Vol. 151, No. 25 — December 13, 2017

Registration
SOR/2017-266 December 4, 2017

SPECIES AT RISK ACT

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

Whereas the Minister of Fisheries and Oceans and the Minister responsible for the Parks Canada Agency, namely the Minister of the Environment, are the competent ministers in respect of the critical habitat of that species for the purposes of the annexed Order and have together prepared an action plan for that species;

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

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

And whereas the Minister of Fisheries and Oceans and the Minister of the Environment are of the opinion that the annexed Order would affect areas in respect of which wildlife management boards are authorized by lands claims agreements to perform functions in respect of wildlife species and, pursuant to subsection 58(8) of that Act, have consulted the wildlife management boards in question with respect to the Order;

Therefore, the Minister of Fisheries and Oceans and the Minister of the Environment, pursuant to subsections 58(4) and (5) of the Species at Risk Act (see footnote c), make the annexed Critical Habitat of the Northern Abalone (Haliotis kamtschatkana) Order.

Ottawa, November 30, 2017

Dominic LeBlanc
Minister of Fisheries and Oceans

Gatineau, September 11, 2017

Catherine McKenna
Minister of the Environment

Critical Habitat of the Northern Abalone (Haliotis kamtschatkana) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Northern Abalone (Haliotis kamtschatkana), which is identified in the action plan for that species that is included in the Species at Risk Public Registry.

Coming into force

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

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

Declines in the abundance and distribution of the Northern Abalone (Haliotis kamtschatkana) population have been documented since the late 1970s. In April 1999 and in May 2000, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the Northern Abalone population as threatened. In June 2003, upon the coming into force of the Species at Risk Act (see footnote 1) (SARA), the Northern Abalone was listed as threatened in Schedule 1, Part 3 of SARA. Following an updated status report and reassessment by COSEWIC in April 2009, which changed the status of the Northern Abalone from threatened to endangered, (see footnote 2) the species was reclassified as endangered in Schedule 1, Part 2 of SARA.

When a species has been listed as extirpated, endangered or threatened under SARA, a recovery strategy, followed by one or more action plans, must be prepared by the competent minister(s) and included in the Species at Risk Public Registry (Public Registry). Critical habitat for Northern Abalone was not identified in the Recovery Strategy for Northern Abalone (Haliotis kamtschatkana) in Canada (2007) [Recovery Strategy]. The Action Plan for the Northern Abalone (Haliotis kamtschatkana) in Canada (2012) [Action Plan] did, however, identify Northern Abalone critical habitat.

As competent ministers under SARA, the Minister of Fisheries and Oceans and the Minister responsible for the Parks Canada Agency (Minister of the Environment and Climate Change) are required to ensure that the Northern Abalone’s critical habitat is protected by provisions in, or measures under, SARA or any other Act of Parliament, or by the application of subsection 58(1) of SARA. This protection will be accomplished through the making of the Critical Habitat of the Northern Abalone (Haliotis kamtschatkana) Order (Order) under subsections 58(4) and (5) of SARA, which triggers the prohibition against the destruction of any part of the species’ critical habitat in subsection 58(1) of SARA. The Order affords an additional tool for the protection of Northern Abalone critical habitat and enhances the ability of the Minister of Fisheries and Oceans Canada and the Minister Responsible for the Parks Canada Agency (Parks Canada) to jointly ensure that Northern Abalone critical habitat is protected against destruction to support efforts towards the recovery of the species.

Background

The Government of Canada is committed to conserving biodiversity and the sustainable management of fish and their habitats, both nationally and internationally. Canada, with support from provincial and territorial governments, signed and ratified the United Nations’ Convention on Biological Diversity in 1992. Stemming from this commitment, the Canadian Biodiversity Strategy was jointly developed by the federal, provincial, and territorial governments in 1996. Building on the Canadian Biodiversity Strategy, SARA received royal assent in 2002 and was enacted to prevent wildlife species from being extirpated or becoming extinct; to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity; and, to manage species of special concern to prevent them from becoming endangered or threatened.

The Northern Abalone is a marine mollusc that is found along exposed and semi-exposed rocky coastlines in the shallow subtidal Pacific waters ranging from Sitka Sound, Alaska, in the north, to Turtle Bay, Baja California, in the south. In Canada, Northern Abalone occurs only on the Pacific coast in patchy distribution on hard substrate in intertidal and shallow subtidal coastal waters. In response to observations of population declines, the Northern Abalone fisheries were closed to all harvesting in 1990 and a rebuilding program was implemented in 1999.

The Report on the Progress of Recovery Strategy Implementation for Northern Abalone (Haliotis kamtschatkana) in Pacific Canadian Waters for the Period 2007–2012 documents the progress of the recovery strategy implementation for the Northern Abalone in Canada. It summarizes progress that Fisheries and Oceans Canada, Parks Canada, First Nations, non-governmental organizations and the broader scientific community have made towards achieving the goals and objectives set out in the Recovery Strategy. Progress to date includes continued monitoring; research and improved understanding through pilot studies; population rebuilding efforts, major convictions for illegal possession; First Nation and coastal community involvement in monitoring and reporting programs to address illegal harvesting; and increased public awareness of the threats to Northern Abalone, including illegal harvesting.

Works, undertakings or activities (projects) likely to destroy the critical habitat of the Northern Abalone are currently already subject to other federal regulatory mechanisms. Section 35 of the Fisheries Act prohibits serious harm to fish, which is defined in the Act as “the death of fish or any permanent alteration to, or destruction of, fish habitat.” Given that serious harm to fish encompasses destruction of fish habitat, the prohibition under section 35 contributes to the protection of critical habitat of Northern Abalone. Protection is also offered by the Canada National Parks Act and its regulations for the portion of habitat that falls within the Pacific Rim National Park Reserve of Canada and the Gwaii Haanas National Park Reserve of Canada, as well as the Canada National Marine Conservation Areas Act for the portion of habitat that falls within the Gwaii Haanas National Marine Conservation Area Reserve and Haida Heritage Site.

Conserving Canada’s natural aquatic ecosystems, and protection and recovery of its wild species, is essential to Canada’s environmental, social and economic well-being. SARA also recognizes that “wildlife, in all its forms, has value in and of itself and is valued by Canadians for aesthetic, cultural, spiritual, recreational, educational, historical, economic, medical, ecological and scientific reasons.” A review of the literature confirms that Canadians value the conservation of species and measures taken to conserve their preferred habitat. In addition, protecting species and their habitats helps preserve biodiversity — the variety of plants, animals, and other life in Canada. Biodiversity, in turn, promotes the ability of Canada’s ecosystems to perform valuable ecosystem services such as filtering drinking water and capturing the sun’s energy, which is vital to all life.

Objectives

The recovery goal of increasing Northern Abalone to self-sustainable levels, as set out in the Recovery Strategy, can be expected to take several decades. Efforts to achieve both the short-term and long-term goals are ongoing and are supported through measures outlined in the Action Plan for the Northern Abalone (Haliotis kamtschatkana) in Canada and the Multi-species Action Plan for Gwaii Haanas National Park Reserve, National Marine Conservation Area Reserve, and Haida Heritage Site. Present threats to Northern Abalone, as identified in the Recovery Strategy, include: illegal harvesting; low recruitment; habitat loss or degradation; and Sea Otter predation. In comparison to the other threats to Northern Abalone, habitat loss or degradation is considered a low level concern in the Recovery Strategy, as it was deemed that sufficient habitat is available for the Northern Abalone population.

The illegal harvesting of Northern Abalone and low recruitment levels have had predominant and widespread impacts and are the most significant threats to Northern Abalone recovery. While there has been measurable progress towards meeting some of the recovery goals, objectives and performance measures presented in the Recovery Strategy, Northern Abalone abundance, distribution, and density remain below the recovery objectives for index sites in Haida Gwaii and the north and central coasts of British Columbia. Additionally, abalone mortality rates at these index sites remain high.

In order to avoid the duplication of efforts and to aim for greater transparency, the Minister of Fisheries and Oceans and the Minister responsible for the Parks Canada Agency have agreed to make a joint Order to ensure that the critical habitat of the Northern Abalone is legally protected.

Description

Northern Abalone occurs in a wide variety of habitats from fairly sheltered bays to exposed coastlines, from the low intertidal zone to shallow subtidal depth. The Order triggers the SARA subsection 58(1) prohibition against the destruction of the critical habitat, including the biophysical attributes identified in the Action Plan, and results in the critical habitat identified in the Action Plan (see footnote 3) being legally protected.

The Order provides an additional tool that enables the Minister of Fisheries and Oceans and the Minister responsible for the Parks Canada Agency to ensure that the critical habitat of Northern Abalone is protected against destruction and to prosecute those who commit an offence under subsection 97(1) of SARA. To support compliance with the subsection 58(1) prohibition, SARA provides for penalties for contraventions, including fines or imprisonment, as well as alternative measures agreements and seizure and forfeiture of things seized or of the proceeds of their disposition. This Order serves to:

“One-for-One” Rule

The “One-for-One” Rule requires regulatory changes that increase administrative burden costs to be offset with equal reductions in administrative burden. In addition, ministers are required to remove at least one regulation when they introduce a new one that imposes administrative burden costs on business.

The “One-for-One” Rule does not apply to this Order, as there are no anticipated additional administrative costs on businesses. The Order will be implemented under existing processes.

Small business lens

The objective of the small business lens is to reduce regulatory costs on small businesses without compromising the health, safety, security and environment of Canadians.

The small business lens does not apply to this Order, as there are no administrative burden costs on small business.

Consultation

Consultation on the Action Plan began at very early stages of the planning process and continued throughout the development of the Action Plan. In 2009, the Department of Fisheries and Oceans Canada, Parks Canada and the Province of British Columbia established a small team of experts to develop the draft Action Plan. On July 6, 2009, letters were mailed to 85 coastal First Nations, inviting them to participate in the action planning process, which included the identification of critical habitat. A follow-up copy of the letter was faxed to the communities and an email request was sent.

The Action Plan was one of the first to incorporate Indigenous traditional knowledge in SARA recovery planning. First Nations of Haida Gwaii and the north and central British Columbia coast have been conducting marine traditional knowledge studies in communities since 2007 to feed into federal, provincial and First Nations marine use planning initiatives (e.g. Pacific North Coast Integrated Management Area and Marine Planning Partnership for the Pacific North Coast).

In June 2010, the draft Action Plan was shared with Environment and Climate Change Canada, the Province of British Columbia and Transport Canada. Letters were sent to coastal First Nations, members of the Abalone Recovery Implementation Group, shellfish organizations, aquaculturists and interested Environmental Non- Governmental Organizations to inform them that the Action Plan was to be posted on the Fisheries and Oceans Canada Pacific Region consultation website and was available for comment. Letters were followed up with emails, and First Nations communities also received the correspondence via fax. The draft Action Plan was posted to the Fisheries and Oceans Canada Pacific Region Consultation website for a public comment period from September 1 to November 7, 2010.

The draft Action Plan, which indicated Fisheries and Oceans Canada’s intention to use an Order to protect Northern Abalone critical habitat, was then posted on the Public Registry for public comment from November 8, 2011, to March 2, 2012. Members of the Abalone Recovery Implementation Group were notified of the posting at the November 14, 2011, annual meeting, and a presentation detailing the proposed Order was also provided. On February 2, 2012, Fisheries and Oceans Canada extended the consultation period by one month to allow for additional consultation on the Department’s intention to use an Order to protect critical habitat; the expanded consultation form was posted on the Public Registry for public comment until March 3, 2012. No comments were received at the regional and national level and no concerns were raised.

During the drafting of this Order, Parks Canada sent letters to all First Nations with territory within Pacific Rim National Park Reserve of Canada and the Gwaii Haanas National Park Reserve of Canada / Gwaii Haanas National Marine Conservation Area Reserve and Haida Heritage Site about the issuance of the Order. No concerns were raised.

Rationale

The current recovery goals for the Northern Abalone, as outlined in the Action Plan, are to achieve self-sustainable densities of Abalone within the following biogeographic zones: north and central coast of the British Columbia mainland, the east and west coast of Haida Gwaii, Queen Charlotte and Johnstone Strait, Georgia Basin and Barkley Sound. Achieving and maintaining self-sustainable densities in these areas is a key factor in meeting the population and distribution objectives for this species. However, increasing Northern Abalone to sustainable levels can be expected to take several decades.

Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final action plan on the Public Registry. Critical habitat that is not in a place referred to in subsection 58(2) of SARA (see footnote 4) must be protected either by the application of the prohibition in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, or by provisions in, or measures under, SARA of any other Act of Parliament, including agreements under section 11 of SARA. It is important to note that in order for another federal law to be used to legally protect critical habitat, it must provide an equivalent level of legal protection of critical habitat as would be afforded through subsection 58(1) of SARA, failing which, the Minister must make an order under subsections 58(4) and (5) of SARA. This Order is intended to satisfy the obligation to legally protect critical habitat by triggering the prohibition under SARA against the destruction of any part of the species’ critical habitat.

Projects likely to destroy the critical habitat of the Northern Abalone are already subject to other federal regulatory mechanisms, including the Fisheries Act. No additional requirements are therefore imposed on stakeholders as a result of the coming into force of the Order.

Based upon the best evidence currently available, and the application of the existing regulatory mechanisms, no additional compliance and administrative burden on the part of Canadians and Canadian businesses are anticipated. Threats to Northern Abalone critical habitat are managed and will continue to be managed through existing measures under federal legislation.

Considering the existing federal regulatory mechanisms in place, the incremental costs and benefits are anticipated to be negligible. The proposed Order is not anticipated to result in incremental costs to Canadian businesses and Canadians. However, the federal government may incur some negligible costs as it will undertake some additional activities associated with compliance promotion and enforcement, the costs of which would be absorbed through existing funding allocations. The compliance promotion and enforcement activities to be undertaken by the federal government, in combination with the continuing outreach activities undertaken as part of the identification process of critical habitat during the development of the Recovery Strategy and Action Plan may also contribute towards behavioural changes on the part of Canadian businesses and Canadians (including Indigenous groups) that could result in incremental benefits to the species, its habitat or the ecosystem. However, these incremental benefits cannot be assessed qualitatively or quantitatively at this time due to the absence of information on the nature and scope of the behavioural changes as a result of these outreach activities.

Implementation, enforcement and service standards

Fisheries and Oceans Canada’s current practice for the protection of Northern Abalone and its habitat is to direct all proponents of projects in coastal British Columbia to use the “Impact Assessment Protocol for Works and Developments Potentially Affecting Abalone and Their Habitat” (see Appendix IV of the Action Plan). The protocol provides a series of steps that should be undertaken in order to avoid destruction of Northern Abalone habitat. This impact assessment protocol has been used since 2007 by Fisheries and Oceans Canada staff and applies to any proposed works in areas which have specific biophysical attributes of the critical habitat of the Northern Abalone as described in the Action Plan. In addition, proponents of works and developments in areas where Northern Abalone is present must ensure compliance with the general SARA prohibition on killing, harming, harassing, capturing and taking individuals of Northern Abalone (SARA section 32). This can be achieved by adherence to the impact assessment protocol and, if necessary, by obtaining a SARA permit to relocate individuals found at low densities.

For Parks Canada, the Northern Abalone and its habitat are protected using SARA provisions, and other federal legislation, and regulations. All projects that might impact Northern Abalone or their habitat go through either Parks Canada’s research permitting system or the environmental assessment process, including a careful assessment of potential impacts to all implicated species at risk and compliance with SARA prohibitions. In addition, waters administered by Parks Canada are patrolled and protected by Parks Canada law enforcement personnel.

Fisheries and Oceans Canada and Parks Canada are currently not aware of any planned or ongoing activities that will need to be mitigated beyond the requirements of existing legislative or regulatory regimes, and will work with Canadians on any future activities to mitigate impacts, in order to avoid destruction of Northern Abalone critical habitat or jeopardy to the survival or recovery of the species.

Fisheries and Oceans Canada and Parks Canada will continue to implement SARA provisions and existing federal legislation under their respective jurisdiction in order to advise stakeholders on an ongoing basis with regard to protecting individuals of the Northern Abalone and with regard to technical standards and specifications on activities that may contribute to the destruction of Northern Abalone habitat. These standards and specifications are aligned with those that will be required once the Order comes into force. If new scientific information supporting changes to Northern Abalone critical habitat becomes available at some point in the future, the Action Plan will be updated as appropriate. The prohibition that is triggered by the Order provides a further deterrent in addition to the existing regulatory mechanisms and specifically safeguards the critical habitat of the Northern Abalone through penalties and fines under SARA, resulting from both summary convictions and convictions on indictment.

Fisheries and Oceans Canada provides a single window for proponents to apply for an authorization under paragraph 35(2)(b) of the Fisheries Act that will have the same effect as a permit issued under subsection 73(1) of SARA, as provided for by section 74 of SARA. For example, in cases where it is not possible to avoid the destruction of critical habitat, the project would either be unable to proceed, or the proponent could apply to the Minister of Fisheries and Oceans for a permit under section 73 of SARA or an authorization under section 35 of the Fisheries Act that is compliant with section 74 of SARA. In either case, the SARA permit or Fisheries Act authorization would contain terms and conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.

In considering applications for authorizations under the Fisheries Act that would, if approved, have the same effect as a permit under section 73 of SARA, the Minister of Fisheries and Oceans is required to form the opinion that the activity is for a purpose set out in subsection 73(2) of SARA — that is, that the activity is scientific research relating to the conservation of the species and conducted by qualified persons, that the activity benefits the species or is required to enhance its chance of survival in the wild, or that affecting the species is incidental to the carrying out of the activity. Furthermore, the preconditions set out in subsection 73(3) of SARA must also be satisfied. This means that prior to issuing SARA-compliant Fisheries Act authorizations, the Minister of Fisheries and Oceans must be of the opinion that all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted, that all feasible measures will be taken to minimize the impact of the activity on the species, its critical habitat or the residences of its individuals, and that the activity will not jeopardize the survival or recovery of the species.

Under the penalty provisions of SARA, when found guilty of an offence punishable on summary conviction, a corporation other than a non-profit corporation is liable to a fine of not more than $300,000, a non-profit corporation is liable to a fine of not more than $50,000, and any other person is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. When found guilty of an indictable offence, a corporation other than a non-profit corporation is liable to a fine of not more than $1,000,000, a non-profit corporation is liable to a fine of not more than $250,000, and any other person is liable to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both. It should be noted that maximum fines for a contravention of the prohibitions in subsections 35(1) or 36(3) of the Fisheries Act are higher than maximum fines for a contravention of subsection 58(1) of SARA.

Any person planning on undertaking an activity within the critical habitat of the Northern Abalone should inform himself or herself as to whether that activity might contravene one or more of the prohibitions under SARA and, if so, should contact Fisheries and Oceans Canada or Parks Canada.

Contacts

Julie Stewart
Director
Species at Risk Program
Fisheries and Oceans and Canadian Coast Guard
200 Kent Street
Ottawa, Ontario
K1A 0E6
Fax: 613-990-4810
Email: SARA_LEP@dfo-mpo.gc.ca

Rachel Grasham
Director
Policy, Legislative and Cabinet Affairs
Parks Canada Agency
30 Victoria Street
Gatineau, Quebec
J8X 0B3
Telephone: 819-420-9115
Email: rachel.grasham@pc.gc.ca