Strengthening the Migratory Birds Convention Act in Canada

Marbled Godwit
Marbled Godwit

A couple of days ago, the Vancouver Sun and the Ottawa Citizen ran an opinion piece under the headline: “Governments must act now to protect migratory birds.” The piece follow up on an in-depth analysis of the Migratory Birds Convention Act conducted by the Environmental Law Clinic at the University of Victoria on the behest of Nature Canada and the Friends of Shoal Harbour Migratory Bird Sanctuary.

The analysis runs over 30 pages and provides an exceptional pinpointing of critical weaknesses in the Act and the management of the migratory bird sanctuaries. The report concludes with a series of recommendations which aim to:

• strengthen protection for migratory birds and their habitat inside of sanctuaries,
• better protect habitat outside of sanctuaries,
• address the incidental take of migratory birds, and
• work in tandem with the BC government to improve permitting and enforcement.

Specific recommendations

*Define “habitat” in the Migratory Birds Sancturary Regulations (MBSR) and ensure that the definition is sufficiently broad so that it covers all necessary aspects of migratory bird habitat.

* Amend the MBSR to prohibit activities adjacent to the boundary of a migratory bird sanctuary that harm habitat inside the sanctuary.

*Amend the MBSR and Migratory Birds Regulations to include a comprehensive, science-based definition of “disturb” and “destroy.” The definition of “disturb” should make it clear that rendering habitat around a nest unsuitable disturbs a nest.

*The federal government must convene experts to scientifically determine what migratory bird habitat needs to be protected outside of migratory bird sanctuaries, and provide strong, legal protection for these areas.

*The federal government must follow through with the idea to amend section 5 of the MBR to ensure that incidental take encompasses killing migratory birds (not just destroying nests and eggs). The federal government must develop a permitting scheme for incidental take. Government can build on the extensive materials developed in the 2007-2010 period to develop this scheme. Government must design the scheme to ensure that industrial activities and other activities and structures avoid or minimize incidental take, reducing it from current levels. The scheme must also take into account industrial activities and other activities and structures’ individual and cumulative impact on migratory bird habitat.

Such a scheme could help better protect migratory birds by requiring companies and other actors to avoid or minimize incidental take, reducing the amount of incidental take that currently occurs. However, there is a real danger that the scheme, if not designed correctly, will merely legitimize harm to migratory birds and their nests. For this reason, the permitting regime must be designed carefully in order to ensure that it aligns with the purpose of the MBCA, which is to protect and conserve migratory birds — as populations and individual birds — and their nests.

In addition, to ensure that the permitting scheme does contribute to improving the protection of migratory birds in Canada, as opposed to simply granting government permission for harm to migratory birds, government must ensure that the regulatory scheme is properly funded. This includes funding for monitoring and enforcement, and for the requisite science needed to inform the various steps of the risk management framework.

*When government identifies new critical habitat for a species, they must update the critical habitat information posted online in the SARA registry, in a timely manner.

*The BC provincial government must clarify the status of existing developments in migratory bird sanctuaries located wholly or partially on provincial Crown land. If no permits exist, the provincial government must require people carrying out existing activities, such as people operating marinas, to apply for a permit. All new permits must include stringent conditions that require the activities to be conducted in an environmentally sensitive manner within the sanctuary. If permits already exist, the provincial government must modify the permits in order to include permit conditions that require the activities to be conducted in an environmentally sensitive manner within the sanctuary.

*The BC provincial government must create a policy for permitting decisions made pursuant to section 10(1) of the MBSR, and make it publicly available. This policy must set out detailed criteria for making a permitting decision pursuant to section 10(1) of the MBSR. Similar to the federal permitting policy, the provincial policy must prohibit the granting of permits for commercial and industrial activities in migratory bird sanctuaries, and state that the permit will be denied if the proposed activity will harm migratory birds, their eggs, nests or habitat, or is inconsistent with the purpose for which the protected area was established or not consistent with the management plan of the protected area. The policy should also make it clear that a current permit may be cancelled or suspended if it is necessary for the conservation of wildlife or wildlife habitat in a protected area, and that terms and conditions may be added to permits in order to minimize the impact of an activity on wildlife and wildlife habitat.

*The federal and provincial government must create and publicly post an enforcement agreement that clarifies which level of government is responsible for enforcement activities in BC’s migratory bird sanctuaries.

*Ensure that the federal or provincial government divisions tasked with enforcement in migratory bird sanctuaries have adequate staff and adequate resources to carry out their responsibilities effectively.
Miscellaneous: improve signage

*Ensure that migratory bird sanctuaries have adequate signage.

*The federal government should undertake a science-based, modern reassessment of which birds should be protected by the MBCA.

*The analysis also include a couple of key issues pertaining to the Shoal Harbour Migratory Bird Sanctuary found near the Town of Sidney, BC

I strongly encourage everyone who value birds and all the benefits they provide to become more informed about the Migratory Birds Convention Act and the 90 migratory bird sanctuaries scattered across the country. And then, to write to Catherine McKenna, Minister of Environment and Climate Change calling upon her and her government to implement these recommendations.

If you’d like to learn more about the three migratory bird sanctuaries found with the Capital Regional District or about some of the best birding spots in the region, please contact me.

Ring Neck Duck
Ring Neck Duck


Wilderness Tourism Association of BC Calls for Greater Cooperation in Forest Management

Logging in the Great Bear Rainforest
Logging in the Great Bear Rainforest

On Feb. 6th, the Wilderness Tourism Association of BC sent the following letter to the Premier of BC and to the Minister of Forests, Lands, Natural Resource Operations and Rural Development. In it, the WTA requests that “the government to announce the creation of a multi-disciplinary task group to consider the economic and governance implications of making changes to FRPA to ensure that forest harvesting, wilderness tourism, and public recreation opportunities remain viable for all, while improving accountability for the outcomes of this public resource.”

If you’d like to learn more about the WTA and its activities, please contact me. I currently serve as Secretary of the association.

February 6, 2018

Honorable John Horgan, Premier of BC,

Honorable Doug Donaldson, Minister of Forests, Lands, Natural Resource Operations and Rural Development

Dear Premier and Minister:

The Wilderness Tourism Association (WTA) of BC is an industry association focused on improving land use practices and resolving land use issues for the benefit of wilderness tourism operators, the environment, and other resource users. We are writing to express our concern about current forestry practices and elicit your participation in creating an approach for all resource users that Is fair for all users.

Revenues from wilderness tourism contributes over $2 billion annually to BC. As you are aware, tourism is one of BC’s top three economic drivers employing thousands while having a small environmental footprint. The images from the Super, Natural BC campaign attracts a significant portion of tourists to our province. Maintaining this image, and delivering on quality experiences in a natural environment, is the cornerstone for tourism in our province.

Forest harvesting and access to remote areas is often the primary negative influence on wilderness tourism and recreational experiences. The Forest and Range Practices Act (FRPA) and Regulation, as currently written, puts all resource users except for the forest industry at a significant disadvantage from a resource utilization perspective. Neither the Act, nor regulation, compels forest companies to consult or consider other forest users or values (except where specified in regulation) in their forest planning, access and harvest activities. Where visual constraints for forestry exist, they are often inadequate or grossly outdated.

The professional reliance and goodwill model relied upon for the past 11 years has failed other forest resource users as noted repeatedly by the Forest Practices Board, tourism operators, and public recreationalists. The lack of government monitoring, and enforcement along with a culture of indifference by forestry decision makers, has left the integrated forest management concept in need of substantial changes.

Asking businesses and public recreationalists to participate in voluntary forest planning activities, with no requirement to consider their input or justify final decisions, leads to frustration. The lack of meaningful engagement asks a lot of people, who should be able to depend on the government to ensure fair and wise use of crown resources.

We believe a paradigm shift is required and recommend the changes listed below be adopted.These changes would have a low-cost impact on industry profitability and government while significantly improving the business certainty, investment and outcomes for the tourism industry and others dependent on the forest landscape.

  • Making changes to the FRPA regulations to require the forest industry to consult and consider non-timber values in their planning and decision making would make a significant improvement in outcomes for non-timber interests. A regulation similar to Oil and Gas regulation (Oil and Gas Act Sec. 22,24 and Regs. Sec. 4,7,9-14) requiring the industry to consult with affected stakeholders would address the majority of the issues that consistently compromise tourism and recreation values in the natural environment. Requiring the forest industry to consult and consider visual quality impacts in areas with high tourism and recreation values in forestry planning will make a considerable difference in the outcomes experienced by businesses with non-timber interests.
  • Revitalization of the enforcement and compliance branch is crucial. Without oversight, countless examples of mismanagement, overharvesting, harvest in inappropriate areas, lack of adherence to legal requirements such as VQOs and EBM can be found all over the province. The findings of the Forest Practices Board on various investigations around the province support this claim.

The WTA supports the recommendations and key findings of the Forest Practices Board in their review of FRPA (Dec/2017: SR/55 and SR/45, SR/52). The WTA has been involved in the FRPA Advisory Committee as well as the Discovery Islands Forestry and Tourism Working Group and feel that with some commitment from government for equality for use of forest resources, there is room for both industries to continue to thrive.

We will be approaching the forest industry with the same request to define workable processes that provides value to all parties. Unfortunately, there is little motivation for the Forest industry to accommodate these requests, therefore, government support is instrumental for these discussions and resulting outcomes to be successful. To be clear, this initiative is not about whether forestry will occur, but rather about how it occurs and where to provide the best economic, social, and environmental outcomes for the province.

If the government is serious about diversifying the provincial economy particularly in rural BC, changes must occur that support the values of other forest resource users while recognizing the value that timber harvesting continues to provide to our province.

Our request is for the government to announce the creation of a multi-disciplinary task group to consider the economic and governance implications of making changes to FRPA to ensure that forest harvesting, wilderness tourism, and public recreation opportunities remain viable for all, while improving accountability for the outcomes of this public resource. The WTA would welcome the opportunity to participate in this initiative.

Yours Truly

Kevin Smith


Wilderness Tourism Association of BC

Cc: Minister Lisa Beare

WTA Board Members


Bubble-Net Feeding Among the Humpback Whales in the Great Bear Rainforest

Humpback whales surge to the surface
Humpback whales surge to the surface

Recently, I was asked about the story behind the photo in my website’s banner.

These are humpback whales and what they’re doing is really cool. It’s called “cooperative bubble-net feeding.”

Here’s how it happens, as I understand it. A small group of humpbacks come together and they begin cruising along shorelines to locate schools of small fish, most commonly herring. When a school is located, the whales move swiftly to corral the fish into a more compact ball. This enables the whales to swallow more in a gulp.

Humpback whales preparing to dive
Humpback whales preparing to dive

So how does a humpback corral the fish? First they take a few deep breaths, then they arch their backs and flip their tails signalling a deep dive.

Humpback whales Diving
Humpback whales diving

* Please note that the tour boat is further away from the whales than what it appears due to the compression of distance caused by using a long lens. The image was also slightly cropped to create a stronger composition.

For a while, there is nothing. Only stillness on the water’s surface. But the gulls wheeling around expectantly suggest something big could be coming. You can almost feel it.

Then, they begin to form. Subtly at first. Almost imperceptible, but very rapidly building into what appears to be a perfect ring of bubbles breaking the surface calm.

What’s happening below is really, really neat. As the whales dive, they blow bubbles in an ever-tightening circle below the increasingly panicky fish.  While diving, they also emit a very particular high-pitched call. In their fright to avoid the threat coming from below, the small fish move upwards towards the surface. Some can even be seen leaping out of the water to get as far away as possible. Many of these end up going down the throats of daring gulls that dart in to pick them off.

I wish I had photos of this action. It’s wild. Next year, I’ll be ready.

Anyhow, you can pretty much guess what’s coming next. Yep, a major eruption!

Humpback whales and gulls
Humpback whales and gulls

The whales have come up through the middle of the bubble-net and with their mouths open. With this mighty lunge, they gulp down hundreds of fish along with vast quantities of sea water. Pleats of skin and blubber hanging of the lower mandible unfold to accommodate.

This is truly an awesome spectacle to witness.

But as if this wasn’t amazing enough. Cooperative bubble-net feeding, it turns out, is a learned behaviour. It first appeared among humpback whales in South East Alaska in the mid-1980s and has been spreading southwards. I don’t know yet how far south it has spread, but the tactic was certainly in high use among the humpbacks seen in the Great Bear Rainforest, especially in Whale Channel. What this spread demonstrates is a form of cultural diffusion and the remarkable intelligence of these animals and their kind.

To learn more about humpback whales, I encourage you to check out the work done by the Marine Education and Research Society , For Whales.Org and BC Whales.Org