The enforceability of conservation easement agreements in Alberta

Abstract

Conservation easement agreements may be granted by landowners for the purpose of conserving, protecting and enhancing the environment including biological diversity, natural scenic and esthetic values on privately owned land as authorized by clauses 22(2)(a)(b) and (c) of the Environmental Protection and Enhancement Act. The goal of this thesis is to analyze whether conservation easements registered on the certificates of title to land in Alberta will be enforceable against the original grantors and subsequent owners of the land. Some of the purposes of the conservation easement agreements collected may not fall within the statutory purposes. An analysis of the terms of the conservation easements collected shows that there are restrictions on the uses of land; however, there are exemptions to those restrictions. Some essential terms in the restrictions and exemptions are undefined and may be void for uncertainty. Because conservation easements are similar to restrictive covenants they may be strictly construed. Challenges to the enforceability of conservation easement agreements may be reduced by including provisions that deal with third party impacts including resource development and access easements, interpretation, severability, amendment, modification, baseline reports, and general restructions and residual rights. There may be remedies, such as severance and modification pursuant to subsection 48( 4) of the Land Titles Act or clauses 22(7)( a) and (b) of the Environmental Protection and Enhancement Act, and amendment by agreement which a court might use to save an otherwise unenforceable conservation easement agreement. There are dispute resolution mechanisms including arbitration available to the parties to reduce the time, effort and expense of resolving disputes.