Committing private land to conservation : advice to avoid future pitfalls

Our national parks, managed by SANParks, and Provincial Nature Reserves, operated by state-owned Entities, such as Ezemvelo KZN Wildlife and Cape Nature, form part of the national conservation initiative and tourism offering, as do many private nature reserves that have been established by private landowners. These private reserves are found in areas that are ecologically unique, including mountainous, and coastal areas and the Lowveld. They are of critical importance to national conservation efforts, supporting the survival of complex and intricate systems of the natural world, and endangered species such as African wild dog and rhinoceros.

Private nature reserves are established by agreement between the landowners and essentially involve removing fences between the separately owned properties to create larger conservation areas. The landowners act as custodians of the land for the benefit of conservation.

When joining a large conservation area with multiple owners, the intentions and goals of the respective owners must align under a shared vision and unified management. While conservation is a key motivation, the aim is often to maximise value and profit. Land designated for conservation and tourism, rather than commercial farming, generally appreciates in value, sometimes significantly so, enhancing the economic benefits of participation in such initiatives.

To create a successful conservation area, one must consider several issues including:

participation on a proportional or value basis,
shared traversing rights,
the utilisation of animals,
management,
hunting,
development,
how the reserve area will be financed,
the basis for liability for levies to finance the reserve, and
how conflicts will be handled.

All of these must then be incorporated into the legal framework by agreement with all the owners.

There is also the statutory framework to consider, the cornerstone of which is the National Environmental Management: Protected Areas Act 57 of 2003 (“NEMPAA”), which provides for the protection and conservation of ecologically viable areas.

The main issue that owners participating in the reserve must face is a partial loss of autonomy to a greater or lesser degree over their individual properties and allowing for other owners into the venture. Generally, a constitution is required, to regulate the issues. Owners must be willing to subordinate some of their individual land rights, accepting that ownership will be represented through participation in a governing body operating within agreed parameters, typically defined by the area of the land each owner holds. Additionally, the liability for reserve costs will often be based on an area basis.

Whether to incorporate the reserve’s constitution into a Memorandum of Incorporation (“MOI”) under the Companies Act, will often be determined by the number of members and by the number of properties involved. Generally, it is beneficial to have an entity within the framework of the Companies Act, so that the constitution does not deal with every element of the governance of the entity established. A common way of dealing with this is to establish a non-profit company (“NPC”) in terms of the Companies Act.

To function effectively, rules must be established, even though they may limit the sovereignty of the individual owners. These rules should align with a shared conservation objective.

Once a reserve has been established, landowners should consider whether the reserve established should fall under NEMPAA, either as a nature reserve, or a protected area. For example, a requirement of the reserves within the Greater Kruger Area is to be declared a nature reserve under NEMPAA and, to do so, the entity controlling the reserve, such as the NPC, would agree with the appropriate MEC in Provincial Government, with an approved Management Plan for the area. This requires that a Notarial Deed be executed by or on behalf of the landowners to be registered against the title deed of each property, recording that the property is a nature reserve under the Management Authority. The benefits of such a declaration include protection against mining and prospecting activities, as well as property rates and tax exemptions. However, having committed one’s property to such a regime brings statutory consequences for non-compliance and stricter convictions for illegal activities. Declaring a nature reserve also carries a distinct marketing advantage for the reserve.

Formal recognition as a nature reserve is not mandatory, and other agreements concluded between the MEC and the landowner, backed by a Management Plan, may also be effective.

The establishment of a new reserve is a task that will often take months to negotiate and to settle, given the complexities arising out of owners losing absolute ownership control of their properties and submitting to another jurisdiction. It is critical for landowners seeking to commit their land to a reserve to take advice, ensuring that their intention to protect biodiversity is met, while their commercial interests are protected. This is of course evidenced by the fact that once established, disputes between members are unfortunately somewhat common. Proper advice at the start could remove future friction and could, importantly, ensure that the initial laudable purpose of the endeavour is met.

Andrew Bembridge

Head of Department | Property

abembridge@ENSafrica.com