Original language


Date of text
Type of court
National - lower court
Court name
Provincial Court of New Brunswick
Seat of court
Reference number
2008 37 C.E.L.R. (3d) 200
Jurisdiction, Damages, Constitutional, Property, Civil
Free tags
Environment gen.
Wild species & ecosystems
The New Brunswick Provincial Court dismissed a constitutional challenge of provisions of the Migratory Birds Convention Act (“MBCA”) and Migratory Birds Regulations, C.R.C., c. 1035 that prohibit the destruction of migratory bird habitats. The accused, a forestry company, was charged with damaging or destroying approximately eight Great Blue Heron nests located on its lands. The accused argued that the offence provisions in the Regulations were unconstitutional because they infringed upon the province’s jurisdiction over property and civil rights (in the form of hunting) under section 92(13) of the Constitution Act, 1867. It also made a section 7 Charter argument that the Regulations were vague and overbroad. In dismissing the jurisdictional challenge, the Court rejected J.D. Irving’s narrow characterization of the MBCA as hunting legislation falling solely within provincial jurisdiction. It construed the purpose of the MBCA as protecting and conserving migratory bird habitats from harm caused by a broader range of activities. Consequently, federal authority to enact the MBCA lay in its legislative power over matters concerning “peace, order and good government.” Moreover, the protection of migratory birds requires a single and unified approach that cannot be undertaken in piecemeal fashion via provincial legislation. Finally, the Constitution allows the federal government to enact legislation in order to fulfill Canada’s international obligations under a treaty, in this case the Migratory Birds Convention of 1916. With respect to the Charter argument, the Court held that the Regulations were not void for vagueness because the terms “nest,” “destroy” and “disturb” were understood by the average citizen. Nor were the Regulations overbroad, because the means chosen to address the harm were proportionate to the state objective, and because the prohibition of harm did not remove the “due diligence” defence available with respect to regulatory offences. The accused subsequently pleaded guilty and was sentenced to pay $60,000, with $50,000 to Bird Studies Canada’s Atlantic Canada office and $10,000 to the Environmental Damages Fund.