Canada: Court Upholds Across-The-Board Prohibition On Disturbing Or Destroying Nests Of Migratory Birds

Copyright 2008, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Environmental Law, July 2008

A New Brunswick court has upheld a little-known provision of a federal regulation which makes it an offence to disturb, destroy or take a nest of a migratory bird without a permit. Companies in the natural resources sector, farmers, real estate developers and others whose activities affect migratory birds or their nesting grounds should take note. While the court upheld the law, the federal government has yet to develop a system to regulate the management of unintentional, or "incidental" violations that occur during otherwise legal activities such as forest management.

The prohibition found in section 6(a) of the Migratory Birds Regulations (MBR) adopted under the federal Migratory Birds Convention Act (MBCA) has been in effect for several decades, though enforcement has been rare. Recently, the Canadian Wildlife Service has brought charges under various sets of circumstances where industrial activity disturbed or destroyed migratory bird nests. In the New Brunswick case, a company and one of its employees face charges of having disturbed an active Great Blue Heron colony and damaged or destroyed eight Great Blue Heron nests during logging operations on private forest lands. The company replied to the charges with an attack on the constitutionality of the MBCA and the MBR. Counsel for the company argued that the law deals with subject matter reserved to the provincial legislatures under the Constitution Act, 1867, and that the wording of the prohibition violates section 7 of the Canadian Charter of Rights and Freedoms (charter), because it is too vague or too broad. (Section 7 states that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.)

The New Brunswick Provincial Court dismissed both sets of arguments. First, the court found that the MBCA was adopted to give effect to a 1916 treaty between Canada and the U.S., a treaty whose overarching purpose was, and remains, the protection and conservation of migratory birds in their nesting, migration, and over-wintering grounds. While the threat in 1916 was over-hunting, the language of the treaty is broad enough to allow the federal government to address more recent threats such as "incidental take." It can do so pursuant to its general constitutional authority to make laws for the peace, order and good government of Canada, and under its jurisdiction over the implementation of international treaties entered into by the United Kingdom on behalf of Canada.

The court also rejected the company's charter arguments, holding that the prohibition is not vague because its meaning is clear to the general public. Neither is it overbroad. The court agreed that while technically, the prohibition applies to every instance of nest disturbance or destruction, the fact that one can imagine a case where enforcement would be unfair does not make the provision unconstitutional, since minor or trivial violations are usually overlooked by enforcement authorities. In any event, under the MBCA, it would be open to a court to discharge someone found guilty of a minor violation.

The company argued that the absence of a permitting system makes it impossible for a defendant to establish due diligence and thereby escape conviction, since engaging in an activity such as logging automatically entails the destruction of migratory bird nests. The court disagreed. According to the court: "It is up to the defendant to establish that he took those steps which a reasonable man would have taken in the circumstances." The matter will now proceed to trial.

Changes made to the MBCA in 2005 allow the federal government to amend the MBR to establish conditions under which nests may be harmed during otherwise legal activities, such as forestry, mining or real estate development. Options currently under consideration cover the regulatory spectrum, from population-based migratory bird management plans to individual permitting. A key concern is how to achieve legal certainty for affected industries without creating yet another layer of regulatory red tape or interfering with matters under provincial legislative authority. For the time being, and as confirmed by the New Brunswick Provincial Court, disturbing, destroying or taking nests of migratory birds remains a violation of the MBCA, even when the violation is the unintended, practically unavoidable consequence of carrying on otherwise legal activities.

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