Vol. 150, No. 21 — October 19, 2016
SOR/2016-257 September 30, 2016
SAGUENAY-ST. LAWRENCE MARINE PARK ACT
Regulations Amending the Marine Activities in the Saguenay-St. Lawrence Marine Park Regulations
P.C. 2016-840 September 30, 2016
His Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to section 17 (see footnote a) of the Saguenay- St. Lawrence Marine Park Act (see footnote b), makes the annexed Regulations Amending the Marine Activities in the Saguenay-St. Lawrence Marine Park Regulations.
Regulations Amending the Marine Activities in the Saguenay-St. Lawrence Marine Park Regulations
1 (1) The definitions commercial vessel, disturbance of a marine mammal, endangered marine mammal and Fjord in section 1 of the Marine Activities in the Saguenay-St. Lawrence Marine Park Regulations (see footnote 1) are repealed.
(2) The definitions cargo ship, observation zone, permit and special activity in section 1 of the Regulations are replaced by the following:
cargo ship means a commercial ship used to transport goods in various forms including composite units, as defined in subsection 1(1) of the Collision Regulations, and barge combinations. (navire de charge)
observation zone means a moving circular zone that exists around a vessel while it is in observation mode in the park and that has a radius of one-half nautical mile (926 m). (zone d’observation)
permit means any of the following permits issued by the Minister under subsection 10(1) of the Act:
- (a) a class 1, 2 or 3 permit;
- (b) a shuttle service permit;
- (c) a scientific research permit;
- (d) a cruise ship permit; or
- (e) a special activity permit. (permis)
special activity means a planned, temporary activity or event held in the park, and includes a parade, regatta, show, film production or promotion, sports event or an activity involving flying at an altitude of less than 609.6 m (2,000 feet). (activité spéciale)
(3) Section 1 of the Regulations is amended by adding the following in alphabetical order:
aircraft has the same meaning as in subsection 3(1) of the Aeronautics Act. (aéronef)
calf means a juvenile cetacean measuring no more than one-half the size of an adult. (veau)
class 1 means a marine tour business whose activities take place on a vessel, other than a human-powered vessel, and include directed marine mammal watching tours. (classe 1)
class 2 means a marine tour business whose activities take place on a vessel, other than a human-powered vessel, and consist of activities other than directed marine mammal watching tours. (classe 2)
class 3 means a marine tour business whose activities take place on a human-powered vessel. (classe 3)
cruise ship means a passenger vessel offering overnight accommodations for at least 100 persons exclusive of crew accommodations. (navire de croisière)
speed means speed over the ground. (vitesse)
2 (1) Subsections 2(1) and (2) of the Regulations are replaced by the following:
2 (1) Sections 3 and 14 to 26 do not apply to the superintendent, a park warden, an enforcement officer or a peace officer while engaged in the discharge of their duties.
(2) Subsection 3(2) and sections 14 to 26 do not apply to any person acting under an agreement with or instructions from the Minister for the purpose of protecting marine mammals or the environment or for the purpose of public safety or park management.
(2) Paragraph 2(3)(c) of the Regulations is replaced by the following:
- (c) other than sections 14, 14.2 and 19, do not apply to the operator of a cargo ship.
(3) Section 2 of the Regulations is amended by adding the following after subsection (3):
(4) Subsections 15(1) to (3) and sections 15.1 and 21 to 25 do not apply to the operator of vessel operating under a scientific research permit if
- (a) the research involves marine mammals; and
- (b) it is necessary for the purposes of the research to approach marine mammals closer than the minimum distance required under those provisions.
3 Section 3 of the Regulations is replaced by the following:
3 (1) It is prohibited for any person to operate a marine tour business, a cruise ship or a shuttle service in the park unless the person is a permit holder in respect of that business or service or is authorized in writing by the permit holder to do so on their behalf.
(2) It is prohibited for any person to conduct scientific research or to hold a special activity in the park unless the person is a permit holder in respect of that research or activity or is authorized in writing by the permit holder to do so on their behalf.
4 Section 5 of the Regulations is replaced by the following:
5 (1) A class 1 or 2 permit, a shuttle service permit or a cruise ship permit shall authorize the operation of only one vessel.
(2) A class 1, 2 or 3 permit and a shuttle service permit shall be issued only to the owner of the business or service in respect of which the permit is sought.
(3) A maximum of 53 vessels may be authorized to operate in the park under class 1 permits.
5 (1) Paragraphs 6(1)(a) and (b) of the Regulations are replaced by the following:
- (a) the name and contact information of the applicant and, if they are different, those of the applicant’s business;
- (a.1) the type of permit being sought;
- (b) information respecting the equipment that the applicant uses or intends to use, including the number of vessels, if any, and their registration or listing numbers;
(2) Paragraphs 6(1)(d) to (i) of the Regulations are replaced by the following:
- (d) a copy of any documentation required by law to prove that any vessel that is the subject of the application is authorized to carry out, and is capable of carrying out, the activity for which the permit is sought;
- (e) in the case of an application for a class 1, 2 or 3 permit, a shuttle service permit, or a cruise ship permit, the types of goods or services that the applicant intends to offer;
- (f) in the case of an application for a scientific research permit, a description of the proposed scientific research, its expected duration, the objectives to be attained, the methodology and the equipment to be used, the dates on which and the times and places at which the research is to be conducted and, in the case of research involving marine mammals, a statement indicating whether it is necessary for any vessel operating under the permit to approach marine mammals closer than the minimum distance required under subsections 15(1) to (3) and sections 15.1 and 21 to 23;
- (g) in the case of an application for a special activity permit, a description of the proposed special activity, its expected duration, the objectives to be attained and the dates on which and the times and places at which it is to be held; and
- (h) in the case of a cruise ship permit, the dates of the intended cruise.
(3) Subsections 6(2) and (3) of the Regulations are replaced by the following:
(2) An application for a permit shall be accompanied by the applicable fee fixed by the Minister under section 24 of the Parks Canada Agency Act.
(3) A permit holder shall notify the Minister in writing as soon as feasible of any change in the information that was provided in the application.
6 Section 7 of the Regulations and the heading before it are replaced by the following:
Issuance of Permits
7 When deciding whether to issue a permit under section 10 of the Act, the Minister shall take into consideration the following objectives:
- (a) the protection, control and management of the park;
- (b) the protection of ecosystems, and any elements of ecosystems, in the park, in particular by decreasing the number of vessels authorized to operate in the park;
- (c) the protection of the cultural resources submerged in the park;
- (d) the protection, health and safety of the public in the park; and
- (e) the encouragement of the use of the park for educational, recreational and scientific purposes.
7.1 The Minister may specify conditions in a permit to fulfil the objectives set out in paragraphs 7(a) to (d), including conditions regarding one or more of the following:
- (a) restrictions, in terms of time and place, on the conduct of the activity authorized by the permit;
- (b) refuelling practices;
- (c) practices for the safe conduct of the activity;
- (d) the information that shall be provided to passengers;
- (e) the methods of communication used by operators of vessels operating under class 1 permits, in accordance with subsection 26(2);
- (f) the use of required equipment;
- (g) the requirement to have on board the vessel a park warden, enforcement officer or any other person specified in the permit;
- (h) the reporting of information to the park administration, including
- (i) the number of uses made annually of the vessel,
- (ii) in the case of a class 3 permit, a report of any incidents affecting ecosystems or the health or safety of clients, and
- (iii) in the case of a scientific research permit, a report on the scientific research activities performed under the terms of the permit;
- (i) the number of clients allowed for each guide operating under a class 3 permit;
- (j) the qualifications required for guides operating under a class 3 permit; and
- (k) with respect to a permit for scientific research involving marine mammals, in the event that it is necessary for a vessel to approach marine mammals closer than the minimum distance required under subsections 15(1) to (3) and sections 15.1 and 21 to 25, restrictions on the conduct of the research in order to minimize any disturbance of the marine mammals.
7.2 (1) The Minister may amend any condition of a permit to fulfil the objectives set out in paragraphs 7(a) to (d).
(2) A notice of the amendment shall be sent to the permit holder and the amendment is effective on the day after
- (a) the day recorded by the park administration’s server as the day on which the notice is sent, if the permit holder consents to receiving it by electronic means;
- (b) the day recorded by the park administration’s fax machine as the day on which the notice is sent, if the permit holder consents to receiving it by fax;
- (c) the day on which the notice is received, if it is sent to the permit holder by registered mail; or
- (d) the day on which the notice is received by the permit holder, if it is delivered personally.
(3) The notification is part of the permit and the permit holder shall attach it to the permit on receipt.
7 (1) Paragraph 8(1)(b) of the Regulations is replaced by the following:
- (b) there are reasonable grounds to believe that the permit holder has contravened these Regulations, the Act or any other applicable Acts or regulations; or
(2) Section 8 of the Regulations is amended by adding the following after subsection (3):
(3.1) The Minister shall not cancel a permit without first giving the permit holder an opportunity to be heard.
8 (1) Subparagraph 11(1)(a)(i) of the Regulations is replaced by the following:
- (i) the name and contact information of the person to whom the permit is to be transferred,
(2) Subparagraph 11(1)(a)(iii) of the Regulations is replaced by the following:
- (iii) any change in the name of the business or the name and registration or listing number of the vessel to be operated by the new permit holder under the permit after the transfer, and
9 The heading before section 12 and sections 12 and 13 are replaced by the following:
Marine Activities Certificate
11.1 (1) The holder of a class 1, 2 or 3 permit, a scientific research permit involving marine mammals or a special activity permit involving marine mammals shall ensure that the operator or guide conducting an activity under the permit holds a marine activities certificate issued by the Minister.
(2) The Minister shall issue a certificate to an operator or guide who has passed a training course approved by the Minister. The operator or guide shall pass an annual examination to renew the certificate.
(3) The operator or guide shall pay the applicable fee for the certificate as fixed by the Minister under section 24 of the Parks Canada Agency Act.
(4) The operator or guide shall carry the certificate at all times when engaged in the activities referred to in the permit.
Suspension and Cancellation of Certificate
11.2 (1) The ground for suspension of a marine activities certificate by the Minister under section 10 of the Act is that there are reasonable grounds to believe that the operator or guide has contravened the Act, these Regulations or other applicable Acts or regulations.
(2) The grounds for cancellation of a certificate by the Minister under section 10 of the Act are
- (a) that the operator or guide has been convicted three times of contravening the Act, these Regulations or other applicable Acts or regulations; or
- (b) that the certificate has been suspended three times.
(3) The Minister shall not issue a certificate to an operator or guide whose certificate has previously been cancelled.
(4) The Minister shall not cancel a certificate without first giving the operator or guide an opportunity to be heard.
11.3 (1) The permit holder of a class 1 or 2 permit, a shuttle service permit, a scientific research permit or a cruise ship permit shall ensure that the log book of a vessel operating under the permit is maintained.
(2) The log book shall contain the following information for each use of the vessel under the permit:
- (a) the date;
- (b) the point of departure;
- (c) the name of the operator;
- (d) the time of departure and return;
- (e) the number of passengers;
- (f) the operator’s signature; and
- (g) a note of any incidents affecting ecosystems or the health or safety of passengers.
(3) The log book shall be presented to a park warden or enforcement officer on request.
11.4 (1) The permit holder of a class 1 or 2 permit, a shuttle service permit or a cruise ship permit shall ensure that the vessel operating under the permit is equipped with
- (a) a fixed GPS that can provide the exact speed of the vessel in knots; and
- (b) a navigation radar, except a vessel in operation in the Saguenay Fjord upstream of l’Anse-de-Roche.
(2) The GPS and radar shall be in good working order and shall be turned on when the vessel is in operation.
12 The holder of a class 1 or 2 permit, a shuttle service permit or a scientific research permit shall ensure that the vessel operating under the permit flies the appropriate identification flag issued with that permit in a manner that clearly identifies the type of authorized activity which the vessel is carrying out.
13 (1) The holder of a class 3 permit shall ensure that the vessels operating under the permit carry on both of their sides an approved, clearly visible, sign identifying the name of the business.
(2) The Minister shall approve the sign if it clearly identifies the business.
10 Subsection 14(2) of the Regulations is replaced by the following:
(2) Disturbance of a marine mammal includes, but is not limited to, the following activities:
- (a) feeding or touching a marine mammal;
- (b) entering the water with the intention of swimming or otherwise interacting with marine mammals;
- (c) playing whale songs or calls, or making any other noise that may resemble whale songs or calls, under water;
- (d) separating members of a group of marine mammals or going between an adult marine mammal and its calf;
- (e) trapping a cetacean or group of cetaceans between a vessel and the shore or between a vessel and other vessels; and
- (f) any undue interruption, alteration or disruption of the normal behaviour of a marine mammal, in particular its social, swimming, breathing, diving, resting, feeding, nursing or reproductive behaviour.
(3) Subsection (1), in respect of behaviour that may injure or cause the disturbance of marine mammals, does not apply to a person conducting scientific research involving marine mammals under a scientific research permit if the injury or disturbance is necessary for the research.
(4) The operator of a vessel that is involved in an incident in which a marine mammal is killed or injured or that collides with a marine mammal shall report the incident immediately to a park warden or an enforcement officer and provide the following information:
- (a) the name of the operator and contact information that would permit prompt communication;
- (b) the location, date and time of the incident;
- (c) the species involved;
- (d) the circumstances of the incident;
- (e) the condition of the animal before and after the incident, if known;
- (f) the animal’s direction of travel after the incident;
- (g) the weather and sea conditions; and
- (h) any other relevant information.
11 The heading before section 15 and sections 15 to 18 of the Regulations are replaced by the following:
Temporary Exclusion Area
14.1 The Minister shall establish a temporary exclusion area if it is necessary for
- (a) the protection, control or management of the park;
- (b) the protection of ecosystems or any elements of ecosystems, in the park;
- (c) the protection of the cultural resources submerged in the park; or
- (d) the protection, health or safety of the public in the park.
14.2 It is prohibited for any person to enter a temporary exclusion area during the time that it is in force unless that person is authorized by the Minister to do so for purposes related to the reason for the establishment of the exclusion area.
14.3 (1) The Minister shall determine the geographic limits of the temporary exclusion area.
(2) The Minister shall determine the period during which the temporary exclusion area will remain in force, the duration of which shall not exceed 60 days.
(3) The Minister may establish further periods not exceeding 60 days each if it is necessary for the reasons set out in section 14.1.
(4) The Minister shall, as soon as feasible, have the Department of Fisheries and Oceans communicate in a Notice to Shipping or a Notice to Mariners, the decision to establish the temporary exclusion area and the decisions made under subsections (1) to (3). The Minister shall also communicate by fax or other electronic means the same to all permit holders and any marinas from which vessels may navigate into the park and post notices in conspicuous places where the notices are most likely to come to the attention of any person who will enter the area.
(5) The temporary exclusion area exists as of the time that the decision establishing it is communicated.
14.4 It is prohibited, in the park,
- (a) to use a personal watercraft, as defined in subsection 1(1) of the Small Vessel Regulations;
- (b) to use an air cushion vehicle;
- (c) to conduct a water sport activity using a vessel or any other motorized system as a method of traction; or
- (d) to offer any commercial services related to hunting migratory birds.
15 (1) Subject to subsections 15.1(1) and (2), the operator of a vessel shall not, by means of the vessel’s motors or under the force of the winds, waves, currents or by any other means, permit the vessel to approach a cetacean within a distance of less than 100 m, if the vessel is operating under a class 1 permit, or within a distance of less than 200 m, in the case of any other vessel.
(2) Subject to subsections 15.1(1) and (2), the operator of a vessel shall not place the vessel in the path of a cetacean in such a manner that the cetacean will pass within a distance of less than 100 m, if the vessel is operating under a class 1 permit, or within a distance of less than 200 m, in the case of any other vessel.
(3) If a cetacean, other than a beluga, approaches within a distance of less than 100 m from a vessel that is operating under a class 1 permit, or less than 200 m from any other vessel, the operator of the vessel shall place the engine in neutral gear until the cetacean has dived toward the seabed or moved more than 100 m or 200 m from the vessel, as the case may be.
(4) Subject to subsection 15.1(1), the operator of a vessel operating under a class 1 permit shall not permit the vessel to approach within a distance of less than 200 m from a cetacean accompanied by a calf or from a resting cetacean.
15.1 (1) The operator of a vessel shall maintain a minimum distance of 400 m between the vessel and any marine mammal of a species or of a population of a species that is listed in any of Parts 1 to 3 of Schedule 1 to the Species at Risk Act.
(2) The operator of a vessel shall not place the vessel in the path of a marine mammal referred to in subsection (1) in such a manner that the marine mammal will pass within a distance of less than 400 m.
(3) Despite subsections (1) and (2), if the operator of a vessel is unable to maintain a minimum distance of 400 m from a beluga, the operator shall maintain course until the vessel is more than 400 m from any beluga.
(4) Despite subsection (1), if a vessel is in observation mode when a beluga approaches within a distance of less than 400 m, the operator of the vessel shall place the vessel engine in neutral gear or move the vessel away in accordance with sections 23 and 24.
15.2 In the event of an inconsistency between these Regulations and the Collision Regulations, the Collision Regulations prevail to the extent of the inconsistency.
Concentration of Vessels
16 Despite subsection 15(1), the operator of a vessel operating under a class 1 permit shall not permit the vessel to approach within a distance of less than 200 m from a cetacean when there are more than four vessels within a radius of 400 m from that vessel.
17 The operator of a vessel operating under a class 1 permit shall not permit the vessel to enter an observation zone or observation area if there are more than nine vessels operating under a class 1 permit already in the zone or area.
18 It is prohibited for any pilot to fly an aircraft over the park at an altitude of less than 609.6 m (2,000 feet) from the surface of the water or take off from or land in the park unless the person is the holder of a special activity permit authorizing this activity.
12 The heading before section 19 of the Regulations is replaced by the following:
Speed Limits and Manoeuvres
13 Section 20 of the Regulations is replaced by the following:
19.1 Despite sections 20 to 24, the operator of a vessel in the mouth of the Saguenay, as described in the schedule, shall not operate the vessel at a speed greater than 15 knots, or 20 knots in the case of vessels operating under a class 1 permit that require a speed greater than 15 knots in order to plane, during the period from May 1 to October 31 of each year.
20 The operator of a vessel shall not operate the vessel at a speed greater than 10 knots when it is in the observation zone of another vessel or in an observation area.
14 The portion of section 21 of the Regulations before paragraph (a) is replaced by the following:
21 Despite section 20, the operator of a vessel that is between 100 and 400 m, in the case of a vessel operating under a class 1 permit, and between 200 and 400 m, in the case of any other vessel, from a cetacean other than a beluga, shall not
15 Sections 22 to 24 of the Regulations are replaced by the following:
22 If a vessel unexpectedly encounters a marine mammal, other than a beluga, at a distance of less than 400 m, the operator of the vessel, other than a human-powered vessel, shall reduce the speed of the vessel to a speed not greater than the minimum speed required to manoeuvre the vessel.
23 Subject to subsections 15(3) and 15.1(4) and section 22, the operator of a vessel, other than a human- powered vessel, that is less than one-half nautical mile (926 m) from a beluga shall not permit the vessel to remain stationary and shall operate it at a constant speed that is not less than 5 and not greater than 10 knots.
24 The operator of a vessel that is less than one-half nautical mile (926 m) from a beluga shall not change the direction of the vessel in a repetitive manner.
Observation Zones and Observation Areas
25 (1) The operator of a vessel shall not keep the vessel in observation mode for more than one hour or operate the vessel in the observation zone of another vessel or in an observation area for more than one hour.
(2) The operator of a vessel shall not permit the vessel to re-enter the observation zone of another vessel or an observation area until one hour has elapsed after leaving that observation zone or observation area, as the case may be.
26 (1) The operator of a vessel operating under a class 1 permit shall not permit the vessel to approach a cetacean within a distance of between 100 and 200 m
- (a) for more than two periods of 30 minutes each during each excursion; or
- (b) more than once in the same observation zone or observation area.
(2) The operator of a vessel operating under a class 1 permit shall — when the vessel is placed in observation mode, enters an observation zone or leaves an observation zone — indicate this to all other vessels nearby by the means of communication indicated in the permit under which the vessel is authorized to operate.
(3) Despite section 25, the operator of a vessel operating under a class 2 permit shall not place the vessel in observation mode or enter the observation zone of any vessel.
16 The schedule to the Regulations is replaced by the schedule set out in the schedule to these Regulations.
Coming into Force
17 These Regulations come into force on January 1, 2017.
Mouth of the Saguenay
The geographic coordinates below refer to the North American Datum of 1927 (NAD27).
The area of the park bounded
- (a) on the south by a line approximately 3.65 nautical miles in length
- (i) commencing at a point near Pointe-auxAlouettes, having the geographical coordinates 48°05′52″ N latitude and 69°42′26″ W longitude,
- (ii) then to a point near Îlet-aux-Alouettes, having the geographical coordinates 48°06′27″ N latitude and 69°41′02″ W longitude,
- (iii) then to a point near buoy S7, having the geographical coordinates 48°07′11″ N latitude and 69°40′30″ W longitude,
- (iv) then to a point near buoy S8, having the geographical coordinates 48°07′30″ N latitude and 69°40′17″ W longitude, and
- (v) ending at a point near Pointe-aux-Vaches, having the geographical coordinates 48°08′52″ N latitude and 69°39′58″ W longitude; and
- (b) on the north by a line approximately 0.77 nautical miles in length
- (i) commencing at a point near Baie-Sainte- Catherine ferry wharf, having the geographical coordinates 48°07′35″ N latitude and 69°43′47″ W longitude, and
- (ii) ending at a point near the Tadoussac ferry wharf, having the geographical coordinates 48°08′21″ N latitude and 69°43′37″ W longitude.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
The purpose of the Saguenay-St. Lawrence Marine Park is to increase, for the benefit of present and future generations, the level of ecosystem protection for a representative portion of the Saguenay Fjord and St. Lawrence Estuary. It fulfills this conservation objective while encouraging use of the marine park for educational, recreational and scientific purposes (e.g. research on ecosystems or on the impacts of activities on habitats, species and the evolution of natural processes). Management of marine activities within the marine park is also designed to increase the protection of resources to ensure that activities are carried out with the utmost respect for the environment, while offering memorable visitor experiences.
A report prepared in 2007 on the state of the Saguenay-St. Lawrence Marine Park (http://parcmarin.qc.ca/wp-content/uploads/2016/04/Summary_State_of_the_marine_park_report_2007_web-1.pdf) indicates that contaminants are still present in the park’s environment and that human activity has increased. These activities generate considerable impacts on ecosystems, particularly on species at risk, including the St. Lawrence beluga and the blue whale.
The main activities that take place in the marine park are shipping, passenger transportation, marine excursions, cruises, pleasure craft use, sea kayaking, scuba diving and observation from land sites. Many of these activities take place in the marine park, which contributes to heavy marine traffic in certain areas. Marine traffic is heavier during the summer, a period when wildlife species converge on the marine park for feeding and reproduction.
In addition to the increased risks for public safety, heavy marine traffic creates various environmental impacts, including hydrocarbon contamination, underwater noise and impacts on wildlife species through an increased risk of collisions and the disturbance of marine mammals’ feeding, resting and reproduction activities. These impacts are particularly harmful in their effect on species considered to be at risk under the Species at Risk Act, for example, the blue whale, listed as endangered, and the St. Lawrence beluga, a species threatened with extinction.
To ensure that the marine park fulfils its mandate, standards have been developed to control activities within it. These standards must be in line with the changing conditions in which marine mammal observation activities take place and draw on new practices that foster better protection of the ecosystem and marine mammals.
The Saguenay-St. Lawrence Marine Park Act (the Act), under which the Saguenay-St. Lawrence Marine Park was created, provides for the establishment of harmonization and coordinating committees, made up of representatives of the Minister responsible for the Parks Canada Agency, the Minister of Environment and Climate Change, and the Quebec Minister. These committees ensure the successful harmonization and implementation of park activities and programs of the Government of Canada and the Government of Quebec who together jointly manage the marine park. As part of the duties conferred upon them under the Act, these two committees recommended amendments to the rules and standards governing the activities conducted within the park.
Enacted under section 17 of the Act, the Marine Activities in the Saguenay-St. Lawrence Marine Park Regulations (the Regulations) provide a framework for park management and activities carried out in the marine park. The Regulations came into force in 2002 and are the primary tool for protecting marine mammals in relation to the marine mammal observation industry.
Over the last decade, the standards, practices and conditions surrounding marine mammal observation activities have evolved around the world. For example, the National Oceanic and Atmospheric Administration of the Department of Commerce in the United States has developed guidelines for the responsible observation of marine fauna (Guidelines for Responsible Marine Wildlife Viewing). The Pacific Whale Watch Association, which includes several Canadian and American whale watching companies, has also published guidelines on a similar topic. Since the Regulations came into force, the number of cruise ships navigating the waters of the marine park has risen substantially as a result of the growth of the cruise ship industry in Quebec.
The two committees involved in setting the management direction of the marine park, the Coordinating Committee and the Harmonization Committee, made recommendations related to the management of the SaguenaySt. Lawrence Marine Park.
They recommended that measures be taken to adapt park management and administration approaches to take into account changes in park activities and the conditions under which they are carried out (i.e. increase in marine traffic in the St. Lawrence Estuary, which raises significant concerns for public safety and the environment). The purpose is to enhance the protection of ecosystems and marine mammals in particular, while promoting educational and recreational uses of the park.
In addition, the Regulations were reviewed by the Standing Joint Committee for the Scrutiny of Regulations, which recommended certain amendments.
In response to these developments and in light of the marine park’s experience in implementing the Regulations over the past 10 years, the Regulations must be amended to take into consideration recent changes related to marine mammal observation activities in the park.
The objectives of the amendments to the Regulations are to
- update the standards governing the management of the marine park and the activities carried out there;
- respond to the recommendations of the Harmonization Committee and the Coordinating Committee; and
- respond to the recommendations of the Standing Joint Committee for the Scrutiny of Regulations.
Classes of marine tour permits
New classes of marine tour permits will now be offered to marine tour businesses in order to better reflect the diversity of activities that take place in the marine park. Currently, a marine tour permit is issued based on the duration of the activity, namely, whether for more than 10 days or less than 10 days. This permit distribution system does not distinguish fairly and equitably among the various activities carried out in the marine park.
The Regulations will provide for the issuance of marine tour permits based on the type of activities offered to visitors. Class 1 permits will be reserved for marine tour boats that carry out guided marine mammal observation tours and will continue to allow them to approach cetaceans up to a maximum distance of 100 to 200 meters, depending on the number of vessels present in an observation zone as per the existing Regulations. Class 2 permits will be issued to marine tour businesses whose services do not include guided marine mammal watching, such as sailing and scuba diving schools. Class 3 permits will be issued to businesses that offer marine tours aboard human-powered vessels, such as sea kayaks.
A new permit category is created for cruise ships (cruise ship permit) in order to respond to the growing needs related to this type of activity. Cruise ships are currently issued permits that allow them to spend 10 days or less in the marine park. The new permit class will allow cruise ships to spend more than 10 days per year in the marine park.
These Regulations will allow for better management of permits issued for activities carried out in the marine park. They will ensure a better protection of marine mammals and cetaceans, while continuing to permit class 1 marine tours to approach cetaceans within a distance of 100 to 200 meters.
New rules and new parameters are included in the Regulations. The Regulations will allow for harmonization with the various cetacean observation regulations and codes of conduct in place around the world to regulate cetacean observation. For example, in the United States, Titles 36 and 50 of the Code of Federal Regulations contain rules that are similar to those that will be included in the Regulations in terms of speed, observation zones and approaching cetaceans. The same can be found in Australian law: Environment Protection and Biodiversity Conservation Regulations 2000.
These Regulations will also increase the level of protection for cetaceans listed in parts 1 to 3 of Schedule 1 of the Species at Risk Act, which can be consulted at http://laws-lois.justice.gc.ca/eng/acts/S-15.3/index.html. Parts 1, 2 and 3 of the Species at Risk Act respectively enumerate extirpated, endangered and threatened species. The new rules will focus on the suspension of marine mammal approach privileges in certain circumstances (e.g. in the presence of a calf or a whale that is resting), speed limits and manoeuvres near belugas, and the maximum number of boats using class 1 permits present in the same marine mammal observation zone at one time.
A reduction in the speed of all vessels in the mouth of the Saguenay will now be mandatory. This area is used intensively by St. Lawrence belugas. The speed permitted will be reduced from 25 knots to 15 knots. This will ensure better protection of the belugas (St. Lawrence Estuary population), listed in Part 3 of Schedule 1 of the Species at Risk Act and increase navigation safety in this area. This marine traffic area is very important due to the presence of ferries, pleasure boats, kayakers, and cargo vessels navigating the Saguenay River and the numerous boats offering marine mammal observation tours.
Protection of marine mammals
New provisions are made to ensure better use of the park and protection of marine mammals. First, to be certified, boat operators for marine tours or scientific research, and kayak guides, will be required to take training on the use of the marine park and to pass an annual exam. This requirement was previously stipulated in the permit conditions and will now be specified in the Regulations to ensure that the individuals concerned are able to carry out activities at sea while minimizing impacts on marine mammals. As is the case with the existing rules on permit suspensions and cancellations, the Regulations will set out conditions governing decision making with respect to the suspension or cancellation of a certificate held by a pilot or a guide. Second, rules regarding radio use will be modified to better control how long marine tour operators spend at marine mammal observation sites. For example, when a marine tour boat enters or leaves an observation zone, the operator will be required to radio the operators of all other commercial vessels in the area. Finally, the requirement to report a collision with a marine mammal will be amended to specify the information (e.g. location, date and time of the incident; the species concerned; the circumstances surrounding the incident; and the condition of the animal) to be provided to the park warden or the official in charge in the event of a collision between a commercial vessel and a marine mammal.
Requirements concerning class 1 and class 2 marine tour boat equipment, the identification of human-powered watercraft and the keeping of a logbook to record certain information will also be added in order to ensure greater security for passengers and to facilitate compliance with the Regulations. The new provisions will also require the owners of class 1 and 2 marine tour boats to be equipped with navigation radar and a geographic positioning system (GPS) that are in good working order and turned on when the vessels are in use. Fewer than 12 marine tour vessels will need to be equipped with either radar or a GPS, or both. It will cost owners approximately $3,000 to purchase and install a radar and around $1,000 to purchase and install a GPS. This navigation equipment will allow operators to comply with the speed limits set out in the Regulations and assist them under conditions of reduced visibility. In terms of keeping a logbook, the Regulations specify the type of information that must be recorded. This information consists of elements that are essential to the sound management of the marine park and the activities that take place there, public safety, and the protection of marine mammals. Human-powered watercraft will have to be clearly identified with the name of the business appearing on both sides of the watercraft.
Amendments resulting from consultations
Public consultations on zoning held in 2008 as part of the review of the park’s management plan allowed the Parks Canada Agency (Parks Canada) to clarify the activities that are permitted and prohibited in the marine park. Prohibited activities are incompatible with the mandate and policies of Parks Canada. They are detrimental to visitor experience and the protection of the marine park’s ecosystems. Following these consultations, it was agreed that a new provision will be added to the Regulations banning the use of personal watercraft, air cushion vehicles, and all water sports using a method of traction or the offering of commercial services related to the hunting of migratory birds in the marine park.
Administrative amendments and recommendations from the Standing Joint Committee for the Scrutiny of Regulations
Other administrative amendments have been made to the Regulations to define new terminology and to harmonize the Regulations with other statutes and regulations in force in Canada, such as the Canada Shipping Act, 2001, the Species at Risk Act, the Small Vessel Regulations and the Marine Mammal Regulations. For example, the following definitions will be added to the Regulations: “aircraft,” “calf” and “cruise ship.” The term “speed” will also be defined in order to specify the technical meaning that it should be given.
The regulatory amendments will also address the recommendations of the Standing Joint Committee for the Scrutiny of Regulations to amend certain provisions regarding the conditions of permits and the authority of park wardens. Portions pertaining to compliance with permit conditions provided for in section 3 of the Regulations will be repealed, as well as section 7, which deals with powers of inspection.
Coming into force
These Regulations will come into force on January 1, 2017.
Extensive public consultations have been held on the Regulations since 2007, including those held during the public consultations on the review of the marine park’s management plan that took place between December 2007 and March 2008.
Approximately 230 people from various Aboriginal communities, including the Essipit Innu First Nation, various regional municipalities and regional organizations participated in these public consultation sessions (more information on the consultations can be found at http://www.pc.gc.ca/eng/amnc-nmca/qc/saguenay/plan.aspx).
The majority of stakeholders were in agreement with the Regulations. A total of 28 written briefs were produced on behalf of the 30 groups in attendance, and 24 were submitted by individuals. Among the briefs received, some included suggested changes to the Regulations by Parks Canada. For instance, it was suggested that the maximum speed of boats at the mouth of the Saguenay be reduced; that the definition of a personal watercraft be clarified; and that the permits for sailing schools or cruises offering navigation courses be differentiated from those for marine mammal watching cruises and other activities allowed in the marine park.
The majority of the proposals were accepted by Parks Canada and are incorporated into the Regulations. For example, a number of stakeholders did not want to completely prohibit all personal watercraft, as defined in the Regulations, only “sport” personal watercraft because their use is incompatible with the marine park’s conservation and protection objectives. Parks Canada took this comment into consideration and a provision that prohibits the use of “personal watercraft” as defined in subsection 1(1) of the Small Vessel Regulations has been added. This definition covers all vessels less than four meters in length that use an internal combustion engine powering a water-jet pump as its primary source of propulsion, and that is designed to be operated by one or several persons sitting, standing or kneeling on the vessel and not within the confines of the hull.
The Saguenay-St. Lawrence Marine Park management plan, which was developed and tabled in the House of Commons in accordance with section 9 of the Act, states that developing a marine activity management plan that takes into account both the marine park’s objectives and the needs of its partners is a priority (the management plan can be consulted at http://www.pc.gc.ca/eng/amnc-nmca/qc/saguenay/plan.aspx). In spring 2009, 32 meetings were held with stakeholders representing various activity sectors, including companies operating marine tours, sailing schools, sea kayaking tours and scuba diving. The most frequently raised issues were the types of zones in the marine park and the kinds of uses permitted in each zone; marine observation activities; the expansion of the boundaries of the marine park; recreational boating, in particular anchoring and wastewater; partnerships; commercial and recreational fishing; migratory bird hunting; “jet ski” personal watercraft ; and commercial navigation. The meetings began following the distribution to the relevant stakeholders of a working paper entitled Marine Activities in the Saguenay-St. Lawrence Marine Park – Discussion paper 2009. Discussions were based on a questionnaire that addressed the actions proposed in the discussion paper. Target groups were selected to ensure a good representation of stakeholders with an interest in marine activities in the marine park. A total of 34 different organizations were represented at the meetings. The majority of stakeholders were in agreement with the Regulations and with the conservation, visitor experience, and safety objectives proposed in the discussion paper.
A workshop to discuss the Regulations was also held in September 2009 with approximately 75 participants, including representatives of the marine mammal observation industry and stakeholders from the private, government and non-government sectors. Many comments and suggestions concerning the Regulations were made during the workshop and incorporated into this proposal. They include, for example, the requirement that class 1 and class 2 marine tour vessels be equipped with radar and the possibility of suspending a marine tour operator’s certification.
The regulatory proposal was prepublished in the Canada Gazette, Part I, on April 6, 2013, for a 30-day consultation period.
During this period, a total of eight letters were received from various stakeholders and organizations. They included, the Saguenay Priority Intervention Zone Committee, a not-for-profit organization working in the area of environmental protection, and the Saguenay-St. Lawrence Marine Park Coordinating Committee, which by virtue of its membership, ensures the involvement of municipalities, First Nations and various partners in the development of the marine park management plan.
The two organizations provided their unconditional support for the Regulations Amending the Marine Activities in the Saguenay-St. Lawrence Marine Park Regulations and expressed their desire to see the Regulations come into force as soon as possible.
Five economic sector organizations also provided support for the Regulations, subject to a few reservations and submitted several recommendations. These stakeholders included the St. Lawrence Economic Development Council, the St. Lawrence Ship Owners Association, the Shipping Federation of Canada, the Lower St. Lawrence Pilots Corporation and the Fjord en Kayak company.
The comments and recommendations submitted by these organizations focused on 10 major issues.
Some stakeholders questioned the potential effect of adding definitions for “permit” and “cruise ship,” particularly with respect to the administrative burden that could result from the creation of new types of permits.
These Regulations will not create any additional administrative burden because the process for the application and issuance of permits remains substantially the same as the one already in place for the existing categories of permits. Furthermore, the section in question makes it possible to issue another category of permit specific to cruise ships. These permits can be issued for a period of more than one year, reducing the frequency of permit renewals. It will also eliminate the requirement related to the maximum number of ships that can be present in the marine park each day, as well as the one related to the number of days a ship can remain in the park.
Concerns were expressed about the impacts on the safety of ships and marine mammals with regards to adopting a new definition of “speed,” which will provide the measure in relation to the ground and not in relation to the water.
Controlling speed is a fundamental part of managing marine activities in the Saguenay-St. Lawrence Marine Park and implementing the regulations that govern them. The objective is to ensure that boats slow down when approaching a marine mammal in order to be able to stop within 200 meters of it. These measures will contribute to reducing the risk of collision and reduce the disruptive effect on marine mammals.
The main users affected by these measures are tour operator businesses. Their fleets are made up of small- and medium-sized vessels equipped with GPS, a simple tool that makes it possible to determine the speed of navigation and show this speed on the ground.
These companies are represented on the Consultation Committee on Marine Observation Activities in the park, which has recommended that the management plan for Marine Activities in the Saguenay-St. Lawrence Marine Park (2011–2017) be approved. This plan provides for a number of measures including a proposal to amend the Regulations to clarify that the word “speed” refers to the speed on the ground. The plan can be consulted at the following address: http://www.eco-baleine.ca/pdf/Plan_de_gestion_activites_en_mer_PMSSL_2011_2017.pdf (in French only).
The plan in question was the subject of a broad consultation exercise and was strongly supported by various stakeholders, including the Consultation Committee on Marine Observation Activities, the Coordinating Committee and the Harmonization Committee. These committees, which are part of the park’s participative management structure, include municipal officials from the region and representatives from education and scientific communities, various government and non-government organizations, marine tour businesses and the Essipit Innu First Nation.
The section related to speed measurement methodology does not represent any danger to the safety of ships or marine mammals and will be kept as recommended by the above-mentioned stakeholders in the context of the management plan for marine activities.
It was recommended that the implementation of measures in subsection 11.1(2), regarding the requirement for training and testing, take business operational constraints into consideration.
Parks Canada noted this recommendation and will ensure that training and testing sessions are organized in a spirit of cooperation with those concerned and in a manner that does not interfere with business operations.
Concerns were raised about the cost of the certification referred to in section 11.1.
The cost of the certification in question will be set by the Minister under section 24 of the Parks Canada Agency Act. This entails application of the fee setting process provided for in the User Fees Act, which provides procedural controls over the setting of fees by regulatory agencies. Under this legislative regime, any initiative to establish or increase user fees, broaden their scope or extend their duration must first undergo a thorough consultation process. The initiative must also be submitted for review by the appropriate standing committees of both houses of Parliament.
Some stakeholders recommended that the vessel markings required by section 13 — the business’ corporate name — be of a certain size.
Because of the different sizes of vessels, Parks Canada considers that it would not be appropriate to specify one size; rather, the marking should be proportional to the size of the vessel.
It was recommended that subsection 11.3(1) be amended in order to remove the requirement to keep a logbook and record certain information in it. Some stakeholders proposed to simply limit the requirement to the need to make the information available to the park warden or officer of authority upon request.
For information to be produced on request, it must be recorded somewhere beforehand. Generally, information related to the operation of a vessel is recorded in a logbook. The information required by subsection 11.3(1) represents details that are essential to the proper management of the marine park and the activities that take place there, public safety and protection of marine mammals.
In principle, a logbook is kept for any boat or vessel to which subsection 11.3(1) will apply. This subsection is not intended to impose an obligation to keep a logbook in addition to any existing one. Moreover, the logbook may be kept in electronic or paper format.
Some stakeholders believe that paragraph 14(2)(f) is redundant and simply reiterates the contents of paragraphs 14(2)(a) to (e), but in a vague and imprecise manner. They suggest that the paragraph in question be removed.
Paragraphs 14(2)(a) to (e) specify which types of activities are prohibited. Paragraph 14(2)(f) identifies the types of mammal behaviour that could be altered or disturbed by all activities, including those specified in paragraphs (a) to (e).
It is important to retain the criterion in paragraph 14(2)(f) because it is essential to the proper management of the park and the protection of marine mammals. Its general wording is necessary because it is impossible to predict and list all activities that could disturb a marine mammal.
Concerns were expressed regarding the lack of a provision requiring all operators to first take into consideration conditions related to navigational safety. Some stakeholders argued that this type of requirement would avoid situations where compliance with the Regulations governing avoidance manoeuvres, as provided for in section 15, create risks related to the handling of a boat or represent a threat to the safety of cargo vessels passing through the same area.
Parks Canada accepted this recommendation and added a provision regarding the need to comply with safety standards.
Some stakeholders have recommended adding a provision to the Regulations that would prohibit class 1 vessel license holders from carrying out their activities when visibility in the marine park is reduced and from shutting down their engines while inside the marine park. The Regulations will not be amended to reflect these suggested changes.
Regarding the first proposal, it is important to note that the Regulations include provisions that require class 1 and class 2 license holders to equip their boats with radar and GPS. In addition, there are provisions requiring reduced speed in the marine mammal observation zones.
Other legislative and regulatory measures governing navigation already address vessel operation in situations of limited visibility, such as the Canada Shipping Act, 2001 and the Collision Regulations.
The suggested ban on shutting down boat engines inside the marine park would have no significant impact on the protection of marine mammals and their habitats.
Currently, only small vessels shut down their engines. Larger vessels cannot do so, given the mechanical and safety constraints to which they are subject. Engines are only shut down when boats are in marine mammal observation mode, in other words, when a boat is stationary. Shutting down the engines clearly enhances the visitors’ experience since they can observe the marine mammals up close and in a quiet environment.
As this proposal was included in Parks Canada’s forward regulatory plan, some stakeholders had expressed their desire to be consulted during the establishment of temporary exclusion areas as provided for in section 14.2. Others recommended that the park share the information gathered under subsection 14(4) with Fisheries and Oceans Canada, Environment and Climate Change Canada and any other relevant organization in order to avoid reporting duplication.
Parks Canada will ensure that implementation of the provisions in question is carried out in a spirit of cooperation with the parties concerned.
Recent communications with stakeholders
Since 2013, Parks Canada remains in regular communication with key stakeholders affected by the Regulations. These stakeholders, including the Marine Park Coordinating Committee, the Canada and Quebec Harmonization Committee, the private sector whale-watching industry and several sailing companies, remain in favour of the Regulations.
On December 10, 2015, Parks Canada met with the Marine Park Coordinating Committee, a committee made up of several representatives from municipalities, Indigenous groups and related partners. This committee meets four times per year and continues to be in favour of the Regulations. Representatives include one person from East Charlevoix, Fjord-du-Saguenay, Haute-Côte-Nord, the South Shore – designated by Rivière-du-Loup, the Basques and Kamouraska, the Innu First Nation of Essipit, the scientific community, environment and education groups, Parks Canada and the Government of Quebec.
As the marine park is co-managed between Canada and Quebec, a harmonization committee meets one to two times per year to ensure a cooperative relationship in the implementation and maintenance of park programs. This committee last met on December 3, 2015, where the co-managers present expressed their continued support for the Regulations.
Parks Canada continues to meet regularly with members of the whale-watching industry, specifically Éco-Baleine Alliance, who support the Regulations; their last meeting was held on February 27, 2016. Éco-Baleine Alliance, a key stakeholder in this industry, meets several times per year with park management and other private offshore excursion companies to review and discuss practices relating to marine activities. In addition to government managers and businesses, the Group for Research and Education on Marine Mammals (GREMM) is also a member of the Éco-Baleine Alliance.
Several sailing companies remain in favour of the Regulations, including Écomaris, Damacha and Voile Mercator, and communicate regularly with Parks Canada officials. The most recent communication was in the fall of 2015. Parks Canada meets with the owners and tour guides of kayak companies each spring to discuss annual training. These stakeholders last met in June 2015 and continue to support the Regulations.
The “One-for-One” Rule does not apply to the Regulations as no additional administrative burden will be imposed on businesses and there is no increase in administrative costs.
Small business lens
These Regulations have no impact on small business, because the amount they would pay to comply with them are minimal and do not represent disproportionate costs for these businesses.
Since park management approaches must be reviewed and adjusted to take into consideration recent developments related to marine mammal observation activities and stakeholder feedback, it is essential to amend the Marine Activities in the Saguenay-St. Lawrence Marine Park Regulations. The Regulations are the primary tool governing administration of the park and the activities taking place there.
Amending the Regulations is the only option to achieve the objectives of updating the standards for the management of the marine park, and of complying with the recommendations of the Harmonization Committee, the Coordinating Committee and the Standing Joint Committee for the Scrutiny of Regulations.
The Regulations will enhance the protection of marine mammals. They will allow for better management of the marine park and the activities that take place there, without affecting other types of activities or imposing an unreasonable burden on the various stakeholders.
Implementation, enforcement and service standards
Parks Canada already administers and enforces the provisions set out in the Regulations. The current compliance and implementation mechanisms of the Saguenay-St. Lawrence Marine Park Act will continue to apply. Park wardens and other law enforcement officers carry out regular patrols in the park to ensure compliance with the Regulations. The general legislative provisions regarding contraventions and penalties are set out in subsection 20(2) of the Act. Under the terms of this subsection, any person who contravenes a provision of the Regulations is guilty of an offence and liable, on summary conviction, to a maximum fine of $50,000 in the case of an individual, or $500,000 in the case of a corporation. A maximum fine of $200,000 in the case of an individual, or $1,000,000 in the case of a corporation, could be imposed for proceedings by way of indictment.
In addition to compliance, which will be monitored through the enforcement program, the public education component will inform park users and visitors of the new rules governing marine mammal watching.
Policy, Legislative and Cabinet Affairs Branch
Parks Canada Agency
30 Victoria Street