Could a national insurance program protect your land trust against legal action and free up more money for land stewardship and acquisition? We need your input.

Across Canada, 150+ land trusts and other conservation organizations safeguard critical ecosystems in perpetuity, protecting nature and helping the country meet its ambitious biodiversity goals.

“That’s a big commitment,” says Bob McLean, policy director for the Centre for Land Conservation (CLC). “A lot can happen over forever.”

The possibilities include legal issues. Trespassers who cut trees or create roads. Encroachment and boundary disputes. Title challenges. A new landowner contesting an existing conservation agreement.

And on and on.

A 2023 survey by CLC underscores the scale of the issue. Nearly half (45 per cent) of the land trusts that responded told us they’ve already faced legal issues to defend their lands or agreements.

Notably, more than half of lands they hold are protected through conservation agreements with property owners. (Depending on where you are in Canada, these may be referred to as easements, servitudes or covenants.)

These types of arrangements create greater legal exposure compared to land owned directly by the land trust — especially when deeds change hands and new owners are unfamiliar with or opposed to the restrictions attached to their property.

Organizations have no way of knowing when they will need to litigate to protect a conservation agreement or conserved property, how long negotiation and litigation may take or how much it may cost.

High costs, limited safety nets

When disputes arise, the costs can be crippling. Legal fees, expert witnesses, mediation and court costs can quickly hit six figures. For land conservation organizations — which already run on a shoestring budget — these expenses aren’t insurable through liability insurance or title insurance. Instead, they must be paid from operating budgets or restricted funds.

This means land trusts are forced to choose between setting aside funds for potential legal challenges in the future or investing in conservation today. Currently, however, most organizations lack enough funds in their legal war chest to defend a conservation agreement or land that they own.

Moreover, some organizations are not using conservation agreements because of concern about higher legal risks, thus slowing conservation progress.

But the dangers don’t end there. “This could be a Pandora’s box,” says McLean. “The big fear in this situation is that when you lose a case, it has a potential to set precedent for other cases like that in the future. So the idea is everybody has to be equally strong.”

Most organizations lack enough funds to cover the cost of defending land that they own or is protected through a conservation agreement.

The risk of legal challenges may also discourage donors from stepping up. “Being able to say this land is also protected through a conservation insurance program against any legal actions adds to the confidence that a major donor might need in giving a gift of land or money,” McLean points out.

Creating a collective insurance fund for legal defence

That’s why CLC is exploring the benefits of creating an insurance program designed by and for Canadian land conservation organizations, where the members pool resources to insure each another against legal risks.

This reciprocal approach would allow coverage to be tailored specifically to conservation defence, including the legal costs of enforcing conservation agreements or defending freehold lands. It could also prove economical because it is owned and governed by its members, not by a company set up to generate profits.

The proposed program would draw on successful models elsewhere, including the Terrafirma program that currently insures hundreds of land trusts across the U.S. for costs of defending their lands and agreements.

Take the current survey — Help shape a program that works for you

Before we start creating a reciprocal insurance program, we need good data. That’s why CLC is currently conducting a sector-wide survey. We want to identify the common risks that land trusts face, how frequently legal incidents arise and the costs of legal defence in in terms of both money and staff and volunteer time.

An advisory group will use this data to develop a draft insurance policy, including recommendations on annual premium rates, coverage and initial capitalization needs.  This draft policy would be the basis for a consultation to gauge organizational interest in subscribing to the insurance.

In Canada, private land conservation organizations steward hundreds of thousands of hectares of land and hold $2.6 billion in assets. It’s a huge responsibility that requires the financial capacity to respond to legal actions.

According to the survey responses we’ve already received, organizations have already faced more than 100 legal incidents since 2020. SARAH — SHOULD THIS BE 2015 or 2020?

A national conservation defence insurance program could be a proactive, practical way to strengthen the sector’s collective ability to do that. And your input will shape how it would be structured and governed.

If you haven’t already responded, we would greatly appreciate your input. The more data, the better!

Click here to complete the survey.