Avoiding Incidental Take of Bird Nests: from law to practice

  • Start Date: April 26, 2017
  • End Date: April 27, 2017
  • City: Cranbrook BC
  • Venue: Prestige Rocky Mountain Resort
  • Registration now closed

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PHOTOS: Harry van Oort

Event Description

A hundred years ago, on August 16, 1916, the Migratory Birds Convention was signed by Canada and the USA. The Convention was implemented in Canada by the Migratory Birds Convention Act (the MBCA). In 1980, a clause was added to the regulations under the MBCA which prohibits the destruction, disturbance, or take of nests and eggs. This prohibition – often referred to as “incidental take’ – applies even if the activity which causes the harm is not directed at the nest or egg and is otherwise legal. In the period after 1980 the prohibition was largely overlooked in economic practices and by regulators, and incidental take was widespread. However, in recent years there has been an increase in awareness (and enforcement) of the prohibitions, and consequent requirements to address it in Environmental Protection Plans and Environmental Assessment Certificate requirements.

Incidental take is now recognized as a major legal conundrum for many industries, including forestry, agriculture, mining, and utilities. Projects involving land clearing, or vegetation management being undertaken by developers, cities, and resorts now commonly commit to avoiding incidental take, and biologists are increasingly hired to mitigate nest loss due to land clearing activities. The risk of incidental take can be minimized by guidance from nesting models, and disturbance to nests is sometimes avoided by conducting pre-clearing nest surveys. However, all approaches for nest loss mitigation have shortcomings, and it’s unclear what is required under “due diligence” and how this can be demonstrated.

An upcoming Columbia Mountains Institute forum will provide an opportunity for dialogue between an environmental lawyer, industry, regulators, and biologists whose work involves the MBCA and relevant mitigation. On the first day, CMI is lining up a roster of invited speakers to discuss legal risks, due diligence, provide perspectives from regulators (Canadian Wildlife Service) regarding enforcement and possibly future solutions, provide the ecological justification of legislation such as the MBCA and the BC Wildlife Act, and possibly delve into potential for permitting of incidental take in the future and the pitfalls of offsetting practices. A panel discussion/question period will follow the presentations. On day 2, participants are invited to present talks on approaches being used by industry, and ideas, results, and experiences (trials and tribulations) of incidental take avoidance and mitigation. Finally, interested participants will have the opportunity to engage in a working group to discuss pre-clearing nest surveys performed by biologists. What is the role of the biologist? What information should be provided to the client? And who bears legal responsibility in the event of incidental take following a survey?


Who should attend this forum?

CMI events attract people from a variety of disciplines and professions. This forum caters specifically to the needs of stakeholders (e.g., forestry, mining, agricultural, and power generation companies) and their environmental specialists and managers, biologists, and government decision-makers, but all are welcome.


Speakers & Event Schedule

See here for the detailed event schedule (draft) and full list of event speakers. Some of the featured speakers at this forum are as follows:

  • Janice Walton, Blakes, Cassels & Graydon LLP. As the leading lawyer in the area of litigation and corporate/commercial aspects of environmental law, including environmental assessment, environmental permitting, federal and provincial regulatory prosecutions, and administrative review of regulatory decisions, Janice Walton will address legal risks and due diligence in the context of the Migratory Bird Act.
  • Erin Bayne, University of Alberta, Faculty of Science, Department of Biological Sciences. As a leading avian ecologist, Erin Bayne will provide a summary of avian population change and the relative importance of the various human impacts that are influencing birds across Canada with an emphasis on birds in forested systems.
  • Kevin Fort, Government of Canada. Kevin Fort heads the Marine and Terrestrial Unit for Environment and Climate Change Canada, and has extensive experience with issues related to incidental take of bird nests. Kevin Fort will review the current federal policy and recommendations concerning avoidance of incidental take, and will review some of the technical tools and resources available to industry during project planning.
  • Laura Darling is a Senior Policy Specialist with Ecosystems Branch, Ministry of Environment in Victoria. Laura will present an overview of the provincial government’s “Environmental Mitigation Policy and Procedures” as it relates to incidental take, with a focus on key principles for identifying and implementing the best offsets.
  • Kari Stuart-Smith, Canadian Forest Products Ltd. As the Senior Forest Scientist for Canfor, Kari has extensive experience with forest policy, practice, and certification, and developing and implementing sustainable forest management practices. Kari will present the strategy a group of forest companies in the interior of British Columbia developed to mitigate the risks associated with the MBCA.
  • Nicole Barker, Coordinating Scientist for the Boreal Avian Modelling Project, a research partnership based at the University of Alberta. She will describe efforts to model songbird density using forest stand attributes and pre-existing point count data.

Overview of Forum Schedule:

April 25, 7:00pm Members Night and CMI AGM

Free Networking event for CMI members, but all forum attendees and non-members are welcome! Registration is required for this free event. See here for details.

April 26 – Regulations, risks and recovery. 

8:30am-4pm – Registration commences at 8:30am. Presentations to follow and will consist predominantly of experts sharing perspectives and advice regarding high level topics such as avian population decline, bird management, regulatory interpretation, compliance, management of legal risks, enforcement, offset policy and practice, and MBCA reform.

3:30pm-5:00pm – Poster session and networking social

7pm-9pm – Film screening of THE MESSENGER, a visually thrilling ode to the beauty and importance of the imperiled songbird, and what it will mean to all of us on both a global and human level if we lose them. This film will be introduced by Dr. Erin Bayne, who will take questions after the film. This event is open to the public.

April 27 – Applications and approaches to mitigation

6am-8am – Optional birding field trip for event registrants (space is limited, participation awarded on a first come first serve basis.) Bring binoculars, a scope if you have one, a snack, some water, dress for the weather, rubber boots recommended. 

8:30am-4pm – Sessions will focus on applied management tactics regarding approaches to mitigating risk of incidental take and minimizing disturbance to nesting birds. Focus will be on sharing of new information, highlight challenges and issues, share approaches being explored, and discuss the trials and tribulations with mitigating incidental take.


Posters and Displays

Posters and displays are welcome and encouraged. Time will be available on both Day 1 and Day 2 for mingling, networking, and discussion focussed at poster presentations and displays. To guarantee that your poster or display can be accommodated, please send title, abstract, or description of your display, a short bio, and full contact information by Monday April 3, 2017. Your abstract will be included in the forum proceedings. Submission guidelines can be found here.


Event Sponsors and Partners

Columbia Mountains Institute is pleased to work with these organizations in hosting this event: Cooper Beauchesne & Associates Ltd, Revelstoke Community Forest Corporation, Vast Resource Solutions and Larix Ecological Consulting.


We thank the Columbia Basin Trust and Stantec for their financial sponsorship of this event.



Event Sponsors and commercial exhibitors are encouraged to contact CMI after reviewing the information found here.



Registration fees for this event cover all scheduled speakers and workshops associated with this event, participation in all networking opportunities, an optional field-trip, and the catering costs associated with refreshment breaks and lunches.

*Member fee: $240

Non-Member fee: $285

Student fee: $160

Registration is now closed 

Where to Stay

We have set up two room discounted blocks available to participants of this event. When booking just state that you are with “CMI.”

Prestige Rocky Mountain Resort. Conveniently located on the event site, various in-house dining opportunities. $129.95 + tax per night for standard room, $139.95 + tax per night for king size bed. Rooms held until April 10.

Elizabeth Lake Lodge. This establishment is ~5min drive away from the Prestige Rocky Mountain Resort. Elizabeth Lake is just behind this lodge and is where the birding field trip will take place. Rates starting at $92.00 + tax per night, with options for two-bedroom suites for sharing. If booking on-line, select the AAA price-level, or phone direct to book your room. Rooms held until April 3, 2017.








Field Trip Download:

Early Morning Birding


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