City of Sauble Beach loses appeal of fine for destroying plover habitat

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The Ontario Court of Appeal has dismissed the town of South Bruce Peninsula’s legal challenge to convictions accusing the municipality of damaging piping plover habitat.

For the past five years, the city has been embroiled in a legal battle with the Ontario Ministry of Natural Resources over the maintenance of the 11 kilometers that make up Sauble Beach, the second longest freshwater beach in the world. On a good summer, the sandy shores are home to tiny endangered birds. They depend on sand dunes and natural windswept rubble to provide the habitat they need to mate and nest.

Piping plovers had all but disappeared from the beach until 2005, when a pair appeared for the first time in decades. Since then, residents have mobilized to prioritize their safety. But as tourism hit record highs, fueled by population growth and pandemic closures, the city council invested in combing and bulldozing the full width and length of the beach to make it attractive to human visitors and developers. During this process, sensitive dune systems and plover habitat were destroyed.

The town of South Bruce Peninsula began raking parts of Sauble Beach in 2014. The effort to get rid of wilderness that some considered neglected was aimed at making the beach look pristine for beachgoers. Photo: Don Kennedy

In 2017, the provincial ministry fined the town of South Bruce Peninsula $100,000 for violating Section 10 of the Endangered Species Act, which prohibits damaging habitat like that of the endangered piping plover.

The law leaves the definition of “damage” open to interpretation, and this case is the first to examine it in Ontario. The municipality argues that plovers have returned to the beach in subsequent years and that such maintenance is necessary to manage a “heavily recreated” beach that is shared by humans and species at risk.

the court decisionwritten by Judge Gladys I. Pardu, concluded that the maintenance work carried out by the city “far exceeds the work contemplated and accepted by the (Department of Natural Resources)”.

“Vegetation, kelp and driftwood have been removed, the beach surface has been leveled, and microtopographic features of the beach, such as mounds of sand, have been flattened. The work left deep furrows and tire tracks on the beach,” Pardu wrote. She added that these actions, according to expert witnesses, removed areas and features used by plovers for nesting, feeding, shelter and survival.

“The turning of the sand, as done by raking, made the insects and invertebrates normally living in the upper layers of the sand less available to the plover. The birds’ need for food was particularly acute when they arrived after a long migration, if they were to succeed in breeding,” Pardu wrote.

The department’s $100,000 fine must be paid to Birds Canada, which operates a plover recovery program at Sauble and Wasaga Beach. This is the second appeal the city has lost, the third time an Ontario court has ruled against it.

The Piping Plover urgently needed food when it arrived in April if it was to nest and breed successfully. The deep raking and turning of the ground just before their arrival made the invertebrates they depended on as a food source unavailable. The removal of kelp and shore vegetation deprived them of this source of camouflage and shelter. … Foredunes could take many years to recover.

– Justice Gladys I. Pardu, Ministry of Natural Resources c. the town of South Bruce Peninsula

In making her decision, Pardu noted that there are four key objectives of Ontario’s Endangered Species Act. First, “to prevent the loss of species caused by human activities that damage the habitat of the species”. Second, to ensure that “measures to prevent a significant reduction or loss of biological diversity are taken even in the absence of full scientific certainty”. Third, “to prevent harm in order to avoid or minimize threats to endangered species”. Fourth, protect species at risk “with due regard to social, economic and cultural considerations”.

A sign at the home of Don Kennedy, an active volunteer for Piping Plover Habitat Conservation on Sauble Beach. Photo: Ryan Carter/The Narwhal

Pardu found that these goals – and the definition of a concept like “damage” in the law – are deliberately broad to allow for broad environmental protections. She wrote that the judge on the original appeal considered those purposes and found “no overriding error”.

“I do not accept the (city’s) argument that there was no evidence of a link between the city’s actions and an effect on piping plover habitat,” Pardu said.

Fighting the charges in court cost the municipality nearly $1 million. Janice Jackson, mayor of the town of South Bruce Peninsula, told The Narwhal in an email that the council was holding “a special meeting” on Thursday morning to discuss the decision. She has previously said the option of challenging this in the Supreme Court is on the table.

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