J.D. Irving hopes to have federal bird protection law struck down

J.D. Irving Ltd. is in a New Brunswick court, hoping to have the federal Migratory Birds Convention Act struck down.

J.D. Irving Ltd. is in a New Brunswick court, hoping to have the federal Migratory Birds Convention Act struck down.

The legal manoeuvre is part of the forestry company's defence against charges it destroyed Great Blue Heron nests while building a logging road on company land at Cambridge Narrows in July 2006.

The Canadian Wildlife Service investigated the matter, and charged J.D. Irving Ltd. and one of its foremen under the Migratory Birds Convention Act.

Stewart Elgie, a constitutional expert at the University of Toronto, said the company's challenge of the federal law has huge significance and is being watched across the country.

"This is a precedent-setting case that will affect forestry and bird protection all across Canada. It raises an issue that has been brewing for decades and now will be decided by the courts," he said.

"This is launching a missile against the federal government's authority to regulate migratory birds at all."
 
The issue, he said, is not just whether the federal government has the right to protect birds, but whether it also has the right to protect the trees where they nest.

"The federal government clearly has the power to protect migratory birds. What has been unclear is whether they can protect the habitat that those migratory birds depend on and this case raises the question squarely," Elgie said.

The Migratory Birds Convention Act is far from perfect, Elgie said, and he expects the federal government will rewrite it after the court case concludes.

One week has been set aside in Burton court to hear the case.

The company closed the logging road in September 2006 after a Natural Resources conservation officer found six destroyed nests. It was later found that between 12 and 20 heron nests had been destroyed

In February 2007, a company lawyer entered not guilty pleas on behalf of J.D Irving Ltd. and a foreman, and then filed court documents showing they would attempt to have the act itself declared unconstitutional.

Jim Brown, a naturalist who visited the area after the logging road was cut, said it's likely that "half this (Great Blue Heron) colony was lost just to roadway."