Environmental group takes federal government to court over piping plover habitat

Environmentalists are taking the federal government to court over new rules to protect endangered plovers’ habitat.

Ecojustice Canada, representing the Nova Scotia Federation of Naturalists and the East Coast Environmental Law Association, filed a lawsuit on Oct. 31 seeking a judicial review of the habitat protection strategy developed by Environment Minister Steven Guilbeault.

The lawsuit says Ottawa previously proposed a recovery strategy to protect the plovers, which it said would comply with the federal Endangered Species Act. According to the statement of claim, the strategy identified 212 intact beaches in Atlantic Canada and Quebec as important habitat for small, sand-colored birds.

But a revised strategy released in September changed how critical habitat is identified, the lawsuit said.

“The Minister adopted a ‘bounding box’ approach to identifying critical habitat but failed to clearly describe the location or boundaries of critical plover habitat,” the statement read. “Instead, the revised restoration strategy was drawn using grid squares. Identify the locations that contain critical habitats, and identify critical habitats, not as each block as a whole, but as any area within those blocks that has certain vaguely described ‘biophysical properties’.”

Environment and Climate Change Canada said in an email that it was “working hard to respond” to questions about the lawsuit and was “in consultation with our subject matter experts.”

Ecological justice lawyer Sarah MacDonald said the 2012 Plover Restoration Strategy did a “remarkable job” of identifying critical habitat and was “very clear” that the entire beach must be protected. The strategy identifies beaches by name and GPS coordinates, she said.

But she argues that the revised version made changes that weakened its effectiveness.

“What they’re doing now is not saying that whole beaches are critical habitat, but they’re listing what they call grid squares, these kilometer-long squares that cover those beaches,” MacDonald said.

“It leaves large areas of the beach vulnerable to activities that we know are harmful to pluvialis and their habitat, such as residential development and pollution, among other things.”

The suit says the ministry’s decision was neither reasonable nor comprehensible. “

“The revised restoration strategy did not identify critical habitat to the greatest extent or with any degree of geographic precision,” the statement of claim reads. “Additionally, the description of critical habitat in the revised restoration strategy is too vague to support the Minister’s mandate to protect critical habitat or to support mandatory legal protection of this habitat. This undermines SARA’s ability to provide meaningful protection.”

MacDonald said the groups want the court to scrap parts of the new recovery strategy and revert to the original.

The pipe plover is a small bird found only in North America, and there are two subspecies – one that breeds on the Canadian Prairies and the other on the Atlantic coast.

They were listed as endangered under the Endangered Species Act in 2003, according to the lawsuit. Between 2006 and 2016, the number of Canadian plover dropped another 30% to 174 pairs.

The lawsuit argues that pollution from human activities such as housing and urban development, industrial activity, and mining and quarrying pose a serious and ongoing threat to chidonna habitat.

Bob Bancroft, president of Nature Nova Scotia, said plovers were attracted to the disturbances caused by nature on the beaches where they lived.

“Plover prefers to nest in disturbed areas with pebbles, gravel and sand,” he said. “Events like (recent post-tropical storm) Fiona come after the breeding season, and next spring, based on the orientation of a particular beach and the level of disruption, they’ll choose a disturbed area.”

MacDonald agrees, noting that the plovers’ habitat will change with the destruction, and says entire beaches should be protected so the birds can safely follow their natural nesting instincts.

“There is absolutely no point (having certain protected sites),” she said. “So we really hope this lawsuit helps the government see that.”

Hina Alam, Canadian Press

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