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.
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