Order Designating the Tuvaijuittuq Marine Protected Area: SOR/2019-282

Canada Gazette, Part II, Volume 153, Number 17

Registration

SOR/2019-282 July 30, 2019

OCEANS ACT

Whereas this Order designates the Tuvaijuittuq Marine Protected Area in a manner that is not inconsistent with a land claims agreement that has been given effect and has been ratified or approved by an Act of Parliament;

Therefore, the Minister of Fisheries and Oceans, pursuant to 35.1(2) ^{footnote a} of the Oceans Act ^{footnote b}, makes the annexed Order Designating the Tuvaijuittuq Marine Protected Area.

Ottawa, July 29, 2019

Jonathan Wilkinson
Minister of Fisheries and Oceans

Order Designating the Tuvaijuittuq Marine Protected Area

Definition of Marine Protected Area

1 In this Order, Marine Protected Area means the area of the sea that is designated by section 2.

Marine Protected Area

2 (1) The area of the sea in the Arctic Ocean consisting of the waters off northern Ellesmere Island, as described in plan number FB42596, certified on July 16, 2019 and depicted in plan number CLSR 108395, which plans are deposited in the Canada Lands Surveys Records, is designated as the Tuvaijuittuq 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, including the sea ice, each of which is below the low-water line.

Ongoing activities

3 For the purposes of subsection 35.1(2) of the Oceans Act, the following classes of activities are ongoing activities in the Marine Protected Area:

• (a) national defence activities carried out by the Department of National Defence; and
• (b) marine scientific research activities.

Prohibitions

4 (1) It is prohibited in the Marine Protected Area to carry out any activity — other than those set out in section 3 — that disturbs, damages, destroys or removes from the Marine Protected Area any unique geological or archeological features or any living marine organism or any part of its habitat, or is likely to do so.

Exemption

(2) Despite subsection (1), the following activities may be carried out in the Marine Protected Area:

• (a) marine navigation by a foreign national, a foreign ship or a foreign state, or an entity incorporated or formed by or under the laws of a country other than Canada; and
• (b) the laying, maintenance and repair of cables and pipelines by a foreign state.

Non-application – Nunavut Agreement

5 This Order does not apply with respect to the wildlife harvesting rights of the Inuit in the Nunavut Settlement Area, as provided for in the Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada, as approved, given effect and declared valid by the Nunavut Land Claims Agreement Act.

Coming into force

6 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.)

Executive summary

Issues

The Tuvaijuittuq MPA is considered globally, nationally and regionally unique due to the presence of multi-year pack ice and is believed to be a critically important habitat for Arctic under-ice communities. It may also play an important role for ice-dependent species (e.g. beluga, narwhal, walrus, seals and polar bear). This area represents a portion of the Canadian High Arctic projected to retain multi-year ice in the long term and will likely become an important refuge for ice-associated biota as sea ice loss continues throughout the Arctic due to climate change.

Designating this ecologically important area as an MPA through a ministerial order under the Oceans Act will help protect and conserve the important biological diversity, unique structural habitat, and ecosystem function within this area, while additional information is collected and appropriate conservation tools are assessed for long-term protection.

Without government intervention, a possible increase in Arctic shipping and related activities, particularly ice breaking, could negatively impact the multi-year ice environment, which is the critical feature of this area requiring protection.

Background

In June 2016, Canada announced a five-point plan to reach its national and international marine conservation targets (MCT), to increase the proportion of Canada’s marine and coastal areas that are protected to 10% by 2020.

DFO and PCA received funding in Budget 2017 to pursue marine protection initiatives in the High Arctic marine environment, an area commonly referred to as the “Last Ice Area.” DFO is now designating an MPA that encompasses a large portion of the multi-year pack ice in the High Arctic Basin (Tuvaijuittuq) [Figure 1]. The establishment of the MPA via a ministerial order will contribute an additional 5.55% to Canada’s MCT, and will significantly advance Indigenous collaboration on marine conservation.

The MPA overlaps with three ecologically and biologically significant areas that were identified by DFO in 2011. It has also been selected by PCA as a candidate site to be part of its system of national marine conservation areas. The importance of this area has been acknowledged by academia and environmental non-governmental organizations who have been calling for its protection due to the area’s increasing significance in a changing climate.

The Arctic climate is experiencing rapid change resulting in the loss of sea ice and more specifically, multi-year pack ice. These changes are generating new opportunities and challenges for the Arctic. For example, warming may result in an extended shipping season and the creation of new shipping routes, which may, in turn, make mining, oil and gas development, commercial fishing, research, and tourism more accessible across the Arctic. These types of activities may pose a risk to the habitat, biodiversity and ecosystem function within the MPA.

The MPA is the first phase of a multi-phased approach to explore the feasibility of long-term marine protection in this area. The ministerial order will be in place for up to five years, during which time DFO and PCA will work with Inuit and northern partners on options for long-term protection for all or part of the Tuvaijuittuq MPA. The work to determine the feasibility of long-term protection will be informed, in part, by an ongoing DFO-led Multidisciplinary Arctic Program science mission in the area that is studying the structure, function and role of the sea-ice associated ecosystem in the Arctic Ocean.

Figure 1 — Map of the Tuvaijuittuq Marine Protected Area

Image description

Figure 1 represents a map delineating the Tuvaijuittuq Marine Protected Area with respect to adjacent land masses of the Inuvialuit Settlement Region and the Nunavut Settlement Area.

Objective

The conservation objective of the MPA, based on current knowledge, is to contribute to the conservation, protection and understanding of the natural diversity, productivity and dynamism of the High Arctic sea ice ecosystem.

Additional factors supporting the MPA designation include the promotion of environmental preservation and conservation, and the protection of a globally unique area. The designation of the MPA will also provide time to work with partners and stakeholders to assess the feasibility of long-term protection tools for the area, and will allow research initiatives in the MPA that are consistent with the purpose of the designation of the MPA, supporting a more detailed evidence-based assessment of potential long-term protection measures.

Information gathered during the ministerial order phase will help DFO, the PCA and key partners better understand the area, support outreach, and improve public knowledge about the importance of this relatively unknown area of the world.

Description

The Tuvaijuittuq MPA covers an area of 319 411 km² and includes the marine waters off northern Ellesmere Island starting from the low-water mark and extending to the outward boundary of Canada’s Exclusive Economic Zone (Figure 1). It also includes the seabed, the subsoil to a depth of five metres and the water column, including the sea ice. A PDF version of plan number FB 42596 and the corresponding Canada Lands Survey Records’ map can be downloaded online. The initial boundaries of the study area were based on the 2011 Canadian Science Advisory Report (2011/55), which highlighted the importance of the area.

The eastern edge of the MPA is in the Lincoln Sea. Canada has a maritime boundary dispute with Denmark in that area. The limits of Canada’s maritime zones in this area with the Kingdom of Denmark are not yet settled. Canada and Denmark announced on November 28, 2012, that a tentative agreement on the Lincoln Sea boundary had been reached. The next step is to develop treaty text for ratification. Once the maritime boundary is finalized, this portion of the MPA boundary may need to be reviewed to reflect the coordinates in the treaty.

Protection via a ministerial order allows the Minister to freeze the footprint of human activities in the area for up to five years. This means that it is prohibited to carry out any activity that disturbs, damages, destroys or removes from the MPA any unique geological or archeological features or any living marine organism or any part of its habitat or is likely to do so, except for specific activities listed below. Any activities that have occurred in the MPA over the 12 months prior to designation (or that are authorized to occur via a licence, permit or such other means) are allowed to continue in the MPA. In addition, scientific research, safety and security, and emergency activities are allowed in the MPA. Certain activities carried out by a foreign national, entity, ship or state are also allowed in the MPA.

DFO has engaged with Canadians, stakeholders (including Indigenous organizations, territorial governments and nearby communities) and other federal departments to identify all ongoing and authorized activities in the area in the last 12 months. Based on this information, the following ongoing activities are allowed in the MPA:

• marine scientific research activities; and
• national defence activities carried out by the Department of National Defence.

As per paragraph 35.1(2)(d) of the Oceans Act, the following activities carried out by a foreign national, an entity incorporated or formed by or under the laws of a country other than Canada, a foreign ship or a foreign state are allowed in the MPA:

• marine navigation; and
• the laying, use and maintenance of cables and pipelines.

Subsection 35.1(3) of the Oceans Act identifies certain activities that are to be allowed in all MPAs. The following activities fall under exceptions prescribed in the Oceans Act and are therefore allowed in the MPA:

• activities that are carried out in response to an emergency or that are carried out by or on behalf of Her Majesty for the purpose of public safety, national defence, national security or law enforcement; and
• marine scientific research activities that are consistent with the purpose of the designation of the MPA and, when required, that are authorized under federal laws and laws of a province or a territory.

In order to be consistent with the Nunavut Agreement, the following activities are allowed in the MPA:

• the exercise of Inuit rights respecting wildlife harvesting as provided for under the Nunavut Agreement.

Regulatory development

Consultation

Considerable consultation and engagement activities have been conducted with key partners and stakeholders in relation to the use of a ministerial order MPA under the Oceans Act in Tuvaijuittuq as the first phase of a multi-phased approach to marine protection in the High Arctic marine environment. Throughout the engagement process, DFO and the PCA have engaged with key Inuit partners and territorial governments, as well as other federal departments and agencies, non-governmental organizations, and organizations representing industry.

Between April 2018 and January 2019, engagement efforts were focused on an offshore area of the Tuvaijuittuq. Beginning in February 2019, engagement efforts were focused on an expanded area, which also includes a portion of the marine waters inside the Nunavut Settlement Area. This revised boundary was agreed to by the Government of Canada and the Qikiqtani Inuit Association.

Key Inuit organizations and northern governments

Key partners and stakeholders in Nunavut were initially engaged through the Nunavut Marine Conservation Target Steering Committee (the Committee) that was established in May 2017 to provide a coordination mechanism on marine conservation activities planned and underway within and adjacent to Nunavut. Participation on the Committee includes senior-level representatives from Environment and Climate Change Canada, the PCA, Crown-Indigenous Relations and Northern Affairs Canada, Transport Canada, DFO, the Nunavut Department of Environment, and Nunavut Tunngavik Inc.

In June 2018, options for the protection of the Tuvaijuittuq MPA were presented to the Committee. The Committee expressed concerns related to Canada’s obligations under the Nunavut Agreement and the proposed boundary. In follow-up, letters were sent to both Eastern and Western Arctic Inuit representatives and territorial governments recognizing Canada’s treaty obligations and outlining a proposed phased approach to providing protection to Tuvaijuittuq. The letters were sent from DFO and the PCA to Nunavut Tunngavik Inc., Qikiqtani Inuit Association, the Department of Environment for the Government of Nunavut, the Inuvialuit Regional Corporation, the Inuvialuit Game Council, the Fisheries Joint Management Committee, the Department of Environment and Natural Resources with the Government of the Northwest Territories, and the Yukon government. DFO met with the Nunavut Marine Conservation Targets Steering Committee again in January 2019 to provide updates on the MPA proposal and associated policy intent.

On October 1, 2018, in response to the letters from DFO and the PCA, the Government of Nunavut sent a letter to Canada’s Prime Minister and the President of the Qikiqtani Inuit Association expressing concern over the use of a ministerial order under the Oceans Act in Tuvaijuittuq, including concerns related to due process (i.e. allowing time for consultation and assessment), the rationale for using a phased approach for protection, and the loss of access to possible resources. A Memorandum of Understanding (MOU) respecting a process to assess the feasibility and desirability for the creation and recommendation of marine protected area options within Tuvaijuittuq was subsequently reached between the Government of Canada, the Government of Nunavut and the Qikiqtani Inuit Association in March 2019, establishing a formal working relationship between the parties to explore options for the protection of Tuvaijuittuq. In May 2019, Natural Resources Canada presented a high-level overview of the resource potential in Tuvaijuittuq to a Steering Committee established under the MOU.

The MOU Steering Committee provided support to submit the interim Tuvaijuittuq MPA proposal to the Nunavut Wildlife Management Board for approval and the Nunavut Planning Commission for a conformity check with the North Baffin Land Use Plan as is required under the Nunavut Agreement. Official MOU party positions on the proposal were obtained to inform the final decision on the establishment of the MPA. On June 10, 2019, the Government of Nunavut wrote to DFO advising that they do not oppose the protection of Tuvaijuittuq through ministerial order under the Oceans Act, provided that work under the MOU to develop a recommendation report on the desirability and feasibility of establishing long-term protection measures in Tuvaijuittuq is completed. The Qikiqtani Inuit Association wrote to DFO, the PCA and the Government of Nunavut on June 14, 2019, in support of the interim protection of Tuvaijuittuq subject to the ratification of key agreements, including the Inuit Impact and Benefit Agreement for Tallurutiup Imanga National Marine Conservation Area.

Nunavut and the Nunavut Settlement Area

Community engagement

In April 2018, DFO officials travelled to the communities of Resolute Bay and Grise Fiord to meet with Hunters and Trappers Organization (HTO) boards to provide updates on potential areas of interest in Canada’s Arctic, to gauge community support for the establishment of MPAs in the High Arctic marine environment, and to consult on the scientific field work proposed by the DFO-led Multidisciplinary Arctic Program. The Grise Fiord HTO board indicated that they required more information regarding the High Arctic marine environment before they could support protection in that region. The Resolute Bay HTO board supported protection measures in the area but expressed concern regarding the Government of Canada’s capacity for enforcement.

Following the Nunavut Wildlife Management Board’s recommendation received on January 2, 2019, to further engage nearby communities and co-management partners, DFO, the PCA, and the Government of Nunavut undertook a tour to Arctic Bay, Resolute and Grise Fiord in late February 2019. Meetings were held with the HTOs and communities to provide information and seek feedback on potential protection options for the proposed MPA. Local Qikiqtani Inuit Association representatives for each community attended the HTO meetings and provided valuable feedback. The HTOs and communities of Arctic Bay, Resolute and Grise Fiord were supportive of long-term protection measures as well as the phased approach for protection.

On June 14, 2019, the communities of Arctic Bay, Resolute, Grise Fiord, Clyde River and Pond Inlet wrote to DFO, the PCA, the Government of Nunavut, and the Qikiqtani Inuit Association expressing support for the interim protection of Tuvaijuittuq. The letters also spoke to the importance of their communities being further engaged in the feasibility assessment of establishing long-term protection measures.

Broader stakeholder engagement

In September 2018, the Tuvaijuittuq MPA proposal was sent to a broader stakeholder distribution list, which included the Nunavut Inuit Wildlife Secretariat, the Nunavut Fisheries Association, the Nunavut Wildlife Management Board/Nunavut Marine Council, the Nunavut Impact Review Board, the Qikiqtaaluk Wildlife Board, the Inuit Circumpolar Council Canada, the Qikiqtaaluk Corporation, the Resolute Bay, Grise Fiord and Arctic Bay HTOs, and the Ecology Action Centre. The Nunavut Wildlife Management Board recommended that DFO seek formal advice from the Board as per the Nunavut Agreement. DFO did this by presenting to the Board and seeking advice in December 2018.

Co-management Board engagement

In December 2018, DFO formally presented the proposal to the Nunavut Wildlife Management Board and requested advice. DFO received a letter from the Nunavut Wildlife Management Board on January 2, 2019, indicating that additional engagement was required prior to providing official advice. In February 2019, following the Nunavut Wildlife Management Board’s recommendation, DFO, the PCA and the Government of Nunavut visited the communities of Arctic Bay, Resolute Bay and Grise Fiord to update the communities with respect to research programs and seek feedback on potential protection options for the proposed MPA. Local Qikiqtani Inuit Association representatives for each community attended the HTO meetings and provided valuable feedback. Both the HTOs and communities of Arctic Bay, Resolute Bay and Grise Fiord were supportive of long-term protection measures, as well as a phased approach for protection. The Government of Canada sought approval of the boundary for the proposed Tuvaijuittuq MPA from the Nunavut Wildlife Management Board on June 19, 2019. On July 4, 2019, the Nunavut Wildlife Management Board wrote to the Minister of Fisheries, Oceans and the Canadian Coast Guard approving the proposal to protect Tuvaijuittuq through ministerial order.

On April 5, 2019, DFO met with the Nunavut Marine Council Working Group, which has representation from the Nunavut Planning Commission, the Nunavut Wildlife Management Board, the Nunavut Water Board and the Nunavut Impact Review Board. The representative from the Nunavut Impact Review Board was unable to attend. An overview of the proposal was provided and the Nunavut Marine Council representatives indicated that the update was appreciated and advised on the role of their respective organizations in the process.

Northwest Territories and the Inuvialuit Settlement Region

As the MPA is adjacent to the Inuvialuit Settlement Region, engagement with the Government of the Northwest Territories and the Inuvialuit Regional Corporation was undertaken. In addition to letters being sent from DFO and the PCA, key partners in the Northwest Territories and the Inuvialuit Settlement Region have primarily been engaged through the Beaufort Sea Partnership Regional Coordination Committee, which is composed of the Inuvialuit Regional Corporation, the Inuvialuit Game Council, the Fisheries Joint Management Committee, the PCA, Crown-Indigenous Relations and Northern Affairs Canada, Environment and Climate Change Canada, Natural Resources Canada, Transport Canada, the Government of the Northwest Territories, and the Yukon government.

In early September 2018, a proposed phased approach to protecting the High Arctic Basin was presented to the Beaufort Sea Partnership Regional Coordinating Committee and the Inuvialuit Game Council at regular meetings. The Inuvialuit Regional Corporation indicated that it will not support the establishment of new MPAs in the Inuvialuit Settlement Region until Inuvialuit concerns with the current MPA funding model and the 2016 Arctic oil and gas moratorium are addressed. The proposal yielded no comments or questions from participants.

Also in September 2018, the proposed approach was presented to the Fisheries Joint Management Committee at a face-to-face meeting. The Fisheries Joint Management Committee requested continued engagement on the MPA proposal.

DFO met with the Beaufort Sea Partnership Regional Coordinating Committee again in March 2019 to provide updates on the Tuvaijuittuq MPA proposal and associated policy intent. Participants in the meeting included the Inuvialuit Regional Corporation, the Inuvialuit Game Council, the Fisheries Joint Management Committee, the PCA, Crown-Indigenous Relations and Northern Affairs Canada, the Government of the Northwest Territories, the Yukon government, Environment and Climate Change Canada, Natural Resources Canada, and Transport Canada. There were no comments or questions.

In April 2019, in light of recent negotiations between the Government of Canada, the Government of the Northwest Territories, the Yukon government, and the Inuvialuit Regional Corporation on future offshore oil and gas activity in the Beaufort Sea, the Government of the Northwest Territories expressed concerns with the boundary of the study area within the Canada–Nunavut–Qikiqtani Inuit Association MOU on protecting Tuvaijuittuq. While the Government of Canada has the authority under the Oceans Act to designate a marine protected area in any area of the sea that forms part of the internal waters of Canada, the territorial sea of Canada, or the exclusive economic zone of Canada, the proposed boundary of the Tuvaijuittuq MPA was modified to remove the area that caused concern, in the spirit of collaboration.

Other federal departments and agencies

From July 2018 to May 2019, information on the Tuvaijuittuq MPA proposal was provided by DFO and the PCA through regular interdepartmental calls and by email to other key federal partners, including the Department of National Defence, Global Affairs Canada, Crown-Indigenous and Northern Affairs Canada, Environment and Climate Change Canada, Transport Canada, the Canadian Coast Guard, Natural Resources Canada, and the National Energy Board. Discussion and correspondence described the proposed approach for protection in the Tuvaijuittuq MPA and requested feedback on any known, ongoing and authorized activities in the MPA. The Department of National Defence identified ongoing activities in the area, related to defence research and defence activities in support of the Canadian Forces Station Alert. No further ongoing or authorized activities were identified in Tuvaijuittuq.

Non-governmental organizations and industry

World Wildlife Fund-Canada (WWF-Canada) has been calling for the protection of the Last Ice Area (which includes the Tuvaijuittuq MPA) for many years. WWF-Canada verbally communicated that they will support protection in this area. Oceans North has also verbally communicated their support for protection in this area.

In November 2018, an information package on the proposed phased approach to protection for Tuvaijuittuq was sent to the shipping industry through the Canadian Marine Advisory Council distribution list, which includes hundreds of stakeholders. No concerns were expressed by any member of the Council.

The Nunavut Fisheries Association communicated their support for the MPA proposal as well as for additional research in the area. They indicated that protecting the area will have no impact on the fishing industry.

Arctic Security Consultants specializes in providing independent commercial and policy advice on the Canadian Arctic with a focus on security and sovereignty. They expressed full support for the MPA proposal.

Modern treaty obligations and Indigenous engagement and consultation

As per the 2015 Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment was conducted for this proposal. The assessment concluded that implementation of this proposal will likely have a positive impact on the rights and interests of the Nunavut Agreement treaty partners.

While the MPA is located partially within the Nunavut Settlement Area, the MPA prohibitions will not apply to Inuit rights relating to wildlife harvesting.

Pursuant to processes required under the Nunavut Agreement and the Nunavut Planning and Project Assessment Act, the proposal was submitted to the Nunavut Wildlife Management Board and the Nunavut Planning Commissions for their consideration.

In December 2018, DFO sought advice on the proposal and received a letter from the Nunavut Wildlife Management Board on January 2, 2019, indicating that additional engagement was required prior to providing official advice. DFO undertook this further engagement and formally obtained boundary approval of the Tuvaijuittuq MPA from the Nunavut Wildlife Management Board by letter dated July 4, 2019. On May 16, 2019, DFO submitted a Tuvaijuittuq MPA proposal to the Nunavut Planning Commission for a conformity determination with the North Baffin Land Use Plan. On June 25, 2019, the Nunavut Planning Commission advised that the issuance of the ministerial order was not subject to its approval, but recognized that the Government of Canada would need to return to the Nunavut Planning Commission for a conformity determination and screening of any proposed, long-term protection measures in Tuvaijuittuq.

The establishment of a conservation area in the Nunavut Settlement Area triggers obligations under the Nunavut Agreement to negotiate an Inuit Impact and Benefit Agreement (IIBA) in certain circumstances prior to the designation of the conservation area. An IIBA, dated August 1, 2019, was signed by the Government of Canada and the Qikiqtani Inuit Association for the Tallurutiup Imanga National Marine Conservation Area located in Canada’s High Arctic. The agreement also covers the IIBA requirements for any future protected areas established within Tuvaijuittuq during the duration of the IIBA, including the Tuvaijuittuq MPA by ministerial order. As the MPA is adjacent to the Inuvialuit Settlement Region, there were engagement and ongoing updates with Inuvialuit organizations, including the Inuvialuit Regional Corporation, the Fisheries Joint Management Committee and the Inuvialuit Game Council.

The MPA designation supports strong Arctic peoples and communities through the protection of the environment and preservation of the biodiversity of this unique region. DFO will continue with its engagement with the Nunavut Agreement treaty partners on policy and program changes as part of the implementation of this regulatory initiative.

Canada Gazette, Part I, Summary

The proposed ministerial order for the Tuvaijuittuq MPA was published in the Canada Gazette, Part I, on June 22, 2019, for a 30-day public comment period. Partners and stakeholders who were engaged in the development of the MPA, including Inuit organizations and northern governments, federal agencies, industry, and non-government organizations, were provided written notification of the publication through email correspondence. No comments were received during the public comment period.

Instrument choice

Climate change is resulting in a rapid reduction of sea ice in the Arctic. Tuvaijuittuq is a globally unique area that is expected to retain multi-year sea ice in the future and provide critically important habitat to ice-dependent species. Climate change is also opening the Arctic to an increase in marine activities, leaving this area particularly vulnerable. Should Arctic activities, such as ice-breaking or oil and gas exploration, take place in the area in the next few years, the impacts to this ecologically significant area would be devastating and irreversible.

The Oceans Act provides the Minister of Fisheries, Oceans and the Canadian Coast Guard the authority, by way of a ministerial order, to freeze the footprint of human activities in an area for a period of up to five years.

During this time, efforts will be made to better understand the area and evaluate and consult on the feasibility of long-term protection options. The DFO Multidisciplinary Arctic Program, currently underway in parts of the Tuvaijuittuq MPA, aims to study the multi-year ice ecosystem in Canada’s High Arctic. This mission will provide the first ecological assessment of the northern Canadian Archipelago. This knowledge is essential to understand the structure, function and role of the sea ice associated ecosystem in the Arctic Ocean. The information being collected includes climatic and oceanographic data as well as ice ecosystem measurements that will help inform Arctic and climate change science. The team will also evaluate the presence and distribution of marine mammals and their habitat usage offshore of Ellesmere Island. In addition to science, Inuit Qaujimajatuqangit will be collected and used in the overall assessment of the area.

Freezing the footprint of human activities in the area for up to five years under the ministerial order will also allow the Government of Canada, the Qikiqtani Inuit Association and the Government of Nunavut to continue other important research and additional consultations with key Inuit partners and stakeholders on the desirability and feasibility of long-term protection measures for the area.

In light of potential increases in the Arctic Ocean’s shipping and exploration pressures, a ministerial order provides interim protection while DFO continues to collect information and consults with partners and stakeholders.

Regulatory analysis

Costs and benefits

The cost-benefit analysis (CBA) of the ministerial order considered the impacts on all stakeholders and Indigenous peoples primarily qualitatively. Federal government costs were evaluated quantitatively. The time horizon used for evaluating the impacts is five years and the costs are estimated in present value terms with a discount rate of 7%.

Due to a lack of information for the region, the potential benefits that may accrue from the establishment of the MPA could not be assessed quantitatively. However, benefits are anticipated via the prohibition of new activities (i.e. freezing the footprint) within the area until decisions for long-term protection are made.

The establishment of an MPA may provide some level of benefits for the surrounding communities and Canadians at large. The anticipated benefits include the following:

• Research: The MPA will support and encourage ongoing research initiatives in the area. The new information will help to better understand the area, provide a baseline for marine research and monitoring, and increase education and public knowledge about the importance of this area.
• Ecosystem services: It is believed that Tuvaijuittuq provides invaluable direct and indirect services to society through the maintenance of ecosystems and biodiversity. The Tuvaijuittuq area is expected to support long-term ecosystem health in High Arctic marine waters by providing refuge for under-ice communities and ice-dependent species. This protection will become especially important in the face of large-scale sea ice decline throughout the Arctic as a result of climate change. Without more knowledge of the area, it is expected that this unique environment will play a critical role in ecosystem functioning. Its role in ecosystem health and stability is likely to increase over time with projected increases in sea ice loss in the future.
• Non-use values: These values represent the value people derive from a good or a resource, independent of any use people might make of that good or resource, including the conservation of the ecosystem for future generations. This includes the benefit arising from people intrinsically valuing the existence of the ecosystem regardless of its use. The communities near the MPA and people residing elsewhere in Canada are expected to derive non-use value from the services provided by the area.

Negligible ongoing and potential activities were identified through the CBA or consultations. Moreover, as the ministerial order only covers a period of up to five years, after which decisions on longer-term management measures will be taken, additional activities are not anticipated within that time frame. As a consequence of these considerations, incremental impacts on businesses and Canadians, including Indigenous groups, are not anticipated, as outlined below:

• Based on available information, DFO harvest records, and conversations with communities (with the regional Oceans Program in 2019) for the Tuvaijuittuq MPA proposal, no subsistence harvesting activities were identified to occur in or directly adjacent to this area in recent years. No incremental impacts on the Inuit communities are likely, as rights provided for under the Nunavut Agreement are not to be affected by the making of the ministerial order.
• Natural Resources Canada has identified some offshore oil or natural gas potential in the area; however, the area has not been explored for hydrocarbons, consequently geological data is lacking, which constrains resource estimates. No offshore wells or commercial seismic surveys have been conducted in Tuvaijuittuq, in large part due to its geographic remoteness and pervasive sea ice cover. Given the lack of industry interest in the area to date and that the 2016 Arctic oil and gas moratorium is in effect in the area, no oil and gas activities are currently taking place or are planned to take place (at least until 2021, when the first science-based review of the moratorium is set to be completed) in the area in which the MPA is located. Therefore, the MPA will have no impact on the oil and gas sector for the foreseeable future, as it is unlikely that there would be activity in this time frame.
• Similarly, no impact on mining activity is anticipated, as no mineral exploration or mine production is taking place within the boundaries of the MPA.
• Vessel traffic to and through the MPA has been limited in the last decade as there are no communities in or near this area. A data analysis conducted by Maerospace (2019) concluded that satellite automatic identification system data provided no indication of vessel traffic in the area during the period of March 2017 to November 2018. Therefore, no incremental impact on shipping is likely.
• There are no known tourism or recreational activities currently taking place within the MPA. The Quttinirpaaq National Park, on the northern tip of Ellesmere Island, is adjacent to the area, but it is unlikely that over the next five-year period, tourism activities would be initiated in the MPA. Therefore, the MPA would not impact the ongoing tourism activity.
• There is some scientific research and National Defence activity within the MPA. As these activities are allowed under the MPA, there would be no incremental impacts.

With respect to federal government costs, the CBA estimated that the establishment of the Tuvaijuittuq MPA will result in an annual average cost of $2.6 million in administrative, enforcement, scientific research and monitoring activity costs. Assuming 2019 as the base year and using a discount rate of 7%, the present value of the total federal government costs are estimated to be approximately $11.23 million over the five-year period. These government costs will be funded through existing resources and no new funding will be sought.

While the CBA could not quantify the potential benefits or quantitatively compare the present values of costs and benefits, it is believed that any ecological, economic, social and cultural benefits of the MPA would likely outweigh any perceived costs.

Small business lens

The small business lens does not apply, as there are no significant increased costs to small businesses as a result of this Order. The objective of the small business lens is to reduce the disproportionate regulatory costs on small businesses without compromising the health, safety, security, and environment of Canadians.

“One-for-One” Rule

The Order does not impose any administrative burden on businesses. Therefore, the “One-for-One” Rule does not apply. The “One-for-One” Rule, which came into force on July 27, 2015, as part of the Red Tape Reduction Regulations, places strict controls on the growth of regulatory red tape on business. Under the “One-for-One” Rule, for every new regulation added that imposes an administrative burden on business, one must be removed.

Regulatory cooperation and alignment

In 2010, Canada committed to the marine conservation targets established under the United Nations Convention on Biological Diversity known as Aichi Target 11. This target commits Canada to conserving 10% of coastal and marine areas through networks of protected areas and other area-based conservation measures by 2020. This target was also included in 2015 by the United Nations General Assembly’s 2030 Agenda for Sustainable Development under Goal 14. As of April 2019, Canada has protected 8.27% of its marine areas. The establishment of the MPA contributes an additional 5.55% to Canada’s marine and coastal conservation, exceeding Canada’s 2020 conservation target. The subsequent phases of assessment and consultation anticipated following the MPA designation will help determine the feasibility of long-term protection tools (e.g. designation as a Governor in Council MPA under the Oceans Act, establishment as a national marine conservation area) for the area post-2020.

Canada’s exclusive economic zone (EEZ) is an area over which Canada exercises certain sovereign rights. Due to the ice-covered conditions of this area, Canada maintains a heightened level of environmental control over vessels. In addition, an agreement between the Government of Canada and the Government of the United States (U.S.) on Arctic cooperation applies to the MPA to facilitate navigation by icebreakers in their respective Arctic waters. The MPA does not allow domestic commercial shipping, but the Order acknowledges requirements under customary international law, the United Nations Convention on the Law of the Sea and the Canada–U.S. agreement.

The MPA also supports other government priorities, including reconciliation with Indigenous peoples, through the full implementation of land claim agreements, and contributes to the objectives of a new Arctic and Northern Policy Framework through “protecting the environment and preserving biodiversity.”

Strategic environmental assessment

This regulatory initiative fulfills targets and key priorities of the Federal Sustainable Development Strategy. It contributes to the United Nations 2020 biodiversity goals and targets for Canada with respect to healthy coasts, oceans, and healthy wildlife populations. This is accomplished through different means, including applying ecosystem-based approaches to management, ensuring that species that are secure remain secure, and developing a solid base of scientific research and analysis on climate change.

In accordance with The Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for this regulatory initiative. The Tuvaijuittuq MPA is in a very remote area, far removed from any settled communities. This area is difficult and costly to navigate because of the persistent multi-year pack ice covering the majority of the region, and consequently, very few activities occur in the area. In addition, the designation of the MPA allows current activities to continue; therefore, no GBA+ impacts are anticipated.

Implementation, compliance and enforcement, and service standards

The ministerial order will come into force upon registration.

To complement the overall direction provided by the ministerial order, an MPA management plan will be developed based on the regulations and conservation objective.

Compliance and enforcement

As the federal authority responsible for the designation and management of this MPA, DFO assumes responsibility for ensuring compliance and enforcement of this ministerial order. These activities will be carried out through DFO’s official mandate and enforcement responsibilities under the Oceans Act, the Fisheries Act, the Coastal Fisheries Protection Act and other legislation related to fisheries conservation and protection, and maritime security.

Compliance monitoring in the MPA will be accomplished through vessel traffic monitoring and detection via automatic information systems and NORDREG (the Canadian Coast Guard’s Arctic Canada Traffic System), as well as via aerial surveillance. Monitoring efforts, occurrence reporting, and approaches and strategies to achieve compliance will be outlined in a risk-based enforceable compliance plan.

Enforcement officers with enforcement powers designated by DFO, pursuant to section 39 of the Oceans Act, will enforce the ministerial order in this MPA. Every person who contravenes the ministerial order commits an offence and will be subject to the enforcement measures contemplated under section 39.6 of the Oceans Act.

Under section 39.6 of the Oceans Act, any contravention of the Order is punishable by a maximum fine of $8,000,000 for a summary conviction offence, and a maximum fine of $12,000,000 for an indictable offence. Violation of permit and licence conditions, applicable to activities in this MPA, may also result in charges under other applicable Canadian legislation, such as the Fisheries Act, the Coastal Fisheries Protection Act, the Species at Risk Act or other applicable laws or regulations.

Contacts

Joel Ingram
Division Manager
Oceans Program, Central and Arctic Region
Freshwater Institute
501 University Crescent
Winnipeg, Manitoba
R3T 2N6

Hilary Ibey
Acting Manager
National Marine Conservation Program, Operations
Oceans Management
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Email: DFO.HABMPA-BEAMPA.MPO@dfo-mpo.gc.ca