Heritage easements 401 — Easements for (almost) all

We’ve been looking at easements for heritage conservation purposes and how these evolved in Ontario.

Easements and their close cousin covenants — agreements conferring rights over another’s land or property for specific purposes — can be used by anyone for almost any (legal) end.  But the only kind that beat the old common law limits and stick over the long haul are statutory easements — that is, agreements where the parties involved and the public policy objectives to be served are set out in statute.

Because of the public interests at stake, our laws are fussy about who gets the power to enter into such arrangements. With respect to easements for heritage conservation, the Ontario Heritage Act, as we’ve seen, gives these powers to only the Ontario Heritage Trust and local municipalities.

Does that mean only the Trust and municipalities can hold heritage easements?

Well, no.

For one thing, the OHA permits the Trust and municipal councils to sign easements —and then hand them over to others.  Subsection 22 (3) says:

Any easement or covenant entered into by the Trust … may be assigned to any person and such easement or covenant shall continue to run with the real property, and the assignee may enforce the easement or covenant as if it were the Trust .…  [Note 1]

In its 40-year history of holding easements, the Trust has done this just twice.  In one case an easement was assigned to the National Trust for Canada in Ottawa, and in the other case the assignee was the Frontenac Heritage Foundation in Kingston.

I know of only one instance where a municipal easement was assigned. The property involved was none other than Union Station … and the assignee the Government of Canada!  [Note 2]

* * * * *

One might ask why respected non-governmental heritage organizations — the National Trust for Canada, the Frontenac Heritage Foundation and others like Architectural Conservancy Ontario — should not have the ability to take easements for heritage conservation purposes.

The short answer is that cultural heritage groups, perhaps too preoccupied with regulatory approaches and government action, have not shown much enthusiasm for gaining these powers for themselves … and so missed the boat when the door was thrown open to greater access to the easement tool.

By comparison, organizations concerned with the use of easements for protecting natural and ecological resources seized an opportunity.

Remember from last time how in the early 1980s the Ontario Heritage Foundation (now OHT) moved into the natural heritage field, largely owing to its broad easement-holding ability?  The Foundation began working with NGO partners like the Federation of Ontario Naturalists, the Nature Conservancy of Canada, Ducks Unlimited and the Bruce Trail Association to protect places of natural significance through easments and outright acquisition.  Soon natural heritage organizations, including the nascent land trust movement, began agitating for the power to hold easements themselves.

For a time in the early 1990s it looked like the long-proposed reform of the Ontario Heritage Act would be the vehicle for extending statutory easement powers to suitable NGOs for all types of cultural and natural heritage, as well as for agricultural preservation and other purposes.  But with the agonizingly slow pace of the OHA revisions the natural heritage forces shrewdly found another outlet.

In 1994 the then Ministry of Natural Resources moved forward with amendments to an obscure piece of legislation.  The Conservation Land Act (CLA) was essentially transformed into an all-purpose easements statute … and the OHF’s virtual monopoly on natural heritage easements was broken.

The CLA gives easement powers to a “conservation body”, defined to encompass a very wide array of government and non-government organizations. The bias was clear — the word “cultural” does not appear and, tellingly, the French version translates “conservation body” as “organisme de la protection de la nature.” [Note 3]

Certainly the ability of non-government conservation bodies to acquire easements has been a huge boon and contributor to the burgeoning land trust movement in the province. [Note 4]

* * * * * 

The last word goes to the latest Ontario easements legislation — the Ontario Trails Act, 2016. The Act includes an extensive section on easements, part of which reads:

An owner of land may grant an easement, with covenants, to one or more eligible bodies,
(a) for the preservation, enhancement or management of the use of, or access to, all or a portion of the land for purposes relating to trails or to activities relating to trails;
(b) for the creation, maintenance or management of trails for public use; or
(c) for the purposes as may be prescribed by the regulations made under this Act.
[Note 5]

Note 1: Subsection 37 (4) gives local councils the same ability.

Note 2: The City of Toronto entered into an easement agreement with Toronto Terminals Railway, the former owner of Union Station. When the city acquired the property in 2000 this municipal easement was assigned to the federal government and heritage staff from Public Works and Government Services Canada and Parks Canada administer the agreement's heritage approvals. The OHT provided advice to the feds on the easement mechanism and how to manage the transfer of the property.

Note 3: The Conservation Land Act defines “conservation body” as:

(a) the Crown in right of Canada or in right of Ontario,

(b) an agency, board or commission of the Crown in right of Canada or in right of Ontario that has the power to hold an interest in land,

(c) a band as defined in the Indian Act (Canada),

(d) the council of a municipality,

(e) a conservation authority,

(f) a corporation incorporated under Part III of the Corporations Act or Part II of the Canada Corporations Act that is a charity registered under the Income Tax Act (Canada),

(g) a trustee of a charitable foundation that is a charity registered under the Income Tax Act (Canada), or

(h) any person or body prescribed by the regulations.

The Act goes on to say that easements may be entered into:

(a) for the conservation, maintenance, restoration or enhancement of all or a portion of the land or the wildlife on the land;

(b) for the protection of water quality and quantity, including protection of drinking water sources;

(c) for watershed protection and management;

(d) for the conservation, preservation or protection of the land for agricultural purposes;

(e) for the purposes prescribed by the regulations made under this Act; or

(f) for access to the land for the purposes referred to in clause (a), (b), (c), (d) or (e).

Note clause (e): to date no other “purposes”, like cultural heritage conservation, have been prescribed, but this remains theoretically possible.

Note 4: There are now over 30 land trusts in Ontario, members of the Ontario Land Trust Alliance (OLTA). The OLTA website defines a land trust as follows:

The term Land Trust refers to non-profit, charitable organizations which have as one of their core activities the acquisition of land or interests in land (like conservation easements) for the purpose of conservation.

The hallmark of a land trust is the direct action they take to protect the local land base, and that they hold those lands or conservation easements in trust for future generations. Land Trusts and conservancies are generally local in scope and operation, but may be provincial, regional or even national. Most land trusts focus on conserving the biological values of land, but across the continent land trusts have been established to protect scenic, historical, agricultural, and recreational lands as well.

See http://olta.ca/land-trust/.

Note 5: See section 12 of the Act. As with the Conservation Land Act, there is the potential for a regulation that prescribes additional “purposes.”  https://www.ontario.ca/laws/statute/16o08#s12s1

Heritage easements 301 — The OHF goes natural, and municipalities get in the game

By the early 1980s the Ontario Heritage Foundation’s easements program was well-established.  But its scope, like the properties the Foundation owned and its other programs, was pretty much confined to cultural heritage.  This was about to change.

From 1975 the Foundation has had a broad mandate for the “conservation, protection and preservation of the heritage of Ontario.” “Heritage” was not defined; although, with respect to its “trust” objectives, the OHF was given powers to acquire, hold, manage, etc. property of “historical, architectural, archaeological, recreational, aesthetic, and scenic interest.” [Note 1] The power to acquire easements — a form of property — was not otherwise limited.

With the encouragement and support of senior management at the then Ministries of Natural Resources and Culture and Recreation, OHF board chair John White and other new board members decided it was time for the Foundation to expand activities into the natural resource field. [Note 2]

Probabaly the key reason for this move was that the Foundation was the sole provincial agency with the power to acquire heritage easements.

Seizing on the words "recreational" and "scenic" in its legislation — and maybe stretching them a little?— the Foundation embarked on its first forays into natural heritage. And the first natural heritage easement soon followed— the Misery Bay property, a 120 hectare (300 acre) forested wetland on Manitoulin Island bordering Misery Bay Provincial Park. The easement was registered in November 1983.

Shoreline, Misery Bay

* * * * *

While the OHF pursued its heritage easements program with gusto — first on the cultural side, then on the natural side as well — at the municipal level things were very slow to develop.  While local municipalities had been given powers to acquire easements on property of “historical or architectural” importance under section 37 of the OHA, that didn’t mean they knew what to do with them. [Note 3]

Largely this was because municipalities also had designation powers — powers they had actually sought! (And, tellingly in terms of the provincial enthusiasm for easements, powers the province itself didn’t have.)

But a heritage designation, as people soon came to realize, was not as strong as a heritage easement, particularly with respect to demolition.  Until the 2005 changes to the OHA, designation offered only temporary demolition controls.  Even now, a municipality’s refusal to approve an owner’s request to demolish can be overridden by the Ontario Municipal Board.

So easements provided a further, practically iron-clad protection against demolition.

Unlike a regulatory, designation approach, however, there needed to be a lever to compel… er, entice the signing of an easement agreement.  And for a long time municipalities did not make use of the tools they had.

The first municipal easements were mostly the result of provincial (OHF) grants for preservation projects: in cases of built heritage properties not considered to have provincial significance and warrant a Foundation easement, the grant was made conditional on both municipal designation and a municipal easement.  Not surprisingly, municipalities needed the province’s help with satisfying the unfamiliar easement requirement — and in developing their easement agreements they relied almost to the letter on the Foundation’s prototype agreement.

A big boost to municipal easement activity came in 2001, again because of provincial policy.  The rules for the new Heritage Property Tax Relief Program, which incorporated a provincial financial contribution, included requirements for designation and a heritage easement or similar agreement.

The City of Toronto, a leading advocate for the HPTR program, had been a relatively early adopter of heritage easements.  In 1980, following two years of work, the former Toronto Historical Board developed a procedure for municipal heritage easement agreements.  The first Toronto easements were signed that year.  Since then the city’s easements program has really taken off, with Toronto entering into hundreds of built heritage easements, usually as a condition of planning and other development approvals.  Other larger municipalities have followed suit.

A 1980 municipal easement protects the House of Industry on Elm Street, Toronto

Unfortunately for those of us who like hard numbers, just how many (and which) municipalities have acquired easements — and how many — is hard to get a handle on.  The OHA requires that information on designations be provided to the Ontario Heritage Trust, but there is no such requirement for easements.  [Note 5]

Next time: Who else holds heritage easements in Ontario?

Note 1: Interestingly the word “heritage” did not appear in the OHF’s original 1967 Act, except n the name of the Foundation. “Archeological” was added to the list of types of property in the 1975 OHA; “natural” was finally added only in 2005.

Note 2: Chief among these was G.H.U. (Terk) Bayly. Terk was a former deputy minister of the old Department of Lands and Forests, predecessor of the Ministry of Natural Resources, and had served as Secretary of Cabinet. He succeeded John White as chair of the Foundation in 1986. For more on the genesis of the Foundation’s role in provincial efforts to protect natural areas see Gerald Killan’s Protected Places: A History of Ontario's Provincial Parks System (Queen’s Printer, 1993), especially pages 313-315.

Note 3: In section 37, as in the designation sections of the Act, the old “architectural or historical” terminology has been replaced with “cultural heritage.”

Note 4: See my 2015 OHA+M post on heritage property tax relief:

https://danschneiderheritage.blogspot.ca/2015/03/heritage-property-tax-relief.html

Note 5: One estimate puts the number of municipal easement “programs” at around 50, but I wouldn’t even hazard a guess at the total number of municipal easements. By contrast, thanks to the Ontario Heritage Trust, we do know the current number of OHT easements: 260.  And how they break down by type:

• Built heritage: 186
• Natural heritage: 52
• Archaeological: 6
• Bruce Trail: 15
• Hybrid: 1 (Ruthven, near Cayuga)