Case of the Piping Plover Leads to First Judicial Interpretation of ‘Damage’

  • October 27, 2022
  • Paula Boutis

Fifteen years after coming into force, we have the first judicial interpretation of “damage” to habitat under the Endangered Species Act (ESA). After being successfully prosecuted under the ESA for damaging the habitat of the piping plover, an endangered species, the Town of South Bruce Peninsula (Town) made sure that the issue got a hearing all the way to the Ontario Court of Appeal.

It all began when, following decades of absence, the piping plover returned in 2007 to the Town’s very popular Sauble Beach. Sauble Beach is the second largest freshwater beach in the world and is now again the seasonal nesting ground for the piping plover.

When the birds initially returned, the Town and Ministry of Natural Resources (“Ministry”) worked co-operatively to manage the beach that was now endangered species habitat under the ESA. The Town had passed a by-law prohibiting the raking of Sauble Beach before birds arrived in the spring or within 30 feet of the sand dunes at any time of the year. Over the years, the Town and Ministry met regularly to ensure maintenance work would not interfere with the piping plover’s habitat.

Things went awry ten years later, when, in 2017, the Town chose to use heavy equipment to mechanically rake the entire width of and length of Sauble Beach, spanning some 11 kilometres. The Ministry alleged this far exceeded the nature and extent of what had been proposed and accepted for maintenance, damaging the piping plover’s habitat. Vegetation, wrack and driftwood were removed, the surface of the beach was leveled and microtopographical features of the beach, like mounds of sand, were flattened. The work left deep furrows and tire tracks on the beach. The damage to habitat was said to consist of the following:

  • Removing areas and features the birds could use for scrapes and nesting
  • Removing foraging areas
  • Negatively impacting invertebrates that the birds eat
  • Removing features the birds use for shelter and camouflage; and
  • Degrading the overall ecosystem that the birds rely on.

Ultimately, the Town was prosecuted for two counts under section 10(1) of the ESA, which prohibits damage or destruction of habitat of endangered or threatened species, with the trial judge concluding that this action “showed a wanton disregard for the habitat of the piping plover.” As a penalty, the court ordered the Town to pay $100,000 to be used by Birds Canada to assist with the protection or recovery of endangered piping plovers.

This article focuses on the municipal response to the situation and interpretation of “damage” under the ESA. Our companion article addresses the issues of expert evidence that the various court considered and is not further discussed here.