The Forest Covenant

It sounds like a movie – perhaps a sequel to Lord of the Rings.

Remember the characters? The Hobbits, who are simple and worldly, live in Middle Earth. The Elves, who are kind-hearted, strong and wise, live on an altogether higher plane of existence. The Orcs are brutal monsters. The Dwarves are obsessed with gold. The Ents are the trees themselves, willing to battle to protect justice, goodness and nature. So let’s start.

The Hobbits’ beloved forest in Middle Yellow Point is threatened by an army of Orcs armed with horrible tree-destroying machines. The Elves show the Hobbits how they can protect the forest by using The Forest Covenant, but the Hobbits must first overcome the Dwarves, who have transferred their love of gold to a new love of legalese, with its deep impenetrable prose. As Guardians of the Obscure it is their task to ensure that the Hobbits dot every eye and cross every tee before they are permitted use of the Covenants that can save their forest. Meanwhile, the Orcs move closer every day. Can the ancient tree-people, the Ents, help the Hobbits as they struggle to reach agreement among themselves and win the Dwarves’ support before the Orcs arrive?

We Seek Advice from a Fellow Hobbit

To aid them in their quest the Hobbits sought the advice of Keith Erickson, a fellow Hobbit from the Galiano Conservancy Association who has lived among the Dwarves and knows their ways. Gathered around a cozy woodstove one winter morning in November, he told us about the eyes and the tees.

A Conservation Covenant, he explained, is a legal document stemming from Section 219 of BC’s Land Titles Act that specifies which parcel of land is to be protected, and by what means. The Covenant is registered on title, and it runs with the land in perpetuity – for a thousand years or more.

The land in question must be surveyed. A Covenant can restrict the types of activities that can occur on the land, including whether it can be subdivided or developed. If you want you can prohibit the use of pesticides, alterations to the hydrology or the removal of vegetation. You can allow activities that achieve ecological restoration, or recreational activities such as hiking on designated trails, and you can allow for the carefully defined management of the land, such as ecoforestry-based logging, or cutting a limited amount of firewood and felling danger trees.

The Dwarves Love Land Trusts

The Covenant must be held by two recognized Land Trusts, such as the Nanaimo Area Land Trust to provide additional security and stability. The organizations must be committed to monitor the land consistently with inspections every one to three years, to ensure that the landowner is upholding the terms of the Covenant. They can also be held by government entities such as the CVRD, RDN or Ministry of Forests.

A typical inspection of a small parcel of 10 to 20 acres might take a day, including a meeting with the owner and the related administrative work, which is done by trained staff or volunteers from the Land Trust, overseen by the dwarves. It is standard practice for the Land Trust to seek an endowment from the land-owner to cover these inspection and administrative costs over the long-term, ensuring their ongoing capacity to monitor and enforce the Covenant. Endowment amounts vary depending on the size and location of the land, the complexity of the monitoring and the circumstances surrounding each agreement. It is not uncommon for a land-owner to be asked to give an endowment in the range of $10-$20,000, the interest income from which, at an assumed 3 to 4% a year, covers the cost of inspections.

Saving Money by Saving the Forest

In the Gulf Islands, a Natural Area Protection Tax Exemption Program provides a 65% property tax exemption of the assessed value of land covenanted under the program, so the tax-savings from the first year could cover the cost of the survey. The Land Trusts Alliance of British Columbia, with 36-member trusts, is promoting the establishment of a province-wide Conservation Tax Incentive Program.

Property tax incentives also apply on lands classified as Private Managed Forest by BC Assessment to encourage private landowners to manage their lands for long term forest production. A minimum of 25 hectares is required, but the property may consist of more than one parcel if they are contiguous. The program requires a signed Management Commitment that is filed with the governing Council, along with yearly declarations and reporting on harvesting and other forest management activities. This does not provide protection to the forest, but simply encourages forest management. There are no provisions within this program for ecoforestry, and clearcutting is considered an acceptable method of harvesting. Owners of land with this classification are assured of the right to harvest trees, unrestricted by local government bylaws. While it does not promote ecoforestry values, the Private Managed Forest Act could be used by ecoforesters to reduce property taxes on their land.

Covenants are most effective when they are based on a standard legal template. The addition of ecoforestry clauses makes things more complicated, because the Dwarves want legal clarity down to the minutiae (a legal word they love), and ecoforestry – well, forests don’t work that way. Hard rules are easy to follow. Ecoforestry rules can potentially make things more difficult to monitor and enforce.

A Sustainable Forestry Covenant

Keith told us that they have created a sustainable forestry covenant on Galiano that allows logging using sustainable methods and an annual allowable cut of four cubic metres per hectare per year – roughly the equivalent of four telephone poles. If an increased cut is desired, a ten-year management plan acceptable to the Land Trust must be prepared by a Registered Forest Professional. Such a situation has not arisen yet, so they have no experience to go on. The BC Truck Loggers Association estimates that a typical second growth forest contains 400-600 cubic metres of timber per hectare. In a covenanted ecoforest, if harvesting was allowed at an assumed annual growth rate of 4% a year or less, this might yield 16 to 24 cubic metres per hectare per year, which would be represented in the management plan.

The advantage of ecoforestry is that it delivers a continuous timber supply from a cohesive managed forest, feeding local mills and contributing to a circular economy in which the whole landscape functions, growing wood and offering local value-added potential. The challenge is to define such harvesting in tight legal language. One possibility might be to define it negatively, allowing no harvesting that would create a clearcut larger than (for instance) 400 square metres. This is unknown territory, but the Covenant must be written in a way that will keep the Dwarves happy.

What Happens if the Orks Seize Control?

What happens if a future landowner sides with the Orks and says “I want the timber – screw the Covenant”? This is where the penmanship of the Dwarves comes in, for the Land Trust that holds the Covenant can enforce the regulations through charges (known as rent charges) or penalties that comes into effect if the covenant is in breach. The charges can be fixed or can vary according to the damage that has occurred. In the case of overharvesting, a common method is to levy a penalty of 200% of the market value of timber removed. If necessary, a covenant includes provisions that allow the holders to take the landowner to court. The covenant also can require him or her to restore the damage and restock the ecosystem, or enable the Land Trust to complete the work at the owner’s expense. Hard rules and photographs of a breach make it is easier for a Land Trust to enforce the breach, or if necessary, for the court to make its judgment.

What size parcel is best suited to a covenant? Keith replied that in most instances larger is better. A land trust with limited capacity and resources must be able to justify the expense and commitment of a covenant through the resulting ecological benefits.  On the other hand, if a group of landowners with smaller parcels live close to each other and make a cooperative arrangement, the inspections could be cheaper, with a single visit to the properties and a shared meeting – a celebratory occasion that people would look forward to each year when they would share forest wisdoms.

Another Possibility

Another possible way to protect the forest, Keith explained, is through a partnership with the local or regional government, a Land Trust, and a forest management group such as the Ecoforestry Institute Society. It would be based around the use of Section 99(a) of the Land Title Act, which allows a parcel to be subdivided creating one lot that would be transferred to the government body and a remainder lot that would stay with the landowner, with no road dedication or other typical requirements.

The notion here is that landowners wishing to protect their forest who consider ecoforestry management to be more important than private ownership could give ownership of the subdivided lot to the government body, to be protected and managed accordingly. The government would:

• subdivide the parcel(s) to be protected under Section 99(a),
• zone them for ecoforestry,
• potentially place a single ecoforestry covenant on them, and
• sign a forest management contract with an organization such as the Ecoforestry Institute Society that would manage the land in such a way that old growth composition, structure and function were gradually restored.

The landowners would surrender their ownership, but the forest would remain in their backyard forever and be managed as an ecoforest, a status which would hopefully be valued by future owners. If adjacent landowners felt the same way they could work together to create a single protected parcel of ecoforest that would be owned and managed by a single entity. It would be a complex project involving multiple partners, but it would provide a lasting guarantee of forest protection.

We Forest-Loving Hobbits Need to Gather!

What comes next? There are many forest land-owners in the Cedar-Yellow Point area, and some of us may be interested to place ecoforestry covenants on our land, or to pursue the Section 99 route. We Hobbits need to gather, and mull things over, over a mug of mulled ale.

If you would like to join us for such a gathering, at a time and place to be determined, please email us at yellowpoint2020@gmail.com

Guy Dauncey 250-924-1445