Environmental groups are trying to make sure Ontario stays for the birds.
Ontario's highest court heard an appeal today from the town of South Bruce Peninsula over its 2019 conviction of damaging the habitat of the endangered piping plover (rhymes with "lover").
A judge said the town demonstrated "wanton disregard" for the tiny shorebirds' habitat by mechanically raking Sauble Beach to make it more pleasing for tourists, which scraped away the natural dunes and debris that the birds rely on to lay eggs and shield themselves from prey.
The town was convicted under section 10 of Ontario's Endangered Species Act, which states that, "No person shall damage or destroy the habitat of" an endangered species. There are a couple of caveats, but the definition of "damage" isn't specified further.
Now, the town is challenging that decision, meaning this is the first time a court is weighing in on that idea of "damage." The decision could affect endangered species across the province, Ecojustice lawyer Lindsay Beck said. Ecojustice waded into the Court of Appeal case to represent Environmental Defence and Ontario Nature as intervenors, and argued for a broad, liberal interpretation of "damage."
"We say that a robust interpretation of the Act is essential to protect and restore vulnerable species and their habitat. And we don't want that habitat protection provision to be weakened," Beck said.
The town's counsel, Jonathan Lisus, argued on Friday that the Crown couldn't prove the town's actions harmed the birds' habitat.
The conviction had essentially banned "just about every single kind of thing that people do on a beach," he said.
"And then take comfort in saying, 'Well, don't worry, the good folks from the Ministry aren't going to prosecute you.' That's not the way the rule works."
Beck noted that lower courts accepted expert evidence that the raking resulted in a loss of camouflage, prey base and the dunes themselves —  all of which is "damage" done to "habitat," under the Act's definitions, she argued.
Beck said while it may not seem like a big deal, one minor harmful action can be devastating to a species' habitat if repeated.
"And so if you make the regulatory regime blind to what might be considered minor alterations, you limit the ability to avoid piecemeal damage," she said.
Beck also argued the Act should abide by the precautionary principle — that courts shouldn't wait until there's unequivocal scientific proof of harm before engaging the Act. By then, she said, it might already be too late.
The town sought a decision from the Environment Ministry in 2020 that would've allowed it to rake the beach in a 500-metre radius around active plover nests, but it withdrew its application last month. Beck said she's not sure why.
Environmentalists said at the time that the application would still cause harm to the birds' habitat, and would <a href="https://www.qpbriefing.com/2020/06/25/minister-faces-key-decision-on-conserving-endangered-species-environmentalists-say/" target="_blank" rel="noopener">undermine the Endangered Species Act if the Ministry approved it</a>.
The Court of Appeal is the last stop before the Supreme Court of Canada. Whether it takes that final step will depend on the town's and ministry's appetites for a much lengthier legal battle, as well as whether the lower court says anything in its decision that either side believes could bolster their case.
It's not clear when a Court of Appeal decision is expected.

Plovers in a dangerous time: Shorebird decision could affect endangered species provincewide

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