On June 1, 2019, proposed Migratory Bird Convention Act Regulations ("MBRs") were published in Part I of the Canada Gazette.
The Migratory Birds Convention Act, 1994 (the "MBCA") was first adopted in 1917 to implement the 1916 international convention on Migratory Birds between Canada (the United Kingdom at that time) and the United States of America. Migratory bird populations were in dramatic decline by the early 1900's and the Convention committed both countries to put protections in place.
The MBCA protects migratory birds through a broad prohibition on disturbing or destroying birds, nests and eggs, accompanied by a hunting and permitting regime set out in regulations. Most of the proposed regulatory changes deal with hunting and Aboriginal rights, but the portion that Industry will be interested in pertains to the protection of nests.
Current Prohibition on Destroying Nests
With respect to protecting nests, the current MBRs read:
6. Subject to subsection 5(9), no person shall
(a) disturb, destroy or take a nest, egg, nest shelter, eider duck shelter or duck box of a migratory bird, or
(b) have in his possession a live migratory bird, or a carcass, skin, nest or egg of a migratory bird
except under authority of a permit therefor.
The MBRs do not explicitly limit the prohibition to active nests, so arguably an individual may be in violation of the regulations if he or she disturbs, destroys or removes a nest even after it is no longer being used by birds.
The issue for Canadian industries has been with respect to the inadvertent and unavoidable destruction of migratory bird nests while carrying out otherwise permissible and necessary activities (often called "Incidental Take"). Examples of Incidental Take would include the inadvertent destruction of nests during the clearing of trees and other vegetation around linear infrastructure like pipelines or hydro lines, the flooding of nests built on the shore of an operational hydro dam, or the removal of nests during necessary maintenance of Industrial infrastructure.
The problem has been that the MBR's permitting regime does not address Incidental Take. It is generally limited to permitting intentional impacts like hunting, scientific research, aviculture, the protection of crops or property, and controlling migratory birds around airports. There is currently no regulatory authority to provide authorizations or permits to allow for Incidental Take of migratory birds and their nests and eggs.
Avoidance Guidelines and Best Management Practices
In the absence of permit authority or exemptions for unavoidable Incidental Take, Industry has focused its efforts on working with Environment Canada to develop guidelines and best management practices ("BMPs") to avoid and lessen the risk of Incidental Take of migratory birds, nests and eggs.
In 2014, Environment Canada, Canadian Wildlife Service, published Avoidance Guidelines to help Industry reduce the risk of Incidental Take, and Industry Associations produced BMP's for their member companies (for a good example, see the Canadian Electricity Association's 2018 BMP for Utilities). The challenge for Industry is that even following these Guidelines and BMP's will not ensure compliance with the broad prohibitions in the MBCA.
The proposed regulations published on June 1, 2019, partially address the legal risk associated with the Incidental Take of nests by Industry. They propose to create a partial exemption from the prohibition on destroying nests:
5 (1) A person who does not hold a permit authorizing one or more of the following activities or who is not otherwise authorized by these Regulations to carry out that activity must not:
(a) capture, kill, take, injure or harass a migratory bird;
(b) destroy, take or disturb an egg; or
(c) damage, destroy, remove or disturb a nest, nest shelter, eider duck shelter or duck box.
(2) However, the following may be damaged, destroyed, removed or disturbed without a permit:
(a) a nest shelter, eider duck shelter or duck box that does not contain a live bird or a viable egg;
(b) a nest that was built by a species that does not appear in a Table to Schedule 1 if that nest does not contain a live bird or a viable egg; and
(c) a nest that was built by a species that appears in a Table to Schedule 1 if the following conditions are met:
(i) the person who damages, destroys, removes or disturbs that nest provided a written notice to the Minister a number of months beforehand that corresponds to the number of months set out in column 4 of the relevant Table to that Schedule for the species, and
(ii) the nest has not been used by migratory birds since the notice was received by the Minister.
This proposed regime would permit the destruction of nests outside of the breeding season (when nests are empty) for species that do not usually reuse their nests. Species that rely on returning to their nests year-over-year are listed in the proposed Schedule 1.
As explained by the Regulatory Impact Analysis Statement that accompanies the proposed MBRs, subsections (a) and (b) protect active nests during the breeding period, which, for most species, is the only time nests are required for reproductive success. Whereas subsection (c) protects nests of specific migratory bird species that reuse their nests in subsequent years. These nests can only be destroyed if they have not been used by a migratory bird for a designated period of time, which would indicate that they have been abandoned.
While the promulgation of these proposed regulations is likely to be welcomed news for Industry, they will still be subject to legal risk associated with the Incidental Take of birds and eggs themselves.
The government will be accepting comments on the proposed regulations until the end of July 2019. Submissions should be addressed to Caroline Ladanowski, Director, Wildlife Management and Regulatory Affairs Division, Canadian Wildlife Service, Department of the Environment, Gatineau, Quebec K1A 0H3 (fax: 819 938 4147; email: ec.ReglementsFaune-WildlifeRegulations.email@example.com).
1 16 migratory bird species are included in the proposed Schedule 1. See page 5 of the Regulatory Impact Analysis Statement for a list.
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