National Forum

Workshop 22/3/01: Best Practice Management Agreements/Conservation Covenants

Ms Bernadette O'Leary
Assistant Director Landscape Conservation Section
Environment Australia(ACT)

Management Agreements: for nature conservation on private land

Background

Many types of 'agreement' mechanisms exist at the national, state and local levels aimed at protecting nature conservation values on private land. These range from those demonstrating the most commitment (such as conservation covenants), to expression of interest in doing something useful for nature conservation (such as Land for Wildlife registration). Management Agreements occupy the middle ground in this range.

For the purposes of this paper, a Management Agreement is:

'...a contract between a landholder and (another) party regarding the use and management of their land. Entry into Management Agreements is generally voluntary. Because Management Agreements are contracts, they are potentially a very flexible instrument which can be tailored to the needs of individual sites and landholders (Crompton 1990)' (Binning and Young, 1997).

In the case of remnant vegetation conservation, an agreement would generally restrict land uses that are harmful and prescribe the management actions required to sustain conservation values (Binning and Young, 1997). Financial incentives are often used to encourage landholders to enter Management Agreements.

Examples of schemes using Management Agreements

Some examples of the range of existing schemes and programs using Management Agreements which are relevant in this context are provided in Attachment A.

Issues

The types of Management Agreements and the way they are applied in each State/Territory vary greatly, resulting in a range of nature conservation outcomes. Relevant issues include the following.

Keeping the wording simple - to reduce confusion and fear of what is required.
Is the Management Agreement legally binding? Does it really matter?
A minimum standard for Management Agreements required through Bushcare projects (and for whatever follows current NHT).
Matching the size of incentives to conservation values protected and the level of commitment - and consistency between schemes/programs, and within and between jurisdictions.
Monitoring compliance and handling non-compliance.
Frequency of reviewing Management Agreements.
Encouraging an increasing level of landholder commitment over time.
What to do when the Management Agreement expires.

Aim

The Commonwealth has an interest in promoting a more consistently applied form of Management Agreement, for possible use in a future Natural Heritage Trust funding process, as well as more widely. This paper sets out attributes which, in the Commonwealth's view, constitute best practice for Management Agreements (Attachment B). These are to be discussed further with relevant State/Territory agencies, non-government organisations and regional organisations that use or have an interest in such agreements - with a view to including best practice attributes in the evolving ANZECC National framework for the management and monitoring of Australia's native vegetation.

Conservation Covenants for nature conservation on private land

Aim

This paper proposes ten attributes which might be considered best practice for conservation covenants (Attachment C), and provides background to the status of conservation covenants throughout Australia. The paper aims to help inform Commonwealth decision-making in relation to: funding requests under the Natural Heritage Trust (including the national Revolving Fund initiative); tax incentives and tax reform policy related to managing land for conservation purposes; and to implementing the conservation agreement provisions under the Environment Protection and Biodiversity Conservation Act 1999.

Background

A range of 'agreement' mechanisms exist at the national, State and local levels aimed at protecting nature conservation values on private land. Management agreements, conservation covenants, registered property agreements, legal contracts or deeds of agreement, and heritage agreements are just some of the mechanisms used from time to time by State/local governments and landholders, or by land vendors and purchasers. The terminology and level of protection differs markedly over the various jurisdictions throughout Australia.

A conservation covenant is generally considered to provide the highest form of protection for private land nature conservation. There are certain elements which generally characterise a conservation covenant, setting it aside as one of the more stringent of protection mechanisms - conservation covenants in Australia have a specific statutory basis, are generally entered into with the relevant State Minister for conservation, are registered on title, and are binding on subsequent landholders.

A conservation covenant, for the purpose of this paper, refers to any agreement which: aims to protect and enhance natural values on private land (defined as either freehold or leasehold land) within Australia, over the long term; sets out management actions for nature conservation; and provides landowners with stewardship support.

All States currently have the legislative capacity to administer statutory conservation covenants, or equivalent agreements which have similarly binding elements. The Territories also have legislative capacity to enter conservation covenants through certain leasehold conditions. Government agency resourcing is a major factor in terms of the degree to which States/Territories utilise their respective covenanting provisions.

The extent to which any conservation covenant meets the following attributes, will determine the extent to which it approaches a national best practice model.

Attachment A - Examples of schemes using Management Agreements

Scheme or program	Administering body	Purpose	Incentives	Management planning	Commitment
Fencing Incentive Scheme	Greening Australia (ACT, NSW, Vic, Qld, Tas)	Remnant habitat protection	Fencing subsidy, habitat mgmt advice	Advice available before and after fencing	Non-binding, mostly minimum 10 years.
Catchment Management Incentive Scheme	Catchment Management Authorities (Vic)	Supporting change towards sustainable land management practices	Funding for on-ground works, advice	Technical info provided via extension services	Payment made on completion of agreed works. Ongoing commitment varies between CMAs.
Voluntary Conservation Agreements	Johnstone Shire Council (Qld)	Biodiversity conservation, sustainable land use, tourism enhancement	Rebates on Council rates	Site specific advice provided and details incorporated into Agreement	Legal agreement but not binding on title (unless bonus development rights involved). Ten-year rolling commitment.
Management Contracts Program	Dept of Land and Water Conservation (NSW)	Native vegetation management	Funding for fencing, pest control, regeneration, revegetation	Site management regime details contained in agreement	Civil contract with minimum 10-year commitment.
Woodland Watch	WWF (WA)	Conservation of tall Eucalypt woodlands in WA wheatbelt	Survey, advice to landholders, recognising good stewardship	Site specific mgmt guidelines in Agreement, ongoing advice	"Gentleman's agreement", no specified time period.

Attachment B - Proposed best practice attributes for Management Agreements [working draft]

Parties. A Management Agreement will be between the landholder and another party. The other party should be an established body that is likely to remain in existence over the period of the agreement, and one which is community oriented to ensure that its own commitments are fulfilled and landholder compliance encouraged. This could include regional organisations, catchment management authorities or State/local governments.
Duration. A Management Agreement should operate for a period sufficient to ensure the objectives sought - for example, to establish fencing and a related management regime to protect and enhance remnant vegetation, or to establish a management approach that could be continued in the longer term (and perhaps move to the next level of conservation covenanting).
Site description. A Management Agreement should include a description of the area covered, including details such as location, size, vegetation (type, condition) fauna and important habitat. An adequate map showing the site should also be included.
Conservation values and objectives. These provide the basis and reason for a Management Agreement. The Agreement should, therefore, include a description of the important natural values that are to be protected and identify specific conservation objectives. While such an Agreement need not aim to protect lands of the highest ecological value, there should be an intent to enhance protection and management of natural values in the landscape. The administering body should have a plan, including priorities, of values that they are seeking to protect.
Actions to enhance/protect conservation values. A Management Agreement should identify actions that will be undertaken to enhance and protect the conservation values of the area covered. These should include, but not be limited to, weed and feral animal management, fire management, strategic grazing, and monitoring of land condition.
Land uses. If it is considered that primary production and other activities are compatible with conservation objectives for the site, the Management Agreement should specify these activities and prescribe guidelines within which they would be undertaken. This could apply to activities such as grazing, firewood removal and timber harvesting. Conversely, there may be other activities associated with the site which are not consistent with management objectives - these should be identified in the Agreement as being not permitted.
Monitoring and review. The administering body should periodically visit the site to ensure that the Management Agreement is being complied with. Both parties should review the Agreement at least every five years and, if there is good cause, the Agreement may be varied to reflect changed or unforeseen circumstances, preferably with no negative impact on nature conservation values. The administering body should maintain a record (e.g. database) of lands protected under Management Agreements [minimum information? e.g. size, dates, values ...], and communicate that information appropriately (e.g. to other conservation land managers).
Compliance/security. The administering body should seek to maintain and encourage landholder compliance with the Management Agreement through regular liaison and advice, and by facilitating a flexible, consultative approach to the terms of the Agreement.
Management support. The administering body may provide an agreed contribution towards the cost of management. Management Agreements may be used to attract funding, or a higher level of funding or cost, through incentives programs. Otherwise, agreed actions to enhance, protect and maintain conservation values would be borne solely by the landowner. The administering body should seek to provide general support for management, e.g. access to information and advice, networking landholders with Agreements. Such support should reflect the values being protected and the level of commitment of the landholder.
Accessibility. The administrating body should have a plan to communicate about the Management Agreements scheme within relevant communities to ensure recruitment.

Attachment C: Proposed best practice attributes for Conservation Covenants [working draft]

Objective. The primary objective of a conservation covenant should be to protect, conserve and manage natural values over the long term. The natural values that are subject to a covenant should be of high ecological significance or of high quality.
Duration. A conservation covenant should be designed to be permanent. However, specifying a long term may be justified in certain circumstances.
Title. conservation covenant should be registered (as distinct from recorded) on title and therefore binding on all successors in title.
Proscriptive and Prescriptive Elements. A conservation covenant should impose a proscriptive obligation, generally restricting land uses or activities that degrade existing conservation values, and also ensure that management actions aimed at sustaining and enhancing nature conservation values in the long term are prescribed. Because of the need for adaptive management, the specific detail on the latter should be included in a plan of management.
Administering Body. The authority administering conservation covenants should be an established body or agency that is likely to be in existence over the long term, for example, a national, State or local government agency, a statutory body, or an approved environmental organisation. The administering body should also be adequately resourced and capable of responding to a growing demand. It should also be pro-active in terms of seeking landholders who might wish to place covenants on areas of high conservation value. Once agreement on the terms of a covenant has been reached, there should be a capacity to register it shortly thereafter.
Plan of Management. A conservation covenant should require or include a plan of management which sets out management actions for nature conservation binding on, and to be carried out or adhered to, by the landowner. The plan of management should be agreed between the administering body and/or relevant government Minister and the landholder, and should be reviewable from time to time. The plan may also specify and allow non-conservation related activities where those activities do not directly or indirectly diminish the nature conservation values of the land in question. The amount of detail in a management plan should vary according to the size and environmental complexity of the land in question. A good generic standard model plan should be available, as part of the covenanting scheme, to communicate the concept.
Stewardship and Monitoring. A conservation covenant should contain provisions for a stewardship arrangement (or stewardship program) wherein the administering body is obliged to provide ongoing assistance to the landholder. As part of this arrangement, a landholder should be able to access management/technical advice and assistance. The stewardship arrangement should allow for periodic visits by the administering body, as a way of keeping in touch with the landholder and checking the condition of the land, and for special visits particularly where management problems arise or when a property changes hands. It should also allow for periodic telephone contact as a way of exchanging information and to assist in monitoring compliance. While stewardship does not imply compensation or the notion of ongoing payments, the stewardship program may provide one-off payments or payments over a specific period of time for a specific management procedure.
Security. Varying or terminating a conservation covenant should only occur with the mutual consent of the administering body and/or the relevant Government Minister and the landholder, and only under exceptional circumstances (nb. variation and termination may be required if another statute, which provides for other activities on the land, takes precedence for example, certain mining legislation).
Compliance. The administering body should be empowered, through legislation, to enforce the conditions of the conservation covenant. Alternatively, it should be able to apply to a Court of law for such orders as are necessary to secure compliance with the agreement, or to remedy a default.
Costs. The administering body would bear all the costs, including legal costs, associated with developing the conservation covenant and registering it on title. It would also bear costs associated with advertising and stewardship. As an added incentive to entering into a conservation covenant, the authority might also bear, or assist with, costs associated with implementing the plan of management, which may include for example, fencing, rehabilitation or environmental research costs.