A federal judge has found that Canada failed to adequately protect 25 species of endangered birds, including the marbled murrelet, a seabird that nests in old-growth areas of Vancouver Island—including within the logging blocks of Tree Farm Licence (TFL) 46, where the Fairy Creek watershed is located.

Environmental groups the Sierra Club and Wilderness Committee sued the federal government after Environment Minister Steven Gilbeault issued a protection order that limited safeguarding habitat for migratory birds to just the nests, rather than to their surrounding environment.

In a decision handed down on Feb. 1 and released earlier this week, Chief Justice Paul Crampton wrote that confining the definition of habitats to just nests was “unreasonable,” directing the ministry to redo its definition. 

Marbled murrelets nest in the branches of old-growth trees and are notoriously difficult to spot. Logging companies fail to account for them before clearing their habitats, lawyers for the environmental groups argued.

Andhra Azevedo, lead counsel representing the Sierra Club and Wilderness Committee, said that for the last 20 years, there has been a section of the Species at Risk Act (SARA) requiring the environment minister to take action to protect habitat “necessary for the survival and recovery of at-risk migratory birds” but that no action had been taken until 2022 when Gilbeault issued his definition in the protection order.

By defining their habitat as only their nests, Canada has ignored the full environment needed to ensure their survival, the court found.

“It was really clear that the federal government wasn’t fulfilling their duty to protect this bird,” said Shelley Luce, associate director of the Sierra Club. “It has to feed, has to find a mate and rear its young, and this doesn’t all happen in the nest.”

Luce found it notable that Crampton mentioned in his ruling that BC also had failed to adequately protect the marbled murrelets’ habitat from industrial logging and other activities.  

“The fact that we’re still clear-cutting old-growth forests here in British Columbia—I think British Columbians don’t always realize how much we’re still losing every year,” said Luce. 

However, the federal government has an increased responsibility to protect migratory birds beyond the province’s role. Canada and the US signed a treaty more than a century ago to protect migratory birds that make their way to North America. 

Azevedo called the case an important step to seeing concrete action from the federal government, and that this section of the SARA had “never been weighed in on by a court” before. 

“What this could mean is that it requires the minister to go back and reconsider what this law means, and [it] sets us up to have more federal action to protect migratory birds,” Azevedo said.

Luce said the outlook of increased protections is promising, but it will require effort from both the federal and provincial governments.

She said she hopes the province’s planned biodiversity and ecosystem health protection framework could lead to some legislation to better preserve these areas once it’s enacted. Still, she acknowledged it likely won’t guarantee the protection of old-growth forests and the province will have to do more.

Capital Daily reached out to the Ministry of Environment and Climate Change but did not receive a response in time for publication.