A Federal Court ruled that Canada’s Environment Minister, Steven Guilbeault, failed to protect habitats of at-risk migratory birds in old growth logging areas. Chief Justice Paul Crampton stated the Minister’s decision to limit protection to areas where nests were found ‘was neither reasonable or tenable.’ 

“This is specifically about the Minister’s duty under the Species At-risk Act to take action to protect areas of critical habitat for at-risk migratory birds. Despite the Species At-Risk act being about 20 years old, we had never seen the Minister actually take any action under this section of the act to protect critical habitat of at-risk migratory birds.  At least about 25 species of birds are affected by this section,” explained Andhra Azevedo of Ecojustice, the lead counsel representing Sierra Club BC and the Wilderness Committee.

“The federal government had taken the view that the duty of the Minister to take action to protect critical habitat only applied to protecting the nests of these birds and not the rest of the habitat that these birds needed to survive and recover.  That was what we challenged.”

Lawyers for the Canadian government also argued that federal jurisdiction was limited by the division of powers with the provinces, but Justice Crampton found the federal government’s actions ‘inconsistent’ with the Species At-Risk Act.

“This is particularly so where the relevant province has failed to avail itself of opportunities to take protective action in an area of joint responsibility.” 

Andhra Azevedo: “On February 1st we received the decision of Chief Justice Crampton, of the Federal Court, agreeing with our clients Sierra Club BC and Wilderness Committee, that the Minister’s interpretation was not justified. The Species At-Risk Act and the Migratory Birds Protection Laws require the Minister to take action to protect something more than this.” 

In his Judgement and Reasons, Justice Crampton wrote, “The Applicants state that the Minister did not consider evidence indicating that habitat loss and degradation is a key threat to the survival and recovery of most at-risk migratory birds affected by the Protection Statement. I agree.”

Judge Crampton pointed out that in September 2021, the Sierra Club and Wilderness Committee informed the Minister that ‘Marbled Murrelet populations have continued to decline, despite being listed under the Species At-Risk Act for many years.’ 

The two conservation groups pointed out that, “The majority of the Marbled Murrelet’s critical habitat is on provincial lands and that the province of British Columbia had failed to adequately protect that habitat from industrial logging and other activities.”

Many Cortes and  Quadra Island residents were taking part in the Fairy Creek logging blockade around that time. 

When Cortes Currents interviewed Charlotte Dawe of the Wilderness Committee on Sepetmber 5, 2021, registered biologists had already made 240 sightings of the Marbled Murrelets at the blockade, but no nests had been found.  

Andhra Azevedo: “Marbled Murrelets nest high up in mossy old growth trees  and it is nearly impossible to find their nest before logging occurs.” 

Chief Justice Crampton wrote, “The Applicants further assert that the Minister failed to take into account evidence that identifying nests is difficult, and therefore is not an effective way to protect and recover migratory birds. In brief, nests cannot be protected if they cannot be found. Once again, I agree.”

The Ruling

He ruled that Minister Guilbeault’s decision to limit protection to nests be set aside and sent back to the government for reconsideration. 

In the resulting press release, Charlotte Dawe wrote, “Migratory birds travelling as far as Patagonia return to find their critical habitat destroyed in Canada, allowed by the federal government. The court decision challenges this status quo. Indeed, Canada does have a legal responsibility to better protect critical habitat of the incredible migratory birds throughout the country. This is a remarkable milestone to aid in the recovery of migratory birds.” 

Shelley Luce, of Sierra Clubb BC, added, “It further signals the urgency of enacting Biodiversity and Ecosystem Health legislation to protect Species At-Risk here in BC, where the habitat of the Marbled Murrelet and other endangered birds remains vulnerable to logging and other habitat destruction.” 

The Ministers press secretary emailed the publication Vancouver is Awesome that Environment and Climate Change Canada is “aware of the Federal Court’s decision and is taking the time to analyze it and evaluate the next steps.” 

A First Step

Andhra Azevedo: “He has to now reassess  and determine in line with the Chief Justice’s decision,  what the correct interpretation or the reasonable interpretation of his duties are, and what habitat he then needs to protect. What that should mean, and what we hope that means, is that many of these areas of critical habitat for Marbled Murrelet should be protected.” 

“Although this case, and the Minister’s duty is a really important first step in protecting critical habitat, the Minister’s obligation under the Species At-Risk Act is really just to assess whether this habitat is already protected and if it’s not, to recommend to cabinet that that habitat is protected.”

“Cabinet can take into account those other factors, like economic impacts and negotiations with the provinces, which is what we see them do with emergency orders.”

“So there’s a second step that sneeds to happen once he’s made that recommendation, cabinet needs to also agree to protect the habitat.  So even if we’re successful in getting the Minister to take some action, it doesn’t automatically mean that there’s critical habitat protection for Marbled Murrelet.” 

Three other at-risk Species seen at Fairy Creek

When Cortes Currents interviewed Charlotte Dawe, at least four Species At-Risk had been sighted at Fairy Creek. Azevedo stated Justice Crampton’s decision does not apply to at least two of them. 

Andhra Azevedo:  “The Western Screech Owl and Northern Goshawk would not be covered. They’re not migratory birds. They’re still under the Species At-Risk Act and could be affected by other parts of the Species At-Risk Act.”

These are two species of the deep forest, which do not appear in Cortes Island’s recent bird counts. 

Prior to last year, the Western Screech Owl has not been seen on Cortes since 2017. Then the Friends of Cortes Island received funding to carry out an extensive survey of Cortes and the neighbouring Islands. Two Western Screech Owls were found in the remote northern tip of Cortes and they have also been reported on Read and Sonora Islands.

Azevedo did not know if the fourth at-risk species spotted at Fairy Creek was a migratory bird. 

However during last year’s Spring Bird Count, Cortes naturalist George Sirk explained that the Olive-sided Flycatchers would soon make their annual return. 

Implications if Government decides to act

CC: Assuming that the protections for Marbled Murrelet are put in place, what are the implications for logging? 

Andhra Azevedo: “There’s a few ways to see this decision,  the Protection Statement, and the Minister hopefully remaking this decision.” “Reinterpreting his duties affects all at-risk migratory birds across the country. It should affect all of their areas of critical habitat.” 

“So, critical habitat is the specific habitat that’s been identified through scientific studies, and then identified in Environment Canada documents, determining that that habitat is necessary for the survival and recovery of the species.”

“For Marbled Murrelet, that includes nesting habitat in old growth forests.  For other species that can be specific areas in the prairies that are critical habitats, areas of tundra that are critical habitat, and islands off the Atlantic coast.  It can affect forests, but it can really affect any of these specific areas.”

Links of Interest:

• Several endangered bird species spotted at Fairy Creek – Cortes Currents
• Articles about Species at-Risk on Cortes Island
• Articles about Cortes Island Spring and Christmas Bird Counts
• Articles about, or mentioning, Cortes residents at Fairy Creek

Top Image Credit: Marbled Murrelet – Photo by Alan Schmierer via Flickr (Public Domain)

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