Context

The loss of biodiversity and ecosystem integrity and the accelerating rate of this loss is now well documented both globally(2) and in Canada. Internationally, the 2010 Aichi Biodiversity Targets(3) were adopted to protect and conserve biodiversity during the United Nations Decade on Biodiversity 2011-2020. Work is ongoing to develop a post-2020 global biodiversity framework as a stepping-stone towards the Convention on Biological Diversity’s 2050 Vision of “Living in harmony with nature.”(4) It is anticipated that this framework will be adopted at the next meeting of the Conference of the Parties to the Convention on Biological Diversity to be held in December 2022.

In response to the Aichi Biodiversity Targets, Canada’s federal, provincial and territorial governments released the 2020 Biodiversity Goals and Targets for Canada “to be achieved through the collective efforts of a diversity of players both public and private whose actions and decisions have an impact on biodiversity” and noted that “governments need to do their part but cannot act alone.”(5)

While private lands make up only 11% of Canada, such lands are disproportionately important to the conservation of Canada’s biodiversity and are at higher risk of harm or loss. Although species at risk are now found throughout the country, higher densities of these species are found in the southern landscapes of Canada where most Canadians live and where much of the land is privately held. Success in achieving biodiversity targets, such as for protected and conserved areas, and in protecting, conserving and recovering species at risk in these landscapes, will depend on privately protected and conserved lands. In this regard, non-governmental land conservation organizations have a key role to play.

To support the ongoing contribution that private land conservation organizations can make toward Canada’s biodiversity goals—and accelerate the growth of this contribution—these organizations must be able to not only acquire conservation lands or interests in them but also have the wherewithal to ensure they can operate sustainably to provide long-term, durable stewardship and legal protection of their properties and agreements. The benefits of doing so in Canada’s southern, most developed and densely populated ecosystems extend beyond protected area targets and biodiversity conservation to include the maintenance of irreplaceable natural infrastructure and ecosystem services that help to mitigate and adapt to the effects of climate change. By conserving wetlands, rivers and riparian areas for example, private conservation lands help regulate water quality and quantity and mitigate the effects of extreme weather events that can lead to flooding and drought. Importantly, these lands provide recreational opportunities and places for outdoor activities, contributing to human health and well-being, a particularly important benefit in the context of the ongoing global pandemic.

The conservation and sustainable use of biodiversity are central to the culture, spiritual well-being and traditional activities and way of life of Indigenous peoples. For millennia, Indigenous peoples have cared for and stewarded lands, water and wildlife. Throughout Canada’s history, Indigenous communities have worked to ensure recognition of the importance of biodiversity and healthy ecosystems and today hold direct management responsibility for species and lands under their authority as well as play key roles in efforts to conserve and protect lands, water and species across broader landscapes. Their histories, experiences and traditional ecological knowledge are helping to shape the way land conservation and protection are understood, valued and approached throughout Canada, including lands of conservation importance in southern Canada. This work is reflected in the Indigenous Circle of Experts’ 2018 report entitled: We Rise Together: Achieving Pathway to Canada Target 1 through the creation of Indigenous Protected and Conserved Areas in the spirit and practice of reconciliation.(6)

The last half century, in particular the past 25 years, have witnessed an increasing reliance on the part of governments to have non-governmental organizations lead efforts to conserve and protect private lands through the creation by governments of various land conservation and stewardship programs, and by the establishment of federal and provincial enabling legislation and policies. Canada now has more than 150 land conservation organizations and other non-governmental organizations working on the ground from coast to coast to coast to protect ecologically important lands and conserve biological diversity.

To accelerate Canada’s trajectory towards achieving its biodiversity conservation goals, including protected and conserved areas referred to as Target 1 (7) and more recent and ambitious 30x30 protection objectives,(8) the federal government and provincial and territorial governments have and continue to support the work of the private land conservation community. This support is provided through multiple channels, including, but not limited to:

• provincial legislation that enables conservation easements, covenants and servitudes
• policy and incentive tools such as Canada’s Ecological Gifts Program
• funding streams both federally and provincially.

While government and other funders continue to support the efforts of organizations to secure and protect private conservation lands, these organizations continue to voice concerns related to the long- term stewardship and legal protection of their conservation properties and agreements. At a national forum held in February 2020, “A National Conversation on Performance Assurance Approaches for Land Trusts in Canada”, organizations identified a number of challenges and opportunities related to the stewardship of their conservation lands and agreements and, among risk management concerns, identified “long-term liabilities (legal defence and stewardship) associated with holding land in perpetuity.”(9)

While the private land conservation community shares many needs and challenges with other charitable sectors, it has characteristics that make it unique. The ownership of land or rights in land creates ongoing obligations for the management or monitoring of conservation lands if the natural capital assets of these lands are to be protected not just for now, but for future generations. Private land conservation organizations are, by definition, long-term enterprises with significant capital assets that require ongoing operations if the benefits of those assets are to be sustained. In addition, they face potential legal issues and challenges unique to these organizations.

Many charities operate their programs on a year-to-year basis focused on the provision of services that enable them to generate revenue to sustain their operations annually. While other charitable sectors have large capital assets that also require long-term stewardship and maintenance, what differentiates the private land conservation organizations is the absence of tools that enable them to more readily generate sufficient revenue, in particular unrestricted revenue, for ongoing stewardship and legal protection of their properties and agreements. Cultural, educational and health not-for-profit charitable organizations all benefit from funding, including government funding, that provides key financial support for the management of capital assets and ongoing operations. In addition, some charitable sectors, such as the arts and culture sector, which is able to charge admission fees, self-generate additional revenue to sustain their operations over the long-term. Conversely, private land conservation organizations are not fully compensated for the many benefits they provide on an ongoing basis. Arguably, private land conservation organizations are not compensated at all for sustaining the benefits provided to society over the long-term.

The need to increase stable funding for private land conservation organizations is real and urgent. More than $2.3 billion in conservation estate is held by private land conservation organizations either in fee simple ownership (ownership of title to the land) or as conservation agreements.(10) Additionally, annually tens of millions of dollars are raised for conservation and millions more in tax receipts are issued for ecological gifts. It is important to ensure that this conservation estate and the funds contributed to this work, as well as future funding contributions and conservation land donations, are sufficiently supported to sustainably manage and protect all conservation lands and agreements over the long term.

Funders of private land conservation have an increasingly important role to support private land conservation organizations in ensuring a durable standard of care and, thus, protect the contributions of individual Canadians, donors and funders, both private and public, to achieve and sustain the long- term conservation outcomes envisioned by these contributors. It is inevitable that, with the continued growth and investment in the private land conservation sector, it will become more difficult to deal with sustainability, legal and compliance issues, and that funders—both private and public—will seek assurances of conservation in perpetuity and organizational long-term viability. For these reasons, it is the optimal time to examine in more depth the stewardship and legal protection challenges faced by private land conservation organizations and identify opportunities to move forward to address these challenges in the best possible way.

2. IPBES (2019), Global assessment report of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, Brondízio, S., Settele, J., Díaz, S., Ngo, H. T. (eds). IPBES secretariat, Bonn, Germany. 1148 pages. ISBN: 978-3-947851-20-1

3. Convention on Biological Diversity (2010), Aichi Biodiversity Targets

4. Conference of the Parties to the Convention on Biological Diversity, Fourteenth Meeting, CBD/COP/DEC/14/34, 2018

5. Environment and Climate Change Canada (2020), 2020 Biodiversity Goals and Targets for Canada

6. The Indigenous Circle of Experts’ Report and Recommendations (2018), We Rise Together: Achieving Pathway to Canada Target 1 through the creation of Indigenous Protected and Conserved Areas in the spirit and practice of reconciliation

7. Canada’s Target 1 stems from Aichi Target 11 committing countries to expand and improve their protected area system

8. 30x30 references Canada’s commitment to protecting 30% of its lands and waters by 2030

9. Centre for Land Conservation (2020), A National Conversation on Performance Assurance Approaches for Land Trusts in Canada

10. According to 2018 data available from the Canada Revenue Agency