[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




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