PROTOCOL AMENDING THE 1916 CONVENTION FOR THE PROTECTION OF MIGRATORY BIRDSSenate Consideration of Treaty Document 104-28
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[Senate Treaty Document 104-28] [From the U.S. Government Printing Office] 104th Congress Treaty Doc. SENATE 2d Session 104-28 _______________________________________________________________________ PROTOCOL AMENDING THE 1916 CONVENTION FOR THE PROTECTION OF MIGRATORY BIRDS __________ MESSAGE FROM THE PRESIDENT OF THE UNITED STATES TRANSMITTING A PROTOCOL BETWEEN THE UNITED STATES AND CANADA AMENDING THE 1916 CONVENTION FOR THE PROTECTION OF MIGRATORY BIRDS IN CANADA AND THE UNITED STATES, WITH RELATED EXCHANGE OF NOTES, SIGNED AT WASHINGTON ON DECEMBER 14, 1995 August 2, 1996.--Protocol was read the first time and, together with the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate LETTER OF TRANSMITTAL ---------- The White House, August 2, 1996. To the Senate of the United States: With a view to receiving the advice and consent of the Senate to ratification, I transmit herewith the Protocol between the United States and Canada Amending the 1916 Convention for the Protection of Migratory Birds in Canada and the United States, with a related exchange of notes, signed at Washington on December 14, 1995. The Protocol, which is discussed in more detail in the accompanying report of the Secretary of State, represents a considerable achievement for the United States in conserving migratory birds and balancing the interests of conservationists, sports hunters, and indigenous people. If ratified and properly implemented, the Protocol should further enhance the management and protection of this important resource for the benefit of all users. The Protocol would replace a protocol with a similar purpose, which was signed January 30, 1979, (Executive W, 96th Cong., 2nd Sess. (1980)), and which I, therefore, desire to withdraw from the Senate. I recommend that the Senate give early and favorable consideration to the Protocol, with exchange of notes, and give its advice and consent to ratification. William J. Clinton. LETTER OF SUBMITTAL ---------- Department of State, Washington, May 20, 1996. The President, The White House. I have the honor to submit to you, with the view to its transmission to the Senate for advice and consent to ratification, a Protocol between the United States and Canada amending the 1916 Convention for the Protection of Migratory Birds in Canada and the United States, with a related exchange of notes, signed at Washington on December 14, 1995. The 1916 Convention for the Protection of Migratory Birds in Canada and the United States (``the Convention'') presently does not permit hunting of the migratory species covered under the Convention from March 10 to September 1 except in extremely limited circumstances. Despite this prohibition, aboriginal people of Canada and indigenous people in Alaska have continued their traditional hunt of these birds in the spring and summer for subsistence and other related purposes. In the United States, the prohibition against this traditional hunt has not been actively enforced. In Canada, as a result of recent constitutional guarantees and judicial decisions, the Canadian Federal Government has recognized a right in aboriginal people to this traditional hunt, and the prohibition has not been enforced for this reason. The goals of the Protocol are to bring the Convention into conformity with actual practice and Canadian law, and to permit the effective regulation for conservation purposes of the traditional hunt. Timely ratification is of the essence to secure U.S.-Canada conservation efforts. This Protocol would replace a protocol with a similar purpose, which was signed in 1979, transmitted to the Senate with a message from the President dated November 24, 1980, and which is now pending in the Committee on foreign Relations. (Executive W, 96th Cong., 2nd Sess. (1980).) A detailed analysis of the Protocol follows. the protocol The Preamble to the Protocol states as its goals allowing a traditional subsistence hunt and improving conservation of migratory birds by allowing for the effective regulation of this hunt. In addition, the Preamble notes that, by sanctioning a traditional subsistence hunt, the Parties do not intend to cause significant increases in the take of species of migratory birds relative to their continental population sizes, compared to the take that is occurring at present. Any such increase in take as a result of the types of hunting provided for in the Protocol would thus be inconsistent with the Convention. Article I of the Protocol amends Article I of the Convention to modernize the taxonomy and names of the birds subject to the Convention. Species were not added to our subtracted from the list, however; regulation of birds not included in the original Convention is now within the purview of the Canadian provinces, and any such change to the list would have required time-consuming negotiations between the Canadian federal government and all of the provinces and territories, with uncertain results. Article II of the Protocol substantially rewrites Article II of the Convention to include new subsistence hunt provisions. An introductory paragraph outlines the conservation principles that apply to all management of migratory birds under the Convention. In addition, this paragraph lists a variety of means to achieve these conservation principles. The United States and Canada exchanged diplomatic notes at the time of the Protocol signing, in which both governments confirmed that the conservation principles set forth in Article II apply to all activities under Article II. The United States considered this exchange of notes desirable in light of the language of Article II (4)(a), which contains the phrase ``subject to existing aboriginal and treaty rights of the Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982, and the regulatory and conservation regimes defined in the relevant treaties, land claims agreements, self-government agreements, and co-management agreements with Aboriginal peoples of Canada. . . .'' This phrase was sought by Canada in order to recognize Canadian court decisions that affirm certain rights of aboriginal people to exploit natural resources. However, as the exchange of notes makes clear, this phrase does not override the conservation principles set forth earlier in Article II. Paragraphs 1, 2, and 3 of Article II of the Protocol continue the basic closed and open seasons for hunting contained in the original Convention, with a closed season between March 10 and September 1. The open season remains limited to three and one half months, which the Parties agreed would be interpreted to mean 107 days. The closed season for migratory insectivorous and nongame birds is maintained. Exceptions to these closed seasons may be made for scientific, educational or other specific purposes consistent with the conservation principles of the Convention. This language is found in similar conventions between the United States and Japan (TIAS 7990; 25 UST 3329) (hereinafter ``the Japan Convention'') and the successor States to the former U.S.S.R. (TIAS 9073; 29 UST 4647) (hereinafter the ``U.S.S.R. Convention''), respectively. The traditional subsistence hunt is provided for as an exception to the closed season and is dealt with in paragraph 4, with different provisions for the hunt in Canada and the United States reflecting different domestic legal regimes and practices. Paragraph 4 (a) recognizes that in Canada, aboriginal people have a right to harvest birds under the Canadian Constitution, treaties between aboriginal people and the Government, and other provisions of Canadian law, and permits Canada to allow such a harvest as a matter of international law. Paragraph 4(b) authorizes the United States to allow such a harvest only in Alaska. Under the terms of paragraph 4(a), Canada may allow its aboriginal people to harvest birds, their eggs, and down in any season. In addition, down and non-edible by-products of the traditional harvest may be sold, but only within or between aboriginal communities. Finally, Canada can allow two other small groups of people (estimated to be only a couple of hundred hunters) to harvest birds and eggs outside of the normal open season. The first are non-aboriginal residents of the aboriginal communities who are permitted to hunt by those communities. The second are qualified permanent residents of Yukon and the Northwest Territories who are allowed an earlier fall season to hunt. Paragraph 4(b) concerns subsistence hunting in Alaska by ``indigenous inhabitants of Alaska'' (understood for the purposes of the Protocol as meaning Alaska Natives and permanent resident non-natives with legitimate subsistence hunting needs living in designated subsistence hunting areas). This paragraph authorizes the United States to establish a subsistence harvest of birds, their eggs and down in any season. Sale of these items is not permitted, except for limited sale of non-edible by-products of birds taken for nutritional purposes incorporated into authentic articles of handicraft. The harvest of such items must be consistent with ``customary and traditional uses'' of indigenous inhabitants for their ``nutritional and other essential needs.'' Paragraph 4(b)(ii) states that any subsistence harvest in Alaska will be managed through domestic management bodies that provide indigenous inhabitants a significant voice. Additional information about the U.S. domestic implementation of Article II(4)(b) can be found below, under the heading ``Domestic Implementation.'' The final section of Article II permits a murre hunt in the Province of Newfoundland and Labrador. This traditional hunt was not provided for by the Convention because Newfoundland and Labrador were not part of Canada in 1916. Paragraph 3 of Article II of the original Convention, which provided for a limited subsistence hunt by ``Eskimos and Indians,'' has been subsumed by this new Article II. The Protocol does not create any private rights of action under U.S. law, and, in particular, does not create a right of persons to harvest migratory birds and their eggs. Similarly, Canada does not regard the agreement as creating a right in aboriginal people of Canada to harvest birds; this right is implemented by the Canadian Constitution and relevant agreements between the Government of Canada and its aboriginal groups. Article III of the Protocol replaces Article III of the Convention, which establish a 10-year closed season for certain species and is no longer operative. The new Article III sets out a formal consultation process by which the U.S. and Canada agree to meet regularly to review the progress of implementation of the treaty and any other related issues. This article also reinforces the application of the conservation principles of Article II of the Protocol, and creates a mechanism for dealing with emergencies that threaten particular bird species. The consultation process will ensure that any concerns of interested U.S. groups can be effectively addressed at the bilateral level. Article IV of the Protocol replaces Article IV of the Convention (dealing with conservation of wood ducks and eiders) which also outlived its usefulness. The new provision states that each government will use its authority to protect and conserve habitats essential to migratory bird populations (including protection from pollution and from alien or exotic species). The Protocol does not, as a practical matter, require either Party to take any steps in this area in addition to those already being taken under existing domestic legal authority. Nevertheless, this Article enshrines in the Convention the principle of habitat conservation, where previously the Convention was silent on the issue. Article V of Protocol slightly modifies Article V of the Convention by allowing the taking of nests and eggs foreseen in the revised Article II, Section 4 and expanding the permitted taking of nests and eggs to include educational or other specific purposes as long as they are consistent with the conservation principles of the treaty. This language is similar to that contained in the Japan and U.S.S.R. Conventions. consistency with other migratory bird conventions As a matter of international law, in order for the United States to take advantage of certain provisions of the Protocol, a conforming amendment to the U.S.-Mexico Convention on the Protection of Migratory Birds and Mammals (TS 912; 50 Stat. 1311) will be required. The U.S.-Mexico Convention currently mandates a ``close season for wild ducks from the tenth of March to the first of September,'' while the Protocol would allow a limited hunt of migratory birds, including ducks, in Alaska during part of this time period. As a matter of domestic law, a conforming amendment to the U.S.-Mexico Convention would also be required. Specifically, the Department of Interior could not implement a provision of one convention that allows a hunt prohibited by the provision of another, since U.S. courts have held that the statute implementing the various migratory bird conventions should be interpreted to require application of the most restrictive one in the case of conflict. See Alaska Fish & Wildlife Fed'n & Outdoor Council, Inc. v. Dunkle, 829 F. 2d 933, 941 (9th Cir. 1987), cert. den., 485 U.S. 988 (1988). The United States has indicated to Canada that the provision allowing the hunting of wild ducks during the closed season cannot become effective in the United States until the conforming amendment to the U.S.-Mexico Convention enters into force. It will not be necessary to amend the U.S.-U.S.S.R. Convention, since it allows a subsistence hunt of the type contained in the Protocol. The U.S.-Japan Convention contains a more restrictive definition of subsistence hunt than is contemplated by the Protocol. It does not include hunting by resident Alaskans who are not ``Eskimos'' or ``Indians,'' and the purpose of a subsistence hunt is limited to the provision of food and clothing (excluding, for example, the making of traditional handicrafts). The U.S.-Japan Convention does, however, allow each Party to decide on open seasons for hunting, as long as these seasons are set ``so as to avoid * * * principal nesting seasons and to maintain * * * optimum numbers.'' In addition, there is a specific prohibition on ``any sale, purchase or exchange'' of birds and their eggs, by-products or parts. A subsistence hunt under the U.S.-Canada Convention therefore will have to be implemented in a manner consistent with these provisions of the U.S.-Japan Convention. Thus, for example, avoidance of principal nesting seasons will allow for only limited taking of eggs. domestic implementation An existing statute (16 U.S.C. Sec. 712) authorizes the Department of the Interior to promulgate regulations of the Interior to promulgate regulations to implement migratory bird treaties with a number of countries, including Canada. No additional statutory authority would be required to implement the Protocol. Principal species customarily and traditionally taken for subsistence in the United States are shown in a list enclosed for your information. The term ``indigenous inhabitants'' in Article II (4)(2)(b) of the Protocol refers primarily to Alaska Natives who are permanent residents of villages within designated areas of Alaska where subsistence hunting of migratory birds is customary and traditional. The term also includes non-Native permanent residents of these villages who have legitimate subsistence hunting needs. Subsistence harvest areas encompass the customary and traditional hunting areas of villages with a customary and traditional pattern of migratory bird harvest. These areas are to be designated through a deliberative process, which would include the management bodies discussed below and employ the best available information on nutritional and cultural needs, customary and traditional use, and other pertinent factors. Most village areas within the Alaska Peninsula, Ko/dak Archipelago, the Aleutian Islands, and areas north and west of the Alaska Range would qualify as subsistence harvest areas. Areas that would generally not qualify for a spring or summer harvest include the Anchorage, Matanuska-Susitna and Fairbanks North Star Boroughs, the Kenai Peninsula roaded area, the Gulf of Alaska roaded area and Southeast Alaska. This list of exceptions does not mean that individual communities within areas that are generally excluded cannot meet the test for designation as subsistence harvest areas. For example, data indicate that there is customary and traditional use of gull eggs by indigenous inhabitants in some villages in Southeast Alaska; these villages could be included for this limited purpose even though indigenous inhabitants in Southeast Alaska generally would be excluded from the spring/summer harvest. In recognition of their need to assist their immediate families in meeting their nutritional and other essential needs, or for the teaching of cultural knowledge to or by their relatives, Natives residing in excluded areas in Alaska may be invited to participate in the customary spring and summer migratory bird harvest within the designated subsistence harvest areas around the villages in which their immediate families have membership. Such participation would require permission of the village council and an appropriate permit issued through the management body implementing the Protocol. ``Immediate family'' includes children, parents, grandparents and siblings. As noted in Article II(4)(2)(b)(ii) of the Protocol, management bodies will be created to ensure an effective and meaningful role for indigenous inhabitants in the conservation of migratory birds. These management bodies will include Native, Federal, and State of Alaska representatives as equals, and will develop recommendations for, among other things: seasons and bag limits; law enforcement policies; population and harvest monitoring; education programs; research and use of traditional knowledge; and habitat protection. Village councils shall be involved to the maximum extent possible in all aspects of management. Relevant recommendations will be submitted to the U.S. Fish and Wildlife Service of the Department of the Interior (hereinafter ``DOI/FWS'') and to the Flyway Councils. Regulations established should be enforced to prevent conservation problems. Creation of these management bodies is intended to provide more effective conservation of migratory birds in designated subsistence harvest areas without diminishing the ultimate authority and responsibility of DOI/FWS. It is the intention of DOI/FWS and the Alaska Department of Fish and Game that management information, including traditional knowledge, the number of subsistence hunters and estimates of harvest, will be collected cooperatively for the benefit of management bodies. Harvest levels of migratory birds in the United States may vary for all users, commensurate with the size of the migratory bird populations. Any restrictions in harvest levels of migratory birds necessary for conservation shall be shared equitably between users in Alaska and users in other states taking into account nutritional needs. The Protocol is not intended to create a preference in favor of any group of users in the United States or to modify any preference that may exist. The provisions of Article II(4)(b) will be implemented so that birds are taken only for food. Non-edible by-products of birds taken for nutritional purposes incorporated into authentic articles of handicraft by Alaska Natives may be sold in strictly limited situations and pursuant to a regulation by the competent authority in cooperation with management bodies. Regulations allowing such harvest will be consistent with the customary and traditional uses of indigenous inhabitants for their nutritional and other essential needs. The term ``handicraft'' does not include taxidermy items. The Protocol does not authorize the taking of migratory birds for commercial purposes. This Protocol represents a major step forward in the conservation and management of migratory birds on a substantial basis. Properly implemented, it will improve the health of the North American migratory bird population and protect the interests of conservationists, sports hunters, indigenous people and all others who value this important resource. Accordingly I recommend that this Protocol be transmitted to the Senate as soon as possible for its early and favorable advice and consent to ratification. Respectfully submitted, Warren Christopher. Enclosure: As stated. List of Principal Species Customarily and Traditionally Taken for Subsistence in the United States Migratory birds known to be used for subsistence in Alaska, from Wolfe, R.J. et al., The Subsistence Harvest of Migratory Bird Species in Alaska (Alaska Department of Fish and Game, Division of Subsistence, Technical Paper No. 197, 1990) geese White-fronted Lesser Canada Cackling Canada Taverner's Canada Lesser snow Emperor Black brant ducks Mallard Pintail Gadwall Wigeon Shovelor Redhead Ring-necked Canvasback Green-winged teal Blue-winged teal Bufflehead Harlequin Greater scaup Goldeneye Oldsquaw White-winged scoter Black scoter Surf scoter Common eider King eider Spectacled eider Common merganser Red-breasted merganser other Yellow-billed loon Red-throated loon Common loon Arctic loon Common murre Mew gull Sabine's gull Glaucous gull Arctic tern Tundra swan Sandhill crane Miscellaneous shorebirds