for only requiring approval for release from a single party (ie, the land holder can choose to opt out voluntarily).

Covenants are commonly considered the most permanent private land conservation mechanism in Australia. Thus they are formally able be classified as protected areas and can contribute to Australia’s international protection targets.


DP#97_Page_13_Image_0002Bimblebox Nature Refuge in central west Queensland is an 8,000 hectare property under perpetual conservation covenant. It is located in the Desert Uplands biodiversity hotspot, where just over 3% of the area is held in conservation reserves.
More than 150 species of birds have been recorded on Bimblebox, including the sighting of a flock of the EPBC-listed black-throated finch (Poephila cincta).

Originally purchased for conservation with a combination of private funds and funding from the Australian Government’s National Reserve System program, the property was later protected with a Nature Refuge covenant.

Bimblebox is currently under threat from a proposed coal mine which in 2013 received approval from State and Federal Governments. At this stage the future of this covenant is uncertain. (More info – bimblebox.org) (Image by Sonya Duus).


 

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