HILL TIMES: January 11, 2011
The $3 million penalty imposed against tar sands giant Syncrude last fall for the death of 1600 ducks suggested the federal government takes the protection of migratory birds seriously. After all, Environment Canada investigated the kill, oversaw the prosecution of charges under the Migratory Birds Convention Act (MBCA), and proudly heralded the penalty: “We will continue to work with all levels of government to protect migratory birds and the environment,” said the minister in a press release. This statement was good news for migratory birds, which face myriad threats and, for many species, troubling declines.
The bad news for migratory birds had arrived a few weeks earlier. That’s when Environment Canada, with neither fanfare nor press release, abandoned a regulatory initiative that civil servants had been carefully preparing — with industry input — for several years. The initiative could have helped protect bird populations from various industrial threats, while giving industry clarity about when they could expect to be hauled into court for violating the MBCA.
The MBCA’s conservation goals are achieved in two broad ways: by prohibiting certain activities that kill birds directly and by strictly prohibiting nest destruction. Historically, industries haven’t had to worry about being prosecuted for destroying migratory bird nests, despite the central place of this prohibition in the Act. The now abandoned federal initiative was partly inspired by NAFTA’s environment commission, which in a 2006 investigation concluded that the federal government was widely failing to enforce the MBCA against logging companies that destroy tens of thousands of nests in Ontario alone each year. There is somewhat more enthusiasm federally for enforcing the Act’s hunting and depositing harmful substance (the charge against Syncrude) provisions — although a number of industrial activities pose far greater threats to bird populations.
When the recently updated MBCA first became law almost a century ago — to implement a treaty with the U.S. — the biggest threat to migratory birds was hunting. Today this threat is easily surpassed by the routine business operations of logging, mining, agriculture, and pipeline industries that destroy millions of bird nests each year, despite the MBCA prohibition.
The federal initiative, which focused on achieving or maintaining healthy bird populations, could have authorized, by way of permits for industry, some amount of nest destruction within a larger conservation framework. The initiative also looked to deal with massive bird kills that result from collisions with communication and office towers – problems the MBCA doesn’t currently address. The initiative could have been a big improvement on the status quo, provided it was supported by adequate staff, strong scientific research, and a willingness to prosecute if permit conditions were violated.
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There are plenty of good reasons — including economic ones —to protect migratory birds. Not only do birds protect agricultural and timber products from pests but they also pollinate plants, disperse seeds, and contribute to eco-system balance. Birding is also Canada’s most popular outdoor leisure activity after gardening and creates economic benefits measured in hundreds of millions of dollars annually.
The abandonment of the regulatory initiative also poses a different risk for the federal government. Canada’s documented failure to enforce the MBCA against logging companies along with the failure to follow through on the promised new approach likely constitutes a violation of NAFTA’s environmental side agreement. This agreement requires each country to effectively enforce its environmental laws so as to pre-empt trade advantages gained at the expense of the environment.
In killing the regulatory initiative Environment Canada said it would instead develop best practices relating to bird protection for particular industrial sectors. The statement sounded hollow, especially given that the abandoned initiative would have incorporated such practices in enforceable permits.
Canada is now effectively back to square one when it comes to migratory birds and their protection from industrial operations: bird species will continue to be imperiled by widespread habitat destruction; the MBCA prohibition against destroying nests will remain a strong law – but only on paper; and no new rules are yet on the horizon. The result is that migratory bird protection will, again, mostly be left to the birds.
