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
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
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.
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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