2007 Review of the Forest Management Planning Process and the Protection of Migratory Birds
(Review Denied by MNR - click to read ministry decision document)
Background/Summary of Issues
In November 2007, the ECO received an application requesting a review of Ontario’s forest management planning process “to ensure that migratory bird and other wildlife populations are being sustained at both eco-regional and provincial levels, and that the habitats on which they depend are sufficiently protected.” EcoJustice Canada (formerly Sierra Legal) submitted the application on behalf of the two applicants representing Ontario Nature and the Wildlands League branch of the Canadian Parks and Wilderness Society, as well as five other environmental non-governmental organizations (ENGOs). The ECO forwarded the application to the Ministry of Natural Resources (MNR).
This application for review was largely based on the findings of the Commission for Environmental Cooperation (CEC) set out in a Factual Record, entitled “Ontario Logging Submissions,” that was publicly released in February 2007. The Factual Record relates to two submissions made to the CEC in 2002 and 2004 by many of the same organizations that submitted this application. The organizations alleged in their submissions to the CEC that the Government of Canada was failing to effectively enforce section 6(a) of the Migratory Birds Regulations made under the federal Migratory Birds Convention Act, 1994. The allegation related to Ontario’s forest industry in 2001. The applicants submitted that 45,000 migratory bird nests were destroyed by clear-cutting activity in Ontario’s forests in 2001 alone. The CEC Factual Record included an extensive review of Ontario’s forest management system, and identified numerous deficiencies and problems with the conservation and protection of migratory birds and other wildlife in Ontario’s forests.
In this application for review, the applicants asserted that the CEC’s findings about widespread destruction of migratory bird nests by forestry activities, high levels of projected habitat declines, declining populations of various species, and the absence of land use planning and wildlife population targets all pointed to the need for a review of several of MNR’s forest management policies. The applicants argued that “[b]irds are an integral component of terrestrial wildlife diversity in the Boreal forest region, and forest management practices are required to conserve biodiversity as the forest is harvested, as outlined in various MNR publications.”
The applicants expressed concerns about: migratory bird habitat and population declines under forest management alternatives; the importance of identifying wildlife habitat needs in advance of forest management planning; the need for ecosystem-based management; the need for more sophisticated and precautionary modeling to predict wildlife habitat; the need for comprehensive monitoring of bird populations; the lack of subregional land use planning in the Area of the Undertaking for commercial forestry on Crown lands (AOU); coordination and lack of enforcement; and lack of capacity at MNR, due to insufficient funding, to adequately fulfill its wildlife and forest sustainability roles.
The applicants discussed in detail each of eight specific concerns related to the forest management planning process that they sought to have reviewed, identifying specific shortcomings and recommending a number of specific actions to be taken by MNR to better protect migratory birds and their habitat from Ontario forestry operations. In particular, the applicants recommended that:
- “in order to properly manage wildlife populations, the amount of required habitat should be determined based on the amount and types of habitat throughout the eco-region, beyond the limited boundaries of the Forest Management unit (FMU) as is currently the case”;
- “a policy clarification or change [be made] whereby wildlife habitat needs are determined by MNR experts in advance of forest management planning and then entered into spatial habitat models as constraints on how much and where logging is allowed to take place”; and
- MNR consider a reverse-matrix approach or policy that “considers the land base as a whole as a supportive ecological framework within which pockets of resource development activities are allowed to be carried on,” to replace the traditional land use planning paradigm of “dividing the land base into resource management units dotted with islands of protection.”
|CEC Factual Record|
|The Commission for Environmental Cooperation (CEC) is an international organization established pursuant to the North American Agreement on Environmental Cooperation (NAAEC), a side accord signed in 1993 by Canada, the United States and Mexico under the North American Free Trade Agreement (NAFTA).
In February 2008, MNR denied this Environmental Bill of Rights (EBR) application. (Click here to read the ministry decision document.) MNR denied the application based on its determination that the public interest does not warrant a review because “the existing legal and policy framework, its planned and ongoing implementation, and scheduled and planned actions by the Ministry to review and amend policies where appropriate, address the concerns outlined by the applicants.”
MNR noted that this application for review relied heavily on the CEC Factual Record on the Ontario Logging Submissions. MNR stated that the Factual Record is “not an accurate depiction of MNR’s management of wildlife habitat in forest management planning….”
MNR also stated that, since the original submission to the CEC was filed in 2002, “a number of changes have been made to forest management planning that has [sic] improved MNR’s approach,” including amendments to the Crown Forest Sustainability Act, the Declaration Order regarding MNR’s Class Environmental Assessment Approval for Forest Management on Crown Lands in Ontario (Declaration Order MNR-71), and the Forest Management Planning Manual.
MNR provided a clear and detailed rationale for its decision that included: a discussion of the factors considered pursuant to the EBR, including consideration of MNR’s Statement of Environmental Values (SEV); a summary of the legal and policy framework for forest management planning in Ontario; and specific responses to each of the eight “policies” identified by the applicants as requiring review (although MNR emphasized that not all of those items identified by the applicants are considered by MNR to be policies). MNR outlined eight primary reasons for determining that no review was warranted:
- MNR’s comprehensive forest management planning framework includes extensive public reporting and consultation, including “multiple opportunities to input into the direction of [a Forest Management Plan] and the contents of the plan prior to approval by the Regional Director,” and is subject to legally required periodic review (for example, all forest management guides must be reviewed at least every five years, in accordance with Declaration Order MNR-71, as amended);
- MNR is committed to ongoing scientific studies and monitoring of wildlife habitat and populations, including: 1) the Provincial Wildlife Population Monitoring Program (PWPMP), being implemented within the AOU (required under Declaration Order MNR-71, as amended), which includes collection of data on migratory birds and testing the effectiveness of forest management guides; and 2) a Wildlife Assessment Program (WAP), developed under the auspices of the PWPMP, to identify the effects of forest management practices on selected wildlife species;
- MNR’s new Landscape Guide, which MNR says is currently being developed with stakeholder participation and will include further public consultation, “will provide direction on how to conserve biodiversity through landscape level approaches” and “[a]s a result, wildlife habitat for a variety of species, including migratory birds will be addressed at a landscape level”;
- MNR continues to use “area of concern” prescriptions to protect known wildlife values during the forest management planning process;
- MNR is developing an “effectiveness monitoring approach” to evaluate the accuracy of habitat models and predictions of expected wildlife response to forest management activities, which “is being incorporated into its new [Landscape Guide and Site and Stand Guide] and is integral to their periodic review”;
- MNR is exploring new approaches to understanding wildlife habitat dynamics and forecasting, and stated that “[a]s new science and information becomes available forest management and habitat modelling tools are continually being improved”;
- Through the development of its Landscape Guide, MNR stated that it is developing an increased understanding of habitat supply level variation in the absence of human activities, knowledge that MNR says “will create a more robust process for FMP teams to use in forest management planning;” and
- MNR specifically refuted the applicants’ allegations that there is a “practice of leaving most of the allocated forest open to unrestricted logging” and that the forest industry is permitted to set timber harvesting levels. MNR clarified that harvest levels, habitat objectives and long-term management direction are all determined by planning teams and are subject to a rigorous Forest Management Plan public review and approval process, including approval by the Regional Director.
The Ministry concluded, based on the reasons set out in the decision notice, that there is no potential for harm to the environment if the review applied for was not undertaken.
MNR also clarified that, contrary to the applicants’ allegations, MNR does not have a policy to approve Forest Management Plans as long as preferred habitat for indicator species does not fall more than 20 per cent below the extremes of the natural benchmark. MNR responded that, while Forest management planning teams were advised by the 1996 Forest Management Planning Manual (FMPM) to use this as guidance in evaluating forest management impacts on wildlife habitat, “[c]urrently, FMP planning teams, directed by the 2004 FMPM, are advised to develop their own evaluation methodology.”
MNR confirmed the applicants’ concern that only values that are “known values” (i.e., for which sufficient information is known to describe their geographic location and basic features) must be depicted on values maps and considered in forest management planning. MNR clarified, however, that “[a] precautionary principle may be employed to reduce the risks of significantly affecting a value in a negative way in the absence of conclusive information about a value.”
MNR noted that forest management plans must comply with the Crown Forest Sustainability Act, and that operations must emulate natural disturbance patterns similar to those that have shaped migratory bird habitat in the Area of Undertaking. MNR stated that “[p]redicted changes in wildlife habitat supply, due to management activities, are evaluated relative to changes in habitat supply in a dynamic ‘natural’ landscape or the benchmark.” The new Landscape Guide (not yet released as of spring 2008) will implement “a simulated range of natural variation approach.”
MNR discussed its involvement with Bird Studies Canada and the Ontario Region Canadian Wildlife Service in the Partners in Flight North American Landbird Conservation Plan, a “blueprint for continental landbird conservation.” MNR noted that the objectives in the Bird Conservation Region (BCR) plans being developed to provide recommendations about Ontario landbirds and habitat will be consistent with Ontario’s current forest management objectives “to ensure that the supply of forest habitat types across the landscape are maintained within the range of natural variation.”
MNR stated that it was also a partner in the production of the Atlas of Breeding Birds of Ontario 2001 – 2005, released in early 2008. MNR noted that the draft Atlas reports that “[s]ubstantially more forest bird species increased than decreased in Ontario as a whole and in all regions except the Carolinian” and that, in the context of timber harvesting, “more attention has been paid to wildlife habitat requirements in management practices.” MNR further noted that the Atlas reported an increase in forest birds such as the pileated woodpecker, in contrast to the applicant’s statement (citing the CEC Factual Record) that the habitat of the pileated woodpecker is projected to decrease by 35 per cent. MNR noted that only 5.3 per cent of the annual harvest in Ontario (representing 0.053 per cent of the total harvest area) occurs during forest bird nesting/fledgling season.
MNR also identified a number of other scientific studies in which MNR staff scientists are currently engaged, all of which relate to the effects of forest management activities on wildlife habitat. Most of the studies are focussed specifically on forest birds.
Finally, MNR advised that the Forest Ecosystem Science Co-operative and the Sustainable Forest Management Network would be sponsoring a workshop in April 2008 “on the state of science with respect to songbirds and forest management in Ontario.” MNR indicated that proceedings would be produced for the workshop.
Previous ECO Reviews of Forest Management Initiatives:
In the Supplement to our 2004–2005 Annual Report (page 191), the ECO reviewed the amended Forest Management Planning Manual (FMPM), which MNR identified in this decision as an improvement in forest management planning since 2002. The ECO notes that many commenters raised concerns about the way MNR intended to assess sustainability in the FMPM, particularly the choice of indicators and the inference that if the FMU achieved its management objectives then sustainability would also be achieved.
The ECO has also reviewed MNR’s use of the principle of natural disturbance pattern emulation in its forest management policies (in the Supplement to our 2001–2002 Annual Report, page 149) and MNR’s Forest Fire Management Strategy (in the Supplement to our 2004–2005 Annual Report, page 198). Forest fires are the primary agent of natural disturbance in the boreal forest. MNR has acknowledged that the mechanical process of clearcutting does not fully emulate forest fires; forest fires are a chemical process to which species are adapted. Fire and clearcutting differ in terms of nutrient recycling, pathogen control, soil compaction and species regeneration. Forest harvesting and fire suppression also change forest vegetation species composition. A recent study to determine whether forestry practices in Ontario emulate natural disturbance from the perspective of bird populations found that 45 per cent of the bird species analyzed differed in abundance depending on forest disturbance type (i.e., fire or harvesting).
Atlas of the Breeding Birds in Ontario, 2001-2005:
As noted by MNR, the Atlas of the Breeding Birds in Ontario, 2001-2005, released in 2007 and based on data collected by 3,000 volunteers who spent over 150,000 hours in the field, indicates that forest bird populations, including migratory species in the boreal forest, are generally doing well. More forest bird species appear to have increased than decreased over the last 20 years. While these results are encouraging, scientists involved with the Atlas note that the data should be interpreted with caution. Because of the change in number of volunteers, time spent in the field, and improved efficiencies at surveying and finding birds, the reliability of comparing populations now and 20 years ago (when the last atlas was published) is limited. Other surveys seem less encouraging; Bird Studies Canada reported in 2003 that long term North American Breeding Bird Survey trends indicate that at least 40 species of landbirds were experiencing population declines in Canada’s boreal forest. The National Audubon Society reported in June 2007, based on an analysis of forty years of bird population data collected by volunteers, that a wide variety of common bird species, including some boreal forest birds, are in steep decline.
Migratory Birds Convention Act, 1994:
Environment Canada is considering a new regulatory approach to manage the “incidental take” (i.e., inadvertent destruction) of migratory birds, nests or eggs during industrial activities and development. Incidental take is currently a violation of the Migratory Birds Regulations under the federal Migratory Birds Convention Act, 1994. The proposed new framework, intended to “provide for long-term conservation of migratory birds,” would involve requiring proponents to assess the risk that incidental take will occur as a result of their operations, and then to develop a response to the risk by avoiding the incidental take or seeking a either permit or exemption where avoidance “may be difficult.” Environment Canada sought stakeholder comments on background documents for the proposed new regulatory approach in late 2007 and early 2008.
Meanwhile, in early 2008, J.D. Irving Ltd. initiated a constitutional challenge of the Migratory Birds Convention Act, 1994 as part of its defence to charges laid against it under the Act. The charges against the company stem from the alleged destruction of a number of great blue heron nests in the summer of 2006 during construction of a logging road on company land in Cambridge Narrows, New Brunswick. The case, which has implications for Canada’s approach to protecting migratory birds and could affect forestry, energy and mining companies across the country, has been referred to as “one of the most significant environmental law cases to come down in years.”
The ECO will be watching the federal government initiative and the constitutional challenge closely, and considering potential implications to Ontario’s forestry regime and efforts at migratory bird protection.
The ECO believes that the applicants have raised valid concerns about the effects of Ontario logging operations on migratory birds. It is undeniable that logging results in habitat loss, and that logging during nesting/fledgling season puts forest birds, nests and eggs at risk. However, the ECO accepts MNR’s rationale for denying the application. The planned and ongoing implementation of the existing legal and policy framework for forest management, as well as MNR’s plans to review and amend policies – if fulfilled – should address the applicants’ concerns without initiating a separate review. The ECO is satisfied that MNR has already turned its mind to the important issues raised by the applicants.
MNR addressed each of the applicants’ concerns in a clear and organized fashion, including point-by-point responses to the applicants’ concerns about the eight “policies” identified as requiring review. MNR also provided clarification on some of the issues raised by the applicants, and described the planned and ongoing programs, policies and scientific studies that MNR says will, among other things, “identify and assess population trends of selected wildlife species that may be affected by forest management practices,” “provide direction on how to conserve biodiversity through landscape level approaches,” and “contribute to MNR’s efforts to attempt to meet the habitat requirements of a broad range of wildlife species, including migratory birds.” This information may help to resolve some of the applicants’ concerns, and identify future opportunities for the applicants to comment on and participate in MNR policy and program decision-making.
Of the 1 – 3 billion migratory landbirds that nest in Canada’s boreal forest every year (representing more than half of the world’s population of landbird species), it is estimated that one third of those are found in Ontario. Because of the great importance of Ontario’s boreal forest to landbirds across North America and globally, conservationists believe that the Ontario government in general, and MNR specifically, owe a high stewardship responsibility to protect forest birds. The ECO agrees. Regardless of recent good news stories about forest bird population trends over the last 20 years, MNR must be proactive in ensuring that its forest management policies reflect the most precautionary approach to protection of all bird populations and other wildlife now and into the future.
The ECO is concerned about the strength of the wildlife population programs that MNR reports to be implementing. Insufficient long-term bird population monitoring in Canada’s boreal forest has been identified as an impediment to assessing the sustainability of boreal bird populations. Better monitoring is needed to achieve greater confidence about the status of birds in the boreal forest and the effects of forestry on bird habitat. MNR must not use a lack of available data, particularly about more difficult-to-survey forest interior species, to excuse forestry operations from protecting wildlife habitat. The ECO strongly urges MNR to make permanent and long-term forest bird monitoring in the FMUs, and beyond, a priority.
Further, MNR’s confirmation that only “known values” are required to be depicted on values maps and considered in forest management planning points to a critical need for ample resourcing to ensure that, in fact, all values in the forest are being identified and protected.
Given that only 5.3 per cent of the annual harvest occurs during forest bird nesting/fledgling season, the ECO wonders if there should be a clear ban on harvesting during this period. It has been reported that some logging companies have voluntarily halted spring cutting for a variety of environmental reasons. Some Ontario municipalities have also considered or enacted by-laws that allow municipalities, through conditions applied to harvest permits, to restrict logging in area woodlands when migratory songbirds are nesting.
As the ECO noted in our 2006-2007 Annual Report, in the absence of a comprehensive land use planning system in the north, the current system of forest management planning has become the de facto land use planning system. The ECO is concerned that MNR, in focusing on forest management, assigns management of non-timber values – including ecological values such as migratory bird habitat and populations – lower priority in its decision making, contrary to its SEV. The ECO continues to believe that the Public Lands Act needs to be reformed so that provincial Crown lands are managed in a more integrated way and the protection of ecological values becomes a predominant legal requirement.
The ECO notes that the rationale for MNR’s decision on this application strongly resembles its rationale for denying, in 2006, an application for a review of the sufficiency of Ontario’s measures to conserve woodland caribou. The ECO reported on that application in its 2006-2007 Supplement at page 194. In that decision, MNR also relied heavily on a number of “scheduled and planned activities,” such as the yet-to-be-released Landscape Guide and the Stand and Site Guide, in declining to undertake a review. The ECO hopes that MNR does not regularly reject meritorious applications using such a rationale, because promised initiatives sometimes do not materialize in a timely manner. Moreover, section 2 of the EBR contemplates that the public will be able to exercise their rights in a timely and efficient way.
MNR’s to-do list is ambitious, and the ECO is concerned about MNR’s ability to deliver on its promises. The much-heralded Landscape Guide (slated for release in 2007 and still yet to be released as of spring 2008) has been touted as being under development by MNR since 2001, but the ECO has yet to see any progress on this front. As the applicants noted, the ECO has identified serious shortfalls in MNR’s capacity to inventory, monitor, assess and report on wildlife resources, including its obligation to assess the effect of commercial forestry on wildlife through the PWPMP. For MNR to effectively, and in a timely manner, implement the planned programs and policies referred to in its decision, MNR must have and devote adequate resources to those initiatives.
The ECO urges MNR to make the implementation of the initiatives referred to in its decision a priority, and to continue to consider other approaches to ensure that forest management practices in Ontario are consistent with MNR’s important obligation to protect the habitat of migratory birds and other forest wildlife.
|This is an article from the Supplement to the 2007/08 Annual Report to the Legislature from the Environmental Commissioner of Ontario.|
Citing This Article:
Environmental Commissioner of Ontario. 2008. "Review of Application R2007019: Request for Review of the Forest Management Planning Process and the Protection of Migratory Birds." Getting to K(No)w, ECO Annual Report Supplement, 2007-08. Toronto, ON : Environmental Commissioner of Ontario. 271-277.