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Canada Migratory Bird Convention Act Compliance (12-CAN-a)

Information current as of 2019
In Canada, a person (developer) should consult with the Canada - Department of Environment and Climate Change (Department), as well as local government, to identify and mitigate any activities associated with a project that may disturb, harm or kill migratory birds, nests or eggs.


In Canada, the Canada – Migratory Birds Convention Act, S.C. 1994, c. 22 (MBCA) and Canada – Migratory Birds Regulations, C.R.C., c. 1035 protect migratory birds, their eggs, and their nests by prohibiting possession, buying, selling, exchanging, hunting or disturbing migratory birds without a permit from the Department. Migratory Birds Convention Act, S.C. 1994, c. 22, ss. 5(a)-(b); Migratory Birds Regulations, C.R.C., c. 1035, s. 5, 6. The MBCA applies to the families and subfamilies of birds listed in Article I of the Migratory Birds Convention Act. Migratory Birds Convention Act, S.C. 1994, c. 22, s. 1; Department of Environment and Climate Change Canada Webpage – Birds Protected Under the Migratory Birds Convention Act. The MBCA also prohibits any person from depositing or permitting a harmful substance, or any combination of substances which together may be harmful to migratory birds, to be deposited in waters, or an area frequented by migratory birds without prior authorization from the Department. Migratory Birds Convention Act, S.C. 1994, c. 22, ss. 5.1(1)-(2).

The inadvertent harming, killing, disturbance or destruction of migratory birds, nests and eggs, otherwise known as an “incidental take,” has the potential to result in investigation and prosecution under the MBCA and its regulations. The current MBCA and its regulations do not provide authorizations for the incidental take of migratory birds or their nests or eggs in the course of industrial or other activities. Canadian Wildlife Service Environment Canada – Incidental Take of Migratory Birds in Canada Guidance Document, s. 1.


In addition to the MBCA, some species of migratory birds receive additional protection under the Canada – Species at Risk Act, S.C. 2002, c. 29 (SARA). For more information on permits required under SARA, see: Species At Risk Act Permit
12-CAN-d


The Department regulates the protection of listed migratory birds pursuant to the Canada – Migratory Birds Convention Act, S.C. 1994, c. 22 and the Canada – Migratory Birds Regulations, C.R.C., c. 1035.



Migratory Bird Convention Act Compliance Process

12-CAN-a.1 – Contact the Department of Environment and Climate Change Canada

A developer should contact the Department to identify and mitigate any activities associated with the project, including any construction, renovations and/or landscaping, that may disturb or harm any migratory bird, nests or eggs protected under the MBCA and to determine whether an permit or authorization is required for the project activity.

12-CAN-a.2 – Contact Local Government

A developer should contact local government to identify and mitigate any activities associated with the project, including any construction, renovations and/or landscaping, that may disturb or harm any migratory bird, nests or eggs protected under any local statutes or regulations and to determine whether a permit or authorization is required for the project activity.

12-CAN-a.3 to 12-CAN-a.5 – Could the Project Disturb Migratory Birds or Deposit Harmful Substances into Their Habitat?

If the project has the potential to disturb migratory birds or deposit harmful substances into migratory bird habitat, a developer should contact the Department to determine whether a permit or authorization is required for the proposed activity pursuant to the MBCA. The Department reviews proposed activities on a case-by-case basis to determine whether an authorization or permit is applicable for any given project. Department of Environment and Climate Change Canada Publications Webpage – Policy When Considering Permitting or Authorizing Prohibited Activities under the Canada Wildlife Act and Migratory Birds Convention Act, 1994.

12-CAN-a.6 to 12-CAN-a.7– Could the Project Result in the Destruction of Critical Habitat of Migratory Birds Listed Under SARA?

Pursuant to SARA, if a project has the potential to result in the destruction of critical habitat of a migratory bird species listed under SARA as endangered, threatened or extirpated a developer may need a Section 73 Permit from the Department. For more information on Section 73 Permits, please see:

Species At Risk Act Permit
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12-CAN-a.8 – Develop Best Management Practices (Optional)

Although not required by the MBCA, in order to mitigate potentially destructive or disturbing activities and/or the risk of an incidental take of migratory birds, a developer may consider developing a Best Management Practice. A Best Management Practice includes:

  • Identification of factors that may affect risk of an incidental take;
  • Identification of project constraints that may affect the ability to manage risk of an incidental take; and
  • Application of mitigation strategies to avoid, minimize, and offset the risk of an incidental take.

The Canadian Electricity Association has developed the Bird Beneficial Management Practices Guide for Utilities to assist developers in maintaining compliance with the MBCA, SARA and/or other applicable statutes and regulations and to mitigate the risks of an incidental take, which is available on the Canadian Electricity Association Resources Webpage.


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