Regulations Amending the Migratory Birds Regulations, 2022

Key findings from the strategic environmental assessment (SEA) conducted for the Regulations Amending the Migratory Birds Regulations, 2022, as published in Canada Gazette, Part II.

More than 450 native bird species regularly make use of Canada's landscapes for at least part of their annual cycle. Most of these species are protected under the Migratory Birds Convention Act, 1994 (MBCA) and the associated Migratory Birds Regulations, 2022 (MBR 2022), and are collectively referred to as migratory birds. The Government of Canada, through Environment and Climate Change Canada (ECCC), is responsible for the conservation of migratory birds in Canada. ECCC’s migratory bird conservation and management work helps Canada meet its international obligations under the Convention for the Protection of Migratory Birds in the United States and Canada and to address Canada's obligations under the Convention on Biological Diversity.

The MBR 2022 allow the Minister of the Environment to issue permits that authorize certain actions in situations where migratory birds are causing damage or danger. Depending on the circumstances, these permits authorize the permit holder to scare or kill migratory birds (section 65), destroy their eggs or nests (section 70), or relocate migratory birds, eggs or nests (section 71) in instances where the birds, nests, or eggs are causing or likely to cause damage to property or threaten public health and safety. Previous to these amendments, damage or danger permits could only be issued to a person who owned, leased or managed a parcel of land where the birds were causing damage or danger.

The Regulations Amending the Migratory Birds Regulations, 2022 (Regulations) allow the eligibility criteria for damage or danger permits issued under sections 65, 70 and 71 to include holders of easements, servitudes, right-of-ways, licences of occupation, or rights under provincial laws to use land for public utilities or infrastructure (henceforth holders of other land-use rights). These minor amendments will provide regulatory certainty for holders of other land-use rights by specifying in the MBR 2022 that they are eligible to directly apply for and to hold a damage or danger permit.

The Regulations will have no significant impact, directly or indirectly, on the environment and, more specifically, on the conservation of migratory birds.

Prior to the Regulations, there was no regulatory mechanism for the holder of other land-use rights to apply directly for a damage or danger permit. The intervention of the owner, lessee or manager of the land was ultimately required where migratory birds were causing damage or danger. The need for a third-party intervention limited the ability of the utility sector to efficiently manage migratory birds causing damage or danger to critical infrastructure.

It is possible that the previous eligibility criteria may have deterred some holders of other land-use rights from applying for a damage or danger permit. The Regulations may therefore result in a small increase in permit applications due to an increased compliance with the MBR 2022. The issuance of damage or danger permits and the subsequent reporting of authorized activities by permit holders ensure that populations of migratory birds causing damage or danger are maintained, protected and conserved.

The Regulations are also expected to contribute marginally to several of the goals of the 2022-2026 Federal Sustainable Development Strategy, including notably:

• Increase Canadians' access to clean energy (Goal 7), which aims to ensure universal access to affordable, reliable and modern energy services, and Foster innovation and green infrastructure in Canada (Goal 9), which aims to develop reliable and resilient green infrastructure. The Regulations allow holders of other land-use rights, such as the hydroelectricity sector and other enterprises providing public services, to more efficiently address migratory birds causing damage or danger to critical infrastructure, such as electricity distribution networks. Those stakeholders will have enhanced control on the application process for damage or danger permits, therefore enhancing their ability to ensure reliable utility services to Canadians.
• Promote a fair and accessible justice system, enforce environmental laws, and manage impacts (Goal 16), which aims to promote and enforce laws and policies for sustainable development. The Regulations enhance the ability of holders of other land-use rights to comply with the MBR 2022 by specifying that they are eligible holders of damage or danger permits. The Regulations are expected to result in increased compliance with the MBR 2022, as the previous eligibility criteria might have deterred some holders of other land-use rights from applying for a damage or danger permit to complete urgent work on critical infrastructure.

The impacts to human health and socio-economic conditions resulting from environmental effects of the Regulations are expected to be minimal.

Due to the nature of the Regulations, there are no environmental effects that must be tracked or monitored. The Department will continue to monitor and respond to stakeholder feedback on emerging and outstanding issues related to the MBR 2022.