Regulations Amending the Migratory Birds Regulations, 2022: SOR/2023-149

Canada Gazette, Part II, Volume 157, Number 14

Registration
SOR/2023-149 June 23, 2023

MIGRATORY BIRDS CONVENTION ACT, 1994

P.C. 2023-653 June 23, 2023

Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, makes the annexed Regulations Amending the Migratory Birds Regulations, 2022 under subsection 12(1)footnote a of the Migratory Birds Convention Act, 1994 footnote b.

Regulations Amending the Migratory Birds Regulations, 2022

Amendments

1 (1) Subsection 65(1) of the Migratory Birds Regulations, 2022 footnote 1 is replaced by the following:

Federal scaring or killing permit

65 (1) The Minister may issue a scaring or killing permit only to a person who

(2) The portion of subsection 65(5) of the Regulations before paragraph (a) is replaced by the following:

Obligations after expiry or cancellation

(5) A person to whom a permit was issued must, within 15 days after its expiry or cancellation,

2 Subsection 68(1) of the Regulations is replaced by the following:

Prohibition — giving without label

68 (1) A person who kills or takes a migratory bird under a permit referred to in section 64 or 65 must not give the migratory bird to a person other than the permit holder or a nominee referred to in subsection 65(3), unless it is labelled or preserved.

3 Subsection 70(3) of the Regulations is replaced by the following:

Eligible permit holder

(3) An egg or nest destruction permit may be issued only to a person who

4 Subsection 71(3) of the Regulations is replaced by the following:

Eligible permit holder

(3) A relocation permit may be issued only to a person who

Coming into Force

5 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Under the Migratory Birds Convention Act, 1994 (the Act), the Government of Canada is responsible for ensuring that populations of migratory birds are maintained, protected and conserved. The Migratory Birds Regulations, 2022 (MBR 2022) allow the Minister of the Environment (the Minister) 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 are likely to cause damage to property or threaten public health and safety. Under the MBR 2022, 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.

Companies providing public utility services, such as hydroelectricity, build structures on or utilize private or public lands to provide these services to Canadians. These companies often hold easements, servitudes, right-of-ways, or licences of occupation to utilize the land. They may also hold rights under provincial laws to use land for public utilities or infrastructure. In situations in which a migratory bird is causing damage or danger to property, the MBR 2022 did not allow 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) to apply directly to the Department of the Environment (the Department) for damage or danger permits issued under sections 65, 70 and 71 of the MBR 2022. Rather, the landowner, lessee or land manager needed to apply and identify the holder of other land-use rights as a nominee on the permit. This placed additional administrative burden on the landowner, lessee or land manager and limited the ability of the utility sector to efficiently manage migratory birds causing damage or danger to critical infrastructure.

Background

As a Department policy, damage or danger permits have also been issued to individuals designated as land managers, for the purpose of management of migratory birds, with written authorization from the owner, lessee or manager of the parcel of land where migratory birds were causing damage or danger. This mechanism is mainly used by wildlife control companies contracted by a landowner or lessee.

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.

A damage or danger permit may be obtained at no cost (Schedule 2, MBR 2022).

Objective

The objective of the Regulations Amending the Migratory Birds Regulations, 2022 (the amending Regulations) is to 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 permits.

Description

The amending Regulations include holders of easements, servitudes, right-of-ways, licences of occupation, or rights under provincial laws to use land for public utilities or infrastructure as eligible holders of damage or danger permits issued under sections 65, 70 and 71 of the MBR 2022.

Regulatory development

Consultation

The Department conducted a 30-day consultation that started on October 15, 2022. A Notice of Intent was published in Canada Gazette, Part I, advising Canadians of the publication of a consultation document on the Government of Canada’s website and of the 30-day comment period. The Department also notified by email over 2 900 stakeholders known to be interested in the MBR 2022 and the conservation of migratory birds, including holders of damage or danger permits issued in the last two years, industry associations, individual businesses, various government organizations, and conservation organizations. The consultation document proposed only adding holders of easements, servitudes, and right-of-ways as eligible holders of damage or danger permits.

During the public consultation, the Department received 39 comments. Comments were submitted by damage or danger permit holders (19 comments), Indigenous governments (two comments), municipal governments (three comments), the agriculture sector (two comments), the energy sector (eight comments), the forestry sector (two comments), a federal agency (one comment), a hunting organization (one comment), and a wildlife control company (one comment). Most comments, including comments from the industry sectors, were supportive, and indicated a view that the proposed amendments would allow more direct access to damage or danger permits to manage migratory birds in a timely manner.

Among current damage or danger permit holders who responded to the consultation, ten indicated that they supported the proposed changes, five did not support the proposed changes and four did not indicate an explicit stance on the changes. Respondents opposed to the proposal expressed concern regarding potential disagreements between permit holders and landowners regarding the methods (scaring, relocating, killing, etc.) used to manage migratory birds, eggs or nests that are causing damage or danger. To address this concern, the Department will require on permit applications that holders of other land-use rights attest to having notified the landowner, lessee or land manager of the activities required to manage the migratory birds causing damage or danger. The Department may cancel existing permits or decline subsequent permit applications should an applicant falsely attest the situation described in a permit application.

Other respondents expressed concerns about the general potential misuse of damage or danger permits by large companies. However, the Department reviews each damage or danger permit application for their potential effect on the conservation of migratory birds. Damage or danger permits indicate the species of migratory birds and the number of birds, nests or eggs the permitted activity relates to. Permits also specify the period of time and the area in which the permitted activities can take place. Applications may be refused if the impact on migratory birds is too high.

The industry sectors supported the proposed changes. Respondents identified three additional situations where an authorization exists to use the land, which they requested also be included in the amendments. In addition to easements, servitudes, and right-of-ways, they noted that licences of occupation, rights under provincial laws, and band council resolutions enable stakeholders, such as public utility companies, to install and operate infrastructure. Respondents suggested that these land-use rights should also enable holders of these land-use rights to apply for damage or danger permits. A licence of occupation is a legal agreement authorizing the temporary occupation and use of land, usually Crown land. Provinces afford rights to use lands for public services and infrastructure under various laws, including legislation that incorporate public utility companies. Under provincial laws, these companies may be afforded rights to install and operate infrastructure on public land. The amendments, as initially proposed, were modified by adding “licences of occupation” and “rights under provincial laws to use a parcel of land for public services or public infrastructure.”

Band council resolutions authorizing land use, however, were not mentioned in responses from Indigenous governments. The Department already considers that persons must ensure they have obtained any authorization required by an Indigenous government to manage migratory birds, their eggs or their nests in advance of applying for a damage or danger permit, in addition to obtaining any other federal, provincial, municipal permits or authorizations required to legally conduct activities. Therefore, band council resolutions were not added to the amendments.

Several respondents identified activities to which the conditions for issuing a damage or danger permit, described in subsections 70(2) and 71(2) of the MBR 2022, should apply. Those activities include the development of electricity infrastructure (greenfield projects) and the control of vegetation near those infrastructures for which industry is liable under provincial or other federal legislation. The current amendments are strictly limited in scope to the eligibility criteria described in subsections 65(1), 70(3), and 71(3) of the MBR 2022. The Department will consider these comments in the context of future potential amendments to the MBR 2022.

Prepublication

The amending Regulations are very narrow in scope, administrative in nature, and they impact a very limited number of stakeholders. Given the consultations undertaken, including the issuance of a Notice of Intent in the Canada Gazette, Part I, and general support from stakeholders toward the proposal, these amending Regulations were exempt from prepublication in the Canada Gazette, Part I.

Modern treaty obligations and Indigenous engagement and consultation

An assessment of modern treaty implications was conducted on the regulatory proposal. The assessment did not identify any modern treaty implications. The MBR 2022 do not affect modern treaty agreements and these amendments will not create any new restrictions or prohibitions that could affect section 35 of the Constitution Act, 1982, or its modern treaty obligations. Indigenous governments that responded to the consultation indicated support of or had a neutral position on the amendments.

Instrument choice

Pursuant to section 12 of the Act, the Governor in Council may make regulations respecting the conditions and circumstances under which migratory birds may be killed, captured, injured, taken or disturbed, or nests may be damaged, destroyed, removed or disturbed. It has been determined that other instruments, such as voluntary codes or guidelines, would not allow Canada to meet its obligation of preserving migratory birds, as required under the Convention for the Protection of Migratory Birds in the United States and Canada (the Migratory Birds Convention).

The amending Regulations enable holders of other land-use rights to apply and hold damage or danger permits, which require amendments to the MBR 2022. This cannot be achieved by using non-regulatory instruments.

Regulatory analysis

This analysis presents the costs and benefits of the amending Regulations. The incremental costs and benefits are expressed as the difference between the baseline and regulatory scenarios. In the baseline scenario, holders of other land-use rights need to seek nomination by a landowner, lessee or land manager to hold a damage or danger permit. In the regulatory scenario, holders of other land-use rights are eligible to apply for and hold a damage or danger permit without a third-party intervention.

Benefits

The amending Regulations would result in a slight reduction in costs for holders of other land-use rights. The amending Regulations are also expected to result in a reduction in costs to owners, lessees or managers of lands (eligible applicants) in the rare situations when the holder of other land-use rights had to seek authorization to manage migratory birds causing damage or danger.

Under the baseline scenario, a non-eligible permit applicant had to prepare a permit application (or guide a person eligible to hold a permit in the preparation of the application) and seek involvement from a person eligible to hold a permit to complete and submit the application. Based on feedback provided by stakeholders, seeking involvement of a third party requires between two and five hours of active administrative work. In a survey conducted in 2015 on the administrative burden related to Migratory Birds Regulations permits, the Department determined that the permit application process required two hours or less for 86% of applicants to damage or danger permits.footnote 2 In total, the MBR 2022 required from four to seven hours for a non-eligible permit applicant to obtain authorization under a damage or danger permit.

The amending Regulations will result in a cost reduction equivalent to between two and five hours by removing the intervention of an intermediary in the permit application process.

Costs

There are no anticipated incremental costs to businesses, consumers or Canadians, and minimal anticipated costs to Government. 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 amending Regulations may therefore result in a small increase in permit applications due to an increased compliance with the MBR 2022. This analysis assumes 25 permit applications over the next ten years (i.e. five applications every two years taking into account the two-year validity of each permit) to reflect the potential increase in compliance. The analysis results in a total cost to Government equivalent to between four and six hours to process each original permit application, and a total cost of two hours to process each permit renewal application every two years.

Small business lens

The small business lens does not apply to the amending Regulations, as there are no expected impacts on Canadian small businesses. While this analysis assumes five additional permit applications every two years over the next 10 years for a total of 25 permits to reflect increased compliance, it should be noted that it is the electricity and other public utility sectors — i.e. likely large businesses — that will mainly benefit from the amended eligibility criteria.

The amending Regulations may also result in a negligible reduction in administrative burden to businesses that own, lease or manage land in the rare situations where the holder of other land-use rights had to seek authorization to manage migratory birds causing damage or danger on that land. Businesses that own, lease or manage land can include small farms, woodlot owners and residential developers. In the event of a permit application by a holder of other land-use rights, these businesses would not be required to intervene as an intermediary in the damage or danger permit application process. The reduction in administrative burden is negligible because it is assumed that businesses owning, leasing or managing the land would mainly have forwarded information provided by the holder of other land-use rights seeking authorization during the permit application process.

One-for-one rule

The one-for-one rule applies to these amending Regulations since there is an incremental decrease in administrative burden on businesses, and the amending Regulations are considered an administrative burden under the rule.

It is unclear to what extent the reduced administrative burden from the updated eligibility criteria will influence compliance and the number of permit applications received. However, based on best available information, the analysis has assumed five additional permit applications every two years with a total of 25 permits over the next 10 years. Under the amending Regulations, the permit application was assumed to take 3.5 fewer hours to complete and was performed at a cost of labour associated with the industrial, electrical and construction trades. Under these conditions, the amending Regulations will result in a reduction of $138 in annualized administrative costs. Because of the low confidence in the number of estimated incremental permit applications due to an increase in compliance to the MBR 2022, actual outcomes may vary significantly from these estimates.

Regulatory cooperation and alignment

Article II of the Migratory Birds Convention, as amended by the Parksville Protocol, requires that, as an effective means of preserving migratory birds, the Governments of Canada and the United States establish laws, decrees or regulations to allow the taking of migratory birds at any time of the year for specific purposes consistent with the conservation principles of the Convention. The Regulations are in line with Canada’s obligations under the Migratory Birds Convention.

Strategic environmental assessment

A strategic environmental assessment (SEA) was conducted for these amendments. The SEA concluded that, on their own, the amendments have no environmental effects. The amendments would, however, contribute marginally to several of the goals of the 2022–2026 Federal Sustainable Development Strategy, including notably:

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for these amendments.

Implementation, compliance and enforcement, and service standards

The amending Regulations come into force on the day on which they are registered.

The Department has developed a compliance strategy for these Regulations. Compliance with the amendments will be promoted through updates to the information and guidance provided on the Government of Canada’s website for damage and danger permits (e.g. frequently asked questions, permit application forms, etc.).

The Act and the Designation of Regulatory Provisions for the Purposes of Enforcement (Migratory Birds Convention Act, 1994) Regulations provide a fine regime following a conviction pursuant to the Act or the MBR 2022. Designated offences are subject to the regime of minimum and higher maximum fines, in order to ensure that fines reflect the seriousness of offences under the Act. Such offences involve direct harm or risk of harm to the environment, or obstruction of authority. For example, the fine range associated with a designated offence for an individual on summary conviction is no less than $5,000 CDN and no more than $300,000 CDN, or imprisonment for a term of not more than 6 months, or both. Fines are doubled for second or subsequent offences.

In addition, administrative monetary penalties (AMPs), pursuant to the Environmental Violations Administrative Monetary Penalties Regulations are available to departmental enforcement officers to enforce designated violations of the Act and its associated regulations. An AMP is a financial disincentive to non-compliance and provides an additional tool for officers, to supplement existing enforcement measures (e.g. warnings, tickets). The amount of a single AMP cannot exceed $5,000 in the case of an individual, or $25,000 in the case of a person other than an individual. More information about the AMPs regime can be found on the Canada.ca website and in its Policy Framework to implement Environmental Violations Administrative Monetary Penalties Act.

The current amendments do not require consequential amendments to the Designation of Regulatory Provisions for the Purposes of Enforcement (Migratory Birds Convention Act, 1994) Regulations or to the Environmental Violations Administrative Monetary Penalties Regulations. Departmental enforcement officers and provincial and territorial conservation officers will continue to enforce the MBR 2022 by verifying permit holder compliance of the activities and conditions specified on damage or danger permits.

Contact

Caroline Ladanowski
Director
Wildlife Management and Regulatory Affairs Division
Canadian Wildlife Service
Environment and Climate Change Canada
351 Saint-Joseph Boulevard, 16th Floor
Gatineau, Quebec
K1A 0H3
Email: ReglementsFaune-WildlifeRegulations@ec.gc.ca