Protection statement: habitat to which the Migratory Birds Convention Act, 1994 applies for migratory birds listed under the Species at Risk Act- Amended July 2022

Official title: Protection statement for the habitat to which the Migratory Birds Convention Act, 1994 applies for migratory birds listed under the Species at Risk Act

This statement describes how critical habitat identified for species that are both a migratory bird protected by the Migratory Birds Convention Act, 1994 (MBCA) and listed as endangered, threatened, or extirpated^{Footnote 1} on Schedule 1 of the Species at Risk Act (SARA), is protected on non-federal land in Canada. This statement is made by the Minister of the Environment as the competent minister, pursuant to paragraph 58(5.2)(b) of the Species at Risk Act S.C. 2002, c. 29. All legislatively defined terms and sections referenced in this statement are reproduced in full in the attached Appendix 1.

Subsection 58(5.2) of the Species at Risk Act provides that the competent minister must include in the public registry, “a statement setting out how the critical habitat that is habitat to which that Act applies, or portions of it, as the case may be, are legally protected”. The minister must make this statement within 180 days after the recovery strategy or action plan that identified the critical habitat that includes habitat to which the Migratory Birds Convention Act, 1994 applies when he or she is of the opinion that there are provisions in, or other measures under, SARA or any other Act of Parliament, including agreements under section 11, that legally protect any portion or portions of the habitat to which the MBCA applies.

This statement therefore applies to those portions of critical habitat of migratory birds listed as endangered, threatened, or extirpated on Schedule 1 of SARA that are protected under the Migratory Birds Convention Act, 1994, for which the critical habitat^{Footnote 2} description includes a nest. For clarity, the language “habitat to which that Act applies” refers to the nest only.

Appendix 1 – Legislatively defined terms and sections referenced in the statement

Species at Risk Act, S.C. 2002, c. 29

Subsection 2 (1) The definitions in this subsection apply in this Act.

action plan means an action plan included in the public registry under subsection 50(3) and includes any amendment to it included in the public registry under section 52.

competent minister means

1. the Minister responsible for the Parks Canada Agency with respect to individuals in or on federal lands administered by that Agency
2. the Minister of Fisheries and Oceans with respect to aquatic species, other than individuals mentioned in paragraph (a); and
3. the Minister of the Environment with respect to all other individuals

critical habitat means the habitat that is necessary for the survival or recovery of a listed wildlife species and that is identified as the species’ critical habitat in the recovery strategy or in an action plan for the species.

recovery strategy means a recovery strategy included in the public registry under subsection 43(2), and includes any amendment to it included in the public registry under section 45.

residence means a dwelling-place, such as a den, nest or other similar area or place, that is occupied or habitually occupied by one or more individuals during all or part of their life cycles, including breeding, rearing, staging, wintering, feeding or hibernating.

Damage or destruction of residence

Section 33 No person shall damage or destroy the residence of one or more individuals of a wildlife species that is listed as an endangered species or a threatened species, or that is listed as an extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada.

Habitat of migratory birds

Subsection 58 (5.1) Despite subsection (4), with respect to the critical habitat of a species of bird that is a migratory bird protected by the Migratory Birds Convention Act, 1994 that is not on federal land, in the exclusive economic zone of Canada, on the continental shelf of Canada or in a migratory bird sanctuary referred to in subsection (2), subsection (1) applies only to those portions of the critical habitat that are habitat to which that Act applies and that the Governor in Council may, by order, specify on the recommendation of the competent minister.

Obligation to make recommendation

Subsection 58 (5.2) The competent minister must, within 180 days after the recovery strategy or action plan that identified the critical habitat that includes habitat to which the Migratory Birds Convention Act, 1994 applies is included in the public registry, and after consultation with every other competent minister,  

1. make the recommendation if he or she is of the opinion there are no provisions in, or other measures under, this or any other Act of Parliament, including agreements under section 11, that legally protect any portion or portions of the habitat to which that Act applies; or
2. if the competent minister does not make the recommendation, he or she must include in the public registry a statement setting out how the critical habitat that is habitat to which that Act applies, or portions of it, as the case may be, are legally protected

Migratory Birds Convention Act, 1994 (S.C. 1994, c. 22)

Section 2 (1) In this Act,

Migratory bird means a migratory bird referred to in the Convention, and includes the sperm, eggs, embryos, tissue cultures and parts of the bird;

Nest means the nest of a migratory bird and includes parts of the nest.

Section 4 The purpose of this Act is to implement the Convention by protecting and conserving migratory birds — as populations and individ-ual birds — and their nests.

Migratory Birds Regulations, 2022 (SOR/2022-105)

Prohibitions

Section 5 (1) A person must not engage in any of the following activities unless they have a permit that authorizes them to do so or they are authorized by these Regulations to do so:

1. capture, kill, take, injure or harass a migratory bird or attempt to do so
2. destroy, take or disturb an egg; and
3. damage, destroy, remove or disturb a nest, nest shelter, eider duck shelter or duck box

Exceptions

Section 5 (2) However, the following may be damaged, destroyed, removed or disturbed without a permit:

1. a nest shelter, eider duck shelter or duck box that does not contain a live bird or a viable egg;
2. a nest that was built by a species that is not listed in a Table to Schedule 1 if that nest does not contain a live bird or a viable egg; and
3. a nest that was built by a species that is listed in a Table to Schedule 1 if the following conditions are met:
   1. the person who damages, destroys, removes or disturbs that nest provided a written notice to the Minister a number of months beforehand that corresponds to the number of months set out in column 3 of the relevant Table to that Schedule for the species, and
   2. the nest has not been used by migratory birds since the notice was received by the Minister

Migratory Bird Sanctuary Regulations (C.R.C., c. 1036)

Subsection 3 (2) No person shall, in a migratory bird sanctuary,

2. disturb, destroy or take the nests of migratory birds, or
3. 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