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PROTECTING NATURAL HERITAGE VALUES IN THE EASTERN ONTARIO MODEL FOREST FOR SEVEN GENERATIONS AND BEYOND

A SUMMARY OF AVAILABLE PROTECTION MECHANISMS AND COMMENTS ON THEIR USE AND EFFECTIVENESS

Introduction The term "natural heritage" encompasses: geological features and landforms and their associated terrestrial and aquatic ecosystems; all native plant species, populations and communities; all native animal species and their range of habitat; and the sustaining natural environment. There are many intrinsic values in nature and all of its diversity that, as a society we collectively value but may not be able (or want) to put a dollar value on. Ontario spans over 14 degrees of latitude and 20 degrees of longitude. The southern most area of the province parallels northern California and the northernmost southern Alaska. Its highly variable topography ranges from sea level to altitudes of over 690m.

Ontario has been endowed with an extraordinary natural heritage. Within its boundaries is found one of the most diverse assemblages of flora and fauna and geology in all of North America.

Unfortunately, Ontario (especially southern Ontario's) landscape has been and continues to be, developed, at an alarming rate. The result is a greatly disturbed, highly-modified, and fragmented landscape. Decades of unrelenting assault on Ontario's landscape from a variety of population growth-driven development pressures have drastically altered, reduced and in some cases irradicated many elements of Ontario's once rich and diverse natural heritage. Once irradicated, such natural heritage values are lost forever.

As stress on the natural landscape increases, it becomes more and more difficult to maintain the integrity of remnant areas, and increasingly important to ensure that local landscapes are linked to regional landscapes. A local landscape linked to regional landscapes by networks of smaller natural areas and corridors creates a natural tapestry and it is this tapestry effect that offers the highest likelihood of success in maintaining the overall ecological integrity of the landscape. To meet the needs of the full diversity of species and sustain ecological processes, landscapes must offer a balance of large and small patches of habitat.

In southern Ontario, land use is regulated through the provincial Planning Act. In northern Ontario, for the most part, land use is under Crown control and is largely determined by various economic interests such as logging, mining and tourism. Crown land use is regulated through the application of provincial statutes for the conservation, use and management of resources such as forests, wildlife and minerals. Under the Public Lands Act the Minister of Natural Resources (MNR), has the power to zone provincial Crown land as open, deferred, or closed for management purposes, and to designate restricted areas.

Public awareness of natural heritage values and the importance of protecting them has never been higher than it is today. At the same time, the pressures being exerted on the landscape to meet the growth and development demands of an ever burgeoning population have also never been higher and

as population growth increases, these pressures will only intensify. Today real estate is generally expensive and the costs associated with owning and maintaining property are rising. As we approach the twenty first century the economy both federally and provincially is in a sorry state and large numbers of people are finding themselves unemployed.

These tough economic times are forcing government at all levels to find ways to reduce costs. This is resulting in changing priorities, reduced services, and an increasing "user pay" philosophy being adopted. As governments at all levels continue to search for ways to reduce costs, an increasing economic burden is placed on society. The end result is both government and society are hard pressed economically and natural heritage protection suffers. The reality today is that neither government or the private sector alone can assume responsibility for the protection of Ontario's natural heritage and build a sustainable future, nor can they be expected to. Together, however, they share a unique and rapidly-disappearing window of opportunity to re-think how, where, and why we do things, so as to establish a new 'land ethic', and a holistic approach to land use planning. Only by using ecosystem-based (e.g. watershed) planning that is based on ensuring the long term needs of the land rather than short term economic gain can we secure what little remains of Ontario's once rich natural diversity, and ensure that development does not consume the landscape and in the process the future. The irreplaceable natural legacy we have been entrusted with may be used, however, it must not be destroyed. We do not own nature, we hold it in trust. Not just for our children, or our children's children, but for all children for seven generations and beyond. The Eastern Ontario Model Forest area is endowed with some of Ontario's most unique flora and fauna, and the incredibly diverse ecosystems, and habitat upon which they depend. It is also an area where an ever growing number of people are choosing to live, work and play. Securing the natural heritage values of the EOMF for seven generations and beyond will require the cooperation of all levels of government and all those who make the EOMF their home. Success will require that they work together, and accept and share responsibility for charting the future of the area. Undoubtably there will be conflict and some immense challenges to overcome. The problems encountered should, however, be overshadowed by the knowledge that working together to protect the natural heritage of the EOMF today, is the only way to achieve 'natural balance' in the EOMF and maintains 'natural balance' is the 'keystone', of the foundations for building a sustainable future.

One of the most important tools for protecting natural heritage is municipal land use planning because it controls the future of the landscape. Currently, land use planning in Ontario leaves much to be desired. The Planning Act, while recently overhauled (Bill 163) will still require a great deal of improvement if planning decisions are to made in the best interests of ecosystems, ie. watersheds.

Planning decisions that ignore the long term health and well being of the landscape to satisfy short term economic growth and development aspirations of society are no longer acceptable. To be effective, land use planning can not be based on the artificial boundaries society has defined for dividing-up jurisdiction over the landscape, ie. lot, concession, township, and county for parcels of land whether private or publically held. Municipalities who share watersheds must cooperate to develop master watershed-based land use plans, if sustainability is ever to be achieved.

In Ontario the primary means of protecting natural heritage on Crown lands has been through the establishment of provincial parks. Ontario's park system is often viewed by the general public and government as being the solution to natural heritage protection. Parks constitute the major land holdings of property secured for the future primarily for their natural heritage value. The park system

is founded on the principle of representing the geological and ecological diversity of 13 natural site regions and the 65 site districts they encompass. Parks also provide important educational and recreational opportunities for the general public. To meet the recreational needs of the public and balance these with the need to protect natural heritage values for the future various classifications of parks have been established to provide a variety of levels of protection for natural heritage values.

Wilderness class parks - represent the large landscapes of each site region (over 100,000 ha) and for this reason are located primarily in northern Ontario. There are no Wilderness class parks in eastern Ontario.

Natural Environment and Waterway class parks - include the characteristic landforms and vegetative patterns of each site district. They are generally intermediate in size (mostly 2,000 10,000 ha), and provide a blend of protection and recreation (campgrounds etc.). There are two Natural Environment and Waterway class parks in the EOMF area.

Nature Reserve class parks - are established to protect the most significant geological and ecological features and landscapes of the site regions and districts, and are generally smaller areas (mostly 10 - 1,000 ha). The primary function of Nature Reserve class parks's is to protect significant geological, ecological and landscape features.

Recreation class parks - are generally smaller sized (up to 2,000 ha), and are established primarily for recreational purposes although they may protect some natural heritage features. There are three Recreation class parks in the EOMF area: Fitzroy, Carillon and Rideau River. Most St. Lawrence Park Commission parks would fall into this category.

The provincial park system includes 260 provincial parks and encompasses some 63,286 square kilometres, not quite 6% of Ontario's land and water base. In addition to the various levels of protection afforded to natural heritage values by the provincial park system there are several other methods by which land in Ontario has been afforded varying degrees of protection for its natural heritage value e.g. National Parks, Wilderness Areas, Federation of Ontario Naturalists Nature Reserves, National Wildlife Areas, Nature Conservancy Conservation Lands, the Niagara Escarpment Park System and Conservation Areas, etc. While all of these areas along with the parks system contribute greatly to natural heritage protection they are not enough. To be successful Ontario needs to create a mosaic of public and privately held land holdings across the province to ensure the diversity of habitat and land base required to support wildlife. Ontario must as it continues to develop ensure that a natural tapestry, i.e. a diverse blend of large and small, connected and unconnected, unique and ordinary natural areas is retained across its landscape, if what is left of Ontario's once rich natural heritages is to be protected for seven generations and beyond.

There are numerous mechanisms available which alone, or in combination with others, can provide varying degrees of protection or perfection in perpetuity, for natural heritage values.

LEGISLATION Federal The Federal Fisheries Act; the Federal Migratory Birds Convention Act; the Canadian Wildlife Act; the Federal Land Use Policy, the Federal Wetlands Policy, Federal Water Policy, The Environmental Protection Act are examples of federal statutes and policies that can be useful in securing protection for natural heritage values. Policies have little authority in themselves, they do, however, permit government to require proponents of development to "have regard" for their provisions some of which may dictate when various pieces of legislation are to be used.

Provincial In Ontario there are numerous pieces of legislation and policy that have the potential to assist in securing natural heritage values for the future including: The Ontario Heritage Act, The Planning Act, The Conservation Land Act, The Provincial Parks Act, The Wilderness Areas Act, The Conservation Authorities Act, The Trees Act, The Game and Fish Act, The Forestry Act, The Woodlands Improvement Act, The Ministry of Government services Act, The Endangered Species Act, The Environmental Assessment Act, The Registry Act, The Pits and Quarries Control Act, The Public Lands Act, The Land Titles Act, The Ontario Water Resources Act, The Lakes and Rivers Improvement Act, The Mining Act, The Crown Timber Act as well as The Ontario Wetlands Policy and the Ontario Provincial Parks Planning and Management Policy. The proposed Ecological Reserves Act could also be most beneficial.

Municipal The Official Plan, Zoning By-Laws, Holding By-Laws and subdivision control.

While all of the above legislation can assist in protecting or provide outright "legal" protection for natural heritage values, invoking their powers (in the case of acts) and seeing that their provisions (both regulations and policies) are implemented often presents tremendous challenge. Federal legislation is usually hard to invoke especially in the case of local land use issues. Provincial Acts are often equally hard to invoke and all legislation in Ontario is not equal. Some pieces of legislation (e.g. the Agricultural Land Drainage Act) with dangerous implications for the natural heritage values of Ontario's landscape have taken precedence over others. Natural heritage value protection is further complicated by the fact that provisions for natural heritage protection set out in both Acts and Policies e.g. Wetlands Policy are often abused or ignored. Land use planning is not done on a watershed basis and the application of protection provisions for development of land with natural heritage value is not consistently, much less stringently, applied to municipal land use planning across the province.

Arbitration mechanisms to which one can currently appeal land use decisions endangering the natural values of an area are hard to invoke and generally not well equipped to handle environmental disputes, e.g. OMB, Drainage Tribunals. Such arbitration is also very time consuming and costly. The Environmental Assessment process is another available protection tool, however, it is very difficult get the province to invoke it. While legislation capable of protecting natural values to some degree is on the books of all levels of jurisdiction it takes a very determined individual to get any level of government to accept their responsibility and take appropriate action. It is also incumbent on the

individual to know what legislation is available and what level of government and which department to contact. Finally to be remotely successful in protecting the natural heritage values of a local area an individual must maintain a constant vigilance over the landscape in their municipality and be prepared to challenge what appear to be inappropriate land use decisions or practises.

VERBAL AGREEMENTS 1. Natural Heritage Stewardship Award Program: This program sponsored by the Ontario Heritage Foundation, was established and is administrated by the Natural Heritage League (NHL), an informal, coalition of 28 public and private organizations interested in protecting Ontario's natural heritage. There are no financial incentives to landowners under this program. Agreements made between the NHL and landowners are verbal, strictly voluntary, not legally binding and do not (unless a landowner so desires) allow for public access to a landowners property. In order for a landowner to participate in the program, the property must contain "recognised provincially significant natural heritage values" (eg. provincially significant Areas of Natural and Scientific Interest or Wetlands). Landowners participating in the award program verbally agree to four conditions: i)

to maintain and protect the property to the best of their ability;

ii)

to notify NHL or designate (eg. lead agency) of any planned land use change that might threaten the natural heritage features;

iii)

to notify NHL or designate of any other threat to the property; and

iv)

to notify the NHL or designate of any intent to sell or transfer ownership of the property.

Landowners who agree to participate in the program are presented with an award (a plaque suitable for hanging on a wall). This program has great potential for promoting better awareness, understanding and appreciation of natural heritage values across rural Ontario. The program's success, however, is largely dependent on how it is delivered. It is essential therefore, that those individuals doing landowner contact understand rural life, the community dynamics of the area in which they are working, and that they are comfortable with their subject matter and are able to communicate effectively with people of all ages and educational backgrounds. To realize its potential, the current Natural Heritage Stewardship Award Program and its delivery need to be improved. To be effective the program must be funded over the long term and implemented in a consistent manner all over Ontario. Annual follow-up with participating landowners is necessary to ensure the program is working. Ongoing contact with, and personally thanking, participants each year also reinforces the importance of their contribution, and affords an excellent opportunity to increase community awareness of the program, and cultivate potential new participants.

The Natural Heritage Stewardship Award Program can do much to promote increased understanding and awareness of Ontario's natural heritage and the importance of securing it for the future. It must, however, be recognised that such agreements do not provide permanent protection. Landowners'

priorities for their property may change, property may eventually be sold or upon a landowners' death be inherited by someone who does not share the same interest and commitment to natural heritage protection.

WRITTEN AGREEMENTS: There are numerous types of written agreements. They range from simple voluntary agreements through simple to complex, legally binding agreements. They can be made for short or long specified periods or in perpetuity and can involve any amount of financial or other form of compensation, or no compensation at all.

1. Management Agreements For landowners interested in receiving technical assistance and/or assistance to maintain their property, or certain features on it, management agreements, ranging from a simple letter of understanding having no legal status to formal, legally binding contracts, can be signed with numerous government agencies and some private organizations. Such agreements present a wide range of possibilities for land protection and/or management, some of which would include: fish or wildlife habitat improvement, forest management, erosion control, etc. Legislation in Ontario that currently has provisions to allow agreements with private landowners includes the following: Ministry of Government Services Act, Game and Fish Act, Trees Act, Forestry Act, Woodlands Improvement Act, Conservation Authorities Act, and the Ontario Heritage Act. Fisheries Management Agreements and Woodlot Improvement Agreements are examples of specific types of government sponsored management agreements. Both of these agreements are for the purposes outlined and duration of time specified in the individual agreements legally binding agreements. Management agreements represent useful tools for both securing and enhancing natural values, and increasing public awareness of the importance and value of doing so. Since management agreements are not legally binding beyond the term stipulated in an individual agreement and agreements may not necessarily be renewed they can not be relied upon to provide long term protection for natural heritage values.

Private sector groups can also sponsor management agreements, an example of which would be Ducks Unlimited (DU). DU is a private organization (funded primarily by duck hunting interests), that has as one of its objectives the securing of waterfowl habitat. To do so it enters into management agreements with private landowners to secure or enhance waterfowl habitat. The agreements contain specified management plans for the site, and are legally binding for 21 years (occasionally for longer periods). While DU agreements have and continue to assist in overall habitat protection efforts, DU's primary interest is ducks and for this reason their habitat management plans do not always serve the best interests of all wildlife. Also, like the examples of government sponsored agreements (Fisheries and Woodlot Improvement), standard DU agreements do not afford permanent protection to an area.

2. Leases While not often used here in Ontario for conservation purposes, the use of leases does have potential.

A lease is a legal agreement that can place a wide variety of conditions on the use of the land being leased. There are various types of leases including: "Lease to Own" -

Rental payments would be applied to future purchase price.

"Lease for Life" -

Provides an opportunity for a landowner to receive income and in the future donate the property.

Leases, although legally binding, should, to further protect a tenant's interest in a property, be registered on the property's title.

3. Conservation Easements There are two forms of land easements possible in Ontario: statutory (i.e. those provided for by specific legislation) and common law. Common law easements are based upon the premise of a property benefiting (i.e. increasing in value) by virtue of an easement over an adjacent property. They are most commonly used to gain legal access to a property. Because of the need to own adjacent land, and numerous other uncertainties associated with the application and enforcement of conservation easements based in common law, for the purpose of this discussion it the use of statutory land easements for conservation purposes that will be discussed.

Conservation easements are legal documents used to place restrictions on the types of use and/or development undertaken on a parcel of usually privately owned land in order to conserve its natural features. A conservation easement can be acquired by purchase, through donation or in exchange for grants or other incentives. Conservation easements are registered in perpetuity on the title of the property and are legally binding on all subsequent owners of the property. A very versatile form of agreement, conservation easements can be individually customized to suit both the landowner's and the easement holder's objectives for a property. In addition to their ability to ensure permanent protection, conservation easements are an attractive form of agreement as they are flexible.

Landowners can sell, lease or otherwise deal with their property in any way they choose as long as the natural heritage values of the property are not disturbed. Public access to the property also remains at the discretion of the landowner, unless mutually agreed upon and stipulated in the easement that public access is to be permitted. Conservation easements need to be precisely drafted to ensure their terms are easily understood by the current, as well as all future, owners of the property. It is preferable to register an easement over the entire property even if the restrictions apply to only a tiny portion of the property. This eliminates the need for a new survey description and possibly a severance. Regular monitoring of conservation easements is as important as the document itself.

The use of conservation easements to secure natural heritage values on private property has a number of advantages over acquisition: - initial costs of acquisition may be less;

- management of the land is provided by the landowner; - the property remains on the municipal tax roll; - the land remains in production or use; - social disruption is minimized A financial benefit can also be derived by the property owner in the form of a tax receipt for any difference in market value of a property that results from the signing of a conservation easement.

Until recently there was a major limitation on the use of conservation easements here in Ontario. The only provincial legislation which clearly permitted statutory conservation easements to be acquired was the Ontario Heritage Act. Under this act municipalities are limited to easements on built heritage ie. historic buildings. Only the Ontario Heritage Foundation (OHF) could hold easements for both built and natural resources, as well as easements for archeological resources. Because of the OHF's mandate, it has traditionally focussed its efforts on protecting heritage sites of provincial, rather than local significance.

In December 1994, however, the Conservation Land Act was amended by passage of Bill 175. As a result it is now possible for incorporated, registered, charitable conservation oriented organizations such as the Federation of Ontario Naturalists, community based Land Trusts, a band (as defined under the Indian Act), municipal councils, conservation authorities or any other 'conservation body', as defined in the act, to hold conservation easements on privately owned property to ensure protection in perpetuity, for significant natural heritage values. Passage of Bill 175 represents a very important step forward for conservation. This expansion of permission to use statutory conservation easements and restrictive covenants (two of the most effective conservation tools available) will assist greatly in efforts to develop better awareness, understanding and appreciation of the importance of protecting natural heritage values and will help to establish new land ethics and make them a visible part of communities.

4. The Ontario Conservation Land Tax Rebate Program This program was brought about as a result of passage of the Conservation Land Act in 1987, an act establishing programs to "recognize, encourage and support the stewardship of conservation land and the payment of grants to the owners of significant conservation and heritage lands". For the purpose of this program conservation lands are defined as:

- Class I, II, and III wetlands - Provincially Significant Areas of Natural and Scientific interest

- Non-revenue producing Conservation Authority lands - other land owned by Conservation-oriented non-profit organizations which contribute provincial natural heritage values

to

- natural areas within the Niagara Escarpment Under this program owners of recognised conservation lands who agree to maintain the special features of their property are eligible for a 100% rebate of the municipal land taxes paid. Areas as small as half an acre are eligible for rebate, and the minimum rebate payable is $20.00. Landowners applying for a rebate have to sign an affidavit declaring that they intend to maintain the natural features on their property before they receive the rebate. While the intent of the program is laudable, there is ongoing concern that the government may eliminate the program at any time as a cost cutting measure.

It should be noted that landowners who already receive the Agricultural Land Tax Rebate for their property not eligible for this program. The program is voluntary, and there is no fixed period of time for which a landowner must agree to participate. If, however, the land use is changed, and the natural features intended to be protected are degraded and or destroyed, the landowner is required to repay the tax rebated for the previous ten years plus accrued interest. In practise this repayment provision is almost impossible to enforce - especially if the land is sold to another party. Unfortunately, the forms sent out to inquire if landowners might be interested in participating in the program are not designed to encourage participation. They explain little about what it is that landowners may have on their property that is of natural value much less why it is important that such values be protected. In its present form the program does not serve its objective well. It does little to educate or encourage landowner participation, and the protection afforded by the program is basically temporary. The government can abandon the program at any time, and participating landowners will opt out of the program when they have other plans for their property. Should the rebate program be dropped by Ontario it will also put the future of a great deal of "conservation land" currently held by Conservation Authorities and other agencies in peril as those agencies unable to carry the additional tax burden will be forced to sell off their conservation land.

5. Options Involving Transfer of Property Title Through Purchase " Right of First Refusal" - is the right to have the first opportunity to purchase a property if it is put up for sale, or the right to meet any other offer the landowner may receive for the property. Under such an agreement, it is agreed that if the landowner ever decides to sell the property, or if the landowner receives a genuine offer to purchase the property, before the property is sold, the holder of the right of first refusal will be given a predetermined period (usually 30 days) to match the offer received. A right of first refusal in no way obligates the holder to purchase the property in question.

It does, however, require that the holder be advised that the property is for sale and/or an offer has been made on it. To strengthen a right of first refusal the landowner should be paid a small sum and a contract should be drawn up. A right of first refusal should also be registered on the property title.

While the right of first refusal doesn't afford permanent protection for natural heritage values it does provide a method to monitor the movement of property with natural heritage value and it can provide time for a strategy to be prepared and/or the necessary funds to be secured to purchase the property on which it is held.

"Option to Purchase" - is a contract between a landowner and the purchaser stating that the landowner agrees to sell the property to the purchaser at a certain price on or before a specified date.

Such a contract obligates the landowner but not the purchaser. A small sum is usually paid to the landowner to secure the option. An option to purchase also guarantees the purchaser the first right of refusal on the property. Although an option to purchase does not afford permanent protection for natural heritage values, like a right of first refusal it is useful for monitoring land transactions and to buy valuable time to figure out how to best secure property with important natural heritage value. Option to purchase is a frequently used tool when acquisition of several contiguous properties is necessary to achieve conservation objectives.

6. Options Involving Transfer of Property Title Through Donation In donating property a landowner forgoes any income that would be received from a sale. Significant tax benefits can however be realized by a landowner donating property to a private registered charitable organization (up to 20% of net income when calculating federal and provincial income tax, with the balance carried forward into subsequent years). Gifts to public organizations or agents of the Crown can result in much higher benefits (deduction and exemptions of up to 100% of net income when calculating federal and provincial income tax). Unlike gifts to private charitable organizations upon which a donor can place conditions gifts to the Crown must be absolute and unconditional.

Another condition stipulates that prior to acceptance of the gift the market value of a property must be established by an accredited appraiser. There are three ways in which landowners can elect to donate their property: "Outright Donation" - The transfer of title is immediate, upon the property's acceptance by the receiving agency.

"Donation with a Reserved Life Estate" - The transfer of title is immediate, but the donor may choose to retain use of all or part of the donated land during his or her lifetime, and possibly the lifetimes of other members of his or her family.

"Donation by Devise" - The transfer of title does not occur until the owner’s death. The property being donated is usually willed to a suitable agency. Landowners interested in this option should as a precaution name a second recipient or better still use the Life Estate method, otherwise there is a risk that the recipient designated in the landowner's will could reject the donor's gift.

"Bargain Sale" - A bargain sale occurs when a landowner sells his property to a government or non-profit agency at a price below its fair market value. The result is a part sale part donation. This situation can facilitate the sale of the property as the owner is more likely to find a conservation agency willing to buy the land at a reduced price. A bargain sale can also be profitable for a landowner in that, in addition to some income from the sale, an income tax deduction can also be claimed for the difference between fair market value and sale price. The landowner is also able to place restrictions on the property as a condition of sale. The fair market value must be established by an accredited appraiser to be eligible for the income tax receipt for the donation portion (that part of the fair market value less the actual selling price). Not every landowner can benefit from a bargain sale. A landowner's financial situation must be such that having a charitable donation receipt would provide significant benefit when income tax is calculated.

Installment Sale" - An instalment sale can be beneficial to both landowner and purchaser. This form of purchase allows for payments to be spread out over a period of time making it easier for agencies with tight budgets to purchase desirable property. The agreement can be written to allow for the purchaser to pay for the property in annual instalments or alternatively to purchase a portion of the property each year. The purchaser electing to use the latter form would take out an option to purchase on the property for subsequent years. Whatever method is used the landowner and purchaser will need to share the management of the property until the final payment of the instalment agreement has been paid and the sale thus completed.

"Purchase and Saleback with Conditions Attached" - this involves purchasing a property, attaching conditions (conservation easement, restrictive covenant) to the deed and then reselling the property on the open market or to a conservation organization. This method of protection can be relatively low cost and is an excellent way to control the future use of the land. While conditions placed on the property could reduce its market value much of the initial cost can be regained. This option has been used successfully for securing portions of the Bruce trail along the Niagara Escarpment.

7. Land Trusts The establishment of land trusts is a relatively new concept in Ontario and holds great promise for conservation. While there is no precise legal definition to define land trusts in general land trusts are: - non-government, but operate for the public benefit; - usually registered as charitable organizations; - dedicated to the protection and management of natural areas, open space, agricultural landscapes, or affordable housing communities; - are community-supported through memberships, donations, and volunteer involvement; and - work directly with specific parcels of land, through purchase, donation or cooperative landowner programs.

Traditional Activities of Land Trusts: - purchase of threatened lands, often at less than market value ("bargain sales") through sympathetic owners or through flexible arrangements such as lifetime tenancy; - encouraging outright donation of lands, either to be held as trust properties, to be sold with restrictions attached, or to be sold to raise funds for other activities ("trade lands"); - managing lands according to the Trust's objectives, often involving volunteer participation or management arrangements with other agencies or groups;

- acquiring conservation easements or other limited interests in land, to secure permanent protection of natural features without direct ownership; - disposing of lands to a suitable management agency (such as government parks or wildlife agency); this activity sometimes extends to routinely acquiring lands on behalf of a government agency; - acquiring lands to resell with restrictions, usually in the form of a conservation easement to permanently restrict uses; - participating in limited development projects, to recoup capital costs and protect the majority of a property through development of some parts; - working cooperatively with landowners either through private landowner stewardship programs or by providing advice to landowners on how to achieve their conservation objectives; - providing environmental education programs both to schools and to adults, especially landowners; - providing training and assistance to local organizations, especially large, staffed trusts that give advice and help to smaller local organizations; - carrying out evaluations to identify priorities for protection, using biological or agricultural criteria, proximity to other protected sites, or landowner attitudes; - advocating protection priorities to government, usually on a limited scale and sometimes through participation in joint projects with government agencies; - raising funds through private donations, with an emphasis on local community sources; - utilizing government funding programs, often in the form of matching "challenge" grants or special employment programs.

Are land Trusts Successful?

In the United States alone there were over 900 land trusts in 1993, and new ones being incorporated at the rate of one per week. Land trusts are not, however, just a US phenomena, there are active land trusts in various parts of Canada as well as in Britain, Australia, New Zealand, Bermuda, Japan and elsewhere. Whether large, and long established like the British National Trust, with a staff of 6,000 and property holdings that include over 200,000 hectares of land and 100 large country houses or relatively new and small, having no permanent staff and very small annual operating budgets land trusts tend to be successful.

Reasons for the Success of Land Trusts: - Land trust organizations work very hard to gain the confidence of landowners, many of whom

distrust government agencies. Land trusts typically view landowners as allies and their clientele, and seek to build on the goodwill of private landowners to achieve their objectives. Successful Land trusts become an integral part of their communities and are open and responsive to local input. They seek a sense of community ownership, of being “our land trust�, in the same way the local hospital is viewed as "ours".

- land trusts have great clarity of purpose - they are "land-savers," undiluted by conflicting priorities or political constraints. People understand what they do and where the money goes. The product of their activities is tangible. Many Trusts actively work to focus this clear image by identifying themselves with a prominent geographic feature and by carefully defining the types of properties they seek to protect.

- Because of their non-bureaucratic nature and their closeness to the community, land trusts typically demonstrate great flexibility in their methods, both in acquiring protection of lands and in land management. Innovation and creativity are the watchwords of successful land trusts. This is particularly relevant when it comes to meeting the needs of landowners. For some landowners, financial considerations may be the only consideration; for others, tax matters or love for the land may be paramount. Successful land trusts work with each landowner to help define his or her objectives, determine where these overlap with the programs of the trust, and structure an arrangement to achieve joint goals.

- Some of the most successful land trusts hold few properties or easements themselves, acting rather as facilitators to achieve their goals. In effect, they act as conservation brokers, bringing interested landowners together with appropriate agencies to arrange suitable protection mechanisms.

- Land trusts with a reputation for accomplishment attract good people to their Board of Directors, people who are committed, action oriented, willing to take reasonable risks, and willing to raise funds.

These people, who are often community leaders in their fields, help a land trust to earn local respect and acceptability.

- When necessary , land trusts can quickly act in emergency situations and can create partnerships on specific projects with a variety of other groups. Land trusts often work closely with residents who live near a threatened property, and who will be among the prime beneficiaries of its protection. Many trusts avoid taking a stand on controversial local land use issues in order to keep open the possibility of working with municipal councils, developers, or citizen groups on cooperative protection options.

In many cases a land trust becomes the vehicle for some form of negotiated resolution rather than the advocate of any one point of view.

8. Tax Aspects of Ecologically Sensitive Lands Under current Canadian tax laws efforts to secure natural heritage values in Ontario and elsewhere in Canada suffer. The federal income tax system which has the potential to be one of the most effective tools in efforts to conserve natural heritage values rather than being useful or at least neutral is negative. Individuals who donate cultural property such as paintings derive reasonable benefits for

doing so in the form of income tax relief. Individuals donating ecologically sensitive land are rarely rewarded to a level commensurate with the value of their donation when income tax is calculated.

Often, in fact such individuals find themselves in a situation where for donating ecologically sensitive land instead of being fairly rewarded at tax time the are actually penalized. Marc Denhez (1992) has written an excellent paper on this bizarre situation in which he puts forward eight specific recommendations that must be acted upon by governments before donations of conservation land will be able to receive the "most favoured status" treatment government currently applies to donations of other categories of property: Recommendation #1: The legal fiction which attributes deemed capital gains (and potential deemed capital gains tax) to donations of ecologically sensitive real estate should be abolished.

Recommendation #2: The ceiling on deductable charitable expenditures (20% of income) should be lifted. Business expenditures have no such ceiling: and there is no policy reason why altruistic donations should be treated no less favourably than business expenditures. If the Government of Canada insists on retaining a ceiling, then the ceiling should be the same as in the case of donations to senior governments (100% of income).

Recommendation #3: The tax treatment of donations of Canada's natural heritage should be no worse than that now enjoyed by donations of Canada's cultural heritage.

Recommendation #4: Charitable donations of covenants or easements, for the protection of ecologically sensitive lands, should not be subject to capital gains or a 20% income limitation, any more than donations of other interests in ecologically sensitive lands.

Recommendation #5: Purchase of protection covenants and easements by environmental charities may continue to be subject to GST but should not otherwise trigger tax liabilities such as on deemed capital gains.

Recommendation #6: All provinces, and territories should be encouraged to amend their property tax assessment/collection legislation, to make specific reference to conservation of ecologically sensitive lands.

Recommendation #7: Those references should put ecologically sensitive lands on a par with whatever other private or charitable lands enjoy most-favoured status. The exact mechanism in doing so should correspond to the jurisdiction's established practise for other most favoured properties.

Recommendation #8: The legislation should provide for a tax clawback on conversion of the property.

9. Education/Communication Education and communication, represent two of the most powerful and under-utilized mechanisms available for protecting natural heritage values. People will not respect and care for that which they inherit unless they understand and appreciate its value. Society will not protect natural heritage values

until as individuals they learn what nature is, and come to understand and appreciate that all life depends upon nature's well being for survival. It is not hard to see why this is a difficult concept for much of society. Children that have never been to the country and seen a cow being milked often do not connect a cardboard carton of milk on a supermarket shelf with its source. Likewise, decision makers looking at lines marking ESA's on a map can not be expected understand the significance of such areas and the importance of making land use decisions on the basis of watersheds rather than economic growth if they have never studied ecology or been taught as a child to appreciate natural heritage. The will to protect is engendered through respect and appreciation, and both respect and appreciation are born of learning. Education and communication must be integral elements of all conservation efforts. They must be geared to the specific audiences for which they are intended, communicated using the most effective methods available and delivered on a long term basis.

Currently this is not the case. Communication and education are generally issue-driven and as issues are constantly changing programs are always refocusing. Educational programs on any given issue rarely have an opportunity to stay in operation long enough to succeed or enable an evaluation to be undertaken to identify what worked well and what didn't so that improvements can be made.

Selected reading: While many sources were tapped in the process of pulling together the above compilation, the publications listed here were found to be the most useful, and in some cases portions of their text was used verbatim.

"Creative Conservation A Handbook for Ontario Land Trusts". Stewart Hilts & Ron Reid.

Federation of Ontario Naturalists, 1993.

"Creative Conservation Forum on New Directions for Non-profits, Local Groups, and Government Agencies" Conference Proceedings. Federation of Ontario Naturalists, 1993 "Putting Nature first: Conservation Principles to Guide the Settlement of Aboriginal Land Claims". Discussion paper of the Land Claims Working Group. Federation of Ontario Naturalists, 1993.

"You Can't Give It Away Tax Aspects of Ecologically Sensitive Lands". Marc Denhez.

Issues Paper No. 1992-4 Sustaining Wetlands. North American Wetlands Conservation Council(Canada), 1992.

"Islands of Green Natural Heritage Protection in Ontario". Stewart Hilts, Malcolm Kirk, Ron Reid and Contributors. Ontario Heritage Foundation, 1986.

"A Natural Heritage Areas Strategy for Ontario Responding to the Endangered Spaces Challenge". Provincial Parks and Natural Heritage Policy Branch Policy Division. Ontario Ministry of Natural Resources, 1992.

"Conservation with Equity Strategies for Sustainable Development". Proceedings of the Conference on Conservation and Development: Implementing the World Conservation

Strategy Edited by Peter Jacobs and David A. Munro. IUCN, 1987.