Canadian forestry company challenges constitutionality of bird protection law
"New Brunswick forestry giant J.D. Irving Ltd. is
challenging Canada's laws protecting migratory birds at a time when
experts warn that some bird populations are in free fall.
Arguments began Tuesday in New Brunswick provincial court on an application by Irving to have the Migratory Birds Convention Act declared unconstitutional.
The company filed the application after it was charged under the federal act as a result of the destruction of several great blue heron nests during a logging operation in Cambridge Narrows, N.B., in 2006.
Irving has pleaded not guilty to the charge, but in advance of the trial, it introduced a motion challenging the constitutionality of the act, which has been on the books since 1917.
Irving is claiming that the Migratory Birds Act violates the Charter of Rights.
"As well, we say it is unconstitutional because it really is provincial jurisdiction, not federal jurisdiction," said Irving lawyer Christopher Wayland of Toronto.
Prosecution witness Steve Wendt, a former director with the Canadian Wildlife Service, told court that protection of migratory birds is just as important now as it was 90 years ago, when the convention was enacted by the United States and Britain, on behalf of Canada.
"When the migratory bird convention came into being, people had observed several extinctions," Wendt told the court, using the disappearance of the passenger pigeon as an example.
"There was a lot of concern then and we have similar concerns now."
Wendt says a number of migratory birds, including such insect-eating species as the common nighthawk and the swallow, are vanishing from the Canadian landscape, making the protection of remaining habitat critical.
The Audubon Society recently published a list of songbirds that are disappearing at alarming rates from North America, including such once-common species as the evening grosbeak and the field sparrow.
"All naturalists know the history of what happened to migratory birds at the turn of the century, when there was unlimited hunting and taking of birds, and the federal law effectively helped bring back some species," said Roland Chiasson of Nature New Brunswick, who attended court
proceedings in Burton.
"If this act is struck down, what is going to happen the day after? That really concerns us. This law has worked."
Albert Koehl, a lawyer with Ecojustice, formerly the Sierra Legal Defence Fund, said forestry companies across Canada are closely watching the Irving case.
He said logging companies are worried the charge against Irving may signal a change in policy at Environment Canada, which has largely left the forestry industry alone when it comes to enforcing bird protection.
"What's new is that a logging company was actually charged with not complying with the Migratory Birds Convention Act," Koehl said.
"We know logging companies are worried about the provisions because the provisions are clear - you cannot destroy a migratory bird nest. But the federal government has not been taking action against logging companies."
Koehl said environmentalists want the federal government to do more to protect birds and their habitat.
Environment Canada's wildlife enforcement division has accused the Irving company and one of its foremen of cutting a logging road through a great blue heron nesting site in the Cambridge Narrows area, destroying at least six nests and disturbing several others.
Herons are protected under the Migratory Birds Convention Act. Violating the act carries severe penalties, including fines of up to $1 million, three years in prison or both.
Arguments are expected to continue until later in the week."