A Saskatchewan family interested in wind power says a conservation easement is damaging the value of its land and hurting its earning potential.
The matter has the family in court, challenging provincial legislation and the Nature Conservancy of Canada.
In a notice of motion filed in Moose Jaw Court of Queen’s Bench in May, Sheldon and Trevor Mattus, who operate Antelope Creek Enterprises Ltd. along with their father, Ron, seek to terminate a conservation easement on land the brothers own.
The easement was signed for the protection of natural wildlife habitat and plant and animal species. It exists for perpetuity.
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“It is something you would expect,” said Jordan Ignatiuk, director of land conservation for the NCC. “The first-generation grantor, who actually allowed the easement, is the person who was in favour of it in the first place. When it becomes second-, third-generation landowners who now have the land with this encumbrance, they’re the ones you’re going to expect are going to try and push the limits and try to see what’s allowable or what isn’t.”
In an affidavit filed in April, Sheldon said the brothers acquired several parcels of land in the Morse, Sask., area in 2005. However, before the closing date for the sale, it was revealed the seller had entered into easements with the NCC on 10 quarters involved in the purchase.
Information contained in an affidavit has not yet been proven in court.
In the document, Sheldon said the family had invested approximately $100,000 of input costs into the land before learning about the easements. They proceeded with the sale and have used the property for pasture-land, Ron explained in an interview.
In 2010, the family said it was approached by Confederation Power Inc., an Ontario-based power generation company that’s now part of Sprott Power Corp., because its land was in the district of its Riverhurst I Wind Project, a 10-megawatt project that seeks to build five turbines in southern Saskatchewan.
The development could see two turbines built on the Mattuses’ land. The easement, however, prevents construction.
“In a case like this one, or any easement that we place on native prairie, it’s to remain unchanged,” said Ignatiuk. “So you can’t break the land. You can’t drain wetlands. You can’t put up new structures.”
Ignatiuk’s affidavit lists the destruction of native habitat, the disruption of waterfowl breeding cycles and the threat of bird strikes as concerns of the NCC.
“Usually those are properties we just avoid,” said David Eva, project management director for Sprott, who said roads and a turbine foundation are required for construction. “And here it’s a case where we’ve left it up to the landowner to, if it’s something that they feel they can resolve, then we’re happy to work with them.”
Under the Conservation Easements Act, an easement can be terminated by a written agreement between the holder and the regist e re d owner or by the Court of Queen’s Bench “… where the court is of the opinion that continuation of the easement would produce a severe hardship for the applicant.”
The family is arguing the restraints put on the land constitute a financial hardship, limiting the earning potential of their farming operation because the wind turbines would be a source of revenue.
“We can’t do nothing on the land. They’ve got more say than we do,” said Ron.
Sheldon’s affidavit claims each turbine could generate more than $8,000 per year, plus a signing bonus and $2,700 per year for the tower construction. If the project expands, there’s further earning potential, said Ron.
“With these towers on the land, we wouldn’t even have to put a cow on the land,” he said.
“The loss of income is going to be anywhere from $20,000 a year to $120,000 a year.”
The Saskatchewan Association of Rural Municipalities has passed resolutions to lobby for changes to the Conservation Easements Act, introduced in 1997.
In 2006, one resolution asked to set a maximum timeframe on conservation easements.
Doug Steele, Division 3 director for SARM, who sits on the group’s southern crown land conservation management strategy committee, said that while there has to be a balance between encouraging development and protecting habitat, there also needs to be flexibility.
“It’s too bad we couldn’t have something that … is user-friendly, it gives everybody a basic understanding and, at a certain point in time, if discussions need to happen, maybe they can take place,” he said. “It’s like a living document. It has to change and adapt as we move forward.”
Legislation that would allow for an easement to be amended exists, but has yet to be proclaimed.
As the Mattuses’ case heads to pretrial in March, the Riverhurst project remains in the development stage. Construction originally targeted for 2013 has been delayed to 2014, said Eva, but Sprott will be finalizing its designs next year.
“Certainly there will come a time where if this issue is not resolved on their land, then their lands will not form part of the project,” said Eva.
