Vol. 151, No. 12 — June 14, 2017
SOR/2017-106 June 2, 2017
St. Anns Bank Marine Protected Area Regulations
P.C. 2017-565 June 2, 2017
His Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to subsection 35(3) of the Oceans Act (see footnote a), makes the annexed St. Anns Bank Marine Protected Area Regulations.
St. Anns Bank Marine Protected Area Regulations
Definition of Marine Protected Area
1 (1) In these Regulations, Marine Protected Area means the area of the sea that is designated by section 2.
(2) In Schedules 1 and 2, all geographical coordinates (latitude and longitude) are expressed in the North America Datum 1983 (NAD83) reference system.
Marine Protected Area
2 (1) The area depicted in Schedule 1 that is bounded by a series of rhumb lines drawn from points 1 to 10, the coordinates of each of which are set out in that Schedule, and back to point 1 is designated as the St. Anns Bank Marine Protected Area.
Seabed, subsoil and water column
(2) The Marine Protected Area consists of the seabed, the subsoil to a depth of five metres and the water column above the seabed.
3 The Marine Protected Area consists of the following management zones:
- (a) Zone 1, as depicted in Schedule 2, bounded by a series of rhumb lines drawn from point 18, then to point 20, then to point 2, then to point 8, passing through points 3, 4, 5, 6 and 7, then to point 17, then to point 16, then to point 15, then to point 9, then to point 13, then to point 12, then to point 11, then to point 14, then to point 19, the coordinates of each of which are set out in that Schedule, and back to point 18;
- (b) Zone 2, as depicted in Schedule 2, bounded by a series of rhumb lines drawn from point 1, then to point 2, then to point 20, then to point 18, then to point 19, then to point 10, the coordinates of each of which are set out in that Schedule, and back to point 1;
- (c) Zone 3, as depicted in Schedule 2, bounded by a series of rhumb lines drawn from point 14, then to point 11, then to point 12, then to point 13, the coordinates of each of which are set out in that Schedule, and back to point 14;
- (d) Zone 4, as depicted in Schedule 2, bounded by a series of rhumb lines drawn from point 8, then to point 15, then to point 16, then to point 17, the coordinates of each of which are set out in that Schedule, and back to point 8.
4 Subject to sections 5 to 8, it is prohibited in the Marine Protected Area to carry out any activity that disturbs, damages, destroys or removes from the Marine Protected Area any living marine organism or any part of its habitat or is likely to do so.
5 The following activities may be carried out in the Marine Protected Area if they are carried out in accordance with the provisions of the Fisheries Act, the Coastal Fisheries Protection Act and their regulations:
- (a) fishing, other than commercial fishing, that is authorized under the Aboriginal Communal Fishing Licences Regulations;
- (b) fishing for seals and any related activity that is authorized under the Marine Mammal Regulations or the Aboriginal Communal Fishing Licences Regulations;
- (c) in Zone 2, commercial or recreational fishing by means of a pot, trap, rod and reel, harpoon, bottom longline, handline, gill net or by diving;
- (d) in Zones 3 and 4, commercial or recreational fishing by means of a pot, trap, rod and reel, harpoon, bottom longline or handline.
6 Navigation may be carried out in the Marine Protected Area.
Safety or emergency
7 An activity may be carried out in the Marine Protected Area if it is carried out for the purpose of public safety, national defence, national security, law enforcement or to respond to an emergency.
8 Any activity that is part of an activity plan that has been approved by the Minister may be carried out in the Marine Protected Area.
Submission and contents
9 Any person who proposes to carry out a scientific research or monitoring activity, educational activity or commercial marine tourism activity in the Marine Protected Area must submit to the Minister an activity plan that contains the following information:
- (a) the person’s name, address, telephone number and email address;
- (b) if the activity plan is submitted by an institution or organization, the name of the individual who will be responsible for the proposed activity and their title, address, telephone number and email address;
- (c) the name of each vessel that the person proposes to use to carry out the activity, its state of registration and registration number, its radio call sign and the name, address, telephone number and email address of its owner, master and any operator;
- (d) a detailed description of the proposed activity and its purpose, the methods or techniques that are to be used to carry out the activity and the data to be collected;
- (e) the geographical coordinates of the site of the proposed activity and a map that shows the location of the activity within the boundaries of the Marine Protected Area;
- (f) the proposed dates and alternative dates on which the activity is to be carried out;
- (g) a list of the equipment that is to be used, the means by which it will be deployed and retrieved and the methods by which it is to be anchored or moored;
- (h) a list of the samples — including their quantities — that are to be collected;
- (i) a list of any substances that may be deposited during the proposed activity in the Marine Protected Area — other than substances that are authorized under the Canada Shipping Act, 2001 to be deposited in the navigation of a vessel — and the quantity and concentration of each substance;
- (j) a description of the adverse environmental effects that are likely to result from carrying out the proposed activity and of any measures that are to be taken to monitor, avoid, minimize or mitigate those effects;
- (k) a description of any scientific research or monitoring activity, educational activity or commercial marine tourism activity that the person has carried out or anticipates carrying out in the Marine Protected Area;
- (l) a general description of any study, report or other work that is anticipated to result from the proposed activity and its anticipated date of completion.
Approval of activity plan
10 (1) The Minister must approve an activity plan if
- (a) the scientific research or monitoring activities set out in the plan are not likely to destroy the habitat of any living marine organism in the Marine Protected Area and will serve to
- (i) increase knowledge of the biodiversity or the biological productivity of the Marine Protected Area or the habitat of any living marine organism in the Marine Protected Area, or
- (ii) assist in the management of the Marine Protected Area; and
- (b) the educational activities or commercial marine tourism activities set out in the plan
- (i) will serve to increase public awareness of the Marine Protected Area, and
- (ii) are not likely to damage, destroy or remove in the Marine Protected Area any living marine organism or any part of its habitat;
(2) Despite subsection (1), the Minister must not approve an activity plan if
- (a) any substance that may be deposited during the proposed activity is a deleterious substance as defined in subsection 34(1) of the Fisheries Act, unless the deposit of the substance is authorized under subsection 36(4) of that Act; or
- (b) the cumulative environmental effects of the proposed activity, in combination with any other past and current activities carried out in the Marine Protected Area, are such that the activity is likely to adversely affect the biodiversity or the biological productivity of the Marine Protected Area or destroy the habitat of any living marine organism in the Marine Protected Area.
Timeline for approval
(3) The Minister’s decision in respect of an activity plan must be made within
- (a) 60 days after the day on which the plan is received; or
- (b) if amendments to the plan are made, 60 days after the day on which the amended plan is received.
11 If an activity plan has been approved by the Minister, the person who submitted the plan must, within 90 days after the last day of the activity, provide the Minister with a post-activity report that contains
- (a) a list of the samples — including their quantities — and the data that were collected during the activity, including the dates on which and the geographical coordinates of the sites where the sampling was done;
- (b) an evaluation of the effectiveness of any measures taken to monitor, avoid, minimize or mitigate the adverse environmental effects of the activity; and
- (c) a description of any event that occurred during the activity and that was not anticipated in the activity plan, if the event could result in the disturbance, damage, destruction or removal in the Marine Protected Area of any living marine organism or any part of its habitat.
Coming into Force
12 These Regulations come into force on the day on which they are registered.
(Subsections 1(2) and 2(1))
Marine Protected Area
(Subsection 1(2) and section 3)
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues: Canada’s oceans and aquatic ecosystems are under growing pressures from human activities. One of the means by which these pressures can be addressed is through the creation of marine protected areas (MPAs) by regulation under the Oceans Act. The Government of Canada has recognized the need to preserve the health of the country’s oceans by committing to protect 5% of Canada’s marine and coastal areas by 2017, and 10% by 2020, in the 2016 mandate letter issued by the Prime Minister to the Minister of Fisheries, Oceans and the Canadian Coast Guard and the Minister of Environment and Climate Change. The St. Anns Bank Marine Protected Area Regulations (the Regulations) provide protection from the impacts of human activities to an additional 0.08% (4 364 km2) of Canada’s oceans.
The St. Anns Bank MPA is located to the east of Cape Breton, Nova Scotia, and has many ecologically and biologically significant features including unique habitats, areas of high biodiversity, areas of high biological productivity, and both endangered and threatened marine species and their habitats. These features have been determined to be at risk from some ongoing and potential future activities such as some commercial fisheries, and oil and gas exploration and production. The Regulations help to conserve and protect the biodiversity, ecosystem function, and special natural features of this marine area.
Description: The Regulations are made under subsection 35(3) of the Oceans Act to designate, conserve and protect the St. Anns Bank area, including Scatarie Bank, most of St. Anns Bank, and part of the western edge of the Laurentian Slope and Channel, as an MPA totalling approximately 4 364 km2.
The Regulations prohibit any activity that disturbs, damages, destroys or removes a living marine organism or any part of its habitat in the St. Anns Bank MPA, while allowing certain exceptions to the prohibitions for specified activities that do not contravene the conservation objectives (e.g. some fishing activities, scientific research approved by the Minister). Consequently, the Regulations prohibit activities that contravene the achievement of the conservation objectives of the MPA, including the use of mobile bottom-contacting fishing gears and oil and gas exploration and production throughout the MPA. The Regulations establish four management zones, including a core protection zone of minimal human activity and three adaptive management zones where current low-impact activities are permitted, including but not limited to fishing by rod and reel, and pot gear. Together these zones provide for the conservation and protection of biological diversity, habitat and biological productivity of the St. Anns Bank area.
“One-for-One” Rule and small business lens: Neither the “One-for-One” Rule nor the small business lens applies to the Regulations. It is anticipated that the Regulations will not result in any new administrative burden to commercial enterprises, and the expected incremental costs to industry are significantly lower than the $1 million threshold that would trigger the small business lens.
Cost-benefit statement: The designation of the St. Anns Bank MPA offers long-term protection to an area with high species and habitat diversity, sensitive species and habitats, and many other ecologically important features. These protections will provide marine populations with a refuge from exploitation and other negative impacts, reduce human-imposed impacts on sensitive and important habitat, and help to protect and improve ecosystem integrity through the conservation and protection of unique and productive ecosystems.
The St. Anns Bank MPA will be beneficial for Canadians because of low costs and the potential for important long-term ecological benefits. One of the primary costs identified with designation of the MPA will occur within the fishing and seafood processing industries, although costs are not anticipated to significantly affect the industries’ ability to function and generate revenue. In addition, many of these losses could potentially be offset if the affected fisheries move their effort to areas outside of the respective core protection and/or adaptive management zones. No known offshore oil and gas development within or nearby the MPA is planned in the near future as the expected returns from any such projects in the MPA are not currently considered attractive and development and recovery of any reserves is unlikely. Therefore, no costs to the oil and gas industry are anticipated. Some administration and management costs to Government are projected as a result of the designation of the MPA.
Domestic and international coordination and cooperation: Designation of the St. Anns Bank MPA by regulation will contribute directly to Canada’s efforts to implement measures in line with several international agreements, the most prominent of which is the Convention on Biological Diversity (CBD). In 2010, the Conference of the Parties to the CBD established the following target, known as Aichi Target 11: “By 2020, at least 17 per cent of terrestrial and inland water, and 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well-connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscapes and seascapes.”
Canada’s oceans and aquatic ecosystems are under growing pressures from human activities. The need to preserve the health and productivity of our oceans has been recognized by stakeholders and the Government of Canada, which reiterated its mandate commitment to “increase the proportion of Canada’s marine and coastal areas that are protected — to five percent by 2017, and ten percent by 2020,” in the 2016 mandate letter issued by the Prime Minister to the Minister of Fisheries, Oceans and the Canadian Coast Guard and the Minister of Environment and Climate Change. The designation of marine protected areas (MPAs) under the Oceans Act (the Act) provides for the protection of the marine ecosystem from human-induced pressures and helps ensure the long-term health and sustainability of our oceans.
The area designated as an MPA is located to the east of Cape Breton, Nova Scotia, and encompasses Scatarie Bank, most of St. Anns Bank, and part of the western edge of the Laurentian Slope and Channel, totalling approximately 4 364 km2. The MPA has many ecologically and biologically significant features, including but not limited to
- a unique habitat as a major bank on the inner Scotian Shelf that includes distinctive features within the site (Big Shoal, Scatarie Bank, and high-relief areas), with the highest annual sea surface temperature range on the Scotian Shelf;
- an area that provides important habitat for commercial and non-commercial fishery resources (e.g. Atlantic cod, redfish, white hake, witch flounder, and sponges and corals);
- a high diversity of fish and benthic (i.e. ocean floor environments such as sea pens and sponge concentrations) habitats; and
- the presence of endangered and threatened marine species, and their habitats (e.g. an important feeding area for the leatherback turtle, listed as endangered under the Species at Risk Act [SARA]; an important habitat for Atlantic wolffish and for other species considered by Fisheries and Oceans Canada [DFO] to be depleted, including Atlantic cod, American plaice and redfish, as well as a periodic habitat for northern wolffish, listed as threatened under SARA).
The area’s habitats, productivity and biodiversity are at risk from some ongoing and potential future activities that are likely to impact ecological and biological features. DFO has carried out an ecological risk assessment (see footnote 1) to determine the relative risk presented by interactions between the conservation priorities for the MPA and ongoing or potential future human activities within the context of existing legislation and programs. The results of the risk assessment indicate that certain current and potential future activities pose a high risk to many of the conservation priorities for the MPA. The results of the risk assessment helped to inform the exceptions to the general prohibition in the Regulations. In light of the risks detailed below, the St. Anns Bank Marine Protected Area Regulations (the Regulations) will provide long-term protection from human activities that could negatively impact this ecologically important marine area.
Ongoing activities within the MPA include research surveys, marine transportation and a variety of commercial fisheries. While there is no known planned oil or gas activity in the MPA boundary, it is possible that in the future such activity could take place given the petroleum potential in a portion of the MPA. (see footnote 2)
Fisheries are authorized and managed throughout the area under either the Fisheries Act or the Coastal Fisheries Protection Act. The risk assessment found that redfish bottom and midwater trawl had a high risk of impact for many priority species and their habitats (e.g. Atlantic cod, demersal fish) and other conservation priorities (e.g. protecting an area of high fish diversity); see the “Objectives” section for more details. Bottom trawl was also determined to present high risk to sensitive benthic environments, including areas of structure-forming species (e.g. corals). The snow crab fishery posed medium to high risks to turtles and marine mammals due to entanglement, but low or very low risks to other conservation priorities. The whelk pot fishery posed medium risks to marine mammals and sea turtles due to entanglement potential, and medium risks to certain priority species (i.e. demersal fish and Atlantic wolffish) and benthic invertebrates (other than whelk) due to bycatch. The lobster pot fishery and gillnet fisheries for herring roe and bait received low or very low risk scores for all conservation priorities. While the halibut longline fishery presented low risks to leatherback turtles, sharks, sensitive benthic/structure-forming species, and benthic invertebrates, medium to high risk scores were assigned to most fish-related conservation priorities due to bycatch of depleted/at-risk fish species (e.g. Atlantic wolffish, Atlantic cod). The seal harvest was determined to pose low risks to all conservation priorities. The Department subsequently determined that rod and reel fisheries pose a low risk to conservation priorities.
The assessment of risks presented by oil and gas activities was limited to interactions between the conservation priorities and pressures associated with exploratory oil and gas activities, namely seismic surveys and exploratory drilling (drill muds and cuttings, drilling-associated noise, and accidental spills and blowouts), given that attempts to forecast the developmental activities that might take place within the area of interest (AOI) would be highly speculative. When assessed against a high level of protection and low risk tolerance associated with the MPA, seismic surveys were determined to pose medium risk to sensitive life stages of invertebrates and primary producers, and high risk to leatherback turtles, marine mammals and certain fish. Activities associated with exploratory drilling posed medium to high risk scores for interactions with all conservation priorities (e.g. fish, benthic invertebrates, primary producers, benthic habitats, leatherback turtles and top predators). It is important to note that risk assessments for these activities in areas outside of an MPA may result in different scores.
With existing mitigation as prescribed by Canada’s Ballast Water Control and Management Regulations, ballast exchange activities were determined to pose a low risk to the conservation priorities for the site. Vessel strikes were determined to pose a medium risk to leatherback turtles and a high risk to marine mammals, and vessel noise presented medium to high risks to fish, turtles and marine mammals. Large accidental spills from vessels posed medium to high risks to all conservation priorities. Under the United Nations Convention on the Law of the Sea, Canada’s authority to regulate international navigation rights within Canada’s exclusive economic zone is limited. Nevertheless, based on experience with other MPAs, efforts will be made to enhance stewardship and awareness of the area within the shipping community (e.g. Notices to Mariners).
The Government of Canada is committed to meeting the international goals set in Aichi Target 11. The Prime Minister’s mandate letter to the Minister of Fisheries, Oceans and the Canadian Coast Guard directed the Minister to “increase the proportion of Canada’s marine and coastal areas that are protected — to five percent by 2017, and ten percent by 2020 — supported by new investments in community consultation and science.” The 2016 federal budget provided further clarity on this matter by allocating “$81.3 million over five years, starting in 2016–17, to Fisheries and Oceans Canada and Natural Resources Canada to support marine conservation activities, including the designation of new Marine Protected Areas under the Oceans Act.”
These recent developments build on previous commitments made through the Health of the Oceans Initiative (2007) and the National Conservation Plan (2014). The St. Anns Bank area was selected from three candidate areas in DFO’s Maritime Region following a seven-month public consultation period that took place in 2009 and 2010. In June 2011, St. Anns Bank was formally announced as an AOI. St. Anns Bank was a strong candidate for an MPA, as it has many ecologically significant features, including unique habitats, areas of high biodiversity, areas of high biological productivity, and both endangered and threatened marine species and their habitats. This area was selected for advancement because it aligns with all the purposes for MPA designation that are specified under subsection 35(1) of the Oceans Act, and it received positive support during the consultation period.
Goals and objectives for the MPA were developed through a peer-reviewed science advisory process (see footnote 3) finalized using additional advice from a stakeholder advisory committee. The overarching purpose of the Regulations is the conservation and protection of the area’s biodiversity, ecosystem function, and the special natural features of the St. Anns Bank MPA. The conservation objectives of the MPA are set out more specifically below.
Conserve and protect
- All major benthic, demersal (i.e. close to the sea floor) and pelagic (i.e. in the water column) habitats within the St. Anns Bank MPA, along with their associated physical, chemical, geological and biological properties and processes;
- Distinctive physical features and their associated ecological characteristics; and
- The structural habitat provided by sea pen and sponge concentrations.
Conserve and protect marine areas of high biodiversity at the community, species, population and genetic levels within the St. Anns Bank MPA, including
- Priority species and their habitats (including leatherback turtle, Atlantic wolffish, Atlantic cod, and American plaice).
3. Biological productivity
Conserve and protect biological productivity across all trophic levels so that they are able to fulfill their ecological role in the ecosystems of the St. Anns Bank MPA.
The risk assessment showed that a small number of activities identified as exceptions to the prohibitions posed a medium to high risk to some conservation priorities. The Regulations, in conjunction with other management measures that already apply to those activities, would contribute to the conservation and protection of the overarching biodiversity, ecosystem function, and special natural features of this marine area. Thus, allowing these activities as outlined below will not compromise achievement of the conservation objectives.
Secondary goals of the Regulations are to
- conserve and protect the ecologically sustainable use of living marine resources in the MPA; and
- help maintain ecosystem health and resilience and support the ecologically sustainable use of living marine resources beyond the boundaries of the St. Anns Bank MPA.
The Regulations are made pursuant to subsection 35(3) of the Oceans Act to establish the St. Anns Bank MPA. The MPA will cover an area of 4 364 km2.
The Regulations prohibit any activity within the designated boundaries that disturbs, damages, destroys or removes any living marine organism or any part of its habitat, or that is likely to do so. The MPA includes the seabed and subsoil to a depth of 5 m in order to protect the active biological layer of seabed communities in the area.
MPA boundaries and management zones
The Regulations designate the St. Anns Bank MPA boundaries and management zones (Figure 1). Within each of the designated management zones, specific activities are allowed (as exceptions to the prohibition), insofar as they do not compromise the overall conservation objectives of the MPA. The zoning provides varying levels of protection within the MPA, offering the most stringent protection to areas that need it most. The management zones are divided in the following manner:
- Core protection zone (CPZ) [Zone 1]: This area is 3 308 km2 in size. Most human activities are limited in this zone in order to safeguard habitat, biodiversity and biological productivity. The only activities that are allowed within this zone are those that
- (a) increase knowledge of the designated area’s special features or are otherwise directly linked to the management of the MPA (e.g. approved scientific research and monitoring activities);
- (b) pose a low risk to biodiversity, productivity and special natural features (e.g. approved commercial marine tourism and educational activities, Aboriginal food, social and ceremonial fisheries, seal harvest); and
- (c) relate to public safety, national security, and marine transportation.
- Adaptive management zones (AMZ) [Zones 2, 3 and 4]: These zones are designed to accommodate certain activities that are compatible with the conservation objectives of the MPA (e.g. bottom longline and trap fishing). Activities that allowed in the core protection zone are also allowed in these zones. Zones 2, 3 and 4 are 720 km2, 113 km2 and 221 km2, respectively.
The final boundaries for Zones 1 and 2 were modified following the Canada Gazette, Part I, public comment period to address concerns raised about fisheries access.
Figure 1: Map showing an illustration of the St. Anns Bank Marine Protected Area, its boundaries and its management zones
Activities allowed within the MPA by the Regulations
The Regulations include exceptions to the prohibition to allow specific activities to occur within the MPA. Some of these activities will require the approval of an activity plan by the Minister of Fisheries, Oceans and the Canadian Coast Guard (the Minister) in order to be carried out in the MPA. The only activities allowed in the MPA are those listed below. Other activities fall under the prohibition and are therefore not allowed within the MPA (e.g. oil and gas exploration and production, mobile bottomcontacting gear).
The exceptions are the following:
The following fishing activities will be allowed in the MPA if they are carried out in accordance with the Fisheries Act, the Coastal Fisheries Protection Act and regulations made under those acts:
- Throughout the MPA:
- — fishing, other than commercial fishing, that is authorized under the Aboriginal Communal Fishing Licences Regulations; and
- — fishing for seals and any related activity that is authorized under the Marine Mammal Regulations, and where necessary, the Aboriginal Communal Fishing Licences Regulations. (Fishing for seals will include commercial fishing, personal use fishing, nuisance seal fishing and related observer activities that fall under the applicable regulations.);
- In Zone 2: commercial and recreational fishing by means of pot, trap, rod and reel, harpoon, bottom longline or handline, gillnet or diving; and
- In Zones 3 and 4: commercial and recreational fishing by means of pot, trap, rod and reel, harpoon, bottom longline or handline.
Note: Immediately upon designation, only some fisheries using the above-noted gears will be allowed within certain zones of the MPA, pursuant to existing fisheries management mechanisms under the Fisheries Act or the Coastal Fisheries Protection Act. See the “Implementation, enforcement and service standards” section below for a list of the fisheries allowed within the MPA immediately upon designation.
All navigation and shipping-related activities will be allowed within the MPA.
(3) Safety or emergency
Throughout the MPA, activities for the purpose of public safety, law enforcement, national security or emergency response (e.g. vessel search and rescue operations or responding to an incident resulting in the release of deleterious substances) will be allowed.
(4) Scientific research or monitoring, educational or commercial marine tourism activities
Scientific research or monitoring, educational or commercial marine tourism activities will be allowed throughout the MPA (in the CPZ and all AMZs) if they are part of an activity plan that has been approved by the Minister. Although allowed within the MPA, these activities will continue to be subject to all other applicable legislative and regulatory requirements. Proponents will continue to be required to secure all other necessary authorizations (e.g. permits, licences) in order to engage in respective activities.
To ensure that the activities being undertaken in the MPA are aligned with the conservation objectives, applicants are required to submit an activity plan containing the information listed in section 9 of the Regulations for approval by the Minister. That information will be used to evaluate the impacts of the proposed activity on the conservation objectives of the MPA and will serve as the basis for decisions on whether or not to approve the activity.
Scientific research and monitoring activities would be approved throughout the MPA if they are not likely to destroy the habitat of any living marine organism and serve to either (a) increase knowledge of the biodiversity, the biological productivity or the habitat of any living marine organism in the MPA; or (b) assist in the management of the MPA.
Educational and commercial marine tourism activities would be approved throughout the MPA if the activities are not likely to damage, destroy or remove any living marine organism or any part of its habitat in the MPA and if they serve to increase public awareness of the MPA.
The Minister is required to approve or not approve an activity plan within 60 days from the day the plan is submitted. An individual could amend their activity plan at any time before a decision is made by the Minister. If an amended plan is submitted, the time for evaluation would be reset to 60 days regardless of the date of the proposed activity.
Under the Regulations, the Minister will not approve an activity plan if
- (a) any substance that may be deposited during the proposed activity is a deleterious substance as defined in subsection 34(1) of the Fisheries Act, unless the deposit of the substance is authorized under subsection 36(4) of that Act; or
- (b) the cumulative environmental effects of the proposed activity, in combination with any other past and current activities carried out in the MPA, are likely to destroy the habitat of any living marine organism or adversely affect the biodiversity or biological productivity of the MPA.
The Regulations require that all proponents of approved activities submit a post-activity report to the Minister within 90 days of the last day of the activity. This report will have to contain the information listed in section 11 of the Regulations. This information will help monitor pressures from human activities on the conservation priorities of the MPA and will contribute to ongoing monitoring of the potential risk of activities to achievement of the conservation objectives.
Regulatory and non-regulatory options considered
As highlighted above, an ecological risk assessment has shown that some ongoing (e.g. redfish otter trawl) and potential future activities (e.g. oil and gas exploration) pose a risk to conservation priorities identified for the MPA. Existing regulatory tools, applied independently, do not adequately mitigate those risks.
Certain marine activities are already regulated under provisions of the Fisheries Act, the Species at Risk Act, the Canada Shipping Act, 2001 and other federal legislation, whose purposes differ from that of the Oceans Act. DFO is not aware of any voluntary measures in place that afford adequate protection to the St. Anns Bank area.
A more cohesive and predictable regulatory framework in the form of an MPA through regulations made under the Oceans Act is considered necessary to focus efforts on the long-term conservation and protection of the area’s important ecological and biological features, particularly through the prohibition of activities in areas where they pose the greatest risk of harm.
Benefits and costs
Benefits of the Regulations
The designation of the St. Anns Bank MPA is anticipated to offer some potential benefits. While these benefits cannot be directly attributed to the MPA due to a lack of data, a review of nearly 130 studies and journal articles (see footnote 4) benefits to be derived from the protection of marine ecosystems in Canada and other countries suggests the following potential benefits may exist:
- existence values associated with knowing that species (including a number of depleted species) and important marine features and habitat exist, which are reflected in the willingness of Canadians to pay for the conservation of species, features and habitat for future generations to enjoy;
- non-use benefits for scientific and education-related activities as a result of any increased opportunities to study or observe marine species and important marine features and habitat in and around the MPA, as well as an improved understanding of the function and interaction of species, communities and ecosystems, and the outcomes of marine management activities;
- direct benefits to the commercial fishing industry as a result of potential increases in commercial catch in areas adjacent to the MPA’s zones as a result of any biomass spillovers due to the transfer of larvae, juveniles and/or adults from the MPA;
- direct benefits to the recreational fishing industry as a result of improved fishing opportunities in areas adjacent to the MPA’s core protection or in the adaptive management zones; and
- other potential benefits include helping to maintain the ecological role that species, features and habitat that benefit from the MPA designation play in ecosystem functions within and adjacent to the MPA’s core protection or adaptive management zones.
Costs of the Regulations
There are no changes to Aboriginal fisheries for food, social or ceremonial purposes. Therefore, no costs to these fisheries are anticipated.
The establishment of the MPA eliminates a portion of the total management area in which commercial harvesters (including Aboriginal commercial communal) are authorized to fish. Based on average catch data for 2009 to 2013, the Regulations are anticipated to impact a small number of Aboriginal commercial communal licence holders (fewer than five), by no more than approximately 5% of each licence holder’s total landed value to varying degrees. Information related to the affected landings for these fisheries are suppressed to maintain confidentiality, but are included in industry totals below.
Costs to the Government for the administration and management of an MPA include costs associated with activity assessments and the issuance of approvals, scientific research, information management, ecosystem monitoring, surveillance and enforcement, and public consultation, education and stewardship programs. The full cost of MPA management and monitoring has been estimated by the Department to be approximately $280,000 (nominal value) per year. This represents a total cost of $3.8 million in present value terms over a 30-year period (discounted at 7%).
Fishing and seafood processing
The establishment of the MPA eliminates a portion of the total management area in which harvesters are authorized to fish. Based on average catch data for 2009 to 2013, the nominal value of the annual loss of landings from commercial fisheries as a result of the Regulations is estimated to be $130,000 with an associated loss of profit of about $16,250 per year. (see footnote 5) Over 95% of the anticipated loss is from the prohibition of all fisheries (with the exception of fishing for food, social and ceremonial purposes and the seal harvest) in the high protection zone (Zone 1). Less than 2% of the loss would be from the prohibition of mobile bottom-contacting gear in each of the other zones. The Regulations are anticipated to have the most significant impacts on annual landed values (presented as nominal values) for the halibut longline ($56,700) and snow crab fisheries ($42,300). In addition, the redfish, shrimp, sea urchin, rock crab and scallop fisheries are anticipated to lose a total of just under $31,000 per year in revenue. The total present value of the incremental costs (i.e. loss of profits) to the commercial fishing industry is estimated at approximately $173,900 (over a 30-year period discounted at 7%).
Much of the loss in landed values identified above could be offset if the impacted fisheries move their effort to areas outside of the respective core protection and/or adaptive management zones. The degree to which such offsetting activities would occur is currently unknown.
Based on the five-year average catch data, the Regulations are anticipated to impact 16 licence holders in the affected fisheries to varying degrees. Although the level of impact varies by licence holder, none of the licence holders are overly dependent on the MPA area, as the affected landings represent no more than approximately 5% of each licence holder’s total landed value.
The anticipated loss of landings from fisheries that are prohibited from all or part of the MPA is estimated to result in a reduction of $239,000 (nominal value) in revenue per year for seafood processors. The loss in profits associated with these reductions in processing activity is estimated to be about $12,000 (nominal value) per year. The total present value of the incremental costs (i.e. loss of profits) to the seafood processing industry is estimated at approximately $160,500 (over a 30-year period discounted at 7%).
Recreational fishing will be allowed in Zones 2, 3 and 4, and the Regulations will not impose any additional requirements for recreational fisheries in these zones. The cost of recreational fisheries being prohibited in Zone 1 cannot be determined, as the level of recreational fishing activity in the MPA area is unknown at this time, and is expected to have remained very low even in the absence of the MPA.
Oil and gas
Although there are estimated to be significant potential reserves of oil and natural gas in the MPA boundary, DFO is not aware of any planned offshore oil and gas development activities that are expected to occur within or near the MPA in the near future. This expectation is based on current market price projections for petroleum resources, and the high capital cost requirements associated with any potential oil and gas projects in the area. Since the expected returns from an oil or natural gas project in the MPA are not currently considered attractive, development and recovery of any reserves is unlikely. Therefore, it is anticipated that there will be no costs to the oil and gas industry.
There are no active wells or exploration, significant discovery, or production licences in or near the St. Anns Bank MPA. Exploratory efforts, such as seismic surveying, have been very low in the area, with little industry interest in this general region since the late 1990s. No licences have been issued in the St. Anns Bank area since Call for Bids NS97-1 (1997). The Canada-Nova Scotia Offshore Petroleum Board (CNSOPB) three-year plan (2015–2017) for the Call for Bids Forecast Areas includes the MPA area for 2017 and identifies its boundary. (see footnote 6) Despite the inclusion of the AOI in the Call for Bids Forecast Areas, there are no known planned oil and gas projects in the area.
Other resource industries
There are no existing or proposed mineral development projects within the MPA. As a result, no impacts are anticipated on the mineral resource industry.
There are no anticipated costs to the renewable energy industry given that there are no existing or proposed wind, wave or tidal energy projects within or near the MPA.
There will be no cost to the transportation industry, as the Regulations will recognize international and Canadian navigational rights and will not place added restrictions on shipping.
Scientific, education and tourism activities
The Regulations would provide for access to the MPA for scientific, education and commercial marine tourism activities. This includes a requirement for proponents to provide detailed information on planned research, monitoring, educational and commercial marine tourism activities, and to consider potential impacts on the MPA. However, incremental costs related to the submission and approval processes are expected to be minimal, as much of the information required would be readily available to the proponent as a result of other permitting and licensing activities. For example, if a researcher was planning on taking a sample of a marine species, the researcher would have to also complete an application for a licence issued pursuant to section 52 of the Fishery (General) Regulations.
In addition, there are no commercial marine tourism activities currently operating in the vicinity of the MPA, and there is no expectation for new business opportunities within the MPA.
The “One-for-One” Rule does not apply to the Regulations, as there will be no change in administrative costs to business. No commercial marine tourism activities currently take place or are planned within the MPA. Furthermore, it is not anticipated that any commercial enterprises would be involved in the scientific and educational activities carried out in the MPA.
Small business lens
The small business lens does not apply to these Regulations, as the administrative and compliance costs associated with the MPA are expected to be well below the $1 million threshold.
The MPA Regulations have been developed through multiple rounds of consultation with interested and affected stakeholders (including industries, local communities and conservation organizations) as well as lead agencies in the Government of Nova Scotia, Indigenous peoples and communities. The consultation approach has emphasized the principles of sustainable development, and sought to use the best available scientific information and traditional ecological knowledge.
Area of interest selection process
A public consultation process was initially conducted between October 2009 and May 2010 with the objective of gathering feedback from various marine users, First Nations and Indigenous organizations, government agencies, and the general public to inform the selection of the next AOI for possible MPA designation on the Eastern Scotian Shelf. Based on consultation results, the St. Anns Bank AOI received the most direct support and was expected to have the lowest economic impact. This feedback was a significant consideration in selecting St. Anns Bank as an AOI to advance for MPA designation.
Response to MPA regulatory proposal
The St. Anns Bank AOI Stakeholder Advisory Committee (Advisory Committee) was established shortly after St. Anns Bank was identified as an AOI for possible MPA designation, and is composed of representatives from industry, academia, environmental non-governmental organizations, other provincial and federal government regulators, and First Nations and Indigenous organizations. Between April 2012 and April 2013, the Advisory Committee met four times to review available information, to participate in the development of the conservation objectives and the delineation of the MPA boundary and zones, and to provide advice on allowable activities. Regular updates have been provided to interested stakeholders or their representative organizations in 2014, 2015 and 2016.
In addition to engagement through the Advisory Committee, bilateral engagement and direct communication with individual stakeholders and partners were initiated to identify and address issues of concern. Four meetings were held with a fishing industry working group composed of representatives from the major fisheries active in the St. Anns Bank area, including First Nations and other Indigenous participants. Additional bilateral consultations with the Province of Nova Scotia, First Nations, and the fishing industry were also held over this period. Information has been distributed to First Nations through letters and an information package mailed to First Nations and Indigenous organizations in Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland and Labrador that provided all the available information DFO had gathered about the site, including proposed restrictions.
A summary of key issues and concerns received as feedback through the various consultations is provided below according to sector or interest group.
Environment and Climate Change Canada, Transport Canada, Natural Resources Canada, Global Affairs Canada and the Department of National Defence support the designation of the St. Anns Bank MPA. These departments attended Advisory Committee meetings and/or were consulted through bilateral meetings.
Both Natural Resources Canada and the CNSOPB expressed concern about the potential impacts of a preliminary MPA proposal on future petroleum exploration and a potentially significant loss of access to future reserves and related economic activity. The northern portion of the original AOI boundary was adjusted through the consultation process, which resulted in a reduction in overlap with areas expected to have higher petroleum potential.
Province of Nova Scotia
Several provincial agencies (Department of Energy, Department of Fisheries and Aquaculture, Department of the Environment and Intergovernmental Affairs) have participated on the Advisory Committee. Supplemental consultations were undertaken with these departments through a dedicated working group that also involved the Office of Aboriginal Affairs, the Department of Natural Resources and the Department of Justice.
In response to a preliminary MPA proposal, some provincial agencies expressed concern over the potential loss of future opportunities to access petroleum resources in the northern portion of the original AOI boundary. The proposed boundaries of the St. Anns Bank MPA have been adjusted to reduce overlap with areas expected to have moderate to high petroleum potential. At present, there are no licences for petroleum activity within or adjacent to the MPA.
Concern was also expressed regarding future access to the MPA to conduct limited seismic activity for the purposes of understanding the petroleum geology of the region. DFO recognizes that the nature and potential impacts of such activities vary greatly. Scientific research activities, which could include seismic research, would be allowed only if they are part of an activity plan approved by the Minister, which requires that such activities are not likely to destroy the habitat of any living marine organism, and serve to increase knowledge of the important features of the MPA or contribute to its management (see the “Description” section for additional details).
First Nations and Indigenous organizations
The Mi’kmaq of Nova Scotia were consulted through the Assembly of Nova Scotia Mi’kmaq Chiefs via the Kwilmu’kw Maw-klusuaqn Negotiation Office (KMKNO, Mi’kmaq Rights Initiative) under the Terms of Reference for a Mi’kmaq-Nova Scotia-Canada Consultation Process between 2011 and 2013.
In addition to the consultation under the Terms of Reference, an invitation to participate on the Advisory Committee was sent broadly to several First Nations and Indigenous organizations, including the Assembly of Nova Scotia Mi’kmaq Chiefs and each of the five First Nations on Cape Breton (Membertou, Eskasoni, Potlotek/Chapel Island, Wagmatcook and Waycobah). Some First Nations and Indigenous groups chose to participate on the Advisory Committee and the fishing industry working groups. Broader engagement and consultation efforts also included bilateral meetings and information-sharing through electronic and postal mail. Examples of information provided to the KMKNO and through other efforts include ecological and socio-economic overviews, a Mi’kmaq Traditional Use Study report containing information obtained from interviews with knowledge holders from Eskasoni, Membertou, Potlotek, Waycobah, Millbrook and Wagmatcook First Nations, information on each community’s commercial communal licences, and proposed MPA boundaries, zones and regulatory measures.
The KMKNO expressed concern with restrictions the proposed MPA would pose on Mi’kmaq access to commercial fisheries. A request was made by KMKNO for further dialogue on the impacts on Indigenous fishing activities and to explore opportunities for collaboration and building First Nations capacity to address site management needs and future MPA selection. To address concerns over fisheries access, DFO confirmed in a letter to KMKNO in July 2013 that no changes were proposed to Aboriginal food, social and ceremonial fisheries, and that some commercial fisheries would be allowed to continue in three of the four zones within the proposed MPA, where the majority of commercial fisheries have occurred.
In their early correspondence, the KMKNO, Native Council of Nova Scotia and local community members expressed concerns about unexploded ordnance and designated munitions dumps known to be within the proposed MPA boundary and potential effects they may have on the environment. Remediation activities carried out by the Government of Canada related to the designated munitions dumps or to address unexploded ordnance in the MPA would be considered activities related to public safety. While no remediation activities are planned in the area, DFO and the Department of National Defence would cooperate to ensure that impacts on the conservation priorities of the MPA are monitored and minimized to the extent possible.
In December 2014, DFO forwarded the regulatory intent with proposed boundaries and fishing restrictions to KMKNO via the multi-stakeholder Advisory Committee and received no response.
Other engagement efforts with First Nations and Indigenous groups included discussions with the Unama’ki Institute of Natural Resources and off-reserve groups such as the Native Council of Nova Scotia and the Maritime Aboriginal Aquatic Resources Secretariate. First Nations and off-reserve Indigenous organizations throughout mainland Nova Scotia and neighbouring provinces were also invited to provide input throughout the process. No responses from First Nations outside of Nova Scotia were received.
In 2016, concerns were expressed by a First Nation commercial communal licence holder that rod and reel fishing would not be allowed in the proposed MPA. DFO recognized that there have been developments in various fisheries in 4Vn (i.e. the Northwest Atlantic Fisheries Organization fisheries management unit off eastern Cape Breton) since the conclusion of the initial MPA consultations. Having determined that the tuna fishery in Zones 2, 3 and 4 would not pose a risk to the conservation objectives, rod and reel was added to the list of allowed fishing gear within those zones, and DFO intends to allow fishing for tuna with that gear within Zones 2, 3 and 4 of the MPA.
The regulatory and management frameworks for the St. Anns Bank MPA present an opportunity for collaboration between DFO, local First Nations and other Indigenous groups. DFO initiated a grants and contributions project in fiscal year 2014–2015 to support efforts of the Unama’ki Institute of Natural Resources (UINR) to explore UINR involvement in scientific and/or human use monitoring of the proposed MPA. This initiative may provide useful guidance for future collaboration in the future.
The commercial fishing industry is comprised of a wide variety of participants and associations with varying views. Generally, the fishing industry supports the MPA designation, but has noted concerns with respect to limitations on ongoing fisheries. These concerns have been evaluated by DFO and addressed to the extent possible.
Throughout the consultation process, some members of the fishing industry operating within the MPA boundary expressed opposition to the MPA due to concerns about placing any spatial restrictions on active fisheries and the need to consider the return of historical commercial fisheries to the area. The fishing industry working group was formed in 2011, and four meetings were held to ensure all interested fishing industry sectors had the opportunity to provide input into the design of the MPA. As a result of these meetings and subsequent discussions, three management zones (Zones 2, 3 and 4) were designed to allow existing fixed-gear, rod and reel and dive fisheries to continue within the MPA. These zones have addressed the concerns of some industry participants, as they capture the bulk of landings from the St. Anns Bank area over the last decade. After MPA designation, additional fixed gear, rod and reel, and harpoon fisheries (e.g. return of historical fisheries) could be allowed within Zones 2, 3 and/or 4 provided their ecological impacts do not compromise the conservation objectives for the MPA. While the mobile groundfish fishing fleet will be closed out of the entire MPA, boundary adjustments have reduced concerns about the loss of fishing grounds.
As the regulatory proposal was refined over time, DFO continued to share updated information with the fishing industry and to seek its input. In 2015, concerns were expressed by some groundfish licence holders regarding the closure of any available fishing grounds to the halibut fishery in the 4Vn management unit. More licence holders are becoming active, as the halibut fishery is making use of increasing quotas across the region, including off Cape Breton. In light of these emerging trends within the fishery, stakeholders anticipate that fishing effort and species distributions will expand or vary from current patterns. Industry participants argued that all available fishing areas are required to provide access to both active and newer entrants. DFO has responded to the industry by clarifying its approach, which would ensure that the bulk of fishing effort in the proposed fishing zones within the MPA remains unaffected. Zone 1 of the MPA (the core protection zone), within which some past halibut fishing activity has occurred, will not be accessible after designation. The science-based risk assessment supports the prohibitions in the core protection zone, because it demonstrates that risks to conservation objectives are reduced when there is minimal overlap between available fishing areas and ecological features of interest.
In 2016, a request was submitted to DFO to allow tuna angling and swordfish by harpoon throughout the MPA, and rock crab by pot and handline and longline for all species in Zones 2–4, and to increase the size of Zones 2–4. DFO confirmed that pot, rod and reel (angling), handline and longline were assessed to not pose a risk to the achievement of the conservation objectives of the MPA and were already included in the proposed list of fishing gears to be allowed in Zones 2, 3 and 4. Upon further analysis, DFO determined that the addition of harpoon to the list of fishing gears allowed within Zones 2, 3 and 4 would not pose a risk to the conservation objectives of the MPA and reflected this modification in the Regulations. The size and location of the AMZs are deemed appropriate based on the best available information at this time.
The Canadian Association of Petroleum Producers was invited to participate on the Advisory Committee and received information related to the establishment of the St. Anns Bank MPA, including the proposed boundary, management zones and regulatory approach. No response was received from the Association.
There are no existing or proposed mineral development projects within or in proximity to the MPA. Consequently, no direct engagement was undertaken with the mineral development sector.
There are no proposed wind, wave or tidal energy projects in the waters within or nearby the MPA. Consequently, no direct engagement was undertaken with the renewable energy sector.
The sector was represented on the Advisory Committee by the Shipping Federation of Canada. The shipping industry is generally supportive of the MPA designation. The Regulations will not impede navigation rights afforded under Canadian or international law.
Concerns were expressed by the sector about the impact of the MPA on vessel movements in this high-traffic area and operational shipping impacts due to potential changes to the winter Alternative Ballast Water Exchange Zone within the Laurentian Channel, which overlaps with a portion of the MPA. Similarly, with existing mitigation in place, ballast water exchange has been evaluated as low risk and is allowed to continue. DFO will work in collaboration with Transport Canada to monitor vessel activity within the MPA and to ensure that ecological risks to the area posed by shipping activities are addressed and mitigated using existing national and international legislation.
Non-governmental organizations — conservation
The marine conservation sector is strongly supportive of MPA designation.
The marine conservation sector was represented on the Advisory Committee by World Wildlife Fund, Ecology Action Centre and Canadian Parks and Wilderness Society. Additional consultation with the marine conservation sector took place through regular correspondence and bilateral meetings.
Concerns were expressed about the overall reduction in size of the proposed MPA compared to the original AOI in 2011. Specific concerns were raised regarding the reduction of the amount of habitat for priority species (i.e. groundfish). With the extension of the AOI boundary to the southeast, the final boundary of the MPA contains several features that are of particular ecological interest to environmental organizations.
The sector also recommended that a significant portion of the MPA should be a core protection zone (no extraction) to maximize MPA effectiveness and follow international guidance and best practices for designing protected areas (e.g. International Union for Conservation of Nature). DFO has determined that the creation of a large core protection zone for the St. Anns Bank MPA aligns with these international best practices.
Early in the process, the sector expressed interest in having cod included as a separate conservation priority for the St. Anns Bank MPA and indicated that tracking of changes in abundance of species like cod would be vital to track the conservation success of the MPA. Through discussions between DFO and the marine conservation sector, it was agreed that cod would be considered a priority species and, like for all other groundfish species, DFO would conduct ongoing monitoring of the stock in this area and investigate additional monitoring requirements, such as through the At-sea Observer Program and Vessel Monitoring Systems.
The marine conservation sector seeks continued engagement on the MPA initiative, particularly with respect to the ongoing management and monitoring of the MPA. DFO will seek opportunities to engage with stakeholders to ensure the effectiveness of the post-designation management approach.
Recent consultations include a presentation on the regulatory proposal to the ENGO (environmental non-governmental organizations) Forum in fall 2014, and status updates in December 2015 and September 2016. No new concerns were raised.
Canada Gazette, Part I — summary
The Regulations were published in the Canada Gazette, Part I (CGI), on December 17, 2016, for a 45-day public comment period. Stakeholders who had been engaged in the development of the MPA, including federal agencies and provincial governments, First Nations, industry and non-government organizations, were provided written notification of publication through email correspondence. A notice was published on DFO’s Twitter account and on DFO’s website.
A total of 976 submissions were received during the 45-day public comment period and taken into consideration, though 263 submissions did not include any indication of support or opposition. The majority of the remaining submissions were generated through an online form facilitated by an environmental group. Several hundred submissions received expressed support for the MPA regulatory proposal. Parties who submitted comments included the Province of Nova Scotia, CNSOPB, First Nations and Indigenous groups, fishing industry representatives, environmental non-governmental organizations, and members of the public.
A summary of the comments received during the above-mentioned consultations and how they have been addressed follows.
1. Issues of concern to Indigenous peoples
A submission received from KMKNO encompassed a number of issues related to the Mi’kmaq of Nova Scotia, including concern about the consultation process, and how DFO assessed and addressed impacts of the MPA on Mi’kmaq rights to a moderate livelihood based on fisheries. The KMKNO reiterated its request for an agreement to address site management needs and a mechanism to build capacity for the Mi’kmaq of Nova Scotia to participate in MPA management for St. Anns Bank and other MPAs. A request was made to extend the CGI public review period to allow for additional consultation.
A submission received from Membertou First Nation expressed concern about the consultation process, and included a request for compensation for removal of 12% of the 4Vn area that would no longer be accessible to tuna fishing (i.e. Zone 1).
A submission from the Maritime Aboriginal Peoples Council expressed concern about how the cost-benefit analysis for the MPA did not adequately assess costs to Aboriginal communities. The submissions also requested a renewed commitment and agreement to work with rights-holders and stakeholders, including capacity supports, on MPA establishment and management.
The need to consider First Nations’ commercial and food, social and ceremonial fisheries information and traditional knowledge in decision-making related to MPAs was emphasized in a submission from a conservation organization.
The Mi’kmaq of Nova Scotia were consulted on the development of the regulatory intent and MPA design through the Assembly of Nova Scotia Mi’kmaq Chiefs via the KMKNO under the Terms of Reference for a Mi’kmaq-Nova Scotia-Canada Consultation Process between 2011 and 2013.
DFO consultation on proposed MPAs encompasses a continuum of approaches. Each approach helps facilitate the exchange of information and solicits input from First Nations on contemplated programs and activities, particularly with respect to decisions that affect aquatic resources and oceans management. In addition to the Terms of Reference for a Mi’kmaq-Nova Scotia-Canada Consultation Process, DFO provided additional opportunities for Indigenous organizations to participate in the MPA process. This included a variety of mechanisms such as separate meetings, phone calls and correspondence to share information and discuss concerns; multi-stakeholder processes such as Advisory Committee meetings; and other approaches.
The consultation period during which the St. Anns Bank MPA boundaries and zones were created, adjusted, and finally proposed occurred between 2011 and 2013. During that timeframe, a variety of mechanisms were used to exchange information and consult with the Assembly of Nova Scotia Mi’kmaq Chiefs. This included consultation under the Terms of Reference, as well as an Advisory Committee process, and a fishing industry working group. The proposed regulatory intent, developed from information identified during that time period, was shared broadly with all parties for review in 2013 and again in 2014 after feedback received was taken into consideration.
Throughout the MPA development period, DFO worked to compile information on all current and recent Indigenous food, social and ceremonial and commercial fishing activities and interests within the St. Anns Bank area. First Nations’ fishing activities and interests were identified through a Traditional Use Study containing information obtained from interviews with knowledge holders from Eskasoni, Membertou, Potlotek, Waycobah, Millbrook and Wagmatcook First Nations, through discussions with First Nations, and by examining existing commercial communal fishing licences held by First Nations. The Traditional Use Study and information on the licences held by First Nations were shared with KMKNO in 2013.
DFO recognizes the importance of use of the St. Anns Bank area and has made efforts to take into consideration recent and current Indigenous fishing activities within the current design of the MPA. Based on the information gathered through the consultation process outlined above, First Nations’ fishing carried out under communal licences issued pursuant to the Aboriginal Communal Fishing Licences Regulations within the St. Anns Bank area is permitted in the fishing zones (Zones 2, 3 and 4). Any further commercial communal access provided or negotiated in the future could also potentially be exercised in those zones with the specified gears as listed in the MPA Regulations. Food, social and ceremonial fishing will not be affected by the Regulations.
When the proposed regulatory intent was developed and distributed, tuna fishing by First Nations was not occurring within the proposed MPA boundary. The tuna licence that was secured by Membertou First Nation later, in the fall of 2015, has since been accommodated by way of allowing that activity in Zones 2, 3 and 4. The expansion of Zone 2 provides further accommodation.
In the Regulatory Impact Analysis Statement (RIAS) prepublished in December 2016, DFO estimated the combined cost of all commercial fisheries, including Aboriginal commercial communal fisheries. In response to the comments received, the Department has separated out costs to Aboriginal commercial communal licences holders from non-Aboriginal commercial licence holders. However, due to confidentiality issues, that information cannot be included in this document. While costs associated with commercial fisheries focus on economic value of landings, DFO understands that the importance of Aboriginal commercial communal fisheries extends beyond direct income to include social and cultural benefits to Indigenous communities.
While the review period for Canada Gazette, Part I, was not formally extended, submissions that were received after the initial deadline were accepted. Letters highlighting adjustments to the MPA as well as a summary of DFOs perspective on issues raised by Indigenous organizations were mailed in March 2017 to the Maritimes Aboriginal Peoples Council, the Membertou First Nation and KMKNO.
In April 2017, a face-to-face meeting was held between DFO, KMKNO and Fisheries managers from Membertou First Nation and the Confederacy of Mainland Mi’kmaq to discuss their concerns and DFO’s written responses to their comments on the prepublished Regulations. At this meeting, it was recognized that broader discussions between DFO and the Mi’kmaq of Nova Scotia concerning the definitions of a moderate livelihood and rights-based fishing are ongoing at other tables. Discussions are also ongoing to create a Standing Committee on Consultation between DFO and the Mi’kmaq of Nova Scotia. DFO and KMKNO agreed that these ongoing discussions will help better define future MPA processes and expectations.
It was also agreed that no action has been taken by either party on the development of “an agreement and/or strategy on MPAs in Nova Scotia and for St. Anns Bank, and a mechanism to build capacity for the Mi’kmaq of Nova Scotia to participate in the management of MPAs,” as put forward in a letter from KMKNO to DFO in 2013. However, both DFO and KMKNO agreed that there is continued interest to move these forward and another meeting in the near future will be arranged to discuss. As well, all parties agreed that while there are outstanding areas of disagreement under discussion, such as the definition of rights-based fishing, there was commitment to continue to work together to resolve them and improve the MPA development process in the future.
Further correspondence from Membertou First Nation’s Director of Fisheries in April 2017 restated concerns about restrictions on tuna fishing in Zone 1 and about the consultation process for developing the MPA. Finally, the correspondence expressed willingness to continue to work with DFO for ongoing science and improving MPA processes in the future.
Discussions are ongoing with First Nations and Indigenous communities regarding their participation in the management of the MPA and network planning. DFO encourages First Nations and indigenous communities to participate in St. Anns Bank MPA management activities such as monitoring.
2. Oil and gas activities
Submissions from the Province of Nova Scotia and the CNSOPB requested clarification on the results of the risk assessment for oil and gas activities. The Province, represented by the Department of Energy, requested that additional details on oil and gas prospectivity be added to the final RIAS, particularly with respect to the cost-benefit statement. The Province expressed concern about how regulatory requirements of the activity plan process (i.e. activities must contribute to the management of the MPA) were inconsistent with what had been communicated in 2013 and could negatively affect the Province’s ability to conduct seismic research in the MPA. One submission from an individual Canadian indicated that seismic research activities to assess the area’s petroleum geology should not be allowed under any circumstances.
DFO acknowledges that because the results of the risk assessment were briefly summarized in the RIAS, they did not present the full picture of the results or methodology used. Therefore, a reference to the risk assessment was added to the RIAS in the Issues section to direct the reader to additional details. In March 2017, the Department shared additional information on the risk assessment of oil and gas activities with the Province of Nova Scotia and the Canada-Nova Scotia Offshore Petroleum Board. Additionally, DFO acknowledges that the risk assessment was based on the broader AOI boundary and a lower risk tolerance threshold was used for the purpose of this MPA. Subsequently, risks from oil and gas activities to certain conservation priorities (e.g. leatherback turtles) are likely lower given the modifications that resulted in the final MPA boundary. Nevertheless, the risks are still considered to be at a level warranting the same precautionary regulatory approach.
DFO officials have communicated with their counterparts in the Province of Nova Scotia to outline the analytical requirements of the federal regulatory process, which precludes the accounting of direct costs in relation to commercial activities that are highly uncertain to occur in the foreseeable future. Given the assessment that was provided by Natural Resources Canada with respect to the petroleum reserves in the area and the current barriers to commercial extraction, namely the absence of any foreseeable likelihood of production or exploratory licences, DFO continues to be of the view that commercial activity related to oil and gas would be unlikely. Therefore, those costs cannot be included in the analysis.
Notwithstanding the above, DFO has collaborated with the Province to ensure that potential impacts to future oil and gas activities were addressed in the course of the MPA development process. Modifications to the original AOI boundary significantly reduced overlap with areas of higher oil and gas potential as evidenced by the final MPA boundary.
Regarding seismic research activities, DFO responded in March 2017 by sending information to the Province regarding activity plan requirements. The regulatory intent provided to the Province in June 2013, and subsequent communications leading up to the publication of the proposed Regulations in December 2016, outlined activity plan requirements for scientific activities. In particular, they stated that approval of scientific research activities would, in part, be assessed based on a broader range of considerations than the impacts of those activities to achievement of the MPA’s conservation objectives. Furthermore, DFO continues to be of the view that seismic research activities must be considered on a case-by-case basis through the activity plan process as this is necessary to maintain the integrity and long-term viability of the MPA.
3. Allowed fisheries
Submissions from two fishing industry organizations, a First Nation commercial fisheries director, and 68 individuals requested that pelagic fisheries targeting tuna and swordfish be allowed throughout the entire MPA, due to the perceived low risk such fisheries pose to the conservation priorities. Two submissions indicated that the fishing industry anticipates the potential of expanding into sport fishing for tuna within the MPA since a tuna licence by rod and reel was issued in fall 2015.
Two fishing industry submissions expressed concern about the lack of a future/additional fisheries provision in the proposed Regulations which had been discussed during consultations with the fishing industry.
Throughout the MPA development process, DFO has consistently communicated its intent to create a core protection zone (Zone 1) to achieve the conservation objectives. While DFO recognizes that rod and reel and harpoon pose low risks to conservation priorities, DFO has determined that the regulatory approach, with the limited exceptions of food, social and ceremonial fishing and seal harvesting, is needed to achieve the conservation objectives. Therefore, the Regulations do not allow pelagic fisheries in Zone 1.
With respect to expanding a sport fishery for tuna, it is important to note that bluefin tuna is a limited entry fishery and only two licences are currently eligible to fish this species within the 4Vn area off eastern Cape Breton. New licence holders with home ports within 4Vn could obtain licences through licence transfer and be considered for access to 4Vn in the future on a case-by-case basis. Given the information available at this time, it is unlikely there will be a large number of bluefin tuna licences operating within 4Vn, which does not support the predicted expansion of a commercial and sport fishery.
In regards to the allowance of future/additional fisheries in the MPA, DFO has clarified that fishing activities for species using the gears specified in the Regulations would be assessed and allowed through the Fisheries Act, taking into account the conservation objectives of the MPA. The assessment process will be described in the forthcoming management plan and built around existing fisheries management decision-making and advisory structures.
4. Fishing zone boundaries
A total of 217 submissions received by email, including those from individual Canadians and a conservation organization, specifically requested that fishing zone boundaries not be changed.
In anticipation of feedback from the fishing industry regarding access, conservation organizations provided feedback relating to potential modification to the AMZs. One submission from a conservation organization indicated support for modification to the boundary of Zone 2 as long as fishing zones did not exceed 25% of the total MPA and there was no delay in designation of the MPA. Another submission, also from a conservation organization, indicated that fishing zones should cover no more than 20% of the MPA as a whole. One submission suggested that the eastern portion of the MPA be considered a fishing zone rather than part of the CPZ.
Submissions received from two fishing industry associations, a First Nation commercial fisheries director, and 68 individuals requested an increase in size to one or more of the fishing zones based on anticipated impacts to local communities and fishing enterprises.
During the MPA development process, available catch data and direct feedback from meetings with the fishing industry to define areas of active fishing were used to support the initial design of fishing zones in the MPA. DFO anticipated that the creation of these zones significantly reduced the impacts on fisheries, with less than approximately 5% of each licence holder’s total landed value affected by the MPA.
Following the prepublication of the Regulations, DFO reviewed all stakeholder submissions related to the design of the fishing zones. With consideration of the MPA’s conservation objectives, DFO determined that adjustments to the boundary of Zone 2 would address impacts to stakeholders while supporting the broader objectives of the MPA. This change reduces the area of the CPZ (Zone 1) by moving 240 km2 of that area into Zone 2, but does not change the total size of the MPA. This change is not expected to impact the MPA’s conservation objectives and would maintain a CPZ that is approximately 75% of the total MPA (previously at 81%). This zoning approach reflects internationally accepted best practice for MPA development (e.g. International Union for Conservation of Nature). The fisheries permitted within this expanded area will be the same as previously identified for Zone 2. Based on more recent catch data and the feedback received, this change is expected to have the largest effect on reducing the remaining impacts and potential costs on active fisheries in the area (e.g. increase available area for fishing, address concerns over seal interference).
In March and April 2017 respectively, DFO participated in teleconferences with two of the conservation organizations who had submitted comments on potential fishing zone boundary modifications. These organizations expressed support for the expansion of Zone 2, indicating it was a reasonable and acceptable measure to advance the Regulations.
In March 2017, DFO participated in a teleconference with two fishing industry associations, which indicated support for the expansion of Zone 2. However, they noted their concern regarding the size of the expansion and that other fishing zones were not expanded. One association reiterated its concern that rod and reel and harpoon fisheries are not allowed in the MPA.
In April 2017, DFO received correspondence from Membertou First Nation’s Director of Fisheries which stated that the proposed expansion of Zone 2 was not large enough for the utilization of the new commercial tuna licence that was acquired in the fall of 2015.
5. Economic assessment
The 4Vn Management Board Society expressed concern over the data used to calculate catch history of halibut in the MPA and the subsequent results of the cost-benefit analysis. The Society believes the costs to the fishing industry were underestimated.
In follow-up telephone conversations and a letter mailed March 27, 2017, DFO has shared details on the data and methodologies used in the cost-benefit analysis with the 4Vn Management Board Society (MBS). The cost-benefit analysis conducted for the proposed St. Anns Bank MPA was largely based on information recorded in mandatory logbooks and submitted by harvesters active in commercial fisheries in and around the MPA site. This includes catches from all licence holders and fleets and includes landings that occurred in any port in the region.
The analysis used average landings over a five-year period, which may account for concerns that higher catches do occur within the MPA in particular years. As well, the Department has analyzed landings since the MPA design was proposed in 2013. DFO recognizes there have been some changes in fishing patterns related to halibut, which helped to inform the change to Zone 2. With the expansion of Zone 2, the overall conclusion remains the same: the MPA represents a small percentage of catch to the harvesters that recorded a catch in the area and most landings within the MPA fall within the allowable fishing zones (no more than approximately 5% of each licence holder’s total landed value).
6. Wind generation
DFO was contacted by a Canadian-based offshore wind developer who wanted to consult with the Department on a proposed offshore wind generation farm near the MPA.
DFO discussed the regulatory requirements of the proposed MPA with this developer and shared information related to its ecological features. The company recognizes the Regulations do not allow for wind generation infrastructure. Given the large study area this developer has identified for a future wind generation site off eastern Cape Breton, the MPA does not impact its ability to eventually plan and propose a project in the region.
7. Designation process
Concerns were expressed by two conservation organizations about the time lag between the final MPA proposal agreement by the Advisory Committee and the formal prepublication of the Regulations. The submissions also provided feedback with respect to future opportunities to reflect the input of the Advisory Committee in the regulatory process.
To address timelines for the designation process, DFO is actively developing and implementing strategies to streamline the establishment process for MPAs under the Oceans Act. In developing the Regulations, DFO has followed the applicable federal directives and guidelines to ensure that all impacted and interested parties are provided the opportunity to provide comments on the MPA.
8. MPA management
A submission from a conservation organization expressed concerns about potential future impacts of activities to conservation objectives and recommended the development of a robust monitoring program to examine impacts to conservation features, with particular attention to Zone 4. The submission strongly urged DFO, in the event that negative impacts are identified, to consider suspending activities deemed to be causing those impacts. Another submission from an Indigenous group expressed concern that DFO did not have the capacity to manage or monitor the MPA.
In its submission, the Province of Nova Scotia expressed concern over the characterization of its position in the Canada Gazette, Part I, RIAS. In particular, the Province reiterated that it seeks the incorporation of flexibility and periodic reviews into the management plan to allow boundary and zoning changes should there be changes in conditions in the MPA. The Province indicated that such reviews should include an assessment of changing commercial opportunities so as not to have a negative impact on these opportunities. Additionally, the Province requested that the review process to determine whether additional fisheries could occur within the MPA be outlined in the Regulations.
In correspondence following receipt of their feedback, DFO has assured the Province and the conservation organization that the St. Anns Bank MPA will have an adaptive management approach that fully incorporates monitoring and regular reviews of activities and emerging issues and conditions. Similar to other MPAs, DFO has put processes in place to ensure that the St. Anns Bank MPA will benefit from robust ecological and activity monitoring measures, with periodic management reviews and evaluations undertaken to inform protection needs and potential changes in operations. These processes will utilize the best available science to identify appropriate adjustments to management measures. A regulatory amendment can be made, if necessary, to address changing protection needs.
Regarding the fisheries review process, the Regulations identify allowed gear types and future fisheries will be assessed and authorized under the Fisheries Act as described in the Allowed fisheries section. Monitoring and review processes are described in the site management plans and are not included as part of the Regulations of an MPA under the Oceans Act. DFO has encouraged the Province of Nova Scotia and the conservation organization to be fully engaged in MPA management activities for the St. Anns Bank MPA.
The Department remains consistent in its approach that a decision on any commercial marine tourism activity would be made on a case-by-case basis through an activity plan submission and approval process. Therefore, commercial tourism activities may occur in the MPA provided they are approved by the Minister of Fisheries and Oceans, increase public awareness of the MPA and do not negatively impact the MPA. This requirement for commercial marine tourism activities was clearly communicated throughout the consultation process. In March 2017, DFO sent information to the Province regarding the requirements for activity plans.
Given the current priority of MPA planning and implementation within DFO, the Department is well positioned to implement, manage and monitor the St. Anns Bank MPA. DFO will build on its existing MPA management capacity developed through many years of work to manage other MPAs in the Maritimes Region, namely the Gully and Musquash estuary MPAs, as well as regional coral and sponge conservation areas.
9. Network planning and integrated oceans management
Two submissions from fishing industry groups expressed concern about MPA network planning overlapping with fishing areas in the Gulf and Maritimes regions. Submissions from a conservation organization and an Indigenous group urged DFO to re-invest in integrated oceans management and marine spatial planning so that MPAs are part of a larger long-term marine planning process for the health of our oceans and the livelihoods they sustain.
The ongoing work on MPA network development in DFO’s Maritimes Region will enable the Department to assess, identify and select future MPAs or other conservation measures in support of biodiversity and ecosystem protection in the Scotian Shelf bioregion. DFO is firmly committed to advancing future MPAs and conservation measures within the context of an MPA network to ensure that a comprehensive and well-thought out approach is taken when advancing conservation measures. This approach will include the consideration of economic uses and ensure all stakeholders are involved.
DFO recognizes the commitment and work by all of those involved in the Eastern Scotian Shelf Integrated Management (ESSIM) process which attempted to advance an integrated and ecosystem approach to oceans management in the region. Although the ESSIM process came to its conclusion in 2012, DFO’s Maritimes Region continues to apply the lessons learned and tools developed in its ongoing implementation of the Oceans Management Program. This is best exemplified by the priorities and approaches contained in the Regional Oceans Plan. (see footnote 7).
10. Other issues
Several comments received during the prepublication period were unrelated to the St. Anns Bank MPA. These comments were forwarded to the relevant sectors in the Department for consideration.
Designation of the St. Anns Bank MPA by regulation contributes directly to Canada’s efforts to implement measures in line with several international agreements, the most prominent of which is the Convention on Biological Diversity (CBD). In 2010, the Conference of the Parties to the CBD established the following target, known as Aichi Target 11: “By 2020, at least 17 per cent of terrestrial and inland water, and 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well-connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscapes and seascapes.”
DFO and the CNSOPB have a Memorandum of Understanding, which outlines joint efforts and regulatory cooperation regarding matters of common interest, including MPAs. In a manner consistent with the efforts undertaken with the Gully MPA, DFO will work with the CNSOPB to ensure regulatory compliance with the Oceans Act for all activities and authorizations under CNSOPB control.
The designation of the St. Anns Bank MPA offers long-term protection to an area with high species and habitat diversity, sensitive species and habitats, and many other ecologically important features. This protection provides marine populations with a refuge from exploitation and other negative impacts, reduce human-imposed impacts to sensitive and important habitat, and help to protect and improve ecosystem integrity through the conservation and protection of unique and productive ecosystems.
The goals and objectives that have informed the development of the Regulations have been validated through a multi-step stakeholder engagement process. All key stakeholders have supported the designation of the St. Anns Bank MPA. The St. Anns Bank MPA will be beneficial for Canadians because of low costs and the potential for important long-term ecological benefits.
Designation of the St. Anns Bank MPA by regulation will further demonstrate Canada’s efforts to implement measures in line with several international agreements, the most prominent of which is the CBD. Establishing St. Anns Bank as an MPA will make a contribution to this international target. Currently, approximately 1% of Canada’s oceans are conserved through federal and provincial MPAs. The proposed St. Anns Bank MPA will generate an increase of 0.08% in the total protected area of Canada’s oceans.
Implementation and enforcement
These Regulations will come into force on the day on which they are registered. As the lead federal authority for the MPA, DFO will have overall responsibility for ensuring compliance with, and enforcement of, the Regulations. This will be undertaken through the Department’s legislated mandate and responsibilities under the Oceans Act, the Fisheries Act and the Coastal Fisheries Protection Act, as well as other departmental legislation regarding fisheries conservation, environmental protection, habitat protection and marine safety. Enforcement officers designated by the Minister under section 39 of the Oceans Act will enforce the Regulations for these areas. Enforcement of the Regulations and offences will be dealt with under section 37 of the Oceans Act.
The implementation of a risk-based approach will allow for the ecologically sustainable use of resources in the MPA without compromising the overarching objectives of protecting and conserving habitat, biodiversity and biological productivity. For example, some activities that produced mixed risk scores, such as the snow crab pot and halibut longline fisheries, will be permitted access only in specific locations and will be subject to additional monitoring once this has been determined.
No changes will occur to Aboriginal food, social and ceremonial fishing.
Exceptions for fishing gears were outlined in the Regulations. However, only ongoing fisheries that were assessed for their potential impacts on the MPA and deemed aligned with the conservation objectives of the MPA will be allowed to continue in certain management zones of the MPA subject to applicable requirements of the Fisheries Act or the Coastal Fisheries Protection Act. Fisheries intending to use fishing gears allowed in the Regulations, will be assessed for their potential impacts on the conservation objectives prior to being authorized within the MPA through existing Fisheries Act or Coastal Fisheries Protection Act mechanisms. Ongoing fisheries that will be allowed in the MPA immediately upon designation are listed in the table below.
Table 1: Fisheries allowed within the zones of the St. Anns Bank MPA, immediately upon designation
Rock crab pot
Snow crab trap
Groundfish (targeting halibut) with bottom longline/handline
Herring roe and bait fishery for herring/mackerel with gillnet
Urchin by diving
Bluefin tuna by rod and reel
Food, social and ceremonial
Complementary to the direction provided by the Regulations, an MPA management plan will be developed to provide further guidance on the Regulations and to implement a comprehensive set of conservation and management strategies and measures for the MPA. The management plan will clearly define the MPA’s purpose and management priorities, address matters such as monitoring, enforcement, compliance, and stewardship, and provide the detail required to ensure that the rationale for management decisions, prohibitions, and activity approvals is clearly justified and understood.
Website materials will also be developed to engage the public and share information about the MPA, including a summary of information provided in the management plan, and guidelines and best practices for conducting activities within the site. Time frames and information requirements for the activity application process will be outlined in guidance documents and the MPA management plan.
Compliance and enforcement activities carried out by DFO enforcement officers will include vessel and aerial patrols to ensure compliance with fishing licence conditions and closure areas. Fisheries activities within the St. Anns Bank MPA could also be monitored through other mechanisms, including the At-Sea Observer Program, fishing logbooks, and the Vessel Monitoring System. Using these data sources, automated reports on fishing activity in the MPA will be generated as often as daily as part of an existing compliance monitoring program for MPAs in the Maritime Region.
Contravention of the Regulations will carry fines of up to $100,000 for an offence punishable on summary conviction and of $500,000 for an indictable offence under section 37 of the Oceans Act. Contraventions of activity approvals and conditions could also result in charges under other applicable Canadian legislation such as the Fisheries Act or the Species at Risk Act.
Ecosystems Management Branch
Fisheries and Oceans Canada
Bedford Institute of Oceanography
1 Challenger Drive, P.O. Box 1006
Dartmouth, Nova Scotia
National Capital Region
Oceans Management Branch
Fisheries and Oceans Canada
200 Kent Street
- Footnote a
S.C. 1996, c. 31
- Footnote 1
- Footnote 2
The proposed MPA boundary is within the Canada-Nova Scotia Offshore Petroleum Board’s Call for Bids Forecasting Areas for 2017.
- Footnote 3
- Footnote 4
Sawyer, D., Donnan, J. and J. Dion. 2011. Literature Review and General Analytical Framework for Benefits Relating to Marine Protected Areas, Final Report. Prepared by EnviroEconomics for Fisheries and Oceans Canada, 57 pages.
- Footnote 5
In this analysis, Industry Canada’s Financial Performance Data tool is used to estimate profits for fish harvesting (North American Industry Classification System [NAICS] 114113). This tool uses information from Statistics Canada’s 2010 Small Business Profiles. This information indicates that profits in the Nova Scotia fish harvesting industry as a whole (saltwater fish harvesting) were approximately 12.5% of total revenue (2010 industry-wide average). As profit rates for individual fisheries are not currently available, this industry-wide average was used for all fisheries in this analysis.
- Footnote 6
- Footnote 7