Ecojustice lawyers, on behalf of Sierra Club BC and the Wilderness Committee, successfully challenged an overly narrow interpretation of the Species at Risk Act by federal Minister of the Environment and Climate Change Steven Guilbeault in Federal Court.
Following a petition sent by Ecojustice lawyers demanding that the Minister protect the critical habitat of the Marbled Murrelet, a threatened migratory seabird reliant on old-growth forests in coastal British Columbia, Minister Guilbeault issued a Protection Statement concluding that he was only required to protect the nests, not the rest of the habitat, of at-risk migratory birds like Marbled Murrelet.
On behalf of our clients, Ecojustice lawyers launched a judicial review in April 2022, challenging the Protection Statement. Our clients’ essential bone of contention is that the Minister too narrowly interpreted his duties to protect critical habitat for migratory birds as limited only to nests. Protecting nests alone is far from adequate since birds need far more than nests to survive and recover – they need healthy ecosystems that support their full life cycles. What’s more, for species like Marbled Murrelet, it’s nearly impossible to spot nests when they are hidden high in trees or in thickets, so habitat protection based on identifying individual nests is ineffective.
In a court hearing in November 2023, Chief Justice Crampton agreed with our clients’ position that the Minister’s decision was unreasonable. The Chief Justice set aside the Protection Statement and sent it back to Minister Guilbeault for reconsideration. The Chief Justice concluded that only ensuring the protection of migratory birds’ nests, but not the rest of their critical habitat, was not justified under the law or key facts before the Minister. This victory confirms that the Species at Risk Act requires the Minister to do more to protect the critical habitat of Canada’s at-risk migratory birds.
Despite Canada’s ecological and economic wealth and high governance capacity, the biodiversity crisis continues to intensify across the country. Habitat loss is the main cause of endangerment for more than 95 per cent of species on land including most at-risk migratory bird. Threats to habitat from industrial activity like continued logging of old-growth forests and from climate-change fuelled wildfires and heatwaves, leave endangered species increasingly vulnerable to extinction. Ecojustice is committed to ensure that governments provide meaningful protection of critical habitat to support the recovery of at-risk migratory bird species, including the marbled murrelet.
