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An Agreement Forever?

By Mat Hardy, Sarah Bekessy, Ascelin Gordon & James Fitzsimons

There’s a growing trend in many parts of the world for land owners to enter into conservation covenants and easements. These formal agreements are an increasingly popular strategy for conserving biodiversity on private land but how effective are they? Our analysis of covenants in Australia has revealed there’s much to commend in these agreements but there’s also work needed to ensure their ongoing effectiveness.

Conservation covenants are legally binding agreements that place “permanent” restrictions on what activities landholders can undertake on their land. For example they often prevent the clearing of native vegetation. These agreements are registered on the title of the property, obliging the current and future owners to look after their property’s ecological values.

Landowners voluntarily enter into these agreements because it helps them preserve the natural values of the land they love. Governments like these agreements because it helps them meet their obligations to conserve biodiversity.

The first conservation covenant in Australia was a Wildlife Refuge established back in 1951 in NSW. Since then, the number of covenants has grown considerably to around 7500 across Australia, with most of those being established in the past 25 years.

Although security provisions vary between programs, all covenants in Australia are backed by specific, enabling legislation, with release of the covenant usually requiring approval from multiple parties, including the landholder and the relevant government minister. The exception is the Wildlife Refuge program, which is only available in NSW and is unique among Australian covenants for only requiring approval for release from a single party (i.e. the landholder can choose to opt out voluntarily).

From a conservation policy perspective, the permanence and security of these agreements with private landholders are central issues. In theory, most conservation covenants in Australia are permanent in that the conditions they impose are passed on to the new owners when the land is sold. They are designed to last forever. However, landholders can change frequently, with potentially negative consequences for protected land.

And what about mining? Have covenants been affected by mining activities?

There was little information available on the permanence and security of covenants in Australia, so we asked the 13 major covenanting organisations that operate in this country whether the covenants they oversaw had remained in place and whether the obligations they prescribed had been observed.

The information we collected showed that of the 6818 multi-party covenants created across Australia, only eight had been released (0.12%). Of the 673 single-party (NSW Wildlife Refuge) covenants formed, 130 had been released.

Based on these figures, very few covenants have been released, and multi-party covenants are clearly a better agreement in terms of permanence. Part of that would relate to the greater difficulty of exiting a multi-party agreement.

We also asked what’s happening with covenant breaches. Are landholders abiding by the terms of the covenant?

Unfortunately, we found that detailed breach data was hard to get hold of, making it very difficult to accurately determine the number and types of breaches that had occurred. It was also difficult to assess what impact the breaches were having on the natural values the covenants had been established to protect (if any). This relates to the bigger issue of needing improved monitoring and recording of conservation covenants.

Our study showed that the agreements are, on the whole, relatively secure and enduring but we need ongoing monitoring and reporting to assess the true contribution of these agreements. Furthermore, some organisations suggested that the turnover of conservation covenants to “successor landholders” may be developing into a policy issue, requiring agencies to engage with the new landholders and ensure they are as committed to the terms of the covenant as the original owners.

Keep in mind that the majority of existing covenants were created in the past 25 years, so we would expect to see a growing number of these agreements being transferred to new owners in the coming years.

Given this, coupled with a growing enthusiasm by governments to encourage new conservation covenants, the need for ongoing and effective monitoring has never been greater.

Mat Hardy, Sarah Bekessy & Ascelin Gordon are members of the ARC Centre of Excellence for Environmental Decisions (CEED), and are based at RMIT University. James Fitzsimons is with The Nature Conservancy.