Abandonment of the Migratory Birds Convention Act incidental take regulatory initiative

Petition: 311

Issue(s): Biological diversity, compliance and enforcement, and international cooperation

Petitioner(s): Ecojustice Canada

Date Received: 3 February 2011

Status: Completed

Summary: The petitioner is concerned that Environment Canada is abandoning a regulatory initiative that would have regulated the destruction of migratory birds or their nests and replacing it with a Best Management Practices regime. The petitioner asks Environment Canada to explain how it will enforce the Migratory Birds Convention Act, 1994 with respect to logging and other industrial activities, and to provide information about its proposed Best Management Practices regime. The petitioner believes that Canada continues to be in violation of a North American Agreement on Environmental Cooperation decision and asks Foreign Affairs and International Trade Canada to explain its position.

Federal Departments Responsible for Reply: Environment Canada, Foreign Affairs and International Trade Canada

Petition

A PETITION TO THE AUDITOR GENERAL OF CANADA
pursuant to s. 22 of the Auditor General Act

respecting the abandonment of the migratory bird permitting
(or so-called ‘incidental take’) regulatory initiative
by Environment Canada and the ongoing failure to comply with
the North American Agreement on Environmental Cooperation.

January 27, 2010

To:
Office of the Auditor General of Canada
Commissioner of the Environment and Sustainable Development
Attention: Petitions
240 Sparks Street
Ottawa, Ontario K1A 0G6

And to:
The Hon. Peter Kent
Minister of the Environment
Les Terrasses de la Chaudière
North Tower, 28th Floor
10 Wellington Street
Gatineau, Quebec K1A 0H3

And to:
The Hon. Lawrence Cannon
Minister of Foreign Affairs
Lester B. Pearson Building, Tower A
125 Sussex Drive
Ottawa, Ontario K1A 0G2

And to:
The Hon. Peter Van Loan
Minister of International Trade
Lester B. Pearson Building, Tower B
125 Sussex Drive
Ottawa, Ontario K1A 0G2

A copy of this petition is also being provided to:

Evan Lloyd, Executive Director
Commission for Environmental Cooperation
393 St-Jacques Street West, Suite 200
Montreal, Quebec
H2Y 1N9

Irasema Coronado, Chair
Joint Public Advisory Committee
Commission for Environmental Cooperation
c/o University of Texas at El Paso
500 W. University Blvd.
El Paso, Texas 79968

Petitioner:
Ecojustice Canada

c/o Albert Koehl
Barrister and Solicitor
Ecojustice Canada (formerly Sierra Legal Defence Fund)
550 Bayview Avenue
Centre for Green Cities, Suite 401
Toronto, ON M4W 3X8
416-368-7533, ext. 29
Email: akoehl@ecojustice.ca

We hereby submit this petition to the Auditor General of Canada under section 22 of the Auditor General Act.

Signature of Petitioner: [Original signed by Albert Koehl]

Dated this 27th day of January, 2011.

Summary

In October 2010 Environment Canada announced that it was abandoning a regulatory initiative that it had been preparing for several years whereby federal permits could be issued to allow for the destruction of migratory birds or their nests within a framework of enforceable conditions aimed at conserving bird populations on a broad scale. The initiative would have contributed to addressing the problem of migratory bird and nest destruction caused by activities such as logging, mining, pipeline laying, and agriculture, as well as structures including cell towers and wind turbines.

The initiative appeared to be largely in response to a petition to, and subsequent factual record by, NAFTA’s Commission for Environmental Cooperation (CEC), which showed that Canada was failing to enforce the Migratory Birds Convention Act 1994, SC 1994, c 22 (MBCA) against logging companies during clearcut logging operations in Ontario. The CEC factual record completed in 2006 confirmed that tens of thousands of bird nests were being destroyed each year contrary to the MBCA and that Environment Canada was failing to enforce the relevant MBCA provision.

It was anticipated that the regulatory permitting initiative would have brought Canada into compliance with the requirements of the NAAEC. In view of the abandonment of this initiative, it appears clear that Canada continues to be in violation of NAFTA’s environmental side agreement, the North American Agreement on Environmental Cooperation (NAAEC), by failing to effectively enforce the MBCA. Environment Canada has only said it will pursue a Best Management Practices (BMP) regime but without specifying timelines or details or explaining how such a system would address the ongoing failure to enforce the MBCA.

WE THEREFORE PETITION THE COMMISSIONER FOR THE ENVIRONMENT AND SUSTAINABLE DEVELOPMENT TO REQUEST:

The Hon. Peter Kent, Minister of the Environment to:

  1. Explain when Environment Canada will begin to enforce the MBCA, s. 6(a) with respect to logging and other industrial activities;
  2. Articulate the timelines and proposed content and targets of the Best Management Practices (BMP) regime; and
  3. Explain what prompted the abandonment of the proposed regulatory initiative.

The Hon. Lawrence Cannon, Minister of Foreign Affairs to:

  1. Explain how the Government of Canada justifies its continuing violation of the North American Agreement on Environmental Cooperation (NAAEC) through its persistent pattern of failure to effectively enforce the Migratory Birds Convention Act (MBCA);
  2. Articulate the steps the Government of Canada plans to take to remedy this violation; and
  3. Advise whether Canada has taken any steps to explain to its NAFTA partners how it plans to remedy its longstanding non-compliance with the NAAEC given its persistent pattern of failure to effectively enforce the MBCA.

The Hon. Peter Van Loan, Minister of International Trade to:

  1. Explain how the Government of Canada intends to justify its ongoing inaction regarding enforcement of the MBCA against the logging industry to other NAFTA parties, given that the NAAEC is intended to minimize distortions in trade which are produced through the failure to effectively enforce environmental laws.

Background Information

  1. Canada is a party to the NAAEC, the environmental side agreement to the North American Free Trade Agreement (NAFTA).
  2. Under Article 5 of the NAAEC, Canada is obligated to effectively enforce its own environmental laws and regulations through appropriate government action. Article 5 provides a number of examples of appropriate enforcement action, including, but not limited to: appointing and training inspectors, monitoring compliance and investigating suspected violations, using licenses, permits or authorizations, and seeking appropriate sanctions.
  3. Articles 14 and 15 of the NAAEC establish a process through which residents of Canada, Mexico, and the United States are permitted to file a submission with the CEC alleging that a party to the agreement is failing to enforce its own environmental laws.
  4. In 2002, a submission was filed with the CEC alleging that Canada was failing to effectively enforce s. 6(a) of the Migratory Bird Regulations, CRC, c 1035 (MBR). This regulation was made pursuant to the MBCA, and prohibits the disturbance and destruction of the nests of migratory birds without a permit. Permits are only issued under the MBCA in a limited number of situations, such as for scientific research.1 Permits are not currently available for industrial purposes, although the regulations allow for the creation of such a permitting regime.
  5. The submission specifically alleged that s. 6(a) of the MBR was not being enforced in respect of clearcut logging activities in 53 forest management units in central and northern Ontario.
  6. The CEC confirmed that Canada was failing to enforce s. 6(a) of the MBR against logging companies in Ontario, leading to the illegal destruction of upwards of 45 000 migratory bird nests each year.2
  7. During the preparation of the factual record Canada advised the CEC that it had been working since about 2002 on a regulatory initiative that would permit nest destruction within a broader conservation framework:

Environment Canada is working on assessing the potential role of earth observation technologies in tracking wildlife habitat and assisting with MBCA enforcement, and has secured amendments to the MBCA that allow regulations to be adopted to create a permit system for regulating the incidental take of migratory bird nests. While it is too early to know what form this system would take (for example, whether issuance of a permit would trigger an environmental assessment requirement under the Canadian Environmental Assessment Act), CWS has stated: “We envision a process where forest companies meet Environment Canada-set forest bird population objectives through long-term conservation plans.”3 (emphasis added)

  1. Development of this regulatory initiative gained momentum with various government-industry-NGO workshops between 2007 and 2010.
  2. However, in October 2010, Environment Canada informed NGOs and other stakeholders that it was abandoning the ‘incidental take’ regulatory initiative and instead pursuing a ‘Best Management Practices’ approach:

As the federal department responsible for the Migratory Birds Convention Act, 1994, Environment Canada was proposing to amend the Migratory Birds Regulations under the Act to introduce new policy tools to improve our approach to managing incidental take of migratory birds and conserving migratory bird populations. The department has since decided in favour of an approach supported by best management practices and avoidance guidelines. This is a risk-based approach that will address the highest threats to the conservation of migratory birds.4

  1. The fact that Environment Canada experts devoted significant resources over a period of years to the permitting proposal, despite the availability of other obvious options like a BMP regime, clearly suggested that the proposal was considered the best alternative. Senior EC officials suggested during public consultations that permits or exemptions under the MBCA were key tools for directing parties toward effective BMPs to prevent nest or bird destruction.5
  2. Although the BMP regime is currently apparently in development, to date few details and no timelines have been released.
  3. This abandonment of the ‘incidental take’ regulatory initiative perpetuates Canada’s long standing violation of the obligation to enforce the MBCA under the NAAEC, which was brought to the attention of Canada and the CEC in 2002.
  4. The MBCA itself is the result of an international treaty between the United Kingdom (for Canada) and the United States. Although there are similar enforcement issues in the United States, nonetheless, in 2001 President Bill Clinton issued an executive order that does provide some limited protection for migratory birds.6 This executive order requires agencies to develop principles, standards and practices to lessen the ‘unintentional take’ of migratory birds. This stands in stark contrast to Canada’s current situation of virtually across the board non-enforcement of the MBR’s s. 6(a) against industrial actors, as evidenced by the factual record against Canada in the logging case.
  5. This petition therefore calls on the Government of Canada to address the long-standing failure to comply with the NAAEC and to outline what steps it will take to honour its international obligations.

1 See Migratory Bird Regulations, CRC, c 1035, Schedule II.

2 Ibid at 129.

3 Ibid at 156-157 (footnotes omitted).

4 Environment Canada, “Incidental Take”, online: Environment Canada <http://www.ec.gc.ca/paom-itmb/default.asp?lang=En&n=FA4AC736-1>.

5 See Environment Canada, “Summary of Environment Canada’s approach to the Incidental take of Migratory Birds under the Migratory Birds Convention Act, 1994”, online: Environment Canada <http://www.ec.gc.ca/paom-itmb/default.asp?lang=En&n=C51C415F-1>. In a February 2010 RMF workshop held by Environment Canada, it was noted that “a system with no permit or exemption option creates enforceability difficulties and limits EC’s ability to direct proponents towards effective stewardship/BMPs in support of long term conservation of Migratory Bird populations. (emphasis added) Environment Canada: “Incidental Take of Migratory Birds, Update on Regulatory Development” (EC RMF Workshop delivered in Ottawa, 24 February 2010), (unpublished – Draft for Discussion Only).

6 See e.g. North American Commission for Environmental Cooperation, Final Factual Record for Submission SEM-99-002 (Migratory Birds), North American Environmental Law and Policy Vol 11 (Montreal: CEC, 2003). Exec Order No. 13186 (Responsibilities of Federal Agencies To Protect Migratory Birds) 66 Fed Reg 3853 (January 17, 2001).

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Minister's Response: Environment Canada

17 June 2011

Mr. Albert Koehl
Barrister and Solicitor
Ecojustice Canada
550 Bayview Avenue
Centre for Green Cities, Suite 401
Toronto ON M4W 3X8

Dear Mr. Koehl:

I am pleased to respond to your Environmental Petition No. 311, to the Commissioner of the Environment and Sustainable Development, the former ministers of Foreign Affairs and International Trade, and to me, regarding the Government of Canada’s migratory bird permitting regulatory initiative and enforcement of the Migratory Birds Convention Act, 1994. Your petition was received in Environment Canada on February 17.

In your petition you pose three questions directly to me as Minister of the Environment. Your other questions relate to the North American Agreement on Environmental Cooperation, and were posed to the former ministers of Foreign Affairs and International Trade. However, as both the Migratory Birds Convention Act, 1994 and the North American Agreement on Environmental Cooperationfall under my purview as Minister of the Environment, I am pleased to provide Environment Canada’s responses to all of your questions in the enclosed document.

Environment Canada is effectively enforcing the Migratory Birds Convention Act, 1994 and subsection 6(a) of the Migratory Birds Regulations, undertaking a series of important actions that support this enforcement. These activities include training and designating enforcement officers; inspections and investigations, which have resulted in fines in a number of cases; and compliance promotion.

Environment Canada works with stakeholders to support and promote the development of sectoral beneficial management practices to help implement the Migratory Birds Convention Act, 1994 and further enhance compliance. This approach allows the Department to address the highest threats to the conservation of migratory birds and remain focused on compliance and enforcement of the prohibitions of the Migratory Birds Regulations.

I appreciate your interest in this important matter, and trust that you will find this information useful.

Sincerely,

[Original signed by Peter Kent, Minister of Environment Canada]

The Honourable Peter Kent, P.C., M.P.

Enclosures

c.c.: The Honourable John Baird, P.C., M.P.
The Honourable Ed Fast, P.C., M.P.
Mr. Scott Vaughan, Commissioner of the Environment and Sustainable Development


Environment Canada’s Response to Environmental Petition No. 311,
regarding the Government of Canada’s migratory bird permitting regulatory initiative and enforcement of the Migratory Birds Convention Act, 1994

Introduction
This petition concerns the Migratory Birds Convention Act, 1994 (MBCA) and the North American Agreement on Environmental Cooperation (NAAEC), both of which fall within the purview of the Minister of the Environment. The questions contained in the petition concern enforcement of the MBCA and Canada’s obligations under the NAAEC. Prior to answering these questions, Environment Canada wishes to provide the petitioner with general information on the MBCA and the NAAEC.

Migratory Birds Convention Act, 1994

Historic Overview
The Migratory Birds Convention (1916) between Canada and the United States grew out of a need and desire to protect the many species of birds that migrate between the two countries. By the early 1900s, migratory birds were facing unsustainable hunting pressure and damage to their ecosystems. With some species becoming extinct and others being threatened, both Canada and the United States saw an imminent need to provide a common framework to undertake conservation action. The result was the signing of the Migratory Birds Convention in 1916 by both countries.1 The Convention represented a significant step forward for nature conservation on an international scale. It also recognized the role of the federal government in the conservation of birds that migrate across provincial, territorial and national boundaries, within the context that related wildlife and habitat management and conservation falls under the jurisdiction of the provinces and territories.

The Migratory Birds Conventionrecognized the pressing need for comprehensive international measures to protect and preserve migratory birds. The commitment to such measures was reaffirmed in 1995 by the Parksville Protocol.2

Current Context
The purpose of the MBCA is to implement the Migratory Birds Convention in Canada by protecting and conserving migratory birds, both as populations and individual birds, and their nests. When the MBCA’s predecessor first came into force in 1917, the focus was on co-managing continental harvest with the United States and protecting individual birds and nests from harm. However, amendments to the MBCA in 2005 clarified the comprehensive approach required to conserve or maintain the sustainability of migratory bird populations.

The MBCA and its regulations create prohibitions to protect migratory birds and their nests, and set the conditions for issuing permits for activities which affect migratory birds and their nests. For example:

  • the MBCA creates prohibitions on depositing substances that are harmful to migratory birds in waters or an area frequented by migratory birds;
  • the Migratory Birds Regulations prohibit the harming of migratory birds and the destruction or disturbance of migratory bird nests and eggs. The regulations set the conditions for permitting prohibited activities and for the management of hunting (such as migratory gamebird hunting permits, season dates and bag limits, scientific permits, permits regarding birds causing damage or danger, and other permits); and,
  • the Migratory Bird Sanctuary Regulations set out areas (“sanctuaries”) where birds are protected at all times of the year.

North American Agreement on Environmental Cooperation

The NAAEC was signed by Canada, Mexico and the United States in 1993, and came into force on January 1, 1994. It created the Commission for Environmental Cooperation (CEC) to address regional environmental concerns, help prevent potential trade and environmental conflicts, and promote the effective enforcement of environmental law. The CEC accomplishes its work through the combined efforts of its three principal components: the Council, which is the governing body and is composed of federal cabinet-level environmental authorities from the three countries (for Canada, the Minister of the Environment); the Secretariat, which provides technical, administrative and operational support to the Council; and the Joint Public Advisory Committee, which is composed of five citizens from each country and advises the Council on any matter within the scope of the NAAEC. More information on the CEC, including the full text of the NAAEC, is available on the CEC website at www.cec.org.

The NAAEC is a parallel agreement to the North American Free Trade Agreement (NAFTA). It complements the environmental objectives of NAFTA, namely to undertake actions within the framework of NAFTA in a manner consistent with environmental protection and conservation, and to strengthen the development and enforcement of environmental laws and regulations. However, the NAAEC is an independent binding international agreement which imposes certain obligations on the three countries. For example, the NAAEC obligates the countries to effectively enforce their environmental laws and regulations through appropriate government action, ensuring the availability of proceedings to sanction or remedy violations and complying with due process (Article 5). Further, Article 5(1) of the NAAEC provides an indicative list of the types of actions a government can take to effectively enforce its environmental laws. These actions could include appointing and training inspectors, monitoring compliance and inspecting suspected violations, seeking assurances of voluntary compliance, or using licences, permits or authorizations.

Environment Canada has the overall federal lead for the CEC, with the Minister of the Environment representing Canada on the CEC Council. The Department works closely with other government departments on issues addressed at the CEC, and ensures the participation of Canadian experts in trilateral cooperative activities. In addition, Environment Canada coordinates provincial participation on issues related to the NAAEC and the CEC.

Citizen Submission Process
The NAAEC allows individual citizens and non-governmental organizations to file a submission with the Secretariat of the CEC asserting that a party to the NAAEC is failing to “effectively enforce its environmental law.” This process, called the citizen submission on enforcement matters (SEM) process, is elaborated under articles 14 and 15 of the NAAEC.

In line with its being incorporated in a cooperation agreement, the citizen submission process is not adversarial, and the CEC Secretariat is not a court or tribunal. The CEC Secretariat cannot make determinations or “rulings” on the merits or demerits of assertions raised in a submission, including whether a party may be failing to effectively enforce its environmental law. The process was rather designed to hold each party accountable to the citizens of North America as to whether it is effectively enforcing its environmental laws through the potential publication of a factual record. A factual record is a report prepared by the CEC Secretariat which seeks to objectively establish the facts related to an alleged non-enforcement of environmental law. It is not meant to draw conclusions, pass judgment, make recommendations or determine remedies.

For the purposes of the NAAEC and the citizen submission process, the NAAEC provides that a party has not failed to effectively enforce its environmental law where the action or inaction by the party “reflects a reasonable exercise of their discretion in respect of investigatory, prosecutorial, regulatory or compliance matters” or “results from bona fide decisions to allocate resources to enforcement in respect of other environmental matters determined to have higher priority” (Article 45(1)).

Consultations and Dispute Resolution
The NAAEC also includes a process for a party to consult another party about alleged failures of the other party to effectively enforce domestic environmental laws (Part Five). However, in contrast to the submission process of articles 14 and 15, which allows citizens to file complaints with the Secretariat about an alleged failure by a party to enforce environmental laws, the consultation and resolution of disputes process is available only to the parties and only to determine whether there has been a persistent pattern of failure to enforce. The NAAEC defines persistent pattern as “a sustained or recurring course of action or inaction” (Article 45(1)).

The consultation and dispute resolution process of Part Five has never been used.

Question 1: Explain when Environment Canada will begin to enforce the MBCA, s. 6(a) with respect to logging and other industrial activities.

Answer: Subsection 6(a) of the Migratory Birds Regulations under the MBCA provides that “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 (…) except under authority of a permit therefor.”

Environment Canada asserts that the Department’s compliance promotion and enforcement activities associated with subsection 6(a) of the Migratory Birds Regulations with respect to logging and other industrial activities do not represent a failure to effectively enforce the MBCA.

The following paragraphs provide details on how the Department determines its enforcement priorities and conducts compliance promotion, and describe recent enforcement actions that have been taken under subsection 6(a) of the Migratory Birds Regulations with respect to logging and other industrial activities to support the above assertions.

Priority Planning
Environment Canada’s Enforcement Branch enforces four federal wildlife acts and their regulations, including:

  • the Migratory Birds Convention Act, 1994;
  • the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act;
  • the Species At Risk Act;and,
  • the Canada Wildlife Act.

Environment Canada’s enforcement program is also divided administratively into five regions which are very different both from conservation and non-compliance standpoints. These follow the geography of Canada: Atlantic Region, Quebec Region, Ontario Region, Prairie and Northern Region, and Pacific and Yukon Region.

A rigorous process of priority setting exists to allow the Department to make bona fide decisions to allocate finite resources to this and other areas of enforcement, as required. In some cases, enforcement of subsection 6(a) of the Regulations may be the highest priority, while in other cases, priorities may be for other infractions of environmental legislation. In this way, the Department ensures that its resources are targeted to high-risk issues for the legislation it enforces.

More specifically, Environment Canada recognizes logging and other industrial activities—in particular during nesting season—as an important issue. On an annual basis, the Enforcement Branch’s Wildlife Enforcement Directorate evaluates conservation risks, compliance risks, and intelligence information for all legislation in order to establish its annual operational priorities. To ensure effective, efficient and consistent enforcement, the Directorate must also take the issues of public concern, conservation science, and international commitments into account.

The Directorate and its regional offices follow this annual work‑planning process that identifies specific non-compliance and conservation risks, and prioritizes activities under the aforementioned four acts in responseto those risks. Given finite resources, the responses to any enforcement issue will vary from region to region, owing to the diversity of non‑compliance and conservation issues across Canada. These work‑planning documents are usually highly specific regarding risks, criminal intelligence, alleged offenders, and problematic sectors. Therefore, for confidentiality reasons, they are not made public. However, “regulated commercial activities,” which includes incidental take, was identified as one of thirteen national enforcement operational priorities for three of the last five years. In addition, work planning does not preclude reorienting efforts during the year to accommodate significant issues and incidents.

General Enforcement Activities
Environment Canada currently has 87 game officers mandated to enforce the MBCA. This represents an increase of 38 since 2008. Officers have full peace officer powers to enforce the aforementioned four acts. They are recruited from other law enforcement agencies and undergo a six‑week specialized training regimen as well as ongoing courses to perform their functions.

The MBCA allows for inspection, search, seizure and detention within the limits of the Canadian Charter of Rights and Freedoms. In addition, the adoption of the Environmental Enforcement Act will now allow for the production of environmental protection compliance orders under the MBCA. These orders, new to the MBCA, allow officers to compel compliance in cases of alleged infractions, instead of obtaining a court order to stop an activity, which was the former process. This new instrument is currently being developed and implemented.

Environment Canada’s position is that compliance with the law is the optimal way to protect the environment. Therefore, our overall approach generally entails that compliance promotion and enforcement efforts be aligned to inform the public of the law; provide information on how to avoid committing an offence; verify compliance; investigate alleged infractions; and ensure deterrence through a combination of officer presence and court prosecutions.

Example of measures to enforce subsection 6(a), including with respect to logging and other industrial activities
Environment Canada has been undertaking compliance promotion for years. For example, there have been several mail-outs, meetings and workshops led by the Canadian Wildlife Service and supported by the Enforcement Branch which were held with industry, non-governmental organizations, and other government departments in the context of the proposed regulatory amendments for the management of incidental take of migratory birds. In the workshops, awareness of the prohibitions under the MBCA was the fundamental premise of the discussions. As regulatory amendments are not currently being pursued, the management approach has been realigned to provide guidance and encourage implementation of best practices to avoid breaking the law, while the existing prohibitions in subsection 6(a) continue to apply with respect to circumstances of incidental take.

Environment Canada also has a section on its website specifically related to “incidental take,” which relates to activities that are at risk of damaging or destroying nests and eggs, as prohibited by subsection 6(a) of the Migratory Birds Regulations. The website currently provides general recommendations regarding compliance with subsection 6(a). In the coming years, Environment Canada plans to augment the information available to the public to further promote compliance (see Question 2).

The Department regularly posts enforcement notifications, as well as news releases, on its website following significant court judgements. This informs the public of obligations and serves as a deterrent by publicizing penalties against offenders. The Environmental Enforcement Act mandates that a public registry of corporate offenders of environmental law be created, and the registry is scheduled to be launched this year.

On average, more than 100 complaints of incidents are received annually from the public. Of these, usually about 10 are investigated by enforcement officers, with others generally being referred for compliance promotion follow-up by Environment Canada officials. For example, this is done

  • when a complaint is received to pre-emptively stop tree cutting where nests are believed to be present before the cutting happens (that is, no offence would yet have taken place); and
  • after tree cutting, when no evidence of destroyed birds or nests is found.

As explained above, the Department, with 87 officers and front‑line managers across Canada, currently responds to the highest-risk alleged incidents. In 2010, Environment Canada investigated eight cases related to damage and/or destruction of migratory birds’ nests or eggs. In keeping with historical fine levels, three of these investigations were closed with fines ranging from $172 to $1,000. Of the remaining cases, two were closed with written warnings, one was closed due to lack of evidence, and two files remain open.

Since 2004, a few prosecutions have resulted in significant fines. For example, in 2008, a forestry company in New Brunswick was fined $60,000 for destroying Great Blue Heron nests during the course of road‑building activity to provide access to a harvest lot. Similarly, building on previous convictions of this category, Environment Canada also prosecuted a number of companies with respect to the destruction of bank swallow nests, resulting in fines totalling $20,000. Previously, the highest fine registered for such an offence was $15,000 in a New Brunswick case where a construction company destroyed approximately 40 bank swallow nests after the colony established itself in a tailings pile.

In summary, Environment Canada undertakes many activities related to the enforcement of the MBCA and subsection 6(a) of the Migratory Birds Regulations, as well as other laws under its authority. These activities include training and designating enforcement officers, inspections, investigations, prosecutions with resulting fines, and compliance promotion, as well as publicly releasing non-compliance information through notifications and news releases. Operational enforcement activities are prioritized using a rigorous process, which accounts for various risk criteria and leads to bona fide decisions on where to allocate finite resources.

Question 2: Articulate the timelines and proposed content and targets of the Best Management Practices (BMP) regime.

Answer: On October 1, 2010, Environment Canada informed stakeholders of a change of direction resulting in not pursuing regulatory amendments for the management of incidental take. A copy of the letter sent to stakeholders is enclosed. The Department indicated that it would “focus on the development of practices that provide tangible support to compliance with the existing prohibitions.” The letter was not announcing a new “regime,” but rather identifying an approach to support compliance with the existing prohibitions. The letter concludes by inviting stakeholders to bring existing practices to Environment Canada’s attention.

The conservation of migratory birds in Canada is given assistance when industries implement a management plan to minimize the risk of impacts to migratory birds, their nests and eggs. The development of such management plans can be optimized by describing relevant avoidance information and other conservation recommendations into sectoral best management practices that may be more accurately referred to in this context as “beneficial management practices” (BMPs). Generally, BMPs describe optimal ways of addressing particular situations at particular times, providing exemplary performance for which to strive. BMPs can therefore play an important role in supporting migratory bird conservation on working landscapes.

However, Environment Canada does not have the authority to prescribe specific BMPs for specific circumstances or activities. Development and adoption of BMPs by interested parties would therefore be based on a voluntary decision regarding how to conduct business in order to meet objectives, including obligations toward migratory birds and other biodiversity conservation. Stakeholders are legally bound to comply with the existing prohibitions under the federal migratory bird legislation. They therefore have to decide what specific BMPs may be relevant to their particular situation in order to implement an approach that manages the potential risk of affecting migratory birds.

In that context, Environment Canada’s participation in BMP development can be summarized with the following general functions based on the Department’s technical expertise with migratory birds conservation:

  • providing scientific background on migratory birds ecology and management needs;
  • helping with the interpretation of the recommended objectives and conservation actions (including bird conservation region plans and migratory bird recovery strategies);
  • as possible and required, providing feedback regarding the contribution of BMPs to
    • the minimization of risk of destruction of nests and eggs or harming of birds;
    • achieving migratory bird conservation objectives; and,
  • facilitating the development of BMPs.

As Environment Canada is providing general advice regarding migratory bird conservation through some of its core basic programs and upon request, it is also committed to further developing the following elements. The elements are explained in greater detail in the succeeding paragraphs.

  1. Facilitating development of BMPs:
    • Provide access to Environment Canada’s avoidance guidelines and conservation priorities (e.g. bird conservation region plans and recovery strategies);
    • Provide Environment Canada’s guidance for developing BMPs (a generic how‑to guide).
  1. Promote voluntary development and implementation of BMPs by stakeholders to address priority conservation actions for migratory birds.
  2. Work with interested provincial resource agencies for the incorporation of migratory bird conservation measures into general land-use management.
  3. Develop a performance framework to assess results achieved by BMP implementation by stakeholders against conservation priorities.

1. Facilitate development of BMPs
At this time, the focus of Environment Canada’s activities regarding BMPs is on facilitating their development by:

  • providing better summaries and relevant detailed scientific information regarding where and when migratory birds, nests and eggs are encountered; and,
  • detailing the threats affecting the sustainability of migratory bird populations.

This will help activity managers and project proponents to better design their activities in order to protect and conserve migratory birds and comply with the MBCA. The provision of “avoidance guidelines” will help flesh out compliance promotion regarding the existing prohibitions under the MBCA and its regulations and, as noted above, will also provide a source of information necessary to guide the development of sectoral BMPs.

With respect to avoidance guidelines, Environment Canada will soon update its website to make general information about how to avoid affecting migratory birds during the nesting season more accessible. Environment Canada is also compiling existing nest records from all of Canada to provide more precise information, notably for species of concern. It is expected that additional information will be posted incrementally on Environment Canada’s website between 2011 and 2014. In addition, public advice is being prepared regarding setback distances (2011), key sites and timing for migration (2011), as well as seabird concentrations (2013).

Another important initiative being undertaken is the preparation of bird conservation region (BCR) plans. BCR plans will provide objectives, information on threats, and recommended conservation actions for all priority birds by ecozone in Canada. These documents are meant to serve as a source for coordinating conservation measures for birds in Canada. With respect to BMP development, BCR plans will be the key reference to establish Environment Canada’s priorities and basis for assessment of the value of particular BMPs relating to migratory bird conservation. All Canadian BCR plans have been drafted and are currently undergoing an internal technical review. The next step will be to discuss the drafts with interested parties this year before they can be finalized and posted on Environment Canada’s website (see www.ec.gc.ca/mbc-com/default.asp?lang=En&n=1D15657A-1).

2, 3. Promote voluntary development and implementation of BMPs by stakeholders and work with interested provincial resource agencies
While these important sources of information are being developed, Environment Canada is considering how best to approach the promotion and support of BMP development by industry associations and other interested parties. Environment Canada began this work by developing a preliminary inventory of existing BMPs to better understand and communicate what is readily available and what needs to be developed. A draft framework that would include the provision of guidance by Environment Canada, a forum to share and discuss stakeholders’ perspectives, and a process for obtaining feedback is being developed and is expected to be discussed in 2011 at relevant meetings such as the Canadian Wildlife Directors Committee Meeting or the Canadian Council of the North American Bird Conservation Initiative.

4. Develop a performance framework
In 2012, Environment Canada will start implementing a framework to support the development of BMPs, as well as begin developing the framework to assess results achieved by BMP implementation by stakeholders against conservation priorities.

In summary, Environment Canada intends to support and promote the development of sectoral BMPs to help implement the MBCA and enhance compliance with the prohibitions. As BMPs are best developed by stakeholders that understand their own operations, Environment Canada’s approach regarding BMPs is to initially provide relevant scientific information and information about migratory bird conservation priorities to help stakeholders with their strategies in order to minimize the risk of affecting migratory birds, nests and eggs. Environment Canada will provide further support, as detailed above, and is working on a framework to be discussed with interested parties.

Question 3: Explain what prompted the abandonment of the proposed regulatory initiative.

Answer: In the past few years, Environment Canada has undertaken a series of consultations to seek stakeholders’ perspectives on how to improve the effectiveness of the MBCA implementation and, in particular, the management of incidental take of migratory birds. Several options were considered, including the introduction of regulatory amendments that would provide for a permit allowing some limited take under conditions that support migratory bird conservation. Conditional exemptions were also considered. The approach discussed was based on a choice by individuals or companies to continue to operate under existing prohibitions (avoid take) or to request a permit for some limited take, with conditional exceptions as an additional regulatory option.

In fall 2010, after considering the many detailed and thorough comments and materials provided by a wide array of stakeholders, a decision was made not to pursue regulatory amendments and to focus instead on the development of practices that provide tangible support to compliance with the existing prohibitions. This decision was based first on concerns expressed by stakeholders with respect to the regulatory changes being considered and, second, on the need to allocate regulatory development resources to other departmental priorities. This change in direction was conveyed to stakeholders in the aforementioned October 1, 2010 letter from Environment Canada.

The Department’s decision to pursue an approach supported by beneficial management practices and avoidance guidelines is a risk-based approach that will address the highest threats to the conservation of migratory birds. For more information, please visit www.ec.gc.ca/paom-itmb/default.asp?lang=En&n=FA4AC736-1.

Environment Canada’s approach to the incidental take of migratory birds under the MBCA remains focused on compliance and enforcement of the prohibitions of the MBCA’s Migratory Bird Regulations. A synopsis of the current regulatory approach and background information on the current context for conservation of migratory birds are available at www.ec.gc.ca/paom-itmb/default.asp?lang=En&n=C51C415F-1.

Question 1 (to the Minister of Foreign Affairs): Explain how the Government of Canada justifies its continuing violation of the North American Agreement on Environmental Cooperation (NAAEC) through its persistent pattern of failure to effectively enforce the Migratory Birds Convention Act (MBCA).

The Government of Canada takes its obligations under the MBCA seriously, and has taken and continues to take actions that achieve the effective enforcement of that act. These actions include compliance promotion activities aimed at providing information regarding the management of incidental take of migratory birds, as well as more traditional enforcement actions, such as warnings, fines and prosecutions as highlighted in the response to Question 1 (above). These actions are consistent with the broad NAAEC approach to defining the types of appropriate actions governments can take with respect to effectively enforcing their environmental laws.

Moreover, the NAAEC also provides that a government has not failed to effectively enforce its environmental law where an action or inaction “results from bona fide decisions to allocate resources to enforcement in respect of other environmental matters determined to have higher priority.” As previously indicated, a rigorousprocess of priority setting exists to allow the Department to make bona fide decisions to allocate finite resources to the enforcement of the MBCA and other areas, as required. In this way, Environment Canada ensures its resources are targeted to high-risk issues for the legislation it enforces.

Through the actions Environment Canada has taken and continues to take, the Government is meeting its obligations and effectively enforcing the MBCA.

In addition, the Department wishes to take this opportunity to clarify two statements that were made in the preface and in the background information to the petition, regarding a factual record that was completed in 2006 under the NAAEC concerning Ontario logging:

“…factual record…showed that Canada was failing to enforce the Migratory Birds Convention Act against logging companies during clearcut logging operations in Ontario. The CEC factual record completed in 2006 confirmed that tens of thousands of birds nests were being destroyed each year ” (emphasis added);

and,

The CEC confirmed that Canada was failing to enforce ss. 6(a) of the MBR against logging companies in Ontario, leading to the illegal destruction of upwards of 45 000 migratory bird nests each year.” (emphasis added)

The number of bird nests cited in these two statements is an estimate arrived at by the submitters of the Ontario logging submission. In the factual record, the Secretariat provided a paragraph detailing the nature of the alleged violation and merely quoted the submitters’ estimate. The estimate was not confirmed as a fact by the Secretariat and should not be construed as such.

Question 2 (to the Minister of Foreign Affairs): Articulate the steps the Government of Canada plans to take to remedy this violation.

Answer: As noted above, the Government of Canada is effectively enforcing the MBCA and is not in violation of its NAAEC obligations. Moreover, as detailed in the response to Questions 1 and 2 (above), Environment Canada has taken and continues to take actions that achieve the effective enforcement of and enhance compliance with the MBCA.

Question 3 (to the Minister of Foreign Affairs): Advise whether Canada has taken any steps to explain to its NAFTA partners how it plans to remedy its longstanding non-compliance with the NAAEC given its persistent pattern of failure to effectively enforce the MBCA.

The Government of Canada is effectively enforcing the MBCA. Therefore, there is no persistent pattern of failure to effectively enforce the MBCA.

Having said this, Canada relies on collaboration with its NAAEC and NAFTA partners, the United States and Mexico, to accomplish the goals of the MBCA to protect and conserve migratory birds. Canada has a long history of collaboration with these partners to implement bird conservation throughout migratory ranges in North America. Canada and the United States also have regular bilateral discussions regarding their delivery of domestic and joint obligations under the Migratory Birds Convention.

Collaboration is furthered in part through the North American Bird Conservation Initiative (NABCI), which was launched trilaterally in 1999 with the support of the CEC. Under the NABCI, Canada and its partners work collaboratively to conserve North American birds throughout their ranges and habitats. More information on the NABCI is available at www.nabci.net/International/English/about_nabci.html.

Additionally, the Director General of the Canadian Wildlife Service collaborates on natural resources conservation with counterparts in Mexico and the United States through the Trilateral Committee for Wildlife and Ecosystem Conservation and Management. More information on the Trilateral Committee is available at www.trilat.org.

The issue of incidental take of migratory birds is a priority for the NABCI. The Government’s decision to not pursue regulatory amendments for the management of incidental take has already been raised by Canada with the United States, and was brought to the attention of U.S. and Mexican counterparts again at the most recent Trilateral Committee meeting in May 2011 in Mexico. The three countries also discussed efforts to minimize and mitigate incidental take of migratory birds through the promotion of BMPs. These efforts are expected to assist with MBCA compliance and contribute to positive outcomes for bird conservation.

Finally, the citizen submission process of the NAAEC involves a number of decisions where discussions among the three NAAEC partners is required. Therefore, the issues pertaining to the enforcement of the MBCA with respect to logging in Ontario are already known among the NAAEC partners.

The cooperative activities, collaborative mechanisms and ongoing communications among the three NAAEC/NAFTA partners ensure awareness and partnership on many issues related to the MBCA.

Question 1 (to the Minister of International Trade): Explain how the Government of Canada intends to justify its ongoing inaction regarding enforcement of the MBCA against the logging industry to other NAFTA parties, given that the NAAEC is intended to minimize distortions in trade which are produced through the failure to effectively enforce environmental laws.

Answer: As outlined above, the Government of Canada is effectively enforcing the MBCA and is taking steps to enhance compliance with this act. As indicated in the response to Question 3 to the Minister of Foreign Affairs, Canada addressed efforts to minimize and mitigate incidental take of migratory birds with the United States and Mexico during the May 2011 meeting of the Trilateral Committee for Wildlife and Ecosystem Conservation and Management. The issues pertaining to the enforcement of the MBCA with respect to logging in Ontario are also already known among the NAAEC partners pursuant to the citizen submission process.

In addition, Article 1 of the NAAEC describes ten objectives, only one of which pertains to avoiding the creation of trade distortion or new trade barriers. Other objectives include, inter alia: fostering the protection and improvement of the environment for the well-being of present and future generations; promoting sustainable development based on mutually supportive environmental and economic policies; and increasing cooperation to conserve, protect, and enhance wild flora and fauna.

1 Signed by the United Kingdom on behalf of Canada.

2 The Protocol’s proper title is: Protocol Between the Government of Canada and the Government of the United States of America Amending the 1916 Convention between the United Kingdom and the United States of America for the Protection of Migratory Birds in Canada and the United States

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Minister's Response: Foreign Affairs and International Trade Canada

6 April 2011

Mr. Albert Koehl
Barrister and Solicitor
Ecojustice Canada
Centre for Green Cities
550 Bayview Avenue, Suite 401
Toronto ON M4W 3X8

Dear Mr. Koehl:

Subject: Environmental Petition No. 311 concerning the migratory bird permitting regulatory initiative

Thank you for your correspondence, which was forwarded to us by Mr. Scott Vaughan, Commissioner of the Environment and Sustainable Development, on February 17, 2011, concerning the migratory bird permitting regulatory initiative and compliance with the North American Agreement on Environmental Cooperation.

After careful consideration, it has been determined that the questions you have raised in the petition are best answered by the Minister of the Environment. After consulting with the Office of the Auditor General of Canada, and with Environment Canada, we have received assurances that our colleague the Honourable Peter Kent, Minister of the Environment, will address the matters you have raised in your correspondence.

Please be assured that the Government of Canada remains committed to these important issues.

Thank you again for your writing.

Sincerely,

[Original signed by Peter Van Loan, Minister of International Trade]

The Honourable Peter Van Loan, P.C., M.P.
Minister of International Trade

[Original signed by Lawrence Cannon, Minister of Foreign Affairs]

The Honourable Lawrence Cannon, P.C., M.P
Minister of Foreign Affairs

c.c. The Honourable Peter Kent, P.C., M.P.
Mr. Scott Vaughan