Vol. 151, No. 50 — December 16, 2017

Critical Habitat of the Northern Bottlenose Whale (Hyperoodon ampullatus) Scotian Shelf Population Order

Statutory authority

Species at Risk Act

Sponsoring department

Department of Fisheries and Oceans

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

The Northern Bottlenose Whale (Hyperoodon ampullatus), Scotian Shelf population is a small population of approximately 163 animals that occurs in deep-water areas off Nova Scotia and southeastern Newfoundland and Labrador. In November 2002, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the Northern Bottlenose Whale, Scotian Shelf population as endangered. In April 2006, the Northern Bottlenose Whale, Scotian Shelf population was listed as endangered (see footnote 1) in Part 2 of Schedule 1 to the Species at Risk Act (see footnote 2) (SARA). The status was reconfirmed by COSEWIC in May 2011.

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 the Northern Bottlenose Whale, Scotian Shelf population was identified in the Recovery Strategy for the Northern Bottlenose Whale (Hyperoodon ampullatus), Scotian Shelf population, in Atlantic Canadian Waters (2010), as amended in June 2016 (see footnote 3) (Recovery Strategy). A description of the critical habitat located within Zone 1 of the Gully Marine Protected Area was published in the Canada Gazette on August 14, 2010, pursuant to subsection 58(2) of SARA (http://www.registrelep-sararegistry.gc.ca/virtual_sara/files/g1-14433_e.pdf).

As the competent minister under SARA with respect to aquatic species other than individuals in or on federal lands administered by the Parks Canada Agency, the Minister of Fisheries and Oceans is required to ensure that the critical habitat of the Northern Bottlenose Whale, Scotian Shelf population 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 would be accomplished through the making of the Critical Habitat of the Northern Bottlenose Whale (Hyperoodon ampullatus) Scotian Shelf population Order (Order) under subsections 58(4) and (5) of SARA, which would trigger the prohibition against the destruction of any part of the species’ critical habitat as set out in subsection 58(1) of SARA. The Order affords an additional tool to protect the critical habitat of the Northern Bottlenose Whale, Scotian Shelf population and would enhance the ability of the Minister of Fisheries and Oceans to ensure that this 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 Bottlenose Whale is a marine mammal found only in the North Atlantic, primarily in offshore waters deeper than 500 m. The Northern Bottlenose Whale, Scotian Shelf population is one of two distinct populations found within Canadian waters. The other population occurs farther north in the Baffin Bay–Davis Strait–Labrador Sea area, and has been assessed as a species of special concern by COSEWIC.

Works, undertakings or activities (projects) likely to destroy the critical habitat of the Northern Bottlenose Whale, Scotian Shelf population are 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 marine animals are included in the definition of “fish” in the Fisheries Act and that serious harm to fish encompasses destruction of fish habitat, section 35 of the Fisheries Act contributes to the protection of the critical habitat of the Northern Bottlenose Whale, Scotian Shelf population. Protection is also offered in the portion of habitat which consists of the entire Zone 1 of the Gully Marine Protected Area, as depicted in Schedule 2 to the Gully Marine Protected Area Regulations. The Scotian Shelf population is most commonly observed in the Gully, Shortland, and Haldimand submarine canyons, which are located adjacent to one another. This population appears to remain in the region year-round.

The conservation of Canada’s natural aquatic ecosystems and the protection and recovery of its wild species are 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 functions such as filtering drinking water and capturing the sun’s energy, which is vital to all life.

Objectives

The recovery goal, set out in the Recovery Strategy, is to achieve a stable or increasing population of the Northern Bottlenose Whale, Scotian Shelf population and to maintain, at a minimum, its current distribution. Efforts to achieve this recovery goal are ongoing and involve a number of recovery objectives outlined in the Recovery Strategy. Current threats to the Northern Bottlenose Whale, Scotian Shelf population, as identified in the Recovery Strategy, include acoustic disturbance, entanglement in fishing gear, oil and gas activities, vessel strikes, changes to food supply, and contaminants. While there has been measurable progress towards meeting the recovery goal, objectives and performance indicators presented in the Recovery Strategy, additional information on ecology, population dynamics, distribution, and anthropogenic threats is required. Protection of critical habitat is an important component of ensuring the recovery of the Scotian Shelf population of Northern Bottlenose Whales, particularly given the small size of the population and the high proportion of individuals that concentrate year-round in the same three submarine canyons.

In accordance with section 58 of SARA, the proposed Order would, pursuant to subsections 58(4) and (5) of SARA, trigger the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Northern Bottlenose Whale, Scotian Shelf population.

Description

Northern Bottlenose Whales occur primarily in continental slope waters 800 to 1 500 m deep. The whales of the Scotian Shelf edge depend heavily on three locations, the large submarine canyons called the Gully, Shortland Canyon and Haldimand Canyon. The proposed Order would trigger the prohibition against the destruction of the critical habitat, including the biophysical attributes identified in the Recovery Strategy, and result in the critical habitat identified in the Recovery Strategy being legally protected.

The proposed Order would provide an additional tool that would enable the Minister of Fisheries and Oceans to ensure that the critical habitat of the Northern Bottlenose Whale, Scotian Shelf population is protected, and to prosecute persons 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 agreements on alternative measures, and seizure and forfeiture of things seized or of the proceeds of their disposition. This Order would serve to

The current practice of Fisheries and Oceans Canada (the Department) for the protection of the Northern Bottlenose Whale, Scotian Shelf population and its habitat is to direct all proponents of projects to apply for the issuance of a permit or agreement authorizing a person to affect a listed species or its critical habitat so long as certain conditions are first met. Under section 73 of SARA, the Minister of Fisheries and Oceans may enter into an agreement with a person, or issue a permit to a person, authorizing the person to engage in an activity affecting a listed aquatic species, any part of its critical habitat, or the residences of its individuals. Under subsection 73(2) of SARA, the agreement may be entered into, or the permit issued, only if the Minister is of the opinion that

  1. The activity is scientific research relating to the conservation of the species and conducted by qualified persons;
  2. The activity benefits the species or is required to enhance its chance of survival in the wild; or
  3. Affecting the species is incidental to the carrying out of the activity.

In addition, proponents of works and developments in areas where the Northern Bottlenose Whale, Scotian Shelf population is present must ensure compliance with the general SARA prohibitions on killing, harming, harassing, capturing and taking individuals of the Northern Bottlenose Whale, Scotian Shelf population (section 32 of SARA).

The Department is currently not aware of any planned or ongoing activities that would need to be mitigated beyond the requirements of existing legislative or regulatory regimes. The Department will work with Canadians on any future activities to mitigate impacts, in order to avoid destroying the critical habitat of the Northern Bottlenose Whale, Scotian Shelf population or jeopardizing the survival or recovery of the species.

“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 imposed on businesses. The Order would be implemented under existing processes.

Small business lens

The objective of the small business lens is to reduce the regulatory costs of 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 imposed on small business.

Consultation

Input into the Recovery Strategy for the Northern Bottlenose Whale, Scotian Shelf population, which includes the identification of critical habitat, was sought at two multi-stakeholder workshops held in 2007 and 2008. Workshop participants included representatives from federal government departments and agencies (Fisheries and Oceans Canada, Natural Resources Canada, Transport Canada, and the Department of National Defence), provincial government departments (Nova Scotia Department of Fisheries and Aquaculture, Nova Scotia Department of Energy), other regulators (Canada-Nova Scotia Offshore Petroleum Board), Aboriginal groups (Maritime Aboriginal Peoples Council), non-governmental organizations (World Wildlife Fund for Nature of Canada), academia (Dalhousie University), and industry (Nova Scotia Swordfishermen’s Association, ExxonMobil).

Comments received were incorporated into the proposed version of the Recovery Strategy, which was posted on the Public Registry for a 60-day public comment period beginning on October 7, 2009. The proposed Recovery Strategy indicated that protection of the critical habitat against destruction would be accomplished through a SARA critical habitat order made under subsections 58(4) and (5), which would engage the prohibition in subsection 58(1) of SARA. No opposition was received during the comment period regarding the proposed areas identified as critical habitat or the proposed use of an order.

The Gully Advisory Committee, a multi-stakeholder group formed to provide input into the management of the Gully Marine Protected Area, has been kept apprised of the recovery process for the Northern Bottlenose Whale, Scotian Shelf population since the species was listed in 2006. The Gully Advisory Committee includes representatives from federal and provincial governments, Aboriginal organizations, the fishing industry, the oil and gas industry, non-governmental organizations, and academia. The proposed Order was first presented to the group at the March 2011 meeting and was further discussed at subsequent meetings in November 2011 and November 2013.

Bilateral meetings were held with the Canada-Nova Scotia Offshore Petroleum Board in June 2012 and the Department of National Defence in July of 2012. The purpose of these meetings was to review relevant measures in a draft Northern Bottlenose Whale Action Plan and to provide general updates on recovery planning. The proposed Order was discussed at both meetings. Another bilateral meeting was held with the Canada-Nova Scotia Offshore Petroleum Board in January 2013 during which the Order was once again discussed in the context of ongoing Northern Bottlenose Whale recovery efforts.

Although the Order is expected to be met with a generally positive response from stakeholders, it could result in some opposition if economic or military interests perceive the Order as the primary cause of curtailment of their current or future activities. Such opposition is not anticipated, since the critical habitat of the Northern Bottlenose Whale, Scotian Shelf population has been identified since 2010 and the identification has not been controversial.

Rationale

The current recovery goal for the Northern Bottlenose Whale, Scotian Shelf population, as outlined in the Recovery Strategy, is to achieve a stable or increasing population and to maintain, at a minimum, current distribution. In light of the paucity of information on a secure population size, a reasonable population target is a stable or increasing population.

Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final Recovery Strategy on the Public Registry. That is, 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 or any other Act of Parliament, including agreements under section 11 of SARA. It is important to note that in order for another federal law to be used to legally protect critical habitat, it must provide an equivalent level of legal protection of critical habitat as would be afforded through subsection 58(1) of SARA, failing which, the Minister must make an order under subsections 58(4) and (5) of SARA. 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 Bottlenose Whale are already subject to other federal regulatory mechanisms, including the Fisheries Act. No additional requirements would therefore be imposed upon stakeholders as a result of the coming into force of the proposed Order.

Based upon the best evidence currently available and the application of the existing regulatory mechanisms, no additional compliance costs or administrative burden on Canadians and Canadian businesses are anticipated. Threats to the critical habitat of the Northern Bottlenose Whale, Scotian Shelf population are managed and would 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 Department, 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 to behavioural changes on the part of Canadian businesses and Canadians (including Aboriginal 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 will continue to implement SARA provisions and existing federal legislation under its jurisdiction and to advise stakeholders on an ongoing basis with regard to technical standards and specifications on activities that may contribute to the destruction of the habitat of the Northern Bottlenose Whale, Scotian Shelf population. These standards and specifications are aligned with those that would be required once the Order comes into force. If new scientific information supporting changes to the Northern Bottlenose Whale critical habitat becomes available at some point in the future, the Recovery Strategy will be updated as appropriate. The prohibition that would be triggered by the Order provides a further deterrent in addition to the existing regulatory mechanisms, and specifically safeguards the critical habitat of the Northern Bottlenose Whale, Scotian Shelf population 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 not be allowed 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, as stated above. Furthermore, the preconditions set out in subsection 73(3) of SARA must also be satisfied. This means that prior to issuing Fisheries Act authorizations that are compliant with SARA, 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) and 36(3) of the Fisheries Act are higher than maximum fines for a contravention of subsection 58(1) of SARA. Any person planning to undertake an activity within the critical habitat of the Northern Bottlenose Whale 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.

Contact

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

PROPOSED REGULATORY TEXT

Notice is given that the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act (see footnote a), proposes to make the annexed Critical Habitat of the Northern Bottlenose Whale (Hyperoodon ampullatus) Scotian Shelf Population Order.

Interested persons may make representations concerning the proposed Order within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Julie Stewart, Director, Species at Risk Program, Department of Fisheries and Oceans, 200 Kent St., Ottawa, Ontario K1A 0E6 (fax: 613-990-4810; email: SARA_LEP@dfo-mpo.gc.ca).

Ottawa, November 30, 2017

Dominic LeBlanc
Minister of Fisheries and Oceans

Critical Habitat of the Northern Bottlenose Whale (Hyperoodon ampullatus) Scotian Shelf Population Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Northern Bottlenose Whale (Hyperoodon ampullatus) Scotian Shelf population — which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry — other than the portion of that critical habitat that is in a place referred to in subsection 58(2) of that Act, more specifically, in Zone 1 of the Gully Marine Protected Area as depicted in Schedule 2 to the Gully Marine Protected Area Regulations.

Coming into Force

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

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