The territorial Department of Infrastructure (INF) was ordered Thursday to pay a $10,000 fine for disturbing migratory bird nests off of Highway 3.
Bank swallows, a threatened species under the Migratory Bird Act, typically nest on sand banks, both natural and artificial, such as riverbanks, quarries, sand and gravel mounds. The birds dig burrows which lead to underground nests, often in colonies of 10 to nearly 2,000.
photo courtesy of Alan Vernon
Between May 30, 2018 and June 20, 2018, two employees contracted by INF unknowingly destroyed several swallows' nests off of Highway 3 near Edzo.
The employees were hired to level piles on the highway as a means of discouraging interaction with the birds during construction season. They were not aware that they were irritating the nests in the process.
The disruption was discovered after an Environment Canada biologist photographed multiple birds' nests in May. When he returned weeks later, the swallows were gone and the nests destroyed.
INF pleaded guilty to the offence in territorial court on Dec. 9, 2020. Both the Crown and defence lawyers acknowledged the department’s cooperation in the matter and the steps they are taking to avoid any similar incidents.
Crown prosecutor Morgan Fane told the court that the matter is not an omission of responsibility on the department’s part, but strictly a liability offence. He said the irony is in the fact that if not for INF’s efforts to discourage interaction with the species they would not have disturbed the nests at all.
Defence lawyer Roger Shepard told the court that since the case has been brought to the GNWT’s attention, INF has hired a contractor and senior biologist to create a document outlining best practices for minimizing risk to migratory bird populations, their nests and their eggs. The document will highlight general management of migratory birds with a specific chapter dedicated to Bank swallows. The guideline, when complete, will be made available to the public on the department’s website.
Shepard indicated that the department is also working to create training materials to inform employees of the risks ahead of swallow nesting season, as well as an on-site training for staff to properly identify the birds and understand practical next steps if they find the swallows on site. Pausing their work, taping off a buffer zone or bringing in a biologist were listed as examples. The department plans for the training to be annual for relevant employees.
While these materials have yet to be finalized, Shepard said that “it is not the case that the department is burying their head in the sand, so to speak.”
He said that prosecution is something that the government never hopes occurs, however, in this case “it has spurred a lot of beneficial work.”
The $10,000 fine was a joint position that judge Donovan Molloy accepted.
“This isn’t a case where there was total indifference,” Molloy said. Rather, “the problem was in the execution.”
Steve Loutitt, the department’s newly-appointed deputy minister, sat with his lawyer in the courtroom. Loutitt told the court that INF takes responsibility for its actions and “recognizes that not enough was done.”
“I take this matter very seriously,” he said.
He added that the department has already adopted measures and will take additional steps to ensure an avoidance of such circumstances in the future.