“If anything, it’s time to toughen up the rules and establish a [Forestry] SILENT SEASON to allow migratory birds, as well as mammals raising their young in spring and summer, to have some peace and lack of disturbance and destruction.”
UPDATE, July 26, 2019: View 15 answers to 15 questions posed to CWS by BW & Co. about enforcement of regulations related to destruction of nests.
Also view Government of Canada: Avoiding harm to migratory birds
The Migratory Bird Regulations are in the final stages of the “first comprehensive review since they were implemented in 1917”. A set of amendments has been proposed; it was opened to comments on June 1, 2019 and will close to new input on July 31, 2019.
Bev Wigney of the “Annapolis Ecology Group” (my term for the Annapolis Royal & Area – Environment & Ecology Public Facebook group) is particularly concerned about the proposed inclusion of an exception to the prohibition against damaging, destroying, disturbing or removing a nest.
As described in the REGULATORY IMPACT ANALYSIS STATEMENT,
The amended MBRs propose the inclusion of an exception to the prohibition against damaging, destroying, disturbing or removing a nest, if the following conditions have been met:
(a) the nest shelter, eider duck shelter or duck box does not contain a live bird or a viable egg;
(b) the nest does not contain a live bird or viable egg, and it was built by a species that does not appear in Schedule 1 (nests of species that are protected year-round) of the proposed Regulations; or
(c) the nest has been abandoned, and was built by a species that appears in Schedule 1. In this case, a notice must be provided to the Minister of the Environment and the nest must remain unoccupied from the time the notice is received by the Minister for the period of time indicated in Schedule 1 (12, 24 or 36 months, depending on the species).
View more details at Canada Gazette, Part I, Volume 153, Number 22: Migratory Birds Regulations Scroll down to Part 1 — General – Exception for unoccupied nests — protecting nests of conservation value
Wrote Bev Wigney in her SUBMISSION REGARDING AMENDMENTS TO THE MIGRATORY BIRDS CONVENTION ACT (bolding is mine):
This is my submission regarding proposed changes to the MBCA’s regulations for protection of birds, eggs, fledglings and nests, as described in Part 1, General, Prohibitions, section 5 where it states under “Exceptions” (2) – parts (a) and (b) — that nests may be damaged, destroyed, removed or disturbed without a permit if that nest does not contain a live bird or a viable egg.
I *strongly disagree* with allowing damage, destruction, removal or disturbance of nests, nest shelters, etc.. when there is no LIVE BIRD or VIABLE EGG present – regardless of whether this is done within or outside of nesting season.
Here in Nova Scotia, we already have extremely serious problems with forestry operations continuing to work unabated throughout what you refer to as the “vital nesting and rearing (breeding) period” in your “Regulatory Impact Analysis Statement”.
On any given day, we see this crucial period of time in the avian reproduction cycle being largely disregarded and open to vague interpretations. The presence of “a nest” is the only “proof” that is respected – in the few cases when it *is* respected. Our reports of male birds singing on territory, birds carrying nesting materials, birds carrying food to young, birds attempting to defend their nest areas, or to lure predators away — are all being *ignored* and considered INADEQUATE PROOF that there are birds nesting on a site.
Until such time as we see the above-mentioned *true indicators of breeding bird activity* being given serious acceptance as ABSOLUTE PROOF, the nest with **A BIRD SITTING RIGHT ON TOP OF IT** seems to be the only acceptable proof that we have that there are breeding birds present. Therefore, nests are a very crucial piece of *evidence* and should not be considered eligible for removal except perhaps in the DEAD OF WINTER.
We realize that this lack of acceptance of various forms of proof is *VERY WRONG* and shows a *gross ignorance* of bird behaviour, but until we see a major sea change in attitudes and enforcement — this persistent notion that we have to PROVE that a bird is actually *SITTING ON A NEST* before any action can be taken to prevent death and destruction — it is crystal clear that nests are the ONLY form of vital evidence we have, and therefore, they should not be destroyed.
In the absence of a true *SILENT SEASON* during which forestry operations must cease — and without widespread enforcement of the breeding bird terms of the MBCA, any further watering down of regulations concerning destruction of birds, nests, eggs and fledglings should not be considered. To do so is inviting destruction to occur any time a bird is absent from its nest. NOTE::: Please do not entrust determination of “vital nesting and rearing (breeding) period” to industry.
Examples of times when a bird may not be occupying an “active nest”:
* During construction of a nest, a bird may be absent for considerable time while gathering nesting materials or taking time to search for food. Given the very vague interpretation of, and notions concerning the beginning of “vital nesting season” – a newly constructed nest that took a lot of energy and time to build, may be destroyed or removed.
* While constructing a nest, or during that period when a bird is first setting on its nest to lay its first egg, it could easily be flushed off the nest by nearby noise — and in the absence of the bird, and with no egg present in the nest, it would now be considered to be “unoccupied” and eligible for destruction or removal by those working in the area.
* During a period when a first brood of hatchlings may have left the nest (fledged, or due to brood failure), new eggs may not yet be laid and the nest might *seem* to be unoccupied for a time — and again, eligible for destruction or removal.
I barely need remind you that we are in a time of serious declines in many species. We here in Canada are quick to reprimand “other nations” for not doing more to prevent forest destruction and provide protection to migratory birds that overwinter or migrate through those geographic areas to the south — yet here we are, watering down our own regulations for what is, without question, the most critical of all times in the year for survival of species – the cycle of reproduction. If anything, it’s time to toughen up the rules and establish a SILENT SEASON to allow migratory birds, as well as mammals raising their young in spring and summer, to have some peace and lack of disturbance and destruction. Why is this not part of the amendments to the MBCA? It should be front and center of any changes to the Act.
Thank you, Bev Wigney, for speaking out on behalf of all birds that nest in Canada’s forests
Status update on modernization of Migratory Birds Regulations
Government of Canada. (Date modified: 2019-06-06)
Avoiding Incidental Take of Bird Nests: From Law to Practice
Forum hosted by Columbia Mountains Institute of Applied Ecology, April 26-27, 2017 Cranbrook, British Columbia Canada
Save Habitat & Nests
Page on NSFN
“Re: Imminent violations of the Migratory Birds Convention Act in Shelburne County, NS” 23July2019
Post on NSFN, July 23, 2019
Are cats more destructive to Nova Scotia’s forest birds than clearcutting?
Post on NSFN June 8, 2018
Birds nests versus industrial forestry in Nova Scotia & what the Independent Review can do for us
Post on NSFN Jan 10, 2018
Crossland: federal Migratory Birds Convention Act ignored as habitat is cut for chips
Post on nsforestnotes.ca, Jul 22, 2017
Nova Scotia’s Clearcut Refugees
Post on nsforestnotes.ca, March 12, 2017
ADDENDUM July 26, 2019
15 answers to 15 questions posed by BW & Co. to CWS about enforcement of regulations related to destruction of nests
Post on Annapolis Royal & Area – Environment & Ecology July 26, 2019
READING::: YESTERDAY, I RECEIVED A REPLY TO OUR “15 QUESTIONS” SENT TO CANADIAN WILDLIFE SERVICES:
Dear Ms. Wigney,
Thank you for your support for the conservation of migratory birds in Nova Scotia. Having the interest of yourself and the Annapolis Royal & Area – Environment & Ecology group is helpful to keep people informed of their responsibilities for conservation, especially for migratory birds an their habitats.
I would also urge you to work with the landowner of the site be it the province or privately owned to seek longer-term solutions for the forested areas that you value. Coming to them with proposals for alternate uses such as establishing sustainable management plans, conservation easements or other protection methods are options to consider.
For further information on incidental take of migratory birds, their nests and eggs, in general please contact Environment and Climate Change Canada’s Canadian Wildlife Service in writing or by e-mail firstname.lastname@example.org., or Garry Donaldson, Manager Assessment and Protected Areas at the Canadian Wildlife Service (506-364-5018 or Garry.Donaldson@Canada.ca) located here in Atlantic Region.
In addition, given the critical role the province of Nova Scotia plays in managing forests I would also encourage you to contact Nova Scotia Department of Lands and Forestry, (902) 679-6091 to explore longer-term solutions for your vision to protect this area.
Below you will find our responses to your questions.
Regional Director, Canada Wildlife Service – Atlantic
Regional Director, Wildlife Enforcement Directorate – Atlantic
Cc: Garry Donaldson,
Manager, Wildlife Assessment and Protected Areas, Canadian Wildlife Service
Director General, Wildlife Enforcement Directorate, Enforcement Branch
Q-1: If a citizen submits a complaint or report, will you investigate, or will you only investigate reports originating from certain sources or bodies? What is your criteria in order for a complaint to be taken seriously? What are your reporting standards — in other words, what documentation or other details do we need in order to have a report taken seriously?
Environment and Climate Change Canada (ECCC) Wildlife enforcement officers follow up on all complaints received. Complaints are reviewed by officers and triaged based on information received (e.g. urgency, risk to conservation).
Q-2: Will you investigate *before* destruction of nests? For example, if a citizen sees migratory bird activity in an area slated for imminent destruction, will you investigate and attempt to prevent the destruction? Or, do we have to wait until after the nests have actually been destroyed, collect proof of the destruction, and submit that in order for you to investigate? Many of us see this as a critical matter as investigating “after the fact” is like closing the gate after the horse ran away. We would like to know more about how quickly you will act — investigate and enforce? What you will do — if you will just advise someone to cease what they are doing, or will you force them to cease their actions?
The Migratory Birds Convention Act, 1994 (MBCA) clearly states that you cannot destroy migratory birds and their nests. However, if there is a report of an imminent destruction, wildlife enforcement officers will attend where possible and may issue compliance orders directing persons/companies “to take certain actions that are reasonable under the circumstances and consistent with the protection and conservation of migratory birds and their nests”.
Q-3: What is the minimum **documentation** required for a complaint to be investigated? Is it sufficient to submit observations of nesting activity such as calling on territory, nest building, carrying of food to young, unfledged nestlings, fledged birds attempting to fly, etc..?
What kind of evidence is the minimum that you would need in order to halt impending nest destruction? This is an *important* concern to us. We need to know *precisely* what you want from us. Do you need photographs of the nests? Photographs of the birds sitting on nests?
Sound recordings of birds calling on territory? etc.. Is all of this truly necessary? Obviously, you will want locations such as GPS coordinates, but we need proper instructions of *exactly* how much proof of migratory bird activity you want from us in order to investigate a report from one or more of us. Will *any* of the above be considered sufficient to halt destructive actions?
The more information a witness can supply will better support wildlife enforcement officers. It is important to remember that if you have witnessed an event happen or you have found evidence of a violation, you become part of what forms the evidence for a charge. In many cases, if the witness does not want to testify, we cannot go forward with the charge.
Q-4: When we find evidence of destruction, what do we need to do — precisely? GPS coordinates? Photos of nests, eggs, dead young? What else should we be doing to contribute to an investigation and/or charges?
Wildlife enforcement officers follow up with all complaints received. Typically, we will follow up with the complainant first to find out what has occurred. Depending on the information obtained, a site visit may follow and if the officer finds evidence of a violation, an investigation will ensue. As a witness, the more information you can provide (e.g. photos, gps coordinates), the better and it is also important to remember that you may be required to testify in court proceedings. It is also important to ensure that you do not disrupt the birds (even if it is in good faith) as the MBCA applies to us all.
Q-5: What guidelines would ECCC use in determining ‘allowable’ disruption of nests? Just how much disruption can take place? For example, if an area is about to be cut — such as would occur during power line maintenance, if a sweeper goes through ahead of work and flushes birds from the area, but then the nests are chopped up, is that permitted? Is this about saving only the adult bird, or do the nest, the eggs, the young also matter? Some “sweeping” activities will save the adult, but do nothing to preserve the nest. Isn’t that seen as a problem?
Destruction of nests, nestlings and eggs is not permitted under the MBCA and Migratory Bird Regulations (MBR) without a permit for valid reasons regardless of the situation. Currently, there is no permit to allow this incidental take of nests and eggs during general forestry operations.
Q-6: What amount of proof do you accept as an indication that an operation has surveyed for birds and found nothing of consequence? Do you have a standard — particular qualifications for the person who is surveying or bird activity? Do they need some kind of degree or diploma, or do you accept the report of any general forest technician? How do you ascertain that they conducted their survey at a time in the season when there would actually be birds on territory — for example, this year would have been quite late for birds to be on territory, as based on the reported audio monitoring of incoming migratory birds in southwest Nova Scotia this summer. How do we know they are doing call monitoring at the correct time of day, etc? What kind of back-checking is in place to ensure the quality of information being collected.
Forestry operations are regulated by the Province of Nova Scotia and by extension of that, the procedures/guidelines/requirements for harvesting operations are outlined by the Province as well. Wildlife enforcement officers do not play a role in the development of these procedures e.g. how pre-harvest inspections take place.
Q-7: Does ECCC consider only Species-At-Risk, or all avian species within an area? We have been led to believe by certain individuals (unnamed) that it is only SAR birds that matter, but according to the MBCA – as we interpret it — *all* migratory birds are supposed to be protected. Can you please confirm that we are correct?
All migratory birds as defined by the MBCA are protected no matter where they occur in Canada. ECCC’s Canadian Wildlife Service promotes avoidance of activities that are likely to impact individuals, their nest or their eggs. https://www.canada.ca/en/environment-climate-change/services/avoiding-harm-migratory-birds.html
Because of the urgent nature of at-risk birds, special attention may be paid to address human activities that might impact their survival, as is the case with Bank Swallows, for example: https://www.canada.ca/en/environment-climate-change/services/migratory-bird-conservation/publications/bank-swallow-riparia-sandpits-quarries.html
Q-8: What powers is ECCC prepared to enforce on private lands? For example, if someone were to chop up a fencerow with many birds nesting, is that permitted on their private land, or could you make them stop?
All migratory birds are equally protected wherever they occur in Canada. ECCC aims to prevent harm to birds, nests and eggs by informing Canadians about the law and provide advice on avoiding violations. https://www.canada.ca/en/environment-climate-change/services/avoiding-harm-migratory-birds.html
Wildlife enforcement officers may issue compliance orders during the course of an inspection or during the execution of a search warrant:
11.21 (1) Whenever, during the course of an inspection or a search, a game officer [wildlife enforcement officer] has reasonable grounds to believe that any provision of this Act or the regulations has been contravened by a person that is continuing the commission of the offence, or that any of those provisions are likely to be contravened, the game officer may issue a compliance order directing any person described in subsection (2) to take any of the measures referred to in subsection (3) that are reasonable in the circumstances and consistent with the protection and conservation of migratory birds and their nests and with public safety in order to cease or refrain from committing the alleged contravention.
Q-9: Does ECCC consider only activity in the nesting season, or do you consider protection of an area which is the known nesting place of birds each year — or even a place where birds overwinter to survive before returning north to nest in summer?
A proposal to modify the MBR to define how nests are protected has just finished public consultation. Details can be found at this link: http://gazette.gc.ca/rp-pr/p1/2019/2019-06-01/html/reg3-eng.html
While our jurisdiction lies solely within Canada, our reach for the conservation of birds extends internationally as we recognise that threats may occur at any stage of their annual cycle. A list of international partnerships ECCC supports can be found here: https://www.canada.ca/en/environment-climate-change/services/migratory-bird-conservation/partnerships.html
Q-10: Why is cutting permitted during migratory bird nesting season at all? Given the extinction crisis we’re in, and given the terms of the MBCA, why is there not a “silent season” to allow migratory birds the necessary habitat and time needed to produce a generation of young?
Forest management is the purview of the provincial and territorial governments in Canada. While ECCC encourages forestry activities to occur outside of the breeding season, the management of forestry lies with provinces and territories.
Q-11: With what we know about nesting birds — that they are in the forests in numbers in summer. Some among us who have worked (professionally) in the field of bird studies and research say that we should not have to “prove” there are birds in the forests. They are there in nesting season . Their nests are usually incredibly difficult to find and often at such a height that they cannot be seen or photographed from the ground, etc.. These people are questioning why is there a need to actually “find” these nests in order to stop some destructive action. Why does this need to be proven? Why should concerned citizens have to be the ones who must prove and then attempt to stop what we already know to be a destructive action — such as clear-cutting or partial (70-90%) cutting of a forest? Can we not be more proactive and try to save the birds rather than just report on dead ones after the fact?
ECCC recognizes that nests are often very difficult to find so our focus is on promoting avoidance of activities during the nesting season. Canadians can reduce their risk of encountering nests by referencing the general nesting period for their region as is indicated here: https://www.canada.ca/en/environment-climate-change/services/avoiding-harm-migratory-birds/general-nesting-periods.html
Q-12: What power does a land owner have with regard to refusing to allow a power line maintenance action to take place on their land during nesting season? This is referring to brush chopping and tree removal and not emergency removal of trees which are causing an actual problem. We do recognize the need for emergency removal, but shouldn’t maintenance along roads and on power line easements be done at a less destructive time of year?
ECCC does not play a role in negotiations between landowners and their agreement to grant access to public utilities.
Q-13: Does ECCC have data on where and when the migratory birds are each year? It seems that this information should be used to create “silent seasons” for the forests — months when no industrial forestry actions should be taking place — similar to knowing the path of migrating whales and diverting ships around their areas.
Yes, general nesting period calendars are located at this web site: https://www.canada.ca/en/environment-climate-change/services/avoiding-harm-migratory-birds/general-nesting-periods.html
It is recommended that all activities likely to destroy nests be carried out outside of the periods indicated for various parts of Canada.
Q-14: Have you investigated the disturbance of nesting birds by routine forestry operations in NS previously, and/or elsewhere in Canada previously, and what were the outcomes? What case law is out there with the MBCA and forestry beyond the case in New Brunswick recently reported in the news? Is this the only forestry case, or have there been others?
Investigations leading to charges being laid in a forestry context is very rare in the Maritimes. Most notable was the case you referred in the 2006 incident that involved the destruction of heron nests during the construction of a logging road in New Brunswick. We are not aware of others.
Q-15: I have a question for you with regard to “incidental take” and forest harvesting during the night. As we all know, once darkness falls, it is next to impossible to flush birds off of their nests. Recently, we read about how night harvesting of olives in the Mediterranean is responsible for killing many thousands of birds. There has been a worldwide backlash against the olive industry and demands to end all night harvesting because it is so deadly to migratory birds.
Has anyone considered the similar consequences of night harvesting of forests here in Nova Scotia?
Destruction of nests, nestlings and eggs is not permitted under the Migratory Birds Convention Act and Migratory Bird Regulations without a permit for valid reasons regardless of the situation. The Regulations apply regardless of time of day.