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Monday, July 14, 2014

Alberta conservation easement leads to fight over fence height restrictions, etc.

The Defendant in this case bought a large cattle ranch from the Nature Conservancy of Canada (NCC), the Plaintiff in the case.  The ranch lay on the eastern slopes of the Rockies within the migratory corridors of a wide array of species.  NCC thought that the ranch was strategically located for movement of wildlife in Alberta - the "North American Serengeti".  Before selling the ranch to the Defendant, the NCC registered a conservation easement against the title to the property to ensure, among other things, that the use of the property would not impede future wildlife migrations.

After purchasing the property, the Defendant landowner began to replace old fencing around the perimeter of the ranch.  He believed the new fencing would be more effective in restraining his bison, but still permit wildlife to migrate through the property.  NCC disagreed, saying that the Defendant had breached the terms of the conservation easement by building his fence higher than was allowed.  This would impede the migration of wildlife.

There were a large number of issues before the Alberta Court of Queen's Bench in this case (the written reasons comprise 605 paragraphs with 144 footnotes), including issues about the terms and applicability of the conservation easement.  On the issue of the alleged breach, the Court ruled that the parties had agreed on the following fence height restriction:
The Grantor may maintain, replace and repair the fences, roads, buildings, and other improvements located on the Property. If doing so with fences or roads, they are to be maintained, replaced or repaired at or near the existing ones. The Grantor may not build fences or roads in areas where none exists without the Grantee’s permission. The building of wildlife-proof fences is not permitted, except in localized areas as needed to control or prevent wildlife damage to haystacks, stored forage or domestic gardens. If any or all of the buildings are removed or destroyed, the Grantor may replace them with structures of a similar purpose at or near the same location within the existing 5 acre home site. Any building construction shall require the prior notice to the Grantee.
The Court found further that NCC failed to prove that the replacement fence that had been installed breached the agreed restrictions.  NCC failed to show that the Defendant placed the new fence in any new locations without permission and the evidence demonstrated that the fence was wildlife permeable.  In fact, the Court found that it was likely that the new fence restricted wildlife movement less than the old fence that it replaced.

Read the decision at: Nature Conservancy of Canada v Waterton Land Trust Ltd.