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Migratory Bird Flyways in North America |
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Migratory Bird Flyways in North America |
The Migratory Birds Convention (MBC) of 1916 was negotiated by Canada and the United States. It was a pioneering document, the first international conservation agreement in the western hemisphere. Over the years it has become a cornerstone of wildlife management in North America. Generations of sport hunters and wildlife biologists have had their activities influenced by the content of the MBC. At the same time, the terms of the MBC generally did not take into account the traditional hunting practices and nutritional needs of aboriginal peoples of Canada. The negotiators of the MBC also did not foresee the entry of Newfoundland into Confederation in 1949 and thus it does not provide for the traditional murre hunt in that province. These long standing problems are the main driving forces behind the federal government's current initiative to amend the MBC. This article briefly outlines the genesis and content of the MBC as well as the issues constituting the amendment process.
Origins of the Convention
By the beginning of this century it had become obvious to those
concerned with the conservation of wildlife in North America
that many bird populations were decreasing. The decrease in
numbers was attributed to "indiscriminate slaughter", to use
the wording of the future MBC. Market hunting, for food for
restaurants and for the use of feathers and whole stuffed birds
for fashion, accounted for much of the decrease. Hunting in
the spring, as birds made their way to their nesting grounds,
was also the norm. Shipments of ducks and shorebirds were
made regularly to urban markets. It was reported that a million
bobolinks and rails were killed in one month near Philadelphia
to provide feathers for women' s hats.
The idea of conservation of birds had support in the emerging wildlife programs in provincial and state governments and in emerging non-governmental organizations (NGOs) such as the Audubon Society. However, motivations for conservation of birds came largely from a utilitarian point of view. The loss of opportunities to hunt waterfowl was a concern to the organized sport hunting fraternity. Concerns were also raised over the potential effects on agriculture as insectivorous bird populations declined.
The beginning of bird banding in the 1890's revealed the migration routes of birds across North America. Once these routes were known it became obvious that control of hunting could only be effective if it was done on a continental rather than local basis.
Attempts at interjurisdictional control of hunting began in the United States with Congress passing the Lacey Act in 1900 and the Bederal Migratory lSird Law in 1913. Wildlife was and continues to be largely a state governmentjurisdiction. The President, however, had power to negotiate international treaties. It was felt that grounding interjurisdictional protection of migratory birds in this power would eliminate constitutional ambiguity from any federal law. Consequently, a suggestion was made in the Senate that a treaty be concluded with Great Britain, on behalf of Canada, to protect migratory birds.
A draft treaty was presented by the United States to the Canadian government in 1914. The Parks Branch, and Departments of Agriculture and the Interior approved the draft and it was sent to provincial governments for review. The resulting convention was signed by American and British representatives on August 16, 1916. The Migratory Birds Convention Act (MBCA) was passed by Parliament in 1917 and the Migratory Bird Treaty Act was passed by the U.S. Congress in 1918. These acts form the legislative basis for enforcement of the MBC in the respective countries.
Although the MBC was negotiated by Canadians, Britain's signature was required because in 1916 Canada had not yet obtained the power to ratify international treaties. This procedure conferred "Empire Treaty" constitutional status on the MBC. This status remains the legal basis for federal jurisdiction in migratory birds today.
Content of the MBC
The utilitarian nature of the MBC is reflected in its classification
of birds. It contains three lists: the migratory garne bird
list consists of ducks, geese, shorebirds, rails? and pigeons;
migratory non-game birds include grebes, loons, gulls, terns,
and most seabirds; the migratory insectivorous bird list consists
of most perching birds.
Hunting of non-game and insectivorous birds was prohibited. A closed season on hunting of game birds was established from March 10 to September 1, with a maximum length of a hunting season at any location set at three and one half months. Exceptions to these prohibitions concerned subsistence hunting by aboriginal peoples. Indians could hunt scoters, a game bird, for food at any time of year. Indians and Inuit could also hunt a number of seabirds, non-game birds, for food and clothing in any season. Sale of any birds, eggs, and nests was prohibited.
Amendment Initiatives
Although a number of attempts to amend the MBC have
occurred, it has not been modified since 1916. This situation
exists because amendment of the MBC is a complex process,
requiring Cabinet approval in Canada and Senate ratification
in the United States.
The conflict between traditional spring and early summer hunting by aboriginal people and the game bird closed season is a significant catalyst in Canada to amending the MBC. The decades-long history of aboriginal people being charged with closed season hunting offences while participating in their traditional pursuits has clearly recorded this conflict. This hunt continues despite its prohibition under the terms of the MBC. Another force driving the amendment initiative, the Newfoundland murre hunt, is discussed elsewhere in this issue.
Hunting of Waterfowl by Aboriginal People
Most migratory bird hunting by aboriginal communities occurs
in rural and remote regions of the country. While
aboriginal hunting of migratory birds is usually incidental to
other traditional harvesting activities, geese form a high percentage
of the diet in some communities, most notably those
along the coasts of James Bay. The bulk of this harvest occurs
in spring and summer during the closed season as a consequence
of seasonal availability of birds, traditional activities,
and dietary preferences.
The magnitude of the northern aboriginal waterfowl harvest has been measured with some precision in several northern areas, largely as a result of the settlement of comprehensive land claims. The majority of these claims mandated five-year harvest studies which were endorsed by the claimant groups. Estimates, which require further refinement, indicate an annual harvest of between 250,000 and 750,000 ducks and 350,000 geese. For comparison, harvests of 350,000 ducks and 350,000 geese represents 13% and 32% of the Canadian harvest respectively and 6% and 14% of the total North American harvest. The number of aboriginal waterfowl hunters in all of northern Canada totals about 50,000 individuals. This figure compares to approximately 1,423,000 sport hunters in Canada and the United States in 1991.
Convention Amendments for
Aboriginal Hunting
Acknowledging the difficulties created by the MBC for
aboriginal hunters, the federal government agreed in the 1975
James Bay and Northern Quebec Agreement to make best
efforts to amend the convention. An identical commitment is
found in the 1984 Inuvialuit C:omprehensive Claims
Agreement for the western arctic region.
Canada and the United States reached a tentative agreement in 1979 on an amendment to the MBC that would have allowed regulated subsistence spring hunting of migratory birds by Alaskan residents and Indians and Inuit in Canada. This proposal failed to receive the political support required for ratification. Subsequent progress in the mid 1980s in developing a plan in response to objections raised to the 1979 proposal was delayed as legal questions were considered regarding the affect of the Empire Treaty status of the MBC on the amendment process. These deliberations were concluded in 1990.
The Canadian Wildlife Service (CWS) began public consultations on the content of an amended MBC in the fall of 1990. CWS met with representatives of provincial/territorial governments, aboriginal groups, and NGOs. In the spring of 1992 nine consultation workshops were conducted across the country, attended by representatives from various provincial/territorial governments, aboriginal organizations, and NGOs, where amendment process and content were discussed. At present an amendment proposal is being developed and consultation is continuing. These consultations have focused primarily on the desirability and methods of ending the prohibition on the established aboriginal hunt in the closed season. While predicting an amendment timetable is hazardous at best, it is hoped that the federal Cabinet will equip Canada' s negotiators with a mandate later this year, and that negotiations with the Americans will begin in 1994.
| 14.(37) | Recognizing the present restrictions |
| of the Migratory Birds Convention Act, Canada undertakes to explore means to permit the Inuvialuit to legally hunt migratory game birds in the spring. Canada undertakes, if and when implementing any amendments to that Act, to develop in consultation with the Inuvialuit through the Wildlife Management Advisory Council (NWT) appropriate subsistence harvest regulations. |
| 24.14.2 | Within its responsibility for the |
| management of migratory bird populations, Canada shall forthwith upon the execution of the Agreement endeavor to obtain a modification or amendment to the Migratory Birds Convention and/or to the application of the said Convention in and to the Territory or to the Native people in the Territory to eliminate to the extent possible all conflicts with the Hunting, Fishing and Trapping Regime established by and in accordance with this Section and in particular, subject to the principle of conservation, to eliminate to the extent possible any conflict with the right of the Native people to harvest at all times of the year all species of wild fauna except species requiring complete protection from time to time within the Territory to ensure the continued existence of such species or a population thereof. |
| 16.3.10 | Canada shall make best efforts to |
| achieve an international agreement to permit Yukon Indian People to hunt Migratory Game Birds in the closed season in effect at the date of ratification of this Agreement by Yukon First Nations. |
| 5.9.2 | The Government of Canada shall |
| include Inuit representation in discussions leading to the formulation of government positions in relation to an international agreement relating to Inuit wildlife harvesting rights in the Nunavut Settlement Area, which discussions shall extend beyond those discussions generally available to non-governmental organizations. |
Discussion
A number of issues are being considered in discussions of the Canadian
proposal to amend the MBC.
The final agreements of northern comprehensive land claims settlements call for the establishment of cooperative wildlife management bodies, made up of 50% government and 50% aboriginal appointees. These boards provide the necessary conservation and management tools to ensure local community participation in management of waterfowl. The settlement regions under the James Bay and Northern Quebec Agreement and the Inuvialuit Agreement feature this type of co-management. Others, most notably the Gwich'in, Nunavut, and Yukon settlement areas, will also soon come into force.
Legal challenges to the MBCA by aboriginal people may continue. Lower court decisions in Manitoba (R. v. Flett) and Alberta (R. v. Arcand), both of which were upheld upon appeal in 1989, determined that section 35 of the ConstituXion Act, 1982 protects treaty rights including the right to hunt waterfowl during the closed season, and that the MBCA went beyond the extent of regulation provided for in the treaties at issue. These decisions preceded the 1990 Supreme Court of Canada decision (R. v. Sparrow) that stated that aboriginal hunting could only be regulated for the purpose of a valid legislative objective, such as conservation. Clearly the anticipated MBC amendments must respect whatever protection the constitution gives to treaty and aboriginal rights to hunt migratory birds.
Also under discussion is the concept of allowing non-aboriginal residents of the territories and Labrador to participate in regulated subsistence harvests. In remote aboriginal communities this approach would allow non-aboriginal northerners, who rely upon subsistence hunting, a legal opportunity to participate in the harvest and to share responsibilities for conservation of the resource. The decision to allow non-aboriginal people to hunt for subsistence would be made at a local management level.
An early fall hunt for holders of migratory game bird permits is also being considered. In northern regions, migratory birds arrive late and leave early, restricting the time sport hunters have legal access to the resource. As in the case for non-aboriginal subsistence hunting, this provision is being considered for the territories and Labrador.
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| White-fronted goose used as decoy. |
Conclusions
In Canada many aboriginal people harvest migratory game
birds for food during spring and early in summer. In
consequence, the MBC needs to be amended to permit a regulated
spring harvest of migratory waterfowl. To continue to
conserve migratory waterfowl, it is essential that local aboriginal
communities participate effectively in co-management
White-tronted zoose used as decov.
The establishment of legal regimes that allow hunting during the present closed season will contribute to conservation of waterfowl populations through regulations and local participation. It is anticipated that conservation can be assured through the development of cooperative wildlife management regimes in northern Canada. Equally effective arrangements will have to be established in southern Canada.
REFERENCES
Canadian Wildlife Service, 1992. Status of Game Birds in Canada With
Proposals for 1992 Hunting Regulations.
Convention of August 16,1916 for the protection of migratory birds in Canada and the United States. In Migratory Birds Convention Act, S.C.,1985, C.m-7, as amended and regulations (LCOM).
Foster, J. 1978. Working for Wildlife, University of Toronto Press.
Gottesman, D.1983. Native Hunting and the Migratory Birds Convention Act: Historical, Political, and Ideological Perspectives, Journal of Canadian Studies, vol. 18, no. 3, pp. 67-89.
Hewitt, C.G. 1921. The Conservation of Wildlife in Canada, Charles Scribner's Sons.
Martin, M.M., P.I. Padding, and P.H. Geissler, 1992. Preliminary Estimates of Waterfowl Harvest and Hunter Activity in the United States During the 1991 Hunting Season, United States Fish and Wildlife Service.
R. v. Arcand 1989. 2.C.N.L.R.110.
R. v. Flett 1989. 4.C.N.L.R.128.
R. v. Sparrow 1990. I SCR 1075.
Thompson, J.G.1991. Current Perspectives on the Management of Migratory Birds in Northern Canada and Newfoundland, Transactions of the 56th North American Wildlife & Natural Resources Conference (1991), pp. 350-357.
Murray Wagner is Program Manager, Migratory Birds
Convention Amendments, CWS. Greg Thompson is the
Director of Migratory Birds and Wildlife Conservation
Branch. CWS.
