Are our migratory birds protected?

One of the oldest international environmental treaties is the 1916 Convention between the United States (US) and Great Britain for the Protection of Migratory Birds in the US and Canada. It was adopted after the destruction of the once ubiquitous passenger pigeon, to require each country to protect the remaining birds that fly between them. These include many of our most beautiful and best loved birds.

Each country implements the treaty through its own laws; in Canada, it is the Migratory Birds Convention Act, 1994.

The biggest problem with the treaty has always been the lack of enforcement. This has been the subject of well documented complaints to the Commission on Environmental Cooperation. The Commission agreed that the US government had never enforced its Migratory Bird Treaty Act in regard to bird nests or habitat destroyed by logging; when states take action, the penalties are inadequate.

Canada’s record is a little better, but will it stay that way? In a current case, J.D. Irving is charged with destroying eight blue heron nests while building a logging road. In defence, the company is attacking the constitutional validity of the Migratory Birds Convention Act, 1994 and its regulations. It claims they are void for vagueness. Fortunately, this argument is unlikely to succeed.

The key sections are:

Act, s. 5. Except as authorized by the regulations, no person shall, without lawful excuse,

(a) be in possession of a migratory bird or nest; or
(b) buy, sell, exchange or give a migratory bird or nest or make it the subject of a commercial transaction.

Regulation, s.6. Subject to subsection 5(9), no person shall

(a) disturb, destroy or take a nest, egg, nest shelter, eider duck shelter or duck box of a migratory bird, or
(b) have in his possession a live migratory bird, or a carcass, skin, nest or egg of a migratory bird.

except under authority of a permit therefor.

These sections are clear enough to pass legal muster. They are not like obscenity laws, where differences in community values and morals made some laws void for vagueness. Provincial Court Judge Patricia Cumming will rule on the motion June 9; any appeals may take years longer.

But the attention being given to the Migratory Birds Convention Act should remind us of the embarrassing fact that Canada has not signed the new world standard for protection of migratory species, the international Convention on Migratory Species. Most of the world has either signed the convention or entered into a Memorundum of Understanding to protect key species – the most conspicuously absent is Canada. Why?