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 in 2017, when 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, such as 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 courts considered and is not further discussed here.
Who Is More Important, Anyway – the Birds or the Residents?
Prior to the matter making it to the Court of Appeal for a hearing, the Town issued a " statement of facts" dated May 4, 2021, expressing the reasons why it did not deserve to be charged under the ESA, noting, "Please remember, whether you live at Sauble or elsewhere in [the Town], this is your Beach, funded through your tax dollars and Paid Parking revenue."
Over the period of 2010 to 2014, the chronology makes reference to "the new Council under Mayor John Close" taking an "approach to discontinue maintenance of the north end of the Beach completely. No maintenance occurred for 4 years causing Willow bushes to blanket the Beach from the dunes to water's edge. Plovers began to abandon the north and moved further south each year to nest. There was substantial community backlash on the loss of the north Beach." The statement of facts referenced a document, which lamented, "When do our people count as much as the birds?"
In 2014, Mayor Janice Jackson was elected to her first term. The majority of Council committed to "reclaiming the north end of Sauble" and "Council set out to convince the Ministry that [the residents could] easily share the Beach with the Plovers but that [they were] not willing to lose the Beach." The statement of facts goes on to outline the various actions taken by council and the back and forth between citizens, environmental groups and the Ministry, which included four "Stop Orders" related to the situation.
Interpretation of s. 10(1) of the Endangered Species Act
Many statutes contain "preamble" statements, and the ESA is one such statute. These are intended to assist with interpretation and typically express the goals the legislator hoped to achieve with the legislation. The Court of Appeal began its analysis of "damage," at issue in the hearing, there.
The court summarized the takeaways of the preamble as including preventing the loss of species caused by human activities which damage habitat; implementing measures to prevent significant reduction or loss of biological diversity, even where full scientific certainty is not present – also known as the "precautionary principle"; preventing damage to avoid or minimize threats to endangered species; and finally, prevention should occur "with appropriate regard to social, economic and cultural considerations."
The prohibitions in the Act are subject to permitting exceptions.1 Under section 17(2)(d) of the ESA, the Minister can issue a permit for an activity that is not to assist in the protection or recovery of the species, if the Minister is of the opinion, among other things, that the activity will result in significant social or economic benefit.
The court concluded that the ESA established a complete prohibition against damage to habitat but that the Minister could issue a permit where the public interest so required. In other words, the prohibitions were broad, but the exceptions authorized by the Minister were the vehicle through which other social and economic needs were recognized. Ultimately, the court, citing a 2012 case of the Court of Appeal interpreting environmental legislation, concluded the "Act should be given a generous interpretation in light of its remedial nature and its objective of environmental protection."
And with that, in the absence of a permit, the answer to the question of "who matters more anyway" was resolved in favour of the birds.
Ordinary Dictionary Definition
Ultimately, perhaps the least interesting thing about the decision was the analysis of the meaning of "damage" under the ESA.
"Damage" is an undefined term in the ESA. The court was left to determine whether what occurred was in fact "damage" as the ESA intended. The trial judge adopted an ordinary dictionary definition of damage, "as to do something physical that causes a feature to be less attractive, useful or valuable." Based on the court's findings of fact about the harm that occurred, the trial judge concluded that the Town had in fact damaged the "habitat," as that is defined in the legislation, of piping plovers.
The Court of Appeal did not interfere with this approach, and concluded the court made no "palpable and overriding error" and that the conclusions were reasonable.
A municipality's goals to protect its citizens' access to a treasured public asset, such as Sauble Beach, is understandable; but ultimately, in the absence of clear legislative direction to do otherwise, courts will take a generous view to the implementation and enabling of environmental legislation. Municipalities should tread carefully in their approach to the management and balance of these issues.
1 Since 2016, the general regulation establishes additional species-specific exceptions as well. In 2021, the regulations were also established to permit exemptions for certain species that are subject to " conservation charges." In 2010, the ESA was also amended, with the addition of section 8.1, to permit temporary suspension of statutory protections for specific species. In 2022, a regulation was introduced to exempt black ash, following its listing, as without such suspension, the prohibitions to species and habitat destruction "would likely have significant social and economic implications for many parts of Ontario and ... additional time is required to determine the best approach to protecting black ash and its habitat."
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