Federal Court in Canada Rules on Important Migratory Bird Law

On February 1, 2024, the Federal Court of Canada ruled that Canada's federal Minister of Environment and Climate Change, Hon. Steven Guilbeault, had interpreted too narrowly the federal jurisdiction over protections for at-risk migratory birds under the Species at Risk Act (SARA). Chief Justice Paul Crampton recognized the fundamental leadership role of Canada’s federal government regarding migratory bird conservation, concluding that the Minister should have asserted a federal jurisdiction beyond the mere identification and protection of individual nests, by focusing on measures required to address key drivers of bird population decline, including habitat loss and degradation.    

Although this legal dispute concerned the federal role in protections afforded to the Marbled Murrelet, a small, endangered seabird known to nest in the old-growth forests of British Columbia, the impact of this decision is much broader. Chief Justice Crampton ordered Minister Guilbeault to reconsider the federal protections and to broaden Canada’s interpretation of the proper balance between federal and provincial jurisdiction, and their respective roles in protecting at-risk migratory birds’ critical habitat under SARA. With this unequivocal ruling that the Minister’s own interpretation was unreasonably narrow (and unduly deferential to the province of British Columbia), there is greater scope for government action to protect habitat for migratory birds. The ruling provides judicial clarity to decision-makers at all levels of government in Canada, by underscoring the important federal responsibility for migratory birds and signaling to provinces that they too must deliver better habitat protection for migratory birds.

At a time when biodiversity loss has become a global crisis, this judicial decision is positive news indeed. The number of birds in North America has already declined by 3 billion over the last 50 years, and there is no time for jurisdictional disputes. Protecting the places birds and other wildlife species need has never been more important than it is now.

In Canada, many of these places lie within the Boreal Forest. The Boreal is one of the largest intact forests left on Earth, boasting approximately 500 billion trees and a host of avian, terrestrial, and aquatic species. Each year when nesting and breeding season ends, billions of birds pour out of the Boreal Forest and head south to destinations throughout the hemisphere. Governments in Canada, the US, and across the Americas must do more to protect vital bird habitat needed by birds throughout their migratory lifecycle.

Sadly, threats from development and the effects of climate change are putting vital habitats within the Boreal at risk. Large-scale protections led by Indigenous governments and organizations—such as the proposed Seal River Watershed Indigenous Protected and Conserved Area (IPCA), proposed Mushkegowuk Marine Conservation Area, proposed Dene K’éh Kusān IPCA, Pimachiowin Aki World Heritage Site, and Thaidene Nëné National Park—have the potential to protect 100s of millions of acres of vital lands and waters.

We hope the Federal Court of Canada’s recent ruling leads to increased federal support for these conservation efforts, which would greatly benefit migratory birds—as well as other wildlife and people—across Canada. Audubon stands ready to work in partnership across Canada, the US, and the Americas to get this done.