Nature Canada

Mixed messages: Inconsistent enforcement of the Migratory Bird Convention Act

The purpose of our federal government’s Migratory Bird Convention Act (1994) (MBCA) is: “to implement the (Migratory Bird) Convention by protecting and conserving migratory birds — as populations and individ­ual birds — and their nests.” Nature Canada has been closely following several developments and events in the last few years with regard to this law. What is becoming apparent is that the way in which the law is enforced varies wildly and that this inconsistency sends very mixed messages to the Canadian public. This concerns us deeply. Some of these recent developments and events related to the MBCA include:

    • Environment Canada is undertaking a process with stakeholder to amend regulations under the MBCA with regard to “incidental take.” These new regulations, when they are developed, are supposed to be designed to protect populations of birds, while allowing a variety of large-scale human activities that would result in the death of birds and the destruction of nests and eggs – (e.g. logging and mining). Likely the regulations would be enacted through a permitting system. This process is expected to wrap up by 2011 or 2012.

 

  • In 2008 J.D. Irving Inc. is fined $10,000 and obliged to donate $50,000 to a bird conservation organization for a violation of the MBCA for a logging road that resulted in the destruction of several Great Blue Heron nests.

 

 

  • JD Irving Inc. loses a constitutional challenge of the MBCA in 2008.

 

 

  • Syncrude is charged with a violation of the MBCA in the death of 1600 ducks in one of their tailings ponds near Fort McMurray Alberta in 2008. This case is now in the courts.

 

 

  • Harvest Energy Trust was charged under the MBCA because of a leaking abandoned oil well that resulted in the death of about 200 birds near Suffield, Alberta in September 2008.

 

 

  • There are reports of a Quebec hydro utility conducting brushing operations along hydro corridors during the nesting season. There are similar reports of an Ontario hydro utility conducting brushing operations along hydro corridors during the nesting season.

 

 

  • David Fraser, James Fraser and Jeremy Rowlands are fined a total of $16,000 for shooting ducks out of season from a vehicle in Saskatchewan in summer of 2009. They had posted their crime on Youtube.

 

 

  • A reported $180 fine was levied on a developer in Guelph Ontario for clearing a 25 hectare forest during the breeding season and destroying a “bird’s egg.”

 

The Migratory Bird Convention Act is one of very few federal environmental pieces of legislation that protect wildlife. Other laws that offer the federal government tools to protect wildlife include the Canada Wildlife Act, the Species at Risk Act, the Canadian Environmental Assessment Act, the Fisheries Act, and the National Parks Act.

The Migratory Bird Convention Act is unique because in protects an entire class of organisms – birds, with a few exceptions, from our actions that result specifically in killing birds or destroying their nests or eggs. The punishment tools under the MBCA can include fines and possible jail time.

If we consider the penalties levied in the above noted prosecutions, the inconsistency is cause for concern.

J.D. Irving was fined $60,000 for their installation of a logging road that took out several heron nests.

Rowlands and the Frasers were fined $16,000 for their poaching of ducks in Saskatchewan this summer.

A developer in Guelph is fined $180 for allegedly clear cutting over 26 hectares during the breeding season.

If the numbers don’t add up for you, neither did they for Guelph resident and Guelph Field Naturalist member Charles Cecile, who wrote Environment Canada, requesting an explanation. Here is a part of what he said to them:

“The fine imposed by your department of $180 on the Guelph landowner and his
contractor is grossly inadequate and will be completely ineffective in
deterring
any future such nest destruction. As a member of the Guelph
Field Naturalists, I urge you to review this case. Bird populations will
continue to be threatened unless action is taken to prevent destruction of their
habitats and nests. Your minuscule action to date, if the newspaper story
is accurate, makes a mockery of the Act and will become laughable in this
City.”

Protection of our wildlife depends on a vigilant and concerned public. There will always be people hurting wildlife either incidentally, accidentally, in ignorance, or deliberately. At the same time there will never be adequate enforcement capacity with our governments. We can only hope that when those who violate the Act are caught, they be judged fairly and appropriately. At first glance, there seems to be no rhyme or reason that explains the blatant inconsistencies between penalties levied under the MBCA in the last two years, which sadly sends very mixed messages to the perpetrators and the public.

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