Proposed amendments to the Migratory Birds Regulations, 2022: consultation document, fall 2026

Overview

Environment and Climate Change Canada (ECCC) is seeking comments on proposed amendments to the Migratory Birds Regulations, 2022 (MBR 2022). Interested Canadians are invited to provide written comments on these proposals during a 30-day consultation period, which will end on December 6, 2026. Please send your comments to ConsultationssurleROM-MBRConsultations@ec.gc.ca.

The current proposals are intended to provide greater flexibility and certainty for activities related to migratory bird welfare—including hazing to prevent migratory birds from encountering environmental hazards; public safety, health and national security; National Interest Projects listed under the Building Canada Act; and situations where migratory birds or their nests may cause damage or danger.

Further public consultation on additional proposed amendments—including humane killing and euthanasia where rehabilitation is not possible, activities with minimal impacts on migratory birds (de minimis activities), and the sale of feathers by Indigenous Peoples—is expected later in 2026. Additional proposed changes to introduce a broader incidental take regime are expected to be introduced in late fall 2027 to early winter 2028.

The proposed amendments are intended to reflect a balanced, evidence-based and risk-based approach to regulating activities that may affect migratory birds. They seek to maintain positive population-level conservation outcomes while providing appropriate flexibility and certainty for high-priority activities, minimizing unnecessary administrative burden, and aligning with existing legislation where possible. ECCC is seeking feedback through this consultation to help assess whether the proposed approach achieves the appropriate balance.

ECCC will carefully consider all comments received. Your feedback will help inform the refinement of the proposals and  support the development of balanced and effective regulations.

Background

The Convention for the Protection of Migratory Birds in the United States and Canada is an international treaty signed in 1916 between Great Britain, on behalf of Canada, and the United States. Canada implemented the Convention through the Migratory Birds Convention Act (MBCA), enacted in 1917 and the Migratory Birds Regulations, in 1918. Together, they provide a legal framework for protecting migratory birds, their nests and eggs throughout Canada.

ECCC is responsible for the protection, management, and conservation of migratory birds in Canada, including the administration of the MBCA and the MBR 2022.

In 2022, the MBR 2022 came into force with amendments that restructured and clarified the regulations, recognized Indigenous rights, updated hunting provisions, and focused nest protection on nests that are of conservation value to migratory birds. ECCC recognizes that further amendments are needed to provide greater flexibility, clarity and certainty for certain activities while maintaining positive population-level conservation outcomes.

Hazing of migratory birds for welfare and conservation purposes

Context

Environmental emergencies involving the deposit of harmful substances into the environment may negatively affect migratory birds. For example, oil spills in marine or freshwater environments can have severe consequences. Migratory birds exposed to oil may experience contamination of their feathers, which can cause the bird to lose buoyancy or be susceptible to hypothermia. Furthermore, migratory birds may ingest contaminants when preening (grooming) their feathers. In the absence of prevention and response measures, such incidents can result in significant mortality of migratory birds, which could impact conservation efforts.

Certain industrial or commercial operations may also pose risks to migratory birds. For example, industrial waterbodies used to retain or treat wastewater to prevent the release of contaminants, can attract migratory waterbirds. Migratory birds that encounter these waterbodies may experience short or long-term health effects, including injury or mortality, or contamination of their feathers. Similarly, open-pen aquaculture infrastructure poses risks, as they may attract fish-eating migratory birds, which may be injured or killed by becoming entangled in nets or other equipment.

In the circumstances described above, deterring or hazing migratory birds may be a beneficial practice to prevent them from encountering a hazard (such as oil spills in water, contaminants in industrial waterbodies, or aquaculture equipment). Deterrence activities are generally considered to be preventative in nature and intended to discourage migratory birds from accessing or using an area, including both active and passive techniques. Activities to deter migratory birds may include the use of physical barriers, reflective tape, predator decoys, flashing lights, or acoustic devices (such as pyrotechnics or air horns) using interval-based or randomized continuous systems. By contrast, hazing is the intentional disturbance of migratory birds already present at a site, with the aim of causing them to move away or abandon the area, typically through direct and repeated interventions. Hazing activities may include the use of watercraft, including motorized and non-motorized vessels, as well as remotely operated watercraft, aircraft, lasers, firearms, trained dogs, or falconry. While examples of activities and equipment are provided, whether a particular activity or equipment constitutes deterrence or hazing may depend on how it is used, including whether it is used preventively to deter migratory birds from accessing an area or to disturb migratory birds already present at a site.

Subsections 5(1) and 27(1) of the MBR 2022 prohibit, among other things, harassing, chasing, pursuing, worrying, following after or on the trail of, and lying in wait for migratory birds.

Issue

Preventative deterrence activities as described above would not generally be expected to contravene the prohibitions. Hazing, however, while recognized as a beneficial migratory bird conservation practice in some situations, may result in non-compliance with subsections 5(1) and 27(1) of the MBR 2022, unless otherwise authorized under the MBR 2022.

In circumstances where migratory birds are causing, or are likely to cause, danger to human health or public safety, or damage to agricultural, environmental or other interests, non-lethal hazing, where equipment other than aircraft or firearms is used, may be exempted under subsection 63(1) of the MBR 2022.

Where the use of aircraft or non-lethal use firearms is required, hazing may be authorized through a Damage or Danger (Scaring) Permit issued under subsection 65(2) of the MBR 2022 for the purpose of hazing migratory birds. However, this mechanism is likewise limited to situations in which migratory birds are causing, or are likely to cause, danger to human health or public safety or damage to agricultural, environmental or other interests. Furthermore, the use of falconry practices for hazing may be authorized under a Damage or Danger (Kill) Permit.

Since October 27, 2023, temporary variance notices have been issued under section 20 of the MBR 2022 to exempt non-lethal hazing from the application of certain prohibitions set out in paragraph 5(1) and subsection 27(1), in certain environmental emergency situations. However, such variance notices may only be issued for a maximum period of one year and must therefore be reissued annually.

Currently, while there are mechanisms to authorize hazing in circumstances where migratory birds are causing, or are likely to cause, danger to human health or public safety, or damage to agricultural, environmental or other interests (namely, damage or danger permitting), there are no clear or appropriate mechanisms to authorize hazing for welfare or conservation purposes. This includes to preventing migratory birds from encountering hazards associated with environmental emergencies or industrial or commercial operations.

Purpose

ECCC is seeking comments on proposed amendments to the MBR 2022 to authorize non-lethal hazing to support migratory bird welfare or conservation. Specifically, ECCC is seeking feedback on:

• a proposed exemption to the prohibitions set out in paragraphs 5(1) and subsection 27(1) on harassing, chasing, pursuing, worrying, following after or on the trail of, and lying in wait for, as well as disturbing an egg or nest, to allow for hazing in certain environmental emergency situations
• a proposed permit authorizing hazing activities that would otherwise contravene the prohibitions set out in paragraphs 5(1) and subsection 27(1) on harassing, chasing, pursuing, worrying, following after or on the trail of, and lying in wait for, as well as disturbing an egg or nest, for industrial or commercial operations in non-emergency circumstances

Proposal

Hazing – Environmental emergencies

It is proposed that the MBR 2022 be amended to establish an exemption from the prohibitions set out in paragraphs 5(1) and subsection 27(1) on harassing, chasing, pursuing, worrying, following after or on the trail of, and lying in wait for, as well as disturbing an egg or nest.

The exemption would apply to a person engaging in hazing activities during environmental emergency situations, where all of the following conditions are met:

1. the activities are undertaken in response to an uncontrolled or unexpected incident involving the release of a substance harmful to migratory birds into a location frequented by migratory birds, resulting in, or likely to result in, immediate or long-term adverse effects to migratory birds
2. only non-lethal methods are used, which may include the use of aircraft or firearms
3. the environmental emergency has been reported to the designated federal, provincial, or territorial environmental emergency authority, as well as to ECCC’s National Environmental Emergencies Centre

The use of falcons for hazing presents a significant risk of causing the death of migratory birds. Accordingly, ECCC would not consider falconry-based hazing to constitute a non-lethal hazing method. Activities involving the use of falcons for hazing would therefore not be eligible for authorization under the proposed exemption for hazing in environmental emergencies.

Hazing activities would be allowed only for the duration of the risk posed by the environmental emergency and must cease once that risk has abated.

The proposed exemption would apply to any of the following:

1. any person or organization responsible for the environmental emergency (“responsible party”)
2. any person or organization acting on behalf of the responsible party
3. the governmental authority responsible for overseeing the response (“lead agency”)
4. any person or organization acting on behalf of the lead agency

Hazing activities conducted under this exemption, including information on location, number and species of migratory birds affected, hazing methods used, and outcomes of hazing, must be reported to the same designated authority to which the emergency was reported, as well as to ECCC’s National Environmental Emergencies Centre.

Activities authorized under such an exemption would remain subject to the other prohibitions in subsection 5(1), including those respecting the capturing, killing, taking, or injuring of migratory birds, as well as the prohibitions against destroying, and taking an egg, and damaging, destroying and removing a nest. They would also remain subject to section 5.1 of the MBCA, which prohibits the deposit of substances harmful to migratory birds, or the permitting of such deposits, in waters or areas frequented by migratory birds.

Intersection with the Species at Risk Act

It is important to note that migratory birds that are at risk, and their residences and critical habitat, also receive protection under the federal Species at Risk Act (SARA). If the hazing activity were to impact a migratory bird species listed under SARA, additional authorization may be required under SARA. Authorizations under SARA carry a service standard of 90 days, except in circumstances described for non-application of time limit under section 3 of the Permits Authorizing an Activity Affecting Listed Wildlife Species Regulations.

Hazing – Non-emergency circumstances

It is proposed that the MBR 2022 be amended to authorize the Minister to issue permits for the non-lethal hazing of migratory birds. This may include the use of aircraft or firearms, in circumstances outside of environmental emergencies. Hazing activities in these circumstances must be solely for the purpose of supporting migratory bird welfare and conservation, by dispersing birds away from areas containing hazards associated with industrial or commercial operations. Such hazards could include toxic industrial waterbodies or aquaculture equipment that pose risks of entanglement.

The use of falcons for hazing presents a significant risk of causing the death of migratory birds. Accordingly, ECCC would not consider falconry-based hazing to constitute a non-lethal hazing method. Activities involving the use of falcons for hazing would therefore not be eligible for authorization under a non-emergency hazing permit.

A permit issued for this purpose would authorize the holder, and any persons named therein, to engage in activities that would otherwise contravene the following prohibitions set out in paragraph 5(1) and subsection 27(1) of the MBR 2022: harassing, chasing, pursuing, worrying, following after or on the trail of, and lying in wait for, as well as disturbing an egg or nest.

Activities authorized under such a permit would remain subject to the other prohibitions in subsection 5(1), including those respecting the capturing, killing, taking, or injuring of migratory birds, as well as the prohibitions against destroying, and taking an egg, and damaging, destroying and removing a nest. They would also remain subject to section 5.1 of the MBCA, which prohibits the deposit of substances harmful to migratory birds, or the permitting of such deposits, in waters or areas frequented by migratory birds.

Eligibility

Permit applicants would be required to provide information describing the proposed activities, including their timing and location, as well as existing mitigation measures and the anticipated impacts of the proposed activities on migratory birds.

To be eligible for a permit, an applicant would need to provide information demonstrating that all of the following conditions are met:

1. the activity is necessary to prevent injury or mortality of the migratory bird species
2. the activity benefits the affected migratory bird species
3. all reasonable alternatives to the activity that would reduce the impact on the migratory bird species have been considered and the best solution has been adopted
4. all feasible measures will be taken to minimize the impact of the activity on migratory bird species, or their nests or eggs

Further guidance on permit applications would be provided by ECCC prior to the coming into force of the amendments. ECCC will also develop policies outlining how the permit criteria will be assessed and will make these policies available online.

A permit would only be issued to a person who is acting in an official capacity as a qualified environmental professional (such as Indigenous Guardians, wildlife or environmental technicians or technologists, biologists, ecologists, or environmental or natural resource consultants) employed internally or externally to industrial or commercial operations.

Permits would only be issued to a person who owns, leases or manages a parcel of land, or who has written authorization from a person who owns, leases or manages a parcel of land; who holds an easement, real servitude, right-of-way or licence of occupation in respect of a parcel of land, or who is the authorized representative of a person who holds an easement, real servitude, right-of-way or licence of occupation in respect of a parcel of land; or who has rights under the laws of a province to use a parcel of land, or who is the authorized representative of a person who has rights under the laws of a province to use a parcel of land.

Duration

Permits would be issued for a term of one to five years, in consideration of the nature of the authorized activities and their potential impact on migratory birds. Longer duration permits (for example five years) would be reserved for routine low-risk activities with predictable impacts.

Terms and conditions

The following general terms and conditions would apply to non-emergency hazing permits:

1. permit holders shall not carry out an authorized activity without implementing the mitigation measures specified in the permit
2. permit holders shall not carry out an authorized activity in contravention of any best management practices or guidelines incorporated by reference into the permit
3. permit holders shall not carry out an authorized activity outside the geographic area specified in the permit
4. permit holders shall not carry out an authorized activity outside the time period or schedule specified in the permit
5. permit holders shall not carry out an authorized activity without providing ECCC with the prior notice required by the permit
6. permit holders shall not carry out an authorized activity without conducting the monitoring activities specified in the permit
7. permit holders shall not fail to report an incident, injury or death of a migratory bird when required to do so by the permit
8. permit holders shall not undertake an authorized activity without first conducting surveys required by the permit
9. permit holders shall not dispose of a migratory bird, nest or egg except in the manner specified in the permit
10. permit holders shall not permit a person who is not designated or authorized under the permit to carry out an activity authorized by the permit
11. permit holders shall not carry out an authorized activity without the presence of the environmental monitor required by the permit
12. permit holders shall not carry out an authorized activity using methods or equipment other than those authorized by the permit
13. permit holders shall not permit an authorized activity to be carried out by a person who does not have the qualifications required by the permit
14. permit holders shall not fail to provide the reports, data or information required by the permit, including to support periodic reviews of permit terms and conditions that allow new scientific information, monitoring results, or changes in the conservation status of affected species and populations to be considered and amendments made
15. permit holders shall not fail to retain the records, data or documents required by the permit for the prescribed period or to provide them to ECCC upon request

When issued, the permit may include additional activity-specific terms and conditions.

Reporting by permit holders, in addition to the development of monitoring strategies or other tools by ECCC, will support assessments of the impact of the new permits on key migratory bird populations and support adaptive management measures to mitigate potential negative cumulative impacts.

Fee

There would be no fee prescribed for the permit, as the activity supports conservation of migratory birds by reducing instances of mortality.

Service standard

ECCC is considering a hybrid approach to the issuance of the proposed permits. Applications assessed as having a lower risk or likelihood for lower impact on migratory birds may be issued through an automated system and would thus be available upon completion of the application. Applications assessed as having greater potential impacts on migratory birds may be subject to a traditional manual review process, with a proposed decision timeline of 35 calendar days. The approach taken will be in alignment with the Treasury Board Secretariat’s Directive on Automated Decision-Making.

Auditing and enforcement

All permits, whether issued through an automated system or a traditional manual review process, would be subject to periodic audits and compliance verification. Non-compliance with the general terms and conditions set out in the MBR 2022 may be subject to the applicable penalties under the MBCA and MBR 2022. Non-compliance with any additional activity-specific terms and conditions could result in the suspension or cancellation of the permit.

Intersection with the Species at Risk Act

Where a proposed hazing activity may affect a migratory bird species listed as endangered, threatened or extirpated on Schedule I of SARA, the hazing permit could have the same effect as a permit under subsection 73(1) of SARA, if certain conditions are met.

In such cases, the following would need to be met:

1. prior to issuing the permit under the MBR 2022, the Minister of the Environment would have to be of the opinion that the requirements set out in subsections 73(2) to (6.1) of SARA were satisfied
2. following issuance of the permit, the Minister of the Environment would have to comply with the requirements of subsection 73(7) of SARA

If a permit for hazing does not have the same effect as a permit under subsection 73(1) of SARA, authorization under SARA would be required. Authorizations under SARA carry a service standard of 90 days, except in circumstances described for non-application of time limit under section 3 of the Permits Authorizing an Activity Affecting Listed Wildlife Species Regulations.

Activities related to public safety, health or national security

Context

Situations that pose risks to public safety, health, or national security may require activities to prevent, reduce or eliminate threats to the lives and well-being of Canadians. The urgency of such activities varies depending on the foreseeability and immediacy of the threats. Some circumstances may require immediate action without delay (for example, wildfire suppression, restoration of power, or contaminant spills cleanup), while others may involve planned or preventative measures (for example, vegetation management for wildfire prevention, routine maintenance of utility infrastructure to prevent failure, or water level management for flood prevention).

In both emergency and non-emergency situations, these activities may occur in areas where migratory birds, or their nests or eggs (collectively, ‘migratory birds’) are present and may result in unintentional contravention of certain prohibitions under the MBR 2022.

Subsections 5(1) and 27(1) of the MBR 2022 prohibit, among other things, the killing, injuring, or harassing of a migratory bird. Furthermore, subsection 5(1) prohibits the destruction or disturbance of an egg; and the damage, destruction, removal, or disturbance of a nest that contains a live bird or a viable egg, or that was built by a species listed in Schedule 1, during the applicable period set out in the MBR 2022.

Issue

Public safety, health, and national security activities are essential but may result in non-compliance with subsections 5(1) and 27(1) of the MBR 2022.

In certain circumstances, a Damage or Danger Permit may be issued under sections 65, 70, and 71 of the MBR 2022, to authorize activities such as hazing (or scaring) or killing migratory birds, destroying the eggs or nests of migratory birds, or relocating migratory birds or their nests, respectively, where the migratory birds, or their nests or eggs, are causing or are likely to cause danger to human health or public safety. Furthermore, a person may, without a permit, use equipment other than an aircraft or firearms to scare migratory birds that are causing or are likely to cause danger to human health or public safety.

The MBR 2022 do not currently provide an explicit mechanism to authorize public safety, health, or national security activities that may contravene subsections 5(1) or 27(1), in situations where the threat is caused by a source other than migratory birds, or their nests or eggs, such as natural disasters or utility service disruptions. This gap creates regulatory uncertainty and potential exposure to enforcement action for people undertaking such activities.

Purpose

ECCC is seeking comments on proposed amendments to the MBR 2022 to authorize activities related to public safety, health, or national security. Specifically, ECCC is seeking feedback on the following:

• a proposed exemption to the prohibitions in subsection 5(1) and 27(1) for activities undertaken in emergency situations
• a proposed permit authorizing activities in non-emergency situations that would otherwise contravene subsection 5(1) or 27(1)

Proposal

Public safety, health, or national security activities - emergency circumstances

It is proposed that the MBR 2022 be amended to establish an exemption providing that the prohibitions set out in subsections 5(1) and 27(1) do not apply to a person engaging in activities related to public safety, health, or national security, where all of the following are met:

1. the activity is necessary to prevent, reduce, or eliminate a direct and measurable threat of an unforeseeable nature that poses an immediate or imminent risk to public safety, health, or national security
2. the circumstances require urgent action to prevent, reduce or eliminate that threat

The exemption would apply only where the person undertaking the activity acts in a manner that respects the purposes of the MBCA and the MBR 2022 to the greatest extent possible.

The exemption would apply only so long as the above-noted conditions are met concurrently. If any condition ceases to be met while conducting the activity, the exemption will no longer apply.

No permit application or prior approval from ECCC would be required, provided that the conditions are satisfied throughout the entire duration of the activities. There would be no further restrictions on who is able to undertake the activities conducted under the proposed exemption. Furthermore, other conditions, such as reporting to ECCC, would not be required, as it may result in administrative burden on responders that impedes response to critical public safety, health, or national security situations.

The proposed exemption would enable people engaged in emergency response activities to act without delay, while ensuring that the welfare and conservation of migratory birds are considered to the greatest extent feasible.

Any person relying on this exemption should ensure they are able to demonstrate that all conditions were met for the duration of the activity. In the event of a compliance verification, if a person is unable to demonstrate that the conditions were met throughout, the activity may be considered a contravention of the MBR 2022, and enforcement action may be taken.

The proposed exemption would not include the prohibitions set out in section 5.1 of the MBCA respecting the deposit of substances harmful to migratory birds, or the permitting of such deposits, in waters or areas frequented by migratory birds. These prohibitions would continue to apply.

Intersection with the Species at Risk Act

It is also important to note that migratory birds that are at risk, their residences and critical habitat, also receive protection under the federal Species at Risk Act (SARA). If the activity were to impact a migratory bird species listed under SARA, additional authorization may be required under SARA. Authorizations issued under SARA carry a service standard of 90 days, except in circumstances described for non-application of time limit under section 3 of the Permits Authorizing an Activity Affecting Listed Wildlife Species Regulations.

Public safety, health, or national security activities – non-emergency circumstances

It is proposed that the MBR 2022 be amended to authorize the Minister to issue permits for activities relating to public safety, health, or national security in non-emergency circumstances.

A permit issued for this purpose would authorize the holder, and any persons named therein, to engage in activities that would otherwise contravene one or more of the prohibitions set out in subsections 5(1) or 27(1) of the MBR 2022. This would include to kill, injure or harass a migratory bird; destroy, or disturb an egg; or to damage, destroy, remove or disturb a nest containing a live migratory bird or a viable egg or one built by a migratory bird species listed in Schedule 1, during the applicable period set out in the MBR 2022.

Activities authorized under such a permit would remain subject to the prohibitions under section 5.1 of the MBCA respecting the deposit of substances harmful to migratory birds, or the permitting of such deposits, in waters or areas frequented by migratory birds.

Eligibility

Permit applicants would be required to provide information describing the proposed activities, including their timing and location, as well as the anticipated impacts on migratory birds.

To be eligible for a permit, an applicant would need to provide information demonstrating that all of the following conditions are met:

1. the activity is necessary to prevent, reduce, or eliminate a direct and measurable threat that poses risks to public safety, health, or national security
2. affecting the migratory bird species is incidental to the carrying out of the activity
3. all reasonable alternatives to the activity that would reduce the impacts on migratory bird species have been considered and the best solution has been adopted
4. all feasible measures will be taken to minimize the impact of the activity on migratory bird species, or their nests or eggs

Permits would only be issued to a person who owns, leases or manages a parcel of land, or who has written authorization from a person who owns, leases or manages a parcel of land; who holds an easement, real servitude, right-of-way or licence of occupation in respect of a parcel of land, or who is the authorized representative of a person who holds an easement, real servitude, right-of-way or licence of occupation in respect of a parcel of land; or who has rights under the laws of a province to use a parcel of land, or who is the authorized representative of a person who has rights under the laws of a province to use a parcel of land.

Further guidance on permit applications would be provided by ECCC prior to the coming into force of the amendments. ECCC will also develop policies outlining how the permit criteria will be assessed and will make these policies available online.

Duration

Permits would be issued for a term of one to five years, in consideration of the nature of the authorized activities and their potential impact on migratory birds. Longer duration permits (for example, five years) would be reserved for routine low-risk activities with predictable impacts.

Terms and conditions

The following general terms and conditions would apply to non-emergency public safety, health, and national security permits:

1. permit holders shall not carry out an authorized activity without implementing the mitigation measures specified in the permit
2. permit holders shall not carry out an authorized activity in contravention of any best management practices or guidelines incorporated by reference into the permit
3. permit holders shall not carry out an authorized activity outside the geographic area specified in the permit
4. permit holders shall not carry out an authorized activity outside the time period or schedule specified in the permit
5. permit holders shall not carry out an authorized activity without providing ECCC with the prior notice required by the permit
6. permit holders shall not carry out an authorized activity without conducting the monitoring activities specified in the permit
7. permit holders shall not fail to report an incident, injury or death of a migratory bird when required to do so by the permit
8. permit holders shall not undertake an authorized activity without first conducting surveys required by the permit
9. permit holders shall not dispose of a migratory bird, nest or egg except in the manner specified in the permit
10. permit holders shall not permit a person who is not designated or authorized under the permit to carry out an activity authorized by the permit
11. permit holders shall not carry out an authorized activity without the presence of the environmental monitor required by the permit
12. permit holders shall not carry out an authorized activity using methods or equipment other than those authorized by the permit
13. permit holders shall not permit an authorized activity to be carried out by a person who does not have the qualifications required by the permit
14. permit holders shall not fail to provide the reports, data or information required by the permit, including to support periodic reviews of permit terms and conditions that allow new scientific information, monitoring results, or changes in the conservation status of affected species and populations to be considered and amendments made
15. permit holders shall not fail to retain the records, data or documents required by the permit for the prescribed period or to provide them to ECCC upon request

When issued, the permit may include additional activity-specific terms and conditions.

Reporting by permit holders, in addition to the development of monitoring strategies or other tools by ECCC, will support assessments of the impact of the new permits on key migratory bird populations and support adaptive management measures to mitigate potential negative cumulative impacts.

Fee

It is proposed that this permit be subject to a fee, in certain circumstances. A portion of the fee would recover, in part, the administrative costs of administering the permits, including permit assessment and enforcement. The remaining portion would fund a conservation credit system, with the amount calculated based on the residual impact or risk of harm to migratory birds after all mitigation measures have been applied.

Conservation credits collected would be pooled in a single conservation bank and used to offset the effects of permitted activities and support migratory bird conservation, including habitat protection and restoration, threat identification, development of mitigation measures, and conservation promotion.

ECCC will provide further details on the proposed fee at a later date, which will be subject to subsequent consultation.

Service standard

ECCC is considering a hybrid approach to the issuance of the proposed permits. Applications assessed as having minimal impact on migratory birds may be issued through an automated system and would be available upon completion of the application. Applications assessed as having greater potential impacts on migratory birds may be subject to a traditional manual review process, with a proposed decision timeline of 35 calendar days. The approach taken will be in alignment with the Treasury Board Secretariat’s Directive on Automated Decision-Making.

Auditing and enforcement

All permits, whether issued through an automated system or a traditional manual review process, would be subject to periodic audits and compliance verification. Non-compliance with the general permit terms and conditions set out in the MBR 2022 may be subject to the applicable penalties under the MBCA and MBR 2022. Non-compliance with any additional activity-specific terms and conditions could result in the suspension or cancellation of the permit.

Intersection with the Species at Risk Act

Where a proposed public safety, health, or national security activity impacts a migratory bird species listed under SARA, additional authorization may be required under SARA. In cases where a public safety, health, or national security activity allowed under the proposed permit affects a migratory bird that is also listed as endangered, threatened, or extirpated on Schedule 1 of SARA, a similar provision under SARA may exempt the activity from certain prohibitions under SARA, if the conditions outlined in subparagraph 83(1)(a) of SARA are satisfied. If the conditions outlined in subparagraph 83(1)(a) are not satisfied, then authorization may be required under SARA. A permit issued for public safety, health, or national security activities could have the same effect as a permit under subsection 73(1) of SARA, if certain conditions are met.

In such cases, the following would need to be met:

1. prior to issuing the permit under the MBR 2022, the Minister of the Environment would have to be of the opinion that the requirements set out in subsections 73(2) to (6.1) of SARA were satisfied
2. following issuance of the permit, the Minister of the Environment would have to comply with the requirements of subsection 73(7) of SARA

If a permit for public safety, health, or national security activities does not have the same effect as a permit under subsection 73(1) of SARA, authorization under SARA and consultation with ECCC may be required. Authorizations issued under SARA carry a service standard of 90 days, except in circumstances described for non-application of time limit under section 3 of the Permits Authorizing an Activity Affecting Listed Wildlife Species Regulations.

Incidental take permits for National Interest Projects listed under the Building Canada Act

Context

Subsections 5(1) and 27(1) of the MBR 2022 prohibit, among other things, the killing, injuring, or harassing of a migratory bird. Furthermore, subsection 5(1) prohibits the destruction or disturbance of an egg; and the damage, destruction, removal, or disturbance of a nest that contains a live bird or a viable egg, or that was built by a species listed in Schedule 1 to the MBR 2022, during the applicable period set out in the MBR 2022.

The Building Canada Act (BCA), which came into force in 2025, streamlines federal approvals for projects listed in Schedule 1 to the BCA, referred to as National Interest Projects, by providing conditional upfront approval of certain federal authorizations, listed in Schedule 2, at the outset of the project approval process. Project approvals are subject to a subsequent review and development of binding project-specific conditions (referred to as the “Conditions Document”) which replace federal permits and other authorizations that would otherwise be required under the statutes listed in Schedule 2. The purpose of the BCA is to enhance Canada’s prosperity, national security, economic security, national defence and national autonomy by ensuring that projects that are in the national interest are advanced through an accelerated process that enhances regulatory certainty and investor confidence, while protecting the environment and respecting the rights of Indigenous peoples.

The MBCA and MBR 2022 are listed in Schedule 2 of the BCA. Accordingly, any required authorizations under the MBR 2022, such as permits, could be provided through a conditions document under the BCA framework in favour of permitting a National Interest Project to be carried out in whole or in part.

Issue

Under the MBCA and the MBR 2022, migratory birds are always protected. Migratory bird nests are protected when they contain a live bird or viable egg, while the nests of 18 species listed under Schedule I to the MBR 2022 are protected year-round unless they are unoccupied for the time periods specified in Schedule I to the MBR 2022.

Neither the MBCA nor the MBR 2022 currently provide a mechanism to authorize the unintentional but foreseeable killing or harm of migratory birds, or the damage to or destruction of their nests or eggs that can occur while carrying out other legal activities such as cutting down trees or other vegetation, or flooding land (what ECCC refers to as "incidental take"). Consequently, many projects and activities may be at risk of contravening the MBCA or the MBR 2022 where incidental take occurs, given that there is no such relevant authorization mechanism.

Purpose

The main goal of developing an incidental take permitting regime is to conserve migratory birds and their populations, while providing regulatory certainty for some activities. Filling this regulatory gap has been a longstanding concern for stakeholders. ECCC is planning to develop a regime for incidental take permits generally. As a first step, it is proposing permits for projects that are listed as National Interest Projects under the BCA.

ECCC is seeking comments on proposed amendments to the MBR 2022 to create an authorization mechanism for activities related to  National Interest Projects.

Proposal

It is proposed that the MBR 2022 be amended to create an enabling authorization mechanism that would be available for National Interest Projects that have been listed under Schedule I of the BCA (hereinafter an ‘authorization’).

This authorization mechanism will be created by adding provisions under the MBR 2022 that provide the authority to issue a permit for the incidental take of migratory birds. The authorization would be contingent on meeting the following criterion:

1. all reasonable measures will be taken to avoid and minimize adverse impacts on migratory birds, and their nests and eggs

An authorization would allow proponents to undertake activities that might otherwise contravene one or more of the prohibitions set out in subsections 5(1) and 27(1) of the MBR 2022, including the killing, injuring or harassment of migratory birds; the destruction of, or disturbance to, eggs; and the damage, destruction, removal or disturbance of nests containing a live bird or viable egg, or nests built by a species listed in Schedule 1 to the MBR 2022, during the applicable period specified in the MBR 2022.

Eligibility

Activities conducted under authorizations would only be permitted to be conducted by a person who owns, leases or manages a parcel of land, or who has written authorization from a person who owns, leases or manages a parcel of land; who holds an easement, real servitude, right-of-way or licence of occupation in respect of a parcel of land, or who is the authorized representative of a person who holds an easement, real servitude, right-of-way or licence of occupation in respect of a parcel of land; or who has rights under the laws of a province to use a parcel of land, or who is the authorized representative of a person who has rights under the laws of a province to use a parcel of land.

Duration

The duration of activities conducted under an authorization would be determined in the project-specific authorization. This period may span the entire project or a specific project phase, as appropriate.

Terms and conditions

It is proposed that the following general terms and conditions could be incorporated into the authorization:

1. persons shall not carry out an authorized activity without implementing the mitigation measures specified in the Conditions Document
2. persons shall not carry out an authorized activity in contravention of any best management practices or guidelines incorporated by reference into the Conditions Document
3. persons shall not carry out an authorized activity outside the project area specified in the Conditions Document
4. persons shall not carry out an authorized activity outside the time period or schedule specified in the Conditions Document
5. persons shall not carry out an authorized activity without providing ECCC with the prior notice required by the Conditions Document
6. persons shall not carry out an authorized activity without conducting the monitoring activities specified in the Conditions Document
7. persons shall not fail to report an incident, injury or death of a migratory bird when required to do so by the Conditions Document
8. persons shall not undertake an authorized activity without first conducting the surveys required by the Conditions Document
9. persons shall not dispose of a migratory bird, nest or egg except in the manner specified in the Conditions Document
10. persons shall not permit a person who is not designated or authorized under the permit to carry out an activity authorized by the Conditions Document
11. persons shall not carry out an authorized activity without the presence of the environmental monitor required by the Conditions Document
12. persons shall not carry out an authorized activity using methods or equipment other than those required by the Conditions Document
13. persons shall not permit an authorized activity to be carried out by a person who does not have the qualifications required by the Conditions Document
14. persons shall not fail to provide the reports, data or information required by the Conditions Document, including to support periodic reviews of terms and conditions that allow new scientific information, monitoring results, or changes in the conservation status of affected species and populations to be considered and amendments made
15. persons shall not fail to retain the records, data or documents required by the Conditions Document for the prescribed period or to provide them to ECCC upon request

Additional activity-specific terms and conditions may also be added to the Conditions Document.

Fee

It is proposed that the authorization be subject to a fee, recoverable under the MBR 2022. A portion of the fee would recover, in part, the administrative costs of administering the authorization, including assessment to support development of project conditions and enforcement. The remaining portion would fund a conservation credit system, with the amount calculated based on the residual impact or risk of harm to migratory birds after all mitigation measures have been applied.

Conservation credits collected would be pooled in a single conservation bank and used to offset the effects of permitted activities and support migratory bird conservation, including habitat protection and restoration, threat identification, development of mitigation measures, and conservation promotion.

Auditing and enforcement

Activities conducted under these authorizations would be subject to periodic audits and compliance verification. Non-compliance with the terms and conditions set out in the MBR 2022 may be subject to the applicable penalties under the MBCA and MBR 2022. Non-compliance with any additional activity-specific terms and conditions could result in the suspension or cancellation of the authorization.

Applicability of damage or danger permits where nests are causing damage or danger

Context

Subsection 5(1) of the MBR 2022 prohibits, among other things, the destruction or disturbance of an egg; and the damage, destruction, removal, or disturbance of a nest that contains a live bird or a viable egg, or that was built by a species listed in Schedule 1, during the applicable period set out in the MBR 2022.

Subsections 70(1) and (2) of the MBR 2022 allow the Minister of the Environment to issue Damage or Danger permits authorizing the removal and destruction of migratory bird nests and eggs, in certain circumstances. This includes situations where the destruction of the eggs or nests is necessary to reduce or prevent the danger that migratory birds are causing or are likely to cause to human health or to public safety or the damage they are causing or are likely to cause to agricultural, environmental or other interests.

Similarly, subsections 71(1) and (2) allow the Minister of the Environment to issue Damage or Danger permits authorizing the relocation of migratory birds, their nests and eggs in certain circumstances. This includes situations where the relocation of birds, eggs and nests is necessary to prevent or reduce the danger that migratory birds are causing or are likely to cause to human health or to public safety or the damage that migratory birds are causing or are likely to cause to the use of the land or to agricultural interests.

Issue

Subsections 70(2) and 71(2) of the MBR 2022 specify that these permits may be issued where damage or danger is being or is likely to be caused by migratory birds. In some situations, however, the damage or danger is caused, or is likely to be caused, by migratory bird nests rather than by the birds themselves. Such situations may include nest cavities constructed inside utility poles that result in structural damage, nests constructed on top or inside of electrical transformers that result in increased risks of power disruptions or fires, or nests constructed on lighthouse platforms that interfere with proper operation and impact navigation by vessels. This may create uncertainty for permit applicants

Purpose

ECCC is seeking comments on proposed amendments to the MBR 2022 to clarify that situations in which migratory bird nests are causing or are likely to cause damage or danger may be eligible for Damage or Danger permits issued under sections 70 and 71 of the MBR 2022.

Proposal

ECCC is considering amendments to the MBR 2022 to clarify that a permit may be issued for the removal, destruction, or relocation of migratory bird nests that are causing or are likely to cause damage or danger.

The proposed amendments include the addition of text (see bolded text) to the following existing subsection and subparagraphs:

70(2) The Minister may issue an egg or nest destruction permit only if the Minister has reason to believe that the destruction of the eggs or nests is necessary to reduce or prevent the danger that migratory birds or their nests are causing or are likely to cause to human health or to public safety or the damage they are causing or are likely to cause to agricultural, environmental or other interests.

71(2)(a)(i) the danger that migratory birds or their nests are causing or are likely to cause to human health or to public safety in one or more areas, or

71(2)(a)(ii) the damage that migratory birds or their nests are causing or are likely to cause to the use of the land or to agricultural interests

Next steps

ECCC will carefully consider all comments received. Your feedback will help inform the refinement of the proposals and support the development of balanced and effective regulations.

Contact

Interested Canadians are invited to provide written comments on these proposals during a 30-day consultation period, which will end on December 6, 2026.

Please send your comments to ConsultationssurleROM-MBRConsultations@ec.gc.ca.