Bird protection vs. construction of logging road prompts legal review

A law protecting migratory birds is being challenged in New Brunswick, and legal experts are saying the outcome could be one of the most significant environmental cases in years, especially for the forestry and mining industries.
The issue began after J.D. Irving, the forestry giant, was constructing a logging road near Cambridge Narrows, New Brunswick and destroyed about eight blue heron nests.
The company was prosecuted by Environment Canada under the 92-year old Migratory Birds Convention Act, an act originating as a treaty between the United States and Canada. Irving pleaded not guilty, but shut down the road and took measures to protect the remaining nests.
However, the company’s lawyers decided to challenge the constitutionality of the historic act. They argue that the act is vague, and beyond the powers of the federal government. The act prohibits anyone from disturbing or destroying a migratory bird’s nest, but Irving’s lawyers have argued that this could be stretched to mean it is illegal for a homeowner to remove a robin’s nest from his or her property.
The Globe and Mail reports that Environment Canada has launched a review of the law and is proposing changes. The Environment Canada proposal would let companies apply for exemptions to the act as long as they had an overall plan to support the bird populations. Business groups including the forestry, pipeline and power generating companies, support these proposals.
Environmentalists, however, are concerned about protecting bird populations, and point to a 2007 study that showed forestry companies destroyed 45,000 migratory bird nests in one summer in Ontario. They also complain that Environment Canada rarely prosecutes companies under the existing legislation, which carries a maximum penalty of three years in jail and a $1 million fine.
The Globe and Mail says experts think the Irving case could take years to resolve and might end up in the Supreme Court of Canada.