Critical Habitat of the Paxton Lake Benthic Threespine Stickleback (Gasterosteus aculeatus) Order: SOR/2020-25

Canada Gazette, Part II, Volume 154, Number 5

Registration

SOR/2020-25 February 17, 2020

SPECIES AT RISK ACT

Whereas the Paxton Lake Benthic Threespine Stickleback (Gasterosteus aculeatus) is a wildlife species that is listed as an endangered species in Part 2 of Schedule 1 to the Species at Risk Act footnote a;

Whereas the recovery strategy 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) footnote b of that Act;

And whereas the Minister of Fisheries and Oceans is of the opinion that the annexed Order would affect an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species and, pursuant to subsection 58(8) of that Act, has consulted the wildlife management board in question with respect to the Order;

Therefore, the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act footnote a, makes the annexed Critical Habitat of the Paxton Lake Benthic Threespine Stickleback (Gasterosteus aculeatus) Order.

Ottawa, February 13, 2020

Bernadette Jordan
Minister of Fisheries and Oceans

Critical Habitat of the Paxton Lake Benthic Threespine Stickleback (Gasterosteus aculeatus) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Paxton Lake Benthic Threespine Stickleback (Gasterosteus aculeatus), which is identified in the recovery strategy 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 orders.)

Issues

The Paxton Lake Benthic Threespine Stickleback, Paxton Lake Limnetic Threespine Stickleback, Vananda Creek Benthic Threespine Stickleback, and Vananda Creek Limnetic Threespine Stickleback (Gasterosteus aculeatus; hereafter referred to as the Paxton Lake and Vananda Creek Stickleback Species Pairs) are four species of small freshwater fish found only within the Paxton Lake and Vananda Creek watersheds on Texada Island in southwestern British Columbia.

In June 2003, the Paxton Lake and Vananda Creek Stickleback Species Pairs were listed as “endangered species” footnote 1 under the Species at Risk Act footnote 2 (SARA). The critical habitat footnote 3 of these species was identified in the final amended Recovery Strategy for Paxton Lake, Enos Lake,4 and Vananda Creek Stickleback Species Pairs (Gasterosteus aculeatus) in Canada (the amended Recovery Strategy), which was posted in the Species at Risk Public Registry (the Public Registry) on August 21, 2019. footnote 4

As competent minister under SARA, the Minister of Fisheries and Oceans (the Minister) is required to ensure that the critical habitat of the endangered Paxton Lake and Vananda Creek Stickleback Species Pairs is legally protected by provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11, or by the application of subsection 58(1) of SARA.

Background

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

Habitat protection under SARA

When a wildlife species is listed as endangered, threatened or extirpated in Schedule 1 of SARA, a recovery strategy, followed by one or more action plans, must be prepared by the competent minister(s) and included in the Public Registry. The recovery strategy or action plan must include, to the extent possible, an identification of the species’ critical habitat (i.e. the habitat necessary for a listed wildlife species’ recovery or survival) based on the best available information.

Under SARA, critical habitat must be legally protected within 180 days after the posting in the Public Registry of the final recovery strategy or action plan that identifies that critical habitat. That is, critical habitat that is not in a place referred to in subsection 58(2) of SARA footnote 5 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.

Paxton Lake and Vananda Creek Stickleback Species Pairs

The Paxton Lake and Vananda Creek Stickleback Species Pairs each consist of a “limnetic” footnote 6 species adapted for a zooplankton-consuming lifestyle in the pelagic zone (in the water column), and a bottom-feeding “benthic” footnote 7 species adapted to prey on benthic invertebrates in the littoral zone (nearshore). The limnetic and benthic species overlap in range but do not usually interbreed and are morphologically and genetically distinct. The Paxton Lake Stickleback Species Pair is restricted to a single lake (Paxton Lake) on Texada Island, while the Vananda Creek Stickleback Species Pair is found in Spectacle, Priest and Emily lakes, and their interconnecting marshes and streams in the Vananda Creek watershed, on Texada Island. The endangered status of these Stickleback species pairs is largely a reflection of their limited geographic range and natural rarity; expert opinion suggests current population sizes are believed to approximate historical sizes.

In May 2000, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the status of the Paxton Lake and Vananda Creek Stickleback Species Pairs and classified both species pairs as endangered. COSEWIC reassessed the species pairs in April 2010 and confirmed their classification as endangered.

In June 2003, the Paxton Lake Benthic Threespine Stickleback, Paxton Lake Limnetic Threespine Stickleback, Vananda Creek Benthic Threespine Stickleback, and Vananda Creek Limnetic Threespine Stickleback were listed as endangered species on the List of Wildlife Species at Risk (Schedule 1) of SARA.

As the Paxton Lake and Vananda Creek Stickleback Species Pairs are listed as endangered species in Schedule 1 of SARA, the prohibitions stated in sections 32 and 33 of SARA automatically apply to them:

In August 2019, the final amended Recovery Strategy for Paxton Lake, Enos Lake, and Vananda Creek Stickleback Species Pairs (Gasterosteus aculeatus) in Canada was posted in the Public Registry. This amended Recovery Strategy identifies the critical habitat necessary to support the recovery of the Paxton Lake and Vananda Creek Stickleback Species Pairs.

Objective

The objective of the critical habitat orders for the Paxton Lake and Vananda Creek Stickleback Species Pairs (the orders) is to trigger the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of those species that is identified in the amended Recovery Strategy for these species.

Description

Critical habitat for the Paxton Lake and Vananda Creek Stickleback Species Pairs has been identified as the entirety of Paxton, Spectacle, Priest and Emily lakes (each with a 15 m riparian footnote 8 width surrounding their wetted perimeters), as well as the stream and marsh between Emily and Priest lakes, and the shallow marsh between Spectacle and Priest lakes (each with a 30 m riparian width surrounding their wetted perimeters). The orders trigger the application of the prohibition set out in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, including the biophysical features and attributes identified in the amended Recovery Strategy, and results in the critical habitat of the Paxton Lake and Vananda Creek Stickleback Species Pairs being legally protected.

If new information becomes available to support changing the critical habitat of the Paxton Lake and Vananda Creek Stickleback Species Pairs, the amended Recovery Strategy will be updated as appropriate (taking into account feedback from public consultation) and these orders will apply to the revised critical habitat once included in a final further amended recovery strategy published in the Public Registry.

The orders afford the Minister of Fisheries and Oceans an additional tool to ensure that the critical habitat of the Paxton Lake and Vananda Creek Stickleback Species Pairs is legally protected against destruction. They enhance the protections already afforded to the species’ habitat under existing legislation, in particular subsection 35(1) of the Fisheries Act, which prohibits the harmful alteration, disruption or destruction of fish habitat.

Regulatory development

Consultation

Critical habitat for the Paxton Lake and Vananda Creek Stickleback Species Pairs was initially identified in the draft (2014) and proposed (2016) versions of the Action Plan for the Paxton Lake and Vananda Creek Stickleback Species Pairs (Gasterosteus aculeatus) in Canada (the Action Plan), and was subsequently moved to the amended Recovery Strategy. Therefore, early consultations on critical habitat identification and legal protection took place during the draft and proposed action plan development phase.

The draft Action Plan was consulted upon regionally from August 19 to September 17, 2014. This document included the critical habitat for the Paxton Lake and Vananda Creek Stickleback Species Pairs and indicated that legal protection of the critical habitat was anticipated and would be accomplished through a SARA critical habitat order made under subsections 58(4) and (5), which would trigger the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat. Input on the draft Action Plan was solicited online via Fisheries and Oceans Canada’s Pacific Region consultations web page, and email notifications were sent to 57 stakeholders, including industry, academia, non-governmental organizations, and government representatives (provincial and federal). Direct mail-outs, faxes and emails were sent to two Indigenous organizations whose claimed traditional territories overlap with the Paxton Lake and Vananda Creek watersheds, and letters were sent to 352 private landowners notifying them of the consultation. The general public was notified via social media and newspaper advertisements. Comments were received from seven respondents; no comments were received from Indigenous groups or Indigenous group organizations. Primary topics discussed included existing protection mechanisms, additional threats, critical habitat identification (scientific rationale) and protection (implications for landowners and natural resource management), additional activities likely to destroy critical habitat, socio-economic costs, and the importance of stewardship. All feedback received during the consultation period was considered in creating the 2016 proposed Action Plan, which was posted in the Species at Risk Public Registry for a public comment period between September 9 and November 8, 2016. No comments were received during the public comment period and no opposition was received regarding the proposed critical habitat identified or the proposed use of SARA critical habitat orders.

Subsequent to the publication of the 2016 proposed Action Plan, the identification of critical habitat was removed from the Action Plan and added to the draft amended Recovery Strategy, which then underwent a 30-day targeted external review from May 4 to June 3, 2017. The draft amended Recovery Strategy was emailed to 31 stakeholders, including industry, academia, non-governmental organizations, and government representatives (provincial and federal). One set of comments from academia was received and no opposition was received regarding the proposed critical habitat identified or the proposed use of SARA critical habitat orders. The proposed amended Recovery Strategy was posted in the Species at Risk Public Registry for a 60-day public comment period from October 17 to December 16, 2018. No comments were received during the public comment period, and no opposition was received regarding the proposed critical habitat identified or the proposed use of SARA critical habitat orders. The final amended Recovery Strategy was posted in the Species at Risk Public Registry on August 21, 2019.

Under subsection 58(8) of SARA, consultation with a wildlife management board was required, as there are areas in respect of which a wildlife management board is authorized by a land claims agreement (the Tla’amin Final Agreement) to perform functions with regard to wildlife species that will be affected by the orders. As part of the targeted external review of the draft amended Recovery Strategy, the document was emailed on May 4, 2017, to the Tla’amin wildlife management board and six Indigenous groups along with a letter that outlined the external review process and offered additional meetings with Fisheries and Oceans Canada. Emails providing advanced notification of the proposed amended Recovery Strategy comment period were sent to the pertinent wildlife management board on October 9, 2018. No comments were received from the wildlife management board or Indigenous organizations during the targeted external review of the draft amended Recovery Strategy, or the subsequent public comment period for the proposed amended Recovery Strategy.

Fisheries and Oceans Canada has engaged with the Province of British Columbia about the nature and implications of critical habitat orders. The Province has indicated support provided an evaluation of socio-economic implications and consultation with directly affected parties are conducted prior to the making of a critical habitat order. Consultation with the affected parties was completed during the development of the amended Recovery Strategy, as described above, and the socio-economic impacts were determined to be low by Fisheries and Oceans Canada.

Overall, no significant concerns were raised during the consultation period with respect to the critical habitat identified for the Paxton Lake and Vananda Creek Stickleback Species Pairs or to plans to protect the critical habitat through the making of critical habitat orders.

Modern treaty obligations and Indigenous engagement and consultation

The critical habitat of the Paxton Lake and Vananda Creek Stickleback Species Pairs does not occur on reserves or any other lands that are set apart for the use and benefit of a band under the Indian Act.

An assessment of modern treaty implications was completed. The assessment concluded that implementation of this proposal will likely not have an impact on the rights, interests and/or self-government provisions of treaty partners.

There are areas in respect of which a wildlife management board is authorized by a land claims agreement (the Tla’amin Final Agreement) to perform functions with regard to wildlife species that will be affected by the orders. The pertinent wildlife management board was consulted, as required under SARA subsection 58(8).

Refer to the “Consultation” section above for information on the Indigenous engagement completed.

Instrument choice

Under SARA, all of a species’ critical habitat must be protected either by the application of the prohibition against the destruction of any part of the critical habitat in subsection 58(1), or by provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11. Courts have concluded that other federal laws must provide an equal level of legal protection for critical habitat as would be engaged through subsections 58(1) and (4), failing which, the Minister must make a critical habitat order, thereby triggering the application of subsection 58(1) of SARA. They have also concluded that subsection 35(1) of the Fisheries Act does not legally protect critical habitat, as subsection 35(2) grants the Minister complete discretion to authorize the destruction of fish habitat. As a result, in most cases, the making by the Minister of an order to legally protect critical habitat may be necessary.

Regulatory analysis

Benefits and costs

Considering the existing federal regulatory mechanisms in place, the incremental costs and benefits resulting from the making of the orders are anticipated to be negligible. No incremental costs to Canadian businesses and Canadians are anticipated. However, the federal government may incur some negligible costs as it may 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 Fisheries and Oceans Canada, in combination with the continuing outreach activities undertaken as part of the critical habitat identification process, may also contribute to behavioural changes on the part of Canadian businesses and Canadians (including Indigenous groups) that could result in incremental benefits to the species, their 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.

Small business lens

The small business lens was applied and it was determined that the orders do not impose any regulatory costs on small businesses.

One-for-one rule

The one-for-one rule does not apply to the orders, as there are no anticipated additional administrative costs imposed on businesses. The orders will be implemented under existing processes.

Regulatory cooperation and alignment

SARA is a key tool for the conservation and protection of Canada’s biological diversity and fulfills a commitment made under the United Nations’ Convention on Biological Diversity. Therefore, the orders will respect this international agreement in furthering the protection of significant habitats in Canada to conserve wildlife species at risk.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan to identify the potential for important environmental effects was conducted. It was concluded that a strategic environmental assessment was not required for the orders because they are not expected to have an important environmental effect on their own considering the existing federal regulatory mechanisms in place.

However, it is expected that when all planned recovery activities and legal protections are considered together, these will have a positive environmental impact and contribute to the achievement of the Federal Sustainable Development Strategy goal of healthy wildlife populations.

Gender-based analysis plus

A preliminary consideration of gender-based analysis plus (GBA+) factors did not reveal potential differences in impact on groups or subgroups of individuals.

Implementation, compliance and enforcement, and service standards

Implementation

Threats to critical habitat are managed and will continue to be managed through existing measures under federal legislation.

In cases where it is not possible to avoid the destruction of a part of the critical habitat of the Paxton Lake and Vananda Creek Stickleback Species Pairs, the proponents of the works, undertakings or activities may apply to the Minister of Fisheries and Oceans for a permit under section 73 of SARA, or an authorization under section 34.4 or 35 of the Fisheries Act that is compliant with section 74 of SARA.

Under section 73 of SARA, the Minister 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, provided, among other things, the Minister forms the opinion that the activity is for a purpose set out in subsection 73(2) of SARA, and the pre-conditions set out in subsection 73(3) of SARA are met.

Fisheries and Oceans Canada also provides a single window for proponents to apply for an authorization under paragraph 34.4(2)(b) or 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. 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 is required to form the opinion that the activity is for a purpose set out in subsection 73(2) of SARA. Furthermore, among other things, the pre-conditions set out in subsection 73(3) of SARA must also be met.

A SARA permit or Fisheries Act authorization, if approved, would contain the terms and conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.

Compliance and enforcement

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.

Any person planning on undertaking an activity within the critical habitat of the Paxton Lake and Vananda Creek Stickleback Species Pairs should inform themself 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

Kate Ladell
Director
Species at Risk Operations
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Email: SARA_LEP@dfo-mpo.gc.ca