The month of May is often when Alberta seems to come alive: tree leaves budding, plants emerging from their bulbs, the return of robins, and catching a gaggle of geese or sedge of cranes migrating overhead. These migratory birds return to Alberta beginning in March and different species continue to arrive throughout the month of May. It is appropriate, therefore, that World Migratory Bird Day is celebrated on the second Saturday in May. This year it falls on May 10th.
While many of us may be spending our spring days trying to catch a glimpse of some of these birds, we also wanted to take a closer look at what Canada is doing to make sure that each spring we get the chance to welcome them back to their summer home. Today, we look at how migratory bird habitat is defined and protected, primarily through the federal Species at Risk Act, the Migratory Birds Convention Act, 1994, and the 2024 federal court decision of Western Canada Wilderness Committee v Canada.[1] This case demonstrates how crucial it is to have an expansive and inclusive definition of critical habitat and highlights how the federal government’s inaction in this regard may harm migratory birds.
Legislative Background
Migratory birds exist in a unique legislative bubble. Generally, non-migratory bird species, from caribou to fungi, that are not located on federal lands are subject to the provincial species management regime. For example, in Alberta, species like the caribou, are managed under the Wildlife Act unless they are found on federal land, or the federal government has otherwise used their extraordinary powers under the Species at Risk Act (SARA) to extend its protections.[2] This often leads to limited protection for wildlife species because the provincial Wildlife Act is severely limited in its protective provisions.
| The ELC has made several recommendations to improve the provincial regime and ensure that species at risk don’t fall through the cracks in the event of federal government inaction. To read more see our publication An Endangered Species Act for Alberta: A Draft Bill for Species at Risk Protection in the Province. |
Migratory birds, however, are subject to a 1916 treaty signed between the United States and Britain. This treaty was later incorporated into the Migratory Birds Convention Act (MBCA) with the goal of “implement[ing] the Convention by protecting and conserving migratory birds – as populations and individual birds – and their nests.”[3] The Act comprises several prohibitions including against:
- being in possession of a migratory bird or nest or buying, selling, or trading a migratory bird or nest;[4] and
- depositing a substance that is harmful to migratory birds in water or areas frequented by migratory birds, or in areas where the substances may end up in these areas.[5]
The MBCA also enables the creation of regulations including the Migratory Birds Regulations. This Regulation sets out hunting rules, permitting processes, and any exceptions for Indigenous peoples.
Migratory birds are also subject to a specific set of protections under the SARA. For example, critical habitat protections are set out in section 58 of the SARA and prohibit the destruction of the critical habitat of species if:
- the habitat is located on federal land,
- the listed species is an aquatic species, or
- the listed species is a migratory bird protected by the MBCA.
There is, however, an important caveat. If the critical habitat is not located in a national park, the Rouge National Urban Park, a marine protected area, a migratory bird sanctuary, or a national wildlife area, the section 58 protection only applies if specified in a ministerial order.[6] The vast majority of critical habitat would need this second step of ministerial action because the enumerated land use designations account for a very small percentage of the country’s land mass.
If the critical habitat is located outside of this enumerated list, the Minister has two options: (1) make a recommendation (to Cabinet) for the protection of the critical habitat or (2) identify how the critical habitat is already protected and make a statement regarding this protection in the public registry. These statements were at issue in the following federal court decision.
https://unsplash.com/photos/black-and-brown-bird-on-tree-branch-iwdLcMUSby8
Federal Court Decision: Western Canada Wilderness Committee v Canada (Environment and Climate Change)
Background
This case deals with the meaning of protected critical habitat for at-risk migratory birds. For example, the marbled murrelet is a small seabird from the North Pacific which has been listed as threatened under the SARA since 2003 and which is the subject of a recovery strategy from 2014.[7] It is one of the migratory birds that would fall under the Protection Statement, and which is a focus of the court decision.
By way of background, in September 2021 the applicants wrote to the Minister and argued that the Minister’s interpretation and protection actions related to the marbled murrelet were insufficient. They argued that the “MBCA must, at a minimum, apply to all migratory bird critical habitat under the SARA” and noted that the marbled murrelet populations are declining and the majority of their critical habitat is located on provincial land, with limited provincial protections.[8] This was preceded by a Ministerial statement that the relevant SARA provisions only apply to those portions of the critical habitat protected by the MBCA and associated regulations – specifically the individual birds, their eggs and nests.[9] Following these communications, the Minister released the Protection Statement which maintained that the critical habitat is confined to nests.[10]
The Protection Statement describes how the critical habitat contemplated by section 58(5.2) of the SARA is already legally protected on non-federal lands and therefore, does not require any further action by the Minister. Specifically, the Protection Statement cites protection under the MBCA, explicitly related to nests as sufficient protection for the critical habitat of migratory birds listed under Schedule 1 of the SARA. Notably, this was the first Protection Statement to be issued by a Minister under section 58(5.2) of the SARA.
The Court’s Analysis
The issue as identified by the Court is whether the Protection Statement is ‘reasonable’ or whether, as argued by the applicants, the Minister’s determination “that the obligations contemplated by subsection 58(5.2) of the SARA were fulfilled by the Protection Statement was unreasonable.”[11] This section is triggered if the Minister chooses not to recommend the further protection of critical habitat and requires the Minister to include, in the public registry, a statement setting out how critical habitat is already legally protected.
The applicants argued the Minister’s determination was unreasonable for several reasons including: the text of the section 58; its purposes within the SARA; the overall scheme of the statute; the plain wording of the MBCA; the purpose and scheme of the MBCA; and the original purpose of the Convention.[12] Overall, the applicants allege that the definition of critical habitat identified in the Protection Statement “unreasonably limits the protection of critical habitat of threatened, endangered, and extirpated migratory birds.”[13] They argue that it does so by confining the definition of critical habitat to the nests of those birds, leaving the rest of their critical habitat unprotected on non-federal lands (or leaves them under whatever provincial regime may apply).[14] The Minister disagreed, arguing that because the MBCA focuses on the protection of nests, the interpretation of section 58(5.2) of the SARA as applying only to the nests of migratory birds is a reasonable interpretation.[15]
The Court adopted most of the arguments put forward by the applicants, beginning with the idea that the words of a statute must be read in their entire context and in their ordinary and grammatical sense and that subsections 58(5.1) and (5.2) of the SARA establish a framework for protecting the critical habitat of migratory birds on non-federal lands.[16] Specifically, the Chief Justice noted that insofar as migratory birds are concerned “subsection 58(5.1) limits the scope of the prohibition in subsection 58(1) by providing that where the critical habitat is not on federal land, the prohibition applies only to those portions of the critical habitat that (i) are habitat to which the MBCA applies, and (ii) the Governor in Council may, by order, specify on the Minister’s recommendation.”[17] The Minister is obligated to make a recommendation to the Governor in Council if they believe that there are no provisions under the SARA, or another Act, that legally protect the critical habitat in question.[18] A secondary obligation, to make a Protection Statement, applies if the recommendation is not made. Therefore, it applies if, “the Minister concludes either that all of the critical habitat to which the MBCA applies is legally protected, or that a portion of that habitat is legally protected.”[19] The Minister argued that this second obligation can be triggered in the event that any critical habitat is protected, even if one or more other portions of that habitat is not legally protected.[20] The Court disagreed, arguing that the obligation exists in “respect of any portion of the relevant critical habitat” that is not protected and that this interpretation aligns with the scheme and purpose of both the SARA and the MBCA.[21]
https://unsplash.com/photos/a-group-of-birds-that-are-sitting-on-a-log-2XHW270eycc
Another issue arose with respect to the phrase “the habitat to which [the MBCA] applies.” The applicants argued that the ‘habitat’ in question extends beyond nests, while the Minister disagreed. However, in this instance, the Court again found for the applicants.[22] In the interpretation of the MBCA, the Court looked to the prohibition against depositing and permitting the deposit of harmful substances to migratory birds in waters frequented by these birds which is found in section 5.1(1) of the MBCA suggests that this provision applies to bird habitats, insofar as it relates to those specified activities.[23] The Court went on to highlight the purpose of the MBCA which is to protect migratory birds as populations. Finally, the Court cited section 12(1)(i) which allows regulations for migratory birds and nests and for the control and management of those areas, which the Court found suggests that it is intended to apply beyond just nests.[24] The conclusion is therefore that protection applies to habitat beyond nests as clearly set out in the scheme and purpose of the MBCA and, as the Court also pointed out, in the objectives of the original Convention.[25]
The Court also looked at SARA and found that the scheme of the Act “supports a more expansive interpretation of the habitat referred to in subsection 58(5.2).”[26] The determination of critical habitat is specific to the species in question and if necessary, as it is for the marbled murrelet, can extend well beyond nests.[27] Thus, the interpretation that limits the protection of critical habitat to only apply to nests is unreasonable.[28]
The last argument by the Minister was that due to the environment being shared jurisdiction between the federal government and the provinces, it was reasonable to adopt an interpretation that avoided any frustration of provincial interests and, once again, the Court disagreed.[29] The Court looked to cooperative federalism finding that it does not go so far as to require that a statutory provision is read down to the point “that it is without utility” or that it no longer falls within a reasonable interpretation of the relevant statute.[30]
| Drew Yewchuk has provided a more in depth discussion of this interpretation of cooperative federalism in his blog Misunderstanding Cooperative Federalism: Environment and Climate Change Canada Unreasonably Failed to Protect Migratory Bird Habitat. The ELC has also published an entire series on the issues of constitutional jurisdiction as it relates to the environment, or lack thereof, in the Constitution – see specifically Threatened Jurisdiction: Species at Risk and the Constitution. |
The Court concluded that the legislative scheme of the SARA supports a broader interpretation of subsection 58(5.2) than just ‘nests’ and that the protection of critical habitat must extend beyond this point.[31] This means that the Minister’s interpretation was unreasonable particularly considering the “potentially harsh consequences” for the species in question.[32] In light of this conclusion, the Court set aside the Protection Statement and remit it to the Minister for reconsideration.[33]
Notably, we are now over a year later and at another World Migratory Bird Day without an updated Protection Statement. It remains to be seen how the federal government will choose to respond.
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[1] Species at Risk Act, SC 2002, c 29; Migratory Birds Convention Act, 1994, SC 1994, c 22; Western Canada Wilderness Committee v Canada (Environment and Climate Change), 2024 FC 167 [Western Canada Wilderness v Canada].
[2] Wildlife Act, RSA 2000, c W-10; see Species at Risk Act, ss 11, 32-34, 58, 61 & 80.
[3] MBCA, s 4.
[4] MBCA, s 5.
[5] MBCA, s 5.1.
[6] SARA, s 58(4).
[7] Western Canada Wilderness Committee v Canada, para 7.
[8] Western Canada Wilderness Committee v Canada, para 10.
[9] Western Canada Wilderness Committee v Canada, para 9.
[10] Western Canada Wilderness Committee v Canada, para 11.
[11] Western Canada Wilderness Committee v Canada, para 26.
[12] Western Canada Wilderness Committee v Canada, para 48.
[13] Western Canada Wilderness Committee v Canada, para 2.
[14] Western Canada Wilderness Committee v Canada, para 2.
[15] Western Canada Wilderness Committee v Canada, para 49.
[16] Western Canada Wilderness Committee v Canada, paras 52 & 53.
[17] Western Canada Wilderness Committee v Canada, para 55.
[18] Western Canada Wilderness Committee v Canada, para 57.
[19] Western Canada Wilderness Committee v Canada, para 58.
[20] Western Canada Wilderness Committee v Canada, para 59.
[21] Western Canada Wilderness Committee v Canada, para 60.
[22] Western Canada Wilderness Committee v Canada, paras 63 & 66.
[23] Western Canada Wilderness Committee v Canada, paras 67-69.
[24] Western Canada Wilderness Committee v Canada, paras 72 & 74.
[25] Western Canada Wilderness Committee v Canada, para 77.
[26] Western Canada Wilderness Committee v Canada, para 97.
[27] Western Canada Wilderness Committee v Canada, para 110.
[28] Western Canada Wilderness Committee v Canada, para 111.
[29] Western Canada Wilderness Committee v Canada, paras 114 & 115.
[30] Western Canada Wilderness Committee v Canada, para 117.
[31] Western Canada Wilderness Committee v Canada, para 119.
[32] Western Canada Wilderness Committee v Canada, para 136.
[33] Western Canada Wilderness Committee v Canada, para 146.