Legal instruments in private land conservation: the nature and role of conservation contracts and conservation covenants

Abstract

Management of private land for ecological outcomes has emerged as an important facet of biodiversity management and ecological restoration in Australia. Common law conservation contracts and conservation covenants are important tools within this framework of private land conservation. They can provide legal protections to biodiversity and natural assets on private land, as well as legal frameworks, in the form of obligations, to restoration programs. They can provide distinct qualities of binding obligation: fixed term or enduring. Conservation contracts and covenants need to be recognized as possessing both transactional and relational qualities, and these qualities should be considered and reflected in the design of agreements and in practices of conservation management and agreement-making. Two design questions are considered in this article. Conservation agreements need to contend with dynamism in ecological and social realities and this may be accommodated in mechanisms for adjustment of obligations between or within agreements. Dispute management is a second field of practice and drafting requiring attention. Constructing disputes provisions that are adapted and appropriate to long-term conservation actions and restoration initiatives is reflective of good faith principles and can include scope for graduated, independent, corrective, and fair arrangements, informed as necessary by expert input. Implications for Practice• Conservation contracts and covenants are important instruments for agreement-based conservation management and due regard should be given to design of those agreements, including legal content, and impacts on conservation practice. • Conservation contracts and conservation covenants should be viewed in terms of relational, as well as transactional, characteristics of agreements. • Conservation contracts and conservation covenants should contemplate and incorporate measures for adaptation and adjustment of obligations and for appropriate dispute resolution.

Landowner and Practitioner Perspectives on Private Land Conservation Programs

“…There are trade-offs in easing certain rules, but maintaining communicative relationships between practitioners and landowners is a key for allowing CRP to persist in a changing economic climate. Modifying the CRP enrollment process to allow practitioners and landowners to create individualized conservation plans that are appropriate and effective for the particular place and landowner could provide flexibility the program needs to persist in the future (Lindsay 2016). This process of shared learning and decision-making between practitioners and landowners can lead to greater satisfaction and continued institutional trust that ensures future reenrollment and sustained conservation on private lands.…”

Restoration dialogues: improving the governance of ecological restoration

“…The relative importance and interactions between these criteria for success vary with contexts, such as between places under public and private control. Restoration in the former, as in the oceans (Vince & Hardesty ) and Antarctica (Raymond & Snape ), elevates the state to a preeminent position whereas in the latter, such as Aboriginal lands (Godden & Cowell ) or agricultural property (Curtis & Lefroy ; Lindsay ), governance depends on more collegial and grassroots approaches. The next section distils key governance challenges for ecological restoration.…”

“…The foregoing considerations necessitate governance mechanisms being tailored to different scales of restoration. Noncoercive, private law techniques may dovetail with expansive landscape restorations on private property (Lindsay ), whereas remediation of a contaminated brownfield is better targeted with rules that discipline companies to pay the costs (Richardson ).…”

“…Ecological restoration often requires significant capital and labor, especially when toxic contamination must be removed (Raymond & Snape ). Three main resourcing sources exist: (1) government expenditure, especially in regard to places under public ownership and control, or private expenditure pursuant to government obligations such as under a regulatory requirement or conservation covenant (Lindsay ); (2) voluntary philanthropic money such as to support community projects (Jones & Davidson ), and (3) commercial approaches such as selling biodiversity and carbon offsets or ecotourism opportunities or even altruistic gestures of corporate social responsibility (Richardson ). Assuming such costs are justified—a matter of great importance for criteria (2) and (3)—who should pay for this and how?…”

“…Its preeminence owes to its respect and legitimacy, its coordinating capacity, its sanctions‐backed power, and its administrative apparatus (Summers ). “Restorations Dialogues” canvassed the role of law in many contexts, such as regulating private land management (Lindsay ), empowering Indigenous land use (Godden & Cowell ), and coordinating action internationally to remove ocean plastic debris (Vince & Hardesty ) or remediate Antarctic waste dumps (Hodgson‐Johnston et al ).…”