Factual Record Ontario Logging Submission (SEM-02-001) & Ontario Logging II Submission (SEM-04-006)
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N • A • E • L • P North American Environmental Law and Policy 21 21Commission for Environmental Cooperation North American Environmental Law and Policy Law American Environmental North Factual Record Ontario Logging Submissions (SEM-02-001) and (SEM-04-006) North American Environmental Law and Policy Prepared in Accordance with CEC Secretariat Article 15 of the North American 393, rue St-Jacques Ouest Bureau 200 Agreement on Environmental Montréal (Québec) Cooperation Canada H2Y 1N9 [email protected] www.cec.org Factual Record Ontario Logging Submission (SEM-02-001) & Ontario Logging II Submission (SEM-04-006) Prepared in Accordance with Article 15 of the North American Agreement on Environmental Cooperation June 2006 For more information about this or other publications from the CEC, contact: Commission for Environmental Cooperation of North America 393, rue St-Jacques Ouest, bureau 200 Montréal (Québec) Canada H2Y 1N9 Tel.: (514) 350-4300 Fax: (514) 350-4314 E-mail: [email protected] http://www.cec.org ISBN: 2-89451-953-2 © Commission for Environmental Cooperation of North America, 2007 ALL RIGHTS RESERVED. Legal Deposit - Bibliothèque et Archives nationales du Québec, 2007 Legal Deposit - Bibliothèque et Archives Canada, 2007 Disponible en français – ISBN: 2-89451-955-9 Disponible en español – ISBN: 2-89451-954-0 This publication was prepared by the Secretariat of the Commission for Environmental Cooperation of North America (CEC). The views con- tained herein do not necessarily reflect the views of the governments of Canada, Mexico, or the United States of America. PROFILE In North America, we share a rich environmental heritage that includes air, oceans and rivers, mountains and forests. Together, these elements form the basis of a complex network of ecosystems that sustains our livelihoods and well-being. If these ecosystems are to continue to be a source of life and prosperity, they must be protected. Doing so is a responsibility shared by Canada, Mexico, and the United States. The Commission for Environmental Cooperation of North Amer- ica (CEC) is an international organization created by Canada, Mexico, and the United States under the North American Agreement on Envi- ronmental Cooperation (NAAEC) to address regional environmental concerns, help prevent potential trade and environmental conflicts, and promote the effective enforcement of environmental law. The Agree- ment complements the environmental provisions of the North Ameri- can Free Trade Agreement (NAFTA). The CEC accomplishes its work through the combined efforts of its three principal components: the Council, the Secretariat and the Joint Public Advisory Committee (JPAC). The Council is the governing body of the CEC and is composed of the highest-level environmental authori- ties from each of the three countries. The Secretariat implements the annual work program and provides administrative, technical and oper- ational support to the Council. The Joint Public Advisory Committee is composed of 15 citizens, five from each of the three countries, and advises the Council on any matter within the scope of the Agreement. MISSION The CEC facilitates cooperation and public participation to foster conservation, protection and enhancement of the North American envi- ronment for the benefit of present and future generations, in the context of increasing economic, trade and social links among Canada, Mexico and the United States. VII VIII FACTUAL RECORD: ONTARIO LOGGING SUBMISSIONS NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY SERIES Produced by the CEC, the North American Environmental Law and Policy series presents some of the most salient recent trends and developments in environmental law and policy in Canada, Mexico and the United States, including official documents related to the novel citi- zen submission procedure empowering individuals from the NAFTA countries to allege that a Party to the agreement is failing to effectively enforce its environmental laws. Factual Record Ontario Logging Submission (SEM-02-001) & Ontario Logging II Submission (SEM-04-006) Prepared in Accordance with Article 15 of the North American Agreement on Environmental Cooperation June 2006 Table of Contents 1. Executive summary . 7 2. Summary of the submission. 10 3. Summary of Canada’s Response . 16 4. Scope of the factual record . 23 5. Summary of other relevant factual information and facts presented by the Secretariat with respect to matters raised in Council Resolutions 04-03 and 05-04 . 25 5.1 Information gathering process . 25 5.2 Meaning and scope of s. 6(a) of the MBR . 29 5.2.1 Context for the prohibition contained in s. 6(a) of the MBR . 29 5.2.2 Origins of s. 6(a) of the MBR . 30 5.2.2.1 The Migratory Birds Convention, 1916 . 30 5.2.2.2 The Migratory Birds Convention Act . 33 5.2.2.3 The Parksville Protocol . 36 5.2.3 S. 6(a) of the MBR and logging . 41 5.2.3.1 Jurisdiction to regulate logging impacts on migratory birds . 41 5.2.3.2 Responses to violations of s. 6(a) of the MBR . 43 5.2.3.3 Defenses to charges under s. 6(a) of the MBR . 44 3 4 FACTUAL RECORD: ONTARIO LOGGING SUBMISSIONS 5.3 Forest management context in Ontario . 46 5.3.1 Providing direction in policy . 53 5.3.2 Setting objectives through planning . 56 5.3.2.1 Planning for wildlife values within the forest management system . 62 5.3.2.2 Planning for wildlife values outside the forest management system . 66 5.3.3 Shaping the forest through management . 70 5.3.3.1 Managing for one or several resources. 71 5.3.3.2 Defining desired conditions for wildlife . 72 5.3.3.2.1 Wildlife as an indicator of sustainable forest management . 76 5.3.3.2.2 Tracking wildlife habitat . 79 5.3.3.2.3 Migratory bird habitat under forest management plans identified by Submitters . 83 5.3.4 Dealing with uncertainty . 86 5.3.4.1 Adaptive management. 86 5.3.4.2 Emulating natural disturbance patterns . 95 5.3.4.2.1 The acceptable bounds of natural variation. 99 5.3.5 Population objectives for wildlife . 101 5.4 Whether nests of migratory birds were protected during logging identified by Submitters . 110 5.4.1 Requirements of Ontario’s forest management planning system . 110 5.4.2 Forest management plans identified by Submitters . 114 TABLE OF CONTENTS 5 5.5 Canada’s actions to enforce and promote compliance with s. 6(a) of the MBR in connection with logging identified by the Submitters . 124 5.5.1 Enforcement . 124 5.5.1.1 Evidence required to trigger action . 126 5.5.1.2 Nature of the violation . 129 5.5.2 Compliance promotion. 135 5.5.2.1 Promoting forest stewardship . 136 5.5.2.2 Monitoring migratory bird populations. 136 5.5.2.3 Deciding where to focus conservation efforts. 139 5.5.2.4 Publishing guidance materials on incorporating migratory bird habitat considerations in environmental impact statements and forest management plans . 147 5.5.2.5 Providing expertise through environ- mental assessment . 152 5.5.2.6 Regulating incidental take of migratory bird nests. 155 5.5.2.7 Taking part in Ontario’s forest management process . 157 6. Closing Note. 157 Figures Figure 1 The Area of the Undertaking (AOU) . 48 Figure 2 FMUs in the AOU (April, 2001) . 51 Figure 3 A streamside AOC. 53 Figure 4 Protected areas within and around the AOU . 60 6 FACTUAL RECORD: ONTARIO LOGGING SUBMISSIONS Figure 5 Map of the forest regions and ecoregion boundaries in Ontario . 68 Figure 6 Yield curve showing projected reductions in sparrow habitat over the course of 160 years under various forest management alternatives relative to a natural benchmark scenario . 100 Tables Table 1 Projected habitat change under 38 Ontario FMPs for 10 birds covered by the MBCA. 84 Appendices Appendix 1 Council Resolution 04-03, dated 12 March 2004 and Council Resolution 05-04, dated 1 April 2005 . 161 Appendix 2 Overall plan to develop a factual record, dated 24 March 2004 and amended overall plan to develop a factual record, dated 4 April 2005 . 167 Appendix 3 Request for information, dated 30 June 2004 . 179 Appendix 4 Request for information and request for additional information, dated 5 May 2005. 191 Appendix 5 Provisions for land use plans on crown lands in Ontario . 199 Appendix 6 FMPs excluded from the Table FMP-5 analysis . 205 Appendix 7 Fiona K. A. Schmiegelow, “Forest Management Planning and Migratory Birds in Ontario” (May 2005) [unpublished] – References . 209 Appendix 8 Acronyms and defined terms . 213 Attachments Attachment 1 Council Resolution 07-02, dated 31 January 2007 . 219 Attachment 2 Comments of Canada . 223 Attachment 3 Comments of United States . 261 1. Executive summary Articles 14 and 15 of the North American Agreement on Environmen- tal Cooperation (“NAAEC”) establish a process allowing residents of Canada, Mexico and the United States to file submissions alleging that a Party to the NAAEC (Canada, Mexico or the United States) is failing to effectively enforce its environmental law. Under the NAAEC, this pro- cess can lead to the publication of a factual record. The Secretariat (“Secretariat”) of the North American Commission for Environmental Cooperation (“CEC”) administers the NAAEC citizen submissions pro- cess. On 6 February 2002, Canadian Nature Federation, Canadian Parks and Wilderness Society, Earthroots, Federation of Ontario Naturalists, Great Lakes United, Sierra Club (United States), Sierra Club of Canada, and Wildlands League (together, the “Submitters”), represented by Sierra Legal Defence Fund, filed with the Secretariat a submission alleging that Canada is failing to effectively enforce federal migratory bird conservation legislation in connection with logging operations in Ontario. In March 2004 and April 2005, respectively, pursuant to Coun- cil Resolutions 04-03 and 05-04, the CEC Council instructed the Secretar- iat to prepare a factual record with respect to the alleged failure by Canada to effectively enforce s.