ARCHIVED — Vol. 150, No. 10 — May 18, 2016

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Registration

SOR/2016-81 May 2, 2016

SPECIES AT RISK ACT

Critical Habitat of the Northern Madtom (Noturus stigmosus) Order

Whereas the Northern Madtom (Noturus stigmosus) is a wildlife species that is listed as an endangered species in Part 2 of Schedule 1 to the Species at Risk Act (see footnote a);

Whereas the recovery strategy that identified the critical habitat of that species has been included in the Species at Risk Public Registry;

Whereas no portion of the critical habitat of that species that is specified in the annexed Order is in a place referred to in subsection 58(2) of that Act;

And whereas the Minister of Fisheries and Oceans is of the opinion that the annexed Order would affect a reserve or any other lands that are set apart for the use and benefit of a band and, pursuant to subsection 58(7) of that Act, has consulted with the Minister of Indian Affairs and Northern Development and the band with respect to the Order;

Therefore, the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act (see footnote b), makes the annexed Critical Habitat of the Northern Madtom (Noturus stigmosus) Order.

Ottawa, April 21, 2016

Hunter Tootoo
Minister of Fisheries and Oceans

Critical Habitat of the Northern Madtom (Noturus stigmosus) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Northern Madtom (Noturus stigmosus), 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.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

In November 2002, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) reassessed the Northern Madtom (Noturus stigmosus), and reclassified the species from a species of special concern to endangered. The species was reassessed by COSEWIC in 2012 and the Committee confirmed the species assessment as endangered. The assessment was based upon the best available information on the biological status of the species, including scientific knowledge. An “endangered species” is defined under the Species at Risk Act (SARA) as a wildlife species that is facing imminent extirpation or extinction.

The assessment of the status of the species was provided to the Minister of the Environment and to 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 reclassifying the species on the List of Wildlife Species at Risk set out in Schedule 1 of SARA, decided to reclassify the Northern Madtom to Part 2 of Schedule 1 as an endangered species.

As a result of SARA coming into force and Northern Madtom being included in Schedule 1 of SARA, the competent minister was required to prepare a recovery strategy for the species. The recovery strategy was prepared by the Minister of Fisheries and Oceans in collaboration with representatives of the Ontario Ministry of Natural Resources and Forestry (OMNRF), Essex Region Conservation Authority, Upper Thames River Conservation Authority and Trent University. Members of existing ecosystem-based recovery teams (Thames River and Essex-Erie region) were invited to participate in the development of this recovery strategy and included representatives from federal and provincial governments, academic institutions, conservation authorities and First Nations groups/agencies (including Oneida Nation of the Thames, Southern First Nations Secretariat, Chippewas of the Thames, Delaware Nation and Munsee-Delaware First Nation).

The final recovery strategy, which includes an identification of the species’ critical habitat, was posted on the Species at Risk Public Registry (the SAR Public Registry) on June 12, 2012. (see footnote 1) The Northern Madtom has a very restricted Canadian range (two existing locations), which is impacted by deterioration of water quality and potential negative interactions with non-native species. One population (Sydenham River) appears to have been extirpated.

The Northern Madtom is native to North America and has a disjunct distribution throughout parts of the Mississippi and western Lake Erie and Lake St. Clair drainages. This species is considered to be rare to extremely rare throughout its range. In Canada, the Northern Madtom occurs within an area less than 1 600 km2 and occupies an area less than 700 km2; however, this does not include a recently confirmed St. Clair River record. There are two, possibly three, existing, reproducing populations in Canada:

  1. lower Lake St. Clair – Detroit River;
  2. Thames River of southwestern Ontario; and
  3. potentially the St. Clair River.

The preferred habitat of the Northern Madtom is the clear to turbid water of large creeks to big rivers with moderate to swift current. It occurs over substrates of sand, gravel and rocks, occasionally with silt, detritus and accumulated debris. The Northern Madtom’s habitat may be associated with aquatic plants and is typically encountered at depths of less than seven meters. Habitat requirements for this species in the spawn to juvenile life stages include warm, densely vegetated shallow water with noticeable current, sand, fine gravel and/or cobble substrate and in-water structure (e.g. large rocks, logs and debris). Habitat preferences of the adult life stage include moderate water depths with moderate to swift currents and sand, gravel and rock substrates. For more information on the life cycle of the species, its residence and critical habitat, 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 the entire critical habitat is legally protected. In most cases, this will be accomplished through the making of a critical habitat order, which triggers the prohibition against the destruction of any part of the critical habitat.

Therefore, this Critical Habitat of the Northern Madtom (Noturus stigmosus) Order is intended to satisfy the obligation to legally protect the critical habitat by triggering the prohibition under SARA against the destruction of any part of the species’ critical habitat.

Background

The Government of Canada is committed to conserving biodiversity and the management of sustainable aquatic ecosystems, 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, the Species at Risk Act (see footnote 2) 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. Thus for individuals of aquatic species listed as extirpated, endangered or threatened, steps taken to help protect and recover them include

  • prohibitions against
    • 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.

These prohibitions do not apply to activities authorized under SARA.

The protection of critical 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 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 the 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 and 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 the 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

  • 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 Order contributes to and aligns with these broader Biodiversity Outcomes Framework goals. The Order legally protects the critical habitat of the Northern Madtom by triggering the prohibition against the destruction of any part of its critical habitat.

The “endangered” SARA status of the Northern Madtom was the result of an assessment undertaken by COSEWIC, and was based on the species’ very restricted Canadian range (two extant locations), which is impacted by deterioration in water quality and potential negative interactions with non-native species. Critical habitat was identified using a “bounding box” approach. This approach requires the use of essential functions, features and attributes for each life stage of the Northern Madtom to identify patches of critical habitat within the “bounding box,” which is defined by occupancy data for the species. The bounding box approach was the most appropriate, given the limited information available for the species and the lack of detailed habitat mapping for the areas of critical habitat. 

The population and distribution objectives outlined in the recovery strategy are considered to be both technically and biologically feasible: A number of key objectives are proposed in the recovery strategy to meet the population and distribution objectives:

  • Refine population and distribution objectives;
  • Ensure the protection of critical habitat;
  • Determine long-term population and habitat trends;
  • Evaluate and mitigate threats to the species and its habitat;
  • Determine the feasibility of relocations and captive rearing;
  • Ensure efficient use of resources (human and fiscal) during recovery planning efforts; and
  • Improve awareness of the Northern Madtom and engage the public in the conservation of the species.

Description

The Order is made to satisfy the obligation to ensure that the Northern Madtom critical habitat is legally protected. With this Order, the Northern Madtom will benefit from the prohibition in subsection 58(1) of SARA against the destruction of any part of its critical habitat. The prohibition will apply to anyone undertaking activities in and around the Northern Madtom critical habitat that would result in the destruction of any part of it. The Order will serve to

  • communicate to Canadians the prohibition against the destruction of any part of the Northern Madtom critical habitat, 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 critical habitat are managed to the extent required under SARA.

As a result of the Order, the prohibition in subsection 58(1) of SARA will apply to any ongoing or future human activities that could result in the destruction of any part of the Northern Madtom critical habitat. This will further support management of human activities affecting the critical habitat and allow for the prosecution of any unauthorized destruction of the critical habitat under SARA.

Under SARA, an activity that will destroy a part of the species’ critical habitat may be permitted by the Minister 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 is of the opinion that 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 or its critical habitat or the residences of its individuals; and
  • the activity will not jeopardize the survival or recovery of the species.

The greatest threats to the survival and recovery of the Northern Madtom are related to habitat modification. Examples of threats to the habitat of the Northern Madtom include, but are not limited to, physical habitat loss (from activities such as dredging, infilling along shorelines, shoreline hardening, channelization, construction of dams and impoundments, and installation of docks, groynes and piers), siltation, turbidity and nutrient loading resulting from agricultural and urban development, toxic compounds, exotic species and climate change. Examples of activities likely to destroy critical habitat of this species include (see footnote 3)

  • dredging, grading, excavation, structure removals and the placement of material or structures in water that can change water depths, change flow patterns (which potentially affects turbidity), and impact nutrient levels and water temperatures;
  • construction of dams/barriers, and water level management or water extraction activities that can result in habitat fragmentation, altered flow patterns, increased sediment deposition (e.g. changing preferred substrates), change in water temperatures, change in aquatic plant growth and change in prey abundance;
  • over application of pesticides/herbicides affecting water chemistry, prey availability and spawning/recruitment success;
  • over application of fertilizer and improper nutrient management causing nutrient loading or nearby waterbodies; and
  • work in or around water with improper sediment and erosion control causing increased turbidity, which potentially reduces feeding success or prey availability, impacts the availability of small cavities for nesting and growth of aquatic vegetation, and possibly excludes fish from habitat due to physiological impacts of sediment in the water (e.g. gill irritation).

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 will be prohibited once the Order comes into force. 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 and codes of practice, 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 Order comes into force on the day it is registered and triggers the prohibition in subsection 58(1) of SARA which confers legal protection to the Northern Madtom critical habitat. This will facilitate efforts to support the survival and recovery of the species.

Consultation

Consultation on the recovery strategy began at very early stages of the planning process and continued throughout the process. In 2007, Fisheries and Oceans Canada established a small team of experts to develop the draft recovery strategy. This development included a plan to consult on the Minister of Fisheries and Oceans’ intention to use a subsection 58(4) order to protect critical habitat. Consultation was completed April 17, 2012, after having engaged all affected Aboriginal communities in southern Ontario, non-government organizations and municipalities. No negative comments with respect to the use of a subsection 58(4) order were received.

Consultation on the recovery strategy for the Northern Madtom included mail outs of information packages that were sent to potentially affected Aboriginal communities and organizations (Oneida Nation of the Thames, Aamjiwnaang, Caldwell, Chippewa of the Thames, Moravian of the Thames, Munsee Delaware and Walpole Island First Nations, Southern First Nation Secretariat, Association of Iroquois and Allied Indians, Chiefs of Ontario, Assembly of First Nations and the Union of Ontario Indians) and Métis communities (Métis Nation of Ontario, Grand River Métis Council, Windsor/Essex Métis Council and Métis Captain of the Hunt Region 9), as well as non-government organizations and municipalities. These groups were informed that the proposed recovery strategy would be posted and each group was invited to comment.

The proposed recovery strategy was posted on the SARA Public Registry for public comment from February 17, 2012, to April 17, 2012. No significant comments were received on the proposed recovery strategy and no significant concern was noted with respect to critical habitat during the consultation period. Only one response was received from this opportunity to comment on the proposed recovery strategy; the Chippewa of the Thames expressed interest in the recovery of this species and, as a result, a follow-up meeting was held with this community in May 2012.

More recently, Fisheries and Oceans Canada conducted (in coordination with Environment Canada [EC] and Parks Canada Agency [PCA]) community consultation sessions with Walpole Island First Nation on several recovery documents, including the recovery strategy for the Northern Madtom.

Additional consultation under subsection 58(7) of SARA occurred between December 2012 and June 2013 with the Director General of Lands and Environmental Management Branch, Aboriginal Affairs and Northern Development Canada (AANDC) and the Moravian of the Thames Nation whose reserve lands are found adjacent to areas identified as critical habitat. Neither AANDC nor the Moravian of the Thames Nation expressed any concerns.

In addition to consultations, signage with both stewardship and legislative messaging regarding the use of an order were posted at some critical habitat locations between 2010 and 2014 to inform local residents of the existence and importance of critical habitat for the Northern Madtom. In addition, Fisheries and Oceans Canada organized information sessions from 2010 to 2014 to inform groups and agencies (e.g. conservation authorities, drainage superintendents municipalities and contractors) about the location and future protection of critical habitat for the Northern Madtom and other fishes in southwestern Ontario.

Rationale

Purpose

Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final recovery strategy on the SAR 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 Order for the protection of critical habitat of the Northern Madtom 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 Northern Madtom are currently already subject to other federal regulatory mechanisms.

Table 1. Examples of key existing federal regulatory mechanisms that already apply to the critical habitat of the Northern Madtom

Act or Regulation

Application to critical habitat

Species at Risk Act, subsection 32(1)

Prohibits, among other things, the killing, harming or harassing of individuals of the Northern Madtom. 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.

Species at Risk Act, section 33

Prohibits, among other things, the damage or destruction of the residence of one or more individuals of a wildlife species that is listed as threatened.

The Northern Madtom spawns in July in Ontario, once water temperature reaches 23 °C. A nest is constructed in a cavity or in an artificial substrate. As these cavities are a part of necessary life function, activities that would destroy these activities would be subject to prohibitions under SARA.

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 others, 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 authorizations issued under other federal legislation applicable to the critical habitat of the Northern Madtom have the same effect as permits issued under SARA.

Additional detail is provided in the “Application” section 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 Northern Madtom 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.

To date, no amendments have been made to such documents with respect to activities in the critical habitat of the Northern Madtom.

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 Northern Madtom 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

To date, the Minister of Fisheries and Oceans has not been consulted on the issuance of any licences, permits or other authorizations that might result in the destruction of any part of the critical habitat of the Northern Madtom. 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 minister(s) 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 Northern Madtom was identified in a recovery strategy published on June 12, 2012, all projects affecting critical habitat are already subject to this provision.

Fisheries Act, section 20

Section 20 relates to fish passage and the maintenance of water flow.  This authority can be exercised to improve fish passage, prevent harm to fish or improve flow to areas below an obstruction.

This authority to require provision for the flooding of fish habitat or for fish passage can contribute, respectively, to the protection of the critical habitat directly, or indirectly by providing for the species’ access to the critical habitat.

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 Northern Madtom.

Additional detail is provided in the “Application of critical habitat Order” 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 Northern Madtom would also contribute to the protection of the critical habitat.

Fisheries Act, section 37

Provides authority to request plans and specifications for works, undertakings or activities that may result in serious harm to fish or the deposit of a deleterious substance, to determine what measures could be taken to prevent or mitigate these effects and to make orders to require the modification, restriction or closing of the work, undertaking or activity.

This authority contributes to the protection of the critical habitat of the Northern Madtom from a work, undertaking or activity that could result in serious harm to fish or the deposit of a deleterious substance.

Canadian Environmental Assessment Act, 2012

The proponent of any designated project in the critical habitat of the Northern Madtom 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 include, among other things: a change 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.

Complementary provincial regulatory efforts to promote the survival and recovery of Northern Madtom apply to areas identified as Northern Madtom critical habitat (Table 2).

Table 2. Existing provincial regulatory mechanisms that apply to areas identified as Northern Madtom critical habitat

Act or Regulation

Application to critical habitat

Ontario’s Endangered Species Act, 2007

Prohibits, among other things, the killing, harming or harassing of individuals of a species that is listed on the Species at Risk in Ontario List (SARO) as an extirpated, endangered or threatened species. Activities that would contravene this prohibition require a permit in order to proceed.  Activities likely to destroy critical habitat are also likely to kill, harm or harass individuals of this species.

Subsection 9(1)

Northern Madtom is listed as an endangered species under SARO. Therefore, anyone intending to carry out such activities is already subject to this prohibition.

Ontario’s Endangered Species Act, 2007

Prohibits the damage or destruction of the habitat of a species that is listed on the Species at Risk in Ontario List (SARO) as an extirpated, endangered or threatened species. Activities that would contravene this prohibition require a permit in order to proceed.

Subsection 10(1)

Northern Madtom is listed as an endangered species under SARO. Therefore, anyone intending to carry out such activities is already subject to this prohibition.

Application of the critical habitat Order

The Order, upon coming into force, triggers the prohibition under subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Northern Madtom. The Order complements the existing federal regulatory framework by formally establishing, and clearly communicating the legal protection of critical habitat for the 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 Northern Madtom and its critical habitat.

Based upon the best evidence currently available, it is anticipated that the application of the existing federal regulatory mechanisms is sufficient to manage the application of the prohibition in subsection 58(1) of SARA without the need for additional compliance and administrative measures on the part of Canadians and Canadian businesses. Fisheries and Oceans Canada anticipates that there are no planned or ongoing activities within the critical habitat of the Northern Madtom that would need to be mitigated by Canadians or Canadian businesses beyond the requirements of existing federal regulatory mechanisms to avoid destruction of any part of the critical habitat. That being said, should any future activities result in the destruction of any part of the critical habitat of Northern Madtom, 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 Northern Madtom. 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 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 Order was assessed by reviewing the scale and types of past “projects” that were assessed by Fisheries and Oceans Canada and that occurred within or adjacent to the Northern Madtom critical habitat from 2012 to 2015. The scan identified only two projects in the proposed critical habitat for Northern Madtom that were reviewed by Fisheries and Oceans Canada. These projects were related to shoreline rehabilitation/erosion control projects and bridge maintenance and shoreline stabilization projects in the Thames River. These projects were considered low to medium risk to fish and fish habitat at the time of assessment. These types of projects will continue to be managed under the existing legislative framework after the entry into force of the Order.

Based on the best available information, Fisheries and Oceans Canada has also determined that there are no future projects anticipated within the 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 either destruction of any part of critical habitat or jeopardy to survival or recovery of the species.

Cost-benefit analysis

It is anticipated that there will be no incremental impacts on stakeholders or Aboriginal groups as a result of the Order. Therefore, considering the existing federal regulatory mechanisms, the 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 Order are anticipated to be negligible.

“One-for-One” Rule

Given that the information requirements of the existing regulatory framework are sufficient to promote compliance with the prohibition against destruction of critical habitat triggered by this Order, with no incremental administrative burden on businesses anticipated, the “One-for-One” Rule would not apply to this Order. Notwithstanding this analysis, this 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 Northern Madtom’s critical habitat.

Small business lens

At present, compliance for small business is being met through the administration of the existing federal regulatory framework. 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) and section 33 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 this Order, as there would be no incremental costs on 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 Northern Madtom. These standards and specifications are aligned with those that will be required once the 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 framework applies to the critical habitat of the Northern Madtom. The Order will provide an additional deterrent to the existing regulatory mechanisms and specifically safeguard the critical habitat of the Northern Madtom 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) or section 33 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 to subsection 32(1), section 33 or subsection 58(1) of SARA.

Any person planning on undertaking an activity within the critical habitat of the Northern Madtom 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
Integrated Species at Risk
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Fax: 613-990-4810
Email: SARA_LEP@dfo-mpo.gc.ca

  • Footnote a
    S.C. 2002, c. 29
  • Footnote b
    S.C. 2002, c. 29
  • Footnote 1
    https://www.registrelep-sararegistry.gc.ca/document/doc1727f/ind_e.cfm
  • Footnote 2
    S.C. 2002, c.29.
  • Footnote 3
    The examples listed are neither exhaustive nor exclusive. The absence of a specific human activity 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.