Case challenges habitat protection provision under province’s Endangered Species Act
Toronto, Ont./ Traditional territories of several First Nations including the Williams Treaties First Nations, Huron-Wendat, the Anishnaabeg, Haudenosaunee, Chippewas, and the Mississaugas of the Credit First Nation –
Environmental groups are headed to court to help uphold the Town of South Bruce Peninsula’s conviction for damaging piping plover habitat at Sauble Beach on the shores of Lake Huron.
Ecojustice, acting on behalf of Environmental Defence and Ontario Nature, will argue for a scientifically accurate interpretation of the habitat protection provision in section 10 of the province’s Endangered Species Act (ESA), which makes it an offence to damage or destroy an endangered or threatened species’ habitat.
This case marks the first time the Ontario Court of Appeal will consider the meaning of “damage” to habitat in the context of this offence. The Town is advocating for an interpretation that would seriously weaken the habitat protection provided by the ESA.
In 2019, the Town of South Bruce Peninsula was convicted on two charges of damaging piping plover habitat, contrary to section 10(1) of the ESA. The charges related to mechanical raking and grade work the Town performed at Sauble Beach in April and August of 2017.
The convictions were upheld on appeal, and the Town is now bringing a further appeal to the Ontario Court of Appeal.
Piping plovers are listed as endangered species under the ESA. The birds nest exclusively on dry, sandy or gravelly beaches with sparse vegetation. Habitat loss and degradation threaten the species’ survival and recovery – and beach raking has been identified as a threat to their habitat.
Lindsay Beck, lawyer, Ecojustice said:
“The Endangered Species Act plays a critical role in protecting endangered and threatened species and their habitats. A robust interpretation of the ESA is essential to protect and restore vulnerable species and their habitats and hold those who mistreat the environment to account.
“It is vital we preserve the integrity of environmental laws like the ESA, especially as governments and industries have attempted to amend laws and weaken protections for vulnerable species and habitats in recent years.
“It is also important to demonstrate that governments, individuals and industries cannot act with impunity. Equally important to the existence of these laws is enforcement, ensuring that those who violate the law face consequences.”
Tim Gray, executive director of Environmental Defence said:
“The Town of South Bruce continues to waste its residents’ tax dollars in efforts to undermine the legal protections for the rarest of species in Ontario. This should outrage the people of the community who value the rich natural character of their area and its reputation as a destination for those who appreciate nature and wild places.”
Caroline Schultz, executive director of Ontario Nature said:
“There are only a handful of nesting sites for piping plovers in all of Ontario, including annual breeding on the shores of Sauble Beach. Beach conservation and tourism can co-exist. The reckless destruction of critical plover habitat is indefensible.”
Piping plovers are a migratory shorebird designated as endangered under the ESA. After a nearly 30-year absence, they returned to Ontario in 2007, including to Sauble Beach. The town of South Bruce Peninsula undertakes annual beach maintenance at the site, including raking with heavy equipment, which can compromise the plover’s habitat.
In 2019, the Town was convicted of damaging piping plover habitat, an offence under section 10 of the ESA. The conviction was upheld by the Ontario Court of Justice. The Justice of the Peace who heard the case found that the work undertaken by the Town had damaged plover habitat. He relied on the testimony of expert witnesses, who detailed the damage that had occurred to the beach, dunes and vegetation, which the experts explained would result in the loss of nesting, foraging, shelter and camouflage for the piping plover. The Town was ordered to pay $100,000 to Birds Canada to support piping plover recovery efforts.
The Town then sought and was granted leave to appeal the convictions to the Ontario Court of Appeal. The Town’s appeal will be heard by the Ontario Court of Appeal on February 22, 2022.