315
Conservation Covenants and
Community Conservation Groups:
Improving the Protection of Private Land
Kellie Ewing*
Across New Zealand, community conservation groups are taking
action to restore and rehabilitate damaged ecosystems. Part of the
work that these groups undertake is the restoration of areas of pri­
vate land that are significant in protecting New Zealand’s biodiversity
but not protected within the public conservation estate. One concern,
however, is that the efforts of community conservation groups may not
be protected in the long term if the ownership of land that they are
restoring changes. Existing mechanisms available for the protection of
native ecosystems on private land in New Zealand provide opportunities
for landowners to enter into conservation covenants in favour of the
Department of Conservation, local authorities, or the Queen Elizabeth
the Second National Trust. However, few effective options are currently
available to allow community conservation groups to be directly
involved in the legal protection of private land. Overseas jurisdictions
such as Australia, Canada, and the United States have, however, taken
innovative approaches to legal protection on private land to ensure that
community conservation groups have the ability to directly negotiate
legal instruments for protection with landowners, or to place groups in a
position where they can purchase and protect private land through their
own means. A number of these approaches could be usefully adopted
into New Zealand law to facilitate increased involvement of community
groups in the protection and restoration of private land.
*This research was conducted as part of a study currently under way at the University of Waikato
which is focusing on the restoration of urban ecosystems and has been funded by the Foundation
for Research Science and Technology (“FRST”) through an outcome-based investment (OBI)
scheme. The publication of this journal article fulfils one of the requirements of the OBI. The
author thanks Professor Barry Barton for feedback on the draft of the article.
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1. INTRODUCTION
New Zealand has many exceptional landscapes and endemic flora and fauna
that give our environment a distinct character not present anywhere else in the
world. Native plants and animals, such as the kiwi and the silver fern, have
been embraced as New Zealand icons and represent our identities as New
Zealanders both locally and internationally. However, New Zealand’s natural
environment has been significantly affected by development in both rural and
urban areas. Many of New Zealand’s indigenous ecosystems are extremely
vulnerable; others have disappeared altogether. For some badly damaged or
incomplete ecosystems, restoration is their only chance at long-term survival.
Ongoing management is also essential. Communities across the country have
identified the need for intervention and have banded together and formed groups
to restore and rehabilitate damaged ecosystems in their locality. Much of the
work that Community Conservation Groups (“CCGs”) do is to fill in the gaps
where government agencies have been unable to take action. They are often
able to respond to the needs of the community in a more timely fashion than
government agencies and are usually more active in promotion of conservation
within a community because of their closeness to the local people.
Part of the work that CCGs undertake is the restoration of areas of private
land that are significant in protecting New Zealand’s biodiversity but are not
protected within the public conservation estate. Such activities are usually
carried out in close association with conservation-minded landowners who
want to ensure that remnants of bush on their land are maintained. However,
questions arise as to what the fate of the land will be when ownership changes.
For example, what happens to the restoration site if the land is purchased by
a property developer who wishes to subdivide the site? How will the site be
maintained and by whom? Several options exist for landowners that wish to
protect their land but the most common, and the one that this article will focus
on, is the statutory conservation covenant.
Conservation covenants are voluntary agreements entered into, usually
between a government agency or covenanting organisation and a landowner, for
the protection and/or management of biodiversity on private land. Ownership
of the property is maintained by the landowner while an interest in the land is
provided to the covenanting body. The landowner only parts with one of what
G Park, Nga Uruora: The Groves of Life: Ecology and History in a New Zealand Landscape
(1999) 15.
G N Park, New Zealand as Ecosystems: The Ecosystem Concept as a Tool for Environmental
Management (2000) 7.
B H Thompson Jr, “Conservation Options: Toward a Greater Private Role” (2001–2002) 21
Virginia Environmental Law Journal 245, at 310.
D Donahue, “The Law and Practice of Open Space Covenants” (2003) 7 NZJEL 119, at 121.
Conservation Covenants and Community Conservation Groups
317
is commonly referred to as the “bundle of sticks” associated with property
ownership. Covenants for conservation purposes are available in New Zealand
under the Conservation Act 1987, the Reserves Act 1977, the Queen Elizabeth
the Second National Trust Act 1977 (“QEII Trust Act”), and in some areas,
through local authorities as a condition of resource consents. Covenanting
usually means that the site will be protected in perpetuity in accordance with the
terms of the covenant agreement. This means that future owners of the property
will be bound to observe the terms of the covenant and therefore will, in the
majority of cases, ensure that protection of the natural area is maintained.
However, the mechanisms that are currently available provide few oppor­
tunities for CCGs to become involved in the covenanting process, and usually
no provision is made for them in covenanting agreements. Therefore, once land
has been sold or transferred, there is no guarantee that a new landowner will
continue to allow restoration activities to occur. A CCG that has contributed
significant time and resources to a restoration project could potentially be
excluded from a site. This means that there is no assurance that the site will be
maintained — an essential aspect of ensuring a restoration project is successful.
Furthermore, it is then left to the covenanting organisation (Queen Elizabeth
the Second National Trust (“QEII Trust”), for example) to ensure that the new
landowner complies with the terms of the covenant. While there are monitoring
provisions in place, organisations like the QEII Trust, the main covenanting
body in New Zealand, are extended to the limits of their resources, and their
ability to regularly monitor covenants is constrained. In addition to this, the
large number of applications for covenants put forward to the QEII Trust means
that there are significant delays between when an application is lodged and the
covenant approved. These issues, and others that are discussed in this article,
show that the current forms of conservation covenant are not adequately meeting
the needs of New Zealand CCGs.
2. NEW ZEALAND’S CURRENT APPROACH TO LEGAL
PROTECTION ON PRIVATE LAND
2.1 Conservation Covenants
Conservation covenants are the main form of legal protection used on private
land in New Zealand. A covenant can be described as “a promise made under
seal, i.e., in a deed”. The general purpose of a covenant is to place restrictions
Ibid, at 124–25.
Conservation Act 1987, s 27A(1)(b); Reserves Act 1977, s 77A(1)(b).
Queen Elizabeth the Second National Trust Act 1977 (“QEII Trust Act”), s 22(5).
G W Hinde, N R Campbell & P Twist, Principles of Real Property Law (2007) 1069.
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or obligations on landowners to prevent them from being able to use their land
in a particular way. At common law, covenants could generally only be enforced
between the original parties to the agreement, that is, where there was privity of
estate. Equity extended this slightly to allow covenants to be enforced between
landlord and tenant, that is, where there was privity of estate but not of contract.
Three other limited exceptions existed so that covenants could be enforced
beyond the tenure of the original parties.10 These were:
(1) The benefit, though not the burden, of the covenant passes with the land at
common law subject to certain rules;
(2) Under its principles relating to restrictive covenants, equity permits enforce­
ment by or against assignees of both the benefit and the burden of the
covenant;
(3) Under s 64A of the Property Law Act 1952, the burden of both positive and
negative covenants made on or after 1 January 1987 is enforceable by or
against assignees pursuant to the provisions of that section.
Under s 301 of the Property Law Act 2007 (“PLA 2007”) provision has been
made to allow the benefits of positive or restrictive covenants relating to land to
bind successors in title. Under s 302 of the PLA 2007 the burden of a positive
or restrictive covenant relating to land will also be binding on successors in title.
However, neither the common law, nor equity, nor the Property Law Act 1952
allowed the burden of a covenant in gross to run with the land.11 This approach
has been carried through into the PLA 2007. Section 306 of the 2007 Act states
that s 303, which provides that restrictive and positive covenants entered into
after 1 January 1987 will run with the land, does not modify the law relating
to restrictive covenants in gross. To overcome the barriers created by common
law and statutory restrictions on use of covenants in gross, provisions were
enacted into conservation legislation to make exceptions that allow conservation
covenants to run with the land and therefore to bind successors in title. However,
while the existing statutes provide opportunities for landowners to negotiate
covenant agreements with the Department of Conservation, local authorities, or
the QEII Trust, few effective options are currently available to allow community
conservation groups to be directly involved in the legal protection of private
land. These statutes are discussed below.
Ibid, at 1070.
10 Ibid, at 1069–70.
11 Ibid, at 1071.
Conservation Covenants and Community Conservation Groups
319
2.2 QEII National Trust Act 1977
The QEII Trust Open Space Covenant (“QEII covenant”) is the main type
of covenant protection currently used on private land in New Zealand. QEII
covenants are administered by the QEII Trust under the Queen Elizabeth the
Second National Trust Act 1977. Section 22 of the QEII Trust Act empowers the
Trust to enter into covenant agreements with private landowners:
Where the Board is satisfied that any private land, or land held under Crown
lease, ought to be established or maintained as open space.
QEII covenants are voluntarily entered into by landowners, with each covenant
varying depending on the terms agreed between the parties.12 In most cases
the covenant will burden a small segment of land which requires protection;
although in some cases the covenant will be for a whole property.13 QEII
covenants are generally in perpetuity, although the Act does allow for covenants
to be registered for a limited period of time depending on the conservation
status of the land upon which the covenant applies.14
To determine whether a property has characteristics worthy of protection a
QEII representative will visit the site to evaluate it. Trust practice is to assess
the land based on the following criteria:15
[E]cological and biodiversity value, naturalness, sustainability, existing or
potential value as an ecological corridor, wildlife, geological features, landscape
values, cultural and heritage values. There will also be practical considerations
including: management needs, threats to site values, [landowner] motivation
and potential sources of funding.
However, the criteria are not limited to those stated above and the QEII Trust
Board can take into account other factors that they consider are relevant to
whether or not a QEII covenant is justified. If the Trust is satisfied that the site
in question meets the assessment criteria, the covenant will be approved, and
once any fencing or surveying requirements have been completed, the covenant
12 Section 22 of the QEII Trust Act implies that the Trust can actively pursue covenants from
landowners. However, at present, the QEII Trust takes a reactive rather than proactive
approach to covenanting, waiting until landowners contact them (Donahue, supra note 4, at
138).
13 QEII National Trust, QEII Open Space Covenants, at <www.qe2.org.nz> (last accessed
10/05/07).
14 QEII Trust Act, s 22(5).
15 QEII National Trust, “Helping You Protect the Special Nature of Your Land”, Open Space:
Magazine of the Queen Elizabeth II National Trust, April 2002, 27.
320
New Zealand Journal of Environmental Law
will be noted by the Registrar-General of Land on the title of the property
concerned.16
Debra Donahue argues that “established and maintained as open space”
in s 22 could be interpreted to mean that the land does not currently hold the
values set out in the Act but that the covenant has been established so that at
some point it may. This interpretation would be useful for CCGs conducting
restoration on private land as it may mean that a restoration site which is being
redeveloped from bare land could qualify for protection under the QEII Trust
Act even though the site may not presently possess high ecological value.17
The definition of open space in the Act certainly appears to support such an
interpretation:18
[A]ny area of land or body of water that serves to preserve or to facilitate
the preservation of any landscape of aesthetic, cultural, recreational, scenic,
scientific, or social interest or value.
However, it is not clear at this point in time whether such an interpretation
would be plausible as the issue has not been tested in the courts, and it appears
that Trust practice is to covenant land which already possesses the values set out
in the Trust’s covenanting criteria.
To assist in the facilitation of QEII covenants the QEII Trust contributes
towards the costs incurred by landowners as a result of entering into the
agreement. This may include payment of costs associated with legal advice,
fencing, and surveying.19 However, the Trust does not contribute to the main­
tenance costs of the area once the covenant is in place, and will not cover
survey and legal costs if the covenant is being entered into to obtain subdivision
rights.20 While the Trust covers a portion of the costs of covenanting there are
often considerable costs to landowners or conservation groups seeking covenant
protection. This can act as a deterrent to those who may otherwise seek QEII
covenant protection.21 Under s 21(2)(e) of the QEII Trust Act the Trust is also
given the authority to pay rates on land which has been covenanted under the
Act, although the Trust has never used this power.22
16 QEII Trust Act, s 22(7).
17 Donahue, supra note 4, at 128.
18 Queen Elizabeth the Second National Trust Act 1977, s 2.
19 QEII National Trust, How to Covenant Your Special Areas, at <www.qe2.org.nz> (last
accessed 10/05/07).
20 C Cocklin & P Davis, Protecting Habitats on Private Land: Perspectives from Northland,
New Zealand (2001) 23.
21 C Cocklin & P Doorman, “Ecosystem Protection and Management in New Zealand: A
Private Land Perspective” (1994) 14 Applied Geography 264, at 275.
22 Donahue, supra note 4, at 133.
Conservation Covenants and Community Conservation Groups
321
QEII covenants have, in most areas, been a successful mechanism for
the protection of open space on private property.23 There have been a total of
2,630 covenants registered and 623 approved, protecting a total area of 102,779
hectares.24 The success of the QEII Trust can be partially evidenced by the fact
that there have always been more landowners applying for covenants than the
Trust is able to fund.25 However, while government funding of the QEII Trust
has been on the rise, so too has the demand for covenants, and at present the
Trust is “over-subscribed”.26
2.3 Conservation Act 1987
There are two forms of conservation covenant available under the Conservation
Act 1987; these are conservation covenants and nga whenua rahui kawenata.27
Under s 27 of the Act conservation covenants may be entered into in favour of
the Minister of Conservation. As with QEII covenants, this type of covenant will
run with the land and therefore is binding on successors in title. Once agreed
the covenant is noted on the title of the property concerned.28 Where Maori
land is to be protected for conservation purposes the Minister of Conservation
is given authority, under s 27A of the Conservation Act, to negotiate with the
owners of the land for nga whenua rahui kawenata, a form of conservation
covenant, to be entered into for the land concerned.29 While nga whenua rahui
kawenata may be entered into in perpetuity, s 27A(1)(b) of the Act provides the
option for the agreement to either be for a specified term, or otherwise to be
reviewed at intervals of not less than 25 years, so that tangata whenua are given
the option to modify or extinguish an agreement. Kawenata help to ensure that
biodiversity is protected on Maori land without unduly encroaching on the tino
rangatiratanga of future generations.30 Kawenata can also provide for limited
access to resources for customary cultural purposes.31
23 Cocklin & Doorman, supra note 21, at 267.
24 QEII National Trust, Annual Report 2007 (2007) 3.
25 M A Bayfield, QEII National Trust Working with Local Government Discussion Paper:
Report for QEII National Trust and Local Government New Zealand (2004) 3.
26 P Clough, Treasury Working Paper 00/25: Encouraging Private Biodiversity — Incentives
for Biodiversity Conservation on Private Land (2000) 5.
27 Conservation Act 1987, ss 27 & 27A.
28 Ibid, s 27(2).
29 An alternative approach to protection on Maori land had been explored in N R Wheen,
“Foul Play: Government and the SILNA Forests” (2002) 6 NZJEL 279.
30 Cocklin & Davis, supra note 20, at 24.
31 Department of Conservation, Nga Whenua Rahui Fund, at <www.doc.govt.nz> (last
accessed 7/09/07).
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New Zealand Journal of Environmental Law
2.4 Reserves Act 1977
The Reserves Act 1977 provides two other forms of covenant protection as an
alternative to those offered under the Conservation Act and the QEII Trust Act.
The first are conservation covenants under s 77. These covenants are similar to
Conservation Act covenants, can be entered into in perpetuity, or for a defined
term, and once registered can bind successors in title.32 The second variation of
covenant can be found in s 77A. Under s 77A provision is made for nga whenua
rahui kawenata, also similar to those under the Conservation Act, to be entered
into for the protection of conservation areas on Maori land. This section of the
Act was inserted in 199333 due to the dissatisfaction among Maori regarding the
other protection mechanisms that were available.34
Section 77 of the Reserves Act 1977 also provides that “the Minister, any
local authority, or any other body approved by the Minister” may “treat and
agree with the owner or lessee for a covenant”. This section allows a CCG to
apply to the Minister of Conservation to be approved as a covenanting organi­
sation under the Act. However, this option appears to have been used very
rarely. In my research I was only able to find one CCG that has been approved
by the Minister, although it is not clear whether this is because the Minister is
not approving community group applications or because CCGs are not aware
that this option exists. What is clear, as demonstrated from the example I will
now discuss, is that this option has the potential to increase the availability of
covenants in New Zealand, increase the involvement of CCGs in the covenant­
ing process, and in some situations may provide a more attractive alternative to
landowners than QEII covenants or covenants administered by the Department
of Conservation.
2.4.1 Banks Peninsula Conservation Trust
Banks Peninsula Conservation Trust (“BPCT”) is one CCG which demonstrates
how a community group can successfully implement conservation covenants
under s 77 of the Reserves Act. The Trust was established in 2001 in response
to community dissatisfaction with the Banks Peninsula District Plan which
proposed a regulatory approach to managing private land on the peninsula. The
community wanted a voluntary approach such as covenanting.35 The Trust was
New Zealand’s first CCG to be granted authority to register covenants and has
now protected approximately 300 hectares through its covenanting and fencing
32 Reserves Act 1977, s 76(2), (3) & (4).
33 Reserves Amendment Act 1993, s 3.
34 Cocklin & Davis, supra note 20, at 24.
35 Banks Peninsula Conservation Trust, About the Banks Peninsula Conservation Trust, at
<www.bpct.org.nz> (last accessed 26/03/08).
Conservation Covenants and Community Conservation Groups
323
programme.36 Unlike the QEII Trust, which waits for landowners to contact
them, the BPCT has been active in pursuing land of high ecological value and
approaches landowners whose properties hold such value. The group has been
well accepted in the community because it is largely “landowner driven”, with
a significant proportion of those on the committee being landowners from the
area.37
2.5 Local Authorities
Under s 108(1) of the Resource Management Act 1991 (“RMA”), local author­
ities are given the authority to require persons applying for resource consents
to comply with any conditions that the authority deems appropriate. Under
s 108(2)(d) one condition that a council may place on a resource consent is that
the applicant enter into a covenant in favour of the consent authority.38 These
covenants require landowners to enter into protective covenants in favour of a
district council in order to be granted resource consent.39 Similarly, s 220 of the
RMA provides that covenants may be required as a condition of subdivision
consent.
Consent conditions as a method of biodiversity protection have the potential
to be successful conservation tools in New Zealand. This method of ensuring
protection was successfully implemented at Barrett Bush in the Waikato region
where a significant portion of native bush on private land was transferred as
a condition of subdivision under the Waipa District Plan.40 This has added to
the size of Barrett Bush without the need for Friends of Barrett Bush to find
additional funds to purchase an area of native bush which bordered on the site
where the group has already undertaken considerable restoration work.41 If other
local authorities were to enact similar rules in their district plans then the work
of CCGs could be aided significantly.
36 New Zealand Landcare Trust, Biodiversity Banks Peninsula Newsletter, April 2005.
37 Banks Peninsula Conservation Trust, Banks Peninsula Conservation Trust Vision Document,
at <www.landcare.co.nz> (last accessed 26/03/08).
38 Resource Management Act 1991, s 108(2)(d).
39 There are limitations on the extent to which a council can claim contributions under s 108;
however, discussion of this is beyond the scope of this article. For further information see
D Nolan & N Christie, “Financial Contributions as a Market Mechanism and the Resource
Management Act 1991” (1999) 3 NZJEL 127, at 134–36; Newbury District Council v
Secretary of State for the Environment [1981] AC 578, at 599–600; Bletchley Developments
Ltd v Palmerston North City Council (No 1) [1995] NZRMA 337; Nugent Consultants v
Auckland City Council [1996] NZRMA 481, at 485; and Woodridge Estates Ltd v Wellington
City Council [1993] 2 NZRMA 656, at 660.
40 Waipa District Council, Operative Waipa District Plan 1997, Rules 10.3.2.2(f ) &
10.6.1.4(f ).
41 Meeting with Mairi Jay, Friends of Barrett Bush / Tui 2000, 03/05/07.
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New Zealand Journal of Environmental Law
2.6 Issues with the Current Approaches
2.6.1 Lack of long-term protection options for CCGs
In many cases communities can and do work with landowners to help share
some of the responsibility and costs of maintaining private land. However,
because there are currently few options available for CCGs to pursue perpetual
protection for private land that they work on, there is often no guarantee that
the land will continue to be preserved after land ownership changes. This is a
major deterrent for community involvement on private land. CCGs have much
to offer towards improving and protecting biodiversity on private land, although
at present this resource is not being harnessed to its full potential because of the
failure of New Zealand legislation to adequately recognise the role that CCGs
play in conservation. While the option exists for CCGs to become covenanting
bodies under s 77 of the Reserves Act, this option appears to be rarely exercised
and, as a result, the provision is failing to meet its legislative purpose.
Edwards and Sharp argue that the limited range of covenanting bodies
available in New Zealand can make some landowners reluctant to enter into
covenants.42 Creating additional options for landowners to choose from, which
provide alternatives to government-run programmes, can lead to the involve­
ment of landowners who are anti-government but still would like to preserve
their land.43 Some landowners, particularly Maori landowners, may be reluctant
to enter into agreements with government departments like the Department of
Conservation. Despite its independence the QEII Trust is largely government
funded and this can affect public perception of its autonomy. Barton Thompson,
writing of American experience, argues that landowners are less likely to feel
threatened when they negotiate an instrument with a CCG as the CCG does not
have regulatory responsibilities in addition to its covenanting powers.44 Nancy
McLaughlin explains that CCGs are also more likely to have “kitchen table”
access within their communities, therefore can often work more closely with
landowners and understand landowners’ needs better than a government agency
could.45
Overseas governments have made options available that can facilitate
CCG involvement in conservation on private land and secure their assistance
in the long term. This can harness the resources of the community in a way
that reduces the burden on government departments which are already strained
42 V M Edwards & B M H Sharp, “Institutional Arrangements for Conservation on Private
Land in New Zealand” (1990) 31 Journal of Environmental Management 313, at 322.
43 Thompson Jr, supra note 3, at 306.
44 Ibid.
45 N A McLaughlin, “Increasing the Tax Incentives for Conservation Easement Donations
— A Responsible Approach” (2004) 31 Ecology Law Quarterly 1, at 6.
Conservation Covenants and Community Conservation Groups
325
for resources. More importantly, it reduces the burden on landowners for
maintaining the land while providing security that there will be an independent
body to enforce the protection if a future landowner breaches the covenant
terms. The protection of private land in New Zealand could be significantly
improved if similar approaches were to be adopted here. Options for such
improvements are discussed shortly.
2.6.2 Enforcement and monitoring of QEII covenants
For any mechanism to be truly effective it is important that enforcement and
monitoring mechanisms are in place so that in the event that the conditions of
the agreement are breached the mechanism will be enforced against the default­
ing party. The QEII Trust usually monitors covenanted properties every two
years.46 However, during the 2006/07 financial year only 1,162 covenants were
monitored.47 This works out to be less than half of all covenants and suggests
that the Trust is not even meeting its own biannual monitoring targets. This level
of monitoring is not likely to ensure that covenants are properly enforced and
it would be more appropriate if the Trust was to visit properties on an annual
basis.48 Debra Donahue, in her research on QEII covenants, found no record of
any cases where the QEII Trust had sought to enforce a QEII covenant and that
overall “indications are that enforcement activity has been minimal”.49 Further
research for this article was unable to locate any cases where the QEII Trust had
taken legal action to enforce covenants.50 In one case a QEII representative was
recorded as saying the Trust would sue a quarry developer whose activities may
have an adverse effect on a nearby covenanted area,51 although it appears that
there are no reported cases to evidence action having been taken. One reason
cited by Donahue as to why the QEII Trust is reluctant to enforce covenants
against landowners is that if the Trust is seen to be too strict on enforcement
then it is possible that landowners may be reluctant to enter into QEII covenants
at all.52 However, at present the major reason for irregular monitoring appears to
be the Trust’s lack of resources. This problem is likely to grow over time, as the
number of covenants increases, unless the QEII Trust’s funding is significantly
improved,53 or alternative mechanisms are put in place to ease its workload. As
will be discussed shortly, conservation easements may be one such alternative.
46 QEII National Trust, supra note 13.
47 QEII National Trust, supra note 24, at 5.
48 Donahue, supra note 4, at 155.
49 Ibid.
50 As at 19 June 2008.
51 J Crooks and Sons v Invercargill City Council 08/08/97, Skelton J, EC Christchurch C81/97, 41.
52 Donahue, supra note 4, at 156.
53 Ibid, at 155–56.
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New Zealand Journal of Environmental Law
2.6.3 Economic barriers to covenanting
The mechanisms described above predominantly rely on the voluntary action
of private landowners. The onus and cost of protecting and managing areas of
native habitat on private land is also largely placed on the landowner.54 The
problem with taking this approach to private land is that there will always be
a portion of landowners with significant environmental features on their land
who will not respond to voluntary mechanisms unless it is economically in
their interests to do so.55 There are currently few economic or other incentives
for encouraging landowners to protect areas of their land; in fact, the cost of
protection can be a significant deterrent.56 Cost is a deterrent not only in the
sense that many landowners do not have the financial resources to invest money
in conservation, but also because there is often a perception that conservation
work is a public good and therefore should be paid for with public money.57
Rates relief is one option that could be used to ease the burden on private
landowners. Under s 102(5)(a) of the Local Government Act 2002 a local
authority is granted the ability to make a rates remission policy. This policy
must meet two requirements: (1) it must state “the objectives sought to be
achieved by the remission” of rates; and (2) it must set out “the conditions and
criteria to be met in order for rates to be remitted”.58 Once this policy is in place
the local authority may choose to offer rates remission to properties that are
owned, either entirely or in part, for conservation purposes.59 Under s 8 of the
Local Government (Rating) Act 2002 land administered for the purposes of the
QEII Trust should be “fully non-rateable”.60 Similarly, conservation areas under
the Conservation Act, which includes “land in which an interest is held”, would
qualify under the Act.61 It appears that in many instances local authorities are
providing rates relief to land which has a QEII covenant registered on the title
in accordance with the Local Government (Rating) Act.62 Although, due to the
low rateable value of much of the private land that qualifies for rates relief, there
is often little incentive effect provided through such relief and it is unlikely to
substantially motivate landowners to enter into conservation covenants. In some
54 Cocklin & Davis, supra note 20, at 28.
55 N Gunningham & M D Young, “Toward Optimal Environmental Policy: The Case of
Biodiversity Conservation” (1997) 2 Ecology Law Quarterly 243, at 261.
56 Meeting with Mairi Jay, Friends of Barrett Bush / Tui 2000, 03/05/07.
57 C Binning & M Young, Conservation Hindered: The Impact of Local Government Rates
and State Land Taxes on the Conservation of Native Vegetation (1999) 13.
58 Local Government Act 2002, ss 109(1)(a) & 109(1)(b).
59 Local Government (Rating) Act 2002, s 85(1).
60 Ibid, s 8 and Schedule 1.
61 Ibid, s 8 and Schedule 1; Conservation Act 1987, s 2.
62 Bayfield, supra note 25, at 12.
Conservation Covenants and Community Conservation Groups
327
cases the value of the rates relief offered may not even cover the costs to the
landowner of protecting the land, such as fencing costs.63
3. OPTIONS FOR IMPROVING NEW ZEALAND LAW
3.1 Improving Conservation Covenanting
To ensure the quality of a covenanted area many sites require ongoing pest
management, fencing to protect the area from stock, and planting or trans­
location to replace species that have already been lost.64 CCGs play an
important role in the management of native ecosystems, and improving their
involvement in covenanting processes and the management of covenanted land
could potentially improve the effectiveness of conservation covenants as a tool
for biodiversity protection. The approach to conservation covenanting taken in
Ontario, Canada, now considered, is a useful example and could be adopted
in New Zealand to increase CCG involvement and reduce the burden on the
QEII Trust as CCGs would be able to directly negotiate an agreement with a
landowner.
Under s 3 of the Ontario Conservation Land Act 1990 landowners may enter
into a conservation covenant with a “conservation body” for the purpose of
conserving, maintaining, restoring, or enhancing “all or a portion of the land or
the wildlife on the land”.65 Non-profit groups, such as CCGs that are registered
charities, qualify as conservation bodies under s 3(1) of the Act. There are three
key ways that the Act helps to overcome common law barriers to covenants.66
Firstly, under s 3(4) a conservation covenant will be valid even if the CCG does
not own land appurtenant to the covenanted land and “regardless of whether
the easement or covenant is positive or negative in nature”.67 Secondly, under
s 3(5) the covenant will run with the land, therefore is binding on successors
in title. Finally, under s 3(6) the CCG is able to take action to enforce the
covenant against the landowner and any successors in title. Providing that a
CCG effectively monitors and enforces the covenant this form of protection
can be significant in maintaining protection on private land.68 To date, Canadian
landowners have successfully implemented conservation covenants under
63 Clough, supra note 26, at 5.
64 C Binning & P Feilman, Landscape Conservation and the Government Sector (2000) 4.
65 Conservation Land Act R.S.O. 1990, c. C.28, s 3(2).
66 M Campbell, “Tools for the Protection of Ecologically Significant Private Lands in Ontario:
A Case Study of Marcy’s Woods” (2006) 17 JELP 47, at 52.
67 Conservation Land Act R.S.O. 1990, c. C.28, s 3(4).
68 Campbell, supra note 66, at 52.
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this Act to protect land from subdivision and to prevent drainage of wetlands,
construction of new dwellings, and water takings.69
3.2 Revolving Fund
One option that could be made available for CCGs to use to secure long-term
protection of conservation areas on private land is a revolving fund. A revolving
fund is a fund which allows an organisation to purchase property and place a
covenant on the title to ensure that any significant areas are protected on the
terms that the group specifies. The land is then resold with a covenant registered
on the title.70 A fund of this kind has been successfully implemented by the
Trust for Nature in Victoria, Australia. The Trust for Nature purchases land,
covenants, and then resells, managing the land in the period between purchase
and resale.71 Gunningham and Grabosky also suggest that a revolving loan
scheme that offers low-interest loans to community groups could be an effective
way of encouraging conservation work. Such a scheme could potentially benefit
groups working on both public and private land. This type of scheme would
operate by central government providing a loan fund that CCGs could apply
to for money to be used in their projects. As a group raises funds it is able to
pay its loan back, thus the loan fund is recycled and can be used to assist other
groups.72
The benefit of a revolving fund or loan is that it allows CCGs to buy land
and ensure that any significant areas are protected on terms that suit the needs of
the land without being affected by the wants and needs of a private landowner.73
This type of short-term land purchase can also be beneficial as it allows for
efficient use of limited funding because a group is not committing all of its
funds to one specific land purchase but, as the name implies, once the land has
been covenanted and resold the money from the sale goes back into the fund and
can be used to purchase further properties.74 In the case of the Trust for Nature,
part of its funding is conditional on the land purchased under its revolving fund
being resold with a covenant in place.75 Another benefit of this approach is that
69 Environment Canada, Conservation Easements as Ecological Gifts (2007) 2–4.
70 C E Binning & M D Young, Motivating People: Using Management Agreements to Conserve
Remnant Vegetation (1997) 10.
71 J A Fitzsimons, “Private Protected Areas? Assessing the Suitability for Incorporating
Conservation Agreements Over Private Land into the National Reserve System: A Case
Study of Victoria” (2006) 23 EPLJ 365, at 372.
72 N Gunningham & P Grabosky, Smart Regulation: Designing Environmental Policy (1998)
77–78.
73 Binning & Young, supra note 70, at 1.
74 Fitzsimons, supra note 71, at 372.
75 Ibid.
Conservation Covenants and Community Conservation Groups
329
it acts as a backstop method for protecting private land where landowners are
unwilling to enter into a conservation covenant. Where a CCG has identified a
need for protection on a piece of private land it can wait for the property to be
offered for sale and then purchase the land with the revolving fund.76 However, a
disadvantage of this approach is the time it may take for desired land to become
available for purchase.77 This may be beyond the timeframe possible for some
CCGs and would be more appropriately managed by a larger organisation such
as the QEII Trust, similar to how the Trust for Nature revolving fund operates in
Victoria. One body that could operate a revolving fund in New Zealand would
be the New Zealand Native Forests Restoration Trust. The Trust is one of New
Zealand’s longest-standing restoration groups, having been established in 1980,
and its track record suggests that it would be an ideal candidate for running such
a programme.78
3.3 Improving Monitoring and Enforcement
There will always be a number of landowners who will not comply, even with
regulatory mechanisms, unless there is a serious risk of enforcement. Therefore
an important factor in ensuring the success of mechanisms for protection of
conservation areas on private land is to have a system in place for enforcing
the covenant or agreement against the landowner and for this system to be used
in the event that there is a breach. By enforcing breaches of the law the state
shows that the mechanisms used have more credibility, which is likely to result
in higher levels of compliance as people realise that if they breach the law or
agreement action will be taken to enforce it against them.79 Enforcement can
be defined as “any action or intervention taken to determine or respond to noncompliance”80 and includes:81
Monitoring, inspecting, reporting, gathering evidence to detect violations,
and negotiating with individuals … to develop mutually acceptable methods
for achieving compliance. As a last step to compel compliance, enforcement
includes recourse to legal action or dispute settlement.
76 Binning & Young, supra note 70, at 32.
77 Clough, supra note 26, at 7.
78 New Zealand Native Forests Restoration Trust, Our History, at <www.nznfrt.org.nz> (last
accessed 29/01/08).
79 Binning & Young, supra note 70, at 71.
80 L F Duncan, “Enforcement and Compliance” in E L Hughes, A R Lucas & W A Tilleman,
Environmental Law and Policy (2nd ed, 1998) 326.
81 S Ercmann, “Enforcement of Environmental Law in United States and European Law”
(1996) 26 Environmental Law 1213, at 1216.
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Where enforcement is low there are likely to be lower levels of compliance
as people will not take the threat of enforcement seriously.82 Without enforce­
ment the regulatory mechanisms put in place can lose their “deterrent effect”
altogether.83
Another key factor in ensuring a mechanism is successful is monitoring.
This is important as monitoring helps to determine whether or not a project
is meeting its objectives and whether any changes are required to the scheme
to increase its effectiveness.84 Without good monitoring it is also not possible
to determine whether or not the mechanisms that are being used are the
most cost-effective option for a particular project.85 However, as discussed,
the QEII Trust does not monitor its covenants regularly, and according to the
Department of Conservation, staff monitoring of covenants under the Reserves
and Conservation Acts occurs even less frequently if at all.86 CCGs have a role
to play in the monitoring process, and because of their constant and direct
involvement on sites and with landowners they can act as stakeholder watchdogs
by reporting to the relevant organisation or government agency if landowners
are not complying with their part of the agreement.87 If CCGs were to be given
the option to become covenanting organisations as in the United States and
Canada then their ability to ensure covenants are enforced would be greatly
increased.
3.4 Conservation Easements: The American Approach to Protection on
Private Land
In the United States one of the most common mechanisms for protecting
private land is the conservation easement, with over 6.2 million acres of
land (approximately 2.5 million hectares) currently protected by local and state
land trusts using conservation easements.88 “Conservation easement” can be
defined as:89
[A] nonpossessory interest of a holder in real property imposing limitations or
affirmative obligations the purposes of which include retaining or protecting
82 Ibid.
83 Gunningham & Grabosky, supra note 72, at 45.
84 Department of Conservation, Protecting and Restoring Our Natural Heritage — A Practical
Guide (2000) 21.
85 T Stephens, “Measuring Conservation Achievement” in Department of Conservation,
Biodiversity Now: Joint Societies Conference, Wellington, 29 June – 3 July 1997. Selected
Papers (1999) 14.
86 Personal communication with Department of Conservation staff.
87 Gunningham & Young, supra note 55, at 289–90.
88 Land Trust Alliance, 2005 National Land Trust Census Report (2005) 5.
89 Uniform Conservation Easement Act 1981, § 1(1).
Conservation Covenants and Community Conservation Groups
331
natural, scenic, or open-space values of real property, assuring its availability
for agricultural, forest, recreational, or open-space use, protecting natural
resources, maintaining or enhancing air or water quality, or preserving the
historical, architectural, archaeological, or cultural aspects of real property.
This form of easement operates in a similar fashion to most forms of conser­
vation covenant used in New Zealand in that they are voluntarily entered
into and binding on successors in title.90 Most easements are entered into in
perpetuity, which means that long-term protection is usually guaranteed.91 The
landowner maintains ownership of the land but agrees to certain limitations
being placed on the use of his or her land.92 The flexibility of easements means
that to encourage landowners to protect their land a group can agree with the
landowner for certain limited development rights such as the right to build an
additional building on the site in a specified location at a later date. This can
help to reassure landowners that they will not lose the right to undertake all
developments on their land.93 Another advantage of the protection offered by
conservation easements is that it can often exist beyond the life of the CCG that
entered into the agreement as it is possible for the easement to be passed on to
another land trust in the event that the holder of the agreement is wound up.94
In the United States the key piece of legislation regarding conservation
easements is the Uniform Conservation Easement Act 1981 (“UCEA”). This
statute provided a model for each state to base its easement legislation on and
helps to overcome the common law restrictions on the use of easements.95 The
UCEA limits what kinds of organisation can hold a conservation easement to
either:96
(i) a governmental body empowered to hold an interest in real property under
the laws of this State or the United States; or
(ii) a charitable corporation, charitable association, or charitable trust, the
purposes or powers of which include retaining or protecting the natural,
scenic, or open-space values of real property, assuring the availability
of real property for agricultural, forest, recreational, or open-space use,
90 D Farrier, “Conserving Biodiversity on Private Land: Incentives for Management or
Compensation for Lost Expectations” (1995) 19 Harvard Environmental Law 303, at 343.
91 J A Gustanski, “Protecting the Land: Conservation Easements, Voluntary Actions and
Private Lands” in J A Gustanski & R H Squires (eds), Protecting the Land: Conservation
Easements Past, Present, and Future (2000) 16.
92 A E Draper, “Conservation Easements: Now More Than Ever — Overcoming Obstacles to
Protect Private Lands” (2004) 34 Environmental Law 247, at 254–55.
93 R Brewer, Conservancy: The Land Trust Movement in America (2003) 146.
94 Ibid, at 161.
95 Gustanski, supra note 91, at 11.
96 Uniform Conservation Easement Act 1981, § 1(2).
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protecting natural resources, maintaining or enhancing air or water quality,
or preserving the historical, architectural, archaeological, or cultural
aspects of real property.
All states but one in the United States have adopted an easement statute in
varying forms.97 Each statute provides rules on who can be the holder of a
conservation easement, but in most states the holder of the easement will either
be a government body or a CCG.98 Some states require that a CCG has been
formed for a minimum of two years to ensure that the group is stable enough
to enforce a conservation easement.99 The CCG negotiates the easement with
the landowner and once the agreement is registered it is the responsibility of
the group to enforce the agreement against the landowner if the terms of the
easement are breached.100 Because, in the majority of cases, a landowner will
have purchased the land subject to the easement with notice of the encumbrance
it is unlikely that a future landowner will be able to have the easement overruled
on the basis that the easement is damaging to his or her economic interests.101
The easement document sets out the terms of the access arrangement
between the parties. It is registered on the title of the property concerned
and therefore will be binding on future owners. This helps to ensure access
and/or protection in the long term. The landowner retains legal ownership of
the property, in much the same way as occurs with conservation covenants in
New Zealand, but confers on a public agency or approved CCG the right to
enforce restrictions upon the land as set out in the easement agreement. These
often involve restricting development on the land to prevent adverse impacts
on significant natural areas.102 In a traditional sense, agreeing to an easement
means that the landowner will provide a right of access onto their land to a third
party whose entry to the property would otherwise be considered trespassing
unless some other form of licence had been given by the landowner. In the case
of a conservation easement, access is not always provided; rather, the easement
agreement will confer on the easement holder a right to enforce the conditions of
the agreement against the landowner — for example, to prevent the landowner
from cutting down trees in the area covered by the easement.103 Where possible,
it is helpful if easements are drafted in more general terms, as terms that are too
97 J O Lippmann, “Exacted Conservation Easements: The Hard Case of Endangered Species
Protection” (2004) 19 J Envtl Law and Litigation 293, at 307.
98 Ibid, at 298.
99 T D Mayo, “A Holistic Examination of the Law of Conservation Easements” in Gustanski
& Squires (eds), supra note 91, at 39.
100 Gustanski, supra note 91, at 16.
101 N A McLaughlin, “The Role of Land Trusts in Biodiversity Conservation on Private Lands”
(2002) 38 Idaho Law Review 453, at 470.
102 R H Platt, Land Use and Society: Geography, Law, and Public Policy (1996) 104–5.
103 Ibid.
Conservation Covenants and Community Conservation Groups
333
specific may make the easement easier to break by a future landowner and may
raise the issue of enforcement for the CCG involved.104
The UCEA specifically modifies the common law on easements to ensure
that it cannot be used to weaken an easement in the same way that may occur
with easements in New Zealand. The UCEA provides:105
A conservation easement is valid even though: (1) it is not appurtenant to an
interest in real property; (2) it can be or has been assigned to another holder;
(3) it is not of a character that has been recognized traditionally at common
law; (4) it imposes a negative burden; (5) it imposes affirmative obligations
upon the owner of an interest in the burdened property or upon the holder; (6)
the benefit does not touch or concern real property; or (7) there is not privity
of estate or of contract.
At common law there are three main forms of easement: positive, negative, and
in gross. A positive easement may either provide the owner of the dominant
tenement, that is, the land whose favour the easement is for, with a right to
undertake certain activities, that would normally be considered trespass, on
a neighbouring property known as the servient tenement;106 or, be used to
“prevent a landowner from using his or her land in a particular way”.107 At
common law the owner of the servient land was generally not required to take
any action.108 This has been altered by s 294 of the PLA 2007 which provides
that an easement created after 1 July 1987 can be enforced against the owner
of the servient land if he or she fails to undertake positive actions required by
the easement. Negative easements, on the other hand, require the owner of the
servient land to refrain from certain activities, and if the servient owner does not
comply then the dominant owner has the right to enforce the easement against
the servient owner.109
A conservation easement is a generally negative easement in the sense that it
prevents the landowner from being able to use his or her land in a certain way.110
At common law only a narrow range of negative easements were allowed. These
included “certain water rights, rights of support for buildings, and rights to
104 D G Collins, “Enforcement Problems with Successor Grantors” in Gustanski & Squires
(eds), supra note 91, at 164.
105 Uniform Conservation Easement Act 1981, § 4.
106 For a more detailed examination of the law of easements see Hinde, Campbell & Twist,
supra note 8, at 989–1049.
107 Ibid, at 993–94.
108 Jones v Pritchard [1908] 1 Ch 630, at 637.
109 Hinde, Campbell & Twist, supra note 8, at 1005.
110 Mayo, supra note 99, at 31. In the United States, conservation easements are not entirely
negative and it is possible for easement terms to require that a landowner also takes positive
actions such as fencing.
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light and air”, and, as the class of negative easements is now closed, further
exceptions are unlikely to be accepted by the courts.111 This presents a prob­
lem to conservation easements at common law in New Zealand and requires
legislative intervention if conservation easements are to become useful tools
for the protection of private land. However, if a conservation easement statute
is enacted in New Zealand it would be helpful for the statute to specifically state
that positive acts are enforceable to restrict the likelihood of the easement being
successfully challenged in the courts.112
The third form of easement, an easement in gross, can be distinguished
from the first two forms as it is not essential that the easement encumber a
separate piece of land but may be created, in favour of any person, to burden
the land of the covenantor;113 in other words, the easement is not appurtenant to
neighbouring land.114 Section 291 of the PLA 2007 allows easements in gross to
be created and to run with the land, which ensures an easement will be binding
on successors in title. Because a conservation easement has no dominant
tenement it is also an easement in gross.115 Further, a conservation easement
is negative in the sense that it generally requires a landowner to refrain from
certain activities, and it is not attached to a particular piece of land. Technically,
a conservation easement may be “like a negative easement in gross”.116 At
common law such an instrument would not be enforceable.
Prior to the enactment of easement-enabling statutes in the United
States, courts were reluctant to enforce conservation easements because
they ultimately have the effect of allowing a past landowner to control what
present owners are able to do with the land.117 As New Zealand does not have
a conservation easement statute like the UCEA, conservation easements would
remain vulnerable to common law doctrines and it would be hard for a CCG
to negotiate an easement that could be successfully enforced. Conservation
easements would also be weak under current New Zealand law because s 317
of the PLA 2007 allows easements (and covenants) to be extinguished in a wide
range of situations including: a change in the nature or extent of the use being
made of the benefited land, the burdened land, or both; changes in the character
of the neighbourhood; and other circumstances that the court considers relevant.
Therefore, if New Zealand CCGs are to obtain the benefits of conservation
111 Hinde, Campbell & Twist, supra note 8, at 1005.
112 Mayo, supra note 99, at 31–34.
113 Property Law Act 2007, s 291.
114 Hinde, Campbell & Twist, supra note 8, at 994.
115 Draper, supra note 92, at 252.
116 P M Morrisette, “Conservation Easements and the Public Good: Preserving the Environment
on Private Lands” (2001) 41 Natural Resources Journal 373, at 380.
117 J Tapick, “Threats to the Continued Existence of Conservation Easements” (2002) 27
Columbia Journal of Environmental Law 257, at 267–68.
Conservation Covenants and Community Conservation Groups
335
easements, it would be necessary for Parliament to enact legislation similar to
that of the United States.
One of the significant advantages of conservation easements for CCGs is that
groups do not need to rely on a public agency to negotiate, monitor, and enforce
an agreement, and the terms of the agreement can be specifically negotiated
to meet the needs of the landowner, the CCG, and the local community. 118
CCGs can help educate landowners about easements and assist them through
the process of donating or selling an easement on their land.119 Cheever and
McLaughlin argue that landowners are likely to find conservation easements
more attractive than government-led approaches such as regulation because:120
(1) the sale or donation of an easement is a voluntary transaction; (2) the
restrictions placed on the development and use of land in an easement can be
tailored to the particular characteristics of the land and the particular desires of
the landowner; (3) the landowner can continue to farm, ranch, and otherwise
use the land in ways not inconsistent with the conservation purposes of the
easement; and (4) there is no requirement that the public be granted access to
land encumbered by a conservation easement.
It is up to landowners to determine whether they want to enter into a con­
servation easement, therefore it is likely that where there are incentives offered
to encourage easements there will be a higher uptake.121 In the United States
landowners are provided with significant tax benefits for agreeing to a con­
servation easement. They can be used to help motivate reluctant landowners
to become involved with CCGs or to assist those landowners who would not
otherwise be able to afford protection on their land to seek the protection
that they would like.122 Tax deductions are offered for the difference in value
of private land before covenanting and the value afterwards. A tax rebate is
available for the difference in value.123 New Zealand landowners are offered
“no income tax advantages” to encourage them to enter into an agreement to
118 Gustanski, supra note 91, at 22.
119 S E Richardson, “Applicability of South Carolina’s Conservation Easement Legislation
to Implementation of Landscape Conservation in the ACE Basin” in Gustanski & Squires
(eds), supra note 91, at 217.
120 F Cheever & N A McLaughlin, “Why Environmental Lawyers Should Know (and Care)
About Land Trusts and their Private Land Conservation Transactions” (2004) 34 ELR
10223, at 10227.
121 Draper, supra note 92, at 250.
122 J Boyd, K Caballero & R D Simpson, The Law and Economics of Habitat Conservation:
Lessons from an Analysis of Easement Acquisitions: Discussion Paper 99-32 (1999) 2.
123 T Kabii & P Horwitz, “A Review of Landholder Motivations and Determinants for
Participation in Conservation Covenanting Programmes” (2006) 33 Environmental
Conservation 11, at 14.
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covenant their property,124 and little in the way of rates relief. Therefore, the
development of a tax relief scheme may be beneficial in encouraging increased
conservation on private land. Such a scheme could be most effective in securing
long-term protection if the tax advantages were to be offered to landowners who
choose to protect the native bush on their land in perpetuity with a covenant.125
As with other mechanisms, the effectiveness of conservation easements
is only certain if there is monitoring and enforcement to ensure that the terms
of the agreement are being met.126 It is important that CCGs are aware of
the potentially high costs of enforcing easements when determining whether
they have the capacity to take on an easement of a certain scale, otherwise
the purpose of entering into the agreement may not be fulfilled.127 Where land
changes ownership then it is possible that action may have to be taken to enforce
the easement. This may lead to a group having to take or defend proceedings
in the courts in order to have the terms of the agreement upheld.128 If an ease­
ment holder fails to enforce the rights that they have under the agreement then
this may be considered abandonment and could allow the courts to terminate
the easement at the request of a landowner.129 This highlights the importance of
ensuring that a conservation easement is enforced. Adam Draper argues that to
ensure long-term protection it is desirable for there to be a right of “third-party
enforcement” so that a conservation organisation or public body can take an
action to enforce the easement against the landowner if the CCG who negotiated
the agreement does not have the capacity to pursue it.130 One way that this
could be done would be for a government authority to be given third-party
enforcement rights.131
However, as considered, without a statute such as that used in the United
States, conservation easements are often hard to enforce.132 Therefore, if New
Zealand CCGs are to gain the benefits associated with conservation easements,
it will be necessary for the New Zealand Parliament to enact legislation similar
to the UCEA to overcome the current barriers to their creation. Enacting a
conservation easement statute does not require substantial modification of
the law as “it is based on the prevailing view of private property rights as
124 Donahue, supra note 4, at 134.
125 C Binning & M Young, Talking to the Taxman About Nature Conservation: Proposals for
the Introduction of Tax Incentives for the Protection of High Conservation Value Native
Vegetation (1999) 31–32.
126 J Pidot, Reinventing Conservation Easements: Critical Examination and Ideas for Reform
(2005) 18.
127 Ibid, at 6.
128 Ibid, at 19.
129 Draper, supra note 92, at 266.
130 Ibid, at 276.
131 Lippmann, supra note 97, at 353.
132 Collins, supra note 104, at 165.
Conservation Covenants and Community Conservation Groups
337
transferable commodities” which is already part of New Zealand law because of
the common law roots.133 In fact, other forms of statutory easement already exist
in New Zealand to evidence the possibility that a conservation easement statute
could be enacted. For example, under ss 26–31 of the New Zealand Walking
Access Act 2008 statutory provision has been made so that easements can be
entered into and declared by the New Zealand Walking Access Commission to
create public walkways on private land.
4. CONCLUSION
This article has demonstrated the inadequacies in the law relating to conser­
vation covenants in New Zealand and its failure to effectively provide for the
involvement of community conservation groups in the protection of private land.
While landowners do currently have the option to protect their land through
covenants, these mechanisms do not ensure that community conservation groups
that have been involved in restoring the land will be guaranteed involvement if
the ownership of the land changes. What is needed is for legislation in New
Zealand to reflect the important role that community conservation groups play
in the conservation of fragments of native bush on private land, by providing
mechanisms for them to directly negotiate covenant or easement agreements with
landowners. This would greatly facilitate increased protection of biodiversity on
private land in a way that cannot occur under the present structures. Community
groups often have better results at communicating with private landowners
than government departments. The groups are not only well placed to negotiate
agreements that suit the landowner and the local community, but are more likely
to ensure that the project is monitored regularly. By creating such options, the
burden that the QEII Trust is currently under could be reduced and it would
allow the Trust to focus on the multitude of covenants that it already administers.
The legislative examples from the United States and Canada could be adopted
into New Zealand law. As has been shown by their successes, the provisions
would facilitate greater involvement of community conservation groups in the
protection of the environments that are precious to those communities.
133 McLaughlin, supra note 101, at 467–68.