Migratory Birds Convention Act (1994)

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The Migratory Birds Convention Act, 1994, a federal law, implements for Canada what was originally the 1916 Migratory Birds Convention between the United Kingdom and the United States of America for the Protection of Migratory Birds in Canada and the United States. The 1916 Convention was amended by a Protocol agreement signed by Canada and the United States in 1995, which took into account aboriginal and treaty rights of aboriginal peoples on both sides of the border.

The purposes of the Convention were underlined by the 1995 Protocol, the recitals of which read in part that Canada and the United States remained,

….COMMITTED to the long-term conservation of shared species of migratory birds for their nutritional, social, cultural, spiritual, ecological, economic, and aesthetic values through a more comprehensive international framework that involves working together to cooperatively manage their populations, regulate their take, protect the lands and waters on which they depend, and share research and survey information…

Jurisdiction for migratory birds is federal, due to the fact that migratory birds cross both provincial and international boundaries. The Act is administered by the Canadian Wildlife Service under the authority of the federal Minister of the Environment. The Act applies to migratory birds across Canada, whether located on federal or provincial lands.

Section 5 of the Act prohibits the possession, buying, selling, exchange or transfer or a migratory bird or nest, or commercial trade in a migratory bird or nest, except in accordance with the Migratory Bird Regulations. At section 6, the Act establishes offences, and appoints game officers with inspection and other powers, as a means of enforcing the Act’s provisions.

The Migratory Bird Regulations address a variety of issues, including but not limited to:

  • Requirements for permits, and other restrictions, on hunting of migratory birds;
  • A prohibition on disturbing the nests or eggs of migratory birds without a permit from the Minister;
  • a general prohibition against introducing non-indigenous migratory bird species; and
  • a prohibition against pollution (defined as the deposit of oil, oil wastes or any other substance harmful to migratory birds) in any waters or any area frequented by migratory birds.

Also passed under the Act is the Migratory Bird Sanctuary Regulations, which prescribe certain areas as sanctuaries for migratory birds, and establish the rules governing the sanctuaries. Seven migratory bird sanctuaries are prescribed for British Columbia, having the following designations: Christie Isle, Esquimalt Lagoon, George C. Reifel, Nechako River, Shoal Harbour, Vaseux Lake and Victoria Harbour.

Significance of the Act for Watershed Protection

The Migratory Birds Convention Act is a significant statute for watershed protection, due to the fact that many migratory birds rely on aquatic habitats for their survival. In B.C., much of our coastal area is used by migratory birds; and many inland waters as well are frequented by migratory birds. The Act can therefore be raised in support of a concern that a development is going to alter or harm a waterway to the detriment of the ecosystem and life that is supported by the waterway.

An important point to note is that the Act does not explicitly or directly protect bird habitat; however, if it can be shown that a development will have a significant, negative impact upon migratory bird populations because of pollution of the waters or land frequented by them, the Act can be raised as an argument for protecting the significant habitat.

Citizens in Action

In the case of Alberta Wilderness Association et al. v. Cardinal River Coals Ltd., (1999) 3 F.C. 425, various conservation groups went to court and successfully challenged the construction of an open pit coal mine to be located near Jasper, Alberta. They argued that s. 35 of the Migratory Birds Regulations prohibited the deposit of oil, oil wastes, or any other substance harmful to migratory birds in any area frequented by them. On the facts, the plan for the mine included a plan to deposit millions of tons of rock waste into the nearby creek beds, in an area used for nesting by migratory birds. It was determined that the deposits would pose a threat to the migratory birds that nested there, and therefore would be considered a “harmful substance” within the meaning of the Regulation, and contrary to its terms.

For more information on the Migratory Birds Convention Act or bird protection:

Other International Agreements Affecting Migratory Birds or Wetlands Habitats: