South Bruce Peninsula went to court Monday to argue it shouldn’t have been convicted of twice violating the Endangered Species Act by its 2017 raking and reshaping endangered piping plover beach habitat.
Ontario Court Justice Julia Morneau in Owen Sound heard the appeal of the October 2019 convictions in a hearing conducted by audio and video Zoom link, rather than in person due to COVID-19 pandemic protocols.
She reserved judgment until March 9, by which time she expected to have written her decision on the appeal and have distributed her reasons to counsel.
Justice of the Peace Charles Anderson, in a decision Oct. 3, 2019, found the town also contravened the municipality’s own beach bylaw and best practices established by the Ministry of Natural Resources and Forestry.
He said he agreed with expert testimony that the bulldozer work that was the subject of the second charge could have a lasting impact on Sauble’s dune system.
When passing sentence last December he gave the town 180 days to pay $100,000 to Birds Canada to assist with the protection or recovery of endangered piping plovers.
The main town challenges in the appeal relate to the court’s findings on what constitutes piping plover habitat and damage to that habitat under the Endangered Species Act.
The statute and the definitions of “habitat” and “damage” apply across Ontario to over 200 species or animals and plants, town lawyer Jonathan Lisus noted. “It is the first time these provisions have been considered in any meaningful way.”
It’s not enough to say in this case the beach, one of the most popular around the Great Lakes, was disturbed by town actions — proof the birds suffered as a result was needed but was not presented, Lisus argued.
The town also challenged the JP’s acceptance of Suzanne Robinson, a ministry biologist, as an expert witness, arguing she was partisan in favour of plovers, her report led to charges being laid, and her testimony was relied on in the JP’s decision.
Ministry lawyer Nicholas Adamson countered the JP already weighed the evidence regarding possible bias and rejected it – and appeal courts are to give deference to the judge who was there and made the decision on the facts, absent a legal error.
Lisus argued the justice of the peace misapplied the general meaning of the bird’s habitat and that damage in the context of the Endangered Species Act wasn’t proven.
He also argued the JP didn’t balance the needs of the bird with cultural social and economic considerations, as he said is required in the preamble of the Endangered Species Act. The beach is an important recreation area and economic contributor to the town, the town’s lawyer noted.
The town – while successfully encouraging the recovery of the endangered piping plover since it first returned to the beach in 2007– also has a statutory health and safety obligation to maintain its beach, Lisus argued.
He stressed there’s a court-recognized difference between the birds using an area and depending on an area. The definition in the act requires habitat to mean an area on which they depend, not just use.
There’s no specific regulation defining plover habitat, as there is for certain animals including the barn owl and American pelican, set in regulation by a government minister.
Maybe there should be for the plovers, Lisus told Morneau, who at one point questioned whether there could be any meaningful definition when it’s the birds which decide where to nest.
Adamson argued the birds did more than simply use the entire beach — they depended on it — for food and to hide to survive and to fledge. The JP’s decision recognized that in finding the entire beach is habitat, Adamson said.
Lisus noted prosecution expert Dr. Francesca Cuthbert said the south end of the beach, where there are volleyball courts, playground, swings and washrooms, is too busy with people and so is not plover habitat — yet the JP found the entire beach is plover habitat.
Adamson countered she meant that area is so degraded that it serves as poor habitat. Regardless of that area, there were kilometres of beach disturbed by the town which was useful habitat, he said.
Willows removed by town bulldozer in 2017, after the birds left, at the north end of the beach were considered plover habitat by one prosecution expert but not the other, Lisus noted.
Importantly, this levelling of the beach must be shown to have caused adverse impact to the birds and this wasn’t presented, Lisus argued. There was no evidence of erosion from the reshaping of the beach and dunes either, he said.
Similarly, he argued only potential impacts were identified resulting from town disturbance of the wrack, or collection of material where the birds feed at the water’s edge. But proof of “meaningful damage” is needed for a conviction, he said.
Damage means more than altering or modifying the, Lisus argued, given it’s a beach where kids dig holes and where there are dogs.
In response, Adamson argued proof of damage doesn’t mean just harm to the plover, but also damage to the habitat itself. That precautionary approach is to ensure those areas of Ontario which species rely on are protected, without having to show actual harm to species occurred.
Even though the birds did well in 2017 after the town worked on the beach, there may have been circumstances that year which offset the diminished habitat, Adamson said.
If camouflage is removed by raking, maybe survival was improved because more food was available or there were fewer predators or maybe weather was more favourable for the birds. But the habitat was still degraded by the town’s actions and the charges were proved, Adamson said.
The prosecution shouldn’t need studies to assert the grade of the beach changed when photos shows it flattened and without vegetation, or raking which removed the wrack line where insects live, removed areas plovers normally feed on insects – it’s self-evident, he argued.
Adamson noted one expert at trial testified “you can’t draw conclusions from one year of how the species did about whether or not habitat was damaged,” because many factors govern how a species does in any given year. A second prosecution expert didn’t provide evidence on that point at trial.
The little migratory plovers have taken up annual residence at Sauble Beach since 2007, after a nearly 30-year-absence, returning every year with the help of volunteer monitors, who give pet names to the returning feathery friends.
The town has maintained that it has never damaged piping plover habitat and that the shorebirds actually prefer to nest on a “clean beach” – not something asserted by town lawyers in their courtroom presentation Monday.
In March 2018, the MNRF charged the town with violating the Endangered Species Act by damaging piping plover habitat at Sauble Beach on April 13, 2017, before the shorebirds arrived for the nesting season.
The MNRF laid a second charge in late July 2018, alleging the town’s beach maintenance work between Aug. 23 and Sept. 7, 2017 – after the plovers had left for their wintering grounds – also damaged plover habitat.
Lisus said Monday it’s significant that a MNRF’s 2017 annual report doesn’t say the town’s bulldozing and raking of the beach had any impact on the plovers. One nest on the beach fledged four chicks, the most successful ever, he said.
He noted the plovers that year had two nests in the south of the beach on volleyball courts, one by the washrooms, and another in the north with the willow trees. And it was deemed the “best season ever” for plovers.
He said the Crown offered no evidence the plovers suffered 2018 either.
The town put up fencing to protect the plovers nesting on the volleyball court in 2017 and it’s proud of the plover recovery, Lisus said.
The plovers’ return at Sauble is the greatest such success around the Great Lakes, “and not in spite of the town,” Lisus said.