Exploring the Permanence of Conservation Covenants

Conservation on private land is a growing part of international efforts to stem the decline of biodiversity. In many countries, private land conservation policy often supports in perpetuity covenants and easements, which are legally binding agreements used to protect biodiversity on private land by restricting activities that may negatively impact ecological values. With a view to understand the long‐term security of these mechanisms, we examined release and breach data from all 13 major covenanting programs across Australia. We report that out of 6,818 multi‐party covenants, only 8 had been released, contrasting with approximately 130 of 673 single‐party covenants. Breach data was limited, with a minimum of 71 known cases where covenant obligations had not been met. With a focus on private land conservation policy, we use the results from this case study to argue that multi‐party covenants appear an enduring conservation mechanism, highlight the important role that effective monitoring and reporting of the permanency of these agreements plays in contributing to their long‐term effectiveness, and provide recommendations for organizations seeking to improve their monitoring programs. The collection of breach and release data is important for the continuing improvement of conservation policies and practices for private land.


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It is widely recognized that stemming the decline of biodiversity requires a greater focus on 41 conservation efforts targeting private land. With private land covering a large part of the 42 terrestrial landmass and supporting important biodiversity, its significance for conservation is 43 gaining prominence in many countries, including Australia, Canada, the USA, New Zealand, Chile consequences of private land conservation mechanisms (Merenlender et al. 2004). 55 Of growing importance in private land conservation policy is the establishment of Private 56 Protected Areas (PPAs) -a protected area, as defined by the IUCN (Dudley 2008), under private 57 governance (Stolton et al. 2014). PPAs are established in different ways in different countries, 58 and the mechanisms used to protect biodiversity through legal or other effective means also 59 vary. Here, we investigate two components central to private land conservation policy; the 60 permanence (duration) and security (resistance to removal) of conservation agreements with 61 landholders, focusing on conservation covenants as one form of PPA. We focus on examining 62 these issues in Australia, which has a large number of individual conservation covenants 63 (Stolton et al. 2014;Fitzsimons 2015). We first provide background information on our case 64 This article is protected by copyright. All rights reserved.
Related to permanence is an agreement's strength (its 'security'), which refers to the level of 114 authority required to establish, alter and/or terminate or extinguish ('release') that agreement 115 (Fitzsimons 2006 Figure 1), compared to public protected areas, which saw considerable expansion in 134 the mid to late 20 th Century and some 274 (3.6%) of which are over 100 years old (DotE 2014). 135 Beyond these broader issues, a particular challenge for private land conservation policy globally 136 is the identification and enforcement of 'breaches', which are instances of landholders failing to 137 meet their obligations or violating the conditions of their agreement in some way (Owley 2011).
Breaches can vary in severity, and in extreme cases could lead to a release of the covenant. It is 139 possible that the reasons behind breaches are similar to releases, and understanding these 140 could allow for early and targeted intervention to prevent release. However, identifying 141 breaches can be difficult for administering bodies, with the need to account for the agreement's 142 flexibility (Rissman 2010

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Between October 2013 and January 2014, we asked individuals within the 13 major Australian 159 covenanting organizations who were familiar with and had access to database records to 160 provide the numbers of and reasons for covenant releases and breaches. We followed up responses with further questioning where needed. The programs involved cover all states and 162 territories (with the exception of the Australian Capital Territory; Table 1). 163 Table 1 here) 164 Database records varied across organizations and programs -both in the detail (e.g. the type of 165 impact caused the breach) and the style of recording (i.e. hard copy or electronic). Detailed 166 information was not always available due to confidentiality, limited record-keeping, or the 167 difficulty of retrieving data when resourcing restrictions precluded their ability to sift through 168 hard copy records. Where only limited data was available, we asked program staff to instead 169 provided estimates. The type of information provided by staff clearly fell into two categories: 1) 170 'minimum bound estimates', where staff provided the known cases but indicated that the true 171 number was likely greater but unknown; 2) 'rough estimates', where staff were unsure of actual 172 cases and could only provide a rough estimate. The description of the activities behind the 173 covenant release and breach data were used to categorize these into common themes. 174 175 We considered covenants 'released' if they had been signed over a particular piece of land in the 176 past but had subsequently been removed from the land title (i.e. the covenant had been 177 terminated in accordance with the relevant security provisions). Because obligations vary 178 between programs, we considered a covenant 'breached' if its obligations had not been met, but 179 the covenant had remained in place. We did not count third party damage (e.g. by neighbors) as 180 a landholder breach, but recorded this information separately, as we consider this type of 181 damage reasonably beyond the immediate control of the landholder and the administering 182 body. 183

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Covenant releases 185 The single-party NSW Wildlife Refuge covenants had by far the highest number of releases, 186 although this was based on the estimate provided by program staff (130 out of 673). A total of 187 eight out of 6,818 multi-party covenants (0.12%) had been released across Australia, with 188 Victoria (4) and Western Australia (3) having the highest numbers of releases (Table 2). 189 Table 2 here)

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For multi-party covenants, the reasons for release varied considerably, ranging from 191 unauthorized timber removal to government acquisition or administrative error ( Covenant breaches 201 Detailed breach data was not available from most programs, which precluded deeper 202 quantitative analysis. Of the available data, 71 breaches were reported (Table 2) (Table 4). Of 207 those able to be categorized, as a percentage of all reported breaches, most arose from land 208 clearing and/or development (13%), road construction (7%), forestry operations (7%) or 209 unauthorized timber removal (7%). Some 25% of all breaches were attributed to a third party. 210 In one third party breach, forestry contractors working on a neighboring property cleared 211 vegetation on a covenanted property where the boundary delineation was unclear; in another 212 case, a third party had gained illegal entry to the property and collected firewood. 213 Table 4  Although a significant policy challenge, dealing with current and future owners of protected 283 properties is only one dimension of permanence. Our case study suggests that policy-makers 284 also need to account for actors outside of the direct agreement. Most breaches in our study for 285 which detailed information was available were attributed to damage from a third party (25% of 286 all known breaches). This has also been noted as an issue for easements in the USA (Rissman & 287 Butsic 2011). This raises an important question for policy makers about who holds 288 responsibility for monitoring, preventing and rectifying damage to covenanted properties 289 resulting from trespass, particularly if the third party remains unidentified. Trespass is an issue 290 for conservation areas in general, impacting both the public and private conservation estate. 291 As noted elsewhere, we also agree that the decoupling of above-and below-ground property 292 A need for improved monitoring and recording 302 It is likely that the growth in permanent conservation agreements will continue, particularly 303 with their increasing use via new pathways such as biodiversity offsets, which are growing in 304 prominence internationally and in all Australian jurisdictions (Bull et al. 2013). It is possible 305 that this will also lead to an increase in the number of releases and breaches, making effective 306 monitoring of these agreements essential for identifying issues, supporting enforcement (Rissman & Butsic 2011), and evaluating their ecological contribution. Whilst our study showed 308 few releases, detailed breach information was limited, with the number of breaches occurring 309 largely unknown. This is surprising given the prominence of permanence as a key feature of the 310 mechanism, but such fragmented and incomplete data is not unique to covenants, having also 311 been noted before for easements in the USA ( Our study provides insights into the methodological challenges of multi-jurisdictional studies on 330 conservation agreements. Obtaining sufficient and consistent breach data proved particularly 331 difficult, due largely to organization resourcing constraints on its collection, differences in how breaches are monitored and recorded across organizations (i.e. centrally or regionally, 333 electronically or in hard copy), and privacy concerns over sharing this type of information. 334 There were also challenges in analyzing across different programs (e.g. what constitutes a 335 'breach' under different legislation or landholder agreements). However, our study highlights an 336 opportunity to share data, pool resources and collaborate across organizations to allow for 337 more detailed quantitative and qualitative studies in the future. For this, support is needed from 338 policy-makers for more consistency in covenant monitoring (e.g. LTA 2014), as well as a 339 coordinated approach to recording and sharing breach and release data in ways that address 340 confidentiality concerns. This data should be in digital form in centralized and secure databases, 341 such as the National Conservation Easement Database in the USA (USEFC 2014), with data 342 sharing provisions to allow for comparison across different agreement types, such as US 343 easements and Australian covenants. In Australia, the National Conservation Lands Database 344 (DSWEPaC 2011) has the potential to be an equivalent portal, although its future viability is 345 currently uncertain. 346 As the role of PPAs in protecting biodiversity grows, so does the need to ensure they remain an 347 effective part of the conservation policy toolkit. The numbers of covenant releases and known 348 breaches in our case study were low, suggesting that covenants may be an enduring mechanism 349 for conservation, although we acknowledge the likely under-reporting and minimal data 350 available for breaches. However, ongoing compliance monitoring of covenant breaches and 351 releases will allow policy-makers to respond to issues as they arise, and will also enable future 352 comparison of the permanence of PPAs to the public estate and other protected area categories. 353 This data is key to understanding the permanence and long-term effectiveness of these 354 agreements and crucial for improving the sustainability of conservation policy on private land.