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piping plover

- by Chris Albinati

Yesterday, March 8, 2021, Justice J.A. Morneau released their decision upholding the Town of South Bruce Peninsula’s two convictions of damaging plover habitat contrary to Ontario’s Endangered Species Act. The convictions stem from the Town mechanically raking and grading the beach in 2017 using heavy machinery, particularly a bulldozer and an agricultural cultivator. The convictions carry a fine of $100,000, and the Town reportedly has spent close to $900,000 in legal fees fighting the convictions.

All told, the Town has spent one million dollars trying to justify its actions, in 2017. It should be noted, that this is just one of several legal fights the Town is waging against others who share ownership and responsibility over the protection, maintenance and use of the beach. With all respect and deference to the Plover, this fight is the smallest of them; the tiny plover is the smallest creature that stands in opposition to the Mayor’s big-talking agenda to control, manicure and eventually destroy the beach for future generations.

After yesterday’s ruling, the score is: Plovers 2 – Mayor Jackson 0.

This morning, Mayor Jackson tried to find a +1 in the decision and posted on her Facebook page:

The decision on our Plover appeal came down yesterday. Justice Morneau upheld the JP's decision that the Town contravened the Endangered Species Act however she overruled the JP on two very critical points. Justice Morneau ruled that the entire south end of the beach is NOT plover habitat and any place Willow bushes exist is also NOT Plover habitat. This very important ruling is a relief as she confirmed our duty to maintain Sauble Beach, which we can resume. Removing the Willow Bushes is what started this entire debacle.

There is nothing in the ruling that confirms the Town’s “duty to maintain Sauble Beach”, and nothing that suggests the Town can simply go about business as usual in the “south end”.

The Town has a duty to maintain the beach as a municipality and it is required to fulfill that duty in a lawful manner that is consistent with laws that protect the environment and species at risk, as well as constitutional laws protecting the rights of Indigenous Peoples (which is the much bigger and costlier legal fight the Town is waging).

The Mayor’s comment suggests that the ruling grants the Town approval to bulldoze and rake whatever they deem to be the "south end" of the beach.

This is a very dangerous and selective reading which completely ignores the other 98% of the decision that clearly repudiates the actions of the Town. Relying on that kind of interpretation is likely to cost the Town (and its taxpayers) another $1M, if not more.

This is an appeal of a regulatory conviction. Any findings and summaries of expert evidence in the decision need to be read in that context. They are about the events surrounding the offence and determining whether the offence was, in fact, committed, in 2017. The ruling makes it clear that the offences were committed by the Town and the convictions were upheld.

As for the geographical boundaries of the Plover habitat, this is what the decision of Morneau J. states:

[58] The evidence was overwhelming that since its return in 2007 the plover nests in locations of its choosing and has done so along Sauble Beach. ...

[60] ... [Dr. Cuthbert] confirmed that the south end of the beach is heavily recreated and “would not be ideal” for plover habitat. His Worship noted the reasons for that qualification and why the south end would not be ideal “because of the lack of vegetation, flatness, human activity, and recreational equipment”. He also noted that Dr. Cuthbert stated that despite those limitations they “would not preclude the plover from nesting there”.

[61] … She also opined that plover habitat does not include willows which were found at points on the Beach.

[62] His Worship’s determination that the entire length of Sauble Beach was plover habitat was in error. While there was evidence that plovers have nested at points along its length, the expert evidence of Dr. Cuthbert was critical to this determination.

[63] I would grant the appeal on this issue to the extent of clarifying that there was sufficient evidence for His Worship to conclude that Sauble Beach is habitat for the plover. However, the portion that was identified as the “south end” should not have been included in that finding. Notwithstanding this change there was sufficient evidence that the spring and fall work did cover the entire beach.

There is no description given or endorsed of the "south end" of the beach. The only relevance of making these findings is for determining whether the Town's actions in the "south end" in 2017 would constitute the offence. However, the Town was found to have raked "the entire beach" and so it was beyond a reasonable doubt that the Town committed the offences, and the convictions are upheld.

If there is anything prospective about this ruling to shape the Town's actions moving forward, it is that the definition of "damage" under the Endangered Species Act, was defined in the context of the plover habitat at Sauble Beach, as stated by Morneau J.:

[44] His Worship’s adoption of a definition of damage that included causing something to be less attractive, useful or valuable, should be understood from the perspective of the SAR [Species at Risk, the Plover]. A flattened beach, the removal of foredunes and natural vegetation, on the evidence of the experts would result in the loss of nesting, foraging, shelter and camouflage for the piper.

The finding that the "south end" of the beach is not suitable plover habitat "because of the lack of vegetation, flatness, human activity, and recreational equipment” needs to be read in context of the ENTIRE decision. The actions that the Town has been taking in its approach to the maintenance of the beach, are the SAME actions that result in the loss, degradation, and destruction of plover habitat.

Mayor Jackson’s attempt to use doublespeak needs to be called out for what it is. When the Mayor says the Town has the approval to be doing what it pleases with the "south end" of the beach, what they are really saying is that they will be maintaining the destruction of potential plover habitat, by ensuring that the "south end" of the beach can never become suitable plover habitat.

This is the Mayor’s modus operandi; act recklessly first and make taxpayers pay millions for it later. This is happening again with the Town’s latest effort to bulldoze the sand dunes (without all the required approvals) back in November of 2020, for which another legal fight is to be heard on March 22, 2021. How much more will it cost the Town to lose this fight?


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