U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1

29–118

" ! SENATE 104TH CONGRESS

2d Session

TREATY DOC.

104–28

1996

PROTOCOL AMENDING THE 1916 CONVENTION FOR

THE PROTECTION OF MIGRATORY BIRDS

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

A PROTOCOL BETWEEN THE UNITED STATES AND CANADA

AMENDING THE 1916 CONVENTION FOR THE PROTECTION OF

MIGRATORY BIRDS IN CANADA AND THE UNITED STATES, WITH

RELATED EXCHANGE OF NOTES, SIGNED AT WASHINGTON ON

DECEMBER 14, 1995

AUGUST 2, 1996.—Protocol was read the first time and, together with

the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate

(III)

LETTER OF TRANSMITTAL

THE WHITE HOUSE, August 2, 1996.

To the Senate of the United States:

With a view to receiving the advice and consent of the Senate to

ratification, I transmit herewith the Protocol between the United

States and Canada Amending the 1916 Convention for the Protection of Migratory Birds in Canada and the United States, with a

related exchange of notes, signed at Washington on December 14,

1995.

The Protocol, which is discussed in more detail in the accompanying report of the Secretary of State, represents a considerable

achievement for the United States in conserving migratory birds

and balancing the interests of conservationists, sports hunters, and

indigenous people. If ratified and properly implemented, the Protocol should further enhance the management and protection of this

important resource for the benefit of all users.

The Protocol would replace a protocol with a similar purpose,

which was signed January 30, 1979, (Executive W, 96th Cong., 2nd

Sess. (1980)), and which I, therefore, desire to withdraw from the

Senate.

I recommend that the Senate give early and favorable consideration to the Protocol, with exchange of notes, and give its advice

and consent to ratification.

WILLIAM J. CLINTON.

(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE,

Washington, May 20, 1996.

The President,

The White House.

I have the honor to submit to you, with the view to its transmission to the Senate for advice and consent to ratification, a Protocol between the United States and Canada amending the 1916

Convention for the Protection of Migratory Birds in Canada and

the United States, with a related exchange of notes, signed at

Washington on December 14, 1995.

The 1916 Convention for the Protection of Migratory Birds in

Canada and the United States (‘‘the Convention’’) presently does

not permit hunting of the migratory species covered under the Convention from March 10 to September 1 except in extremely limited

circumstances. Despite this prohibition, aboriginal people of Canada and indigenous people in Alaska have continued their traditional hunt of these birds in the spring and summer for subsistence

and other related purposes. In the United States, the prohibition

against this traditional hunt has not been actively enforced. In

Canada, as a result of recent constitutional guarantees and judicial

decisions, the Canadian Federal Government has recognized a

right in aboriginal people to this traditional hunt, and the prohibition has not been enforced for this reason.

The goals of the Protocol are to bring the Convention into conformity with actual practice and Canadian law, and to permit the

effective regulation for conservation purposes of the traditional

hunt. Timely ratification is of the essence to secure U.S.-Canada

conservation efforts.

This Protocol would replace a protocol with a similar purpose,

which was signed in 1979, transmitted to the Senate with a message from the President dated November 24, 1980, and which is

now pending in the Committee on foreign Relations. (Executive W,

96th Cong., 2nd Sess. (1980).)

A detailed analysis of the Protocol follows.

THE PROTOCOL

The Preamble to the Protocol states as its goals allowing a traditional subsistence hunt and improving conservation of migratory

birds by allowing for the effective regulation of this hunt. In addition, the Preamble notes that, by sanctioning a traditional subsistence hunt, the Parties do not intend to cause significant increases

in the take of species of migratory birds relative to their continental population sizes, compared to the take that is occurring at

present. Any such increase in take as a result of the types of hunt-
VI

ing provided for in the Protocol would thus be inconsistent with the

Convention.

Article I of the Protocol amends Article I of the Convention to

modernize the taxonomy and names of the birds subject to the Convention. Species were not added to our subtracted from the list,

however; regulation of birds not included in the original Convention is now within the purview of the Canadian provinces, and any

such change to the list would have required time-consuming negotiations between the Canadian federal government and all of the

provinces and territories, with uncertain results.

Article II of the Protocol substantially rewrites Article II of the

Convention to include new subsistence hunt provisions. An introductory paragraph outlines the conservation principles that apply

to all management of migratory birds under the Convention. In addition, this paragraph lists a variety of means to achieve these conservation principles.

The United States and Canada exchanged diplomatic notes at

the time of the Protocol signing, in which both governments confirmed that the conservation principles set forth in Article II apply

to all activities under Article II. The United States considered this

exchange of notes desirable in light of the language of Article II

(4)(a), which contains the phrase ‘‘subject to existing aboriginal and

treaty rights of the Aboriginal peoples of Canada under section 35

of the Constitution Act, 1982, and the regulatory and conservation

regimes defined in the relevant treaties, land claims agreements,

self-government agreements, and co-management agreements with

Aboriginal peoples of Canada. . . .’’ This phrase was sought by

Canada in order to recognize Canadian court decisions that affirm

certain rights of aboriginal people to exploit natural resources.

However, as the exchange of notes makes clear, this phrase does

not override the conservation principles set forth earlier in Article

II.

Paragraphs 1, 2, and 3 of Article II of the Protocol continue the

basic closed and open seasons for hunting contained in the original

Convention, with a closed season between March 10 and September

1. The open season remains limited to three and one half months,

which the Parties agreed would be interpreted to mean 107 days.

The closed season for migratory insectivorous and nongame birds

is maintained. Exceptions to these closed seasons may be made for

scientific, educational or other specific purposes consistent with the

conservation principles of the Convention. This language is found

in similar conventions between the United States and Japan (TIAS

7990; 25 UST 3329) (hereinafter ‘‘the Japan Convention’’) and the

successor States to the former U.S.S.R. (TIAS 9073; 29 UST 4647)

(hereinafter the ‘‘U.S.S.R. Convention’’), respectively.

The traditional subsistence hunt is provided for as an exception

to the closed season and is dealt with in paragraph 4, with different provisions for the hunt in Canada and the United States reflecting different domestic legal regimes and practices. Paragraph

4 (a) recognizes that in Canada, aboriginal people have a right to

harvest birds under the Canadian Constitution, treaties between

aboriginal people and the Government, and other provisions of Canadian law, and permits Canada to allow such a harvest as a mat-
VII

ter of international law. Paragraph 4(b) authorizes the United

States to allow such a harvest only in Alaska.

Under the terms of paragraph 4(a), Canada may allow its aboriginal people to harvest birds, their eggs, and down in any season. In addition, down and non-edible by-products of the traditional

harvest may be sold, but only within or between aboriginal communities. Finally, Canada can allow two other small groups of people

(estimated to be only a couple of hundred hunters) to harvest birds

and eggs outside of the normal open season. The first are non-aboriginal residents of the aboriginal communities who are permitted

to hunt by those communities. The second are qualified permanent

residents of Yukon and the Northwest Territories who are allowed

an earlier fall season to hunt.

Paragraph 4(b) concerns subsistence hunting in Alaska by ‘‘indigenous inhabitants of Alaska’’ (understood for the purposes of the

Protocol as meaning Alaska Natives and permanent resident nonnatives with legitimate subsistence hunting needs living in designated subsistence hunting areas). This paragraph authorizes the

United States to establish a subsistence harvest of birds, their eggs

and down in any season. Sale of these items is not permitted, except for limited sale of non-edible by-products of birds taken for nutritional purposes incorporated into authentic articles of handicraft.

The harvest of such items must be consistent with ‘‘customary and

traditional uses’’ of indigenous inhabitants for their ‘‘nutritional

and other essential needs.’’

Paragraph 4(b)(ii) states that any subsistence harvest in Alaska

will be managed through domestic management bodies that provide

indigenous inhabitants a significant voice.

Additional information about the U.S. domestic implementation

of Article II(4)(b) can be found below, under the heading ‘‘Domestic

Implementation.’’

The final section of Article II permits a murre hunt in the Province of Newfoundland and Labrador. This traditional hunt was not

provided for by the Convention because Newfoundland and Labrador were not part of Canada in 1916.

Paragraph 3 of Article II of the original Convention, which provided for a limited subsistence hunt by ‘‘Eskimos and Indians,’’ has

been subsumed by this new Article II.

The Protocol does not create any private rights of action under

U.S. law, and, in particular, does not create a right of persons to

harvest migratory birds and their eggs. Similarly, Canada does not

regard the agreement as creating a right in aboriginal people of

Canada to harvest birds; this right is implemented by the Canadian Constitution and relevant agreements between the Government of Canada and its aboriginal groups.

Article III of the Protocol replaces Article III of the Convention,

which establish a 10-year closed season for certain species and is

no longer operative. The new Article III sets out a formal consultation process by which the U.S. and Canada agree to meet regularly

to review the progress of implementation of the treaty and any

other related issues. This article also reinforces the application of

the conservation principles of Article II of the Protocol, and creates

a mechanism for dealing with emergencies that threaten particular

bird species. The consultation process will ensure that any concerns
VIII

of interested U.S. groups can be effectively addressed at the bilateral level.

Article IV of the Protocol replaces Article IV of the Convention

(dealing with conservation of wood ducks and eiders) which also

outlived its usefulness. The new provision states that each government will use its authority to protect and conserve habitats essential to migratory bird populations (including protection from pollution and from alien or exotic species). The Protocol does not, as a

practical matter, require either Party to take any steps in this area

in addition to those already being taken under existing domestic

legal authority. Nevertheless, this Article enshrines in the Convention the principle of habitat conservation, where previously the

Convention was silent on the issue.

Article V of Protocol slightly modifies Article V of the Convention

by allowing the taking of nests and eggs foreseen in the revised Article II, Section 4 and expanding the permitted taking of nests and

eggs to include educational or other specific purposes as long as

they are consistent with the conservation principles of the treaty.

This language is similar to that contained in the Japan and

U.S.S.R. Conventions.

CONSISTENCY WITH OTHER MIGRATORY BIRD CONVENTIONS

As a matter of international law, in order for the United States

to take advantage of certain provisions of the Protocol, a conforming amendment to the U.S.-Mexico Convention on the Protection of

Migratory Birds and Mammals (TS 912; 50 Stat. 1311) will be required. The U.S.-Mexico Convention currently mandates a ‘‘close

season for wild ducks from the tenth of March to the first of September,’’ while the Protocol would allow a limited hunt of migratory

birds, including ducks, in Alaska during part of this time period.

As a matter of domestic law, a conforming amendment to the

U.S.-Mexico Convention would also be required. Specifically, the

Department of Interior could not implement a provision of one convention that allows a hunt prohibited by the provision of another,

since U.S. courts have held that the statute implementing the various migratory bird conventions should be interpreted to require

application of the most restrictive one in the case of conflict. See

Alaska Fish & Wildlife Fed’n & Outdoor Council, Inc. v. Dunkle,

829 F. 2d 933, 941 (9th Cir. 1987), cert. den., 485 U.S. 988 (1988).

The United States has indicated to Canada that the provision allowing the hunting of wild ducks during the closed season cannot

become effective in the United States until the conforming amendment to the U.S.-Mexico Convention enters into force.

It will not be necessary to amend the U.S.-U.S.S.R. Convention,

since it allows a subsistence hunt of the type contained in the Protocol.

The U.S.-Japan Convention contains a more restrictive definition

of subsistence hunt than is contemplated by the Protocol. It does

not include hunting by resident Alaskans who are not ‘‘Eskimos’’

or ‘‘Indians,’’ and the purpose of a subsistence hunt is limited to

the provision of food and clothing (excluding, for example, the making of traditional handicrafts). The U.S.-Japan Convention does,

however, allow each Party to decide on open seasons for hunting,

as long as these seasons are set ‘‘so as to avoid*** principal
IX

nesting seasons and to maintain*** optimum numbers.’’ In addition, there is a specific prohibition on ‘‘any sale, purchase or exchange’’ of birds and their eggs, by-products or parts. A subsistence

hunt under the U.S.-Canada Convention therefore will have to be

implemented in a manner consistent with these provisions of the

U.S.-Japan Convention. Thus, for example, avoidance of principal

nesting seasons will allow for only limited taking of eggs.

DOMESTIC IMPLEMENTATION

An existing statute (16 U.S.C. § 712) authorizes the Department

of the Interior to promulgate regulations of the Interior to promulgate regulations to implement migratory bird treaties with a number of countries, including Canada. No additional statutory authority would be required to implement the Protocol.

Principal species customarily and traditionally taken for subsistence in the United States are shown in a list enclosed for your information.

The term ‘‘indigenous inhabitants’’ in Article II (4)(2)(b) of the

Protocol refers primarily to Alaska Natives who are permanent

residents of villages within designated areas of Alaska where subsistence hunting of migratory birds is customary and traditional.

The term also includes non-Native permanent residents of these

villages who have legitimate subsistence hunting needs. Subsistence harvest areas encompass the customary and traditional hunting areas of villages with a customary and traditional pattern of

migratory bird harvest. These areas are to be designated through

a deliberative process, which would include the management bodies

discussed below and employ the best available information on nutritional and cultural needs, customary and traditional use, and

other pertinent factors.

Most village areas within the Alaska Peninsula, Ko/dak Archipelago, the Aleutian Islands, and areas north and west of the Alaska

Range would qualify as subsistence harvest areas. Areas that

would generally not qualify for a spring or summer harvest include

the Anchorage, Matanuska-Susitna and Fairbanks North Star Boroughs, the Kenai Peninsula roaded area, the Gulf of Alaska roaded

area and Southeast Alaska. This list of exceptions does not mean

that individual communities within areas that are generally excluded cannot meet the test for designation as subsistence harvest

areas. For example, data indicate that there is customary and traditional use of gull eggs by indigenous inhabitants in some villages

in Southeast Alaska; these villages could be included for this limited purpose even though indigenous inhabitants in Southeast

Alaska generally would be excluded from the spring/summer harvest.

In recognition of their need to assist their immediate families in

meeting their nutritional and other essential needs, or for the

teaching of cultural knowledge to or by their relatives, Natives residing in excluded areas in Alaska may be invited to participate in

the customary spring and summer migratory bird harvest within

the designated subsistence harvest areas around the villages in

which their immediate families have membership. Such participation would require permission of the village council and an appropriate permit issued through the management body implementing
X

the Protocol. ‘‘Immediate family’’ includes children, parents, grandparents and siblings.

As noted in Article II(4)(2)(b)(ii) of the Protocol, management

bodies will be created to ensure an effective and meaningful role

for indigenous inhabitants in the conservation of migratory birds.

These management bodies will include Native, Federal, and State

of Alaska representatives as equals, and will develop recommendations for, among other things: seasons and bag limits; law enforcement policies; population and harvest monitoring; education programs; research and use of traditional knowledge; and habitat protection. Village councils shall be involved to the maximum extent

possible in all aspects of management. Relevant recommendations

will be submitted to the U.S. Fish and Wildlife Service of the Department of the Interior (hereinafter ‘‘DOI/FWS’’) and to the

Flyway Councils. Regulations established should be enforced to

prevent conservation problems.

Creation of these management bodies is intended to provide more

effective conservation of migratory birds in designated subsistence

harvest areas without diminishing the ultimate authority and responsibility of DOI/FWS. It is the intention of DOI/FWS and the

Alaska Department of Fish and Game that management information, including traditional knowledge, the number of subsistence

hunters and estimates of harvest, will be collected cooperatively for

the benefit of management bodies.

Harvest levels of migratory birds in the United States may vary

for all users, commensurate with the size of the migratory bird

populations. Any restrictions in harvest levels of migratory birds

necessary for conservation shall be shared equitably between users

in Alaska and users in other states taking into account nutritional

needs. The Protocol is not intended to create a preference in favor

of any group of users in the United States or to modify any preference that may exist.

The provisions of Article II(4)(b) will be implemented so that

birds are taken only for food. Non-edible by-products of birds taken

for nutritional purposes incorporated into authentic articles of

handicraft by Alaska Natives may be sold in strictly limited situations and pursuant to a regulation by the competent authority in

cooperation with management bodies. Regulations allowing such

harvest will be consistent with the customary and traditional uses

of indigenous inhabitants for their nutritional and other essential

needs. The term ‘‘handicraft’’ does not include taxidermy items.

The Protocol does not authorize the taking of migratory birds for

commercial purposes.

This Protocol represents a major step forward in the conservation

and management of migratory birds on a substantial basis. Properly implemented, it will improve the health of the North American

migratory bird population and protect the interests of conservationists, sports hunters, indigenous people and all others who value

this important resource.
XI

Accordingly I recommend that this Protocol be transmitted to the

Senate as soon as possible for its early and favorable advice and

consent to ratification.

Respectfully submitted,

WARREN CHRISTOPHER.

Enclosure: As stated.

LIST OF PRINCIPAL SPECIES CUSTOMARILY AND TRADITIONALLY

TAKEN FOR SUBSISTENCE IN THE UNITED STATES

Migratory birds known to be used for subsistence in Alaska, from

Wolfe, R.J. et al., The Subsistence Harvest of Migratory Bird Species in Alaska (Alaska Department of Fish and Game, Division of

Subsistence, Technical Paper No. 197, 1990)

GEESE

White-fronted Lesser Canada

Cackling Canada Taverner’s Canada

Lesser snow Emperor

Black brant

DUCKS

Mallard Pintail

Gadwall Wigeon

Shovelor Redhead

Ring-necked Canvasback

Green-winged teal Blue-winged teal

Bufflehead Harlequin

Greater scaup Goldeneye

Oldsquaw White-winged scoter

Black scoter Surf scoter

Common eider King eider

Spectacled eider Common merganser

Red-breasted merganser

OTHER

Yellow-billed loon Red-throated loon

Common loon Arctic loon

Common murre Mew gull

Sabine’s gull Glaucous gull

Arctic tern Tundra swan

Sandhill crane Miscellaneous shorebirds
(1)
2
3
4
5
6
7
8
9
10
11