Vol. 151, No. 14 — July 12, 2017

Registration

SOR/2017-130 June 20, 2017

SPECIES AT RISK ACT

Order Amending Schedule 1 to the Species at Risk Act

P.C. 2017-782 June 20, 2017

His Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to subsection 27(1) of the Species at Risk Act (see footnote a), makes the annexed Order Amending Schedule 1 to the Species at Risk Act.

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 1) 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.

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 a threatened species 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 Humpback Whale (North Pacific population) growth rates have increased, leading to an increased abundance of the species. COSEWIC has determined that the Humpback Whale (North Pacific population) has reached a point where the species’ reclassification can be amended from a threatened species to a species of special concern.

Given the reassessment by COSEWIC, and based on the considerations discussed below, the Governor in Council has put in place an Order that amends Schedule 1 of SARA. By this Order, the species is listed as a “species of special concern.”

Background

Species At Risk Act and recommendations for listing aquatic species

SARA was enacted in 2002. The purposes of this Act are 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.

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. Since Humpback Whales (North Pacific population) also enter the Gwaii Haanas National Marine Conservation Area Reserve and the Pacific Rim National Park Reserve of Canada, which are federal lands administered by the Parks Canada Agency, the Minister of the Environment is also a “competent minister” under SARA for those individuals of the Humpback Whale (North Pacific population) found in those areas.

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. 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. For instance, 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 review the classification of each 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 and 2011 assessments for the Humpback Whale (North Pacific population), COSEWIC provided historical context for its findings, notably that the species’ population had been heavily reduced by commercial whaling, which had continued almost without interruption until the Second World War. Commercial whaling in Canada ended in 1966. In the COSEWIC 2003 assessment the evidence at the time showed that the population had been increasing, with numbers totalling in the low hundreds. COSEWIC concluded at that time that the species was a threatened species, and the Humpback Whale (North Pacific population) was subsequently listed as a threatened species in Schedule 1 of SARA in 2005.

In its 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. Based on a three-year international and basin-wide scientific collaboration conducted from 2004 to 2006, the North Pacific 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. Research conducted between 2004–2006 indicated that about 2 145 whales (not including first-year calves) were present seasonally in British Columbia waters, where they were increasing at around 4% per year compared to 4.9% for the entire North Pacific population.

According to COSEWIC, while the population has increased over the last five decades, current numbers are still considerably smaller than the number that must have been historically present off the west coast of Vancouver Island before 1905. This, combined with the potential impact of residual threats, led COSEWIC to determine 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 has reclassified the Humpback Whale (North Pacific population) 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 http://www.registrelep-sararegistry.gc.ca/document/default_e.cfm?documentID=982.

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 is characterized by pleated grooves in the skin of the neck that allow the throat to expand with the intake of huge amounts of water during feeding.

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. In Pacific Canadian waters, the range of Humpback Whales (North Pacific population) extends along the full length of the west coast of British Columbia and 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, and some individuals use the area as a migratory corridor.

Objectives

This Order amends Schedule 1 of SARA so that the Humpback Whale (North Pacific population) will no longer be listed as a threatened species, but will be listed as a species of special concern in Schedule 1 of SARA.

The amendment

Description

This Order amends Schedule 1 of SARA so that the Humpback Whale (North Pacific population) will no longer be a threatened species, but will be listed as a species of special concern.

The reclassification under Schedule 1 to a species of special concern means that the Humpback Whale (North Pacific population) is no longer subject to the general prohibitions set out in SARA, and its critical habitat is no longer required to be identified or legally protected under SARA. However, other provisions of SARA continue to apply. For example, under section 79 of SARA, a 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 an authority who makes a determination in relation to a project on federal lands under section 67 of the Canadian Environmental Assessment Act, 2012, must notify the competent minister(s) if the project is likely to affect a listed species or its critical habitat, including those listed as special concern (although, as explained, there is no requirement to identify critical habitat for species listed as species of special concern). If the project is carried out, the person must ensure that measures are taken (1) to avoid or lessen any adverse effects the project may have on a listed wildlife species and its critical habitat; and (2) to monitor them. These requirements under section 79 will continue to apply to such projects that are likely to affect Humpback Whale (North Pacific population).

Furthermore, several other measures will continue to apply to the Humpback Whale (North Pacific population). For example, parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (see footnote 2) have agreed to, among other things, regulate the trade of, among many other species, Humpback Whale parts or derivatives; the Canada National Marine Conservation Areas Act applies to the area that has been identified as a primary feeding habitat for Humpback Whales in the Gwaii Haanas National Marine Conservation Area Reserve; among many other things, the National Energy Board Act prohibits the construction of a pipeline without a certificate issued by the Board, which includes terms and conditions. The Fisheries Act will continue to apply, in particular, the Marine Mammals Regulations will continue to apply to the Humpback Whale (North Pacific population). Under the Marine Mammal Regulations, it is an offence to disturb marine mammals except when fishing for them under the authority of those Regulations. It is also an offence to move, tag or mark, or attempt to tag or mark, a live marine mammal, without a licence to do so [with an exception related to the holders of licences to fish for marine mammals for experimental, scientific, educational or public display purposes issued under the Fishery (General) 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 (CRA) fishery, or to fish that support such a fishery; section 36 of the Fisheries Act prohibits the deposit of deleterious substances in water frequented by fish, where such deposits may be deleterious to fish, fish habitat or the use of fish, unless authorized by regulation; and, the Canadian Environmental Protection Act, 1999 regulates disposal at sea.

It should also be noted that, under SARA, a proposed management plan must be prepared for listed species of special concern within three years after listing. It must include measures for the conservation of the species that the competent minister considers appropriate. It is anticipated that the management plan’s conservation measures will include measures outlined in the final Recovery Strategy, (see footnote 3) prepared when the Humpback Whale (North Pacific population) was listed as a threatened species in 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.

“One-for-One” Rule (see footnote 4)

The “One-for-One” Rule does not apply to the amendments to reclassify the species from a threatened species 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 (see footnote 5)

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

Consultation

Under SARA, the scientific assessment of a species’ status by COSEWIC and the decision to add a species to Schedule 1 of SARA by the Governor in Council (or amend a species’ classification on Schedule 1 on the recommendation of the Minister of the Environment) are two distinct processes. This separation ensures that the biological assessment of a species status and its risk classification are separate from the Government’s decision on whether or not to list the species, which can take into account other factors including socio-economic considerations.

Consultation regarding potential change of classification 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 website from November 10, 2011, to January 4, 2012. Consultations were undertaken with environmental organizations, Aboriginal peoples and organizations, industry, 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 activities that would negatively affect the species and its habitat. Without the prohibitions, it was argued, deterrence would no longer be present. Some respondents indicated that the reclassification of the species under Schedule 1 could lead to increased marine activity in the waters along the British Columbia which could result in increased ship strikes, entanglements or hazardous petroleum product spills. Academia and other individual 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, and 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 Province of British Columbia has indicated support for reclassifying the Humpback Whale (North Pacific population) as a species of special concern under Schedule 1 of SARA.

While the majority of responses were against reclassification of the species under Schedule 1 as a species of special concern, Fisheries and Oceans Canada maintains that the upward trend of population growth rates and increased abundance are not expected to be significantly affected by the non-application of SARA’s general prohibitions or requirement to identify and legally protect critical habitat. It is noteworthy that the Marine Mammal Regulations continue to apply to the Humpback Whale (North Pacific population), and that listing a species under SARA as a species of special concern requires that a management plan, which must include measures for the conservation of the species, be prepared.

During 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. Three respondents expressed that new scientific information could divide the Humpback Whale population into two DUs; with one DU still designated as a threatened species.

COSEWIC review of referral

In January of 2012, the Minister of the Environment recommended that the Governor in Council refer the 2011 assessment of the Humpback Whale (North Pacific population) back to COSEWIC for further information or consideration. New scientific information was sent to COSEWIC for consideration as part of an official referral, which was published in the Canada Gazette, Part II, on March 27, 2013 (Vol. 147, No. 7).

In response to the Governor in Council referring the 2011 assessment back to COSEWIC for further information or consideration, the Chair of COSEWIC asked that the COSEWIC Marine Mammals Specialist Subcommittee consider the evidence provided and make a recommendation. 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 and as a species of special concern.

Canada Gazette, Part I, summary of comments

The proposed Order Amending Schedule 1 to the Species at Risk Act for the Humpback whale (North Pacific population) was prepublished in the Canada Gazette, Part I, on April 19, 2014 (Vol. 148, No. 16), for a 30-day public comment period.

A total of 2 590 submissions were received including comments from Aboriginal groups, academics, industry, non-governmental organizations, and members of the public. The majority of these submissions (2 073 or 80%) were generated through online petitions facilitated by an environmental group (Living Oceans Petition), or individuals on the website Change.org.

Of the total submissions received, 2 448 (95%) were against the reclassification of Humpback Whale from a threatened species to a species of special concern under Schedule 1; 124 expressed concerns about the change in classification; 11 requested additional information; 3 were in support of the reclassification; and, 4 responses did not express any opinion.

The three submissions in support of the reclassification under Schedule 1 included one academic, one individual from the Canadian public, and one submission made through the online petition. The comments were all positive and praised the recovery of the Humpback Whale (North Pacific population), citing it as a success story. The submissions were also supportive of the decision by COSEWIC to reclassify the species from a threatened species to a species of special concern, and stated that the decision was based on the best available science.

The online petitions were launched shortly after the prepublication of the proposed amendment. The Living Oceans Petition generated 2 025 submissions, all against the reclassification of the Humpback Whale (North Pacific population) under Schedule 1. This petition used a generic letter that participants could copy and use as their submission to the Department to express their concern over the reclassification under Schedule 1, to reiterate that more work needed to be done to determine if there were two distinct DUs, to link the reclassification of the Humpback Whale (North Pacific population) under Schedule 1 to the approval of a major resource development project, and to request the Department to put the reclassification under Schedule 1 on hold until a more specific recovery target for the Humpback Whale (North Pacific population) could be identified. The remaining petitions were all launched by individuals on the Change.org website, and generated 54 submissions against the reclassification of the Humpback Whale (North Pacific population) under Schedule 1. Participants who signed the Change.org petitions supported the following two statements: “I support the full protection of the Northern Humpback Whale’s status as a species ‘at risk’ and ‘under threat’”and “I support the full protection of the Northern Humpback Whale’s habitat.”

A summary of all the comments received during the 30-day comment period have been categorized into five main types:

Type 1: The Humpback Whale (North Pacific population) and its habitat still need to be protected

Members of the public, academics and environmental non-governmental organizations asked how the Humpback Whale (North Pacific population) and its critical habitat would be protected, and threats mitigated, to prevent it from becoming a threatened species again.

Response

COSEWIC reclassified the Humpback Whale (North Pacific population) as a species of special concern based on the best available information, including new information regarding the structure of the population. While the general prohibitions and the obligation to identify and protect critical habitat do not apply to species of special concern under SARA, the species will remain on the List of Wildlife Species at Risk (Schedule 1) [although at a different classification] and the competent minister must prepare a SARA management plan for the species and its habitat, and regular monitoring of the implementation of that plan. Additionally, as discussed above, other sections of SARA will continue to apply including, for example, section 79 (Project Review) which requires the identification of adverse effects of any proposed projects on listed species. The preparation of the management plan will draw on the existing Recovery Strategy for this species and address the threats that have been outlined in that document, including ship strikes, acoustic disturbance, prey availability and pollution, among others.

Some provisions of the Fisheries Act will continue to apply to the Humpback Whale (North Pacific population). For example, section 35 of the Fisheries Act prohibits the unauthorized 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. Serious harm to fish is defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat.” Thus, given that “serious harm to fish” encompasses destruction of fish habitat, the prohibition under section 35 contributes to the protection of habitat of the North Pacific Humpback Whale. Additionally, the Marine Mammals Regulations made under the Fisheries Act will continue to apply. Under these Regulations, it is an offence to disturb a marine mammal except when fishing for a marine mammal under the authority of the Regulations (disturbance would include noise disturbance).  It is also an offence to move, tag, or mark them without a licence issued under the appropriate regulations. It is also an offence to fish for them except under the authority of a licence issued under the Marine Mammal Regulations, or under the Aboriginal Communal Fishing Licences Regulations.

Other specific threats to the Humpback Whale (North Pacific population) and its habitat will continue to be mitigated through the application of other legislation and management measures. For example, the following legislation will still apply in the habitat of the Humpback Whale (North Pacific population): the Ballast Water Control and Management Regulations and the Vessel Pollution and Dangerous Chemicals Regulations made under the Canada Shipping Act, 2001 (which concerns certain aspects of marine pollution) as well as the Canadian Environmental Protection Act, 1999, which, among other things, regulates disposal at sea, and the Fisheries Act (section 36), which prohibits the unauthorized deposit of deleterious substances in waters frequented by fish. Additionally, other non-regulatory measures will also continue to apply, including the Marine Mammal Response Program, which responds to entangled or stranded marine mammals and works to free the animal and protects it from disturbance and noise as provided for in the Statement of Canadian Practice on Mitigation of Seismic Noise in the Marine Environment.

It should be noted that seven other species of whales, namely the Blue Whale (Pacific population), Fin Whale (Pacific population), Sei Whale (Pacific population), North Pacific Right Whale, Killer Whale (Northeast Pacific transient population, Northeast Pacific northern resident population, and Northeast Pacific southern resident populations) can be found in areas frequented by the Humpback Whale (North Pacific population). These other whales, for which the general prohibitions under SARA continue to apply, face similar threats as the Humpback Whale (North Pacific population). In addition, a critical habitat order is currently in force with respect to the Killer Whale (Northeast Pacific northern resident population and Northeast Pacific southern resident population). Therefore, the prohibition against the destruction of critical habitat of these two populations of Killer Whales applies to areas that are also frequented by the Humpback Whale (North Pacific population), thereby offering some protection to habitat important for this species.

Type 2: Additional information requested on how a listing decision is made and how the listing process works

Members of the public, academics and environmental non-governmental organizations raised concerns about the decision-making process, the basis for decisions, and a perceived lack of notice and consultation prior to decisions being made.

Response

Fisheries and Oceans Canada consulted with stakeholders and notified the public on multiple occasions prior to prepublishing the proposed Order amending Schedule 1 of SARA. Public consultations were held from November 10, 2011, to January 4, 2012, by Fisheries and Oceans Canada on amending Schedule 1 of SARA so that the Humpback Whale (North Pacific population) would no longer be listed as a threatened species, but would be listed as a species of special concern. In addition to the online consultation, 312 consultations letters were sent out to the province of British Columbia, environmental non-government organizations, First Nations, marine mammal stakeholders, marine mammal ecological contacts and government marine mammal experts. As well, the Government of Canada referred back to COSEWIC new information for consideration based on a concern raised during consultations. This referral back to COSEWIC was formalized in the Canada Gazette, Part I, (Vol. 147, No. 7) on March 27, 2013. In response, COSEWIC stated that there was insufficient evidence to support the division of the species into two separate Designated Units (DU). Therefore, COSEWIC maintained its assessment for the North Pacific population of the Humpback Whale as a single DU and as a species of special concern. COSEWIC posted this information on their website on December 13, 2013, which was also posted on the Species at Risk Public Registry on February 24, 2014.

The prepublication of the Order in the Canada Gazette, Part I, (Vol. 148, No. 16) on April 19, 2014, was another opportunity provided to stakeholders and the public to provide comments on the proposed amendment to Schedule 1 of SARA.

As for the information related to the listing process (see footnote 6), there are a number of steps. First, COSEWIC assesses species to determine whether they are currently at risk and, if so, classifies them as extinct, extirpated, endangered, threatened or of special concern. COSEWIC’s classifications are based on status reports prepared by independent experts. COSEWIC carries out its functions on the basis of the best available information on the status of the species, including scientific knowledge, community knowledge and aboriginal traditional knowledge (ATK).

Status reports are reviewed by COSEWIC’s species specialist subcommittees which provide recommendations to COSEWIC. COSEWIC’s decision to assign a classification to a species considers a large number of criteria, including the extent of a species’ decline and its overall abundance.  When COSEWIC completes its assessment, it must provide the Minister of the Environment and the Canadian Endangered Species Conservation Council with a copy of the assessment and the reason for it.

Upon receiving an assessment for an aquatic species from the Minister of the Environment, the Governor in Council will make a decision, on the recommendation of the Minister of the Environment, who must — among other things — first consult the Minister of Fisheries and Oceans (as competent minister). For a species that is not already on the List, the Governor in Council must either (1) accept the assessment and add the species to the List; (2) decide not to add the species to the List; or (3) refer the matter back to COSEWIC for further information or consideration. For species that are already on the List, the Governor in Council can either (1) accept the reassessment and reclassify the species; (2) decide not to reclassify the species; or (3) refer the matter back to COSEWIC for further information or consideration. This decision is not made in isolation; it is made after consultations with affected stakeholders and other groups, taking into account the economic and social implications that listing a species may have on Canadians’ lives and livelihoods.

Type 3: This decision was based on economic reasons and not on science

Members of the public, academics and environmental non-governmental organizations stated that the Governor in Council’s decision to reclassify the Humpback Whale (North Pacific population) from a threatened species to a species of special concern was made based on economic reasons and was not science-based.

Response: The decision to reclassify the Humpback Whale (North Pacific population) from a threatened species to a species of special concern was based on the assessment of the species by COSEWIC. The assessment process is independent and transparent and does not consider socio-economic criteria. COSEWIC classified the Humpback Whale (North Pacific population) as a threatened species in May 2003 and reclassified it as a species of special concern in May 2011.

During the public consultation period from November 2011 to January 2012, Fisheries and Oceans Canada considered the best available information to advise the Minister of the Environment to recommend to the Governor in Council to refer COSEWIC’s reclassification of the Humpback Whale (North Pacific population) as a species of special concern. In referring the matter back, the Governor in Council requested COSEWIC to reconsider information that would separate the population into two distinct DUs. COSEWIC examined this information, and determined that there was insufficient evidence to support the Humpback Whale (North Pacific population) being split into two different DUs. COSEWIC maintained its assessment for the North Pacific population of the Humpback Whale as a single DU, and as a species of special concern. This determination was based on a recommendation by the Marine Mammals Specialist Subcommittee of COSEWIC.

Type 4: Canadians and stakeholders want to be informed and involved in the next steps

Members of the public, industry, academics and environmental non-governmental organizations mentioned they would like to be informed or be part of the next steps for the Humpback Whale (North Pacific population).

Response: A management plan will be prepared in consultation with key stakeholders, and a proposed version will be posted on the Species at Risk Public Registry for a 60-day public consultation period. The management plan will be developed based on the Humpback Whale’s Recovery Strategy and any new information that has arisen since that document was prepared.

The Species at Risk Act requires that a proposed management plan be posted within three years of a species being listed as a species of special concern. The management plan will address the identified threats and take into account existing protections afforded by other federal legislation. Following the 60-day public comment period, the proposed management plan will be revised, if considered appropriate, and its final version posted on the Species at Risk Public Registry.

Type 5: Concerns about reclassification despite opposition from stakeholders

Members of the public, academics and environmental non-governmental organizations expressed concerns that the federal government was moving forward with the reclassification of the Humpback Whale (North Pacific population) despite the fact that a majority of the stakeholders who participated in the 2011–2012 consultations expressed opposition.

Response: In their most recent 2011 assessment and status report, COSEWIC found that there had been no evidence of a Humpback Whale population decline since the 1960s. Although no trend data are available from 1966 to the 1990s, COSEWIC determined that the North Pacific population has been increasing at about 4.9% per year since the early 1990s. Based on 2006 photo-identification data, the local British Columbia population was estimated to be 2 145 individuals.

Therefore, Schedule 1 List of Wildlife Species at Risk of SARA is amended so that the Humpback Whale (North Pacific population) is listed as a species of special concern. The Minister of the Environment will continue to make SARA listing recommendations to the Governor in Council following the consideration of COSEWIC assessments, consultations with the competent minister or ministers, other consultations, socio-economic considerations, and our commitment to the conservation of biological diversity.

Fisheries and Oceans Canada will also work with the Parks Canada Agency, Aboriginal peoples and organizations, industry, environmental non-governmental organizations, and Canadians to develop a management plan that will include various conservation measures for the Humpback Whale (North Pacific population).

Conclusion

All relevant factors, including the best scientific information (which includes the COSEWIC assessment), socio-economic analyses, and consultations with Canadians, key stakeholders and provinces and territories, were taken into consideration prior to providing advice to the Minister of the Environment. The Minister of the Environment, after consulting the Minister of Fisheries and Oceans, has recommended to the Governor in Council to amend Schedule 1 of SARA. By this Order, the Humpback Whale (North Pacific population) is listed as a 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 species of special concern on Schedule 1 of SARA is the complete suite of relevant existing legislation, regulations, and other measures.

As identified by COSEWIC, Humpback Whales (North Pacific population) face a variety of threats, notably vessel strikes, entanglement in fishing gear, toxic spills, reduction in prey and acoustic disturbance. 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 7).  The Humpback Whale has not been subject to commercial hunting in Canada since 1966 even though Canada withdrew from the whaling convention in 1982. Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) have agreed to, among other things, regulate the trade of, species listed in the Convention’s Schedules. Humpback Whale is listed in Appendix I of the Convention.

In Canada, Fisheries and Oceans Canada is responsible for the management of Humpback Whales (North Pacific population) and other cetaceans. The Marine Mammal Regulations, made under the Fisheries Act, apply to cetaceans and other marine mammals and, among other things, make it an offence to disturb a marine mammal, except when fishing for a marine mammal under the authority of those Regulations.

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 8) which are voluntary measures aimed at limiting physical and acoustic disturbance.

In June 2010, Parks Canada Agency established the Gwaii Haanas National Marine Conservation Area Reserve and Haida Heritage Site, which covers 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 9)

Benefits

As a charismatic species, Humpback Whales (North Pacific population) likely have a high non-market value, (see footnote 10) 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 identify and legally protect critical habitat (section 58) could result in negligible benefits to industry in the form of cost savings. The Marine Mammal Regulations, made under the 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 negligible.

Costs

Listing a species as a species of special concern requires the preparation of a SARA management plan. The management plan, developed in cooperation with other governments, Aboriginal peoples and organizations and any other person or that the Minister of Fisheries and Oceans considers appropriate, includes measures for the conservation of the species. It is anticipated that the preparation of the management plan for the Humpback Whale (North Pacific population) will draw on recovery measures established in and ongoing under the existing Recovery Strategy. Consequently, additional and incremental costs associated with the reclassification under Schedule 1 are expected to be negligible.

The Marine Mammal Regulations, made under the Fisheries Act, will continue to apply. The cost differences between mitigation and management measures that would be required under SARA and the Fisheries Act are negligible.

Conclusion

The Humpback Whale (North Pacific population) was reclassified 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 amend Schedule 1 of SARA in order to change the classification of the species from a threatened species to a species of special concern. There are no additional administrative burden costs for business expected. As existing SARA prohibitions and critical habitat identification and legal protection requirements are no longer applicable, it is possible that costs for some businesses may be reduced as a result of the reclassification of the Humpback Whale (North Pacific population) under Schedule 1 of SARA from threatened to a species of special concern. Other applicable legislation and voluntary measures will continue to apply. These include 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; and the Marine Mammal Regulations.

Strategic environmental assessment

As required by the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan was conducted which concluded that there would be no expected important environmental effects, either positive or negative; accordingly, a strategic environmental assessment is not required.

Implementation, enforcement and service standards

As the Humpback Whale (North Pacific population) is listed as a species of special concern, the general prohibitions under SARA no longer apply. Fisheries and Oceans Canada must complete a proposed management plan within three years of the species’ classification being changed.

The Department is responsible for monitoring the implementation of the management plan and must report on the plan’s progress every five years. As part of the monitoring, Fisheries and Oceans Canada and partners will follow population and distribution trends of the species over time. Also, the Conservation and Protection Branch of Fisheries and Oceans Canada will be involved in enforcing the 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
Fax: 613-998-9035
Email: SARA_LEP@dfo-mpo.gc.ca