The Sustainable Future of Farming and Food in Alberta

The land gives us more than food, but can the law give back?

Conservation

The supervision, management, and maintenance of natural resources. – (Black’s Law Dictionary)

The responsible preservation, management and care of our land and of our natural and cultural resources. – (Alberta Land Use Framework)

A state of harmony between men and land. – (Aldo Leopold)

Set foot on Ruzicka Sunrise Farm and something feels different. Whether it is the diversity of birds, the native prairie, or dugouts that test cleaner than some municipal water sources, Don and Marie Ruzicka are clearly deserving of the recognition they have received for environmental conservation. The Ruzickas raise poultry, hogs and beef using a pasture-based model. In contrast to industrial norms, their management practices pursue environmental and economic sustainability together.

I originally went to Sunrise Farm seeking a farmer’s opinion on government policies, but within minutes Don and I were talking human values. We are both followers of Aldo Leopold, the pioneering conservationist whose 125th birthday would have been this year. As a young government officer, Leopold’s job was to kill wild animals that killed livestock and game species. As he came to respect his prey, he theorized that humans would benefit by protecting natural diversity rather than dominating the living world. He urged public policy-makers and private landowners to promote wildlife habitat, not just produce species for human consumption. In his later years, he took to restoring degraded farmland as a form of recreation that could help the environment. Published posthumously in A Sand County Almanac (1949), Leopold’s “land ethic” offered ranchers and farmers a more relevant philosophy than wilderness ethics derived from distant peaks. In doing so, he empowered those who work the land to care for the environment, not just care about it.

How important are today’s Leopolds to a sustainable future? Crucial, if one considers the historic settlement of western North America. Despite its vastness, the West is a land of limited livable space. The original homesteads were established on farmable land near water sources, in warm valleys, or on snow-free prairies. Governments kept ownership of the less hospitable, but geopolitically important mountains and forests. Consequently, not much of the West is in private hands, but much of the ecologically important land is. Public parks and wilderness areas simply cannot provide for our full ecological needs. Food is one. Others include clean air, clean water, healthy wildlife, and healthy landscapes. Maintaining a viable habitat for humans and the species on which we depend will require private conservation. Fortunately, despite any ideological differences, environmentalists and agriculturalists often share a belief that they are serving the public good. The big challenges are more practical.

Why is it that conservation is so rarely practiced by those who must extract a living from the land? It is said to boil down, in the last analysis, to economic obstacles. – (Aldo Leopold)

Making laws that promote the agriculture-environment connection is challenging. We need to keep land in agricultural production but we need agricultural practices to be environmentally friendly. New regulations could scare the agricultural sector as it is already struggling financially. Add new costs and farmland becomes more economically valuable for other uses. Flat fields and open ranges get eyed for suburban sprawl or for extracting natural resources from underground. Furthermore, land use regulations are often perceived to be at odds with private property rights. This standoff is especially tense in the West, where owning a piece of the frontier once promised freedom to do as one pleases. The solution will need to be viable for farmers and respect the place of land ownership in western culture.

One attempt to address this challenge is Alberta’s Land Use Framework. This provincial government policy intends to rely on public and private lands in pursuit of ecological sustainability. The Land Use Framework will create regional plans to provide a vision for land use, development, and conservation for defined geographic areas. Once made, regional plans could have legal weight over official decisions like subdivision development or natural resource permitting. To assist in pursuing these visions, several conservation tools are provided by the Alberta Land Stewardship Act. These options range from ‘soft’ to ‘hard’. The softest option is to rely on voluntary management practices. Simply hope that more landowners do what the Ruzickas do. Further hope that they make enough of a living to keep on farming. At the hard end of the spectrum is command and control regulation. Government could protect the agricultural or environmental value of land through “conservation directives” that prohibit certain uses. This is the option most likely to trigger property rights claims. ALSA allows landowners to challenge regional plans and claim financial compensation if conservation directives cause lost property value.

The middle ground is a series of ‘market based’ conservation tools: financial incentives to develop land, or disincentives to develop it. ALSA could allow landowners to:

  • receive public funding for research and development of conservation projects;
  • sell offsets to counterbalance the impact that other land users have on the ecosystem; or,
  • sell their development opportunities to developers in less ecologically important areas.

Market-based regulation has its critics. As discovered with greenhouse gas offsets, there needs to be assurance of results. Financial deals to conserve private land will likely need to be sealed by conservation easements.

Conservation easements are legal agreements to restrict development while allowing traditional land uses to continue. Landowners give up their rights to develop their land to a legislatively qualified organization, usually a ‘land trust’. Conservation easements are governed by legislation. Under ALSA, conservation easements can be used for environmental or agricultural protection purposes. Creating a conservation easement is voluntary, but once in place it is legally enforceable. Conservation easements run with the land, not the landowner, so the land will stay protected even if it is sold.

Conservation easements can protect farmland from real estate development but they do not prohibit the extraction of oil, gas, or mineable minerals. This is because in Alberta, like many other places, legal ownership of underground minerals is separate from ownership of the surface. Hold that thought as we explore whether reliance on the market is enough to promote the public good.

The week I returned from Sunrise Farm, the Government of Alberta launched the Land Trust Grant Program, allocating 5 million dollars to conservation easements. The first ALSA tool to be attempted is a straight financial incentive. To qualify for funding, private projects must align with public policy objectives to conserve ecologically important lands. The screening process will consider whether the lands in question are vulnerable to competing land uses. This program is a good start for a new public policy initiative, but the real test will come when there are competing public goods. Alberta legislation requires that natural resource projects be in the “public interest” before they can be permitted (Energy Resources Conservation Act; Natural Resources Conservation Act). The public interest test requires that permitting agencies consider the social, economic, and environmental impacts of the project. When a project is proposed, landowners and easement holders have a right to a hearing because their own legal interests may be directly and adversely affected. This provides an opportunity to raise public concerns; for example, the fact that their area is ecologically significant or that they received public funding for a conservation easement. They can use the hearings to generate political attention, pressure the resource company to negotiate, leverage commitments to limit surface disturbance, or ask the permitting agency to deny the project. Someday, private conservationists might be able to argue that a regional plan prevails over the permitting process. Until that day, the permitting agency has no obligation to conclude that the landowner’s personal preference or conservation efforts represent the “public interest”. The project can be approved, after which the resource company can force entry onto the land. The landowner will receive, you guessed it: financial compensation.

It is hard to make a man, by pressure of law or money, do a thing which does not spring naturally from his own personal sense of right and wrong.

– Aldo Leopold

If one theme emerges from the above examples, it is that current law and policy are reducing private conservation to property rights, and property rights to money. This is a very narrow interpretation of the interests associated with living on and caring for the land. Unfortunately, this narrow interpretation could undermine the entire spectrum of regulatory tools. Command and control regulation might not occur if governments fear paying compensation. If governments must pay to infringe on property rights, they will do so to extract natural resources before they do so to pursue ecological goals. Perhaps of greater concern, voluntary measures will be hard to encourage if what one cares most about could be lost anyway. Conservation may involve a utilitarian balancing in some definitions, but by other definitions it is a moral act. If so, the best reward may be for government policies, plans, and regulations to uphold human efforts and human values. Where private land has public importance, the question becomes not what rights you have, but what you do with them. Until that question is raised, the “public interest” will remain a long way from the ‘public good’, and the Land Use Framework a long way from Aldo Leopold’s land ethic

As I sat down to my Thanksgiving dinner, delivered by Sunrise Farm, the last thing on my mind was government policy. I was making the agriculture-environment connection by supporting farmers who support the environment.

Authors:

Adam Driedzic
Adam Driedzic is a Staff Counsel at the Environmental Law Centre in Edmonton, Alberta.
 


A Publication of CPLEA