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