When on Non-Federal Lands: The Role of the Species at Risk Act in Protecting Migratory Birds

A recent decision of the Federal Court reexamined the role of federal Protection Statements under the Species at Risk Act, S.C. 2002, c 29 (the “SARA”) in protecting the habitats of migratory birds in Canada and provided guidance on the proper scope of migratory bird habitats to be protected.

The applicant non-governmental entities in Western Canada Wilderness Committee v. Canada (Environment and Climate Change)^[1] took issue with the amended Protection Statement of the federal Minister of Environment and Climate Change (the “Minister”) for the habitat to which the Migratory Birds Convention Act, 1994 (the “MBCA”) applies for migratory birds listed as threatened or endangered under the SARA (the "Protection Statement").

The Minister had failed to take any action under the SARA in the six years following the issuance of the recovery strategy for the migratory bird species covered by the Protection Statement and had also failed to conduct an assessment of the critical habitat of any of the migratory bird species covered by the Protection Statement. The applicants argued that the Minister’s failure to act left the majority of the critical habitat of the Marbled Murrelet and at least 24 migratory birds listed as either threatened or endangered under the SARA unprotected on non-federal lands across the country. 

With respect to the Marbeled Murrelet, British Columbia had failed to adequately protect this species’ habitat from industrial logging and other activities, allowing the habitat to decline. British Columbia acknowledged that there was less remaining suitable nesting habitat in the East Vancouver Island Conservation Region than was necessary for the survival and recovery of the Marbeled Murrelet species.

The Scheme of Migratory Bird Protection under the Species at Risk Act

The SARA is a federal act that aims to “prevent wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity and to manage species of special concern to prevent them from becoming endangered or threatened.”^[2]

A broad prohibition applies under s. 58(1) of the SARA on the destruction of any part of the critical habitat of species listed as threatened or endangered under the Act if the listed species is a species of migratory birds protected by the MBCA. 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. Based on s. 58(5.1) of the SARA, the prohibitions of the SARA apply on non-federal lands only to those portions of the critical habitat that are habitat to which the MBCA applies.

For such portions of the critical habitat of migratory birds, s. 58(5.2) of the SARA requires that the Minister either make a statement indicating how the critical habitat has already been legally protected or, if no such protections exist, make a recommendation to legally protect that critical habitat.

The MBCA seeks to implement the Convention, listed in the Schedule to the MBCA, by protecting and conserving migratory birds from the danger of extermination.

Cooperative Federalism Cannot Undermine the Protections of the SARA

In this case, the Minister had issued a Protection Statement in which he maintained that the critical habitat of the listed migratory birds to be protected under the SARA on non-federal lands was confined to nests.

The Minister maintained that this narrower interpretation of the obligations to address the critical habitat of migratory bird species under s. 58 of the SARA was reasonable given that, in his view, (1) the MBCA and its regulations focus on the protection of nests, and (2) this interpretation maximizes the provinces’ ability to act in an area of shared jurisdiction.  The Minister held that the broader interpretation advanced by the Applicants that extended SARA’s protections beyond nests risked frustrating the concurrent provincial interests and undermining cooperative federalism.

The Court concluded that the protections of the MBCA and the Convention extended beyond nests, contrary to the Minister’s assertions. A number of provisions of the MBCA plainly indicated that this act applies to migratory bird habitat extending beyond nests. The MBCA, for example, prohibits depositing, and permitting the deposit of, a substance harmful to migratory birds “in waters or an area frequented by migratory birds or in a place from which the substance may enter such waters or such an area” (emphasis added). Moreover, the MBCA states that its purpose is to implement the Convention by “protecting and conserving migratory birds - as populations and individual birds - and their nests” (emphasis added).

Moreover, the Convention implemented by the MBCA expressed an intention to protect a much broader habitat of migratory birds from the “danger of extermination through lack of adequate protection during the nesting season or while on their way to and from their breeding grounds” (emphasis added).

Secondly, the Court held that the principle of cooperative federalism could be called upon “to provide flexibility in separation of powers doctrines.”^[3] However, it could not be invoked, as in this case, to read down the otherwise valid exercise of legislative competence, or to impose a positive obligation to facilitate cooperation where the constitutional division of powers authorizes unilateral action.  

The SARA is remedial legislation to ensure species’ survival and recovery. This entitles the SARA to a generous interpretation. Collectively, the provisions of the SARA also reflect a scheme to protect a scope of the critical habitat of listed endangered and threatened wildlife species that extends potentially well beyond "nests," depending on the particular listed species. To read down SARA’s provisions and limit their protections would frustrate the valid exercise of Parliament's authority.

As a result, the Court held that if the Minister was of the opinion that there were no provisions in either the SARA or any other federal act that legally protected any portion or portions of migratory bird habitat to which the MBCA applies on non-federal lands, the Minister was obligated to make a recommendation for legally protecting the critical habitat that was not protected.

The Court set aside the Minister’s Protection Statement for the habitat to which the MBCA applies for migratory birds listed under the SARA and remitted it for reconsideration.

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