Canada Gazette, Part I, Volume 148, Number 16: Order Amending Schedule 1 to the Species at Risk Act

April 19, 2014

Statutory authority

Species at Risk Act

Sponsoring department

Department of the Environment

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

The Humpback Whale (North Pacific population) has increased in number significantly since it was first listed as threatened under Canada's Species at Risk Act (SARA) in 2005. A 2011 assessment by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), an independent scientific advisory body whose role under SARA is, among other things, to classify species as extinct, extirpated, endangered, threatened or species of special concern, has indicated that the Humpback Whale (North Pacific population) growth rates have increased, leading to an improved abundance of the species. COSEWIC has determined that the Humpback Whale (North Pacific population) has reached a point where the species can be reclassified as a species of special concern.

Given the reassessment by COSEWIC, and based on the considerations discussed below, the Minister of the Environment, on the advice of the Minister of Fisheries and Oceans, has recommended to the Governor in Council to make a regulatory amendment to Schedule 1 of SARA in order to change the status of the species from “threatened” to “species of special concern.”

Background

Species At Risk Act and recommendations for listing aquatic species

SARA was enacted in 2002. It provides the federal government with the legislative foundation to help prevent wildlife species from becoming extinct and to implement the actions necessary for their recovery.

Under SARA, the Minister of Fisheries and Oceans is the “competent minister” for aquatic species, except with respect to individuals in or on federal lands administered by the Parks Canada Agency. North Pacific Humpback Whales also enter the Gwaii Haanas National Marine Conservation Area Reserve and the Pacific Rim National Park Reserve of Canada. These areas are administered by the Parks Canada Agency; therefore, the Minister of the Environment is also a “competent minister” under SARA for Humpback Whales.

In providing advice to the Minister of the Environment in relation to making a listing recommendation to the Governor in Council for an aquatic species, the Minister of Fisheries and Oceans considers the following, as appropriate:

SARA is a key tool in the ongoing work to protect species at risk. By providing for the protection and recovery of species at risk, SARA is one of the most important tools in the conservation of Canada's biological diversity. Schedule 1 of SARA is the official List of Wildlife Species at Risk. SARA also complements other laws and programs of Canada's federal, provincial, municipal, and territorial governments, and supports the efforts of conservation organizations and other partners working to protect Canadian wildlife and habitat. Furthermore, the conservation of species at risk is an important component of the Government of Canada's commitment to conserving biological diversity under the United Nations Convention on Biological Diversity (1992). The Government of Canada has also made a commitment to protect and recover species at risk through the Accord for the Protection of Species at Risk (1996).

COSEWIC reassessment of the Humpback Whale (North Pacific population)

COSEWIC is a body established, and granted specific duties and powers, under SARA. It is an independent group of expert scientists who, among other things, assess species to determine if they are at risk or not. SARA requires that COSEWIC reassess species at risk at least once every 10 years to confirm the species classification, reclassify the species or indicate that the species is no longer at risk, depending on whether its situation has improved or deteriorated.

In its 2003 assessment for the Humpback Whale (North Pacific population), COSEWIC mentioned that the species population had been heavily reduced by commercial whaling, which had continued almost without interruption until the Second World War. Although whaling had decreased the species population, evidence at the time showed that the population had been increasing, with numbers totalling in the low hundreds. COSEWIC concluded that the species was threatened, and the Humpback Whale (North Pacific population) was subsequently listed as threatened on Schedule 1 of SARA in 2005.

In their most recent 2011 assessment and status report, COSEWIC found that there had been no evidence of a population decline since the 1960s, which is around the time that commercial whaling ended. Although no trend data are available from 1966 to the 1990s, COSEWIC has found that the population has been increasing at about 4% per year since the early 1990s. Based on 2006 photo-identification data, the population was estimated to have increased by more than 50% over the last three generations (i.e. 64.5 years), consisting of more than 18 000 non-calf individuals.

According to COSEWIC, while the species' situation has improved tremendously over the last five decades, current numbers are still considerably smaller than the number that must have been present off the west coast of Vancouver Island before 1905. This, combined with the potential impact of residual threats, is the reason why COSEWIC has determined that the Humpback Whale (North Pacific population) is a recovering wildlife species no longer considered to be threatened but not yet clearly secure. Therefore, COSEWIC considers this wildlife species as a species of special concern.

For more information on the Humpback Whale (North Pacific population), please visit the Species at Risk Public Registry at www.sararegistry.gc.ca/species/speciesDetails_e.cfm?sid=148.

For more information on COSEWIC's most recent assessment and status report of the Humpback Whale (North Pacific population), please visit www.sararegistry.gc.ca/default.asp?lang=En&n= 09707A81-1.

Species characteristics

The Humpback Whale is one of the largest cetaceans, typically reaching lengths of 13 m for males and 14 m for females and weighing 25 to 40 tonnes. The Humpback Whale species is characterized by pleated grooves in the skin of the neck that allow the throat to expand during the intake of huge amounts of water during feeding, and the presence of a dorsal fin.

Humpback Whales are found in tropical, temperate and sub-polar waters worldwide. In Canada, Humpback Whales are found on both the east and west coasts, and belong to separate populations. The range of the Humpback Whale (North Pacific population) extends along the full length of the west coast of British Columbia to northwestern Alaska.

In Pacific waters, the range of Humpback Whales (North Pacific population) spans the inshore coastal inlets, seaward across the continental shelf and into offshore waters. They are highly migratory, moving seasonally between winter subtropical breeding areas to high latitude feeding grounds in Canada.

In Canadian waters, Humpback Whales (North Pacific population) are most frequently observed from May to October; however, they can be observed in lower numbers throughout the year. Their primary activity in Canadian waters is feeding, though some individuals may use the area as a migratory corridor.

Objectives

The proposed amendment to Schedule 1 of SARA is to reclassify the status of the Humpback Whale (North Pacific population) from threatened to a species of special concern in Schedule 1 of SARA.

The proposed amendment would

Description

This amendment to Schedule 1 of SARA would change the status of the Humpback Whale (North Pacific population) to a species of special concern from threatened.

The reclassification under Schedule 1 to a species of special concern from threatened means that the Humpback Whale (North Pacific population) would no longer be subject to the general prohibitions set out in SARA, nor would its critical habitat be required to be legally protected under SARA. However, other provisions of SARA would continue to apply. Under section 79 of SARA, every person who is required by or under an Act of Parliament to ensure that an assessment of the environmental effects of a project is conducted, and every authority who makes a determination under paragraph 67(a) or (b) of the Canadian Environmental Assessment Act, 2012 in relation to a project, must notify the competent minister if the project is likely to affect a listed species. The person must identify the adverse effects of the project on the listed species and ensure that measures are taken to avoid or lessen those effects and to monitor them. These requirements under section 79 would continue to apply to such projects that are likely to affect Humpback Whale (North Pacific population). The Fisheries Act prohibitions and its regulations, namely the Marine Mammal Regulations, would continue to apply to the species as well.

It should also be noted that, under SARA, a management plan would be prepared for the species within three years after the species' reclassification. It would include measures for the conservation of the species that the competent minister considers appropriate. It is anticipated that the management plan's conservation measures would follow the measures outlined in the final Recovery Strategy (see footnote 1); the Recovery Strategy was prepared when the Humpback Whale (North Pacific population) was listed as threatened on Schedule 1 of SARA.

Recovery and management planning is an opportunity for federal, provincial and territorial governments to work together and to stimulate cooperation and collaboration among a number of other partners — including municipalities, Aboriginal peoples and organizations, and other partners — in determining the actions necessary to support the survival or recovery of listed species.

In 2012, amendments to the Fisheries Act were passed into law. A provision prohibiting the carrying on of any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, came into force on November 25, 2013. That provision would still apply to the Humpback Whale (North Pacific population) as a species of special concern. Furthermore, the Marine Mammal Regulations under the Fisheries Act would also continue to apply to individuals of this species.

“One-for-One” Rule

The “One-for-One” Rule does not apply to the proposed amendments to reclassify the species from threatened to a species of special concern on Schedule 1 of SARA as the amendments do not introduce new or incremental administrative burden costs on business.

Small business lens

The proposed amendments to Schedule 1 of the Species at Risk Act would not impose annual nationwide costs over $1 million, nor would they have a disproportionate impact on any small businesses. As a result, the small business lens does not apply to the proposed amendments.

Consultation

Under SARA, the scientific assessment of species status by COSEWIC and the decision to add a species to Schedule 1 of SARA by the Governor in Council on the recommendation of the Minister of the Environment are two distinct processes. These two separate processes help to ensure, among other things, that scientists can work independently when assessing the biological status of wildlife species and that interested Canadians have the opportunity to be consulted in the decision-making process.

Consultation regarding potential change of status under Schedule 1

Consultations were facilitated through mail-outs, consultation workbooks, and other supporting documents which were made available under the “Consultations” section of the Fisheries and Oceans Canada Pacific Region's Web site from November 10, 2011, to January 4, 2012. Consultations were undertaken with environmental organizations, First Nations and Aboriginal groups, marine mammal environmental conservation groups, other levels of government and the public on the potential reclassification under Schedule 1 of the Humpback Whale (North Pacific population) as a species of special concern, based on the May 2011 COSEWIC reassessment.

In total, out of the 312 consultation letters that were sent out, 22 responses were received.

Five respondents (two responses from provincial ministries in British Columbia, one response from the tourism industry, one response from an environmental non-governmental organization, one response from an unknown source) were in favour of reclassifying the Humpback Whale (North Pacific population) as a species of special concern under Schedule 1. One of the reasons cited by these respondents was the positive trend in the recovery of the species. One respondent indicated that a revised listing status must not be used as a rationale to decrease efforts to manage human activities and that the management plan should be developed to proactively manage impacts to the species.

Thirteen respondents (six responses from environmental non-governmental organizations, three responses from academic institutions, two responses from the tourism industry, one response from a First Nations organization, and one response from an unknown source) were not in favour of reclassifying the Humpback Whale (North Pacific population) as a species of special concern under Schedule 1. The general concern was that the prohibitions were a deterrent against industry harming the individuals. Without the prohibitions, it was argued, that deterrence would no longer be present. Some of the respondents indicated that the reclassification of the species could lead to increased activities in the waters along the British Columbia coast. These activities could result in increased tanker traffic, entanglements, and hazardous petroleum product spills. Other respondents cited that more research was needed to better understand the diet needs of the species, its genetic and population structure, the impacts of vessel interactions, and the impacts of ocean noise before reclassification under Schedule 1 should be considered.

Four respondents (two responses from academic institutions, one response from a First Nations organization, one response from an unknown source) were undecided with respect to the reclassification. Reasons for being undecided included insufficient information available to discuss potential impacts of reclassification under Schedule 1, insufficient information available on the impacts of debris from Japan's tsunami, and wanting mitigation measures to continue to reduce threats to the species' population.

The majority of responses were against changing the classification of the species under Schedule 1 to a species of special concern. Fisheries and Oceans Canada responded to these comments by reiterating that the upward trend of growth rates and increased abundance are not expected to be significantly affected by the non-application of SARA's general prohibitions or requirement to legally protect critical habitat. The Department also expressed to stakeholders that the Fisheries Act and the Marine Mammal Regulations would continue to apply to the Humpback Whale (North Pacific population), and that a management plan, which would include measures for the conservation of the species, would still need to be developed.

The Province of British Columbia has indicated support for listing the Humpback Whale (North Pacific population) as a species of special concern.

In January of 2012, the Minister of the Environment recommended that the Governor in Council refer the assessment of the Humpback Whale (North Pacific population) back to COSEWIC for further information or consideration. The reason for this decision was that, in the course of consultations, a number of concerns were raised with regard to the structure of the population (or “designatable unit” or “DU”) in Canada. Some species experts expressed concerns that key data concerning the structure of the DU was not considered by COSEWIC. According to these species experts, that data would justify the identification of two DUs in Canada. In March 2013, the decision by the Governor in Council to refer the matter back to COSEWIC was formalized in the Canada Gazette, Part II. Fisheries and Oceans Canada also sent rationale and supporting documentation to COSEWIC.

COSEWIC review of referral

The 2011 COSEWIC assessment and status report did not provide a detailed assessment of the evidence for or against the division of the existing single DU for the North Pacific Humpback Whale, nor did they elaborate on why existing evidence is insufficient to justify more than one DU.

In response to the Governor in Council referring the 2011 assessment back to COSEWIC, the Chair of that body asked the Marine Mammals Specialist Subcommittee to consider the evidence provided to COSEWIC. The Subcommittee determined that there was no clear evidence to support the Humpback Whale (North Pacific population) being split into two DUs. According to the Subcommittee, “the Humpback Whale population off the Canadian west coast does not meet any of the COSEWIC guidelines used to recognize multiple DUs.”

COSEWIC met between November 23 and 29, 2013, and reviewed the information provided by Fisheries and Oceans Canada and the recommendation from the COSEWIC Marine Mammal Specialist Subcommittee.

The Minister of the Environment received a letter from the Chair of COSEWIC on December 17, 2013, in response to the referral. The letter agreed with the Subcommittee's findings that there was currently no clear evidence to support the division of the Humpback Whale population off Canada's Pacific coast into two DUs. Therefore, COSEWIC maintained its assessment for the North Pacific population of the Humpback Whale as a single DU.

Conclusion

Fisheries and Oceans Canada took into consideration all relevant factors, including scientific advice (which includes the COSEWIC assessment), socio-economic analyses, and consultations with key stakeholders and provinces and territories, prior to providing advice to the Minister of the Environment. The Minister of the Environment, on the advice of the Minister of Fisheries and Oceans, has proposed to recommend to the Governor in Council that a regulatory amendment be made to Schedule 1 of SARA in order to change the status of the species from threatened to species of special concern.

Rationale

The baseline for assessing the incremental benefits and costs associated with the reclassification of the Humpback Whale (North Pacific population) as a threatened species on Schedule 1 of SARA is the complete suite of relevant existing legislation, regulations, and other measures.

Humpback Whales (North Pacific population) are affected by a variety of threats, notably vessel strikes, entanglement in fishing gear, and disturbance or displacement due to underwater noise. These threats are not limited to Canadian waters.

The Humpback Whale is protected under two international conventions. The International Convention for the Regulation of Whaling (administered by the International Whaling Commission [IWC]) banned the commercial hunting of Humpback Whales in the North Atlantic in 1955 and in the North Pacific in 1966 (Best 1993). (see footnote 2) The Humpback Whale has not been subject to commercial hunting in Canada since 1966 even though Canada withdrew from the whaling convention in 1982. Commercial trade in Humpback Whale parts or products is banned as the species is listed in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

In Canada, Fisheries and Oceans Canada is responsible for the management of Humpback Whales (North Pacific population) and other cetaceans. The Marine Mammal Regulations, under the Fisheries Act, apply to cetaceans and make it an offence to disturb a marine mammal except when fishing for a marine mammal under the authority of those Regulations. Section 35 of the Fisheries Act prohibits the carrying on of any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery. The Fisheries Act (section 36) also contains provisions regulating the deposit of deleterious substances in water frequented by fish.

In British Columbia, Fisheries and Oceans Canada, in collaboration with many other organizations, has developed the “Be Whale Wise: Marine Wildlife Guidelines for Boaters, Paddlers and Viewers” (DFO 2008), (see footnote 3) which are voluntary measures aimed at limiting physical and acoustic disturbance.

In June 2010, Parks Canada established the Gwaii Haanas National Marine Conservation Area Reserve, which provides special protection for a marine area of approximately 3 400 km2 around the Gwaii Haanas National Park Reserve and Haida Heritage Site. This area has been identified as a primary feeding habitat for Humpback Whales in western Canadian waters (Nichol et al. 2010). (see footnote 4)

The general prohibitions under SARA (section 32), the requirement to ensure legal protection of critical habitat (section 58), and the requirements related to the review of projects likely to affect listed wildlife species (section 79) apply to the Humpback Whale (North Pacific population), as it is an aquatic species listed as threatened.

Benefits

As a charismatic species, Humpback Whales (North Pacific population) likely have a high non-market value, (see footnote 5) which is unlikely to be reduced under this action. SARA recognizes in its preamble 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,” which indicates that actions taken to conserve and recover a species hold value for Canadians.

The non-applicability of both the general prohibitions under SARA (section 32) and the requirement to ensure legal protection of critical habitat (section 58) could result in small benefits to industry in the form of cost savings. The fisheries protection provisions of the Fisheries Act (section 35), as well as the Marine Mammal Regulations made under that Fisheries Act, will continue to apply to the Humpback Whale (North Pacific population). As the differences between mitigation requirements under SARA and the Fisheries Act are minimal, the incremental cost savings would also be small.

Costs

A SARA management plan would be developed, in cooperation with other governments, Aboriginal organizations and any other organization that the Minister considers appropriate. The management plan would include measures for the conservation of the species. It is anticipated that the management plan would draw on the existing Recovery Strategy for the Humpback Whale (North Pacific population), and some measures to support conservation of the species will continue with partners and stakeholders, especially in regard to management measures. These would result in a continuation of costs rather than additional or incremental costs.

The fisheries protection provisions of the Fisheries Act (section 35), as well as the Marine Mammal Regulations made under that Fisheries Act, will continue to apply to the Humpback Whale (North Pacific population). The differences between mitigation requirements under SARA and the Fisheries Act are small, so the incremental costs to the ecosystem and the services provided would be minimal.

Conclusion

The Humpback Whale (North Pacific population) was reassessed by COSEWIC as a species of special concern on the basis of available scientific evidence. The Minister of the Environment, on the advice of the Minister of Fisheries and Oceans, has recommended that the Governor in Council make a regulatory amendment to Schedule 1 of SARA in order to change the status of the species from threatened to a species of special concern. There are no additional administrative burden costs for business expected. As existing SARA prohibitions and critical habitat legal protection requirements would not be applicable, it is possible that costs for some businesses may be reduced as a result of the amendment. However, other applicable legislation and voluntary measures would continue to apply. These include the international conventions; voluntary measures outlined in guidelines to boaters, paddlers, and viewers; requirements under section 79 of SARA that have specific requirements when environmental assessments of certain specific projects are required; serious harm to fish provisions of the Fisheries Act; and the Marine Mammal Regulations.

Implementation, enforcement and service standards

As the Humpback Whale would be listed as a species of special concern, the general prohibitions under SARA would no longer apply. The Department of Fisheries and Oceans would need to complete a management plan within three years of the species' classification being changed.

The Department would be responsible for monitoring the implementation of the management plan and report on the plan's progress every five years. As part of the monitoring, Fisheries and Oceans Canada and partners would follow population and distribution trends of the species over time. Also, the Conservation and Protection Branch of Fisheries and Oceans Canada would be involved in enforcing the Fisheries Act and Marine Mammal Regulations as they apply to the Humpback Whale (North Pacific population), just as it would do with all other marine mammals.

Contact

Julie Stewart
Director
Species at Risk Program Management
Fisheries and Oceans Canada
Telephone: 613-990-0280
Fax: 613-998-9035
Email: julie.stewart@dfo-mpo.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 27(1) of the Species at Risk Act (see footnote a), proposes to make the annexed Order Amending Schedule 1 to the Species at Risk Act.

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 Management, Fisheries and Oceans Canada, Ottawa, Ontario K1A 0E6 (fax: 613-998-9035; email: julie.stewart@dfo-mpo.gc.ca).

Ottawa, April 10, 2014

JURICA ČAPKUN
Assistant Clerk of the Privy Council

ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT

AMENDMENTS

1. Part 3 of Schedule 1 to the Species at Risk Act (see footnote 6) is amended by striking out the following under the heading “MAMMALS”:

Whale, Humpback (Megaptera novaeangliae) North Pacific population Rorqual à bosse population du Pacifique Nord

2. Part 4 of Schedule 1 to the Act is amended by adding the following in alphabetical order under the heading “MAMMALS”:

Whale, Humpback (Megaptera novaeangliae) North Pacific population Rorqual à bosse population du Pacifique Nord

COMING INTO FORCE

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

[16-1-o]