Ruling should spur federal action to protect at-risk migratory bird habitat: ENGOs

The federal government should act quickly to better protect critical habitat from old-growth logging and destruction, environmental groups said Tuesday, as they hailed a court decision touching on at-risk migratory bird protections. 

A Federal Court judge sided last week with the environmental groups who alleged Canada’s environment minister had too narrowly interpreted certain federal protections for at-risk migratory birds.

A lawyer for the environmental law charity Ecojustice, which represented two conservation groups in court, called the decision, “a win for the endangered and threatened birds that call Canada home, whether they nest in old-growth trees in British Columbia or on islands in Atlantic Canada.”

“Now, the Federal Court has confirmed that the law requires the federal government to do more to ensure the survival and recovery of these species,” lawyer Andhra Azevedo wrote in a statement.

The groups allege Minister Steven Guilbeault took a position in 2022 that the federal government had no obligation to protect anything other than nests on provincial lands, and not the wider habitat at-risk migratory birds need to survive.

Chief Justice Paul Crampton’s ruling last week found the minister’s interpretation was unreasonably narrow, sending the minister’s protection statement back to the government for reconsideration.

“It was not reasonable or tenable for the Minister to limit that critical habitat to ‘nests’ alone,” the decision said. 

The minister’s statement came after the environmental groups, against the backdrop of massive protests against old-growth logging in British Columbia’s Fairy Creek watershed, had pressed the government to take action to protect the marbled murrelet. The small seabird, which nests in British Columbia’s coastal old-growth forests, has been listed as “threatened” since 2003 and the groups alleged the province had failed to protect it from industrial logging and other activities.

The groups alleged some conservation regions on Vancouver Island had less suitable nesting habitat left than what was necessary for the survival and recovery of the bird, the court decision said, while other conservation regions of the island were fast approaching that threshold. 

Threats to habitat, from industrial logging to climate change-fuelled wildfires, are making already at-risk migratory bird species vulnerable to extinction, the groups argued. 

If the minister’s interpretation went unchallenged, the groups argued that the majority of critical habitat of at least 25 at-risk migratory bird species across the country, including the marbled murrelet, would have gone unprotected on non-federal land.

“This decision must result in quick action from the federal government to protect the critical habitat of at-risk migratory birds,” said Shelley Luce, director of campaigns and programs at Sierra Club BC, which brought the court challenge, alongside Wilderness Committee. 

In a written statement, Luce said the decision further signals the urgency of enacting legislation tailored to species at risk in British Columbia, “where the habitat of the marbled murrelet and other endangered birds remains vulnerable to logging and other habitat destruction.” 

The minister had argued his interpretation maximized the provincial ability to act in an area of shared jurisdiction, the ruling said. A broader interpretation, the minister argued, risked undermining the principle of co-operative federalism.

But the judge said that principle, developed to offer some flexibility in the division of provincial and federal powers, cannot be invoked to “read down” federal responsibilities to the point that they are “without utility.” 

“This is particularly so where the relevant province has failed to avail itself of the opportunities to take protective action in an area of joint responsibility, as alleged by the Applicants,” wrote Chief Justice Crampton. 

Crampton also cited evidence brought by the environmental groups that identifying nests is difficult and, therefore, an ineffective way to protect and recover migratory birds. The federal government’s own 2014 recovery strategy notes the nesting sites of the marbled murrelet, which typically lays a single egg on a moss-covered branch of an old-growth tree, can be “very difficult to locate.”

“In brief, nests cannot be protected if they cannot be found,” read Crampton’s decision.

This report by The Canadian Press was first published Feb. 6, 2024.

Jordan Omstead, The Canadian Press