Judge orders rethink of preservation plan for endangered piping plovers on East Coast

CITYnews halifax / By Michael Tutton, The Canadian Press

HALIFAX — A federal judge has ordered Ottawa to rethink its strategy to preserve an endangered shorebird.

In a decision released Monday, Justice Richard Southcott sent the piping plover recovery plan back to the federal environment minister for “reconsideration.”

The judge wrote that federal lawyers had failed to provide a clear response to the concerns raised by Nature Nova Scotia and the East Coast Environmental Law Association about the plan approved by the minister in 2022.

“The (minister’s) decision is unreasonable in that it does not intelligibly respond to the principal concerns raised by the applicants … through the public consultation process,” wrote Southcott, in ordering the quashing of the plan.

Piping plovers are small shorebirds that nest primarily on sand, gravel or cobblestone beaches. The court heard that there are only between 170 to 190 nesting pairs left, well below the 2022 plan’s goal of 310 pairs.

The federal government has noted the birds are increasingly at risk from human activities that destroy their habitat along the shorelines.

The environmental groups argued Ottawa’s plan to protect the plovers in Atlantic Canada and Quebec was confusing and vague — and they asked the minister to provide clear language protecting entire beaches as piping plover habitat.

In the 2022 plan to protect the birds, the department identified one-square-kilometre grids of beaches in a system referred to as “bounding boxes.” A plan created a decade earlier had simply designated beaches where plovers nested to be critical habitat.

Under Ottawa’s plan the grids were protected if they included critical habitat features such as a “gently sloping foreshore” and the “presence of suitable invertebrate prey.”

Lawyers with Ecojustice, the group representing the environmental groups, said the old system was clear: signage could simply warn against any destruction of the beach. However, they say the amended plan will create confusion about which areas are actually protected.

“The applicants argued that without a biology degree, the beachgoer would be unable to understand whether any particular part of the beach is indeed critical habitat,” wrote the judge.

During the trial, the federal government responded that their new system was more geographically precise and was defining critical habitat in clear, scientific terms.

There was also testimony from federal experts arguing that the wording of the recovery plan for the birds was actually intended to identify entire beaches as plover critical habitat.

In his decision, Southcott referred to this submission as an “unusual feature” of the case as it meant both parties took the position that entire beaches should be identified as plover critical habitat.

He concluded the dispute wasn’t over the “underlying science,” but rather “appears to relate to the drafting of the document,” and the different understandings each party had of its meaning.

Nonetheless, the judge concluded the minister failed to deal with the key issues on the wording of the recovery plan that the environmental groups raised. “The response letter demonstrates no … engagement with the applicants’ concerns,” said Southcott.

The judge ruled that until the document is redrafted, the existing system created by Ottawa for protecting the birds would remain in place for at least nine months.

Sarah McDonald, a staff lawyer with Ecojustice, said in an interview Tuesday that Southcott’s ruling is significant because it showed that the federal minister must explain the basis for his decisions and “meaningfully address any concerns raised by affected parties.”

“What we’re hoping is the minister will go back and will correct any drafting errors in the amended recovery strategy and make it very clear that they are identifying entire beaches as critical habitat for the piping plover,” she added.

McDonald said if the legislation is left unclear it could mean in the future that portions of beaches aren’t protected and human activities would encroach on the plovers’ habitat.

“We know the habitat protection is key for most species. So that’s something that we certainly have to figure out how to do right,” she said.

A spokesperson for Environment and Climate Change Canada didn’t provide immediate comment on the department’s response to the decision.

This report by The Canadian Press was first published June 3, 2025.

Michael Tutton, The Canadian Press