Vol. 150, No. 53 — December 31, 2016

Scott Islands Protected Marine Area Regulations

Statutory authority

Canada Wildlife Act

Sponsoring department

Department of the Environment

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

A recent assessment of the population trends of monitored seabirds around the world indicates a population decline of 70% since 1950. (see footnote 1) Another recent study found that only 9% of 1 451 migratory bird species benefit from protected areas across all stages of their migration, and that this lack of consistent protection is driving rapid population declines of migratory birds around the world. (see footnote 2) The 2016 report entitled The State of North America’s Birds (see footnote 3) states that the outlook for oceanic birds including seabirds “is the bleakest of any North American bird group.” The report identifies several threats to seabirds, such as invasive predators at nesting sites, overfishing of forage fish stocks, accidental by-catch by commercial fishing vessels, pollution and climate change. Disturbance to nesting seabirds is also commonly cited as a threat to reproductive success. Preserving the habitat of seabirds, many of which are migratory, is key to their conservation.

Located off the northwest tip of Vancouver Island, British Columbia, the Scott Islands and surrounding waters make up one of the most productive and biologically diverse marine ecosystems on the Canadian Pacific coast, particularly for seabirds. The islands are protected provincially, thereby providing a level of protection from threats to the breeding and nesting habitat of the seabirds. However, the surrounding marine environment, which is important foraging habitat for the seabirds and other marine species, is not afforded the same level of protection. This creates a corresponding risk of certain human activities or disturbances occurring in the marine environment that could have adverse effects on the breeding productivity and survival of the seabirds and marine species that frequent this area. Despite the area’s high concentration of seabirds, changes to habitat and declining populations for certain species demonstrate the vulnerability of seabirds and other marine life in the area. The Scott Islands breeding seabird population was previously estimated at approximately 2.2 million, of which almost 2 million were estimated to be Cassin’s Auklet. Since those estimates made in the late 1990s, Cassin’s Auklet and Common Murre have declined significantly, which suggests a current total breeding population of all species of about 1.4 million.

Background

Biodiversity, which is positively related to ecosystem productivity, health and resiliency, is rapidly declining worldwide. As a signatory to the United Nations Convention on Biological Diversity, Canada has committed to conserving at least 10% of its coastal and marine area by 2020 in order to conserve marine biodiversity. This target is in line with the federal government’s commitment to increase the proportion of Canada’s marine and coastal areas that are protected to 5% by 2017, and 10% by 2020. To date, Canada has protected fewer than 1% of its marine and coastal environment.

Existing protections

The Scott Islands are an archipelago of five islands. The land area and the foreshore (see footnote 4) of all five islands are protected by the Province of British Columbia (Lanz and Cox Islands Provincial Park, Beresford Island Ecological Reserve, Sartine Island Ecological Reserve, and Anne Vallée [Triangle Island] Ecological Reserve). Triangle Island, which is the furthest from the coast of Vancouver Island at approximately 45 km from Cape Scott, is the site of the largest seabird breeding colony on Canada’s Pacific coast. The Province has closed the ecological reserves to the public to protect the breeding birds and their nesting habitat, but scientific research for the purposes of seabird conservation is allowed through permits. Lanz and Cox Islands Provincial Park is zoned for wilderness conservation and receives few visitors. Located nearby, on the northwestern tip of Vancouver Island, is Cape Scott Provincial Park, a hike-in park that allows for low-impact activities, such as hiking and wilderness camping. The Province manages activities in these protected areas through provincial legislation (the Park Act, the Ecological Reserve Act, and the Protected Areas of British Columbia Act), which includes provisions that allow for some activities to be authorized through the issuance of a permit.

Ecological significance

In this transition zone between the Alaska and California currents, tidal mixing, summer winds and prevailing currents create a unique environment favourable to high marine productivity and diversity. The highly productive waters around the Scott Islands attract millions of seabirds seeking food. The Scott Islands support the highest concentration of breeding seabirds in the Canadian Pacific, sustaining 40% of British Columbia’s seabirds, including 90% of Canada’s Tufted Puffins, 95% of Pacific Canada’s Common Murre, 50% of the world’s Cassin’s Auklets and 7% of the global population of Rhinoceros Auklet. The surrounding ocean waters provide key foraging habitat for the birds that nest on the islands, and also attract an additional 5–10 million migratory birds annually that may travel vast distances across the Pacific to feed on the abundance of small fish and zooplankton in the area. Several species that nest in or frequent the area have been identified as being at risk of extinction, either globally by the International Union for Conservation of Nature (IUCN) or nationally under the Species at Risk Act (SARA). Examples are the Black-footed Albatross (IUCN, near-threatened — SARA, special concern), the Short-tailed Albatross (IUCN, vulnerable — SARA, threatened), the Pink-footed Shearwater (IUCN, vulnerable — SARA, threatened), the Sooty Shearwater (IUCN, near- threatened), the Buller’s Shearwater (IUCN, vulnerable), the Marbled Murrelet (IUCN, endangered — SARA, threatened) and the Ancient Murrelet (SARA, special concern).

In 1997, the Scott Islands were identified as an Important Bird Area (IBA) by BirdLife International, (see footnote 5) recognizing the essential habitat they provide to Canada’s bird population, as well as the importance of the area to the conservation of bird species worldwide. In addition to being a key area for seabirds, the marine area around the Scott Islands has also been identified as an Ecologically and Biologically Significant Area (EBSA) by the Department of Fisheries and Oceans (DFO) due to the high marine productivity and diversity of marine mammals and fish species present, and because it contains important habitat for several marine mammal species that are listed under SARA.

Significance to First Nations

West Coast First Nations have a long-standing historical connection to the ocean and its resources. The Scott Islands and surrounding marine area are within the traditional territories of the Quatsino and Tlatlasikwala First Nations. The region is their ancestral home and continues to hold important cultural and spiritual significance for them. A traditional knowledge and use study (see footnote 6) inventoried 38 documented ethno-historic sites and 14 archaeological sites within the Scott Islands area. The data compiled for this study indicate that the Scott Islands and surrounding marine area were, and continue to be, significantly important for local First Nations.

Socio-economic significance

The area is a hub of research, with the focus being on wildlife species, particularly seabirds and other migratory birds. The two primary commercial activities in the area are fishing and marine transportation. There are various fisheries, which together include longline, trap and ground trawl methods of fishing. There are no ports on the coast of the proposed Protected Marine Area and anchorage is relatively exposed, which means that most marine vessels are transiting through. While there are some deep sea shipping vessels and cruise ships that pass through to large ports along the Pacific coast, there are also many transit that are directly related to and support economic activities on northern Vancouver Island, such as tug/tow vessels related to the local forest industry. Although most guided fishing and marine wildlife companies in the area are based out of Port Hardy, the proposed Protected Marine Area makes up part of the marine area that they frequent, depending on the season and the weather. There is also limited water taxi transportation, with many of the clients being campers at Cape Scott Provincial Park. Recreational fishing and boating activities also take place in the area but are limited due to the remote location and often unpredictable waters. Due to federal and provincial moratoria on oil and gas exploration and development as of 1972, the full value of oil and gas resources in the Pacific offshore is currently unknown, but a number of permits for exploration exist due to expected deposits.

Threats to Scott Islands seabirds

Although this area has the highest concentration of seabirds on the Canadian Pacific coast, changes to habitat and declines in certain species over the years demonstrate the vulnerability of the continued vitality of these populations. Some of the characteristics and behavioural traits of seabirds make them particularly vulnerable to the effects of human activities in the marine environment. For example, many seabird species produce a small number of eggs (or even a single egg) per year and do not necessarily breed every year. This means that the deaths of breeding adults can have a substantial impact on populations over time. Several threats have been identified to seabirds in the Scott Islands area:

Selection as a candidate area for marine protection

Three federal departments have a mandate, under various legislation, to protect marine areas in Canada: Marine Protected Areas established under the Oceans Act and managed by DFO; National Marine Conservation Areas established under the Canada National Marine Conservation Areas Act and managed by Parks Canada; and Protected Marine Areas, commonly named as marine National Wildlife Areas (NWAs), established under the Canada Wildlife Act (CWA). In addition to these core marine protected area programs, migratory bird sanctuaries, terrestrial national wildlife areas and national parks with a marine component are also considered important contributors to the marine protected areas network. These protected areas are established under the Migratory Birds Convention Act, 1994 (MBCA), the CWA, and the Canada National Parks Act respectively. Each form of marine protection has a different conservation mandate and management approach; therefore, the selection of the appropriate federal legislative mechanism is based on the distinct conservation needs of the candidate area.

The marine area around the Scott Islands was first identified as a possible candidate area for protection in 1995 by the Department of the Environment and others, given identified threats to seabirds in the area. In 2003, the Government of Canada officially announced that the Department of the Environment would establish a protected area in the waters around the Scott Islands. Protection of this marine area was determined to be best accomplished by the Department of the Environment, as it has the explicit mandate for the conservation of migratory birds through the MBCA and the CWA. A protected marine area established under the CWA was determined to provide the most appropriate framework for the protection of the marine foraging habitat, as it provides the authority to protect areas for the preservation of habitats that are critical to migratory birds and other wildlife species, particularly for those that are in danger of extinction. The proposed area also met the following criteria used to determine appropriate areas to be protected under the CWA: the area supports at least 1% of the Canadian population of a species; the area supports an appreciable assemblage of species of migratory birds or species at risk; and the area is a unique wildlife habitat whose characteristics contribute to exceptional conditions for seabirds and other marine wildlife.

Process for protection

Under the CWA, the establishment of the boundaries of a protected marine area, and putting conservation measures in place within this area, requires two legal instruments. The first instrument is an Order made by the Governor in Council under subsection 4.1(1) of the CWA establishing the Scott Islands Protected Marine Area (the Area) and designating its boundaries. The second instrument is Regulations made under section 12 of the CWA, which provides the Governor in Council with the authority to make regulations prescribing measures for the conservation of wildlife in the Area.

A Notice of Intent for the Order in Council to designate the boundaries of the proposed Scott Islands Protected Marine Area (the Area) has also been published in the Canada Gazette, Part I (see footnote 7), for public comment. The Area would comprise 11 546 km2 of entirely marine environment, composed of internal waters, the territorial sea and the exclusive economic zone (EEZ) of Canada.

Objectives

The objective of the proposed Scott Islands Protected Marine Area Regulations (the proposed Regulations) is to provide an effective framework for the management of human activities that may interfere with the conservation of wildlife and wildlife habitat in the Area, thus contributing to the achievement of the conservation objective of the Area.

The conservation objective of the Area, to conserve migratory seabirds, species at risk, and the habitats, ecosystem linkages and marine resources that support these species, would be achieved through various means, including the proposed Regulations, a management plan, and through collaboration with other federal departments that have management authority over activities in the Area, the Province of British Columbia, and the Quatsino and Tlatlasikwala First Nations.

Description

The proposed Regulations would describe prohibited and exempt activities in the Area, and establish a permitting scheme to authorize activities that may have an impact on the environment, but that have been evaluated to be compatible with the conservation objective of the Area.

Prohibitions

The proposed Regulations would, subject to some exceptions, enact prohibitions with the purpose of preventing activities from occurring in the Area that would threaten the vitality of the Scott Islands marine environment, thus providing protection to the Area’s wildlife and wildlife habitat, in particular for seabirds.

  1. Disturbing, damaging, destroying or removing wildlife or wildlife habitat. The proposed Regulations would prohibit activities that would be likely to disturb, damage, destroy, or remove wildlife or wildlife habitat.
  2. Dumping or discharging waste material or substance that is likely to harm wildlife or degrade the quality of its habitat. The purpose of this prohibition would be to ensure that humans conducting activities in the Area do not introduce pollution into the environment that would threaten wildlife in the Area or the habitat on which it depends for survival.
  3. Introducing living organisms. It would be prohibited to introduce any living organism that is likely to result in harm to wildlife or cause the degradation of the quality of its habitat.
  4. Low-level overflight. The proposed Regulations would prohibit flight below 1 100 m within the Area, in order to prevent air traffic disturbance to the birds.
  5. Approach and anchorage. The proposed Regulations set out two prohibitions in the vicinity of the seabird nesting colonies, which are on Triangle, Sartine and Beresford Islands:
    • a. It would be prohibited to be within 300 m of these three islands (e.g. in a vessel); and
    • b. Vessels displacing greater than 400 gross tonnage would be prohibited from anchoring within one nautical mile of the islands.

These prohibitions are meant to reduce the chances of specific threats to the nesting birds from occurring. The first threat is predator introduction to the nesting islands. Ground or burrow nesting seabirds on the Scott Islands are very vulnerable to predation from mammal predators that can eliminate or drastically reduce populations of seabirds. In some other areas, rats have reached nesting islands from ships, either by jumping off or by being deposited from disabled ships or spilled cargo. While introduced raccoons and mink have eliminated seabirds from Lanz and Cox islands, the other nesting islands in the Scott Island group are still predator-free.

The second threat is from spills from boats or ships due to beaching. The waters in the area can be very rough and unpredictable, and rocky outcrops extend from the islands. The prohibition of being within 300 m of the three islands would also prevent human disturbance to the nesting birds, and would complement the existing provincial Ecological Reserve designations, which prohibit access to the islands without a permit. These prohibitions do not apply to Lanz or Cox islands as they no longer have any nesting seabird colonies.

Exceptions

The proposed Regulations would include exceptions to allow for certain activities within the Area, which would otherwise contravene one or more of the prohibitions, to occur without a permit issued under the proposed Regulations.

  1. Public safety, national security or emergency. Activities that occur for reasons of public safety, national security or in response to an emergency would not be subject to the prohibitions. Such activities may include, among others, search and rescue operations or response to an incident that has resulted in the release of unauthorized hazardous waste.
  2. Fishing and navigation. The proposed Regulations would exempt current and most types of fishing as well as marine navigation from the proposed prohibitions against disturbing, damaging, destroying or removing any wildlife or wildlife habitat, as well as against dumping or discharging harmful waste material or substances, thus allowing these activities to remain under the authority of Fisheries and Oceans Canada (DFO) and Transport Canada (TC), respectively. Fishing activities would need to be carried out in accordance with the Fisheries Act and the Coastal Fisheries Protection Act and their regulations. The navigation of vessels would need to be carried out in accordance with the Canada Shipping Act, 2001 and its regulations. The reason for the exceptions for most fishing and navigation is that it has been found, through research and analysis conducted by the Department of the Environment, that as long as fishing and navigation activities in the Area are carried out in accordance with existing legal requirements and voluntary measures, their adverse environmental effects are minimal, and they are therefore compatible with the conservation objective of the Area. Along with the legal requirements that would apply in the proposed Regulations, the fishing and navigation sectors are subject to many voluntary measures to minimize threats to wildlife, and their rates of adoption and success are monitored by the appropriate sectors and responsible government authorities. An example is the use of mitigation measures to reduce seabird bycatch in longline fisheries, which are being adopted by the fishing sector, and are being monitored jointly by the sector, DFO and the Department of the Environment. The navigation of foreign military vessels or vessels under the command of the Canadian Forces would also be exempt from the proposed prohibitions against disturbing, damaging, destroying or removing any wildlife or wildlife habitat, as well as against dumping or discharging harmful waste material or substances.
    Fishing for Pacific sand lance, Pacific saury and North Pacific krill would not be included in the exceptions as they are important forage species for the seabirds and other marine wildlife, and fishing these species would not be compatible with the conservation objective of the Area. Therefore, fishing for these species would be prohibited, and could only occur in the Area with permits issued by both DFO and the Department of the Environment. Although fishing for these species does not currently occur within the boundaries of the proposed Area, these fisheries do exist elsewhere, and it is possible that there could one day be an interest to develop these resources.
    These exceptions would ensure that existing permitting processes would not be duplicated. For instance, with the exception of the three key forage species, fishing activities in the proposed Protected Marine Area could occur as long as they have been permitted by DFO and are carried out in accordance with the applicable laws. However, the exceptions would not apply to some prohibitions, such as the prohibition of being within 300 m of Triangle, Sartine and Beresford Islands; therefore, DFO permitting fishing could not occur within this zone unless it was also authorized through a permit under the proposed Regulations.
  3. Enforcement activities. Activities carried out by federal or provincial law enforcement officers in the performance of their duties or functions would be exempt from the prohibition against being within 300 m of the low water mark of the Triangle, Sartine or Beresford Islands. The purpose of this exemption is to not prohibit any law enforcement activities from occurring close to the islands.
  4. Foreign vessels or aircraft. The proposed prohibitions would apply to foreign vessels or aircraft in the part of the Protected Marine Area situated within the exclusive economic zone of Canada only to the extent the application of the proposed Regulations is compatible with Article 56 of the United Nations Convention on the Law of the Sea.
Permits

The proposed Regulations would set out a permitting scheme in which the Minister of the Environment may issue a permit authorizing an activity to occur that would otherwise be prohibited. A proposed activity may be permitted if it meets the criteria set out below in regard to the impacts that the activity is likely to have on wildlife or wildlife habitat in the Area.

  1. Activities whose purpose is to promote the conservation or protection of wildlife or wildlife habitat in the Area. Permit applicants would be required to demonstrate that
    • a. the likely benefits of the proposed activity for the conservation or protection of wildlife or wildlife habitat outweigh any likely adverse effects; and
    • b. there are no alternatives to the proposed activity that would be likely to produce the same or equivalent benefits for the conservation or protection of wildlife or wildlife habitat, that would have less significant adverse effects.
  2. Any other activities. Permit applicants would be required to demonstrate that
    • a. the adverse effects that the proposed activity will likely have on wildlife or wildlife habitat would not compromise their conservation or protection, taking into account the implementation of proposed measures to monitor, prevent or mitigate the adverse effects; and
    • b. there are no alternatives to the proposed activity that would allow the applicant to achieve the same outcome while incurring less significant adverse effects on wildlife or wildlife habitat.

Permit applications. The proposed Regulations would set out the information that permit applicants would be required to submit, including administrative information, details pertaining to the requested activity, descriptions of anticipated positive and negative effects on wildlife or wildlife habitat, and explanations of how adverse effects would be prevented or mitigated. The proposed Regulations would further establish factors that the Minister of the Environment would be required to consider in evaluating effects of a proposed activity on wildlife or wildlife habitat, and to determine if these effects would be adverse.

Permit conditions. Permit holders would be required to notify the Minister of any change to the information provided in the permit application, and to ensure that those conducting the permitted activity have the permit on their person while carrying out the activity in the Area. A permit may also be subject to additional conditions, such as specific details on the carrying out of activity, monitoring effects and mitigation of adverse effects, the number of persons carrying out the activity and their qualifications, and the reporting requirements.

Permit suspension, cancellation and expiry. The proposed Regulations would provide the Minister with the authority to suspend or cancel a permit. These provisions would aid in the management of the Area for conservation, by providing tools to stop activities temporarily or permanently when warranted. A permit granted under the proposed Regulations would be valid for a maximum of five years from the date of issuance.

Coming into force

The proposed Regulations would come into force on the day of publication in the Canada Gazette, Part II.

Benefits and costs

This analysis presents the benefits and costs by comparing the incremental differences between two scenarios: the policy scenario in which the proposed Regulations are implemented, and a baseline scenario that reflects current and planned activities in the Area.

Benefits
Environmental

The Scott Islands and the surrounding marine environment make up a biologically unique and diverse area hosting millions of seabirds and many marine species, including several species at risk. The implementation of the proposed Regulations is expected to benefit wildlife species in the Area through the enactment of conservation measures via the prohibitions and the permitting scheme. The prohibitions would ensure that several of the main threats to wildlife from human activities, in particular for nesting birds, would be minimized. The proposed conservation measures would apply additional protections to migratory seabirds while in the proposed Protected Marine Area — for many, during the critical reproductive stage. By managing activities in the Area and minimizing known threats to the seabirds, such as predator introductions and fishing of key forage species, the colonies may be more resilient to changes brought on by climate change. Reporting on effects of activities could provide the Department of the Environment with valuable information.

The permitting system would ensure that future proposed activities that would be in contravention of the prohibitions would be evaluated against higher environmental standards than those under the baseline scenario, and would therefore only proceed if they are assessed to be compatible with the conservation objective of the Area. Information obtained through reports submitted by permit holders could provide the Department of the Environment with important information on the interactions and effects of human activities on wildlife in the Area, and could help in understanding possible ways to mitigate harm.

The proposed Regulations would also contribute to the network of marine protected areas in the Pacific region, which should result in an additional benefit to the west coast Pacific marine environment and its wildlife species, and would contribute to maintaining biodiversity and healthy, resilient marine ecosystems in Canada. Placing protections in this ecologically important marine area would contribute to Canada’s international and national goals to protect 10% of the coastal and marine environments, by increasing the marine area that is protected from 0.9% to 1.1%.

Local First Nations

First Nations have long used the various seasonally available resources (e.g. fish, mammals, shellfish, crustaceans, sea grasses, kelp) on the Scott Islands and in the surrounding marine area. The implementation of conservation measures through the proposed Regulations would promote a healthy, functioning marine ecosystem that would allow First Nations to continue to access the ocean resources depended on for food, social and ceremonial purposes. With the establishment of the Protected Marine Area, the Department intends to promote awareness of local First Nations’ cultural interests, and, subject to resource availability, marine conservation training and employment opportunities may be available for members of the Tlatlasikwala and Quatsino First Nations. Local First Nations have expressed support for the Area and the proposed Regulations, as they would help protect the ecosystem that First Nations have relied on for generations.

Local economy

Several communities in the Regional District of Mount Waddington (population 11 506), (see footnote 8) adjacent to the Area, rely in part on economic activities which benefit from a healthy marine environment, such as fishing and marine wildlife viewing. Although the extent to which the proposed Regulations will benefit these activities is unknown and has not been quantified, protecting the ecosystem through the proposed prohibitions and permitting system is expected to help ensure the continued viability of these activities in, and in the vicinity of, the Area. For instance, protecting Pacific sand lance, Pacific saury as well as North Pacific krill (none of which are currently fished within the Area) would not only help to maintain healthy seabird populations, but also many fish and marine mammal species who also feed on these species, including species such as Humpback Whales that are popular subjects of wildlife viewing.

Canadians

Canada’s natural heritage is an integral part of its national identity and history. Wildlife is valued by Canadians for aesthetic, cultural, spiritual, recreational, educational, historical, economic, medical, ecological and scientific reasons. (see footnote 9) A 2011 Ipsos Reid poll conducted for Nature Canada found that 75% of Canadians surveyed “feel that preserving natural areas and the variety of native plant and animal life in Canada is important to them.” Protecting this Area would provide value to Canadians in terms of the knowledge that an area of ecological importance and biological diversity is being preserved for future generations. Protecting the Scott Islands marine environment, including its wildlife, would help to ensure that the opportunity to encounter the species that rely on this environment (either in the Protected Marine Area or in other areas that the species frequent) is maintained for future generations.

Costs
Commercial and recreational fishing

The proposed Regulations would not have a significant impact on current fishing activity. All of the fisheries that are presently active in the area could continue to be permitted by DFO. Although there is some recreational fishing within the 300 m zone of the Triangle Island, Sartine Island and Beresford Island, it is limited due to the fact that the location is remote relative to the mainland, and to the often unpredictable and hazardous ocean conditions in this area (which deter potential fishing activity). The 300 m prohibition does not apply around Lanz and Cox islands, which are the closest islands to the shore of Vancouver Island, so recreational fishing vessels could continue to approach these islands without being in contravention of the proposed Regulations. The prohibition of fishing for the key forage species of Pacific sand lance, Pacific saury and North Pacific krill would not have an incremental impact on the sector as these fisheries do not currently occur in the Area.

Marine transportation — Shipping and navigation

The proposed Regulations would not result in incremental costs or impacts on the marine transportation sector. This sector would be able to continue its current activities as usual while respecting the applicable prohibitions, and the anchorage prohibition for large boats would not affect this sector. Representatives of the shipping industry have indicated that anchorage in this area is not common for large ships.

Recreation and tourism

The proposed Regulations would not result in incremental costs or impacts on recreational or tourism activities. Very few personal or commercial tourist boats operate in the vicinity of Triangle, Sartine and Beresford islands, given their remote location. Wildlife viewing can still occur from more than 300 m from these islands, and would be safer due to the often hazardous ocean conditions around the islands. Currently, there are no airplane or helicopter tours in the area, so the flight restriction would not affect existing tourism activities.

Oil and gas exploration and development

The Minister of Natural Resources issued 36 oil and gas exploration permits in the 1960s and one exploration licence in the 1990s for the same area that is now proposed as the Scott Islands Protected Marine Area. However, the proposed Regulations are not expected to result in incremental impacts on offshore oil and gas activities, or to the holders of the permits and licence.

Since 1972, the federal government has maintained a policy moratorium on oil and gas exploration and development in the Pacific offshore, which includes those permits and licences for the proposed Protected Marine Area. The effect of the moratorium is to “suspend” the permits and licence without voiding their validity. If the moratorium were lifted, the owners could exercise the rights conferred in their permits and licence, provided they receive the required authorizations from the Minister of Natural Resources and/or the National Energy Board. Under the proposed Regulations, if the moratorium were lifted and permit/licence owners pursued those rights, they would be required to seek permits from the Department of the Environment pursuant to the proposed Regulations. A permit could be issued by the Minister of the Environment if the adverse effect their activity is likely to have on wildlife or its habitat in the Area will not compromise the conservation of the Area, taking into account any proposed measures to monitor, prevent or mitigate the adverse effects, and as long as there is no alternative to their activity that allows them to achieve the same outcome but that is likely to have less significant adverse effects on wildlife or its habitat.

Renewable energy

The proposed Regulations would not result in incremental costs to the renewable energy sector, as there are currently no renewable energy production activities underway in the proposed Protected Marine Area. Three investigative licences for wind energy in the Area are currently held by a renewable energy producer. At this time, no proposed project has been submitted to a provincial or federal environmental assessment process. Proposals for renewable energy production would be subject to the existing environmental assessment process, and authorization through a permit under the proposed Regulations would be required.

Scientific research

The proposed Regulations would have a minor impact on the scientific research that may occur in the Area, as a permit may be required for some research in order to proceed. Most of the current research in the Area focuses on wildlife, and although it is done for the overall purpose of conservation, some activities may contravene one or more of the proposed prohibitions. The incremental change for many researchers would be small, as a multi-year permit could be obtained for research that is long term, thus limiting burden. Also, many researchers are already familiar with obtaining government permits, particularly those researchers that currently apply for provincial permits to access the islands.

Government

As the lead authority for the proposed Scott Islands Protected Marine Area, the Department of the Environment would bear the majority of costs due to the existing management and coordination of the Area, as well as for compliance promotion and enforcement activities related to the implementation of the proposed Regulations. The one-time cost of compliance promotion products (e.g. fact sheets, signage) in the first year after the establishment of the Area is estimated to be between $10,000 and $12,000. Ongoing compliance promotion in the following years has not been estimated but would likely be considerably less.

The incremental cost incurred by the Department of the Environment to enforce the proposed Regulations would vary from year to year, with the high end of estimated costs being approximately $120,000 per year. The possible costs could include working with existing governmental discharge-at-sea detection programs to increase surveillance in the Area, as well as on-site compliance verification and enforcement activities, including but not limited to the salary of enforcement officers and operational costs, taking into consideration the remote location. Administrative costs of the proposed Regulations to the Department of the Environment are expected to be minimal, as only a few permit applications are expected each year. The Province of British Columbia may have low administrative costs, as it would likely be required to obtain a permit for the occasional flights that are required for operational and management purposes to the Scott Islands and Cape Scott Provincial Park to authorize approaching within 300 m of the Triangle, Sartine or Beresford islands.

“One-for-One” Rule

Section 5 of the Red Tape Reduction Act (the “One-for-One” Rule) does not apply because the proposed Regulations would not impose any new administrative burden on business.

Small business lens

The small business lens does not apply, as the proposed Regulations would not impose any compliance or administrative costs on small businesses.

Consultation

Consultations on a proposal to establish a protected area in the marine environment around the Scott Islands first started in 2004 with community open houses and information meetings held in Vancouver and several Vancouver Island communities. Meetings were also held with local governments and regional districts on Vancouver Island.

In September 2004, Canada and British Columbia signed the Memorandum of Understanding (MOU) Respecting the Implementation of Canada’s Oceans Strategy on the Pacific Coast of Canada to collaborate on the implementation of specific activities and objectives identified in the Oceans Strategy. Under the MOU, Canada and British Columbia agreed to develop subsidiary agreements, one of which was to develop a framework to coordinate the establishment of marine protected areas on the Pacific coast. During early discussions regarding the subsidiary agreement, the Scott Islands marine area was identified as a priority under the new framework. As a result, the Department of the Environment postponed further consultation while work was underway to develop the agreement. While the agreement was never finalized, the Department of the Environment and British Columbia did develop an action plan on a process and path forward for the proposed Protected Marine Area.

The Department of the Environment resumed consultations in 2009 following a federal commitment to establish a protected area in the Scott Islands marine environment. In 2010, a government steering committee and stakeholder advisory group, both chaired by the Department of the Environment’s Canadian Wildlife Service, were established. The steering committee included representatives from federal departments (DFO, TC, Natural Resources Canada), the Province of British Columbia (ministries of Environment and of Forests, Lands and Natural Resource Operations), the Quatsino First Nation and the Tlatlasikwala First Nation. The advisory group included representatives from the commercial fishing, recreational fishing, marine transportation, oil and gas, conservation, and tourism sectors as well as local and regional governments. The renewable energy sector was invited to be part of the advisory group, but did not participate.

Meetings with both the steering committee and the advisory group were held between 2010 and 2015, and resulted in a common understanding of the establishment process, management vision and goals, and recommended boundaries for the proposed Protected Marine Area. In addition, bilateral meetings were held with governments and stakeholders to discuss and consult on specific issues. These meetings were also instrumental in providing guidance on the development of the draft Regulatory Strategy for the Designation of the Proposed Scott Islands Marine National Wildlife Area (see footnote 10) (the Regulatory Strategy). In March 2013, the Regulatory Strategy was posted on the Department of the Environment’s website for a 60-day public comment period. Feedback received on the Regulatory Strategy was incorporated in a regulatory intent (see footnote 11) document that was shared with the steering committee and the advisory group in June 2016, as well as in the draft management plan for the proposed Protected Marine Area, which will be available for public consultation in 2017.

After the posting of the Regulatory Strategy, there were ongoing consultation and engagement through the steering committee and the advisory group and directly with governments and stakeholders to address outstanding issues and concerns and to seek support for the establishment of the proposed Protected Marine Area.

The Department of the Environment has also continued to consult and provide information through the following activities:

The proposed Regulations remain virtually unchanged from the intent communicated in the Regulatory Strategy during consultations. The one exception is the prohibition against being within 300 m of Triangle, Sartine and Beresford Islands. The original proposal was a prohibition against being within 100 m of the islands. However, to better reflect the best available scientific information and to be consistent with the “Guidelines to Avoid Disturbance to Seabird and Waterbird Colonies in Canada” issued by the Department of Environment, this proposed distance was increased from 100 m to 300 m.

The key issues and concerns received as feedback through the various consultations are summarized below according to sector and interest group.

Province of British Columbia

British Columbia is generally supportive of the proposed Regulations and has acknowledged its shared interest in protecting seabirds and their foraging habitats in the Area. Some provincial agencies have expressed concerns about how the proposed Protected Marine Area may unduly restrict current and future economic activity in the area, potentially leading to a loss of employment and revenues. The possible effects on current and future marine transportation through the area are also of concern to the Province. The Department of the Environment has assessed the impact of the proposal on current economic activity in the area and concludes that the impact would be negligible, as the proposed Regulations allow most current activities to continue in the Area as they now do. The Department of the Environment recognizes that some possible future activities may be affected (see below). While the scale and scope of the impacts on any future economic activity are unknown, the proposed Regulations do not prohibit future activities, and provide a permitting mechanism which would enable activities to occur that do not undermine the conservation objectives of the proposal. The Department of the Environment has further confirmed that the proposed Regulations would not affect current shipping activities and routes and that any decisions regarding future shipping activities would be made jointly with TC, and in consultation with the marine transportation sector.

British Columbia claims sovereign rights over the seabed and subsoil landward of the outer limit of Pacific Canada’s territorial sea. The Province has requested that the model for collaborative management of the Area reflect the interests of multiple levels of government, and has requested a collaborative management MOU between the Province, the Department of the Environment and First Nations to ensure efficient and effective management over areas where provincial and federal designations will overlap. Discussions regarding the MOU and management of the Protected Marine Area are ongoing.

First Nations

The focus of consultations has been with the Tlatlasikwala First Nation and the Quatsino First Nation, whose traditional territories include the Area. Broader consultation was also initially undertaken with the Council of the Haida Nation, Coastal First Nations, Kwakiutl Nation and Gwa’sala-’Nakwaxda’xw Nation. The Tlatlasikwala and Quatsino First Nations support the conservation values and vision for the proposed Protected Marine Area and are interested in the direct benefits for their members in the management of the area. They have expressed concerns regarding the protection of their cultural values and resources on the islands, recognition of Aboriginal rights and title, including continued access to the area and resources for food, social and ceremonial uses, and their capacity to be involved in the collaborative management of the area. They are particularly concerned that marine-based tourism will increase once the area is established and attract more visitors to Lanz and Cox Islands Provincial Park, which could disturb sacred burial sites. The Department of the Environment has funded professional archaeological studies on the islands to provide information to assess land-based projects that are of joint interest to the Department of the Environment, the First Nations, and British Columbia. With the information from these studies, places such as sacred sites have been identified and can be better protected, thus addressing the concern. The Department of the Environment is also providing funding to the two First Nations to assist them in building their capacity to participate in the management of the proposed Protected Marine Area. In addition, the Department of the Environment is working with the First Nations to ensure their members have the opportunity to participate in contracts for various activities related to the proposed Protected Marine Area. Discussions regarding a collaborative management agreement between the Department of the Environment and First Nations are ongoing.

Commercial and recreational fishing

The commercial fishing sector recognizes that current fisheries, deemed to align with the conservation objectives for the area, would continue, but remains concerned that changes to government policies could substantially reduce or eliminate fishing in the area in the future. The industry recommended changes to the list of currently occurring fisheries included in the Regulatory Strategy. These changes were made and are reflected in the draft management plan for the Protected Marine Area. The fishing sector was consulted on an initial proposal of a prohibition against being within 100 m of the three main seabird nesting islands, which are also designated as ecological reserves by British Columbia. The recreational fishing sector expressed concerns with this proposed prohibition, as it would prevent sport fishers from fishing close to these islands, and may cause a concentration of fishing effort elsewhere. The Department of the Environment explained that the purpose of the prohibition is to reduce the potential for the disturbance of seabirds nesting on the breeding islands. Although the sector was consulted on the initial proposal of 100 m, the Department of the Environment believes that the views expressed by the recreational fishing sector would remain consistent with respect to the revised proposal of 300 m. Although detailed information and data are not available, the Department of the Environment anticipates that recreational fishing within 300 m of the nesting islands is limited and that impacts due to more fishing in other areas would be low.

Commercial shipping

The commercial shipping sector is supportive of the proposed Protected Marine Area, as shipping activity would continue as managed by TC. The sector supports the release of annual editions of the Notices to Mariners to ensure that ship operators are aware of the high conservation values of the area and the need to maintain compliance with the proposed Regulations. While there is no information to indicate that current shipping activity interferes with the conservation objectives of the area, the Department of the Environment intends to increase the level of surveillance and monitoring regarding the discharge of pollutants from marine vessels transiting the area. The Department of the Environment would continue to support the maintenance of facilities, such as the Cape Scott lighthouse, or new installations, which ensure the safety of mariners and prevent accidents. Any new measures that may be needed to meet the conservation objectives for the Protected Marine Area would be developed jointly with TC, and in consultation with the marine transportation sector.

Conservation groups

Two environmental non-governmental organizations have been active in the Protected Marine Area planning process. They are supportive of the establishment of the Protected Marine Area; however, they have expressed concerns that the proposed Regulations are too permissive of existing and potential future resource uses within the area, and therefore do not provide an adequate level of protection for seabirds and the marine ecosystem on which they rely. They would also like to see a core fishing no-take zone in the Protected Marine Area that meets international best practices. In response, the Department of the Environment has communicated that the intent of the proposed Regulations is not to prohibit resource uses that are compatible with the conservation objectives of the area. In other words, “neutral” activities that do not negatively affect the conservation objectives may be permitted. While the proposed Regulations do not designate a no-take zone within the proposed Protected Marine Area, the proposed Regulations would prohibit fishing for the key forage species of Pacific sand lance, Pacific saury as well as North Pacific krill, which is in line with the conservation objective of the Area. Conservation issues such as the need to establish no-take zones and to implement seasonal fishing would be considered as part of the adaptive management planning process (see footnote 12) in collaboration with DFO. In response to concerns that the conservation sector had with regards to the initial approach prohibition of 100 m not being adequate to prevent disturbance to the nesting colonies, as well as to be consistent with the best available scientific information as expressed in the existing Department of the Environment guidelines, the proposed approach distance has been changed from 100 m to 300 m.

Non-renewable and renewable energy

Oil and gas sector stakeholders have been involved in the Protected Marine Area planning process, and have expressed concerns that the proposed Protected Marine Area would prohibit oil and gas activity in the area should the current moratorium on offshore oil and gas exploration and development be lifted in the future. Concerns have also been expressed that the economic values associated with oil and gas resources in the Protected Marine Area, as was presented in consultations, are too low and do not accurately reflect the value of these resources. In response, the Department of the Environment has confirmed that the values were based on information from the Geological Survey of Canada. The Department of the Environment has also communicated to the sector that if the moratorium is lifted, oil and gas activity may be authorized subject to the appropriate environmental assessment and review process. A similar process would be used to authorize any potential renewable energy projects in the area. With respect to the renewable energy sector, the Department of the Environment has attempted to consult with this sector and invited their participation on the advisory group; however, the sector did not participate in the planning process.

Local and regional governments

The local (Port Hardy District Municipality) and regional (Regional District of Mount Waddington) governments generally support the Protected Marine Area as long as it does not negatively affect fishing or shipping activities, nor limit economic development opportunities for their communities. Although the proposed Regulations would not introduce an increased risk of emergency events, the local governments have expressed concerns that they do not feel that they have adequate capacity to deal with marine emergencies. They have therefore requested that the Government of Canada locate emergency response in Port Hardy, as it is the closest city to the Protected Marine Area. To provide more direct benefits to their communities, they have also requested that staff be hired to manage the Protected Marine Area and that relevant meetings, such as the advisory group meetings, be held locally. The Department of the Environment has held numerous advisory group meetings in Port Hardy, and resources permitting, staff may be located locally. As well as providing local benefits, the presence of Protected Marine Area staff provides for the most effective continued consultation with local government, stakeholders and First Nations.

Tourism

The tourism sector has expressed support for the designation of the Protected Marine Area due to its conservation and potential tourism benefits. It is recognized that, due to its remote location and often poor weather conditions, there is relatively low potential for increased tourism in the area.

Rationale

The implementation of the proposed Regulations would apply conservation measures to the proposed Scott Islands Protected Marine Area and would help to maintain long-term biodiversity on Canada’s Pacific coast by putting protections in place for seabirds and marine wildlife, including many species at risk. The proposed provisions also allow for a dynamic and diverse ocean economy in the area to continue while ensuring that the marine environment on which that economy is based is protected. The permitting and reporting scheme would enable additional coordinated, long-term, stable and focused research and reporting in the area, to improve management of human activity, and ensure the continued conservation of the high biological productivity and biodiversity in this area. The proposed Regulations would also complement other tools for ecological management in the Area, which would include collaboration with DFO, TC, the Province of British Columbia and First Nations in adaptive management and ecological planning, as well as the Scott Islands management plan for the Area, which would guide conservation and research priorities.

Putting protections in place for the Scott Islands marine environment would make an important contribution towards Canada meeting its commitment under the United Nations Convention on Biological Diversity, as well as its goal under the Federal Sustainable Development Strategy (FSDS) to protect at least 10% of its coastal and marine environment by 2020. (see footnote 13) These measures would also support the Government of Canada’s commitment to protect 5% of marine and coastal areas by 2017. Putting the proposed protections in place would significantly increase the percentage of area under protection in Canada’s Pacific marine waters from 2.8% to 5.3%, and in Canada as a whole by more than 20% (from 0.9% to 1.1%). Protecting this area would contribute to a network of marine protected areas in the region, thus enhancing the benefits to wildlife off the Pacific coast.

The overall cost to the Government of implementing the proposed Regulations is anticipated to be low and will mostly be for actions related to compliance promotion and enforcement. There are no anticipated costs to businesses for activities that are currently occurring in the Area. By maintaining management authority for all current fishing and all navigation activities with DFO and TC respectively, no increased administrative burden has been introduced, as the proposed Regulations allow these activities to continue as currently managed.

Strategic environmental assessment

A strategic environmental assessment was conducted and it concluded that the Scott Islands Protected Marine Area and the proposed Regulations under the CWA would have positive environmental effects and would contribute to the implementation of Theme III of the FSDS, “Protecting nature and Canadians,” and would fulfill goal 4, “Conserving and Restoring Ecosystems, Wildlife and Habitat, and Protecting Canadians.”

Implementation, enforcement and service standards

The implementation of the proposed Regulations would provide protection and recourse against certain threats to the seabirds as well as to other marine species in the area. Analysis has demonstrated that most current activities would not result in a contravention of the proposed Regulations and that permit applications would primarily be for scientific research. Upon implementation of the proposed Regulations, the Department of the Environment would be responsible for issuing permits and would be the lead department for compliance promotion and enforcement activities. Cooperative measures to promote compliance with, and enforcement of, the proposed Regulations may be developed with DFO, TC, British Columbia and First Nations who are also active in the area.

A compliance strategy has been developed, and following the implementation of the proposed Regulations, a compliance promotion plan would be implemented. Compliance promotion initiatives are proactive measures that encourage voluntary compliance with the law through education and outreach activities that raise awareness and understanding. Compliance promotion activities would have a targeted and local focus. The purpose of these activities would be to inform local stakeholders who currently conduct activities in the Area of the proposed prohibitions and the permitting scheme. Awareness campaigns would be conducted locally and within the Province of British Columbia and, to a lesser extent, would be aimed at Canadians more broadly.

To enforce compliance, the CWA provides for penalties for contraventions, including liability for costs, fines, tickets or imprisonment, seizure and forfeiture of things seized or of the proceeds of their disposition. The CWA also provides for inspection and search and seizure operations by enforcement officers designated under the Act.

Contact

Caroline Ladanowski
Director
Wildlife Management and Regulatory Affairs Division
Canadian Wildlife Service
Department of the Environment
Gatineau, Quebec
Telephone: 819-938-4105
Fax: 819-938-4147
Email: Caroline.Ladanowski@canada.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to section 12 (see footnote a) of the Canada Wildlife Act (see footnote b), proposes to make the annexed Scott Islands Protected Marine Area Regulations.

Interested persons may make representations with respect to the proposed Regulations 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 Caroline Ladanowski, Director, Wildlife Management and Regulatory Affairs Division, Canadian Wildlife Service, Department of the Environment, Gatineau, Quebec K1A 0H3 (fax: 819-938-4147; email: caroline.ladanowski@canada.ca).

Ottawa, December 1, 2016

Jurica Čapkun
Assistant Clerk of the Privy Council

Scott Islands Protected Marine Area Regulations

Interpretation

Definitions

1 The following definitions apply in these Regulations.

Protected Marine Area means the Scott Islands Protected Marine Area established by order. (zone marine protégée)

vessel means a boat, ship or craft that is designed, used or capable of being used solely or partly for navigation in, on, through or immediately above water, without regard to method of propulsion or lack of it, and includes any such vessel that is under construction, but does not include a floating object of a prescribed class established under the Canada Shipping Act, 2001. (bâtiment)

Prohibitions

Prohibited activities

2 (1) It is prohibited to

Meaning of aircraft

(2) For the purposes of paragraph (1)(d), aircraft includes any unmanned air vehicle.

Exception — public safety, national security or emergency

3 Section 2 does not apply in respect of an activity carried out for the purpose of public safety or national security or in response to an emergency.

Exception — foreign vessels or aircraft

4 Section 2 does not apply in respect of activities of foreign vessels or aircraft in the part of the Protected Marine Area situated within the exclusive economic zone of Canada, unless the application of that section is consistent with Article 56 of the United Nations Convention on the Law of the Sea, signed by Canada on December 10, 1982.

Exception — fishing and navigation

5 Paragraphs 2(1)(a) and (b) do not apply in respect of

Exception — enforcement activities

6 Paragraph 2(1)(e) does not apply in respect of federal or provincial enforcement officers when they are performing their duties or functions.

Permits

Issuance
Minister’s power

7 (1) Despite section 2, the Minister may, on application, issue a permit authorizing any person or government body to carry out an activity described in that section if

Information to be provided

(2) The application must include the following information:

Criteria — evaluating effects

8 The Minister must, in evaluating the likely effects of a proposed activity on wildlife or its habitat in the Protected Marine Area and determining if the effects are adverse, consider the following:

Conditions
Mandatory conditions

9 A permit must include the following conditions:

Other conditions

10 A permit may include any other conditions with respect to

Expiry
Maximum duration of permit

11 A permit expires on the earlier of

Suspension and Cancellation
Suspension

12 (1) The Minister may suspend a permit if

Period of suspension

(2) The permit is suspended until the day on which the Minister notifies the permit holder that the suspension of the permit is lifted.

Lifting of suspension

(3) The Minister must lift the suspension when the grounds for the suspension no longer exist or when the permit holder has taken the measures that are necessary to remedy the situation.

Cancellation

13 The Minister may cancel a permit if

Coming into Force

Publication

14 These Regulations come into force on the day on which they are published in the Canada Gazette, Part II.

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