South Bruce Peninsula convicted of twice damaging plover habitat
One of the first piping plovers to arrive at Sauble Beach this spring forages for food on a rainy morning Tuesday, April 23, 2019.
Town’s ‘wanton disregard’ could have lasting impact on plover habitat, Sauble’s dune system
Denis Langlois The Owen Sound Sun Times October 3, 2019
South Bruce Peninsula has been convicted in Provincial Offences court of two counts of damaging endangered piping plover habitat through its beach maintenance work at Sauble Beach in 2017.
Justice of the Peace Charles Anderson said in both instances the work, authorized by town council, contravened the municipality’s own bylaw and best practices established by the Ministry of Natural Resources & Forestry.
He said he agreed with expert testimony that work by a bulldozer between Aug. 23 and Sept. 7, 2017 – the subject of the second MNRF charge – could have a lasting impact on Sauble’s dune system.
“The damage appears to be long-lasting or even permanent,” Anderson said in his decision, which he read aloud Thursday at Owen Sound’s POA court.
Anderson accepted a joint request by the Crown and town’s lawyers to adjourn sentencing until Dec. 12 at 10 a.m.
Crown attorney Brian Wilkie said that would provide more time for the town and Ministry of the Environment to continue work and finalize a new beach maintenance plan for Sauble.
“We think now with your decision, there will be quite a bit more motivation to complete this document. And, if so, I think the tenor of the sentencing submission will be quite different if we can get an agreement that affects the beach going forward,” he said.
South Bruce Peninsula Mayor Janice Jackson said the town is “deeply disappointed” by the court’s decision and plans to appeal.
“The town devotes a great amount of time and resources to protecting the plover habitat. We’ve created one of the most successful plover recovery programs in the country. There has never been any harm to the plovers and the season the maintenance was done was the most successful recovery ever,” she said in an interview.
The north end of Sauble Beach had become overgrown by vegetation and uninhabitable for the plovers, she said, necessitating the work. That also made it difficult for people to enjoy the beach, harming the town’s economy, she said.
The organizations Environmental Defence and, locally, Friends of Sauble Beach applauded the court’s decision.
“I think it’s very good news for the Ontario public. It shows the legal system takes seriously the destruction of the habitat of our most vulnerable species and that there’s consequences for individuals or governments or organizations that choose to violate the law,” said Environmental Defence executive director Tim Gray.
He said the decision shows that twice in 2017, the town made a “clear choice” to destroy important shoreline habitat.
Piping plovers, an endangered species on the Species at Risk in Ontario list, returned in 2007 to Sauble Beach after a 30-year absence. Pairs have been nesting and raising their chicks there annually since.
South Bruce Peninsula officials have said the town had been trying for years without success to get an agreement in writing with the province that would allow the municipality to cultivate and rake the sand at Sauble before the birds arrive for the nesting season and after they leave for their southern wintering grounds.
In March 2018, the MNRF charged the town with violating the Endangered Species Act by damaging piping plover habitat at Sauble on or about April 13, 2017, before the shorebirds arrived for the nesting season.
The ministry laid the 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.
A trial for both charges took place in spring.
The Crown called seven witnesses, including plover expert Francesca Cuthbert and MNRF management biologist Suzanne Robinson.
The town didn’t call witnesses or present evidence.
Anderson said the court agrees with the expert testimony that piping plover habitat includes the area of Sauble Beach from about the Crowd Inn to the mouth of the Sauble River.
Based on testimony at trial and photographs from April 2017, he said it’s clear the town had raked, using a tractor and pull-behind plow, the “entire beach” north and south of the 6th Street washrooms.
The work created deep furrows and tire tracks in the sand, he said, and pictures also depicted a “flattened beach” from the Crowd Inn to Sauble River, grassy areas that had been removed and only minimal debris.
“In the short-term, the beach-raking would prevent the piping plover upon their return to go through courtship, building of a nest, mating or laying eggs. They would be vulnerable to conditions that do not provide adequate food, cover from predators and habitat features that protect them from weather extremes,” he said, noting that information was taken from submissions by Cuthbert and Robinson.
As for the second charge, Anderson said pictures showed a medium-sized bulldozer had leveled the sand at Sauble Beach’s north end and created a 1.5-foot-high cut in the foredunes. Other dunes and foredunes were cut even deeper, he said, and grassy areas were removed.
The town did not stay outside of a 30-foot boundary of any historical dunes, as outlined in its own beach maintenance bylaw, he said.
Referencing the expert testimony, he said the work weakened the dunes – important stabilizers for beach ecosystems – and flattened beach topography and removed vegetation necessary for plover nesting, foraging and shelter.
Anderson rejected the town’s defence that it exercised due diligence before doing the beach work, noting the raking violated its own beach maintenance bylaw.
In the first case, he said the work was also outside of the scope of beach maintenance agreed upon earlier by the town’s then-facilities manager and the MNRF. In the second, the town also did not consult with the MNRF before doing the work, he said.
“The fact the beach maintenance was such a departure from best practices, it showed a wanton disregard for the habitat of the piping plover,” he said.