The term “conservation easement” has likely been heard on the news, in the provincial legislature, and in everyday conversations more times in the last few weeks than in all the years that conservation easements have been protecting nature in Nova Scotia.

Easements rose to the spotlight in early March, when the government introduced changes to Nova Scotia’s Conservation Easements Act as part of the Financial Measures Act (Bill 198). While introduced as simple administrative improvements, significant negative impacts of the amendments were quickly flagged. A whirlwind of activity followed, raising significant public interest, concern and many questions, starting with “What exactly is a conservation easement, anyway?”

So before diving in, we’ll provide some Conservation Easements 101.

A conservation easement is a legal agreement designed to protect the natural values of a property, restricting activities that could harm those values. Conservation easement legislation was first created in Nova Scotia in 1992, followed by the current Act, created in 2001. The Act provides a legal tool enabling landowners to protect nature on their land while retaining ownership. The landowner can continue to own and use the land and can pass it on to heirs or sell it, but the easement runs with the deed so it binds any future owners of the land to the same level of ecological protection. The easement may apply to all or part of a property, and each is uniquely customized to best meet the conservation values of the particular property and the landowners’ vision for their land now, and into the future.

The Conservation Easements Act also empowers organizations designated through the Act’s regulations, to hold such agreements, and to legally enforce the easement’s restrictions. Eligible bodies under the Act include land trusts, Mi’kmaw communities and organizations, and all levels of government.

*To dispel some common confusion about easements: Nova Scotia also has a Community Easements Act, focused on protecting public access, cultural or archaeological values, and particular land uses such as ecological forestry and farming. The same amendments were proposed to that Act and have now been withdrawn. Other types of easements such as those providing a neighbour with right of way across a property, or a power company the right to a power corridor across private property, are an entirely different legal tool, unrelated to either Act).

With so much of Nova Scotia’s land in private ownership, and those lands supporting disproportionate ecological significance, our private land conservation work is a critical complement to the government’s public lands-focused efforts if we are to truly protect Nova Scotia’s biodiversity. Protecting private land is essential to achieving Nova Scotia’s Collaborative Protected Areas Strategy and 20% by 2030 commitment. Private land conservation is the unique niche of the Nature Trust.

Nova Scotians are deeply connected to the land. Many landowners take immense pride in their multi-generational stewardship of family lands. While donating or selling their land is one tool for protecting private land, conservation easements enable landowners to protect nature on their land while continuing to own and enjoy their property, and to keep land in their family.

Conservation easements provide an irreplaceable and powerful tool for landowners to take conservation action on their own lands while ensuring that their conservation vision will endure, for generations to come. Easements empower landowners to play an essential role in protecting Nova Scotia’s natural legacy. They also provide Nova Scotia with a creative way to protect nature, in a province where so much of our most essential ecological areas are in private ownership.

Many families, organizations, and the Province itself have already made that commitment through conservation easements with us, through 34 conservation easements protecting almost 8,000 acres of irreplaceable biodiversity.

Our easements include cottage owners collectively safeguarding the headwaters of the Gold River, and families protecting coastal wilderness in the Mabou Highlands and urban wildlands in the Blue Mountain Birch Cove Lakes. They include Municipalities protecting land important to their communities, like the spectacular Cape LaHave Island and the towering forests of the Wolfville Watershed Nature Preserve. Acadia University has protected the world-class research, educational, and ecological gem of Bon Portage Island, as well as Hemeon’s Head and Partridge Island. Together with visionary Nova Scotian landowners, the Nature Trust has been able to achieve Canada’s first easement protecting Municipal lands, first easement on lands owned by a University, and Canada’s first cross-border conservation easement through the American Friends of Canadian Conservation, breaking down legal, tax and other barriers and opening new opportunities for conservation across Canada.

The Nature Trust is the largest easement holder in Nova Scotia, but conservation easements are a tool used by many organizations to help protect nature and biodiversity. In all, conservation easements protect 51 special natural areas across Nova Scotia, through 5 conservation organizations taking on their care and stewardship of those lands, in perpetuity. None of these lands would be protected if conservation easements were not available.

The proposed amendments to the Act created a pathway for future landowners to undo an easement through application to the court based on hardship. Adding a way to undo easements, perhaps intended to remove legislative burden, is contrary to the whole legal basis and intent of easements as a legally binding, permanent contract. It undermines the conservation purposes of the Act.

The amendment enabled future owners to seek easement termination, without the easement holder even knowing, without due process or consideration of the holder’s rights under a legally binding contract. It also did not account for the public interest and benefits of that easement, like wild spaces to connect to nature or the ecological services that protected land provides such as protecting biodiversity, sequestering carbon, or preventing flooding and erosion.

The amendments also greatly increased the risk of easements failing by removing the current framework for easement succession and durability. Under the current Act, if an easement holder is no longer able to uphold their easement responsibilities, the Minister must notify all potential easement holders in the province, giving those organizations with the expertise, capacity, and mandate of nature conservation the opportunity to step in and take over easement responsibility, thus ensuring easement succession and permanence. The amendments removed any notice requirement, depriving the conservation community the chance to keep the easement intact and leaving the landowner free to terminate the easement, subject only to the approval of the Minister.

By creating a pathway for landowners to terminate easements and removing a critical pathway for easement succession, the amendments increased the risk of easements failing or being terminated, undermining the core foundations of permanence, trust and certainty upon which conservation easements depend.

The proposed amendments could have put all 51 Nova Scotia conservation easements at risk. Moving forward, easements would be untenable for both landowners and the organizations able to hold conservation easements to help the province in protecting Nova Scotia’s natural legacy.

In committing to a conservation easement on their lands, the landowner voluntarily gives up certain property rights and economic value, such as developing a shoreline that hosts endangered plants or cutting an old growth forest critical for wildlife. Landowners make that incredibly generous commitment based on trust that the easement will safeguard those natural values, in perpetuity.

Certainty and trust in easements lasing in perpetuity is also the foundation upon which land trusts take on long-term responsibilities and liabilities of holding easements and commit tremendous resources required for their establishment, monitoring, stewardship, and enforcement. Biodiversity conservation requires permanence.

Introducing uncertainty and risk to easements would undermine the credibility of conservation organizations, with a chilling effect on donor and funder trust and confidence, at a critical time for attracting funding to Nova Scotia. Governments, foundations, businesses, and communities support land trusts and land conservation based on the promise of nature being protected, forever.

Easement terminations could create significant and complex legal and financial liabilities for both easement holding organizations and the original easement donors. The legal precedents set in Nova Scotia could have had a devastating impact on easement resilience and legal defence all across Canada. By removing that guarantee of permanence, the proposed amendments would have jeopardized charitable tax benefits for easements, and even jeopardized easements meeting national and global standards to qualify as protected areas, so they could no longer be counted in Nova Scotia’s contribution to Canada’s 30×30 target, and Nova Scotia’s own 20×30 commitment.

The Nature Trust has been so fortunate to work together with many landowners over the past three decades, who generously dedicated their lands to conservation for the benefit of all Nova Scotians. We are proud of our collaborations and pioneering innovations around conservation easements.

Seeing those achievements and the future viability of conservation easements in Nova Scotia at risk, we took immediate action. Since learning of the proposed amendments, our team has been speaking with other land trusts, easement holders and legal experts locally and across North America, and with our easement donors affected by these changes, learning all we could about the potential impacts of the proposed changes, best practises for legislation and options for Nova Scotia’s Easements Act.

We reached out to the relevant Ministers and our colleagues at Natural Resources and Environment and Climate Change, the Premier’s Office, and to other Members of the Legislative Assembly. We were the first to speak at the Public Bills Committee session, the official forum for public input on legislation in the province (which you can watch here). Easement donors, concerned citizens, and representatives of other easement-holding organizations also spoke, presenting a strong united case for the importance of conservation easements and the damaging potential impacts of the proposed changes to the Act.

We greatly appreciate the response of staff at Natural Resources who heard our concerns and helped to bring the unintended negative impacts of the amendments to the attention of senior staff and Ministers. We worked together to explore alternative solutions to address government goals to modernize the Act and reduce administrative burden while ensuring effective, permanent conservation for nature.

We are also grateful to all of you: our generous conservation easement donors, supporters, land trust and conservation colleagues, and other concerned citizens who reached out to us and to the government to express your concerns. Your passion, unique perspectives and expertise made all the difference.

The government heard these concerns and is not proceeding with proposed amendments. We applaud this decision and will gladly bring our expertise and the collective wisdom of Canada’s land trust community to help in working together with the Province to review and improve the Conservation Easements Act in the months or years ahead.

Together, we stood up for nature when it needed us most. Conservation easements are safe. The permanence, trust, and certainty upon which they depend has been restored.

Thank you to everyone who played a part in ensuring that conservation easements will continue to be a powerful, trusted tool for protecting Nova Scotia’s natural legacy, in perpetuity.