[Senate Executive Report 105-5]
[From the U.S. Government Publishing Office]
105th Congress Exec. Rpt.
SENATE
1st Session No. 105-5
_______________________________________________________________________
MIGRATORY BIRD PROTOCOL WITH CANADA AND MIGRATORY BIRD PROTOCOL WITH
MEXICO
_______
October 22, 1997.--Ordered to be printed
_______________________________________________________________________
Mr. Helms, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Docs. 104-28 and 105-26]
The Committee on Foreign Relations to which was referred
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 (Treaty Doc. 104-28), and
the Protocol between the Government of the United States of
America and the Government of the United Mexican States
Amending the Convention for the Protection of Migratory Birds
and Game Mammals, signed at Mexico City on May 5, 1997 (Treaty
Doc. 105-26), having considered the same, reports favorably
thereon with one understanding to each treaty, one declaration
to each treaty, and one proviso to each treaty, and recommends
that the Senate give its advice and consent to the ratification
thereof as set forth in this report and the accompanying
resolutions of ratification.
I. Purpose
The Protocol Amending the 1916 Convention with Canada for
Protection of Migratory Birds and the Protocol Amending the
Convention with Mexico for Protection of Migratory Birds and
Game Mammals are intended primarily to resolve long-standing
confusion and problems arising from conflicting, insufficient,
and restrictive guidelines concerning the rights of aboriginal
and indigenous peoples, i.e., Indians and Eskimos, to hunt
protected migratory birds for subsistence and traditional uses
in Alaska and Northern Canada. Certain non-aboriginal natives
or residents of Alaska and Canada who rely on bird hunting for
subsistence would also be permitted to hunt during the close
season. Currently, such hunting takes place illegally outside
any effective regulatory scheme. The Protocol would enable
legal subsistence hunting within a regulatory conservation
framework.
Additionally, the Protocol modernizes existing treaty
commitments to reflect current conservation principles and
practices. The treaties must be amended to bring subsistence
hunting during the close season into conformity with the U.S.
Migratory Bird Treaty Act, which implements the four current
bilateral migratory bird protection treaties (with Canada,
Mexico, Russia and Japan).
II. Background
Existing Treaty Obligations
The U.S.-Canada Treaty, which the proposed Protocol would
amend, seeks to preserve migratory birds, particularly those
valued as food sources or predators of agricultural pests,
during their nesting season and migration. The agreement lists
the protected migratory birds species (Article I). A close
season for migratory game birds is established from March 10 to
September 1, except that in certain coastal regions the season
is from February 1 to August 15 (Article II(1)). The hunting
season is limited to a period not exceeding three and a half
months (Article II(1)). The close season on migratory
insectivorous birds and on migratory non-game birds is
throughout the year (Article II(2), and (3)). The taking of
nests or eggs of the protected migratory birds is prohibited
except for scientific or propagating purposes established by
laws and regulations (Article V). Certain specified migratory
birds are still or were initially protected by a continuous
close season for a period of years or other means of
conservation (Articles III and IV). The treaty provides for the
regulation of commerce in birds and eggs (Article VI). The
agreement also authorizes the issuance of permits to kill
injurious birds, but only during the time that the threat of
injury to agricultural or other interests exists (Article VII).
Furthermore, the birds killed under such permits cannot be
taken for commercial purposes (Article VII). There are
exceptions for subsistence or traditional uses by Indians and/
or Eskimos. Indians can take scoters (game birds) at any time
for food but not for sale (Article II(1)). Eskimos and Indians
can take at any season certain species of non-game birds and
their eggs for food and their skins for clothing, but not for
sale (Article II(3)).
The U.S.-Mexico Treaty states as its purpose the
preservation of migratory birds which live temporarily in the
United States and Mexico, by methods permitting the rational
use of such birds for sport, food, commerce and industry
(Article I). The treaty parties agree to implement domestic
laws and regulations establishing different methods of
preservation (Article II). Close seasons are established to
prohibit the taking, transportation, or sale, alive or dead, of
migratory birds, their nests, eggs, products or parts, except
when proceeding, with appropriate authorization, from private
game farms or when used for scientific purposes, propagation or
museums (Article II(A)). However, unlike the U.S.-Canada
Treaty, the exact dates of the close seasons are not specified,
except for wild ducks, for which the close season is from March
10 to September 1 (Article II(D)). The exception regarding game
farms and use for museums is not found in the U.S.-Canada
Treaty. The hunting season is limited to a maximum period of
four months per year, longer than under the U.S.-Canada Treaty,
under permits issued by the appropriate authorities (Article
II(C)). Apparently, since there is no express prohibition
outside the close season, nests and eggs can be taken during
the open hunting season, unlike under the U.S.-Canada Treaty.
Bird refuges are to be established (Article II(B)). The killing
of migratory insectivorous birds is prohibited except when such
birds become injurious to agriculture and constitute plagues,
or when they come from reserves or game farms (Article II(E)).
Unlike the U.S.-Canada Treaty, the U.S.-Mexican Treaty
explicitly prohibits hunting from aircraft (Article II(F)).
Transportation over the U.S.-Mexican border of migratory birds,
dead or alive, or of their parts or products, is not permitted
without the appropriate permit, and illegal shipments are to be
treated as contraband. (Article III). The migratory game and
non-game birds protected by the agreement are listed (Article
IV). The 1972 amendment to the agreement lists additional
protected species. Beyond the protection of migratory birds,
the restrictions on transportation of migratory birds under
Article III also apply to the transportation of game mammals
living in the United States and/or Mexico.
Although the U.S.-Mexico Treaty differs from the U.S.-
Canada Treaty in several respects, the most important one with
regard to aboriginal and subsistence hunting rights is the
absence of any exception for such rights. Although the close
season provisions are generally more flexible and the hunting
season may be longer in the U.S.-Mexico Treaty, the absence of
any aboriginal and subsistence hunting exceptions appears to
make the dates of the close season for ducks absolute.
Procedural History
The early procedural history of the Canadian treaty yielded
one of the most important judicial decisions regarding U.S.
treaty principles. In the early decades of this century, the
first congressional attempts were made to deal with the drastic
reduction in the avian population resulting from aggressive
hunting to meet market demand for bird products. Before that
time, state and local governments exercised authority over
wildlife protection. The inability of these authorities to
handle and prevent the decimation of wildlife led to attempts
at federal intervention. The Lacey Act of 1900 had proven
ineffective in stopping the illegal interstate shipment of
birds. The Weeks-McLean Act of 1913 was intended to stop
commercial hunting and the illegal interstate shipment of
migratory birds.
The Act was soon challenged as an unconstitutional
violation of states' rights. Two federal district courts found
the Act unconstitutional and not permissible as a regulation of
interstate commerce or as a protection of federal property.
However, prior to consideration of these decisions by the
Supreme Court, the State Department concluded the Convention
for the Protection of Migratory Birds with Great Britain (which
then had jurisdiction over Canada). Under Article VIII of the
Convention, the parties agreed to take the necessary measures
for domestic implementation of the Convention. The Migratory
Bird Treaty Act (MBTA) was signed into law on July 3, 1918, and
the Supreme Court subsequently dismissed the appeal regarding
the unconstitutionality of the Weeks-McLean Act. However, the
MBTA itself was soon challenged as unconstitutional in a case
culminating in the landmark Supreme Court decision, Missouri v.
Holland (252 U.S. 416 (1920)). The Supreme Court upheld the
MBTA on the basis of the treaty-making power of the federal
government under article II of the U.S. Constitution and of the
supremacy clause in article VI, making a clear statement that
treaties are part of the supreme law of the land.
Addressing the question of subsistence use of migratory
birds in Alaska ``has been one of the most troublesome issues
surrounding the implementation of this country's migratory bird
treaties.'' \1\ The problem arose from the inconsistency among
subsistence exemptions in the four treaties implemented by the
Migratory Birds Treaty Act. The earlier treaties did not permit
the administrative flexibility necessary to manage subsistence
uses realistically. On January 30, 1979, the United States and
Canada concluded a protocol amending the U.S.-Canada Treaty in
an effort to address this issue. The 1979 protocol (which is
still pending before the Committee) would have permitted the
parties to authorize the taking of migratory birds and the
collection of their eggs by the indigenous inhabitants of the
State of Alaska and the Indians and Inuit of Canada for their
own nutritional and other essential needs during any period of
the year in accordance with seasons established by Parties so
as to provide for the preservation and maintenance of stocks of
migratory birds. This new exemption would not have affected the
continued validity of the existing subsistence use exemptions
under the Treaty.
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\1\ S. Rep. No. 1175, 95th Cong., 2d Sess. 6 (1978). This is part
of the legislative history of the Fish and Wildlife Improvement Act of
1978, Pub. L. No. 95-616, 92 Stat. 3110. Although paragraphs 3(h)(2)
and 3(h)(3) of the act affect the implementation of the four migratory
bird treaties, apparently they technically do not amend the MBTA.
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However, many conservation groups thought that the language
of the 1979 protocol was too broad and would result in
excessive takings of migratory birds. These groups lobbied
strongly against the protocol and broader close season
exceptions. Consequently, the 1979 protocol was never ratified,
and was never the subject of a hearing or considered by the
Foreign Relations Committee.
In the meantime, the U.S. Fish and Wildlife Service had
been following a policy of non-enforcement of the MBTA and of
its regulations. The MBTA did not explicitly provide for
subsistence use exceptions prior to the Fish and Wildlife
Improvement Act of 1978. The subsistence use regulation, 50
C.F.R. Sec. 20.132, promulgated in 1973 and still current,
provided for subsistence hunting according to the exception in
Article II(3) of the U.S.-Canada Treaty. This exception was
only for Eskimos and Indians in Alaska with regard to certain
species of birds. The regulation also permitted the subsistence
taking of snowy owls and cormorants by any person in Alaska.\2\
Despite the relatively limited subsistence use permitted by
law, for the most part, enforcement against illegal subsistence
taking apparently was not feasible in many areas of Alaska and
was not actively pursued by the U.S. Fish and Wildlife Service.
The first real enforcement attempts were frustrated and the
U.S. Fish and Wildlife Service retreated to an informal non-
enforcement policy. After an incident in 1975 in which a postal
official caught an Eskimo attempting to mail freshly killed
ducks, the U.S. Fish and Wildlife Service announced an official
policy of non-enforcement, and the Alaska Department of Fish
and Game followed suit.
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\2\ Snowy owls and cormorants were not protected under the U.S.-
Canada Treaty. However, the U.S.-Mexico, U.S.-Japan, and U.S.-U.S.S.R.
Treaties currently protect them. The more flexible language of these
treaties permitted the promulgation of regulations which would allow
subsistence taking of these species, therefore, this particular
subsistence use exception was added to the regulations at 38 Fed. Reg.
17841 (1973).
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In an attempt to reduce illegal takings, the U.S. Fish and
Wildlife Service negotiated and concluded agreements with
representatives of the Eskimo community, the 1984 Hooper Bay
Agreement and the 1985 Yukon-Kuskokwim Delta Goose Management
Plan. These agreements formally recognized and authorized
subsistence hunting during the close season in contravention of
the MBTA and the more restrictive migratory bird protection
treaties. The Alaska Fish and Wildlife Federation and the
Alaska Fish and Wildlife Conservation Fund sued the U.S. Fish
and Wildlife Service and the Alaska Department of Fish and Game
seeking declaratory and injunctive relief. The Conservation
Fund sought an injunction against the U.S. Fish and Wildlife
Service's acquiescence in close season subsistence takings
which the Conservation Fund alleged violated the MBTA, the
Administrative Procedure Act (APA) and the National
Environmental Policy Act (NEPA). A couple of organizations
representing Alaska Natives which intervened in the case cross-
claimed that the Alaska Game Act of 1925 (AGL) superseded the
MBTA and allowed Alaskan Natives to take migratory birds in the
close season for subsistence use.
The district court ruled that the U.S. Fish and Wildlife
Service could not restrict the subsistence use takings by
Alaskan Natives during the close season and that the AGL
repealed the application of the MBTA to Alaska. However, the
court also found that the MBTA was incorporated into the AGL,
except for the restriction on subsistence hunting. Since the
AGL permitted subsistence use takings, the district court found
that the two challenged agreements had no legal effect, and
thus the claimed violations of the APA and NEPA were moot. The
court declined to decide whether the Secretary of Interior had
authority under the Fish and Wildlife Improvement Act to
restrict subsistence use takings because the U.S. Fish and
Wildlife Service had not yet issued regulations pursuant to
that Act. The Conservation Fund appealed.
In Alaska Fish and Wildlife Federation and Outdoor Council,
Inc. v. Dunkle (829 F.2d 933, 942-945 (9th Cir. 1987)), the
Court of Appeals for the Ninth Circuit held that the AGL did
not supersede the MBTA with regard to Alaska. The subsistence
takings provision of the AGL prohibited the adoption of
regulations restricting subsistence takings of animals and non-
migratory birds in Alaska. However, the MBTA still governed the
takings of migratory birds in Alaska, including any subsistence
use takings. The Court of Appeals ruled that the Secretary of
Interior is authorized to issue regulations permitting
subsistence taking of migratory birds in Alaska under the MBTA,
but only to the extent that the regulations are in accord with
all the treaties under the Act. This meant that any subsistence
taking had to be in accordance with the most restrictive
subsistence provision among the four treaties, i.e., the U.S.-
Canada Treaty. Subsistence use takings beyond the scope of
permissible takings under the U.S.-Canada Treaty were in
violation of the MBTA even if such takings would be within the
scope of permissible takings under the more liberal treaties.
Therefore, general close season subsistence takings by Alaskan
Natives were not permitted by the MBTA. The Court of Appeals
rejected arguments that the Fish and Wildlife Improvement Act
required regulations to be in accord only with the U.S.-
U.S.S.R. Treaty (which provided for more liberal subsistence
taking), noting that the legislative history made clear that
regulations permitting closed season subsistence takings may
not be promulgated if they are contrary to any of the four
treaties. The court also noted that the legislative history
showed that Congress believed that the three earlier treaties
had to be amended to be consistent with the U.S.-U.S.S.R.
Treaty before regulations permitting subsistence hunting could
be adopted. To the extent that the two challenged agreements,
the 1984 Hooper Bay Agreement and the 1985 Goose Management
Plan, conflicted with the provisions of the four treaties, they
were invalid, and any future similar agreement would likewise
be invalid.
The opinion of the Court of Appeals made it clear that the
U.S.-Canada Treaty and the U.S.-Mexico Treaty would have to be
amended in order to permit closed season subsistence takings.
Only the U.S.-U.S.S.R. Treaty explicitly permitted subsistence
hunting by Alaskan Natives. The proposed Protocols would
correct this enforcement problem.
Domestic Implementation.
The U.S.-Canada Protocol would resolve some of the problems
regarding the subsistence takings by indigenous inhabitants of
Alaska during the close season. The U.S.-Mexico Protocol is a
component necessary to enable the regulatory implementation of
the subsistence use policy under the U.S.-Canada Protocol. The
U.S.-U.S.S.R. Treaty does not appear to pose any problem.
However, although the U.S.-Japan Treaty does not pose an
obstacle to most aspects of the subsistence use provisions
contained in the U.S.-Canada Protocol, it remains inconsistent
with and more restrictive than that policy in some respects.
Therefore, regulations issued pursuant to the MBTA must take
into account those restrictive aspects of the U.S.-Japan
Treaty.
III. Summary
a. u.s-canada protocol
According to the Letter of Submittal from Secretary of
State Warren Christopher to President Clinton, accompanying the
Protocol, ``[t]he 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.''
The Preamble. The preamble expresses a commitment to the
conservation of migratory birds for a broad range of values,
``nutritional, social, cultural, spiritual, ecological,
economic, and aesthetic,'' through international cooperative
efforts within a ``comprehensive international framework.'' It
goes on to express the primary concern of the Protocol, to
accommodate the aboriginal and treaty rights of aboriginal
peoples in Canada and to provide for the customary and
traditional subsistence taking of migratory birds and eggs by
indigenous inhabitants of Alaska. The Protocol is not intended
to increase the taking of birds and eggs, since it is supposed
to be a formal recognition and authorization of the de facto
policy of non-enforcement of the current MBTA, whose regulation
currently is limited to the most restrictive aboriginal and
subsistence provision contained in the four treaties.
Article I--Protected Birds. Article I of the Protocol
repeals and replaces the current Article I of the Treaty by
modernizing the names and classification of the birds listed as
protected by the Treaty. No species were added to or removed
from the list. The Canadian provinces regulate the management
of bird populations not included in the original Treaty, and
the amendment of the list of protected species would have
entailed lengthy, complicated Canadian internal negotiations.
The Protocol does not follow the U.S.-Japan and U.S.-U.S.S.R.
Treaties in creating a general definition for ``migratory
birds'' and placing the list of protected birds in an annex or
appendix.
Article II(1)(2)(3)--Close Seasons. Article II of the
Protocol deletes and replaces the Article II of the Treaty. A
new introductory section of Article II enumerates the
conservation principles to be followed in managing migratory
bird populations. Article II(1) of the Protocol does not
incorporate the flexibility in establishing close seasons found
in the U.S.-Japan and U.S.-U.S.S.R. Treaties, choosing to
retain the fixed close season for migratory game birds.
However, only the period from March 10 to September 1 remains a
close season; the close season from February 1 to August 15 for
certain regions is eliminated. The year-round close season for
migratory non-game and insectivorous birds is retained. The
hunting season remains limited to a maximum three and one-half
months per year, which the parties agreed would be interpreted
to mean 107 days.
Under Article II(2), migratory birds, their nests or eggs
shall not be sold or offered for sale. Article II(3) permits
the taking of migratory birds at any time of the year for
scientific, educational, propagative, or other specific
purposes consistent with the conservation principles of the
Treaty. This provision is similar to exceptions in the U.S.-
Japan and U.S.-U.S.S.R. Treaties. Notably, the current U.S.-
Canada Treaty exception for scientific and propagative
activities applies only to the prohibition against taking of
nests and eggs. The Protocol would therefore broaden the
exception to permit the taking of migratory birds during the
close season for scientific and propagative purposes.
Article II(4)(a), II(5)--Canadian Subsistence Exceptions.
The major change in the exception to close season prohibitions
is the expanded provisions for aboriginal and subsistence
takings (Article II(4)(a)). In Canada, subject to existing
aboriginal treaty rights and to regulatory regimes, self-
government agreements, co-management agreements and land claims
agreements, migratory birds and their eggs may be harvested at
any time by aboriginal peoples having aboriginal or treaty
rights. The down and inedible by-products may be sold, but
commerce in the birds and eggs may only occur within or between
aboriginal communities. Migratory game and non-game birds and
their eggs may be taken throughout the year for food by
qualified non-aboriginal residents in areas of northern Canada
where the relevant agreements with aboriginal peoples of Canada
recognize that the aboriginal peoples may permit such
activities. The dates of the fall season for such takings by
qualified residents may be varied by law or regulation. The
birds or eggs taken by qualified residents shall not be sold or
offered for sale. Additionally, under Article II(5), non-
aboriginal residents of Newfoundland and Labrador are permitted
to take murres from September 1 to March 10, for a period not
greater than three and one-half months, but the murres shall
not be sold or offered for sale. No exemption for this
traditional hunt was included in the U.S.-Canada Treaty
originally, because in 1916 Newfoundland and Labrador were not
part of Canada (Article II(5)).
No private right of action accrues to indigenous
inhabitants or to aboriginal peoples of Canada on the basis of
the Protocol.
Article II(4)(b)--Alaskan Subsistence Exceptions. For the
United States, migratory birds and their eggs may be harvested
by the indigenous inhabitants of Alaska (Article II(4)(b)).
Seasons and other regulations for such takings shall be
consistent with the ``customary and traditional uses by such
indigenous inhabitants for their own nutritional and other
essential needs.'' Indigenous inhabitants are to be given an
``effective and meaningful role'' in the conservation of
migratory birds, including a role in the development and
implementation of regulations.
According to the Letter of Submittal from the State
Department, the term ``indigenous inhabitants'' ``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.''
(emphasis added). The basis for this definition of ``indigenous
inhabitants'' can be traced back to the discussion of the term
as used in the U.S.-U.S.S.R. Treaty. During Committee hearings
questions were raised about the definition of the term
``indigenous inhabitants'' in Article II, and the executive
report included an excerpt from the U.S. official delegation
report dated March 16, 1977. According to these records, the
term ``indigenous inhabitants'' was chosen deliberately to
permit the inclusion of ``non-Native Alaskans with legitimate
subsistence hunting needs.'' The provision for subsistence
takings was meant to be similar to a provision in the
Endangered Species Act of 1973 which permitted any non-Native
permanent residents of Alaskan Native villages to participate
in subsistence hunts. Thus the subsistence exemption would be
racially non-discriminatory.
The legislative history of the Fish and Wildlife
Improvement Act of 1978 reflects a congressional concurrence in
the use and discussion of the terms ``indigenous inhabitants''
and ``nutritional and other essential needs'' by the official
U.S. delegation report on the U.S.-U.S.S.R. Treaty. It
emphasizes that the term ``indigenous inhabitants'' includes
both Native and non-Native people with legitimate subsistence
hunting needs. The executive document transmitting the 1979
U.S.-Canada Protocol to the Senate emphasizes that the Protocol
would permit subsistence hunting by residents of Alaska in a
racially non-discriminatory manner, meaning that both Native
and non-Native residents of Alaska with legitimate subsistence
hunting needs were included.
The United States is authorized to establish subsistence
taking of migratory birds, their eggs and down in any season.
Commercial use would not be permitted aside from limited sales
of inedible by-products of birds taken for food which are then
incorporated into authentic, traditional handicraft items. Such
use would be strictly controlled by the competent authorities.
This interpretation of takings for ``nutritional and other
essential needs'' can also be traced back to the U.S.-U.S.S.R.
Treaty.
Article III--Treaty Review by the Parties. Article III of
the Protocol deletes and replaces Article III of the Treaty, an
obsolete provision which established a continuous close season
for ten years after the effective date of the Treaty for
certain migratory game birds. The new Article III provides that
the Treaty parties will meet regularly to review progress in
implementing the Treaty, including matters such as the status
of bird populations and habitats and the effectiveness of
management and regulatory systems. The parties agree to
cooperate to solve identified problems in accordance with the
conservation principles expressed in Article II and, if
necessary, to make special arrangements for the protection of
species of particular concern.
Article IV--Bird Habitat Conservation. Article IV of the
Protocol deletes and replaces Article IV of the Treaty, an
obsolete provision concerning special protections for wood
ducks and eider ducks. The new Article IV provides for the
protection and enhancement of bird habitats, requiring the
Treaty parties to seek means to prevent damage to the habitats,
to try to control the importation of animals and plants which
are hazardous to protected birds, to try to control the
introduction of animals and plants which could disturb the
ecological balance of unique island ecosystems, and to pursue
cooperative arrangements to conserve essential habitats.
Although this article does not require the Treaty parties to
take new steps beyond their current efforts, it fills a gap in
the current Treaty which is silent on the subject of
preservation of bird habitats. Provisions requiring efforts to
protect bird habitats are included in the U.S.-Japan and U.S.-
U.S.S.R. Treaties.
Article V--Educational and Scientific Exceptions. Article
V of the Protocol deletes and replaces Article V of the Treaty,
which prohibits the taking of nests and eggs with limited
exceptions, by updating it. The new Article V expands the
exceptions, making them consistent with similar provisions in
the U.S.-Japan and U.S.-U.S.S.R. Treaties and with similar
exceptions for the taking of migratory birds in Article II(3).
Exceptions permitting takings for educational purposes, for
other specific purposes consistent with the conservation
principles of the Treaty, or for subsistence uses permitted
under Article II(4), are added to existing exceptions to the
prohibition on the taking of nests and eggs.
Article VI--Entry into Force. Article VI provides that the
Protocol is subject to ratification. It shall enter into force
upon the exchange of instruments of ratification and remain in
force for the duration of the Treaty and be considered an
integral part of the Treaty.
Exchange of Notes--Emphasis of Conservation Principles.
The United States and Canada engaged in a further exchange of
notes to clarify and affirm the understanding that activities
permitted under Article II, including the taking of migratory
birds and eggs by aboriginal peoples of Canada and indigenous
inhabitants of Alaska, shall be conducted in accord with the
conservation principles expressed elsewhere in Article II. This
clarification affirmed that the existing aboriginal and treaty
rights of the aboriginal peoples of Canada would not override
the conservation principles and would not be recognized in a
manner inconsistent with those principles. The exchange of
notes ensured that there would be no interpretation of the
Treaty to the contrary.
B. u.s.-mexico protocol
The U.S.-Mexico Protocol is not as comprehensive as the
U.S.-Canada Protocol. Like the U.S.-Canada Protocol, the
Protocol Amending Convention with Mexico for Protection of
Migratory Birds & Game Mammals (Treaty Doc. 105-26) is intended
primarily to resolve long-standing confusion and problems
arising from conflicting, insufficient, and restrictive
guidelines concerning the rights of aboriginal/indigenous
peoples, i.e., Indians and Eskimos, to hunt protected migratory
birds for subsistence and traditional uses in Alaska.
The Preamble. The preamble declares a commitment to
conservation of migratory birds for their ``nutritional,
social, cultural, spiritual, ecological, economic, and
aesthetic values'' through a comprehensive, cooperative,
international framework, adopting the broader expression of
purpose similarly expressed in the U.S.-Japan and U.S.-U.S.S.R.
Treaties.
Article I--Subsistence Taking of wild ducks and eggs.
Article I of the Protocol simply deletes and replaces Article
II(D) of the Treaty with an updated text permitting subsistence
taking of wild ducks and their eggs by indigenous inhabitants
of Alaska, consistent with ``customary and traditional uses''
by these inhabitants ``for their own nutritional and other
essential needs.''
Article II--Entry into Force. Article II of the Protocol
provides for the ratification of the Protocol, its entry into
force upon the exchange of instruments of ratification, its
effectiveness for the duration of the Treaty, and its
consideration as an integral part of the Treaty.
IV. Entry into Force and Termination
a. entry into force
Both Protocols enter into force upon the exchange of
instruments of ratification.
b. termination
Both Protocols remain in force for the duration of the
underlying Conventions.
V. Committee Action
The Committee on Foreign Relations held a public hearing on
the proposed protocols on September 25, 1997. The hearing was
chaired by Senator Chuck Hagel. The Committee considered the
proposed protocols on October 8, 1997, and ordered the proposed
protocols favorably reported each with one understanding, one
declaration and one proviso by voice vote, with the
recommendation that the Senate give its advice and consent to
the ratification of the proposed treaty.
VI. Committee Comments
The Committee endorses the sound conservation and
responsible stewardship principles contained in the Mexico and
Canada Protocols dealing with the Protection of Migratory
Birds. The Protocols make legal the practice of traditional
hunting in Alaska and Canada during the closed seasons. The
reality is that when the hunting season opens in Alaska the
birds are gone from areas in the far north where many
indigenous people hunt and fish. These Protocols attempt to
provide an opportunity for traditional hunts to occur in the
spring and summer under a controlled management scheme in which
natives of the villages where the hunts occur will have a voice
in the management and enforcement of the hunt.
The Committee expects that these protocols will do much to
improve the management of traditional hunts. As the Fish and
Wildlife Service has maintained a practice of non-enforcement
of the Treaty requirements that would otherwise prohibit these
hunts, these protocols will put in place a rational
conservation program that allows the traditional spring hunt to
continue while providing better management and data on the
numbers and kinds of birds taken in the hunts in both Alaska
and Canada. Under the new regime the estimated 10,000 to 13,000
subsistence hunters in Alaska, and the numerous hunters in
Canada, will be required to account for their harvests and be
accounted for in the continental management scheme. The
Committee believes it is important to end the anomaly of a
policy of non-enforcement of U.S. law, as currently required by
the Migratory Bird Treaty Act.
During the hearing to consider the Protocols the Committee
received testimony from the President of the Alaskan
Association Village Presidents. He testified to the essential
link between the native customary and traditional harvest of
migratory birds and the culture of native Alaskans. The
Committee supports this link and believes that a legal
recognition of the legitimate subsistence and cultural needs of
native Alaskans is long overdue.
The Committee's recommended resolutions of ratification
each contain one understanding to clarify the interpretation of
Article 11(4)(b) of the Canada Protocol and Article I of the
Mexico Protocol regarding the definition of indigenous
inhabitants. The resolution contains the definition used by the
Administration in its transmittal documents of the Protocols to
the Senate. Specifically, the resolution makes clear that the
shared understanding between the Senate and the Executive is
that when implementing treaty commitments, permanent residents
of a village within a subsistence harvest area, regardless of
race, will be treated as indigenous inhabitants. Further,
immediate family members of indigenous inhabitants may be
invited to participate in the customary spring and summer
subsistence harvest, and may also be treated as indigenous
inhabitants where it is appropriate to recognize a need to
assist indigenous inhabitants in meeting nutritional and other
essential needs, or for the teaching of cultural knowledge to
or by their family members. These persons, however, must have
the permission of the village council and the appropriate
permits. The Committee expects that this exception will be used
judiciously and sparingly with due regard to the conservation
principles set out in the Conventions, as amended.
VII. Resolution of Ratification
U.S.-Canada Protocol
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of 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 Related
Exchange of Notes, signed at Washington on December 14, 1995
(Treaty Doc. 104-28), subject to the understanding of
subsection (a), the declaration of subsection (b), and the
proviso of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification, and shall be binding on the
President:
(1) INDIGENOUS INHABITANTS.--The United States
understands that the term ``indigenous inhabitants'' as
used in Article II(4)(b) means a permanent resident of
a village within a subsistence harvest area, regardless
of race. In its implementation of Article II(4)(b), the
United States also understands that where it is
appropriate to recognize a need to assist indigenous
inhabitants in meeting nutritional and other essential
needs, or for the teaching of cultural knowledge to or
by their family members, there may be cases where, with
the permission of the village council and the
appropriate permits, immediate family members of
indigenous inhabitants may be invited to participate in
the customary spring and summer subsistence harvest.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
(1) TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall be binding on the President:
(1) SUPREMACY OF THE CONSTITUTION.--Nothing in the
Treaty requires or authorizes legislation or other
action by the United States of America that is
prohibited by the Constitution of the United States as
interpreted by the United States.
U.S.-Mexico Protocol
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Protocol between the Government of the
United States of America and the Government of the United
Mexican States Amending the Convention for the Protection of
Migratory Birds and Game Mammals, signed at Mexico City on May
5, 1997 (Treaty Doc. 105-26), subject to the understanding of
subsection (a), the declaration of subsection (b), and the
proviso of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification, and shall be binding on the
President:
(1) INDIGENOUS INHABITANTS.--The United States
understands that the term ``indigenous inhabitants'' as
used in Article I means a permanent resident of a
village within a subsistence harvest area, regardless
of race. In its implementation of Article I, the United
States also understands that where it is appropriate to
recognize a need to assist indigenous inhabitants in
meeting nutritional and other essential needs, or for
the teaching of cultural knowledge to or by their
family members, there may be cases where, with the
permission of the village council and the appropriate
permits, immediate family members of indigenous
inhabitants may be invited to participate in the
customary spring and summer subsistence harvest.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
(1) TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall be binding on the President:
(1) SUPREMACY OF THE CONSTITUTION.--Nothing in the
Treaty requires or authorizes legislation or other
action by the United States of America that is
prohibited by the Constitution of the United States as
interpreted by the United States.
A P P E N D I X
EX. F, 96-1: MARITIME BOUNDARIES TREATY WITH MEXICO; TREATY DOC. 104-
28: PROTOCOL AMENDING THE 1916 CONVENTION WITH CANADA FOR THE
PROTECTION OF MIGRATORY BIRDS; AND TREATY DOC. 105-26: PROTOCOL
AMENDING THE CONVENTION WITH MEXICO FOR THE PROTECTION OF MIGRATORY
BIRDS AND GAME MAMMALS
C O N T E N T S
__________
September 25, 1997
Page
Clark, Jamie, Director of Fish and Wildlife Service, Department
of Interior.................................................... 34
Prepared statement........................................... 36
Holmes, Roger, Director, Division of Fish and Wildlife, Minnesota
Department of National Resources............................... 41
Prepared statement........................................... 43
Murkowski, Hon. Frank, U.S. Senator from the State of Alaska..... 20
Prepared statement........................................... 22
Naneng, Myron Sr., President, Association of Village Presidents,
Vice Chair, Native Migratory Birds Working Group, Anchorage,
Alaska......................................................... 39
Ulmer, Hon. Fran, Lieutenant Governor, State of Alaska........... 18
West, Mary Beth, Deputy Assistant Secretary of State for Oceans,
Science and Technology, Bureau of Oceans and International
Environmental and Scientific Affairs........................... 24
Prepared statement........................................... 26
EX. F, 96-1: MARITIME BOUNDARIES TREATY WITH MEXICO; TREATY DOC. 104-
28: PROTOCOL AMENDING THE 1916 CONVENTION WITH CANADA FOR THE
PROTECTION OF MIGRATORY BIRDS; AND TREATY DOC. 105-26: PROTOCOL
AMENDING THE CONVENTION WITH MEXICO FOR THE PROTECTION OF MIGRATORY
BIRDS AND GAME MAMMALS
----------
THURSDAY, SEPTEMBER 25, 1997
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 2:03 p.m. In room
SD-419, Dirksen Senate Office Building, Hon. Chuck Hagel
presiding.
Present: Senator Hagel.
Senator Hagel. Good afternoon. I would like to welcome all
of you, especially our distinguished witnesses today, for our
hearing on three important treaties.
I am pleased to recognize my friend, our distinguished
colleague, the Senator from Alaska, chairman of the Senate
Energy Committee, Senator Murkowski, who is here to lend his
support to our consideration of two treaties relating to
migratory birds.
I note, as well, that he is accompanied by another
distinguished guest, Alaska's Lieutenant Governor, Lieutenant
Governor Ulmer. We welcome you and appreciate very much your
participation.
We later will be hearing from Deputy Assistant Secretary of
State Mary Beth West. Ms. West will provide the
administration's views on the U.S.-Mexico Boundary Treaty. Ms.
West will be followed by two panels testifying on the Migratory
Birds Protocols. First will be Director Clark of the Fish and
Wildlife Service.
Our final panel will include Mr. Naneng, President of the
Native Migratory Birds Working Group of the Association of
Village Presidents, and Mr. Holmes, Director of the Minnesota
Fish and Wildlife Division.
Welcome to all of you.
The U.S.-Mexico Boundary Treaty was first submitted to the
Senate in 1979. Initially, there was some controversy over the
methodology used to delineate the maritime boundary between the
U.S. and Mexico in the Gulf of Mexico. There also was little
urgency to ratify the treaty because of the technical
difficulties of deep water drilling in the Gulf.
Now, however, those technological challenges are being
overcome.
I also understand that the delineation methodology, which
was originally controversial, has now been accepted by all
sides.
I am pleased that we are able to take quick action on the
U.S.-Canada and U.S.-Mexico Protocols amending two 1916
treaties on the protection of migratory birds. These two new
protocols are an excellent example of how sportsmen,
conservationists, and native groups can work together to
address serious issues.
In this case, these protocols will enable remote native
populations to continue their historic practice of harvesting
migratory birds for subsistence and local use. It will do so
without placing any additional pressure on bird populations
that are so important to both American sportsmen and
conservation groups.
In fact, legalizing and controlling this traditional native
harvest will permit better stewardship of migratory bird
populations by permitting better accounting of total harvesting
each year.
Again, I welcome all of our distinguished guests. Now I
would like to call upon the distinguished Senator from Alaska,
Senator Murkowski.
Senator Murkowski. Thank you very much, Senator Hagel. I
appreciate the opportunity to appear before this committee with
which I served for so many years. As you know, my first choice
was the Finance Committee. I think it took some 15 years or so
to get that spot, and, unfortunately, I had to give up the
Foreign Relations Committee.
But I want to defer to our Lieutenant Governor, who
journeyed down here from Alaska. Then I will make my statement.
Let me say that it is a pleasure to have you down here,
Fran, and I look forward to hearing the position of the State
of Alaska.
Senator Hagel. Mr. Chairman, thank you, and, again,
welcome, Lieutenant Governor Ulmer. We are pleased to have you.
STATEMENT OF HON. FRAN ULMER, LIEUTENANT GOVERNOR, STATE OF
ALASKA
Lieutenant Governor Ulmer. Thank you, Senator.
Mr. Chairman and members of the committee, it is my great
privilege to speak to you today on an issue that represents
fulfillment of a goal toward which we in Alaska have long
aspired.
The Protocol amending the 1916 Convention for the
Protection of Migratory Birds in Alaska and the United States
along with a conforming Protocol to the 1936 U.S.-Mexico
Convention provide a compelling statement that we in Alaska and
the United States cherish the rich migratory bird resources
that we share and the habitat upon which they depend; that we
respect the diverse cultural traditions and the subsistence way
of life of the indigenous people of Alaska and Canada; that we
recognize and value the interests of conservationists and
hunters throughout North America; and that we understand the
imperative to expand and strengthen our partnerships for
responsible conservation and stewardship of migratory bird
stocks.
Many of those at this hearing today and others who could
not attend have worked for many years to fit the right pieces
together to make the treaty amendments possible. In recent
years, hunters, wildlife agencies, and conservation groups in
Alaska have reached mutual understandings on bird conservation
goals, broadened public involvement in migratory management,
and engaged in cooperative action to sustain migratory bird
populations. The resultant vision of more effective
conservation was widely shared and discussed with
constituencies across the Nation in a search for understanding
and common ground.
That common ground emerged as strongly shared appreciation
and concern for the migratory birds themselves.
The treaty amendments before you are fundamentally
migratory bird conservation amendments. Presently, the
Migratory Bird Treaty with Canada prohibits hunting migratory
birds from March 10 to September 1. In Alaska, migratory birds
have left large areas of northern, western, and interior Alaska
by mid-September, and in these areas they generally do not
return before March 10. As a consequence, much of the
traditional harvest of migratory birds in rural Alaska has
taken place and continues to take place during the closed
season portion of the year.
In Alaska, prohibitions on traditional hunting practices
have been enforced on a very limited basis. But subsistence
hunters in Alaska want to hunt within the law when they take
what is often the first meat that is available in the spring
and the promise of winter's end as well as an important part of
their food supply. They want to participate with stakeholders
elsewhere in the management of the birds they share in common.
This long-standing inequity has fostered regional and
cultural barriers to communication between hunters and
agencies, harvest monitoring, identification of conservation
concerns, and local involvement in developing cooperative
management actions.
I want to say that from Alaska's perspective, these
amendments represent an outstanding achievement in migratory
bird conservation. This is because, while they acknowledge the
importance of subsistence use of birds, the amendments also
recognize the willingness of those who are most affected by
this agreement to join with State and Federal Governments in
effective hunting regulation, habitat protection, enforcement,
research, and education. It is this vision of a future in which
hunters, conservationists, and wildlife managers work together
in managing migratory birds that provides me with the greatest
sense of satisfaction and optimism for the future of our
magnificent migratory bird resource.
I trust the committee will come to the same conclusion and
act favorably on the amendments.
In closing, I would like to join with others in dedicating
my testimony on behalf of the State of Alaska to the memory of
Mollie Beattie. As Director of the U.S. Fish and Wildlife
Service before her recent death, Mollie played a crucial role
in inspiring all participants in the negotiations to develop a
collective vision of cooperative management and conservation.
It is in large measure through her efforts that the treaty
amendment process has come successfully to this effort.
Thank you very much.
Senator Hagel. Lieutenant Governor, thank you very, very
much. Mr. Chairman, would you like to say a few words?
STATEMENT OF HON. FRANK MURKOWSKI, U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you very much.
First of all, let me commend the Lieutenant Governor for
her statement. I totally agree with the presentation that she
has made on behalf of the State of Alaska.
I am going to ask that my entire statement be entered into
the record as if read. I am going to highlight a few points
that I think need some clarification. Since we don't see each
other very often, this might be of interest to her and we can
comment on it later because it is not on the subject at all,
but it is on another subject.
Senator Hagel. Glad we could do a little Alaska business in
here.
Senator Murkowski. I am happy to have this opportunity to
establish a dialog.
First of all, a lot of people misunderstand this issue. The
traditional use by Alaska's native people of migratory birds is
a simple reality in that when the season traditionally opens,
the birds have left the area where many of our indigenous
people have frequently hunted and fished--in other words, in
the far north. The reality is that the birds are gone in the
fall, when the season opens. So the question is what kind of
opportunity can be made to insure that the traditional use of
the spring hunt can continue under a controlled management
scheme that involves enforcement by the native people as well
as a voice in the management.
So it is very important to the native people of Alaska. It
is important for management because the treaty allows
accounting for the take during the spring harvest.
I might add that this is supported by the Alaska Department
of Fish and Game and, to my understanding, the Wildlife
Management Institute as well.
Now there has been resistance from time to time by sports
hunters on the principle that you should not take birds in the
spring. But scientific evidence does not bear out that
contention, that this relatively insignificant number of birds
is harmful by any means.
So, as a consequence, what we have here is a revision of
the 1916 Convention for the Protection of Migratory Birds,
which was a treaty based on migratory bird conservation
programs in North America. However, the original treaty did not
adequately provide for the spring migratory bird harvesting in
the north in spite of the fact that it was a centuries old
practice, which certainly has cultural and nutritional aspects
associated with it. It is important, as well, to Alaska's
indigenous people and the aboriginal people of Canada.
So what we did for a long time is we had just a
nonenforcement approach. I can recall one instance years ago
when the U.S. Fish and Wildlife Service decided to enforce the
taking of birds in the spring and in Point Barrow, one of the
residents brought a bird into the village and was promptly
arrested by the U.S. Fish and Wildlife Service. The next day
there were probably 200 villagers who walked in with a bird and
that ended the process of what to do about the problem.
So for a long time it was simply ignored. I am glad to see
that we are not ignoring it today.
The one change I would propose is an issue of fairness.
Negotiators saw that in some cases it might be appropriate for
village councils to have the option of inviting individuals who
no longer reside in the village to return to that village,
either to assist family members in the village or to allow
relatives to share some cultural exchange.
The letter of transmittal refers to this as an option only
for Alaska natives. I believe that, in fairness, this option
must also be open to non-native families living in the village
or use words to that effect.
What we have here is suggested language that the term
``indigenous inhabitants'' might be included. This would
include other residents of the village, not exclusively native,
who clearly were dependent, to some extent traditionally or for
their livelihood, on the availability of that. I offer that
consideration based on the issue of equity and fairness--
indeed, the possibility that the structure could be maintained
through an association of the people in the village to
determine just how broad that inclusion would be.
That is the extent of my presentation, Mr. Chairman,
relative to the migratory birds.
I would like the opportunity to speak very briefly, if I
may, on the U.S.-Mexico Maritime Boundary Treaty, if you would
allow me that privilege.
Senator Hagel. Yes. Absolutely.
Senator Murkowski. I very much appreciate that.
Mr. Chairman, the opportunity to present my views, from my
perspective as chairman of the committee on Energy and Natural
Resources on the U.S.-Mexican Maritime Boundary Treaty is one
that I have looked forward to for some time because I have
urged this committee to favorably report and my colleagues in
the Senate to ratify the treaty before we adjourn this fall.
Senator Helms has been very responsive in considering this. I
think that Senate ratification of the treaty is a timely one.
It is appropriate because, currently, our domestic energy
solution and heavy U.S. reliance on foreign oil imports is a
reality.
We now import more than 53 percent of our daily crude oil
consumption and that number is expected to rise to
approximately 60 percent in just a few years.
This situation I think leaves us very susceptible to future
supply disruptions and creates a great imbalance in payments
and foreign trade because of the tremendous outflow of U.S.
dollars to purchase foreign crude oil.
Further, I think it jeopardizes the national energy
security of our Nation.
It is rather interesting to reflect that in the 1973-1974
timeframe, when we were 34 to 37 percent dependent on imported
oil, we created the Strategic Petroleum Reserve out of
necessity, saying we simply had to do something and if we ever
got to 50 percent, why we would simply have to seek relief.
Well, we have exceeded 50 percent. We are starting to sell
off SPRO to meet budget obligations. It is pretty hard to
understand whether the right hand knows what the left hand is
doing, and, clearly, our Nation's energy policy needs revision.
But in any event, the Gulf of Mexico and my State of Alaska
particularly, and elsewhere in the U.S., have a tremendous
potential of untapped reserves of crude oil and national gas
that can be brought to market in an environmentally responsible
manner to fuel our Nation's economy and stem the tide.
Enactment of the Deep Water Royalty Relief Act in the last
Congress was put through by Senator Johnston and I. It had a
tremendous potential impact on oil and gas exploration and
development on the Federal Outer Continental Shelf, in the
Central and Western Gulf of Mexico, in water in depths of
2,000, 3,000, 4,000, and 5,000 feet or more. We have seen sales
in that area--they are now drilling in 3,000 feet--as the
technology advances.
As a consequence, oil and gas production in the Gulf is
expected to double. New jobs will be created in that area.
Substantial economic benefits will be realized, and I am very
pleased to see that the Gulf area certainly supports that level
of activity. The technology that is going along with it has
insured that the elements of risk have been reduced
dramatically.
Yet, as promising oil and gas tracts are purchased and
developed in the deep water areas of the Gulf of Mexico,
companies are moving closer and closer to that 200 nautical
mile international maritime boundary. Settling a permanent
boundary between the U.S. and Mexico in the Gulf will allow an
orderly acquisition and development of oil and gas leases along
the U.S. side of the international line to continue. It will
provide the framework for resolving potential issues in the
future concerning reservoirs that might straddle the
international line.
Finally, Mr. Chairman, establishment of a permanent
international maritime boundary will enable the U.S. and Mexico
to delimit an area in the Western Gulf, commonly referred to as
a ``donut'' hole. As the Lieutenant Governor knows, we have a
donut hole off Alaska that we share with Russia. The earlier
you are to determine where that line is, the better off you
will be.
In any event, the donut hole between the U.S. and Mexico is
the area which is believed now to contain significant oil and
gas resources. It lies outside each country's designated
waters, and we are hopeful that a resolution of the permanent
boundary will facilitate agreements over divisions in that area
that I think has such great promise.
Finally, Mr. Chairman and members of the committee, I am
not aware of any reason why this treaty should not be ratified.
From an energy perspective, which is where I come from, it is
important that the Senate act swiftly to ratify it so that the
great progress we are making in the Gulf can continue.
I would urge my colleagues to support the U.S.-Mexico
Maritime Boundary Treaty and I thank you for the opportunity. I
would be happy to respond to any questions.
[The prepared statement of Senator Murkowski follows:]
Prepared Statement of Senator Frank H. Murkowski
Mr. Chairman and Members of the Committee, I appreciate the
opportunity to present a few brief words from my perspective as
Chairman of the Committee on Energy and Natural Resources about the
U.S. - Mexico Maritime Boundary Treaty. I urge the Committee to
favorably report and my colleagues in the full Senate to ratify the
treaty before we adjourn this Fall.
Senate ratification of the treaty is timely and appropriate because
of our current domestic energy situation and heavy U.S. reliance on
foreign imports of oil. We now import more than 50 percent of our daily
crude oil needs, and that number is expected to rise to well above 60
percent in just a few short years. This situation leaves us susceptible
to future supply disruptions, and causes a great imbalance in payments
in foreign trade because of the tremendous out-flow of U.S. dollars to
purchase foreign crude oil.
In the Gulf of Mexico and my state of Alaska -- and elsewhere in
the U.S. -- we have tremendous untapped reserves of crude oil and
natural gas that can be brought to market in an environmentally
responsible manner to fuel our national economy and stem the tide of
imported crude oil.
Enactment of the Deep Water Royalty Relief Act in the last Congress
has had a tremendous positive impact on oil and gas exploration and
development of the federal Outer Continental Shelf in the Central and
Western Gulf of Mexico in water depths of two, three, four, five
thousand feet or more. Since enactment of that important legislation,
four lease sales in the deep water Gulf have brought $2.3 billion to
the U.S. Treasury. The last two lease sales alone have fetched more
than $1.2 billion in cash bonus bids. As a result, oil and gas
production in the Gulf is expected to double, new jobs will be created,
and substantial economic benefits will be realized.
Yet, as promising oil and gas tracts are purchased and developed in
the deep water areas of the Gulf of Mexico, companies are moving closer
and closer to the 200-nautical-mile international maritime boundary.
Great technological advances are making it possible to safely recover
oil and gas deposits that heretofore were thought to be unrecoverable
or were not even known to exist. Settling a permanent boundary between
the U.S. and Mexico in the Gulf will allow the orderly acquisition and
development of oil and gas leases along the U.S. side of the
international line to continue, and will provide the framework for
resolving potential issues in the future concerning reservoirs that
might straddle the international line.
In addition, Mr. Chairman, establishment of a permanent
international maritime boundary will enable the U.S. and Mexico to
delimit an area in the Western Gulf commonly referred to as the
``doughnut hole.'' This area, which also is believed to contain
significant oil and gas resources, lies outside of each country's
waters. We are hopeful that resolution of the permanent boundary will
facilitate agreement over division of that area of such great promise.
Mr. Chairman and Members of the Committee, I am not aware of any
reason why this treaty should not be ratified. From any energy
perspective, it is important that the Senate act swiftly to ratify it
so that the great progress we are making in the Gulf can continue. I
urge my colleagues to support the U.S. Mexico Maritime Boundary Treaty.
I thank the Chairman and the Members of the Committee.
Senator Hagel. First, on behalf of the committee, Mr.
Chairman, thank you for what you have done and your leadership
and involvement in both areas.
As you suggested, Chairman Helms has said that he wants to
move forward on both of these protocols quickly, and I assume
we can look forward to some dispatch as to how we will take
action in the full committee and then move it to the Senate
floor.
Mr. Chairman, last night, in reviewing the history of these
protocols, I noted back in some of the testimony in 1980, when
you may have been a member of this committee----
Senator Murkowski. I came in in 1980, but I really got
aboard in 1981. So I want to be careful here.
Senator Hagel. All right, and I appreciate your sense of
full disclosure here.
Senator Murkowski. I have learned.
Senator Hagel. That seems to be important in this town, or
maybe lack thereof--as may be more appropriate.
Senator Murkowski. To a point, yes.
Senator Hagel. I noted your former colleague and my friend
and former predecessor, United States Senator from the State of
Nebraska, the late Ed Zorinsky, I noted his involvement in much
of this debate with the now-distinguished chairman of this
committee, Mr. Helms.
So, as you know, this has been around for some time, as you
have noted in your testimony and your comments. We will move
with dispatch.
I want you to know that as well, Lieutenant Governor. We
will work hard to get it done.
If you have any additional thoughts or points to make,
please feel free to contact anyone on our committee--me,
Chairman Murkowski or Chairman Helms.
Lieutenant Governor Ulmer. Thank you.
Senator Hagel. Thank you. Thank you both very much.
Senator Murkowski. Thank you. I appreciate the opportunity.
I do remember Ed Zorinsky. I think his wife's name was Cici.
Senator Hagel. Yes.
Senator Murkowski. He was a fine representative from your
State, a great gentleman, and an outstanding Senator. We miss
him.
Senator Hagel. Thank you. I will pass that on. I keep in
touch with his family. So thank you.
Lieutenant Governor, thank you very much.
If I could, I would ask the next two witnesses to come
forward. I believe we have two witnesses from the
administration. We have Ms. West, whom I have introduced. Maybe
if I could keep this just a little more coordinated, I would
ask Director Clark to come up as well.
Ms. West, I understand you are winging your way somewhere.
Is that correct?
Ms. West. I am, yes.
Senator Hagel. Well, even if that is not correct, we
welcome you. We welcome Director Clark as well.
Ms. West, if you would like to offer your testimony, thank
you.
STATEMENT OF MARY BETH WEST, DEPUTY ASSISTANT SECRETARY OF
STATE FOR OCEANS, SCIENCE AND TECHNOLOGY, BUREAU OF OCEANS AND
INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC AFFAIRS
Ms. West. Thank you very much, Mr. Chairman. We thank you
for inviting us to testify today in support of the 1978 treaty
between the United States and Mexico establishing maritime
boundaries in the Gulf of Mexico and in the Pacific Ocean.
I have submitted written testimony for the record and I
will summarize that testimony in an oral statement today.
With me today is Bob Smith, who is a geographer and
maritime boundary expert in the Office of Oceans Affairs. He is
going to point out some of the boundaries for you, although I
apologize that the map here is a little hard to read. There are
maps attached to the testimony which I submitted.
This treaty delimits the maritime jurisdiction of the
United States and Mexico where the 200 Exclusive Economic Zones
of the 2 countries would otherwise overlap.
The potential for overlapping U.S.-Mexico maritime claims
became apparent in 1976 and 1977, when the United States
extended its fisheries jurisdiction to 200 nautical miles.
Mexico had established a 200 nautical mile Exclusive Economic
Zone in 1976.
The treaty establishing maritime boundaries between the
United States and Mexico was signed in 1978. Mexico ratified
the treaty in 1979, and the treaty was transmitted to the U.S
Senate for its advice and consent to ratification that same
year.
Mr. Mark Feldman, Deputy Legal Adviser for the State
Department, presented testimony before this committee on June
30, 1980. The views expressed by the administration in that
statement are still applicable today, and I have submitted a
copy of that statement for the record.
The United States 200 mile fishery jurisdiction claim,
which was made in accordance with the Fishery Conservation and
Management Act of 1976 and which later became an Exclusive
Economic Zone in 1983, encompassed an ocean area of
approximately 2.8 million square nautical miles. This
legislation created about 30 situations where boundaries would
need to be established where our opposite and adjacent
neighbors were less than 400 miles from our coasts. Mexico was
one of these.
The U.S. and Mexico, through an exchange of notes,
established provisional maritime boundaries on November 24,
1976, and those lines were confirmed in the treaty signed on
May 4, 1978. The treaty established boundary segments off our
Pacific Coast and in the Gulf of Mexico. The Pacific Coast
boundary is shown here (indicating) on the chart. It extends
slightly to the northwest and then takes a turn to the south;
and then it extends to the southwest.
As for the boundary in the Gulf of Mexico, on this boundary
you will see that there are two segments. There is a segment
running from the west into the Gulf. There is then a gap in
that area which I will refer to as ``the gap.'' That is what
Senator Murkowski referred to as the ``donut hole.'' Then there
is another segment in the middle of the Gulf.
The gap is approximately 129 nautical miles in length. It
is where the coastlines of the U.S. and Mexico are more than
400 miles apart.
This area beyond 200 miles was not delimited in 1978 for
two reasons. First is because the outer limit of the
Continental Shelf was a matter under negotiation at that time
in the Conference on the Law of the Sea. Second is because the
water depths in this gap made the area not commercially
accessible at the time.
We have this area under active review and we intend to
pursue establishment of a Continental Shelf Boundary in this
area once the 1978 treaty is in force.
The boundaries established by the 1978 treaty with Mexico
were developed using an equidistant methodology. This involved
calculation of a line that was equally distant from the
coastlines of both countries, including islands. Giving effect
to islands off the coast is in the general U.S. interest and
has been our consistent policy and practice.
Following the 1980 hearings, this committee voted
unanimously in favor of the treaty. Prior to a full Senate
vote, however, one Senator asked that a further resource study
be conducted for the Gulf of Mexico. This study was completed
in early 1981 and did not change the view of the administration
that the boundary treaty was a fair and balanced agreement that
serves the United States' strategic and resource interests.
However, because the depth in the waters of the area did
not admit of exploration and production in the early 1980's,
the interests in pressing for the treaty at that point were not
immediate. Because our boundary experts were deeply involved in
other pressing boundary issues, including the Gulf of Maine
arbitration with Canada, the treaty with Mexico was not moved
forward at that time.
Now, Mr. Chairman, you may ask why we hope that the treaty
will be acted upon now, after almost 20 years. In the early
1980's, our offshore oil and gas industry focused on areas
relatively near the shore. This situation has changed
significantly in recent years. Not only are the oil and gas
companies interested in leasing blocks adjacent to the 1978
boundary--and, in fact, such leases are on the books now--but
interest also extends to the area beyond 200 miles in the
western Gulf in the gap.
Thus, now is a time when for commercial reasons industry
needs the certainty provided by this boundary, and we
understand that the oil and gas industry fully supports its
ratification.
Mr. Chairman, for these reasons we feel the time is right
to have this important treaty enter into force and we ask that
this committee and the full Senate act favorably on the treaty.
Thank you very much. I would be pleased to answer
questions.
[The prepared statement of Ms. West follows:]
Prepared Statement of Mary Beth West
Mr. Chairman and members of the Committee:
Thank you for inviting me to testify today in support of the 1978
Treaty between the United States and Mexico establishing maritime
boundaries in the Gulf of Mexico and in the Pacific Ocean.
This treaty delimits the maritime jurisdiction of the United States
and Mexico where the 200 mile exclusive economic zones of the two
countries would otherwise overlap. The potential for overlapping U.S.-
Mexico maritime claims became apparent in 1976 when the United States
extended its jurisdiction over fisheries to 200 nautical miles; Mexico
had established a 200 nautical mile exclusive economic zone in 1976.
The treaty establishing maritime boundaries between the United
States and Mexico was signed in 1978. Mexico ratified the treaty in
1979, and the treaty was transmitted to the U.S. Senate for its advice
and consent to ratification that same year. Mr. Mark Feldman, Deputy
Legal Adviser for the State Department, presented testimony before this
committee on June 30, 1980. The views expressed by the administration
in that statement are still applicable today, and I would like to
submit a copy of that statement for the record.
The United States 200-mile fishery jurisdiction claim, which was
made in accordance with the Fishery Conservation and Management Act of
1976, encompassed an ocean area of approximately 2.8 million square
nautical miles. This legislation created about 30 situations where
boundaries would need to be established where our opposite and adjacent
neighbors were less than 400 miles from our coasts. Our 200-mile zone
(which became an exclusive economic zone in 1983) overlapped the
potential zones of Canada (off the Atlantic, Pacific, and Arctic
coasts), of the former Soviet Union (in the North Pacific Ocean, Bering
Sea, and Arctic Ocean), of The Bahamas and Cuba, off the coasts of the
southeastern United States, and of Mexico in the Gulf of Mexico and
Pacific Ocean.
For the territories and possessions of the United States, the 200-
mile claim raised maritime boundary questions with the Dominican
Republic, Venezuela, the Netherlands, and the United Kingdom in the
Caribbean. In the Pacific, 200-mile zones drawn from the Northern
Marianas, Guam, American Samoa, and other territories created potential
maritime boundary issues with Japan, Tonga, Samoa, Niue, Cook Islands,
New Zealand (on behalf of Tokelau), Kiribati, the Federated States of
Micronesia, and the Marshall Islands.
Mr. Chairman, when the administration testified in 1980, we
reviewed the background of the United States policy as it pertained to
the establishment of maritime boundaries with its neighbors. I will not
reiterate all this information at this time, but I would be more than
happy to answer any questions you and your committee may have on our
general policy.
The U.S. and Mexico through an Exchange of Notes established
provisional maritime boundaries on November 24, 1976, and those lines
were confirmed in the treaty signed on May 4, 1978. The treaty
established boundary segments off our Pacific coast and in the Gulf of
Mexico. In the western Gulf of Mexico there is a gap between the
boundary lines, approximately 129 nautical miles in length, where the
coastlines of the U.S. and Mexico are more than 400 miles apart. This
area beyond 200 miles was not delimited in the 1978 treaty for two
reasons: first, because, the outer limit of the Continental Shelf was a
matter under negotiation at the time in the conference on the law of
the sea, and second, because the water depths in this gap made the area
not commercially accessible at the time. We have this area under active
review and intend to pursue establishment of a Continental Shelf
boundary in this area once the 1978 treaty is in force.
The boundaries established by the 1978 treaty with Mexico were
developed using the equidistant methodology. This involved calculation
of a line that was equally distant from the coastlines of both
countries, including islands. Giving effect to islands off the U.S.
coast is in the general U.S. interest and has been our consistent
policy and practice.
Following the 1980 hearings, this Committee voted unanimously in
favor of the treaty. Prior to a full Senate vote, however, one senator
asked that a further resource study be conducted for the Gulf of
Mexico. This study was completed in early 1981 and did not change the
view of the administration that the 1978 boundary treaty was a fair and
balanced agreement that serves United States strategic and resource
interests. However, because the depth of the waters in the area did not
admit of exploitation in the early 1980s, the interests in pressing the
treaty at that point were not immediate; and, because our boundary
experts were deeply involved in other pressing boundary issues,
including the Gulf of Maine Arbitration with Canada, the treaty with
Mexico was not moved forward at that time.
Mr. Chairman, you may ask why we hope the treaty will be acted upon
now, after almost 20 years. In the early 1980's our offshore oil and
gas industry focused on areas relatively near the shore. This situation
has changed significantly in recent years. Not only are the oil and gas
companies interested in leasing blocks adjacent to the 1978 boundary,
but interest extends to the area beyond 200 miles in the western Gulf
of Mexico - in the gap. Thus, now is a time when, for commercial
reasons, industry needs the certainty provided by a boundary agreement,
and, we understand that the U.S. oil and gas industry supports
ratification.
Mr. Chairman, for these reasons we feel the time is right to have
this important treaty enter into force, and I ask that this Committee,
and the full Senate, act favorably on the treaty.
Thank you, Mr. Chairman.
Prepared Statement of Mark B. Feldman, Deputy Legal Adviser, Department
of State before the Senate Committee on Foreign Relations June 30, 1980
Dear Mr. Chairman.
I welcome the opportunity to testify today in support of three
significant treaties that establish maritime boundaries between the
United States and Mexico, between the United States and Cuba, and
between the United States and Venezuela off the coasts of Puerto Rico
and the U.S. Virgin Islands.
These treaties are necessary to delimit the United States
Continental Shelf in these areas and to resolve overlapping claims of
jurisdiction arising out of the establishment of a 200 nautical mile
fishery conservation zone off the coasts of the United States in
accordance with the Fishery Conservation and Management Act of 1976 and
the establishment of 200 nautical mile zones by neighboring countries.
The U.S. Fishery Conservation Zone created by act of Congress as of
March 1, 1977, encompasses approximately 2.8 million square nautical
miles of waters. Together with reciprocal actions by other States, this
act created more than thirty new boundaries between areas of United
States fisheries jurisdiction and those of other nations. Such boundary
questions arise with neighboring states adjacent to the United States
and with opposite states wherever the coasts of the two countries are
less than 400 nautical miles apart,
Thus, the 200 mile zone off the coasts of the Continental United
States abuts that of Canada in the Atlantic Ocean, in the Beaufort Sea,
and in two places on the Pacific Coast. It abuts the 200 mile zone of
the Soviet Union in the Bering and Chukchi Seas, and the North Pacific
Ocean, where the maritime boundary is determined by the 1867 convention
with Russia in connection with the purchase of Alaska, and it borders
the Mexican 200 mile zone in the Pacific Ocean and in the Gulf of
Mexico. It also borders on the 200 mile zone of Cuba and the Bahamas
off the coasts of the Southeastern United States. Similar boundary
situations arise in the Caribbean between Puerto Rico and the U.S.
Virgin Islands and the Dominican Republic, Venezuela, and a number of
islands including the British Virgin Islands. In the Pacific our 200
mile zone off American Samoa, Guam and other island territories creates
maritime boundaries with Tonga, Western Samoa, the Cook Islands, the
Trust Territory, and several other islands including the new country of
Kiribati.
Most of these boundaries remain to be established by agreement,
although the United States has exercised sovereign rights over the
resources of the Continental Shelf since the, Truman Proclamation of
1945, the need to define the boundaries of our Continental Shelf with
other nations has only recently become a matter of practical concern as
the technical ability to exploit the hydrocarbon resources of the
Continental shelf has developed.
The problem of maritime boundary delimitation became urgent,
however, with the extension of fisheries jurisdiction out to 200 miles.
Precise limits are needed for purposes of fisheries management and law
enforcement, and that need forced the issue of international maritime
boundaries to the fore.
In anticipation of legislative action, the State Department
established in 1975 an interagency group to develop a U.S. maritime
boundary position. I chaired that group for the Department's legal
adviser, and it included representatives of other interested bureaus in
the Department and representatives of the Departments of the Interior,
Commerce, Defense, Energy and Transportation (Coast Guard). The task of
this group was to identify in each situation the maritime boundary that
would maximize United States resource and security interests consistent
with international law and friendly relations with our neighbors.
Recognizing that it would not be possible to conclude boundary
agreements with most of our neighbors before establishment of the
Fishery conservation Zone on March 1, 1977, the United States published
the provisional limits of that zone on March 7, 1977, ``pending the
establishment of permanent maritime boundaries by mutual agreement.''
Subsequently, we have pursued negotiations with several nations and
have concluded the three treaties before the committee today; the
treaty with Canada, submitting the maritime boundary in the Gulf of
Maine area to international adjudication, which the committee has under
review, and a treaty with the Cook Islands which was signed on June 11
and which will be transmitted to the Senate in due course for advice
and consent to ratification. Other boundary negotiations are being
undertaken and we intend to work to achieve agreements on all U.S.
maritime boundaries as soon as possible.
With this background, I would like to turn to the three pending
treaties with our Latin American neighbors. These are the first
treaties establishing Continental Shelf and 200 nautical mile fisheries
boundaries to be signed by the United States and submitted to the
Senate. They are important treaties that demonstrate that the United
States can reach peaceful agreements with our neighbors on sensitive
issues of sovereign rights and jurisdiction. We hope this committee
will report them favorably and that the Senate will advise and consent
to their ratification at an early date.
Mexico:
I would like to consider first the treaty on maritime boundaries
between the United States of America and the United Mexican States,
signed at Mexico City, May 1978. The United States and Mexico first
agreed upon maritime boundaries in 1970 in the treaty to resolve
pending boundary differences and maintain the Rio Grande and the
Colorado River as the international boundary between the United States
of America and the United Mexican States. The 1970 treaty, in addition
to dealing with the land frontier, established a maritime boundary in
the Pacific Ocean and the Gulf of Mexico to a distance of 12 nautical
miles from the coast. The establishment of 200 nautical mile zones by
our two countries made it necessary to reach agreement on the seaward
extension of those boundaries out to 200 nautical miles. The two
governments concluded an exchange of notes establishing provisional
maritime boundaries on November 24, 1976, and that line was confirmed
in the treaty signed on May 4, 1978.
The 200 mile zones established from the coasts of the United States
and Mexico overlap in three areas: off the Pacific Coast and in the
Western Gulf of Mexico where the U.S. and Mexican coasts are adjacent,
and in the Eastern Gulf of Mexico where Mexico's 200 mile zone
developed from certain islands and the Yucatan Peninsula opposite the
Louisiana Coast overlaps the U.S. 200 mile zone.
In the Central Gulf of Mexico there is a reach of waters
approximately 129 nautical miles in length where there is no fisheries
boundary between the two countries. In this area the coasts of the two
countries opposite each other are more than 400 nautical miles apart,
so our fisheries zones do not overlap. We have not drawn a Continental
Shelf boundary in this area for the time being because the limit of the
outer edge of the Continental margin is presently a matter under active
negotiation at the Third United Nations Conference on the Law of The
Sea. In respect of this process and in view of the fact that water
depths in this area do not readily admit of exploitation at the present
time, it was decided that there is no immediate need to determine a
boundary in this area. We intend to keep this matter under active
review and at such time as may be appropriate establish a maritime
boundary with Mexico in this area.
Mr. Chairman, I am aware that one scholar has questioned the use of
islands as base points for the boundary line in the Gulf of Mexico.
This practice follows the precedent of the 1970 treaty, but the
argument is made that the agreement gives Mexico more area in the deep
waters of the East Central Gulf than should be the case. In considering
this issue, the committee should note that the use of islands as base
points gives the United States substantial areas in the Pacific off the
Coast of California. These Pacific areas have hydrocarbon potential and
are also of considerable interest to U.S. fishermen. There may also be
hydrocarbons in the seabed under the waters of the East Central Gulf,
but these areas are under deep waters and will not be exploited for
some years. There are not significant fisheries in that area.
I can assure, Mr. Chairman, that before making this agreement the
Department of State solicited the best available expert advice
including scientists at the U.S. Geological Survey and at Woods Hole
Oceanographic Institute and the U.S. fishing industry. We contacted
interested Members of Congress at an early stage, and the agreement was
and is supported by all interested agencies of the United States
Government.
Moreover, the approach followed in the treaty with Mexico is
consistent with the general U.S. interest in giving full effect to
islands off the U.S. coast. The boundary agreement with Cuba, for
example, gives full effect to the Florida Keys. The United States has
other important island interests including the Alexander Archipelago in
Southeastern Alaska which affects the maritime boundary with Canada in
and seaward of Dixon Entrance.
Finally, this agreement is a further example of the efforts of the
United States and Mexico to work together as equals to solve problems
on the basis of mutual interest. Ratification of the agreement will
strengthen relations between the United States and Mexico by settling
an issue which could become contentious if left unresolved.
Cuba:
The maritime boundary agreement between the United States of
America and the Republic of Cuba signed at Washington December 16,
1977, establishes the boundary in the straits of Florida and the
Eastern Gulf of Mexico, it begins in the west at a point 200 nautical
miles from each coast and continues through the Eastern Gulf and
Straits of Florida to a potential trijunction point with the Bahamas.
At its closest point the boundary is approximately 38 nautical miles
from the U.S. coast.
As you will recall, in the spring of 1977 the United States resumed
direct, formal discussions with the Cuban Government for the first time
in many years. The Maritime Boundary Agreement was one of the first
items on the agenda for those talks because both countries recognized
the need to avoid incidents over that issue. At that time discussions
were held in New York and Havana, and on April 27, 1977, the parties
concluded a modus vivendi establishing a line which served as the
boundary for 1977. Following further negotiations in 1977, a boundary
treaty was signed in Washington on December 16, 1977.
That agreement provided for provisional application of the boundary
line for two years from January 1, 1978. When that period expired on
January 1, 1980, the parties by exchange of notes extended provisional
application of the boundary line for another 24 months. The
establishment of the boundary with Cuba proved to be a complex
technical task due to the difference in charts utilized by the two
countries and other technical issues, but the negotiations were
conducted on a businesslike basis that could be a model for how
relations between our two countries can be conducted. Although
relations with Cuba are seriously strained at the present time, both
governments see advantage in concluding a permanent understanding as to
our maritime boundary. Ratification of this treaty will remove a
potential problem in U.S. relations with Cuba and will therefore
contribute to the maintenance of peace and security in the area.
Venezuela:
The Maritime Boundary Treaty between the United States of America
and the Republic of Venezuela, signed at Caracas on March 28, 1978,
establishes the maritime boundary off the coasts of Puerto Rico and the
U.S. Virgin Islands in the Caribbean sea. This line is based on the
same general principles as the agreements with Mexico and Cuba, and
follows the line published by the U.S. when the U.S. Fishery
Conservation Zone was established in 1977. The Caribbean Regional
Fishery Management Council and the authorities in the U.S. Virgin
Islands and Puerto Rico were consulted prior to the establishment of
the U.S. boundary position in this area and concurred in this line.
The three treaties have discussed this morning all follow a similar
format. Each contains the geographic coordinates of the boundary and
technical information concerning the establishment of the boundary.
Each contains an article which describes the legal effect of the
boundary: that neither country shall claim nor exercise for any purpose
sovereign rights or jurisdiction over the waters or seabed and subsoil
on the other country's side of the boundary line. Each treaty also
provides that establishment of the boundary does not affect or
prejudice either country's position concerning the maritime
jurisdiction that may be claimed by the other country. This disclaimer
was deemed necessary as many of these countries assert claims of
jurisdiction over the high seas not recognized by the United States.
Mr. Chairman, as I noted previously, the U.S. position in the
negotiation of these treaties was adopted after a full interagency
review of legal questions and resource considerations and consultation
with interested constituents and Members of Congress, we believe all
three treaties are advantageous to the United States and fair to the
other party. Ratification of these treaties will resolve issues with
neighboring states which could become contentious and difficult if they
are left unresolved.
Before I conclude my remarks, I would like to note that much of the
work required to establish our boundary position, in general and in
these cases, was carried through by Dr. Robert D. Hodgson who passed
away last December. Dr. Hodgson was geographer of the Department of
State for ten years and a world renowned expert in this field. He was a
dedicated American, respected everywhere for his professional integrity
as well as his expertise. The United States owes Dr. Hodgson a
considerable debt of gratitude for his contribution to the Law of the
Sea. The new frontiers we are creating are in significant measure a
memorial to his work.
Senator Hagel. Ms. West, thank you.
Could you tell me what your timeframe is because I don't
want to hold you up. What time do you have to leave?
Ms. West. I need to leave a little after 3. So I have some
time.
Senator Hagel. Oh, you will be out of here far sooner than
that.
If it is OK, Director Clark, I would address a couple of
questions to Ms. West and then would ask you to testify. Thank
you very much.
Going to your map and some of the comments that you made in
your testimony, what is the oil potential now in this area?
Ms. West. The area in the gap is a deep water area. It
ranges around 10,000 feet, 10,000 to 12,000 feet. Industry now
can explore in waters of approximately that depth and can
exploit in waters of approximately 5,000 feet.
As I indicated, there are now leases on the line in the
western part of the Gulf and there is actual hydrocarbon
production within probably 50 to 60 miles of the line. So
industry, those who have leases on the line, because of the
large investment they need to make, need the certainty of
knowing that this, in fact, is the boundary. Those who are
interested in having leases in the gap are anxious to have us
negotiate the delimitation of the boundary in the gap.
Senator Hagel. When you talk about the western part, do you
mean the Mexican part of this?
Ms. West. The line over on the western side there
(indicating).
Senator Hagel. Thank you.
There was some question during the debate when this
committee addressed it back in 1980 and in subsequent years
about the fisheries on the Pacific side and the Gulf side. I
think what I was told is that in 1980, there was a significant
fishery area in four different areas, I think on the Pacific
side, and none in the Gulf. Has that changed?
Ms. West. There are significant fisheries actually in both
areas. There is a significant tuna fishery off the Pacific
coast in the area of the islands there. There are also
significant fisheries in the Gulf, and those fisheries have
basically been operating in accordance with the provisional
boundary for almost 20 years now.
Senator Hagel. So the fishing is good?
Ms. West. Yes,
Senator Hagel. In both areas?
Ms. West. Yes. There are significant fisheries in both
areas.
Senator Hagel. Thank you.
What would be your assessment of the political impact, if
any, of this dragging on for so long without any official
action by the U.S., the political impact on our country and on
our relationships with Mexico?
Ms. West. As we all know, treaties often are ratified
because of public interest, that is, are concluded and ratified
because of public interest in those treaties.
I think that public interest in this treaty has risen over
the years as the commercial interest in the areas affected by
the treaty has increased. I think now is certainly a time when
the industry is interested in having the treaty go through
because there is a very practical reason why they need it now.
Senator Hagel. Obviously Chairman Murkowski pointed to that
rather effectively and has a rather intense interest in this.
Ms. West. Yes.
Senator Hagel. The methodology in determining the
boundaries, how did you figure that out?
Ms. West. When we originally planned to extend our
fisheries jurisdiction back in the mid-1970's, a group was set
up to study the methods to conclude boundaries and which
methods would be in the U.S. interest.
I think Mr. Feldman, who testified in 1980, sat on that
group or chaired the group. The boundaries were basically
established based on the principles of international law
applied in a manner deemed to be in the overall U.S. interest.
The establishment of equidistant lines is a standard method
often used to establish boundaries, and it was determined to be
in our overall interest in this case to use that methodology,
including islands. That was the method used in this case.
Senator Hagel. Ms. West, thank you very much. I would say
that if you would like to leave, you are certainly welcome to
leave. We will hear Director Clark's testimony and talk a
little bit about her area. Then we have a panel behind the two
of you.
So we would very much welcome you to day, but I know you
have other things to do. So you do what you need to do.
Ms. West. Thank you very much. I appreciate your
accommodation to my schedule, too. Thank you.
Senator Hagel. Thank you. Director Clark.
STATEMENT OF JAMIE CLARK, DIRECTOR OF FISH AND WILDLIFE
SERVICE, DEPARTMENT OF INTERIOR
Ms. Clark. Thank you and good afternoon, Mr. Chairman.
Thank you for the opportunity to testify today concerning the
Protocols to amend the 1916 and the 1936 Migratory Bird
Conventions with Canada and Mexico. I will summarize my
statement today and my entire statement I ask be included in
the record.
I would first like to take this opportunity to thank all
the members of the negotiating team for their extraordinary
work, and that it was, and to offer special thanks to the State
Department for their work during the negotiation and
transmission of these amendments to the Senate.
Mr. Chairman, the amendments before you today will correct
an 80 year old problem involving the use of migratory birds by
native people of northern Canada and Alaska. These proposals
will buildupon a successful conservation record for migratory
birds and they will insure that this resource is managed
equitably for all across political boundaries.
I strongly urge you to recommend ratification of these
protocols to the full Senate.
The U.S.-Canada Convention was the first of four important
bilateral treaties for migratory bird conservation across
international boundaries. It established the Federal
Government's authority to manage migratory birds and it was
driven by concern over the unlimited hunting of migratory birds
and the commercial exploitation of this important national
resource.
This partnership with Canada began a program to manage
waterfowl that is unique in the annals of world wildlife
conservation. Subsequent migratory bird treaties between the
U.S. and Mexico in 1936, the U.S. and Japan in 1972, and the
U.S. and Russia in 1976 continued this conservation tradition.
While these treaties have been effective in protecting
migratory bird populations, the treaties with Canada and Mexico
did not fully acknowledge the customs and traditions of native
people who depend on migratory birds in the spring for
subsistence. The bilateral treaties with Japan and Russia
recognize the legitimate needs of indigenous people. However,
implementation of the provisions in these treaties cannot take
place until amendments to the treaties with Canada and Mexico
are ratified.
The convention with Canada established a closed season,
from March 10 to September 1, with limited exceptions. The
treaty with Mexico has similar restrictions for duck hunting.
These provisions have long been in conflict with the needs of
the native people of northern Canada and Alaska who have
traditionally harvested birds in the spring and summer. Over
the years, both countries have struggled with the
inconsistencies between the treaties and the actual reality of
subsistence hunting in the far north.
The Canadian Constitution now recognizes the rights of
Canadian aboriginal people to a legal harvest while the treaty
prohibits this harvest, creating a conflict that could lead to
abrogation of the treaty.
Ratification of these protocols would mean that, for the
first time in history, the traditional hunting practices of
these indigenous people will be recognized. The changes allow
these people, stewards to some of the world's most important
waterfowl habitat, to fully participate in the management of
migratory bird resources. This will enhance our ability to
gather information on the level and pattern of their harvest
and data collection and exchange among the United States,
Canada, and native people will be increased, expanding the
scientific base for migratory bird management.
The subsistence harvest represents only a small portion of
the total continental harvest.
The protocols will allow indigenous inhabitants in Alaska
to legally harvest migratory birds in designated rural
subsistence hunting areas. The Canada Protocol calls for the
establishment of management bodies, including native, Federal,
and State of Alaska representatives as equals. These management
bodies will develop recommendations to the Flyaway Councils and
the U.S. Fish and Wildlife Service to shape the regulations
governing spring harvest.
Implementation of the amended convention would rely on the
current regulatory framework to monitor harvests, allow
participation, protect species, and enforce our regulations.
Management efforts would continue to be guided by obligations
to share harvests among all users. As with the fall season,
there would be no unregulated season in the spring.
Any restriction on harvest levels necessary for
conservation would be shared equally between users in Alaska
and users in other States. The protocol is not intended to
create a preference in favor of any group of users in the
United States.
In addition to the amendments for spring hunting, the
treaty will be modernized in a number of notable areas. The
amended Article II provides conservation principles important
to the management of this resource. Article III provides for
greater consultation among the responsible agencies and
suggests that countries resolve identified problems in a manner
consistent with the principles and, if necessary, conclude
special arrangements to conserve and protect species of
concern.
An example of where this might assist and be very important
in conservation is in the over-abundance of snow geese that has
caused significant habitat destruction and impacts on other
wildlife species. Changes in Articles IV and V are intended to
eliminate outdated portions of the treaty and make them
consistent with other bilateral treaties.
The protocols represent a major step in furthering the
conservation of migratory birds and correct a problem that has
troubled us for many years. Properly implemented, the protocols
will protect migratory bird populations and provide important
harvest information for us to manage in the future.
They will also insure that the interests of
conservationists, sport hunters, indigenous people, and all
others who value this magnificent resource are met. I urge
speedy ratification of these protocols.
Thank you, Mr. Chairman. I would be happy to answer any
questions you might have.
[The prepared statement of Ms. Clark follows:]
Prepared Statement of Jamie Clark
Thank you for the opportunity to testify before you today regarding
the Protocols to amend the 1916 and 1936 Migratory Bird Conventions
with Canada and Mexico. The proposals before you today will correct a
problem that has existed for more than 80 years involving the
continental management of migratory birds and the use of these birds by
Aboriginal people of northern Canada and Indigenous people of Alaska.
We urge you to recommend ratification of this Protocol to the full
Senate.
The 1916 Convention between the United Kingdom and the United
States of America for the Protection of Migratory Birds in Canada and
United States (hereafter referred to as the U.S. Canada Convention) was
the first of four important bilateral treaties for migratory bird
conservation across international boundaries. It established the
Federal Government's authority to manage migratory birds, and it was
driven by concern over the unlimited hunting of migratory birds and the
commercial exploitation of this important natural resource. This
partnership with Canada began a pro gram to manage waterfowl that is
unique in the annals of world wildlife conservation. Subsequent
migratory bird treaties between the U.S. and Mexico (1936), the U.S.
and Japan (1972) and the U.S. and Russia (1976) continued this
conservation tradition.
While these treaties have been effective in protecting migratory
bird populations, the 1916 and 1936 treaties with Canada and Mexico
have done so without fully acknowledging the customs and traditions of
Native people who depend on migratory birds in the spring for
subsistence. The more recent bilateral treaties with Japan and Russia
do recognize the legitimate subsistence needs of Indigenous people, but
the courts in the United States have interpreted the Migratory Bird
Treaty Act, which implements the four migratory bird treaties, to
require the federal government to follow the most restrictive
provisions of the treaties. As a result, the federal government has not
been able to implement the subsistence hunting provisions of the Japan
and Russia treaties and will not be able to do so until amendments to
the treaties with Canada and Mexico are ratified. Today, we ask your
support in building upon the extraordinary conservation record made
possible by these treaties by recommending to the full Senate that
these two Protocols be ratified.
The 1916 Convention with Canada established a ``closed season''
from March 10 to September 1 during which no hunting is permitted
except in extremely limited circumstances. The 1936 Convention with
Mexico established a similar March 10 to September 1 ``closed season''
on duck hunting. Over the years, both countries have struggled with the
inconsistencies between the treaties and the reality of migratory
waterfowl hunting in the far north. Native people have continued their
traditional hunt of migratory birds in the spring and summer and
neither government has rigidly enforced the closed season given the
realities of life in the arctic and subarctic regions. As a result,
discretionary non-enforcement of the prohibition on migratory waterfowl
hunting has led to increased conflicts over migratory bird conservation
in Alaska. Urban hunters complain of favoritism and disrespect for the
law, and Native hunters feel stigmatized by a law which makes their
traditional spring and summer hunts illegal. In addition, waterfowl
managers have been handicapped by their inability to collect accurate
spring harvest information needed to manage bird populations properly.
Thus, the very foundation of the treaties has been threatened and we
sought a way to legally correct the deficiencies of the original
Migratory Bird Conventions.
The 1916 Convention with Canada also needs to be amended to take
into account recent changes in Canadian law and judicial determinations
which guarantee a legal harvest. If the Protocol is not ratified by the
U.S., Canada may have to abrogate the Treaty. The Canadian constitution
guarantees a legal harvest for Canadian Aboriginal people, but the
Convention as currently written prohibits this harvest. Abrogation
would effectively end 80 years of cooperation between the governments
of Canada and the United States in managing these migratory birds.
Failure to correct this oversight now will also perpetuate illegal
hunting in Alaska, incomplete harvest information, and hard feelings
among waterfowl hunters caused by the appearance of unequal
enforcement.
To begin the amendment process to the Treaties, the governments
sought extensive public comment and review in order to develop their
respective negotiating positions. In addition, the International
Association of Fish and Wildlife Agencies provided a forum for resource
conservation managers, sport hunters and Native people from Alaska and
Canada to fully address the concerns and impacts of amending our treaty
with Canada. Following these stake holder consultations, the U.S.-
Canada Protocol was successfully negotiated by the U.S. negotiation
team, lead by former Service Director Mollie Beattie, and made up of
representatives of Alaska Natives, state government agencies, the
International Association of Fish and Wildlife Agencies, sport hunters
from the lower 48 and conservation groups in addition to personnel from
the Fish and Wildlife Service and the Department of State. The Protocol
was signed December 14, 1995. Similar efforts to amend the Mexico
treaty to allow a spring harvest of ducks in Alaska and make it
consistent with the Canada Protocol culminated in the signing of a
Protocol on May 5, 1997. Both amendments enjoy wide support.
The subsistence harvest in Alaska and Canada is a relatively small
portion of the total harvest of migratory birds. Estimates for rural
Alaskan communities indicate that 56 percent of bird harvest occurs
during the spring to mid-summer period. The number of subsistence
hunters in Alaska is estimated to be 10,000-13,000. It is estimated
that a little more than 360,000 birds were harvested annually during
all seasons for subsistence use in rural Alaska communities during the
mid-1980's. Alaska's subsistence harvest represents about 3 percent of
all waterfowl shot in North America. Canada's subsistence harvest
represents about 8% and 15% of the total annual North American harvests
for ducks and geese respectively. Clearly, there is room in the harvest
of this migratory wildlife resource for subsistence hunting consistent
with sound management.
Ratification of the Protocols will promote more effective
management by creating a basis for management and regulation of the
spring subsistence harvest throughout Alaska and in Canada. Spring
harvest would be acknowledged as a legitimate activity and incorporated
into the continental management scheme. The Protocols will allow
indigenous inhabitants in Alaska to legally harvest migratory birds
only in designated rural subsistence hunting areas. ``Indigenous
inhabitant'' refers primarily to Alaska Natives who are permanent
residents of villages where subsistence hunting of migratory birds is
customary and traditional. The term also includes permanent resident
non-natives of these villages who have legitimate subsistence hunting
needs.
The Protocols will permit birds to be taken only for food. The
Protocols do provide for the sale, in strictly limited situations, of
authentic articles of handicraft using non-edible by-products of birds.
The Canada Protocol calls for the establishment of management
bodies to ensure a meaningful role for Indigenous inhabitants of Alaska
in the conservation of migratory birds. These management bodies will
include Native, Federal, and State of Alaska representatives as equals,
and will develop recommendations to be submitted to the Flyway Councils
and the Fish and Wildlife Service. The Protocol provides a mechanism
for allowing management bodies to shape the face of the regulations for
spring harvest. The intent is to bring practice into conformance with
the way migratory birds are regulated at other times of the year. It is
our intent that management and regulation of the fall harvest of birds
will continue to operate under the Flyway Council System currently in
place for sport harvest.
With the amended treaties, a traditional subsistence hunt can be
managed so as not to cause significant increases in the take of species
of birds relative to their continental population sizes. Waterfowl
numbers will continue to experience annual fluctuations in response to
changing conditions. Controlling harvest by regulations is the only
practical way waterfowl managers have found to compensate for these
population changes.
The ratification of these Protocols will improve conservation of
the migratory bird resource by recognizing and legitimizing the
traditional subsistence uses of migratory birds and by bringing
subsistence hunters into the management scheme. The changes will allow
Native people to fully participate in the management of the migratory
bird resource and will enhance our information on the level and pattern
of the harvest. Complete information on the harvest will help set
standards for migratory birds and continue the partnership of
continental management of the resource shared by many people. Under the
amendments, exchanges and data collection among the United States,
Canada, and Native people will be increased, expanding the scientific
base for migratory bird management.
The inclusion of subsistence hunters in management will lead to
improved cooperation and to improved understanding of subsistence
harvest. Implementation of the amended Conventions will rely upon the
regulatory framework currently available to monitor harvest, control
participation, protect species and enforce regulations. Management
efforts would continue to be guided by obligations to share harvests
between countries but would probably attach greater importance to
meeting subsistence requirements than in the past. As with the fall
season, there would be no open season in the spring without
regulations. Any restriction in harvest levels necessary for
conservation will be shared equally between users in Alaska and users
in other states. The Protocol is not intended to create a preference in
favor of any group of users in the United States.
The point I want to emphasize is, all user groups need to be a part
of the management scheme, for the exchange of information; for
protection of populations from over harvest; and for the setting of
equitable opportunities. They must share in the resource's use as well.
The reality of subsistence harvest in the spring and summer, not only
in Alaska but Canada as well, adds to the complexity of management in
North America. It is important that all users are brought into the
system of cooperative effort we have forged among the provinces,
states, and federal agencies to improve conservation programs.
In addition to the amendments for spring hunting, the Protocol
modernizes the U.S.-Canadian Migratory Bird Treaty in a number of
notable areas. The amended Article 11 provides conservation principles
important to the management of this resource. Article III provides for
greater consultation among the responsible agencies and suggests the
countries resolve identified problems in a manner consistent with the
principles and, if necessary, conclude special arrangements to conserve
and protect species of concern. An example of where this might assist
in conservation is the overabundance of snow geese that has caused
significant habitat destruction and impacts on other wildlife species.
Changes in Article IV and V are intended to eliminate outdated portions
of the treaty and make them consistent with the other bilateral
treaties.
In summary, I urge speedy ratification of these Protocols so that
we are able to broaden the continental management framework to include
subsistence harvest of migratory birds in the spring and summer. The
Protocols will recognize the validity of Indigenous subsistence
harvest, manage that harvest in accordance with sound conservation
principles, and encourage indigenous inhabitants to participate in
management.
Thank you for the opportunity to address the Committee.
Senator Hagel. Director Clark, thank you very much.
I have a couple of questions on the protocol. It is my
understanding that, obviously, it will have some effects, as
you have suggested, on sport hunting. Would you talk a little
bit about what effects this will have on sport hunting in
Alaska?
Ms. Clark. We actually think it will have minimal to no
effects on sport hunting in Alaska at all. The charts do help
somewhat. But the actual subsistence hunt will not compromise
sport hunting.
Senator Hagel. Do the conservation principles outlined in
the protocol significantly impact sport hunting, do you think,
in the lower 48 States?
Ms. Clark. No, Mr. Chairman. They do not.
This really is positive in a number of ways. It allows for
the information or the data that we can gather during the
subsistence hunts to help us in managing the overall migratory
bird resource. But we do not expect any--we expect limited to
no impact on sport hunting in the lower 48, either.
Senator Hagel. On the issue of subsistence hunting, my
understanding is that there are different obligations for
Alaska and Canada. Is that correct?
Ms. Clark. Well, the Canadian Constitution--let's see if I
can get this right--there are different--I might have to ask
for some help on this. But I would say this protocol
acknowledges the independent subsistence use of the aboriginal
peoples of northern Canada and the natives of Alaska according
to the subsistence use in each area.
Senator Hagel. And that you think is a good, fair way to
approach it?
Ms. Clark. Yes, Mr. Chairman. In fact, the negotiating
team, as one of their over-arching principles, acknowledged the
fairness to both people.
Senator Hagel. Thank you.
I may have some other questions or my colleagues may have,
Director Clark, on that issue and others in the protocol. We
may want to send those over for further clarification.
But unless you have anything you would like to add, again,
I am grateful for your time. You have helped us and we will
move this along.
Ms. Clark. Great. Thank you, Mr. Chairman. I appreciate it.
Senator Hagel. Ms. Clark, thank you.
Could I ask now for the next panel to come forward. They
are Mr. Myron Naneng and Mr. Roger Holmes.
Mr. Naneng, welcome.
Mr. Naneng. Thank you.
Senator Hagel. Excuse me. I see your name plates have been
turned around.
Mr. Naneng. Oh, you were calling him first, then?
Senator Hagel. Well, I don't know if that offends either of
you, but we will give you the ``Mr. Chairman'' nameplate.
Now, Mr. Naneng, would you like to begin, and thank you.
STATEMENT OF MYRON NANENG, SR., PRESIDENT, ASSOCIATION OF
VILLAGE PRESIDENTS, VICE CHAIR, NATIVE MIGRATORY BIRDS WORKING
GROUP, ANCHORAGE, ALASKA
Mr. Naneng. Yes. Mr. Chairman and members of the committee,
on behalf of thousands of Alaska natives, I sincerely thank you
for the invitation to address you today.
My name is Myron Naneng, Sr. I am a Vice Chairman of the
Alaska Native Migratory Bird Working Group, a member of the
U.S. negotiating team for the 1995 Protocol with Canada, and I
am a Yup-ik Eskimo and a subsistence hunter. My Yup-ik name is
``Che-sak,'' which, literally translated by some of my
relatives, is ``the bug.''
I want to begin by expressing our deepest appreciation for
the leadership and commitment of Mollie Beattie, demonstrated
as head of the U.S. negotiating team. She showed an uncommon
understanding of the nutritional and cultural aspects of the
native subsistence way of life, and her actions showed her
confidence in native people as responsible caretakers and
managers of their subsistence resources. We wish that she had
been here today to share the hearing with us.
I also want to express our appreciation to Senators
Murkowski and Stevens, Lieutenant Governor Ulmer, and others in
her administration, and Roger Holmes and others in the U.S.
negotiating team. It was rewarding to be a part of the
consensus that the team achieved because of their commitment to
conservation and to meeting the customary and traditional
subsistence needs of the indigenous inhabitants of Alaska. This
consensus is expressed in the Protocol and the Protocol
Interpretation of the U.S. delegation.
I want to emphasize three things in my testimony. Number
one is the vital protections that the Canadian and Mexican
Protocols provide for the Alaska native way of life.
Number two is Alaska natives' strong commitment to the
conservation of migratory birds.
Number three is the essential role that the management
bodies created in the Canadian Protocol play in achieving the
goals of the Migratory Bird Conventions.
There is no way to separate native customary and
traditional harvest of migratory birds from who we are as a
culture and as a people. The return of the migratory birds in
the spring is greeted with the same kind of joy and
anticipation as the return of warm, daylight, and open water.
The migratory bird harvest is an essential part of our
customary harvest patterns, developed through thousands of
years of living with resources in Alaska. The migratory bird
harvest provides fresh meat in the spring, when few other
wildlife species are available. We also harvest migratory birds
at other times of the year when they are available and when
necessary.
Their eggs, harvested consistent with our responsibility
for conservation, are an important part of our diet. The
harvest is shared with our families and tribes, and there are
important cultural values in the customary and traditional
harvest practices.
I am also a drummer of our dance group, and the customary
and traditional migratory bird harvest is a theme of many of
our songs and dances that have been passed on from generation
to generation. In fact, some of the traditional dance fans that
are often used come from the migratory birds.
The Protocol recognizes the importance of migratory birds
as an essential part of our way of life by providing for both
nutritional needs and other essential needs and by protecting
customary and traditional uses.
Native Alaskans are vitally concerned with the conservation
of migratory birds. Laws and Protocols do nothing to protect
anyone's use of birds unless there are healthy populations. We
have demonstrated our commitment to conservation through, among
other things, the work of the Waterfowl Conservation Committee
with the U.S. Fish and Wildlife Service to protect four species
of migratory birds and their nesting habitats in Western
Alaska. I have worked closely with the committee as its
chairman, and all agree that, since the work began in 1984,
meaningful and successful conservation measures have been taken
through the cooperative efforts of these tribal leaders, Alaska
native subsistence hunters, and the State, as well as the
Service.
The local traditional knowledge of native subsistence users
has played a major role in these successful conservation
efforts.
Time and experience have repeatedly demonstrated that
meaningful implementation of subsistence harvest and
conservation can only be achieved through a management system
that incorporates an effective role for the indigenous users of
the resource. The Canadian Protocol explicitly provides for the
establishment of management bodies that will provide native
users, through their village councils, an equal place at the
management table and full participation and involvement on all
management issues. Alaska natives view this element of the
Protocol as essential and look forward to being responsible and
cooperative management partners.
With that, I would like to thank you, Mr. Chairman. I would
be happy to answer any questions.
Senator Hagel. Mr. Naneng, thank you. Thank you for coming
to testify. We are grateful. It is important that we focus on
your concerns. These are historical concerns and it is
important that we not lose that heritage and that rich culture.
So we are grateful that you would take the time and make the
effort to come and share with us your thoughts.
Mr. Naneng. Thank you. Mr. Chairman, I hope that my
testimony will be incorporated as part of the record.
Senator Hagel. Yes, sir, it will be in the record as will
all of the testimony of all of our witnesses. Thank you. Mr.
Holmes.
STATEMENT OF ROGER HOLMES, DIRECTOR, DIVISION OF FISH AND
WILDLIFE, MINNESOTA DEPARTMENT OF NATIONAL RESOURCES
Mr. Holmes. Thank you very much, Mr. Chairman. I, too,
appreciate the opportunity to testify.
First of all, my name is Roger Holmes. I am the Director of
the Division of Fish and Wildlife for the State of Minnesota. I
also chair the Migratory Wildlife Committee for the
International Association of Fish and Wildlife Agencies. I also
chaired the Ad Hoc Committee on the Protocol. It was a
committee of 26 people from Canada and the U.S. from inside and
outside of the Canadian and U.S. Governments and State and
provincial governments that held 7 meetings over a 2 year
period between Washington, DC and Anchorage Alaska and 5 other
places in between. Those meetings were open to the public. We
had lots of discussion and put together the original and the
first, I guess you would call them, working papers that started
all of this.
As I said, I am here representing the International
Association. This association was founded in 1902 and, as far
as its government membership is concerned, it involves the fish
and wildlife agencies of all 50 States.
I would also point out that, while the primary authority
and responsibility for managing migratory wildlife resides in
the Federal Government, residual authority and responsibility
continue to reside with the several States. Therefore, State
agency members have a governmental interest in the subject of
today's hearing.
The International Association supports the pending
amendments to the 1916 convention because they are intended,
for the first time, to provide for regulation of the
traditional spring harvest of migratory birds, principally
migratory waterfowl, and their eggs in remote areas of Alaska
and in Canada.
As a member of the U.S. team negotiating the 1995 Protocol,
I have been closely involved in the process of formulating the
pending amendments. Spring harvest in remote areas of Alaska
and Canada has occurred for centuries. But since 1918, it has
taken place in violation of the terms of the 1916 Convention,
which prescribes a closed season between March 10 and September
1, which you have already heard about.
It is during the closed season that migratory waterfowl are
present in these latitudes, presenting an untenable situation
for northern native people who rely upon this resource for
fresh protein. It is time for this inequitable situation to be
addressed so that the spring harvest in these areas will no
longer occur outside the terms of the convention and outside
the regulatory framework established by the Secretary of
Interior.
The 1995 Protocol amendments will bring this harvest within
the regime established by the parties to the convention and
permit wildlife managers, in cooperation with native
communities in Alaska, to regulate this international resource.
In Canada, it is our understanding that aboriginal groups
are prepared to negotiate migratory bird management agreements
with the Federal and provincial governments. The committee will
remember that in 1979, a protocol with a similar purpose was
signed by representatives of the United States and Canada and
transmitted to this committee for consideration in the
following year.
The 1979 protocol failed to make clear how or even if
subsistence hunting would be regulated and led to calls for
assurance that the migratory waterfowl resource would not
suffer a loss of reproductive potential by legitimizing hunting
during the breeding season or in general be depleted were the
protocol ratified.
Indeed, this International Association resolved formally
both in 1979 and again in 1987 to oppose advice and consent to
ratification unless and until necessary assurances were
provided.
Mr. Chairman, our current support is predicated on the
authoritative executive branch representations set forth in the
May 20, 1996 letter of submittal of the Secretary of State
concerning both the meaning of the 1995 protocol and the manner
in which the executive branch intends to implement an amended
convention. Those representations include the exchange of notes
at signing and the following five critical points.
One: nothing in the protocol is intended to establish in
the United States any entitlement or right in any individual to
harvest migratory birds.
Two: nothing in the protocol is intended to establish in
the United States a preference in favor of any individual or
group of users.
Three: subsistence harvest seasons in the United States
shall be established by the Secretary so as to provide for the
preservation and maintenance of stocks of migratory birds.
Four: it is not the intention of the parties to the
protocol to authorize the taking of migratory birds or the
collection of eggs or nests for commercial purposes except in
limited circumstances, specified in the letter of submitted
dated May 20, 1996, of the Secretary of State.
Five: any restrictions in the United States on 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.
Accordingly, the International Association urges this
committee to recommend advice and consent to ratification of
the 1995 protocol only on the basis of the executive branch
assurances contained in the transmittal documents.
There is an additional item to which we wish to draw the
committee's attention. The two governments affirm that it is
not the intent of the 1995 protocol to cause significant
increases in the take of species of migratory birds relative to
their continental population sizes. The Fish and Wildlife
Service has concluded that the Alaska spring and summer
subsistence harvest of migratory birds would not increase
significantly if legalization occurs.
Nevertheless, neither the U.S. Fish and Wildlife Service
nor the Canadian Wildlife Service has accurate information on
the existing subsistence harvest. We agree with the Fish and
Wildlife Service that it would be important to determine as
accurately as possible current levels of subsistence harvest.
Without a better handle on the size of the spring-summer
harvest in the territories of both parties, assurances that
harvest increases will not be significant will not be
determinable.
We believe monitoring of the spring-summer harvest is
essential and urge this committee in its report to underscore
the necessity of adequate funding requests for this purpose by
the administration and favorable consideration of such requests
by the appropriate committees of Congress.
In conclusion, Mr. Chairman, considering the executive
branch assurances that are provided, we believe the proposed
amendments will enhance the abilities of the parties to
conserve and manage the migratory bird resources of North
America.
That concludes my testimony. I would be pleased to try to
answer any questions.
[The prepared statement of Mr. Holmes follows:]
Prepared Statement of Roger Holmes
Thank you for the opportunity to share with the Committee the views
of the International Association of Fish and Wildlife Agencies on the
Protocol Amending the 1916 Convention for the protection of Migratory
Birds, signed at Washington on December 14, 1995. I am Roger Holmes,
Director of the Minnesota Division of Fish and Wildlife, and Chairman
of the Migratory Wildlife Committee of the International Association of
Fish and Wildlife Agencies.
The International Association, founded in 1902, is a quasi-
governmental organization of public agencies charged with protection
and management of North America's fish and wildlife resources. The
Association, whose government members include the fish and wildlife
agencies of all fifty States, has been a key instrumentality for nearly
a century in promoting sound resource management and strengthening
federal, state and provincial cooperation in this area. It was a 1946
proposal of this Association, for example, which led to creation by the
U.S. Fish and Wildlife Service the following year of Flyway Councils in
each of the four well-defined routes in the seasonal travels of
migratory birds.
While primary authority and responsibility for protection and
management of migratory birds reside in the federal government,
residual authority and responsibility continue to reside in the several
States, Carey v. South Dakota, 250 U.S. 118 (1919), and thus the state
agency members of the International Association have a governmental
interest in the subject of today's hearing.
The International Association supports the pending amendments to
the 1916 Convention because they are intended, for the first time, to
provide for regulation of the traditional spring harvest of migratory
birds, principally migratory waterfowl, and their eggs in remote areas
of Alaska and Canada.
As a member of the U.S. team negotiating the 1995 Protocol, I have
been closely involved in the process of formulating the pending
amendments. Spring harvest in remote areas of Alaska and Canada has
occurred for centuries but since 1918 has taken place in violation of
the terms of the 1916 Convention which prescribes a closed season
between March 10 and September 1 of each year. It is during the closed
season that migratory waterfowl are present in these latitudes and
precisely during the open season when they have migrated south,
presenting an untenable situation for northern native people who rely
upon this resource for nutritional sustenance. It is time this
inequitable situation be addressed so that the spring harvest in these
areas will no longer occur outside the terms of the Convention and
outside the regulatory framework established by the Secretary of the
Interior.
The 1995 Protocol amendments will bring this harvest within the
regime established by the parties to the Convention and permit wildlife
managers, in cooperation with native communities in Alaska, to regulate
this international resource. In Canada, it is our understanding that
aboriginal groups are prepared to negotiate migratory bird management
agreements with the federal and provincial governments.
The Committee will remember that, in 1979, a protocol with a
similar purpose was signed by representatives of the United States and
Canada and transmitted to this Committee the following year for
consideration. At that time questions were raised by the International
Association and by national conservation organizations as to the
meaning and significance of the changes to the 1916 Migratory Bird
Convention, an agreement many of us view as one of the most, if not the
most, successful international conservation agreements ever undertaken.
The 1979 Protocol failed to make clear how or even if subsistence
hunting would be regulated and led to calls for assurance that the
migratory waterfowl resource would not suffer a loss of reproductive
potential by legitimizing hunting during the breeding season or in
general be depleted were the Protocol ratified. Indeed, the
International Association resolved formally, both in 1979 and again in
1987, to oppose advice and consent to ratification unless and until
necessary assurances were provided. We note that the Protocol signed on
January 30, 1979, was formally withdrawn by the President in his
transmittal letter to the Senate dated August 2, 1996.
Mr. Chairman, the International Association supports ratification
of the revised Protocol as, we understand, do many of the principal
conservation organizations, waterfowl hunting organizations, and
wildlife managers. Our support is predicated on the authoritative
Executive Branch representations, set forth in the May 20, 1996, letter
of submittal of the Secretary of State, concerning both the meaning of
the 1995 Protocol and the manner in which the Executive Branch intends
to implement an amended Convention. Those representations include the
exchange of notes at signing making explicit the understanding of the
governments of the United States and of Canada that all of the
activities newly allowed by Article 11 of the Protocol are to be
conducted in accord with the conservation principles also articulated
in Article 11. Executive Branch representations also include these
critical items:
Nothing in the Protocol is intended to establish in the
United States any entitlement or right in any individual to
harvest migratory birds or to collect their eggs except as
permitted by regulation of the Secretary of the Interior,
Nothing in the Protocol is intended to establish in the
United States a preference in favor of any individual or group
of users over any other individual or group of users;
Subsistence harvest seasons in the United States shall be
established by the Secretary so as to provide for the
preservation and maintenance of stocks of migratory birds;
It is not the intention of the parties to the Protocol to
authorize the taking of migratory birds or the collection of
eggs or nests for commercial purposes except in the limited
circumstances specified in the letter of submittal dated May
20, 1996, of the Secretary of State; and
Any restrictions in the United States on 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 absence of such assurances caused the International Association
to oppose the 1979 Protocol and our support of the 1995 Protocol, in
turn, is predicated on the fact that these assurances now exist.
Accordingly, the International Association urges this Committee to
recommend advice and consent to ratification of the 1995 Protocol only
on the basis of the Executive Branch assurances contained in the
transmittal documents. The Protocol Agreement with Mexico, signed at
Mexico City on May 5, 1997, essentially is in aid of the agreement with
Canada and the Association also supports that agreement with the
Executive Branch assurances.
There is an additional item to which we wish to draw the
Committee's attention. The two governments affirm in the ``Whereas''
provisions that ``it is not the intent of [the 1995] Protocol to cause
significant increases in the take of species of migratory birds
relative to their continental population sizes.'' The Fish and Wildlife
Service has concluded that the Alaska spring and summer subsistence
harvest of migratory birds ``would not increase significantly if
legalization occurs.'' Environmental Assessment dated March 7, 1994, at
31. Nevertheless, neither FWS nor the Canadian Wildlife Service has
accurate information on the existing subsistence harvest. We agree with
the FWS assertion in its March 1994 environmental assessment that, if
the 1916 Convention is amended, ``it would first be important to
determine as accurately as possible current levels of subsistence
harvest.'' (p. 33) Without a better handle on the size of the spring/
summer harvest in the territories of both parties, assurances that
harvest increases will not be significant will not be determinable. We
believe monitoring of the spring/summer harvest is essential and urge
this Committee in its report to underscore the necessity of adequate
funding requests for this purpose by the administration and favorable
consideration of such requests by the appropriate committees of
Congress.
In conclusion, Mr. Chairman, the International Association supports
ratification of these amendments to the Migratory Bird Convention. With
the Executive Branch assurances that are provided, we believe the
proposed amendments will enhance the ability of the parties to conserve
and manage the migratory bird resource of North America.
Senator Hagel. To both of you, again, we are grateful.
Thank you for your efforts.
As you heard me say to Chairman Murkowski and Lieutenant
Governor Ulmer, we will move expeditiously. Chairman Helms
wants to move this through the full committee. I believe the
next full committee meeting is October 8. We should be able to
get it through the full committee and then on to the Senate. So
I would hope that we could finish this before the recess,
whenever that is, but certainly this year.
I have no questions. Your testimony will be included in the
record.
Thank you very, very much.
The committee is adjourned.
[Whereupon, at 3 p.m., the committee adjourned, subject to
the call of the Chair.]