The Migratory Birds Convention Act (MBCA) Background
The Migratory Birds Convention Act as we know it was established in 1994, originally established in 1917 and amended in 1994 and 2005 to implement the Migratory Birds Convention, a treaty with the United States. This was established to ensure that the long-term conservation of migratory birds utilizing habitat in Canada and the United States . The MBCA was initially created to put an end to market hunting and protect migratory birds that shared international borders. One of Canada’s first wildlife related laws, the MCBA made it illegal to capture, kill, take, injure, harass migratory birds as well as destroy, take, or disturbed an egg or nest. The Migratory Birds Convention Act gives the federal government authority to pass laws and regulations that protect bird species included in the Convention. Bird species listed under Article 1 include three major groups: migratory game birds, Migratory Insectivorous birds, and other non-game birds. The primary goal of the MCBA is to eliminate or greatly reduce the incidental take and the destruction of migratory bird habitat. Through the federal courts the government of Canada has the authority to charge individuals or corporations under MBCA.
As the MBCA is federal legislation it carries significant power, because of this and the potential resulting prosecutions for contravening the MBCA the responsibility lies with proponents. The discussion point for proponents becomes one of acceptable risk, due diligence and whether a project can be completed during a less environmental sensitive period.
As the MBCA is federal legislation it carries significant power, because of this and the potential resulting prosecutions for contravening the MBCA the responsibility lies with proponents. The discussion point for proponents becomes one of acceptable risk, due diligence and whether a project can be completed during a less environmental sensitive period.
How Does the MBCA Apply to Proponents?
The MBCA has clearly laid out that responsibility lies with the proponent not to destroy or imped the nesting ability of migratory birds in Canada. As such, planning around the MBCA and incorporating It into a project is a critical step to successfully working within the rules and regulations. In western Canada, nesting activity for migratory birds generally starts in late March when species such as Ferruginous hawks begin nesting preparation. Nesting activity is generally completed by the end of August, once this period has elapsed, the potential to destroy or impeded a migratory bird from performing nesting activity is greatly reduced.
What is Due Diligence?
the Courts have established the following factors as “rules” relevant to the question of whether appropriate due diligence was exercised
Looking at the rules above we can see that “Defendants must establish that they exercised all reasonable care by establishing a proper system to prevent the commission of the offence and by taking reasonable steps to ensure the effective operation of the system.” What this essentially states is that, it is up to the proponent to prevent the commission or the destruction of nests in the case of the MBCA. With that said, how does a proponent prevent the accidental take of migratory bird nests? The easiest answer, and the most ecological sound answer is not to complete construction related activities during the migratory bird season. Simply put, if no construction activity takes place during the migratory bird window, the possibility of interrupting or potentially destroy active nests becomes extremely low. Based on current research, the overall efficacy of accurately identify nesting birds and their nest location remains suspect at best. However, with trained personnel and appropriate methodology a large percentage of nesting and breeding birds can be identified.
The question for proponents becomes one of acceptable risk and due diligence and whether a project can be completed during a less environmental sensitive period.
- Defendants must establish that they exercised all reasonable care by establishing a proper system to prevent the commission of the offence and by taking reasonable steps to ensure the effective operation of the system.
- The standard of due diligence is variable, and is directly related to the gravity of potential harm.
- An accused must establish that it considered the potential for foreseeable harm and took all reasonable precautions in contemplation of that potential harm to ensure the environment was protected.
- The degree of harm to the environment may be reasonably balanced with economic considerations
- Previous incidents involving the same type of conduct with which the accused is charged may be a relevant factor in considering whether the accused has exhibited reasonable care
Looking at the rules above we can see that “Defendants must establish that they exercised all reasonable care by establishing a proper system to prevent the commission of the offence and by taking reasonable steps to ensure the effective operation of the system.” What this essentially states is that, it is up to the proponent to prevent the commission or the destruction of nests in the case of the MBCA. With that said, how does a proponent prevent the accidental take of migratory bird nests? The easiest answer, and the most ecological sound answer is not to complete construction related activities during the migratory bird season. Simply put, if no construction activity takes place during the migratory bird window, the possibility of interrupting or potentially destroy active nests becomes extremely low. Based on current research, the overall efficacy of accurately identify nesting birds and their nest location remains suspect at best. However, with trained personnel and appropriate methodology a large percentage of nesting and breeding birds can be identified.
The question for proponents becomes one of acceptable risk and due diligence and whether a project can be completed during a less environmental sensitive period.
How to Avoid Incidental Take Under the MBCA
In western Canadian provinces, the climate dictates much the annual construction schedule with some work required to take place during the migratory bird breeding window. If construction activity is unavoidable, and that construction activity is likely to cause damage, interrupt, or stress migratory birds and potentially limit nesting success then steps need to be taken in order to limit the possibility of contravening the MBCA. By enlisting the services of a wildlife Biologist to perform pre-disturbance nesting bird surveys, the proponent can be informed of potential nesting birds in the area. If nesting birds are identified, then implementing the required activity restriction setbacks for select species based on provincial or federal regulations is required.
