[Senate Treaty Document 104-28]
[From the U.S. Government Publishing 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