Court Rejects Challenge to Migratory Birds Convention Act

Court Rejects Challenge to Migratory Birds Convention Act

June 9, 2008 (Ottawa) – Provincial Court Judge Patricia L. Cummins today completely rejected a challenge to the constitutional validity of the law that protects migratory birds in Canada, the Migratory Birds Convention Act. The judge, in a decision made this morning in Burton, New Brunswick, confirmed the federal government’s authority to make laws to protect migratory birds and that the law itself was neither vague nor overly broad.

The challenge was made by J.D. Irving Limited after it was charged with destroying great blue heron nests during the construction of a logging road.

“This decision is good news,” said Albert Koehl, a lawyer with Ecojustice. “We hope it will motivate the federal government to begin enforcing the Migratory Birds Convention Act against industry across the country — and not simply in this rarest of cases in New Brunswick.”

On November 9, 2006, J.D. Irving Limited and Jason Hiltz were charged with unlawfully destroying nests of migratory birds (Great Blue Herons), contrary to a regulation under the Migratory Birds Convention Act. In response to this charge the defendants pleaded not guilty.

Irving then challenged the constitutionality of the Act and the regulation, arguing that they go beyond federal powers and violate the Canadian Charter of Rights and Freedoms, and that they are unjustly vague and overly broad.

The judge rejected Irving’s arguments, determining that the Act and regulation are a valid exercise of federal power given that they implement an international wildlife treaty and deal with a subject matter of national concern.

“We are encouraged that the Judge roundly dismissed every detail of Irving’s challenge with such clarity,” said Ted Cheskey of Nature Canada. “Quite frankly acceptance of Irving’s arguments would have been shocking, as this law has stood up to 90 years of testing.”

“We in the conservation community need to move forward now and push Environment Canada to enforce our laws to protect nature,” continued Cheskey, “and ensure that key regulations like the prohibition against destroying nests or ‘taking’ birds are respected.”

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