Canada: Another Conviction Under The Migratory Birds Convention Act

The Migratory Birds Convention Act, 1994 (MBCA) is again being used as a tool to protect migratory birds that are also species at risk. In early April, Bergedac Ltée, and a shareholder and employee of the company, were convicted and fined a total of $12,000 for violating Migratory Birds Convention Act, 1994 for the destruction of more than 40 Bank Swallow nests in a sand pit located near Beaumont, Quebec. More importantly, the court also ordered the company to ensure compliance with the MBCA regulations related to its sand pits. It further ordered that for a period of three years, the company must develop habitat in its sand pits that is favourable to Bank Swallow nesting. Bank Swallows are also listed as threatened under the Species at Risk Act (SARA). There were no additional convictions under SARA, however.

Earlier in the year, we reported on a significant conviction from last fall, where Canaport LNG Facility paid penalties both under the MBCA and SARA totalling $750,000.

SARA is a much more recent piece of legislation than the MBCA, coming into force in 2002. Further to the Migratory Birds Convention between Canada and the United States, the MBCA was enacted in Canada in 1917. It was intended to address concerns related to uncontrolled hunting of waterfowl and shore birds. In particular, it was adopted after the destruction of the once ubiquitous passenger pigeon. Canada significantly updated the MBCA in 1994 with expanded enforcement and penalty provisions

On a search of the federal government's Environmental Offenders Registry, which contains convictions for environmental laws since June 18, 2009, there are only 10 convictions listed under the MBCA. That is about ¼ the number of convictions that have been successfully brought under the Canadian Environmental Protection Act, according to data provided in the registry under the Canadian Environmental Protection Act. No convictions are listed in the Environmental Offenders Registry under SARA, though we know of at least one conviction, specifically the Canaport conviction, from last fall. With just two convictions in under six months, perhaps we are beginning to see an upward trend in the use of the MBCA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.