Logging giant J.D. Irving Ltd. must stand trial on a charge of destroying blue heron nests in New Brunswick, a judge ruled Monday.

Provincial Court Judge Patricia Cumming ruled against the New Brunswick-based company's constitutional challenge of the federal Migratory Birds Convention Act, which contains regulations meant to protect migratory birds, their eggs and nests.

Irving lawyers argued the legislation is outdated and unconstitutional, and as such the company should not stand trial on charges laid in 2006 in the destruction of great blue heron nests on company property near Cambridge Narrows, about 80 kilometres north of Saint John.

The company was building a logging road in the area and previous estimates suggested between 12 and 20 nests in the area were destroyed when the wide track was put through the company property.

J.D. Irving Ltd. was charged with disrupting a nesting colony and has pleaded not guilty. Violations are punishable with fines up to $1 million, a three-year prison term or both.

Cumming said the wording of the act is clear and the intention "remains conservation and protection."

"The subject matter of the legislation is the protection of migratory birds that travel and are found internationally, requiring a single and unified approach to fulfil Canada's obligations under an international treaty," she said.

"This is not merely hunting legislation … this is environmental legislation."

Irving officials maintain the company did all that it could at the time to check for nests.

Irving lawyer Christopher Wayland told the Canadian Press that it was too early to say if the company would seek an appeal.

"It appears there will be a trial in October," he said. "And at the time there will be evidence to the effect that Irving did everything it could, and continues to do everything it can, to protect the bird population."

The trial is set to begin Oct. 15.

With files from the Canadian Press