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

PHOTOS: Harry van Oort

Event Proceedings & Presentation Recordings

A summary of event presentations and number of presentation recordings can be found in this proceedings document. Please feel free to share this with others. Some of the invited speakers were recorded and links to these presentations recordings may be found within the proceedings document.

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.

This provided an opportunity for dialogue between an environmental lawyer, regulators, industry, and biologists whose work involves the MBCA and relevant mitigation. On the first day, CMI presented 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 delve into potential for permitting of incidental take in the future, and the pitfalls of offsetting practices. A panel discussion/question period followed the presentations. On day 2, participants presented talks on approaches being used by industry, and ideas, results, and experiences (trials and tribulations) of incidental take avoidance and mitigation. Finally, interested participants hadthe 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?

“Thank you for organizing this event. It was incredibly valuable to be a part of as both a presenter and participant.” 

“I really enjoyed this event. Everything from the networking games to the wide variety of great presentations was fantastic. I appreciated the how well organized it was and the balanced representation from industry, academic, government and legal perspectives. The scheduling of the presentations was also very well planned, and everything ran on time. The best conference I’ve been to.”

Who attended this forum?

CMI events attract people from a variety of disciplines and professions. This forum catered 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 were welcome.

Speakers & Event Schedule

See here for the detailed event schedule and full list of event speakers. The invited speakers at this forum were 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 were welcome! See here for details.

April 26 – Regulations, risks and recovery. 

8:30am-4pm – Registration commences at 8:30am.

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 was introduced by Dr. Erin Bayne, who will took questions after the film. This event was open to the public.

April 27 – Applications and approaches to mitigation

6am-8am – Optional birding field trip for event registrants

8:30am-4pm – continuation of presentations, Nest-search working group discussion took place over the lunch hour

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. We thank Teck for their financial contribution to the networking event that preceded this conference.