Canada’s environment minister carried out his legal duty when he issued a protection order to safeguard the nests of 25 endangered and threatened bird species, government lawyers submitted in a Vancouver federal court Thursday.
Department of Justice lawyer Andrea Gatti challenged the applicants’ argument that the minister is required to expand protection orders beyond nests, describing it as a “novel characterization” of species-at-risk law. The two environmental groups had previously argued that because the nests are hidden — up to 50 metres high in dense old-growth trees in the case of marbled murrelets — it is impossible to protect the species nest by nest.
But a loss of nesting habitat in old-growth forests due to logging remains the “principal threat” facing the marbled murrelet, says COSEWIC. Defending the minister’s decision, Gatti leaned on different definitions of “critical habitat” under modern laws and its complete absence in historic treaties known as “empire treaty provisions,” old laws on the books before Canada gained its full independence from the British Empire.
“The government has always been pretty hands-off about that power… they want to interpret it as narrow as possible.”