ARCHIVED — Vol. 150, No. 20 — May 14, 2016

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Critical Habitat of the North Atlantic Right Whale (Eubalaena glacialis) Order

Statutory authority

Species at Risk Act

Sponsoring department

Department of Fisheries and Oceans

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

The Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the North Atlantic Right Whale (Eubalaena glacialis) population as Endangered in May 2003 and November 2013. The assessment was based upon the best available information on the biological status of the population, including scientific knowledge. An “endangered species” is defined under the Species at Risk Act (see footnote 1) (SARA) as a wildlife species that is facing imminent extirpation or extinction.

The assessment of the status of the North Atlantic Right Whale was provided to the Minister of the Environment and the Canadian Endangered Species Conservation Council, which consists of the Minister of the Environment, the Minister of Fisheries and Oceans and the provincial and territorial ministers responsible for the conservation and management of wildlife in that province or territory.

In January 2005, on the recommendation of the Minister of the Environment, who consulted the Minister of Fisheries and Oceans and took into account the assessment of COSEWIC in respect of the species, the Governor in Council, after considering the potential impacts of adding the species to the List of Wildlife Species at Risk set out in Schedule 1 of SARA, decided to add the North Atlantic Right Whale to Part 2 of Schedule 1 as an Endangered species.

As a result of the North Atlantic Right Whale’s addition to Schedule 1, Part 2, of SARA, the Minister of Fisheries and Oceans was required to prepare a recovery strategy for the species. The recovery strategy was prepared by Fisheries and Oceans Canada in cooperation with specific persons and organizations, as required under SARA. Also, to the extent possible, persons who Fisheries and Oceans Canada considered to be directly affected by the recovery strategy were consulted.

The final recovery strategy for the North Atlantic Right Whale, including the identification of the critical habitat, was posted on the Species at Risk (SAR) Public Registry in June 2009. An amended version of the recovery strategy was posted in April 2014 (see footnote 2). The critical habitat of the North Atlantic Right Whale includes the Grand Manan and Roseway Basins [for a description and illustration of the location of critical habitat, see Figure 4 in the Recovery Strategy for the North Atlantic Right Whale (Eubalaena glacialis) in Canadian Waters]. The critical habitat includes areas where North Atlantic Right Whales carry out specific life processes during the summer and fall, including adult foraging and feeding, calf nursing and rearing, as well as socializing and resting. These are all fundamental life cycle processes necessary for the survival and recovery of this endangered species. The formation and maintenance of dense concentrations of copepods (i.e. planktonic crustaceans) is believed to define feeding locations. For further information on the life cycle of the North Atlantic Right Whale, please refer to the final recovery strategy posted on the SAR Public Registry.

Once the critical habitat of an aquatic species listed as endangered (other than individuals in or on federal lands administered by the Parks Canada Agency) is identified in a recovery strategy that is posted as final on the SAR Public Registry, the Minister of Fisheries and Oceans must ensure that all of the critical habitat is legally protected. In most cases, this will be accomplished through the making of a Critical Habitat Order (Order), which triggers the prohibition against the destruction of any part of the critical habitat.

Therefore, this proposed Critical Habitat of the North Atlantic Right Whale (Eubalaena glacialis) in Canadian Waters Order is intended to satisfy the obligation to legally protect critical habitat by triggering the subsection 58(1) SARA prohibition against the destruction of any part of the identified critical habitat. This proposed Order is prepublished in the Canada Gazette, Part I, to give various interested groups and individuals, as well as Canadians in general, a final opportunity to review and comment on the proposed Order.

Background

The Government of Canada is committed to conserving biodiversity and the sustainable management of fish and their habitats, both nationally and internationally. Canada, with support from provincial and territorial governments, signed and ratified the United Nations’ Convention on Biological Diversity in 1992. Stemming from this commitment, the Canadian Biodiversity Strategy was jointly developed by the federal, provincial, and territorial governments in 1996. Building on the Canadian Biodiversity Strategy, SARA received royal assent in 2002. Its purposes are to prevent wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity, and to manage species of special concern to prevent them from becoming endangered or threatened.

Species listed on the List of Wildlife Species at Risk set out in Schedule 1 of SARA benefit from recovery planning and protections under SARA. In general, as stated in the preamble of SARA, “wildlife, in all its forms, has value in and of itself and is valued by Canadians for aesthetic, cultural, spiritual, recreational, educational, historical, economic, medical, ecological and scientific reasons,” which indicates that recovery would hold value for Canadians. Research confirms that Canadians value the conservation of species at risk and measures taken to conserve their preferred habitat. Conserving Canada’s natural aquatic ecosystems, and protection and recovery of its wild species, is essential to Canada’s environmental, social and economic well-being. Protecting species and their habitats helps preserve biodiversity — the variety of plants, animals, and other life in Canada. Biodiversity, in turn, promotes the ability of Canada’s ecosystems to perform valuable ecosystem services such as filtering drinking water and capturing the sun’s energy, which is vital to all life. For individuals of aquatic species listed as extirpated, endangered or threatened, steps taken to help protect and recover them include

  • Prohibitions on
    • Killing, harming, harassing, capturing or taking an individual,
    • Possessing, collecting, buying, selling or trading an individual or any of its parts or derivatives, and
    • Damaging or destroying the residence of one or more individuals;
  • The preparation of a recovery strategy and one or more action plans; and
  • The identification, to the extent possible, and legal protection of critical habitat.

The protection of habitat is important for many species’ survival and recovery. The protection of the critical habitat of aquatic species is a legal requirement under sections 57 and 58 of SARA.

Orders in Council made under subsections 58(4) and (5) of SARA, which trigger the prohibition in subsection 58(1) against the destruction of any part of the species’ critical habitat, are made to legally protect critical habitat and contribute to the broader goals set out by the Canadian Biodiversity Outcomes Framework and its commitments to the United Nations’ Convention on Biological Diversity.

Objectives

In 2005, the Canadian Council of Ministers of the Environment instructed the Federal-Provincial-Territorial Biodiversity Working Group to develop a corresponding outcomes-based framework for guiding and monitoring implementation of the Canadian Biodiversity Strategy. The Canadian Biodiversity Outcomes Framework was approved by ministers responsible for environment, forests, parks, fisheries and aquaculture, and wildlife in October 2006. As part of the Biodiversity Outcomes Framework, conservation and use outcomes were identified, including the following:

  • Improved status of species at risk;
  • No new species extinctions due to human activity;
  • Full complement of native species required for maintenance of ecosystem function; and
  • Species assemblages maintained in their ecological regions.

This proposed Order contributes to and aligns with these broader Biodiversity Outcomes Framework goals. The proposed Order would legally protect the critical habitat of the North Atlantic Right Whale by triggering the prohibition against the destruction of any part of its critical habitat.

The population of right whales in the western North Atlantic was estimated in the COSEWIC report (2003) to number about 322 animals. The lack of firm estimates of historical abundance means that a long-term target cannot yet be determined. However, current knowledge of the status and trends in this population can be used to develop interim targets until the issue of historical abundance is resolved. The interim recovery goal for the North Atlantic Right Whale is to achieve an increasing trend in population abundance over three generations. Generation time in North Atlantic Right Whales is approximately 20 years. Therefore given an interim recovery target of “an increasing trend in population abundance over three generations,” the minimum time period necessary to achieve this target is 60 years. The major human-induced threats are well-known, and reducing these threats is a major focus of the Recovery Strategy.  Consensus among species experts is that reduction of human-induced mortality is possible, tractable and feasible. To help achieve these population and distribution objectives, the following seven recovery goals have been identified:

  • Reduce mortality and injury as a result of vessel strikes;
  • Reduce mortality and injury as a result of fishing gear interactions (entanglement and entrapment);
  • Reduce injury and disturbance as a result of vessel presence or exposure to contaminants and other forms of habitat degradation;
  • Monitor population and threats;
  • Increase understanding of life history characteristics, low reproductive rate, habitat and threats to recovery through research;
  • Support and promote collaboration for recovery between government agencies, academia, environmental non-government groups, Aboriginal groups, coastal communities and international agencies and bodies; and
  • Develop and implement education and stewardship activities that promote recovery.

Description

The proposed Order is made to satisfy the obligation to ensure that the identified critical habitat of the North Atlantic Right Whale is legally protected. With this proposed Order, the North Atlantic Right Whale would benefit from the prohibition in subsection 58(1) of SARA against the destruction of any part of its critical habitat. The prohibition would apply to anyone undertaking activities in and around the North Atlantic Right Whale’s critical habitat. By triggering the prohibition against destruction of critical habitat, the proposed Order would serve to

  • Communicate to Canadians the prohibition against the destruction of any part of the North Atlantic Right Whale’s critical habitat, and where it applies, so that they can plan their activities within a regulatory regime that is clearly articulated;
  • Complement existing federal and provincial acts and regulations; and
  • Ensure that all human activities which may result in the destruction of identified critical habitat are managed to the extent required under SARA.

The proposed Order would apply to any ongoing or future human activities that could result in the destruction of any part of the North Atlantic Right Whale’s critical habitat, and would enable the Crown to prosecute for any such destruction.

Under SARA, an activity that will destroy a part of a species’ critical habitat may be permitted by the Minister of Fisheries and Oceans if (a) the activity is scientific research relating to the conservation of the species and conducted by qualified persons; (b) the activity benefits the species or is required to enhance its chance of survival in the wild; or (c) affecting the species is incidental to the carrying out of the activity. The permit may be issued only if, among other things, the Minister of Fisheries and Oceans is of the opinion that the following three conditions are met:

  • all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted;
  • all feasible measures will be taken to minimize the impact of the activity on the species, its critical habitat or the residences of its individuals; and
  • the activity will not jeopardize the survival or recovery of the species.

Examples of threats to the habitat of the North Atlantic Right Whale include, but are not limited to, those that reduce the quantity or quality of prey; render the habitat unsuitable for North Atlantic Right Whales to undertake their required functions; or exclude the whales from accessing the habitat. The biophysical functions, features, and attributes of North Atlantic Right Whale critical habitat are described in the final Recovery Strategy. Primary threats to critical habitat include acoustic disturbance, prey removal, contaminants, and alteration of biological and physical oceanographic conditions.

The following are examples of activities likely to destroy critical habitat of this species: (see footnote 3)

  • Capture and removal of prey species (e.g. a plankton fishery);
  • Shipping;
  • In-water and/or land-based industrial activities (e.g. pile driving, dredging, and construction);
  • Seismic surveys;
  • Sonar;
  • Large-scale tidal energy developments; and
  • Dumping and discharge of contaminants/pollution (e.g. from industrial developments, vessels).

It is important to note that these examples of activities are not prohibited; rather, it is the destruction of critical habitat caused by human activities that would be prohibited once the Order is made. Under certain conditions, competent ministers may authorize activities which would otherwise contravene the SARA prohibitions. SARA provides tools such as permits that can be issued with conditions and conservation agreements that can be entered into by the Minister of Fisheries and Oceans with any government in Canada, organization or person to benefit a species at risk or enhance its survival in the wild. SARA also allows for the making of regulations, codes of practice, and national standards or guidelines with respect to the protection of critical habitat. A person who, without a permit, carries out an activity that contravenes one of the prohibitions under SARA commits an offence. The Act provides for penalties for contraventions, including fines or imprisonment, seizure and forfeiture of things seized or of the proceeds of their disposition. Alternative measures agreements are also available.

The proposed Order would come into force on the day it is registered and triggers the prohibition in subsection 58(1) of SARA, which confers legal protection to the North Atlantic Right Whale’s critical habitat. This proposed Order would facilitate efforts to support the survival and recovery of the species.

Consultation

The multi-stakeholder Right Whale Recovery Team, now the Right Whale Recovery Network, has provided ongoing input into the drafting and implementation of the Recovery Strategy. This Recovery Network is comprised of representatives from relevant federal government departments and agencies (e.g. Fisheries and Oceans Canada, Environment Canada, Transport Canada, National Defence), provincial government departments (e.g. Nova Scotia Department of Natural Resources, New Brunswick Department of Natural Resources, Nova Scotia Department of Fisheries and Aquaculture), Aboriginal groups, non-governmental organizations, academia, and industry (e.g. fishing, shipping). At a February 2011 meeting, the Recovery Network was informed of the Critical Habitat Order under development. The group members responded with overall support. This support was reinforced during a meeting in 2013, where Recovery Network members expressed interest in seeing the proposed Critical Habitat Order in place as soon as possible.

In 2008, all affected First Nations, Aboriginal groups, and provincial departments were invited by letter to comment on the draft Recovery Strategy, which included critical habitat identification. The comments received during this consultation period were considered for incorporation in the “proposed” version of the Recovery Strategy, which was posted on the Public Registry for a 60-day public comment period beginning on January 8, 2009. No major opposition was voiced toward the Grand Manan Basin critical habitat area identified in the Recovery Strategy. The positive external feedback received during the consultation periods influenced the addition of Roseway Basin as an area of critical habitat in the “final” version of the Recovery Strategy.

Overall, the identification of critical habitat in the Recovery Strategy for North Atlantic Right Whale was well received by stakeholders and the public. However, because some industry sectors were not consulted on this proposed Order to be made under subsections 58(4) and (5) of SARA, letters advising interested parties of the opportunity to comment on this proposed Order were sent to coincide with this publication in the Canada Gazette, Part I.

Rationale

Purpose

Under SARA, critical habitat of aquatic species must be legally protected within 180 days after the posting of the final recovery strategy on the Species at Risk Public Registry. Critical habitat not mentioned in subsection 58(2) must be protected either by the application of the prohibition against the destruction of critical habitat in subsection 58(1), or by provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11 of SARA. It is important to note that in order for another federal law to be used to legally protect critical habitat, it must provide an equivalent level of legal protection of critical habitat as would be afforded through subsection 58(1) of SARA, failing which, the Minister must make an Order under subsections 58(4) and (5) of SARA. Therefore, this proposed Critical Habitat of the North Atlantic Right Whale (Eubalaena glacialis) Order is intended to satisfy the obligation to legally protect critical habitat by triggering the prohibition under SARA against the destruction of any part of the species’ critical habitat.

Existing regulatory mechanisms

Works, undertakings or activities (projects) likely to destroy the critical habitat of the North Atlantic Right Whale are currently already subject to other federal regulatory mechanisms.

Table 1 provides examples of key existing federal regulatory mechanisms that apply to the critical habitat of the North Atlantic Right Whale.

TABLE 1: Examples of existing federal regulatory mechanisms

Act or Regulations

Application to critical habitat

Species at Risk Act, subsection 32(1)

Prohibits, among other things, the killing, harming or harassing of individuals of the North Atlantic Right Whale population in Canada. Activities that would contravene this prohibition require an authorization under SARA in order to proceed. Activities likely to destroy critical habitat are also likely to kill, harm or harass individuals of this species. Therefore, anyone intending to carry out such activities is already subject to this prohibition.

Threats such as noise or contamination can affect both individuals and their critical habitat. Thus critical habitat can be protected through the prohibitions set out in section 32.

Species at Risk Act, section 74

Under this section, an agreement, permit, licence, order or other similar document authorizing a person or organization to engage in an activity affecting, among other things, critical habitat, that is entered into, issued or made by the competent minister under another Act of Parliament has the same effect as an agreement or permit under subsection 73(1) of SARA if, among other things, before it is entered into, issued or made, the competent minister is of the opinion that the requirements of subsections 73(2) to (6.1) are met.

The Department of Fisheries and Oceans currently provides mechanisms for ensuring that activities authorized under other federal legislation applicable to the critical habitat of the North Atlantic Right Whale address key threats to its survival and/or recovery. Additional detail is provided in the section titled “Application of proposed Critical Habitat Order” (see below).

Species at Risk Act, subsections 75(1) and (2)

Allows a competent minister to add terms and conditions to protect, among other things, any part of critical habitat to any agreement, permit, licence, order or other similar document authorizing a person to engage in an activity affecting, among other things, the critical habitat of the North Atlantic Right Whale, that is entered into, issued or made by the competent minister under another Act of Parliament.

A competent minister may also revoke or amend any term or condition in any of those documents to protect, among other things, identified critical habitat.

Species at Risk Act, subsection 77(1)

Under this provision, any person or body, other than a competent minister, authorized under any other Act of Parliament other than SARA, to issue or approve a licence, a permit or any other authorization that might result in the destruction of any part of the critical habitat of the North Atlantic Right Whale in Canada may enter into, issue, approve or make the authorization only if the person or body has consulted with the competent minister, has considered the impact on the species’ critical habitat and is of the opinion that

  • (a) all reasonable alternatives to the activity that would reduce the impact on the species’ critical habitat have been considered and the best solution has been adopted; and
  • (b) all feasible measures will be taken to minimize the impact of the activity on the species’ critical habitat.

The Department of Fisheries and Oceans works proactively with other departments to ensure that critical habitat destruction is avoided or mitigated to the extent possible.

Species at Risk Act, section 79

A person who is required by or under an Act of Parliament to ensure that an assessment of the environmental effects of a project is conducted, and an authority who makes a determination in relation to a project on federal lands under section 67 of the Canadian Environmental Assessment Act, 2012 must notify the competent ministers of the project if it is likely to affect a listed species or its critical habitat.

In such a case, the person must identify the adverse effects of the project on the listed wildlife species and its critical habitat. If the project is carried out, the person must ensure that measures are taken (1) to avoid or lessen any adverse effects the project may have on a listed wildlife species and its critical habitat, and (2) to monitor them. These measures must be taken in a way that is consistent with any applicable recovery strategy and action plans.

As the critical habitat of the North Atlantic Right Whale was identified in a recovery strategy published in June 2009, proponents of activities subject to this provision are already required to take these measures.

Fisheries Act, subsection 7(1)

The Minister may, in his/her absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on.

For example, the prey quantity and quality of the North Atlantic Right Whale is a key feature of their critical habitat. Any prey removal would be subject to the controls in place through licensing.

Fisheries Act, section 35

Prohibits the carrying on of any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery unless authorized.

Serious harm to fish is defined as the “death of fish or any permanent alteration to, or destruction of fish habitat.” Thus, given that “serious harm to fish” encompasses destruction of fish habitat, the prohibition under section 35 contributes to the protection of critical habitat of the North Atlantic Right Whale.

Additional detail is provided in the section below.

Fisheries Act, section 36

Prohibits the deposit of deleterious substances in waters frequented by fish, where such deposits may be deleterious to fish, fish habitat or the use of fish, unless authorized by regulation.

Thus, prohibition of the deposit of deleterious substances in areas identified as critical habitat of the North Atlantic Right Whale in Canada would also contribute to the protection of the critical habitat.

Fisheries Act, Marine Mammal Regulations, section 7

Prohibits the disturbance of a marine mammal except when fishing for marine mammals under the authority of these Regulations.

Canada Shipping Act, 2001

Ballast Water Control and Management Regulations, SOR/2011-237

Vessel Pollution and Dangerous Chemicals Regulations, SOR/2012-69

Collision Regulations (Canada Shipping Act, 2001) — Rule 10

One of the objectives of this Act includes protection of the marine environment from damage due to navigation and shipping activities, including a framework for a Regional Response Team whose role it is to initiate cleanup operations in case of a spill.

The Ballast Water Control and Management Regulations seek to reduce the likelihood of harmful aquatic organisms or pathogens being introduced into waters under Canadian jurisdiction and set out requirements for ballast water exchange and management.

The Vessel Pollution and Dangerous Chemicals Regulations seek to minimize vessel-based marine pollution by adopting standards that are additional or complementary to the International Convention for the Prevention of Pollution from Ships, 1973 and its Protocols of 1978 and 1997.

The Bay of Fundy Traffic Separation Scheme was amended in 2002 to reduce the probability of vessel strikes on right whales. The amended shipping lanes mostly avoid the Grand Manan critical habitat area, with positive implications for the area’s acoustic environment and air and water quality.

These regulations passed pursuant to the Canada Shipping Act, 2001 prohibit discharges and ship passage that could result in the destruction of critical habitat.

Canadian Environmental Assessment Act, 2012

The proponent of any designated project in the critical habitat of the North Atlantic Right Whale must not do any act or thing in connection with the carrying out of the designated project, in whole or in part, if that act or thing may cause an environmental effect, unless

  • (a) the Canadian Environmental Assessment Agency makes a decision, pursuant to the Act, that no environmental assessment of the designated project is required; or
  • (b) the proponent complies with the conditions included in the decision statement with respect to that designated project.

The Act requires that environmental effects that are to be taken into account in relation to an act or thing, a physical activity, a designated project or a project are changes that may be caused to the following components of the environment that are within the legislative authority of Parliament:

  • (i) fish and fish habitat as defined in subsection 2(1) of the Fisheries Act; and
  • (ii) aquatic species as defined in subsection 2(1) of the Species at Risk Act.

Canadian Environmental Protection Act, 1999, Part 7, Division 3 (“Disposal at Sea”)

Seeks to protect the marine environment by regulating disposal at sea. Applications for permits are reviewed and issued by Environment Canada. There is already a process to incorporate Department of Fisheries and Oceans–mandated considerations (aquatic Species at Risk concerns, Fisheries Act concerns).

Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, sections 140 and 142

Section 140 prohibits offshore petroleum exploration and production without an authorization or licence issued by the Canada-Nova Scotia Offshore Petroleum Board. Under section 142, authorization to carry on any work or activity is subject to such approvals and requirements as the Canada-Nova Scotia Offshore Petroleum Board determines, including those activities related to the carrying out of environmental programs or studies. The “Statement of Canadian Practice on the Mitigation of Seismic Noise in the Marine Environment,” which outlines the minimum mitigation requirements for planning and carrying out seismic surveys, is one of the current conditions of authorization set forth by the Board. Oil and gas operators must adhere to this Statement and any other additional or enhanced mitigation identified during the environmental assessment process.

Application of proposed Critical Habitat Order

The proposed Order, on coming into force, triggers the prohibition under subsection 58(1) of SARA against the destruction of any part of the identified critical habitat of the North Atlantic Right Whale. The proposed Order complements the existing federal regulatory framework by formally establishing and clearly communicating the legal protection of critical habitat for species in question as required by subsections 58(4) and (5) of SARA.

As summarized in the table above, there is an existing framework of federal regulatory mechanisms that offers protection to the North Atlantic Right Whale and its critical habitat.

Based upon the best evidence currently available, it is anticipated that the application of the existing regulatory mechanisms is sufficient to manage the application of the prohibition in subsection 58(1) without the need for additional compliance and administrative measures. Fisheries and Oceans Canada does not anticipate any planned or ongoing activities that would need to be mitigated by Canadians or Canadian businesses beyond the requirements of existing federal and provincial legislative or regulatory mechanisms to avoid destruction of any part of North Atlantic Right Whale critical habitat. Should any future activities result in the destruction of any part of the critical habitat of the North Atlantic Right Whale, they would be subject to the stringent requirements of SARA triggered through the making of this Order.

For added specificity, it should be noted that Fisheries Act authorizations are already required for applicants who seek to carry out any work, undertaking or activity that results in permanent alteration to, or destruction of, the critical habitat of the North Atlantic Right Whale. Fisheries and Oceans Canada provides a single window for proponents to apply for an authorization under paragraph 35(2)(b) of the Fisheries Act that will have the same effect as a permit issued under subsection 73(1) of SARA, as provided for by section 74 of SARA. For example, in cases where it is not possible to avoid the destruction of critical habitat, the project would either be unable to proceed, or the proponent could apply to the Department of Fisheries and Oceans for a permit under section 73 of SARA or an authorization under section 35 of the Fisheries Act that is compliant with section 74 of SARA. In either case, the SARA permit or the Fisheries Act authorization would contain terms and conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.

In considering applications for authorizations under the Fisheries Act that would, if approved, have the same effect as a permit under section 73 of SARA, the Minister of Fisheries and Oceans is required to form the opinion that the activity is for a purpose set out in subsection 73(2) of SARA—that is, that the activity is scientific research relating to the conservation of the species and conducted by qualified persons, that the activity benefits the species or is required to enhance its chance of survival in the wild, or affecting the species is incidental to the carrying out of the activity. Furthermore, the pre-conditions set out in subsection 73(3) of SARA must also be satisfied. With respect to the latter, this means that prior to issuing SARA-compliant Fisheries Act authorizations, the Minister of Fisheries and Oceans must be of the opinion that all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted; that all feasible measures will be taken to minimize the impact of the activity on the species, its critical habitat or the residences of its individuals; and that the activity will not jeopardize the survival or recovery of the species.

The future impact of the proposed Order was assessed by reviewing the scale and types of past projects or activities that occurred within or adjacent to North Atlantic Right Whale critical habitat from January 2008 to October 2015. These types of projects and activities would continue to be managed under the existing legislative framework after the entry into force of the Order. Projects or activities that have a potential to destroy critical habitat within the next five years include the following:

  • Shipping — No changes expected to be applied to ship routing. An increase in traffic volume in the Bay of Fundy may occur due to a new marine terminal in Saint John Harbour (see “Industrial development” below). The associated environmental assessment determined that the added shipping noise in the bay would not displace right whales from their critical habitat.
  • Industrial development — No major coastal industrial projects anticipated within a five-year time frame. However, a potential pipeline project could result in the construction of marine terminals and other supporting infrastructure in the Bay of Fundy area within the next decade. Exploratory drilling for offshore oil and gas reserves could occur in areas adjacent to the Roseway Basin critical habitat depending on the outcome of the 2015 Call for Bids (see “Seismic surveys” below).
  • Seismic surveys — The Canada-Nova Scotia Offshore Petroleum Board’s 2015 Call for Bids includes parcels on the Western Scotian Shelf and Slope that are adjacent to the Roseway Basin critical habitat area. A Call for Bids allows Exploration Licences, Significant Discovery Licences, or Production Licences to be awarded through a closed bidding process. Should there be any successful bids on the 2015 parcels, seismic surveys could occur near North Atlantic Right Whale critical habitat in 2016. A strategic environmental assessment for offshore petroleum exploration activities has already been completed for this area, and several mitigation measures related to critical habitat have been proposed. These include avoiding the Roseway Basin and using acoustic modelling to define a buffer zone around the critical habitat area. The Canada-Nova Scotia Offshore Petroleum Board requires that a project-specific environmental assessment be completed for all seismic programs planned on the Scotian Shelf.
  • Sonar — No active sonar naval exercises are expected to occur in or near right whale critical habitat areas.
  • Tidal energy development — No large-scale tidal energy projects are anticipated.
  • Dumping and discharge — No disposal at sea permits are expected to be issued within, or in close proximity to, right whale critical habitat areas.

Based on the best available information, Fisheries and Oceans Canada has determined that there are no future projects anticipated to occur within critical habitat that would need to be mitigated by Canadians or Canadian businesses beyond the requirements of the existing federal regulatory mechanisms highlighted in Table 1 to avoid destruction of any part of critical habitat.

Cost-benefit analysis

It is anticipated that there would be no incremental impacts on stakeholders or Aboriginal groups as a result of the proposed Order. Therefore, considering the existing federal regulatory mechanisms, the proposed Order is anticipated to have minimal impact, resulting in negligible incremental costs. The federal government may undertake some additional activities associated with compliance promotion and enforcement. As a result, there may be some incremental costs for the federal government; however, these are expected to be low and would be absorbed through existing funding allocations.

As discussed above, given the mechanisms already in place, any benefits resulting from this proposed Order are anticipated to be negligible.

“One-for-One” Rule (see footnote 4)

Given that the information requirements of the existing regulatory mechanisms are sufficient to promote compliance with the prohibition against destruction of critical habitat triggered by this proposed Order, with no incremental administrative burden on businesses anticipated, the “One-for-One” Rule would not apply to the proposed Order. Notwithstanding this analysis, this proposed Order must be made to satisfy the obligation to legally protect critical habitat by triggering the prohibition under SARA against the destruction of any part of the North Atlantic Right Whale’s critical habitat.

Small business lens (see footnote 5)

At present, compliance for small business is being met through the administration of the existing federal regulatory mechanisms. In addition to federal approvals under other acts, Fisheries Act authorizations and SARA permits are already required for applicants who seek specific permission to contravene prohibitions under subsection 32(1) of SARA and subsection 35(1) of the Fisheries Act.

Fisheries and Oceans Canada offers a single window to proponents to apply for a SARA permit under section 73, or for an authorization under paragraph 35(2)(b) of the Fisheries Act, as provided for by section 74 of SARA. Therefore, the small business lens would not apply to the proposed Order, as there would be no incremental costs to small business.

Implementation, enforcement and service standards

Fisheries and Oceans Canada continues to advise stakeholders on an ongoing basis with regard to technical standards and specifications on activities that may contribute to the killing, harming and harassing of individuals of the North Atlantic Right Whale. These standards and specifications are aligned with those that will be required once the proposed Order comes into force. Fisheries and Oceans Canada also advises stakeholders on compliance specifications for other acts and regulations administered by the Department that apply to the species and its habitat.

The existing federal regulatory mechanisms apply to the critical habitat of the North Atlantic Right Whale. The proposed Order would provide an additional deterrent to the existing regulatory mechanisms and specifically safeguard the critical habitat of the North Atlantic Right Whale through penalties and fines under SARA, including the pursuit of offences punishable on summary conviction or indictable offences.

A contravention of subsection 58(1) of SARA has the same maximum fines as for a contravention of subsection 32(1) of SARA. Under the penalty provisions of SARA, a corporation that is not a non-profit corporation, found guilty of an offence punishable on summary conviction, is liable to a fine of not more than $300,000. A non-profit corporation is liable to a fine of not more than $50,000, and any other person is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. A corporation that is not a non-profit corporation, found guilty of an indictable offence, is liable to a fine of not more than $1,000,000, a non-profit corporation to a fine of not more than $250,000, and any other person to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both. It should be noted that maximum fines for a contravention of the prohibitions under subsections 35(1) or 36(3) of the Fisheries Act are higher than maximum fines for a contravention of SARA subsection 32(1) or subsection 58(1).

Any person planning on undertaking an activity within the critical habitat of the North Atlantic Right Whale, should inform himself or herself as to whether that activity might contravene one or more of the prohibitions under SARA and, if so, should contact Fisheries and Oceans Canada.

For more details on applying for a SARA permit under section 73, or for SARA-compliant Fisheries Act authorizations contemplated by section 74 of SARA, please visit http://www.dfo-mpo.gc.ca/species-especes/permits-permis/permits-eng.htm or contact the Fisheries Protection Program at http://www.dfo-mpo.gc.ca/pnw-ppe/contact-eng.html.

Contact

Julie Stewart
Director
Species at Risk Program
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Fax: 613-990-4810
Email: SARA_LEP@dfo-mpo.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act (see footnote a), proposes to make the annexed Critical Habitat of the North Atlantic Right Whale (Eubalaena glacialis) Order.

Interested persons may make representations concerning the proposed Order within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Julie Stewart, Director, Species at Risk Program, Department of Fisheries and Oceans, 200 Kent St., Ottawa, Ontario K1A 0E6 (fax: 613-990-4810; email: SARA_LEP@dfo-mpo.gc.ca).

Ottawa, April 21, 2016

Hunter Tootoo
Minister of Fisheries and Oceans

Critical Habitat of the North Atlantic Right Whale (Eubalaena glacialis) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the North Atlantic Right Whale (Eubalaena glacialis), which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry.

Coming into Force

2 This Order comes into force on the day on which it is registered.

[20-1-o]

  • Footnote 1
    Species at Risk Act (S.C. 2002, c. 29).
  • Footnote 2
    http://www.sararegistry.gc.ca/virtual_sara/files/plans/rs_bnan_narw_am_0414_e.pdf
  • Footnote 3
    The examples listed are neither exhaustive nor exclusive. The absence of a specific human activity in this list does not preclude or fetter the competent ministers’ ability to regulate human activities to prevent destruction of critical habitat. Furthermore, the inclusion of an activity does not result in its automatic prohibition since it is the destruction of critical habitat that is prohibited not the activity.
  • Footnote 4
    The “One-for-One” Rule, which came into effect on April 1, 2012, places strict controls on the growth of regulatory red tape on business. Under the “One-for-One” Rule, for every new regulation added that imposes an administrative burden on business, one must be removed. More details can be found at http://www.tbs-sct.gc.ca/hgw-cgf/priorities-priorites/rtrap-parfa/ofo-upu-eng.asp.
  • Footnote 5
    The objective of the small business lens is to reduce regulatory costs on small businesses without compromising the health, safety, security and environment of Canadians. More details about the small business lens can be found at http://www.tbs-sct.gc.ca/hgw-cgf/priorities-priorites/rtrap-parfa/sbl-lpe-eng.asp.
  • Footnote a
    S.C. 2002, c. 29