Environment and Climate Change Canada (ECCC) recently released proposed new Migratory Birds Regulations (Regulations), which will replace the existing regulations of the same name under the Migratory Birds Convention Act (Act). The new Regulations contain many changes that can be classified as modernizing or administrative in nature, some of which will provide clarity that has been previously lacking. However, there are also proposed changes to the prohibitions which, if registered and enforced as written, could have a significant impact on industrial, commercial and individual activities across Canada.
The Regulations currently prohibit hunting of migratory birds except in accordance with a permit. The definition of “hunt” includes activities in which a person attempts to capture, kill, injure or harass a migratory bird. This has been applied to some circumstances involving commercial activities such as the deliberate removal of bank swallows and their nests from a construction site. But it has not been applied to harm to birds that arises from activities that are not directed at the bird. It is thus generally understood as not prohibiting incidental harm to migratory birds. Under the proposed Regulations, the prohibition on “hunting” will be removed and replaced by a broader provision that prohibits capturing, killing, taking, injuring or harassing a bird, unless there is a permit to do so. This will significantly broaden the protection of birds, as it will be illegal to cause any harm (which includes harassment) to any migratory bird, whether direct or incidental to other lawful activities.
In contrast to the prohibition on hunting of birds, the Regulations already prohibit the disturbance, destruction or taking of a nest, egg, nest shelter, eider duck shelter or duck box of a migratory bird without a permit. This has been confirmed by the courts to include incidental harm that occurs while carrying out otherwise lawful activities. ECCC has, by policy, interpreted the prohibition to apply to active nests. Operators on the landscape are likely already familiar with this provision, as activities are planned to avoid nesting season, especially when land clearing is required. But there has been some uncertainty on how to determine if a nest is active, especially for species that use the same nest over long periods of time, or over many years.
The proposed Regulations contain a potentially helpful clarification that the prohibition will not apply to unoccupied nests. Determining if a nest is unoccupied will require that a nest not contain a live bird or viable egg. There are exceptions to the exception, for nests of 16 species of birds, such as herons, which are listed in the schedule to the Regulations. For these species, a determination of abandonment must be made in accordance with prescribed conditions in the Regulations. If abandonment cannot be established, the prohibition will continue to apply to protect the nest, whether or not a bird is present.
The conditions which allow hunting of migratory birds have been modernized, and the additional circumstances where birds may be deliberately killed or scared when they are causing damage have been clarified and slightly expanded. But the Regulations have not been amended in a way that would enable permits or other regulatory instruments to allow for activities that result in non-direct, incidental harm to birds or their nests.
Unfortunately, one long-awaited improvement to the regulation of activities impacting nests and birds is apparently not going to be forthcoming. In 2009, the Act was amended to allow the federal government to create regulations allowing for the circumstances under which harm to nests and birds may occur. Subsequent to this amendment, ECCC held extensive consultations with stakeholders regarding proposed processes to regulate incidental harm under permits and/or risk-based regulations. But the consultations eventually petered out, and these proposed new Regulations make no mention of permits for incidental harm. This is particularly problematic considering the expansion of the prohibition on harming birds. In essence, once these Regulations are finalized, it will be illegal to inadvertently cause harm to birds or their nests, and there will be no legal mechanism through which the federal government can permit such harm to occur.
The expanded prohibition on incidental harm to birds has the potential to cause significant challenges for practically any activities carried on outdoors in Canada. If implemented as currently proposed, clearing land, operating heavy machinery, farming, operating energy projects, building high-rise buildings, using nighttime lighting, setting off fireworks, or even driving cars, all have the potential to cause the prohibited harm to birds and result in contravention of the Act.
ECCC is seeking input on the proposed new Regulations. Interested parties may submit comments until July 31, 2019.