Mayor Janice Jackson

The Town of South Bruce Peninsula is giving up its legal battle over Piping Plover habitat at Sauble Beach after losing another appeal in the matter recently.

• Council To Discuss Next Move After Lost Appeal In Sauble Plover Court Battle
• Town Loses Appeal Over Plover Habitat At Sauble Beach

The town was convicted in 2019 of damaging habitat of the endangered shore bird, by raking and grading the beach in prior years.

South Bruce Peninsula council met in closed session April 28 to discuss next steps after three judges dismissed an appeal by the town which argued the courts erred in their interpretation of the word ‘damage’, and that the opinion of a Ministry of Natural Resources Biologist should not have been accepted as the Ministry was the regulatory agency that charged the town.

After the closed session meeting, South Bruce Peninsula council released the following statement on the town’s website:

Council has accepted the decision of the Ontario Court of Appeal and will not further pursue this matter.

After an exhaustive and expensive effort, it is evident to us that fighting large, well-funded environmental groups coupled with ambiguous legislation is futile. There seems to be no appetite to oppose these groups, regardless of the circumstances. It is unfortunate that the Town has had to fight to maintain our beach when other communities with Plovers maintain theirs annually in much the same way, without being challenged or charged. Council has always acted in the best interest of our town, in fact through our collaborative stewardship, we saw the largest Plover population in our history return to Sauble after we reclaimed the beach.

The bottom line from this trial is that even though the Plaintiff’s expert witnesses could not prove that we damaged Plover habitat, we were convicted anyway.

For 5 years now, the town has been prevented from touching the beach other than to clear the drainage swales and remove dangerous items, yet we are expected to responsibly host a million tourists each year. Winning this case was critical because a loss will very likely prevent us from properly maintaining our beach again.

Sauble Beach brings millions in tourism and millions in property taxation. This revenue to our taxpayers and businesses is generated primarily because of the beach. People visit and live at the beach because of the beach. Yes, this case has come with a hefty price tag, but we make nearly a million per year in parking revenue alone. Tourists pay our taxpayers a million dollars per year just to visit Sauble Beach.

This case has been ongoing for 5 years and the cost to defend our beach when averaged over that 5-year period, fell within our budget resulting in no property tax increases. We simply had to fight for the right to maintain our own asset, an asset that is critical to our Town.

This Council and the previous Council were committed to ridding our beach of the invasive Willow bushes that blanketed the north end. We suffered a near complete loss of our northern beach as most will remember. The job we did to rid the beach of Willows has endured these last five years. Between bulldozing them out and then killing the remaining Willows with herbicides, we were able to eradicate them. To our good fortune, the high-water levels the following year washed away the remaining dead bushes. We now have our beach back and it’s looking fairly good. Returning our beach to the people has been worth the fight however we worry about how long this will last. The Willows won’t remain at bay forever. This Council will continue to do our best to preserve our beach and ensure its beauty and active enjoyment for our residents and visitors for years to come. In fact, this Council would not hesitate to fight for any area of our Town that is under the threat of loss. We hope that in the future, the Province doesn’t deem any of our other parks a habitat to a discovered species and removes it from public access.

Council stands by its decision to fight for our beach however it is clear that we cannot beat the large environmental groups and the pressure they put on the Province to charge our Town.

This case has now drawn to a close, but this Council will never stop defending the rights of our Town.

Janice Jackson – Mayor

Town of South Bruce Peninsula

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The third time was not the charm for the Town of South Bruce Peninsula, Ont.

The municipality had its appeal of destroying endangered piping plover habitat dismissed by Ontario’s Court of Appeal on Friday.

South Bruce Peninsula was convicted on two counts of damaging piping plover habitat in October 2019. A court found the municipality erred when it bulldozed and raked section of Sauble Beach’s north shore in the spring and fall of 2017.

The town appealed their conviction once, but lost, before taking it to the Ontario Court of Appeal in March.

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The Ontario Court of Appeal has dismissed a legal challenge by the Town of South Bruce Peninsula, saying sand dunes may take ‘many years to recover’

Ontario’s appeal court has dismissed the Town of South Bruce Peninsula’s legal challenge of convictions charging the municipality with damaging piping plover habitat. 

Over the past five years, the town has been engaged in a legal battle with the Ontario Ministry of Natural Resources over maintenance of the 11 kilometres that make up Sauble Beach, the second-longest freshwater beach in the world. On a good summer, the sandy shores become home to the tiny endangered birds. They rely on sand dunes and wind-swept, natural rubble to provide the habitat they need to mate and nest. 

Piping plovers had all but disappeared from the beach until 2005, when a pair appeared for the first time in decades. Since then, local residents have rallied to prioritize their safety. But as tourism boomed to record levels, fuelled by population growth and pandemic-lockdowns, the town council invested in raking and bulldozing the entire width and length of the beach to make it attractive to human visitors and developers. In the process, sensitive dune systems and plover habitat was destroyed.

In 2017, the provincial ministry fined the Town of South Bruce Peninsula $100,000 for violating section 10 of the Endangered Species Act, which prohibits damage of habitat like that of the at-risk piping plover.  

The act leaves the definition of “damage” open to interpretation, and this case is the first to consider it in Ontario. The municipality is arguing that plovers returned to the beach in subsequent years and that such maintenance is needed to manage a “heavily recreated” beach that is shared by humans and species-at-risk alike.

The court decision, written by Justice Gladys I. Pardu, found that the maintenance work done by the town “far exceed the work contemplated and agreed to by the (Ministry of Natural Resources).”

“Vegetation, wrack and driftwood were removed, the surface of the beach was levelled and microtopographical features of the beach, like mounds of sand, were flattened. The work left deep furrows and tire tracks on the beach,” Pardu wrote. She added that these actions, according to expert witnesses, removed areas and features plovers use for nesting, feeding, shelter and survival. 

“Turning over the sand, as was effected by raking, made the insects and invertebrates normally living in the upper layers of the sand less available to the Plover. The birds’ need for food was particularly acute when they arrived after a long migration, if they were to successfully reproduce,” Pardu wrote. 

The ministry’s $100,000 fine is to be paid to Birds Canada, which runs a plover recovery program at Sauble and Wasaga Beach. This is the second appeal the town has lost, the third time an Ontario court has ruled against it.

The Piping Plover urgently needed food when they arrived in April if they were to successfully nest and reproduce. The deep raking and turnover of the soil just before they arrived made the invertebrates upon which they depended as a source for food unavailable to them. The removal of wrack and vegetation from the shoreline deprived them of that source of camouflage and shelter. … The foredunes might take many years to recover.

In making her decision, Pardu noted that there are four key goals of the Ontario Endangered Species Act. First, “to prevent the loss of species caused by human activities which damage the habitat of the species.” Second, to ensure that “measures to prevent significant reduction or loss of biological diversity should be taken even where full scientific certainty is not present.” Third, “to prevent damage to avoid or minimize threats to endangered species.” Fourth, to protect species at risk “with appropriate regard to social, economic and cultural considerations.”

Pardu found these goals — and the definition of a concept like “damage” in the act — are deliberately broad to allow for expansive environmental protections. She wrote that the judge on the initial appeal case did consider these goals and found “no overriding error.”

“I do not accept the argument of the (town) that there was no evidence of any link between the actions of the town and any effect on the Piping Plover habitat,” Pardu said. 

Fighting the charges in court has cost the municipality close to $1 million. In a special council session on April 29, the town decided to accept this ruling and not pursue the matter further, which would have meant appealing at the Supreme Court of Canada. Mayor Janice Jackson told The Narwhal that the council was “deeply disappointed” by the outcome and that South Bruce hasn’t been able to do any maintenance on Sauble Beach for the last five years because of ongoing legal proceedings.

Jackson said the town will be revisiting its beach management plan and hopes to find some way of “truly sharing the beach” by protecting plovers while also maintaining tourism.

“We were just fighting this to be able to manage our own beach,” the mayor said “But for now our hands are completely tied on one of our main assets: a beach with a million tourists, our main economic driver.” 

The plover lovers are, unsurprisingly, thrilled with the court’s decision. They say the ruling was made public right when the first plover — named Nubbins — landed on Sauble Beach this spring.

Updated on April 29, 2022 at 3:07 p.m. ET: This story was updated to include news that the Town of South Bruce Peninsula is not appealing the ruling, and that the first spring plover has landed on Sauble Beach.

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Twenty-two employees who plow the snow, operate the arenas and landfills in Wiarton and area, aren’t on the job Monday.

As of April 3, the Town of South Bruce Peninsula locked-out its unionized outside workers.

“To avoid labour disruptions during their peak season,” town officials say they decided to lock out their outdoor staff in their parks and public works division.

That means there will be locks on the doors of South Bruce Peninsula community centres, unless there are scheduled events, says CAO, Bill Jones.

Workers had been in a legal strike position since March 15, and without a contract since March 31, 2021, they say.

South Bruce Peninsula says it is offering a 6 per cent wage increase over three years, while SEIU Local 2 is seeking a 13.5 per cent increase over three years.

Workers say they’re trying to keep pace with the rising cost of living, and try to keep pace with wage increases for South Bruce Peninsula managers, that rose this past year.

Town officials say they’re trying to strike a balance between protecting taxpayers’ money, and maintaining fair wages for their staff.

Both sides say they’re interesting in returning to the negotiation table to work out a new deal. They are currently no negotiations scheduled.

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By Janice MacKay
February 4, 2022 2:37pm
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The Ontario Superior Court of Justice ruled that Bruce County breached the restricted purpose of the charitable Bruce A. Krug Estate trust.

Justice Lemon has released the decision after a public hearing was held on Friday, November 12, 2021. The court found the County made mistakes in the purchase of 254 High Street.

Bruce County had used trust funds to purchase a property at 254 High Street for the expansion of the Bruce County Museum & Cultural Centre.

On March 21, 2019, Bruce County received an Ontario Superior Court of Justice Application from Blaney McMurtry LLP, the solicitor representing Laura Robinson and The Southampton Cultural Heritage Conservancy. The Application included an injunction restraining Bruce County from continuing any demolition or removal activities at 254 High Street in Southampton, cancelling any demolition permits, and declaring that the County breached the restricted purpose of the charitable trust created by the Estate Gift from Bruce A Krug.

As a response to legal proceedings initiated by Blaney McMurtry LLP, Bruce County issued its own application to the Ontario Superior Court of Justice to obtain opinion, advice, and direction to continue to move forward with the Museum expansion.

The last will and testament of Bruce A. Krug bequeathed $500,000 and a portion of the residual of his estate for “the County Archives building for the storage and display of the archives of the County, in memory of Bruce and Howard Krug.

“We (Bruce County Council) accept His Honour’s decision [PDF attached] that We are eager to work towards a resolution with the Public Guardian and Trustee, and Estate Trustee, in this litigation,” said Bruce County Warden Janice Jackson. “The last will and testament of Bruce A. Krug bequeathed $500,000 for the storage and display of archives at the County Archives building. In 2018, we purchased property to expand the Archival Services of the Museum. Our goal has always been to realize the public interest on this property, for the public good. We look forward to engaging with the community to achieve this.”

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Dear Editor

Could some of this money be used for more affordable housing?  Or giving a hand up to families in the area?

With costs of housing and food and utilities going up, why are we accepting this complete waste of our money for decisions by Town of South Bruce Peninsula?

Legal fees are out of control and continue to grow. Legal spent $2,172,955 on legal fees for 2021!!!
TSBP 2021 Legal Budget…$250,000 Over budget as of June 30 by $162,000
Shortfall of $1,760,955.

83 percent for upcoming land dispute = $1,461,592 estimate
Where is the other $712,000 in legal fees?

$200,000 Judicial Review.  $75,000 was not paid to my lawyers for the win.
2022 budget is set at over $665,000 for 2022 and 2023.

The concrete barrier at Sauble Beach cost taxpayers about another $30,000 plus they have been left in place to cost us another $2800 per month starting in May 2022.
After hearing form Bill Jones about the wall that we were told would be removed in the fall 2021, it will remain. Options such as just leaving the “No Stopping signs” would accomplish the same result along this area that council has deemed one of the “most dangerous roads”.

I am hoping that other tax payers will contact a council member and ask why are we going to continue to waste our money, at least start with saving $2,800 per month.

Tom LaForme, Sauble Beach

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South Bruce Peninsula has collected nearly $1 million in revenue this year from parking fees, tickets and bylaw fines at Sauble Beach.

Mayor Janice Jackson said that’s the highest annual amount collected to date and more than covers the roughly $830,000 in gross operating expenses related to Sauble Beach.

“So we were able to recover those costs and have some surplus,” she said Oct. 20.

“I’m relieved. Our costs to operate Sauble Beach increase every year as our contracts increase yearly. So our goal always is to recover enough paid parking revenue so that our taxpayers don’t have to carry that burden at all.”

Jackson said the town is planning to use the estimated $145,000 surplus towards the legal fees the town incurred to both defend itself during a judicial review of a Grey Sauble Conservation Authority permit to cut back a section of dunes along Lakeshore Boulevard to address parking concerns and to appeal its two convictions of damaging endangered piping plover habitat.

South Bruce Peninsula council voted in the spring to increase parking fees at Sauble Beach. The hourly rate was hiked from $3 to $7, while the daily fee went from $15 to $30 and seasonal passes for non-residents went from $50 to $200.

Residents and qualifying Sauble Beach employees could still receive a season pass for $50.

Jackson said, at the time, the increases were approved for several reasons, including to put the parking fees in line with those charged in other Ontario beach towns and to help the municipality recoup legal fees for actions related to Sauble Beach.

Director of legislative services/clerk Angie Cathrae said in a report to council that the town had anticipated $887,410 in paid parking/bylaw enforcement revenue for Sauble Beach in the 2021 budget. That was to include $637,670 from parking fees and passes, $238,000 from tickets and bylaw offences and $11,740 from a provincial grant for implementing cannabis regulations.

The town ended up generating $991,596 in revenue – $819,727 from parking fees and passes, $160,128 from fines and bylaw offences, plus the provincial grant.

Town staff expect another $75,000 will be received in January from fine and offence revenue paid through the courts.

Just over 5,500 parking tickets were issued in 2021, almost all in Sauble Beach. The town says 227 Provincial Offences notices were also issued at the beach.

Sixty-seven of those notices related to dogs, while 65 were issued for cooking devices on the beach, 38 were for having alcohol on the beach, 31 were for tents on the beach and 25 were for smoking in a public place.

The number of POA tickets issued in 2021 was down from 316 in 2020.

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South Bruce Peninsula estimates its legal fees for 2021 will exceed the quarter-million-dollar budget set for those expenses by about $1.76 million due to an earlier-than-anticipated start for the Sauble Beach land dispute trial and unexpected costs to defend itself during a judicial review.

Mayor Janice Jackson said a schedule for the Sauble Beach trial was not known when council set the 2021 budget in December, but officials anticipated it would begin in 2022.

It’s now scheduled to start the week of Nov. 22, she said.

“We’re looking at just over $1 million in legal costs, but it’s a big case. It’s a very big case. It’s the biggest that the town has faced to date,” she said in an interview.

But she said the beach case is critical to the future of South Bruce Peninsula and Sauble Beach.

“It is certainly the focal point of Sauble Beach, which is the major tourism driver for the town. The trickle-down effect to losing the beach I think is far beyond what anybody realizes. It’s the centre of our tourism industry in South Bruce Peninsula and to lose it would be a big blow to the economy in South Bruce Peninsula,” she said.

Saugeen Ojibway Nation is claiming ownership of about 2.25 kilometres of beach from the landmark Sauble Beach sign to about 6th Street North. Jackson has said the town firmly believes that stretch of beach belongs to the people of South Bruce Peninsula.

Town officials say 83 per cent of the projected legal fees budget overage for 2021 is directly related to the beach claim costs, which were to be included in the 2022 budget.

South Bruce Peninsula council had set its legal budget for 2021 at $249,500. About $412,000 has been spent so far.

About $200,000 of that was used to defend the town during a judicial review of a Grey Sauble Conservation Authority permit to cut back a section of dunes along Lakeshore Boulevard and install a retaining wall to address parking safety concerns.

Lawyers on behalf of Sauble Beach resident Tom LaForme asked the Superior Court of Justice to quash and declare null and void the permit for the work.

Jackson said the town is planning to reapply for the permit once the review court releases its reasons for quashing the previous permit. That is expected to happen by the end of this month, she said.

“We are going to try to complete that work this fall,” she said.

Jackson has said the town’s plan to cut back the eastern side of the encroaching dunes and install an 89-centimetre-high retaining wall from the Crowd Inn to Kinloss Lane – about 469 metres away – will address public safety concerns related to angled parking, help stabilize the dunes and eliminate the many “goat paths” over the sandy mounds.

LaForme’s application said the town’s plans would “destroy portions of the sand dunes,” which “help protect many homes and other lakefront properties against floods, storms and extreme weather.” It also said the dunes provide habitat for the endangered piping plover, host rare dune vegetation, bolster biodiversity and provide other ecological benefits.

The review court has said any new permit will require the panel’s reasons before deciding on the town’s application.

Jackson said council approved this week a plan to cover the legal fees budget shortfall.

The town will be using any year-end surpluses to offset the cost and will also draw from a legal reserve fund, which has about $500,000 in it. Any excess funds from paid parking revenue will also help with the shortfall, she said.

“If we still don’t make up for it, we do have a tax stabilization reserve and there’s about $400,000 in that. But it would be preferable not to draw from that, but it is there if we need it,” she said.

“We do anticipate that those costs will be covered.”

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Angie Cathrae, states the legal budget for this year is just under $250,000.

Spending to date is just over $412,000 and the town’s legal counsel anticipates costs for the remainder of the year to be over $1.76-million-dollars, limited to existing known cases only.

83% of the variance is directly related to land claim costs that were to be budgeted in 2022.

Mayor Janice Jackson says the legal fees that were approved for this year, “did not include the First Nation’s land claim. It was not scheduled to go to trial until next year but it’s going to trial this November.”

Jackson says the second item that hit the town was the judicial review over the safety work on parking along Lakeshore Boulevard.

She says that was almost $200,000 in legal fees to defend the town against that charge.

However, Mayor Jackson says staff and council will figure out a way to make sure the overage doesn’t “harm taxpayers.”

She says “We’re not interested in having a big tax increase next year.”

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SAUBLE BEACH, ONT. — A local business owner has filed a request for a judicial review to halt plans to alter Sauble Beach’s sand dunes.

Tom Laforme filed the paperwork this week to start court proceedings to try and get the project stopped permanently.

“I am very disappointed in the Mayor and council decision of moving forward now in the spring,” he says.

SAUBLE BEACH, ONT. — A local business owner has filed a request for a judicial review to halt plans to alter Sauble Beach’s sand dunes.

Tom Laforme filed the paperwork this week to start court proceedings to try and get the project stopped permanently.

“I am very disappointed in the Mayor and council decision of moving forward now in the spring,” he says.

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