NAFTA Commission Confirms Canadian Failure To Enforce Wildlife Law Against Logging Companies
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February 5, 2007 (Toronto) – NAFTA’s environmental watchdog, the Commission for Environmental Cooperation (CEC), today released the results of a comprehensive investigation against Canada for an alleged failure to enforce an important wildlife law. The investigation could find no evidence that the federal government had enforced the Migratory Birds Convention Act (MBCA) against logging companies. Environmental and conservation groups had alleged that this failure leads to the illegal destruction during clearcutting of 45,000 migratory bird nests annually in Ontario’s forests – a figure the report suggests is actually higher.
“This investigation makes it absolutely clear that the federal government has in no way, shape, or form enforced Canadian law against logging companies to protect migratory birds – a law that was borne of a long-standing international treaty,” said Albert Koehl, a lawyer with Sierra Legal, which represents Canadian and U.S. groups that filed the complaint.
The CEC does not make findings of guilt, but provides detailed factual information about allegations against a NAFTA party. The 250-page report notes that Canada was asked to provide information about any enforcement action that it had taken. According to the report: “The Secretariat received no information from Canada indicating that any such action has been taken.” The report also highlights projected habitat declines of up to 35 per cent under Ontario forest management plans for birds covered under regulations to the MBCA.
“It’s clear that we can no longer leave the responsibility for protecting migratory birds to the logging industry,” said Elaine MacDonald, Senior Staff Scientist with Sierra Legal. “The report confirms our concern that migratory bird habitat is being lost to logging at an unsustainable rate.”
The investigation focused on the area in Ontario where logging activities are allowed to take place – an area approximately the size of California. Although the investigation was completed in June 2006, the Canadian government did not approve its release until public pressure on environment minister John Baird. A primary CEC function is to investigate complaints of non-enforcement of environmental laws against Canada, the U.S.A., and Mexico that could lead to a trade advantage at the expense of a country’s environment.
“What steps is Minister Baird taking to enhance Environment Canada’s enforcement capacity?” asked Stephen Hazell, Executive Director of the Sierra Club. “Can we expect to see more funding for enforcement in the upcoming budget?”
“We hope that the CEC report will lead the Canadian government to increase its commitment to conserving migratory birds by improving enforcement, monitoring, and protections for Important Bird Areas. Governments, industry, and citizen groups all have a role to play to ensure that our grandkids will enjoy the diversity and number of birds that grace our cities, grasslands, forests, and wetlands,” said Julie Gelfand, President of Nature Canada, Canadian co-partner in BirdLife International. “This report gives us a huge opportunity to work together towards this goal.”
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Albert Koehl, Lawyer, Sierra Legal, 416-533-1231
Elaine MacDonald, Staff Scientist, Sierra Legal, 416-368-7533 ext 27
Julie Gelfand, President, Nature Canada, 613-562-3447 ext 231; (cell) 613-858-5029.
Sarah Wren, Conservation Biologist, Nature Canada, 613-562-3447 ext 300.
Stephen Hazell, Executive Director, Sierra Club, 613-241-4611.
The groups that filed the petition, in February 2002, include: Nature Canada, Sierra Club of Canada, Wildlands League, Canadian Parks and Wilderness Society (CPAWS), Sierra Club (U.S.), Great Lakes United, Earthroots, and Ontario Nature.
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The CEC was created under a side agreement to NAFTA. Articles 14 and 15 of the agreement allow any citizen to bring to the attention of the CEC an allegation that a NAFTA party is failing to enforce its environmental laws. Under the NAFTA side agreement that created the CEC, Canada’s environment minister must approve the release of the investigation, which in this case was completed by the CEC Secretariat in June 2006.
The investigation, known as a factual record (posted on the CEC web site as ‘Ontario Logging’), focuses on 53 forest management units in Central and Northern Ontario during the period of January 1 to December 31, 2001. There is, however, no suggestion that this period was different from other timeframes.
S. 6(a) of the regulations to the MBCA makes it an offence to disturb, destroy or take a nest of a migratory bird without a permit. Under the current regulations, permits may only be issued for limited purposes such as scientific research.
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On the absence of enforcement action (at p. 158): “In developing the factual record, the Secretariat requested information from Canada regarding any actions, including seeking assurances of voluntary compliance and compliance agreements, inspections, and monitoring, taken to enforce s. 6(a) of the MBR in connection with logging identified by the Submitters. The Secretariat received no information from Canada indicating that any such action has been taken. Environment Canada provided the Secretariat with information on multi stakeholder workshops held by the Canadian Wildlife Service (“CWS”) to promote compliance with s. 6(a) of the MBR.”
On the significant habitat decreases for migratory birds under provincial forest management plans (at p. 159): The Secretariat reviewed forest management plans for the fifty-three (53) forest management units covered by the factual record and found that for the thirty-eight (38) plans containing habitat projections for birds covered by the MBR, habitat is projected to decline for nine (9) of ten (10) species, with declines ranging from 8% (Blackburnian Warbler) to 35% (Pileated Woodpecker). Under Ontario’s forest management system, the Pileated Woodpecker is a featured species; providing habitat for this species is meant to address habitat needs for a range of wildlife species associated with mature and old growth forests.
On the 45,000 nest destruction estimate being low (at p. 129): Based on the information provided by Canada, the Secretariat’s expert, Dr. Fiona Schmiegelow, indicated that the estimated number of violations would likely be higher than the figure advanced by the Submitters.