ARCHIVED — Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order

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Vol. 143, No. 5 — March 4, 2009

Registration

SOR/2009-68 February 19, 2009

SPECIES AT RISK ACT

Whereas the Northeast Pacific northern and southern resident populations of the killer whale (Orcinus orca) are wildlife species that are listed in the List of Wildlife Species at Risk set out in Schedule 1 (see footnote a) to the Species at Risk Act (see footnote b);

Whereas a recovery strategy for those species, entitled Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada, has been prepared under subsection 37(1) of that Act and was included in the public registry, established under section 120 of that Act, on March 14, 2008;

Whereas section 3 of that recovery strategy identifies and describes the critical habitats of those species;

And whereas no portion of the critical habitats of those species that are specified in the annexed Order are in a place referred to in subsection 58(2) of that Act;

Therefore, the Minister of the Environment and the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act (see footnote c), hereby make the annexed Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order.

Ottawa, February 16, 2009

JIM PRENTICE
Minister of the Environment

Ottawa, February 12, 2009

GAIL SHEA
Minister of Fisheries and Oceans

CRITICAL HABITATS OF THE NORTHEAST PACIFIC NORTHERN AND SOUTHERN RESIDENT POPULATIONS OF THE KILLER WHALE (ORCINUS ORCA) ORDER

APPLICATION

1. Subsection 58(1) of the Species at Risk Act applies to the critical habitats of the Northeast Pacific northern and southern resident populations of the killer whale (Orcinus orca) described in the schedule.

COMING INTO FORCE

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

SCHEDULE
(Section 1)

DESCRIPTION OF CRITICAL HABITATS

SOUTHERN RESIDENT KILLER WHALE CRITICAL HABITAT BOUNDARIES

Described clockwise from the western boundary — all Latitudes are Decimal Degrees North; all Longitudes are Decimal Degrees West

 

Point Description

Latitude Deg

Latitude Min

Longitude Deg

Longitude Min

 1

western boundary

48

29.68

124

44.31

 2

48

40.02

124

50.68

 3

Excluding waters north of the line joining (Sooke Inlet)

48

21.30

123

44.32

 4

48

20.33

123

42.90

 5

Excluding waters north of the line joining (Royal Roads, Esquimalt Hbr, Victoria Hbr)

48

24.25

123

28.97

 6

48

24.57

123

22.61

 7

Excluding waters west of the line joining (Cordova Channel and Sidney Channel)

48

29.69

123

18.61

 8

48

36.12

123

18.51

 9

Excluding waters west of the line joining (western half of Miners Channel and the waters west of Gooch Island)

48

37.04

123

18.49

10

48

39.70

123

17.72

11

Excluding waters west of the line joining (western half of Prevost Channel and Moresby Passage)

48

39.88

123

17.68

12

48

42.96

123

19.63

13

Excluding waters west of the line joining (western portion of Swanson Channel between Moresby Island and Prevost Island)

48

43.34

123

19.88

14

48

48.86

123

22.70

15

Excluding waters west of the line joining (western portion of Trincomali Channel between Prevost Island and Parker Island)

48

50.66

123

23.33

16

48

52.61

123

23.92

17

Excluding waters west of the line joining (western portion of Trincomali Channel between Parker Island and Galiano Island)

48

52.85

123

23.92

18

48

53.08

123

23.76

19

48

54.28

123

20.67

20

48

55.39

123

21.98

21

Excluding waters west of the line joining (western portion of southern Strait of Georgia)

49

0.00

123

18.88

22

49

10.39

123

22.82

23

49

13.58

123

21.97

24

49

13.58

123

21.97

25

Excluding waters north of the line joining (portion of southern Strait of Georgia)

49

14.00

123

21.09

26

49

14.18

123

19.22

27

49

13.79

123

17.21

28

49

13.79

123

17.21

29

49

12.87

123

15.75

30

Excluding waters north and east of the line joining (portion of southern Strait of Georgia)

49

9.01

123

16.48

31

 

49

3.39

123

9.24

32   49 3.47 123 8.48
 

And bounded on the east and south by Point Roberts and the United States Border

       

NORTHERN RESIDENT KILLER WHALE CRITICAL HABITAT BOUNDARIES

Described clockwise from the western boundary — all Latitudes are Decimal Degrees North; all Longitudes are Decimal Degrees West

 

Point Description

Latitude Deg

Latitude Min

Longitude Deg

Longitude Min

1

Western boundary (Vancouver Island to Numas Island)

50

36.98

127

11.00

2

50

46.24

127

6.76

3

Northern boundary (Numas Island to Broughton Island)

50

46.27

127

5.26

4

50

46.41

126

48.27

5

Northern boundary (Broughton Island to Screen Island / Eden Island)

50

46.13

126

47.30

6

50

44.95

126

43.55

7

boundary line running from Eden Island to Crib Island (including waters of Queen Charlotte Strait and excluding waters of Trainer Passage)

50

44.79

126

43.22

8

50

43.67

126

42.73

9

boundary line running from Crib Island to House Islet (including waters of Queen Charlotte Strait and excluding waters of Arrow and Spring Passages)

50

43.33

126

42.58

10

50

40.16

126

41.21

11

boundary line running from House Islet to Swanson Island (including waters of Queen Charlotte Strait and excluding waters of Knight Inlet)

50

40.16

126

41.21

12

50

37.75

126

43.86

13

boundary line running from Swanson Island to Compton Island (including waters of Blackfish Sound excluding waters of West Passage)

50

36.06

126

41.77

14

50

35.84

126

41.42

15

boundary line running from Compton Island to Harbledown Island (including waters of Blackfish Sound excluding waters of Whitebeach Passage)

50

35.50

126

40.86

16

50

35.38

126

40.68

17

boundary line running from Harbledown Island to Parson Island (including waters of Blackfish Sound excluding waters of Parson Bay)

50

35.19

126

40.93

18

50

34.43

126

40.73

19

boundary line running from Parson Island to West Cracroft Island (including waters of Blackfish Sound excluding waters of Baronet Passage)

50

33.65

126

39.95

20

50

32.98

126

39.73

  Waters of western Johnstone Strait bounded on the north by West Cracroft Island, the mainland, Hardwicke Island and West Thurlow Island with no exclusions except:        

24

boundary line running from West Cracroft Island to the mainland (including waters of western Johnstone Strait excluding waters of Havannah Channel)

50

31.32

126

20.35

25

50

31.09

126

17.05

26

boundary line running from the mainland to Hardwicke Island (including waters of western Johnstone Strait excluding waters of Sunderland Channel)

50

28.46

126

2.54

27

50

26.57

125

57.94

28

boundary line running from Hardwicke Island to Eden Point on West Thurlow Island (including waters of western Johnstone Strait excluding waters of Chancellor Channel)

50

24.58

125

48.29

29

50

23.91

125

47.38

30

boundary line running from Eden Point to Tyee Point on West Thurlow Island (including waters of western Johnstone Strait excluding waters of Vere Cove)

50

23.91

125

47.38

31

50

23.26

125

47.06

32

Eastern boundary line running from West Thurlow Island (including waters of western Johnstone Strait excluding waters of eastern Johnstone Strait and Mayne Passage)

50

23.42

125

34.39

33

50

21.88

125

34.23

 

Waters of western Johnstone Strait bounded on the south by Vancouver Island – no exclusions except:

       

35

36

boundary line running from Graveyard Point to Kelsey Bay Harbour on Vancouver Island (including waters of western Johnstone Strait excluding waters of Salmon Bay)

50

50

23.45

23.80

125

125

56.71

57.62

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Order.)

Executive Summary

Issue: The Ministers of Fisheries and Oceans Canada and of Environment Canada are jointly issuing an order under subsections 58(4) and (5) of the Species at Risk Act (SARA). Such an order will provide legal protection against the human-induced threats to critical habitats identified as part of the Recovery Strategy for the Northern and Southern Resident Killer Whales in British Columbia (B.C.). The Order replaces the Protection Statement for the Northern and Southern Resident Killer Whales in B.C. posted on September 10, 2008 on the Species at Risk Public Registry.

Description: The Southern and Northern Resident Killer Whales off the west coast of B.C. were listed under SARA as Endangered and Threatened respectively when Schedule 1 of the Act was proclaimed into force in 2003. The Order issued under subsections 58(4) and (5) triggers a prohibition against the destruction of any part of the critical habitats identified in the Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada posted on March 14, 2008 on the Species at Risk Public Registry.

Cost-benefit statement: Issuing the Order may entail both benefits and costs in terms of social, economic and environmental considerations through the implementation of the prohibitions against the destruction of any part of the critical habitat. Some impacts can be quantified in absolute terms, while others are more qualitative, such as the intrinsic value of species or their contribution to biological diversity.

Domestic and international coordination and cooperation: International coordination and cooperation for the conservation of biodiversity is provided through the Convention on Biological Diversity (CBD) to which Canada is a signatory. The CBD’s objectives include conservation of biological diversity, sustainable use of biological resources, and fair and equitable sharing of the benefits arising from the use of genetic resources. One of Canada’s responses to the CBD was the Canadian Biodiversity Strategy (1996), which is an umbrella for a range of initiatives including the Accord for the Protection of Species at Risk, the Habitat Stewardship Program, and SARA. Actions to protect species at risk under the federal SARA help to fulfill Canada’s obligation under the CBD to conserve biodiversity in Canada.

Issue

A variety of legislative and policy tools are used in addition to SARA to protect and address the complexities of the critical habitat of the Southern and Northern Resident Killer Whales, including the Fisheries Act, the Canadian Environmental Protection Act, 1999 and the Marine Mammal Regulations.

The Minister of Fisheries and Oceans (DFO) is the “competent minister” for aquatic species under SARA. Since the critical habitats of the Killer Whales include the Pacific Rim National Park Reserve of Canada and other lands and waters administered by the Parks Canada Agency, such as the Gulf Islands National Park Reserve of Canada in the process of being established, the Minister of the Environment is also a “competent minister” under SARA. To provide legal protection of the critical habitats of the Northern and Southern Resident Killer Whale population in furtherance of the purposes and objectives of SARA, the Ministers are issuing an order under subsections 58(4) and (5) to prohibit the destruction of any part of the critical habitats of the Killer Whales in replacement of the Protection Statement posted on September 10, 2008 on the Species at Risk Public Registry. This Order will be an important tool to support the recovery of these wildlife species and the protection of their critical habitats.

Species at Risk Act: Background

In 1992, Canada became the first western industrialized nation to ratify the United Nations Convention on Biological Diversity and pledged to provide “effective protection” for Canadian species at risk and the critical habitat and ecosystems on which they depend. Implementation of the Convention required, among other actions, the development of a Canadian Biodiversity Strategy to provide strategic direction and a framework for action at all levels of government. A key component of the Canadian Biodiversity Strategy is the 1996 Accord for the Protection of Species at Risk. The 1996 Accord outlines commitments by federal, provincial and territorial ministers to designate species at risk, protect their habitats, and develop recovery plans as well as complementary legislation, policies and programs, including stewardship.

Consistent with commitments set out in both the Canadian Biodiversity Strategy and the 1996 Accord, SARA received Royal Assent in December 2002, after extensive consultation with provincial and territorial governments, Aboriginal peoples, wildlife management boards, environmental organizations, industry and the general public.

The purpose of SARA is threefold:

1) To prevent wildlife species from being extirpated or becoming extinct;

2) To provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity; and

3) To manage species of special concern to prevent them from becoming endangered or threatened.

Description

The Southern and Northern Resident Populations of Killer Whales off the west coast of British Columbia were listed under Schedule 1 of SARA as Endangered and Threatened respectively when that schedule came into force in 2003.

DFO has implemented programs and measures for the protection of killer whales, including whale-watching guidelines, directed enforcement to prevent harassment and disturbance, habitat development and seismic protection protocols, and a greatly enhanced research program.

Critical habitat for the Northern and Southern Resident Killer Whales was identified in the Final Recovery Strategy posted on March 14, 2008 on the SARA Public Registry. The Recovery Strategy identifies at section 3 the critical habitats as defined geophysical areas where these populations concentrate. In addition, DFO recognizes that other ecosystem features such as the availability of prey for foraging and the quality of the environment are important to the survival and recovery of Northern and Southern Resident Killer Whales.

A number of considerations, both strategic and practical, have influenced the Ministers in reaching this conclusion and making this Order. This Order will not prevent the Ministers from relying on other legislation as well as a range of management and policy tools in managing the protection of Killer Whale critical habitat. Further, the Order will provide additional tools for this purpose. The Order is a prohibition against the destruction of any part of the critical habitats as identified in the Recovery Strategy.

Regulatory and non-regulatory options considered

Subsection 58(5) of SARA requires that the competent Minister issue either a protection statement demonstrating how the critical habitat identified in a recovery strategy is legally protected under federal legislation, or an order stating that the prohibition at subsection 58(1) applies to critical habitat identified in the recovery strategy.

In the case of the Killer Whales, a Protection Statement was issued on September 10, 2008. Given the complexities involved in protecting the critical habitats of Killer Whales, it was subsequently decided that, with a view of supporting the recovery of these species, an order would be a useful tool to provide legal protection against the destruction of any part of the Killer Whales’ critical habitats.

Benefits and costs

An order for the protection of critical habitat under SARA entails both benefits and costs in terms of social, economic and environmental considerations through the implementation of SARA’s prohibitions. Some impacts can be quantified in absolute terms, while others are more qualitative, such as the intrinsic value of species or their contribution to biological diversity.

Benefits

SARA provides a framework for actions across Canada to help to ensure the survival of wildlife species at risk and the protection of our natural heritage.

These two populations of Killer Whales occupy an ecological niche as predators such that their recovery may contribute to strengthening related predator/prey populations and ecosystems. Conservation measures taken to protect these populations and their habitat under SARA may also prevent other species from becoming at risk. Many of these geographically and biologically distinct species are of public and scientific interest due to their unique genetic composition and evolutionary histories.

Industries, such as fishing, have recognized that sustainable use of the resource can lead to the long-term viability of the resource. Ecosystem health and the sustainable use of our current natural resources may be the source of future economic and employment opportunities. In the last two decades, marine mammal watching has become a popular and profitable activity in Canada and across the world.

Species, especially killer whales, also have substantial non-economic or intrinsic value to Canadian society. Canadians want to preserve species for future generations to enjoy. Many derive value from knowing the species exist, even if they will never personally see or “use” them. There is also value derived from retaining the option to observe or even use the species at some future time.

Protection and recovery of species at risk, including protection of their critical habitat, contributes to Canada’s image as an international leader in environmental conservation and supports our role in international trade discussions.

Costs

Costs may arise from prohibitions of destruction of critical habitat under this Order. Increased costs for management, compliance and enforcement of protection and management of critical habitat could result from this Order. There may also be additional costs to proponents of development projects to avoid causing destruction or to mitigate harm to the critical habitat. This is consistent with the widely accepted user pay principle where individuals who will benefit from harming a public good are required to pay for any negative costs resulting from their project.

Consultation

To assist in the development of an initial draft of the recovery strategy for these populations, DFO brought together a diverse team of experts from various governmental, environmental, eco-tourism and non-governmental groups from both Canada and the United States. On the advice of the Species at Risk Coordinator at the BC Aboriginal Fisheries Commission, a letter of invitation followed up by phone calls was sent to all coastal First Nations seeking their interest in participating on the Recovery Team and/or Technical Workshop. A Technical Workshop was hosted in March 2004 to provide a forum for the sharing of knowledge and expertise on killer whales with an invited group of scientific and technical stakeholders which was invaluable in assisting the Resident Killer Whale Recovery Team to formulate an effective recovery strategy.

Additional input was sought through the DFO Web site during March 2005 on the draft recovery strategy, and a notice of public consultations was sent to a distribution list of interested and affected parties. Feedback on the recovery strategy was also received from other government agencies including the Department of National Defence, the Province of British Columbia, Environment Canada and Natural Resources Canada.

The proposed version of the recovery strategy was posted on the SARA Public Registry for a 60 day public comment period in June 2007. During this time, numerous comments were received from a wide variety of sources, including governmental agencies, commercial and recreational fishing groups, ecotourism operators, non-governmental organizations, and private citizens. All feedback from this comment period was considered and incorporated into the final recovery strategy as appropriate.

Given the extensive consultations described above, and the timing of this Order, the Ministers have determined that there is not sufficient need or time to conduct further consultations and hence pre-publication of the Order was not considered necessary.

Implementation, enforcement and service standards

Environment Canada, the Parks Canada Agency and Fisheries and Oceans Canada facilitate stewardship activities and promote compliance with SARA by producing promotional and educational materials, and by organizing educational activities. These materials and activities include, for example, the SARA Public Registry, an electronic information bulletin, posters, information sessions, engaging learning activities, Web features, curricula and other public education projects. As well, funding under the Habitat Stewardship Program is available for those groups or individuals wishing to undertake projects to protect and enhance species at risk habitat.

Currently, many DFO operations contribute to the enforcement of the critical habitat prohibitions. These include monitoring of Killer whale populations, enforcement of marine mammal regulations, management and enforcement of fish habitat protection, and the management and enforcement of sustainable fisheries. These activities will be supplemented with enforcement of the prohibition against destruction of critical habitat.

SARA provides for penalties for contraventions to the Act, including liability for costs, fines or imprisonment, alternative measures agreements, seizure and forfeiture of the proceeds of an illegal activity. SARA also provides qualified officers designated under the Act with inspections and search and seizure powers. Under the penalty provisions of SARA, a 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 to a fine of not more than $50,000, and any other person to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. In the case of a corporation found guilty of an indictable offence, it 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.

Certain activities affecting a listed species will require permits. Such permits can be considered only for research relating to the conservation of a species that is conducted by qualified scientists, for activities that benefit a listed species or enhance its chances of survival, or when affecting the species is incidental to the carrying out of an activity. Furthermore, some activities related to public safety, health or national security may be authorized under federal legislation, and activities in accordance with conservation measures for wildlife species under land claims agreements may also be allowed. Generally, these exceptions can be made when it is established that all reasonable alternatives to the activity have been considered and the best solution has been adopted, when all feasible measures will be taken to minimize the impact of the activity, and when the survival or recovery of the species will not be jeopardized by the activity.

Contact

Eve Ste-Marie
Regulatory Analyst
Fisheries and Oceans Canada
200 Kent Street, 14th Floor
Ottawa, Ontario
K1A 0E6
Telephone: 613-993-0982
Fax: 613-990-0168

Footnote a
 SOR/2007-284

Footnote b
 S.C. 2002, c. 29

Footnote c
 S.C. 2002, c. 29