If starting a new land trust is right for you, you are now ready to set up an effective, charitable, land conservation corporation. The legal process will require leadership, advisors, time, money, attention to detail, and patience. It is beneficial to seek advice from experienced land trusts and professionals to help guide the process.  Feel free to contact the alliances; they can help connect you with these professionals. Obtaining your own lawyer is also highly recommended.

A land trust is usually a not-for-profit corporation that has obtained registered charity or equivalent status. Other models are available but are not explored here, such as a charitable trust or agency of government. There are several reasons why the not-for-profit charity model is useful:

• • When you incorporate as a corporation, you create a separate legal entity. This means, among other things, that you can acquire assets and enter into contracts – both key components of a land trust’s ability to hold land. Therefore, incorporation is a necessary step to forming a new land trust. To qualify for charitable registration, an organization is usually a not-for-profit (sometimes called “non-share capital”) corporation under Provincial, Territorial or Federal corporations laws.

• • As a registered charity or equivalent, you have various benefits. You: can issue official donation receipts for gifts, are exempt from paying income tax, are eligible to receive gifts from registered charities, gain increased credibility in the community, and many goods and services you provide are exempt from goods and services tax/harmonized sales tax (GST/HST). Check out the Canada Revenue Agency’s advantages and obligations of becoming a registered charity for more details.

Setting up an effective organization

By the time you have decided to start a new land trust, the steps to setting up an effective organization may have already been set in motion. A group of founding members may have been assembled, and mission, scope, partners and potential barriers may have already been identified. If you have not yet done so, work through Appendix 1:  Guide to the Formation of an Effective Land Trust.  Then, complete the following steps:

• • Agree upon and write down a mission statement and purposes to describe what your land trust aims to achieve. Keep in mind that, to also become a charity, the corporation’s purposes must be for public benefit and fit with CRA requirements. Examples of such charitable purposes can be obtained from the alliances and other land trusts.

ACLT also has examples of these for Indigenous-led land trusts.

• • Choose a name for the organization.

This is often in English, French, or both. However, depending on the place where the organization is incorporated, it also may use Roman/Latin alphabet letters and some symbols to spell a name in an Indigenous language, usually with a reference to it being a corporation, such as “Inc.” or “Corp.” for “Incorporated” or “Corporation” at the end of the name.

• • Figure out important logistics, such as where the organization will be housed, how it will be financed, who will be the core team, what role each person will play, and what their responsibilities will be.

• • Work out the structure and way of determining the organization’s leadership. It may be the common form of members electing directors, or it might be community organizations and/or governments appointing representatives to be directors.

Consider applying Indigenous and decolonized structures and models.

• • Choose a leader to chair meetings and track tasks, either for a certain period or on a revolving basis.

• • Slowly begin to foster community support by approaching and providing an appropriate level of information to key community representatives. 

• • Raise or get commitments for initial seed funds to carry out legal steps of forming a land trust – approach people who are likely to believe in the mission and local need for a land trust. Emphasize the professional organizational structure and likelihood of success. Be clear that the land trust is not officially created yet and that no tax receipt can be issued by the land trust for this early support.

• • Build an understanding of the relevant information outlined in Appendix 2: Governing Legislation and Guiding Resources.

• • Follow the steps laid out below and in Appendix 3: Guide to the Legal Steps to Forming a Land Trust.

Incorporating your Land Trust

This is a key component to establishing a new land trust. When you incorporate, you create a separate legal entity. This is essential to be able to hold land, as a corporation can acquire assets and enter into contracts, among other things.

A not-for-profit organization can be incorporated either under provincial/territorial legislation or under federal legislation, and the method chosen will affect the application process:

• • If you choose to obtain federal incorporation, you will likely need to also register in the province(s) or territory(ies) where your organization operates. While federal incorporation establishes it as a legal entity, provincial and territorial registrations may be essential for your organization to conduct its activities within specific regions of Canada. Corporations typically need to complete the registration process within a few weeks of commencing their activities in the respective jurisdictions[6]. Learn how to register your federally incorporated non-profit in a province or territory.

• • Federal incorporation may be useful for Indigenous-led land trusts, since Indigenous peoples, their lands, treaties, and claims are primarily addressed through federal responsibilities. Also, Indigenous Nations’ territories usually don’t follow provincial or territorial boundaries, and thus may extend beyond just one province, territory, or country. For example, Mno Aki Land Trust is a federally incorporated land trust.

• • If you choose to obtain provincial/territorial incorporation, there are often less filing and registration obligations. However, the name of your not-for-profit may be better protected under federal incorporation processes.

• • Read up on some of the differences between federal and provincial/territorial not-for-profits to help guide your decision.

• • Read through some frequently asked questions about each method of incorporation answered by Corporations Canada.

If you wish to participate in Environment Canada’s Ecological Gifts Program (critical if you want to offer enhanced tax benefits to potential donors of ecologically sensitive lands), make sure that the purposes include conservation and that the dissolution/distribution of assets upon wind up clause is in a form acceptable to Environment Canada. This will save costly amendments to incorporation documents later on.

Please refer to Appendix 3: Guide to the Legal Steps to Forming a Land Trust for details on applying for either provincial/territorial or federal incorporation, as well as the associated steps and required documentation.

Applying for Charitable Registration

If your organization wants to offer tax benefits to donors of land and cash, and qualify for certain funding and tax programs, it is necessary to become a registered charity or equivalent with the Canada Revenue Agency.  “Equivalents” could be  “a public body performing a function of government in Canada” (such as an Indigenous Band or corporation), another kind of “qualified donee”, or a “prescribed donee”[7]. For this reason, charitable or equivalent registration is considered here as an essential step in setting up your land trust.

In order to be registered as a charity, you must draft purposes (also sometimes referred to as ‘objects’) which are wholly charitable. This concept also applies to the types of activities and documents you describe or include in the application to CRA. It is important to note that, while applying for charitable status is a secondary step to incorporation, to avoid having to change your letters patent or articles (and pay the associated change fee), you must ensure you have included charitable purposes at law in your governing documentation when applying for incorporation. It is highly beneficial to seek legal advice to draft charitable purposes and potentially consider examples of purposes from land trusts or other charities with similar mandates and which have recently become registered as a charity.

[7] These are terms used in the Income Tax Act (Canada) and by the Canada Revenue Agency for certain types of organizations that can offer tax receipts for some types of donations.