A flock of bank swallows left homeless after a territorial government contractor destroyed their nests in 2018 has so far cost taxpayers $27,000, with more spending to come.
The NWT government was fined $10,000 in Territorial Court on Thursday after pleading guilty to one count under the Species at Risk Act. A contractor plowed over nests the threatened species had created at an unused gravel pit near Behchokǫ̀.
On top of the fine, the GNWT has paid $9,000 for a migratory bird expert to file a report for use as a training manual. The expert has also been paid $8,100 to facilitate a training session with staff.
Similar annual training sessions are planned.
Ironically, the court heard the machinery was being used to make the pit less attractive to bank swallows, which prefer a certain angle of slope to nest inside.
A federal biologist had observed about a dozen of the swallows and a dozen nesting cavities at the quarry, off Highway 3, on May 30, 2018. The birds and their nests were photographed. Construction equipment marked with the contractor’s logo was also in the area.
“No one from the department or the contractor was advised of the discovery of the bank swallows or their nesting cavities,” Crown prosecutor Morgan Fane told the sentencing hearing.
“On June 20, 2018, the biologist returned to [the pit] to monitor the status of the bank swallow colony. The residences had been destroyed as the piles had been knocked down and levelled off.
“No bank swallows were observed to be present.”
No due diligence
The GNWT was aware of its obligations under the Species at Risk Act and the Migratory Birds Convention Act, said Fane.
In November 2016, the GNWT told its area managers the pit’s piles needed to be flattened to less than a 70-degree slope. The work was to be done outside the breeding season, which runs from May to August.
Once bank swallows were observed in any gravel pits, they couldn’t be disturbed, said Fane.
In September 2017, after the nesting season, more urgent orders were given to reduce the angle of the slopes before the next road construction season.
In early 2018, senior staff reminded area supervisors to keep slopes below 70 degrees – an even more crucial instruction as, by that point, bank swallows had been placed on Canada’s list of threatened species.
In March 2018, a supervisor gave the contractor a brochure with information about the birds and related regulations. However, no formal training was given.
“The supervisor warned the employees of the contractor to stop all work and call if they saw any birds or nests,” said Fane.
Work on the pile in question took place from April until mid-June 2018.
“The department did not exercise due diligence to ensure the work was completed prior to mid-April 2018 – or prior to the arrival of bank swallows,” said Fane.
The contractor told investigators that workers did not see any nests – small, dark cavities – or bank swallows.
Charges against the contractor were stayed by the Crown.
Deputy minister apologizes
The case against the GNWT was circumstantial, explained the prosecutor, and a trial involving expert witnesses would have taken one or two weeks at some expense.
An agreement was reached and a joint submission arrived at for a fine of $10,000.
“The department takes responsibility for its role in this matter,” said Fane. “The government should have ensured the contractors were, in fact, doing the work they were asked to.”
GNWT lawyer Roger Shepard said the territorial government wanted to be in compliance with the law and thought it had done what was needed to help prevent damage to wildlife or nesting areas.
“There was certainly no intention to destroy nests here. In fact, the intention was the exact opposite,” he said.
“While the department did make some efforts to make sure the contractors were aware of their obligations … they didn’t go far enough in the circumstances.”
Shepard said the situation could have been avoided if the federal biologist’s initial observations of the birds and nests had been made known to the GNWT.
Deputy infrastructure minister Steve Loutitt apologized to the court for the nests’ destruction.
“The GNWT recognizes that not enough was done … to ensure work done by the contractor was done properly and by the law,” he said.
“The department has taken steps – and will be taking further steps – to ensure [everyone involved] is aware of their responsibilities. This was an unfortunate event.”
Judge Donovan Molloy said “due diligence fell short” in the incident, which should serve as a cautionary tale to others.
“The rule of law applies to everyone, including our government,” he said.
“This wasn’t a case where nothing was done, that no care was taken … there was a failure in the execution of the plan.”