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.

Ontario Wildlife Damage Compensation Program

OMAFRA has released its Ontario Wildlife Damage Compensation Program Guidelines as part of the joint Federal-Provincial Growing Forward program.  The program provides for compensation for damage to livestock and poultry by "wildlife", which is defined as "undomesticated animals as designated by the Minister in Schedule "D" in this Program Guideline".  The list includes coyotes, wolves, bears, foxes, cougars, eagles, crows, turkey vultures, raccoons, etc.

The program has been introduced through changes to the Livestock, Poultry and Honey Bee Protection Act, which has now been renamed the Protection of Livestock and Poultry from Dogs Act.  Although the Act applies to damage caused to livestock and poultry by wildlife generally, its title refers to dogs specifically because the Act addresses damage caused by dogs in some detail, including certain rights to kill dogs who have caused or threaten to cause damage to livestock or poultry.  The Act also imposes an obligation on the owner of a dog who has killed or injured livestock or poultry to destroy the dog or cause it to be destroyed within 48 hours of acquiring knowledge of the killing or injury.

The changes to the Act were publicized by OMAFRA on the Environmental Bill of Rights Registry and received some 244 comments representing a wide range of points of view, many of which can be viewed at: EBR Comments. 

New Agriculture-Wildlife Conflict Strategy in Ontario?

 
The Government of Ontario has developed strategies aimed at resolving conflicts between agriculture and wildlife in Ontario.  The conflict strategy is now up for public review and comment until April 11, 2011. 

Components of the strategy include:


• promoting producer awareness by developing and enhancing information resources;
• improving programs and tools for producers including compensation programs; and
• greater collaboration between the Ministry of Agriculture, Food and Rural Affairs (OMAFRA), the Ministry of Natural Resources (MNR) and stakeholders to provide a coordinated response.

Highlights of the Agriculture-Wildlife Strategy

• Enhanced information resources available to producers, such as:
o one-window information access for producers via a web site or information bundle; and
o improved knowledge transfer (e.g. workshops) for producers on best management practices.

• Improved programs/tools for producers such as:
o expanding the livestock damage compensation program;
o funding for strategic investments such as demonstration projects;
o continuing to manage wildlife populations (within sustainable limits) to help minimize agricultural conflicts by applying appropriate hunting seasons and quotas; and
o exploring improvements to coverage for wildlife damage to crops through Production Insurance.

• Greater collaboration between OMAFRA, MNR and stakeholders by creating an agriculture-wildlife conflict working group to ensure transparent implementation of the strategy.

A key part of the strategy will be to expand wildlife damage compensation programs for livestock. Changes to the Livestock, Poultry and Honey Bee Protection Act (LPHBPA) and regulation (R.R.O. 1990, 731, Application for Payment of a Grant) were made through the Open for Business Act, 2010. The changes provide the flexibility to update the wildlife damage compensation program for livestock to:

• allow an expanded list of eligible livestock species,
• expand the list of eligible wildlife species, and
• update the maximum values of compensation.

The LPHBPA also governs the liability of municipalities to compensate producers who have had livestock killed or injured by dogs.

Upon proclamation, the LPHBPA and Regulation 731 would be repealed and replaced with the Protection of Livestock and Poultry from Dogs Act. A new minister’s regulation will prescribe the maximum compensation values for livestock killed or injured by dogs under the Protection of Livestock and Poultry From Dogs Act for each livestock species named under the act. The methodology used to establish maximum compensation values for the new regulation will be developed through the proposed agriculture-wildlife conflict working group.

The new wildlife damage compensation program for livestock will be enabled through an Order-In-Council under the Ministry of Agriculture, Food and Rural Affairs Act. Details of the program framework is included in the additional materials section of this posting.

Purpose of Regulation:

The Ontario government is proposing an agriculture-wildlife conflict strategy as part of the implementation of the province’s Strategy for Preventing and Managing Human-Wildlife Conflicts in Ontario (2008).

Public Consultation:

This proposal has been posted for a 45 day public review and comment period starting February 25, 2011.
All comments received prior to April 11, 2011 will be considered as part of the decision-making process by the Ministry of Agriculture, Food and Rural Affairs if they are submitted in writing or electronically using the form provided in the notice and reference EBR Registry number 011-2677.

View the Environmental Bill of Rights Registry Notice at: Agriculture-Wildlife Strategy.