South Bruce Peninsula has filed an appeal of last week’s Provincial Offences court decision that found the town guilty of two counts of damaging piping plover habitat through its beach-grooming work in 2017.
“We respectfully disagree with the decision that the justice of the peace arrived at. We have eight points of appeal,” Mayor Janice Jackson said Tuesday in an interview.
Council had voted during an in-camera session to seek the appellant review by a judge in the Ontario Court of Justice, she said.
The town’s main challenges relate to the POA court’s findings on what constitutes piping plover habitat as well as damage to that habitat.
Justice of the Peace Charles Anderson said in his Oct. 3 decision that based on expert testimony at trial, the court defines plover habitat as including a 10.5-kilometre section of Sauble Beach from the Crowd Inn to the mouth of the Sauble River.
But Jackson said that “clearly contradicted” the testimony of Crown expert witness Dr. Francesca Cuthbert, professor at the University of Minnesota.
Jackson pointed to a section of the court transcript in which Cuthbert, during re-examination by the Crown, said the south end of the town-owned Sauble Beach is not plover habitat due to “lack of vegetation, flatness, high human activity, recreational equipment and so on.” But she said that doesn’t mean the habitat couldn’t be restored there.
Jackson said another Crown witness testified the beach between 11th Street and the Sauble River is not plover habitat.
Jackson also noted the town-owned portion of the beach is only four kilometres long – not 10.5 km. She said since Anderson stated that human usage can damage plover habitat, designating the entire beach as piping plover habitat would mean the town would be “automatically guilty of destroying” the shorebirds’ habitat simply by welcoming its hundreds of thousands of visitors to the sandy shoreline each year.
Jackson said the Crown also could not prove at trial that the town damaged plover habitat.
Anderson found the town guilty of both charges laid in 2018 by the Ministry of Natural Resources & Forestry.
Both alleged the town had violated the Endangered Species Act by damaging piping plover habitat through its beach maintenance work at Sauble Beach.
The first related from work carried out in mid-April 2017 before the birds arrived for their nesting season, while the second stemmed from work undertaken in late August to early September 2017 after the plovers had left for their southern wintering grounds.
Anderson said in both instances the work, authorized by town council, contravened the municipality’s own bylaw and best practices established by the MNRF.
After finding the town guilty, Anderson accepted a joint request by the Crown and town’s lawyers to adjourn sentencing until Dec. 12 at 10 a.m. to give the town and Ministry of the Environment, Conservation and Parks more time to complete a comprehensive beach management plan for Sauble Beach.
Jackson said Tuesday that work on the agreement is going well and the town hopes it will be finalized by year’s end.
“This is something that I’ve been wanting for five years is to get a plan in writing with clear instructions and guidelines by the ministry that we both can abide by,” she said.
The town has been performing regular beach maintenance work, which involves a tractor pulling a rake, since the plovers left for the season in August.
Council also voted to retain an expert approved by the Ministry of the Environment and MNRF to use a backpack sprayer to apply herbicides directly onto invasive plants on Sauble Beach.
“They’re spot treatments. It’s not a blanket application of herbicides,” Jackson said.
That work wrapped up last week.
“Honestly, we just want to get rid of these plants. We had two options – we could go in with machinery or we could go in with an herbicide and they chose a herbicide,” she said, referring to the province.
Once the invasive plants are gone, she said the town will only have to rake the sand.
Jackson confirmed the town has spent just over $600,000 so far on legal fees to fight the two charges laid by the MNRF.
That money can’t be recovered if the town wins on appeal, she said.
Jackson said the town is willing to take its fight against the charges right up to the Ontario Court of Appeal, if necessary.
The POA court trial on the MNRF charges took place in the spring.
The Crown called seven witnesses, including Cuthbert and MNRF management biologist Suzanne Robinson. The town didn’t call witnesses or present evidence.
JP 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.
Anderson said he agreed with expert testimony that the work by a bulldozer between Aug. 23 and Sept. 7, 2017 – the subject of the second MNRF charge – could have a lasting or permanent impact on Sauble’s dune system.
He said pictures showed at trial that 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.
He also said the town’s beach-raking in mid-April 2017 would, in the short-term, 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 added.
The town has maintained it has never harmed the plovers or their habitat, saying Sauble now has one of the most successful plover recovery programs in the country.