Wednesday, September 3, 2003

Birds By Law

Protestors Prevented City of Hamilton from Breaking Federal Law

City study confirms that construction site occupied by nesting migratory birds

A City of Hamilton study has confirmed that the citizens who successfully stopped the City from beginning construction of the proposed $220 million Red Hill Creek Expressway, also prevented the City from violating the federal Migratory Birds Convention Act.
Citizens set up picket lines on August 5 near Greenhill Avenue in east Hamilton, and blocked access to a site slated for construction of part of the controversial expressway. They argued that the City did not have a legal right to begin the construction work, partly because of the presence of nesting migratory birds in the proposed construction site, first reported in an August 4 media release by Friends of Red Hill Valley.
The City is now pursing an injunction to prevent protests at the site. The next court appearance is scheduled for 10 am on Friday, September 5 in the John Sopinka Courthouse at 45 Main Street East in Hamilton.
As part of its court affidavits, the City has released a study conducted by its own consultants which confirms that nesting migratory birds were still on the construction site as late as August 21. The study was conducted by Karl Konze of Dougan and Associates. He says the nests he found may be active until this week and recommends that a further bird survey be carried out prior to any attempt to start construction. A continued 'nest-in' by the birds may result in further postponement of construction.
It is clear, however, that no study was conducted by the City prior to its attempt to start construction in early August. If this construction had been allowed to proceed, the City would have violated the federal Migratory Birds Convention Act which makes it an offence to "disturb, destroy or take a nest, egg, nest shelter, eider duck shelter or duck box of a migratory bird".
The City is responsible for checking details such as these before rushing to start construction work. "In their rush to pave the valley, the City continues to show its lack of care and concern for the environment and the law," said Friends of Red Hill chair Don McLean. "Never mind that if the city gets their road these birds will be homeless next year when they return to find 44,000 trees cut down to make way for pavement."
Far from thanking the protestors from preventing the City from violating federal law, Hamilton has threatened protesters with criminal charges and civil lawsuits including seizing people's homes to cover court costs and any delays to construction.
Mr. Konze's court affidivat also includes a "Red Hill Valley Project - Nesting Bird Survey and Due Diligence Protocol" dated "August 2003" that requires bird surveys to be conducted within four days of the proposed start of construction. It appears this protocol was developed AFTER the nesting birds were pointed out by Friends of Red Hill Valley, and is another positive result of the protestors' actions in stopping the construction work.
An electronic copy of Mr. Konze's affidavit is available on request.

contact Friends of Red Hill Valley for more information

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