Legal instruments in private land conservation: the nature and role of conservation contracts and conservation covenants

Abstract

Management of private land for ecological outcomes has emerged as an important facet of biodiversity management and ecological restoration in Australia. Common law conservation contracts and conservation covenants are important tools within this framework of private land conservation. They can provide legal protections to biodiversity and natural assets on private land, as well as legal frameworks, in the form of obligations, to restoration programs. They can provide distinct qualities of binding obligation: fixed term or enduring. Conservation contracts and covenants need to be recognized as possessing both transactional and relational qualities, and these qualities should be considered and reflected in the design of agreements and in practices of conservation management and agreement‐making. Two design questions are considered in this article. Conservation agreements need to contend with dynamism in ecological and social realities and this may be accommodated in mechanisms for adjustment of obligations between or within agreements. Dispute management is a second field of practice and drafting requiring attention. Constructing disputes provisions that are adapted and appropriate to long‐term conservation actions and restoration initiatives is reflective of good faith principles and can include scope for graduated, independent, corrective, and fair arrangements, informed as necessary by expert input.