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Protecting migratory birds

Petition

PETITION UNDER THE AUDITOR GENERAL ACT

1. Nature of the Petition

Introduction

This petition is being submitted by the Sierra Legal Defence Fund (SLDF) on behalf of the Animal Alliance of Canada, the Ontario Field Ornithologists (OFO), and [a Canadian resident]* (on behalf of the Friends of the Spit) pursuant to section 22 of the Auditor General Act, R.S.C. 1990, c.A-17, as amended, concerning an environmental matter in the context of sustainable development, namely the improper application of the Migratory Birds Regulations as exemplified by the destruction of several active Common Tern nests in contravention of the Regulations, and the improper authorization of the said destruction under the Regulations.

Terns are protected in Canada under the Migratory Birds Convention Act (MBCA), which is administered by the Canadian Wildlife Service (CWS), the branch of Environment Canada that is responsible for the protection and management of migratory birds. The purpose of this petition is to require CWS to examine how the destruction that occurred on the Leslie Street Spit (Toronto), on June 1, 1998 was purported to be authorized, and how improvements can be made in the administration of the MBCA permits process so that problems such as this do not reoccur. Specifics as to the relief requested are outlined in section 4. Background to the situation and reasons why it is relevant to the concept of sustainable development are provided in sections 2 and 3 respectively. Attached are a number of documents that support the allegations set forth in this petition.**

Conformance with the Auditor General Act

It is respectfully submitted that this petition falls within the requirements of section 22 of the Auditor General Act. It falls within the requirements for the following reasons:

(a) The petitioners are all resident in Canada. Animal Alliance of Canada is incorporated under the laws of Canada and has its principal place of business in Ontario. Ontario Field Ornithologists is incorporated under the laws of Ontario and has its principal place of business in Ontario. [The other petitioner]* resides in the City of Toronto, Ontario.¹

(b) The subject matter of this petition concerns an environmental matter in the context of sustainable development in that it has implications for Canada's biodiversity. Sustainable development encompasses a wide range of environmental matters including wildlife management and biodiversity conservation. It is respectfully submitted that the careless destruction of the nests of a protected bird species and the proper administration of migratory bird permits are matters in the context of sustainable development.

(c) This petition is being directed to Environment Canada which is a category I department as defined under the Auditor General Act.

2. Background to the Subject Matter of the Petition

The nest destruction incident occurred on the southeast side of the Leslie Street Spit in Toronto on June 1, 1998. A similar incident may have also occurred during the month of May 1998. A bulldozer graded lands that hosted a substantial colony of common tern nests thereby destroying several active nests. An investigation of the incident was requested under Ontario's Environmental Bill of Rights and documents were obtained through requests and appeals under provincial and federal freedom of information legislation. The documents obtained by the petitioners revealed that the CWS failed to adhere to proper procedures in authorizing the destruction and failed to have due regard to the birds in question in approving an undertaking for which feasible alternatives existed.

The incident was witnessed first hand by a number of people, including Dr. Verna Higgins and Jean Iron, President of the OFO. A summary of their observations can be found at Tabs 1 and 2 respectively.** The witness, Jean Iron, observed at least five nests being destroyed. In addition, she observed that approximately 100 agitated common terns were circling the bulldozer at the time the work was being undertaken. A second site visit by the witness, Jean Iron, on June 6, 1998 revealed approximately 60 pairs of terns attempting to recolonize the bulldozed area. It is estimated that at least five nests and up to approximately 60 nests were thus destroyed by the site grading activities. Furthermore, a letter from Environment Canada at Tab 3** suggests that other nest destruction may have taken place prior to May 25, 1998. The letter indicates that "substantial renesting or new nesting had occurred" in an "area graded prior to May 25."

The Toronto Harbour Commissioners (THC) can be identified as responsible for the grading activity in question, having contracted with the bulldozer operator to grade the site. The Canadian Wildlife Service (CWS) was responsible for issuing the permit that authorized the THC to move forward with its destructive activities, without taking the appropriate measures to ensure the protection of the tern nests. The appropriate permitting procedures were apparently not followed. The permit, which is attached at Tab 4**, allowed for the collection of newly constructed nests and newly laid eggs and for their disposal by burying.

The basis of this petition relies on three separate issues of concern:

(i) Collection and Disposal of Eggs was Permitted without Written Approval:

An examination of the permit issued by CWS to the THC at Tab 4**, reveals that the date of issue on that document was June 2, 1998 - one day after the bulldozing in question took place. Moreover, as can be seen from the notes of Donna Stewart of the Environmental Conservative Branch of Environment Canada at Tab 5** "a verbal go-ahead was given" on May 25, before the THC had even applied for a permit under the MBCA. Thus, the CWS knowingly allowed the grading of the site to proceed prior to the granting of any formal written approval, thereby violating both the wording and spirit of the Migratory Bird Regulations.

(ii) The Permit was Issued in Contravention of the Migratory Bird Regulations:

A further examination of the permit at Tab 4** shows that the permit was issued under section 26.1(1) of the Migratory Bird Regulations, which states:

26.1 (1). The Minister may, where he has reason to believe that it is necessary to reduce the damage or danger that migratory birds are causing or likely to cause to health, safety, agricultural or other interests in a particular community, issue to a person who owns, leases or manages an area of land in that community, a permit that specifies the area and authorizes the person or his nominee to collect and destroy the eggs of migratory birds specified in the permit and to dispose of the eggs in the manner provided in the permit.

(2) A permit issued under subsection (1) is valid from the date of issue to the expiry date specified in the permit or, if it is cancelled by the Minister, to the date of cancellation.

It is apparent that section 26.1(1) of the Migratory Birds Regulations does not permit the bulldozing of nests and destruction of eggs. That section only applies to collecting, destroying and disposing of eggs of migratory birds likely to cause damage or danger to health, safety, agricultural or other interests in a community. Moreover, there is absolutely no evidence that the terns were causing any damage or danger. The letter at Tab 6** from Donna Stewart, the Environment Canada representative assigned to handle this matter, raises further questions as to the basis of the permit. In speaking of her meeting with the THC she states, "[A]fter asking them numerous questions about the survey, it became pretty clear that the need for this "smooth" ground is for ease of access, not some real instrumentation requirement." It would appear from this comment that Ms. Stewart applied section 26.1(1) in a situation of convenience rather than as a necessary measure of last resort where birds are causing harm.

(iii) The Permit was Issued for Inappropriate Reasons

The final, and perhaps most disturbing issue of concern, relates to the grounds upon which CWS issued the permit in the present case. As evidence obtained from CWS shows at Tab 5**, the CWS has consistently defended its decision to issue a permit to the THC with four arguments. First, it has been argued that the nesting of Common Terns on the Leslie Street Spit is unpredictable and that the birds do not show great loyalty to this site. Second, CWS has held that since the birds tend to nest in areas frequented by people and construction activities, their productivity has only been marginal on the spit. Third, CWS believed that the birds would likely re-nest after the disturbance had abated. Each of these justifications shows a callous disregard for living things and is especially objectionable for a species already in decline. As the agency mandated with the protection of migratory birds, it would seem that the destruction of migratory birds' nests should be of concern to the CWS. Yet it apparently placed the convenience of the THC ahead of the protection of the nest site. This approach shows no apparent regard for the well being of the individual terns involved nor of the legal requirements imposed by the MBCA. Fourth, CWS has argued that the permit was issued because the THC needed to conduct a land survey in an emergency fashion. As indicated in Tabs 3, 7, and 8** the grading was intended to be completed earlier in the season before the active nesting period but was delayed because of problems with the bulldozer. Rather than fixing the bulldozer in a timely fashion or renting another bulldozer, it appears that the site grading was simply put off until the bulldozer was fixed - without any regard to the nesting terns. When the bulldozer was finally fixed, the CWS concluded that a permit could be issued as an emergency in that the work had already been delayed. The "urgency" of the activity in question was by no means sufficient to justify the destruction of the tern nests. The need to complete a survey is not an "emergency" that could not have either been done earlier or later to accommodate the nesting terns. To term this activity as an emergency showed a significant disregard for the well being of the tern colony. In retrospect, this fact became even more evident when the survey work in question was discontinued until mid-August for weather and tern-related reasons (Tab 9).**

3. Accountability in Respect of the Destruction of the Tern Nests

It is respectfully submitted that Environment Canada should be held accountable for the destruction that occurred on the Leslie Spit. While there is no reason to believe that this site-specific problem will reoccur (because of both the publicity surrounding it, and a commitment by the THC to avoid such problems in the future), the over-arching problem of CWS' misuse of the permitting process under the MBCA does need to be addressed. By requiring the CWS to reexamine the problems that occurred in this particular incident, it should help reduce the possibility of CWS issuing permits that are not justified or not in accordance with proper procedures. Ensuring that history is not repeated and that CWS learns from its mistakes will help better accomplish the conservation goals of the MBCA and `sustainable development'.

The protection of migratory birds is undeniably a crucial element of sustainable development. It has been addressed through several international agreements, the subject of study by the North American Commission on Environmental Cooperation, and assisted by countless governmental and non-governmental organizations around the world. This particular incident raises concerns with respect to CWS' commitment to adhering [t]o proper procedures in situations involving harm to birds and nests, its apparent low threshold for granting a permit for a matter that was simply 'of convenience', and its total ignorance of the effect of the individual nesting pairs involved. While concern is understandably addressed to the conservation of bird 'populations' this is not an excuse to ignore the interests of the individual birds or nest being harmed. This principle is reflected in the Migratory Birds Regulations themselves in that destruction of individual birds and nests are prohibited regardless of whether there is a discernable impact on the population as a whole. Moreover, regardless of the impact on the individuals, undertaking activities that require birds to subsequently renest negatively impacts the survival rate of young, reduces the ability of birds to raise two broods in productive years, and can pose additional stresses on adult birds required to expend energies to accomplish a successful renesting effort.

The Toronto Region Conservation Authority has been active in creating artificial floating nesting platforms at the Spit for the terns over the past several years as part of a program to help the common tern recover from significant population declines in the Great Lakes. "In the past 20 years, the Canadian Great Lakes common tern population has undergone a major decline with reductions in numbers of breeding birds at some sites and entire colony desertions at others. Whereas in the early 1970's there were several colonies on Lakes Erie and Ontario with over 1000 breeding pairs and many other smaller colonies, by 1995 only two large colonies remained" (reference: Brock Seabird Lab, Brock University, 1996). Terns now occupy the artificial nesting platforms at the Spit, while other terns have taken to nesting on the Spit's flat ground. It is one of the ground nesting colonies that was bulldozed by the THC (simply because the ground nesting birds are less productive than the platform nesting birds due to predation, that is no excuse to disregard them). Given their protected status under the MBCA, their recent population decline, and the significant efforts underway to help them recover, unjustifiable activities that destroy their nests are very serious.

The Auditor General Act defines "sustainable development" as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs." Furthermore, the Commissioner of the Environment and Sustainable Development has listed the need to ensure Canada's biodiversity as one of the fundamental goals of the department, in the publication "A Guide to Green Government". For the CWS to have issued a permit for the destruction of active tern nests simply because equipment was broken and because there was a chance of re-nesting shows at best a misunderstanding of the concept of sustainable development and due regard for wildlife, and at worst a total disregard for the principles. Wildlife and environment laws must be abided by all the time - not just when convenient.

A review of some of the correspondence relating to this issue (obtained through Access to Information requests) demonstrates other instances of inappropriate conduct by CWS in the handling of this file. For example, one or more parties (including Sierra Legal Defence Fund) requested copies of the CWS permit for this incident. This permit, issued by a federal agency to another federal agency for activities on Crown land should have been a matter of public record. Indeed, internal email correspondence within CWS demonstrates that CWS had the permission of the permitee to release a copy of it. Nevertheless, CWS stonewalled attempts to obtain the permit and forced the requesters to make a request under the slow Access to Information procedure. A particularly offensive example of CWS' approach to responding to a legitimate request for a copy of the permit and related records is found at Tab 10**, in which an official states:

"Given that [ ....] could likely get the information that he is after through ATI, unless there is something in the Sept. 29 memo that would preclude its general distribution, I guess the decision is whether to release the information now or let him work for it through an official ATI request or as part of discovery in any potential court case." (emphasis added)

Indeed, CWS did make the requesters 'work for it' to receive the records, despite having permission to release them from the permittee. This was a fundamental breach of the CWS' role as an arm of the public service.

Another example is found at Tab 11**, in which the CWS writes a letter to a member or official of the Federation of Ontario Naturalists (FON). In this letter, the CWS provides a very incomplete rendition of the facts in an attempt to respond to a letter of concern. Most notably, the letter seems to pin the problems on non-normal weather and early nesting when the CWS' own documents showed that the chief reason for the unfortunate incident was the fact the THC's bulldozer was out of service earlier in the year. Later, it states that `no known nests or eggs were damaged or destroyed'. This statement is most surprising in light of the fact that the President of the Ontario Field Ornithologists was an eyewitness to the destruction (perhaps the CWS is of the view that no nests are destroyed unless a CWS official actually witnesses the incident?). In providing such a selective summary of the facts leading up to the incident, so as to apparently preserve its own public image, the CWS has illegitimately tarnished the image of those who were rightly concerned about the incident.

The discovery of records such as those summarized above through the Access to Information process, has in part led the petitioners to follow-up further on this issue through the petition process. The records show that this was not just a case of inadvertence or negligence, but rather revealed a course of conduct that was unresponsive to legitimate public concern. Moreover, the CWS put a higher priority on its own interests than it did on serving the public and being forthright and honest about the situation. It is hoped that, though this petition, the CWS will learn from its mistakes and put into place the appropriate policies and procedures necessary to uphold the spirit and the letter of the Migratory Birds Regulations and its role as a public service agency.

4. Relief Requested

This petition is being submitted with a request for the following relief:

(a)

The Canadian Wildlife Service should be held accountable for the destruction of the active tern nests at the Leslie Street Spit. To date, CWS and Environment Canada have made ill-advised attempts to retroactively justify their decision to issue the permit to THC. The petitioners believe the CWS should acknowledge the errors of judgment and procedure that were made and should lay out a defined action plan and set of policies and standards to prevent similar errors from occurring in the future.

(b)

Further to (a), the following actions should be committed to by Environment Canada/CWS:

(i)	Environment Canada should issue a clear statement to the effect that no work can be conducted which would otherwise violate the MBCA and Regulations until the CWS has issued a formal, written permit. No work should be capable of proceeding based on an oral approval and written approvals will not be issued unless the strict requirements of the Regulations are adhered to and other feasible alternatives are unavailable. CWS should not misuse its jurisdiction under the MBCA to permit activities that do not properly fall within the provisions of the permitting regulations such as s. 26.1.
(ii)	A clearer set of standards (beyond the current policy) should be issued by Environment Canada and the CWS to better define the criteria required to obtain a permit under the MBCA, especially under s. 26.1 of the Regulations. The standards should make clear that any permit granted under the MBCA is a measure of last resort. The permitee should be required to provide evidence of all measures attempted to mitigate damage to the birds, their nests and their habitat, prior to the issuance of any permit.
(iii)	Effective monitoring and enforcement of the guidelines is necessary to ensure that those permits that are granted, comply with the standards laid out by the government in the MBCA and the Migratory Bird Regulations. The role of the CWS cannot end upon the issuance of a permit, but must continue to oversee how that permit is put to use and that the least intrusive means are continually abided by.
(iv)	Where requests for permits under the Regulations are made, the CWS should be required to work with the requester to resolve his or her situation in the least intrusive manner possible vis-à-vis migratory birds and nests. CWS should not be issuing permits of convenience when feasible alternatives exist (e.g. timing changes, alternative methods of carrying out the work, etc.) or when requesters have not be diligent in avoiding conflict with birds (e.g. promptly remedying equipment failures before nesting season, etc.).

We believe that the adoption of these measures is necessary to ensure better migratory bird conservation, and to ensure that the CWS' policies and practices are consistent with principles of sustainable development.

All of which is respectfully submitted

[Original signed by Jerry DeMarco]

Jerry DeMarco
Sierra Legal Defence Fund

*[name witheld at petitioner's request]

**[attachments not available]

¹ Further Evidence of residency will be submitted upon request.

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Minister's Response: Environment Canada

13 March 2001

Mr. Jerry DeMarco
Sierra Legal Defence Fund
106 Front Street East, Suite 300
Toronto Ontario
M5A 1E1

Dear Mr. DeMarco:

I am writing in response to the petition of October 24, 2000, to the Auditor General of Canada, which you submitted on behalf of the Animal Alliance of Canada, the Ontario Field Ornithologists and [a Canadian resident]* (on behalf of the Friends of the Spit).

Please be assured that the petition has been thoroughly considered. Officials of my department's Canadian Wildlife Service (CWS) are concerned about the well-being of wildlife populations and this concern motivates their actions. In the course of their work, which is often complex, they are faced with difficult decisions in the field. Although these decisions are made with the interest of wildlife as the paramount consideration, they may not satisfy all interested parties. In such situations, there may be different interpretations of the actions taken. In this case, I believe that CWS staff acted within the authority of the Migratory Birds Convention Act (MBCA) regulations with the intent of protecting the Common Tern population at the Leslie Street Spit.

Over the years, my department has made considerable efforts to study and conserve colonial birds on the Spit. In the instance cited in the petition, CWS staff first approached the Toronto Harbour Commissioners (THC) in order to protect the nesting terns. A permit was subsequently issued, with conditions to minimize disturbance to the birds. The THC co-operated in the remainder of the 1998 season, changing their timing and methods. In 1999, all the work was performed outside of the nesting season. In 2000, no grading work was done .

It would be conjecture on the part of Environment Canada to comment on how many tern nests there might have been in 1998 or how many might have been destroyed. We do know that the major part of the nesting area was protected. On June 17, 1998, a total of 105 nests with 286 eggs and 6 young were surveyed. In addition, the artificial floating nesting platforms, which were designed by CWS staff and funded by the Department, supported 128 nests.

With regard to the population status of the Common Tern in the Great Lakes, it is not a species at risk either nationally or provincially. The national population is estimated at between 50,000 and 100,000 breeding pairs.

In reference to the relief requested in Section 4 of the petition:

(a) "... CWS should acknowledge the errors of judgment and procedure that were made and should lay out a defined action plan and set of policies and standards to prevent similar errors from occurring in the future."

The CWS does not agree that errors of judgment were made in issuing a permit to the Toronto Harbour Commissioners. The consequences were carefully considered in the light of the knowledge that the Common Terns would nest again in or near the area of nest destruction following the disturbance. Conditions of the permit were designed to minimize disruptions to the larger nesting colony on the Spit.

(b) (i) "Environment Canada should issue a clear statement to the effect that no work can be conducted which would otherwise violate the MBCA and Regulations until the CWS has issued a formal written permit .... CWS should not misuse its jurisdiction ... to permit activities that do not properly fall within the provisions of the permitting regulations such as s. 26.1."

The scaring-off and killing of migratory birds require the issuance of a permit. However, situations may arise where the reasonable application of judgement and reasonable flexibility are needed, particularly when severe damage or safety is at issue. In these rare circumstances, the ability to give verbal approval of actions, with conditions, based on the judgment of staff in the field, and to be followed by the issuance of a written permit, should not be precluded.

(b) (ii) "A clearer set of standards (beyond the current policy) should be issued by Environment Canada and the CWS to better define the criteria required to obtain a permit under the MBCA, especially under s.26.1. of the Regulations. The standards should make clear that any permit granted under the MBCA is a measure of last resort. The permitee should be required to provide evidence of all measures attempted to mitigate damage to the birds, their nests and their habitat, prior to the issuance of any permit."

In most circumstances, the CWS does require applicants to demonstrate that simple scaring techniques, habitat modification or other, more benign, management techniques have been attempted before permits to kill migratory birds are issued. Very few such permits are issued. Most are granted to farmers faced with crop depredation by migratory birds or in situations where health or safety is a concern. It should be kept in mind that the habitat of migratory birds can be altered or destroyed when the birds are not present. In such circumstances, the CWS works with land owners to minimize habitat disruption.

(b) (iii) "Effective monitoring and enforcement of the guidelines is necessary to ensure that those permits that are granted, comply with the standards laid out by the government in the MBCA and the Migratory Bird Regulations. The role of the CWS cannot end upon the issuance of a permit, but must continue to oversee how that permit is put to use and that the least intrusive means are continually abided by."

Within the scope of available resources, the CWS does monitor and enforce the conditions of permits. Permit holders are required to keep accurate records of actions taken under the permit and to supply a written report upon expiration of the permit. The CWS does inspect permit holders and investigate any irregularities.

(b) (iv) "Where requests for permits under the Regulations are made, the CWS should be required to work with the requester to resolve his or her situation in the least intrusive manner possible vis-à-vis migratory birds and nests. CWS should not be issuing permits of convenience when feasible alternatives exist ... or when requesters have not [been] diligent in avoiding conflicts with birds ...."

Further to my previous comments, all requests for scientific and scare/kill permits of an exceptional nature, such as the request by the Toronto Harbour Commissioners, are reviewed by CWS biologists in consultation with enforcement staff. Alternatives are considered and discussed with applicants. Benign management practices are encouraged and, in many circumstances, required. The overall welfare of migratory bird populations is our paramount concern.

In conclusion, my department is committed to meeting its responsibility for the conservation of migratory birds. I believe conservation is best served by working co-operatively with all stakeholders, with the best tools we have at our disposal, and that is what we strive to do on a daily basis.

Yours sincerely,

[Original signed by David Anderson, Minister of the Environment]

David Anderson, P.C., M.P.

*[name withheld at request of petitioner]