The Gift That Keeps Giving, Forever: Setting Aside Land as Protected Forest in Perpetuity

Knowing that I work with companies to promote sustainability and responsible business practices, a new client wondered whether I could help her create a “Forever Forest” from a large tract of land in Ontario (currently most of it is not yet re-forested), that is to say, set aside the land as protected forest in perpetuity? 

Thus began a journey into the world of land trusts and conservation covenants.  In most common law jurisdictions, setting aside land for conservation in perpetuity is typically achieved through either i) a conservation easement, in which the landowner retains title but grants an easement to a conservation organization which restricts development on the protected areas; or ii) donating the land to a conservation organization under specific conditions (covenants) to protect the forest or wetland in perpetuity.  In some jurisdictions, a statute such as the Ontario Conservation Land Act governs the regime. 

Because my client wanted to donate the land outright (not retain it encumbered by a conservation easement) we needed to find a municipal agency or conservation organization willing to accept the land and maintain it as forest in perpetuity in keeping with the client’s vision.  An effective arrangement also requires the creation of an endowment (ideally, 15-20% of the market value of the land) to be managed by a professional trustee in perpetuity.  The endowment would pay any taxes and ongoing costs to maintain the Forever Forest or Wetland, such as maintenance of perimeter fences and hiking trails. 

Creating and launching a Forever Forest or Wetland is a wonderful opportunity to engage the community.  The profile and support for the project may well surpass the donor’s expectations.  Some landholders in my client’s area have expressed an interest in setting aside more land, thus expanding the protected forest. 

Some considerations on creating a Forever Forest or Wetland:

·         Best practice would dictate that the land title-holder and trustee should be different entities separately managed, so as to reduce the risk of malfeasance or misallocation of endowment funds.  The trustee should create a trust fund with the endowment that can accept charitable donations. 

·         A professional trustee should be competent to manage a trust in perpetuity.  A foundation with a strong track record on financial management of assets as well as experience in managing charitable trusts is ideal

·         A donor-advised model of trust fund which takes advice from a carefully-designed advisory committee would allow the donating company or individual, as well as local environmental groups and community leaders to stay engaged in the project and influence its evolution. 

·         It is possible for the donating company or individual to retain an interest in the unprotected and/or protected parts even if the land is conveyed. For example, an individual could retain a life interest, meaning that he or she could use and enjoy the land for the rest of his or her life.  A company could retain an interest in the unprotected part, creating a park or picnic area.

·         A Management Plan should be developed that reflects the donor’s vision regarding the protected (and unprotected) parcels of land, for example, provisions for tree planting and all necessary restrictions on development, subdivision, construction of roads, erection of buildings, etc.  Some decisions will have to be made.  Should horseback riding or hunting be allowed on the land?  What about use of pesticides for disease control?

·         If there are existing buildings on the tract of land, the management plan needs to provide for their upkeep and maintenance and possibly, their eventual demolition.  Forests may be forever but buildings tend to become too expensive to maintain.  For a heritage building, it is suggested that a segregated endowment be created, also as a charitable trust, so that locals can donate to keep the building going perhaps as a museum or visitor centre.  However, an old building should not divert funds intended for the conservation project, so segregating the trusts would be important, as well as giving the trustee considerable leeway in making decisions about the structures in the best interests of the protected forest or wetland.

·         In Canada, many treaties with First Nations populations allow them to hunt and fish on ceded land.  Special provisions allowing First Nations rights to hunt and fish for non-commercial purposes on Forever Forests or Wetlands could be a way of reconciling with these communities and helping them preserve and enjoy their traditional way of life. 

A certain amount of legwork and legal work is necessary before a forest or wetland can be protected forever.  However, preserving a forest or re-foresting previously cleared areas is a modest but meaningful contribution to addressing climate change.  It also provides much-needed habitat for flora and fauna that are increasingly vulnerable or threatened due to habitat loss.  For corporations or individuals willing to donate land for conservation, it can be a beautiful gift that keeps on giving, forever.