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Wild Animal Law of Canada
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Migratory Birds Convention Act, 1994 (Canada)('MBCA')(current to 01 April 2016)
Note Re Application of the Migratory Birds Convention Act, 1994
Geographically, the MBCA regime applies "in Canada and in the exclusive economic zone of Canada" [MBCA s.2.1] and where a provision applies to a province or part thereof, "to Canadian waters adjacent to that province or part of that province" [Migratory Birds Regulation ("MB Regs")].
This law bears on the wildlife issues of:- PROTECTION
- HUNTING
- IMPORT/EXPORT
- SALE
- EXTERMINATION
HABITAT
The full current text of this legislation (including regulations) may be viewed at the Canada statute website.
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Table of Contents
1. Overview
(a) General
(b) Enforcement
(c) Migratory Species
2. Protective Provisions
(a) Overview
(b) No Possession, Sale, Etc of Birds and Nests
(c) No Disturbance or Destruction of Nests, Eggs, Etc
(d) No Pollution, Oil Ponds, Etc
(e) No Sale of Feathers, Etc of Migratory Game Birds
(f) Trafficking of Migratory Birds Between Canada and the US
(g) Importation of Foreign Species of Migratory Birds
3. MBCA Permit Hunting
(a) Overview
(b) Hunting Permits
(c) Baiting Restricted
(d) Hunting Methods Regulated
4. MBCA Non-Hunting Permit Killing, Interference and Extermination
5. Migratory Bird Sanctuaries
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1. Overview
(a) General
The Migratory Birds Convention Act, 1994 ("MBCA") is Canada's implementing statute of the 1916 US-Canada Migratory Birds Convention as amended by a 1995 Amending Protocol.
Most of the MBCA regime (the Act, the two MBCA Regulations, the 1916 Convention and the 1995 Amending Protocol) are concerned with the permit-hunting of game birds, and other permit-authorized killing and interference with migratory birds for various other human priorities [see s.4 below]. Some of these non-hunting depredations extend to non-game and insectivorous species as well, though both of these classes of birds generally benefit by being under a year-round 'closed hunting' season [Protocol, 1(b) ].
The MBCA is aptly characterized as being the cross-border hunting/conservation statute for cross-jurisdictional migratory birds, very similar in purpose and design to the ten individual wildlife conservation (ie. hunting, trapping and fishing) statutes that each province has promulgated. As such, this MBCA review is concerned with the details of 'permitted' hunting, other interference that the MBCA regulates, and some general protections for migratory birds (eg. prohibitions on oil ponds and commercial trading in migratory birds).
(b) Enforcement
As with most hunting statutes, the MBCA regime allows for the appointment of 'game officers' for the purposes of enforcement (all RCMP officers are authomatically game officers) [MBCA 6(1)]. Game officers have typical peace officer inspection and entry authority [MBCA 7(1)] and may issue compliance orders [MBCA 11.21(1)]. The Act also has broad offence provisions which can be enforced on prosecution under the federal Contraventions Act [MBCA s.13].
(c) Migratory Species
The MBCA governs three classes of migratory 'birds' (which term includes "the sperm, eggs, embryos, tissue cultures and parts of the bird") [MBCA 2(1)], as set out below:- Migratory Game Birds ("game birds")
Anatidae, or waterfowl (ducks, geese and swans); Gruidae, or cranes (greater and lesser sandhill and whooping cranes); Rallidae, or rails (coots, gallinules and rails); Charadriidae, Haematopodidae, Recurvirostridae, and Scolopacidae, or shorebirds (including plovers and lapwings, oystercatchers, stilts and avocets, and sandpipers and allies); and Columbidae (doves and wild pigeons).
The regulation of hunting of migratory game birds is the primary legal thrust of the MBCA legislation, and in that respect it is quite similar to the ten hunting and fishing statutes established for each province, modified of course for it's application to listed game species which fail to respect human jurisdictional boundaries.
- Migratory Insectivorous Birds ("insectivorous")
Aegithalidae (long-tailed tits and bushtits); Alaudidae (larks); Apodidae (swifts); Bombycillidae (waxwings); Caprimulgidae (goatsuckers); Certhiidae (creepers); Cinclidae (dippers); Cuculidae (cuckoos); Emberizidae (including the emberizid sparrows, wood-warblers, tanagers, cardinals and grosbeaks and allies, bobolinks, meadowlarks, and orioles, but not including blackbirds); Fringillidae (including the finches and grosbeaks); Hirundinidae (swallows); Laniidae (shrikes); Mimidae (catbirds, mockingbirds, thrashers, and allies); Motacillidae (wagtails and pipits); Muscicapidae (including the kinglets, gnatcatchers, robins, and thrushes); Paridae (titmice); Picidae (woodpeckers and allies); Sittidae (nuthatches); Trochilidae (hummingbirds); Troglodytidae (wrens); Tyrannidae (tyrant flycatchers); and Vireonidae (vireos).
- Other Migratory Non-Game Birds ("other non-game")
Alcidae (auks, auklets, guillemots, murres, and puffins); Ardeidae (bitterns and herons); Hydrobatidae (storm petrels); Procellariidae (petrels and shearwaters); Sulidae (gannets); Podicipedidae (grebes); Laridae (gulls, jaegers, and terns); and Gaviidae (loons).
2. Protective Provisions
(a) Overview
The MBCA legal regime provides for some protective measures in favour of migratory birds. For these purposes, the definition of migratory birds is expanded somewhat to also encompass "any such birds raised in captivity that cannot readily be distinguished from wild migratory birds by their size, shape or colour, and any part or parts of such birds" [MB Regs 2(1)].
Most of these protections can be excepted by properly-issued permits [MB Regs 4(1), Sched.II] [see s.3 below re such permits].
(b) No Possession, Sale, Etc of Birds and Nests
The MBCA prohibits, except in limited permit-authorized circumstances [see (d) below], possession of migratory birds and their nests, or the 'buying, selling, exchanging or giving of a migratory bird or nest' or 'making it the subject of a commercial transaction [MBCA 5]. The MC Regs similarly provide that a person shall not "have in his possession a live migratory bird, or a carcass, skin, nest or egg of a migratory bird" [MB Regs 6(b)], and that "(n)o person shall sell, expose for sale, offer for sale, trade, barter or buy migratory birds or the eggs, nests, carcasses or skins of migratory birds", unless otherwise authorized by law such as a permit [MB Regs 12].
(c) No Disturbance or Destruction of Nests, Eggs, Etc
The MB Regs provide that, absent an authorizing permit, no personal shall "disturb, destroy or take a nest, egg, nest shelter, eider duck shelter or duck box of a migratory bird" MB Regs 6(a)].
(d) No Pollution, Oil Ponds, Etc
In an effort primarily directed at preventing mortality of migratory ducks and geese being killed or harmed when they set down on polluted waters, even waste oil dumping ponds, the MBCA provides that no person and vessel "shall deposit a substance that is harmful to migratory birds, or permit such a substance to be deposited, in waters or an area frequented by migratory birds or in a place from which the substance may enter such waters or such an area" [MBCA 5.1(1)]. The prohibition also applies where any deposited substance, in combination with other present substances, then creates a harmful substance [MBCA 5.1(2)]. These prohibitions however are excepted if the dumping is authorized under the Canada Shipping Act, 2001 or any other federal statute [MBCA 5.1(3)].
(e) No Sale of Feathers, Etc of Migratory Game Birds
Possession, purchase, sale, barter and transporting of feathers of migratory game birds is allowed for purposes of "making fishing flies, bedding, clothing or other similar uses" if the birds were taken under a MBCA hunting permit, but prohibited (no matter how obtained) for purposes of "millinery or ornamental use" [MB Regs 12.1].
(f) Trafficking of Migratory Birds Between Canada and the US
Migratory birds and their nest and eggs, if illegally "captured, killed (or) taken" in either the US or Canada, may not be trafficked between the two countries [MB Regs 13(3)].
(g) Importation of Foreign Species of Migratory Birds
The introduction of non-indigenous migratory birds to Canada "for the purpose of sport, acclimatization or release from captivity" is prohibited, without the written consent of the Director of the Canadian Wildlife Service [MC Regs 33].
3. MBCA Permit Hunting
(a) Overview
As noted above, much of the function of the MBCA is to establish a permit hunting regime over migratory game birds. For these purposes, the definition of migratory birds is expanded somewhat to also encompass "any such birds raised in captivity that cannot readily be distinguished from wild migratory birds by their size, shape or colour, and any part or parts of such birds" [MB Regs 2(1)]. Also for these purposes, 'hunt' "means chase, pursue, worry, follow after or on the trail of, lie in wait for, or attempt in any manner to capture, kill, injure or harass a migratory bird, whether or not the migratory bird is captured, killed or injured" [MB Regs 2(1)].
(b) Hunting Permits
The Minister of Environment may issue permits for the hunting of migratory game birds [MB Regs 4(1), Sched.II]. Open seasons [MB Regs 4(9), 5(4) Sched I] and bag limits [MC Regs 7,9,10] are also established for such hunting.
Without such permits such hunting is illegal [MC Regs 5(3)], with some local and aboriginal exceptions [MB Regs 5(2,3,6-12)].
(c) Baiting Restricted
Hunting of migratory game birds within 400 metres of any place that has been baited (placement of feed usually for the purpose of hunting) is generally prohibited unless the area has been bait-free for at least seven days [MB Regs 14(1)]. Other specific bait-related requirements and some exceptions are set out in the MC Regs at 14(3-6).
(d) Hunting Methods Regulated
Restrictions on weapons and methods of hunting are set out in MB Regs 15(1-6). These allow, with some exceptions, shotguns of 10 gauge and above, shotguns that carry a maximum of three shells, long bows, the use of live birds and recorded calls to lure, and a prohibition on the use of "aircraft, sailboat, power boat, or motorized vehicle" (excepted for the handicapped).
Hunters must also have adequate means (typically dogs) of retrieving birds that they "kill, cripple or injure". Hunters are under a duty to retrieve and any such retrieved birds, if still alive, must be killed immediately [MB Regs 16].
4. MBCA Non-Hunting Permit Killing, Interference and Extermination
A range of permits (or sometimes exempting circumstances not requiring permits) are available for non-hunting killing, interference with and extermination of migratory birds (not just migratory game birds). These include:- scientific permits [MB Regs 19];
- aviculture permits [MB Regs 20];
- overabundant species [MB Regs 23.1] (currently the only so-listed are snow geese in Quebec);
- scaring, without a permit, migratory birds "causing or are likely to cause damage to crops or other property", without 'killing, wounding or taking' them [MB Regs 24,26];
- killing migratory birds where scaring (above) ineffective [MB Regs 25(1), 26, 26.2(2,3)];
- destruction of eggs of migratory birds [MB Regs 26.1];
- relocation of migratory birds, eggs and nests where "it is necessary to avoid injury to agricultural interests in a particular area or areas or to avoid injury to public health or safety" [MB Regs 26.1];
- airport permits to kill where danger to aircraft [MB Regs 28];
- taxidermist permits [MB Regs 29];
- eiderdown permits [MB Regs 30].
5. Migratory Bird Sanctuaries
The MBCA regime establishes a number (92 at date of writing) of migratory bird sanctuaries [Migratory Birds Sanctuary Regulations 3(1) ('MBS Regs')]. These sanctuaries are subject to the additional provisions set out below. For these purposes, the definition of 'migratory birds' is simply: "migratory game birds, migratory insectivorous birds and migratory non-game birds" [MBS Regs 2(1)].
Within a sanctuary, special migratory game bird sanctuary permits are required in order to [MBS Regs 3(2), 9(1)]:- hunt migratory birds;
- "disturb, destroy or take the nests of migratory birds", or
- possess "a live migratory bird, or a carcass, skin, nest or egg of a migratory bird"
- "carry on any activity that is harmful to migratory birds or the eggs, nests or habitat of migratory birds" [MBS Regs 10(1)].
Additionally, "no person who owns a dog or cat shall permit the dog or cat to run at large in a migratory bird sanctuary", subject to their destruction by a game officer [MBS Regs 5(1,2)].
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