Vol. 151, No. 25 — December 13, 2017

Registration

SOR/2017-263 December 4, 2017

SPECIES AT RISK ACT

Whereas the Beluga Whale (Delphinapterus leucas) St. Lawrence Estuary population is a wildlife species that is listed as an endangered species in Part 2 of Schedule 1 to the Species at Risk Act (see 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 a portion of the critical habitat of that species is in a place referred to in subsection 58(2) (see footnote b) of that Act and, under subsection 58(5) of that Act, that portion must be excluded from the annexed Order;

And whereas the Minister of Fisheries and Oceans is of the opinion that the annexed Order would affect land that is under the authority of the Minister responsible for the Parks Canada Agency, namely the Minister of the Environment, and, pursuant to subsection 58(9) of that Act, has consulted her with respect to the annexed Order;

Therefore, the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act (see footnote c), makes the annexed Critical Habitat of the Beluga Whale (Delphinapterus leucas) St. Lawrence Estuary Population Order.

Ottawa, November 30, 2017

Dominic LeBlanc
Minister of Fisheries and Oceans

Critical Habitat of the Beluga Whale (Delphinapterus leucas) St. Lawrence Estuary Population Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Beluga Whale (Delphinapterus leucas) St. Lawrence Estuary population — which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry — other than the portion of that critical habitat that is in a place referred to in subsection 58(2) of that Act, more specifically, in the Île aux Basques Bird Sanctuary as described in Part V of the schedule to the Migratory Bird Sanctuary Regulations or in the Îles de l’Estuaire National Wildlife Area as described in Part III of Schedule I to the Wildlife Area Regulations.

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 Order.)

Issues

In 2004, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) classified the Beluga Whale (Delphinapterus leucas), St. Lawrence Estuary (SLE) population as threatened. This population was reassessed in 2014 by COSEWIC as Endangered. These assessments were based upon the best available information on the biological status of the population, including scientific knowledge and aboriginal traditional knowledge. An “endangered species” is defined under the Species at Risk Act (see footnote 1) (SARA or the Act) as a wildlife species that is facing imminent extirpation or extinction.

The assessment of the status of the Beluga Whale, SLE population made in 2004 was provided to the Minister of Environment and Climate Change and the Canadian Endangered Species Conservation Council, which consists of the Minister of Environment and Climate Change, the Minister of Fisheries and Oceans (MFO), the Minister responsible for the Parks Canada Agency (Minister of Environment and Climate Change) and the provincial and territorial ministers responsible for the conservation and management of wildlife species in that province or territory.

In July 2005, on the recommendation of the Minister of Environment and Climate Change, who consulted the MFO and took into account the assessment of COSEWIC in respect of the species, the Governor in Council, after considering the potential impacts of adding the species to the List of Wildlife Species at Risk set out in Schedule I of SARA, decided to add the Beluga Whale, SLE population to Part 3 of that list.

As a result of the Beluga Whale, SLE population’s addition to Schedule I, Part 3 of SARA, the MFO was required to prepare a recovery strategy for the species. The Recovery Strategy was prepared in cooperation with specific persons and organizations, as required under SARA. Also, to the extent possible, persons whom the MFO considered to be directly affected by the Recovery Strategy were consulted.

For the Beluga Whale, SLE population, the final Recovery Strategy, including the identification of the critical habitat, was posted on the Species at Risk Public Registry in March 2012. The critical habitat of the Beluga Whale, SLE population extends from the Battures aux Loups Marins to the southern portion of the Estuary, off Saint-Simon. It also includes the lower reaches of the Saguenay River [for a description and illustration of the location of critical habitat, see section 2.4 of the Recovery Strategy for the Beluga Whale (Delphinapterus leucas), St. Lawrence Estuary Population in Canada]. The critical habitat includes areas where beluga whales carry out specific life processes including areas where the calving and rearing of young belugas take place, a fundamental life-cycle process that is necessary for the survival and recovery of this threatened population. The rearing of the young requires access to quality food sources and an acoustic environment that permits communication between individuals. For further information on the life-cycle of the Beluga Whale, SLE population, please refer to the final Recovery Strategy posted on the Species at Public Risk Registry.

Once the critical habitat of aquatic species listed as threatened or endangered (other than individuals in or on federal lands administered by the Parks Canada Agency) is identified in a recovery strategy that is posted as final on the SAR Public Registry, the MFO must ensure that all of the critical habitat is protected. In most cases, this will be accomplished through the making of a Critical Habitat Order (Order), which triggers the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat.

Therefore, this Critical Habitat of the Beluga Whale (Delphinapterus leucas) St. Lawrence Estuary Population Order is intended to satisfy the obligation to legally protect critical habitat by triggering the prohibition under SARA against the destruction of any part of the species’ critical habitat. This Order was prepublished in the Canada Gazette, Part I, on May 14, 2016 (Vol. 150, No. 20), for a 30-day public comment period to give various interested groups and individuals, as well as Canadians in general, a final opportunity to review and comment on the proposed Order. This Order does not apply to some small portions of critical habitat that require a description — that is, the critical habitat in the Îles de l’Estuaire National Wildlife Area and the Île aux Basques Migratory Bird Sanctuary. The description is published in the Canada Gazette (see footnote 2) under subsection 58(2) of SARA as the means of triggering the subsection 58(1) prohibition.

On May 3, 2017, the Beluga Whale, SLE population’s classification was changed under Schedule 1 from threatened to endangered. This change does not affect the protection already afforded to it under the SARA, nor does it change the current Order.

Background

The Government of Canada is committed to conserving biodiversity and the sustainable management of fish and their habitats, both nationally and internationally. Canada, with support from provincial and territorial governments, signed and ratified the United Nations’ Convention on Biological Diversity in 1992. Stemming from this commitment, the Canadian Biodiversity Strategy was jointly developed by the federal, provincial, and territorial governments in 1996. Building on the Canadian Biodiversity Strategy, SARA received royal assent in 2002. Its purposes 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.

Species listed as extirpated, endangered and threatened on the List of Wildlife Species at Risk set out in Schedule 1 of SARA benefit from recovery planning and protections under SARA. In general, as stated in the preamble of SARA, “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 recovery would hold value for Canadians. Research confirms that Canadians value the conservation of species at risk and measures taken to conserve their preferred habitat. Conserving Canada’s natural aquatic ecosystems, and protection and recovery of its wild species, is essential to Canada’s environmental, social and economic well-being. Protecting species and their habitats helps preserve biodiversity — the variety of plants, animals, and other life in Canada. Biodiversity, in turn, promotes the ability of Canada’s ecosystems to perform valuable ecosystem services such as filtering drinking water and capturing the sun’s energy, which is vital to all life. Thus, for individuals of aquatic species listed as extirpated, endangered or threatened, steps taken to help protect and recover them include the following:

These prohibitions do not apply to a person who is engaging in activities authorized under SARA.

The protection of critical habitat is important for many species’ survival and recovery. The protection of the critical habitat of aquatic species listed as extirpated, endangered and threatened is a legal requirement under sections 57 and 58 of SARA.

Orders made under subsections 58(4) and (5) of SARA, which trigger the prohibition in subsection 58(1) against the destruction of any part of the species’ critical habitat, are made to legally protect the critical habitat and contribute to the broader goals set out by the Biodiversity Outcomes Framework for Canada and its commitments to the United Nations’ Convention on Biological Diversity.

Objectives

In 2005, the Canadian Council of Ministers of the Environment instructed the Federal-Provincial-Territorial Biodiversity Working Group to develop a corresponding outcomes-based framework for guiding and monitoring the implementation of the Canadian Biodiversity Strategy. The Canadian Biodiversity Outcomes Framework was approved by ministers responsible for environment, forests, parks, fisheries and aquaculture, and wildlife in October 2006. As part of the Biodiversity Outcomes Framework, conservation and use outcomes were identified, including the following:

This Order contributes to and aligns with these broader Biodiversity Outcomes Framework goals. The Order will legally protect the critical habitat of the Beluga Whale, SLE population by triggering the prohibition against the destruction of any part of its critical habitat.

COSEWIC recently revised the classification of the Beluga Whale, SLE population as an endangered species. This was based on the population of the species slightly decreasing after a period of relative stability or slight increase observed since the end of hunt in the 1960s up until the early 2000s. The long-term population objective for the Beluga Whale, SLE population as stated in the species Recovery Strategy is 7 070 individuals, or 70% of its historical population, as identified in the Recovery Strategy. As the population increases, it is hoped that the distribution area of the Beluga Whale, SLE population will also increase to a minimum level corresponding to 70% of the historical distribution area. The population and distribution objectives outlined in the Recovery Strategy are considered to be both technically and biologically feasible. To help achieve these population and distribution objectives, the following six recovery objectives have been identified:

Description

The Order is made to satisfy the obligation to ensure that the critical habitat of the Beluga Whale, SLE population is legally protected. With this Order, the Beluga Whale, SLE population will benefit from the prohibition in subsection 58(1) of SARA against the destruction of any part of its critical habitat. The prohibition applies to anyone undertaking activities in and around the Beluga Whale, SLE population’s critical habitat that would result in the destruction of any part of it. The Order serves to

As a result of the Order, the prohibition in subsection 58(1) of SARA will apply to any ongoing or future human activities that could result in the destruction of any part of the Beluga Whale, SLE population’s critical habitat (other than the portions of the critical habitat found in places described under subsection 58(2) which are protected under subsection 58(1) 90 days after the description of the critical habitat in these places is published in the Canada Gazette) and enables the Crown to prosecute for any such destruction. This will allow further support management of human activities in the critical habitat and allow for the prosecution of any unauthorized destruction of the critical habitat under SARA.

Under SARA, an activity that will destroy a part of the species’ critical habitat may be permitted by the MFO if (a) the activity is scientific research relating to the conservation of the species and conducted by qualified persons; (b) the activity benefits the species or is required to enhance its chance of survival in the wild; or (c) affecting the species is incidental to the carrying out of the activity. The permit may be issued only if the MFO is of the opinion that the following three conditions are met:

Examples of threats to the habitat of the Beluga Whale, SLE population include, but are not limited to, habitat loss and disturbance, especially anthropogenic noise caused by marine navigation and whale watching activities and reduction in the abundance, availability and quality of prey (e.g. capelin, Atlantic herring, sand lance, and rainbow smelt).

The following are examples of activities likely to destroy the critical habitat of this species: (see footnote 3)

It is important to note that these activities are not prohibited; rather, it is the destruction of critical habitat caused by human activities that will be prohibited once the Order is made. SARA provides for conservation agreements that can be entered into by the MFO with any government in Canada, organization or person to benefit a species at risk or enhance its survival in the wild, and allows for the making of regulations, codes of practice, and national standards or guidelines with respect to the protection of critical habitat.

Under certain conditions, competent ministers may authorize activities which would otherwise contravene the SARA prohibitions. SARA provides tools such as permits that can be issued with conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.

A person who, without a permit, carries out an activity that contravenes one of the prohibitions under SARA commits an offence. The Act provides for penalties for contraventions, including fines or imprisonment, seizure and forfeiture of things seized or of the proceeds of their disposition. Alternative measures agreements are also available.

The Order comes into force on the day it is registered and triggers the prohibition in subsection 58(1) of SARA, which confers legal protection to the Beluga Whale, SLE population’s critical habitat. This will facilitate efforts to support the survival and recovery of the species.

Consultation

Consultations with provincial agencies, Aboriginal organizations and First Nations communities were held in 2010 while the Recovery Strategy was being developed. Letters and emails were sent to representatives of the ministère du Développement durable, de l’Environnement, de la Faune et des Parcs du Québec, the ministère des Ressources naturelles du Québec and Aboriginal communities and organizations located within the distribution area of the Beluga Whale, SLE population. Comments received after these consultations were integrated into the proposed version of the Recovery Strategy. Environment Canada (including the Parks Canada Agency) was also engaged during this period.

The proposed Recovery Strategy was posted on the Species at Risk Public Registry from September 26, 2011, to November 25, 2011. To enhance opportunities for comments on the proposed Recovery Strategy, letters were sent to over 65 stakeholders, including non-governmental organizations, Aboriginal organizations, First Nations communities, marine observation activity providers, regional environmental councils, maritime industries, and ferry companies.

Following these consultations, some stakeholders proposed that the critical habitat of the Beluga Whale, SLE population be expanded to include the northern portion of the lower SLE. In May 2010, the recovery team for the Beluga Whale, SLE population, had not included the northern portion of the lower estuary in their recommendation as to what should be identified as critical habitat. However, critical habitat identification may evolve in response to three scheduled studies planned to be completed in 2016.

Representatives of one Aboriginal community that operates marine mammal watching activities within the proposed area of critical habitat of the Beluga Whale, SLE population expressed concerns that the identification of critical habitat would restrict its activities. Marine mammal watching activities, as currently practised by the industry, lead to diffuse noise pollution which has not been identified as likely to cause the destruction of critical habitat. Such activities will not be affected by the Order if they continue in their current form.

Overall, the Recovery Strategy was well received by the stakeholders who were consulted on or provided comments on the proposed Recovery Strategy. However, because there was no formal consultation on the Order to be made under subsections 58(4) and (5) of SARA, an additional opportunity for comment on the Order was made by prepublishing in the Canada Gazette, Part I, for a 30-day period.

Comments received following prepublication of the proposed Ministerial Order in the Canada Gazette, Part I

The proposed Critical Habitat Order was published in the Canada Gazette, Part I, on May 14, 2016 (Vol. 150, No. 20), for a 30-day public comment period. Comments were received from the Government of Quebec, a First Nation and a lobby association.

Comments were positive, with no respondents disputing the Order. The majority of respondents sought clarification on the scope of application of the Order, both in terms of the area covered, as well as which commercial activities could potentially be affected.

With regards to the area covered, a First Nation was under the impression that the application of the Order only included the Îles de l’Estuaire National Wildlife Area and the Île aux Basques Migratory Bird Sanctuary areas, and believed these areas to be insufficient. However, as identified in the Recovery Strategy for the Beluga Whale (Delphinapterus leucas), St. Lawrence Estuary Population in Canada, the critical habitat protected by this Order extends from the Battures aux Loups Marins to the southern portion of the Estuary, off Saint-Simon, as well as the lower reaches of the Saguenay River, as was recommended for inclusion by the respondents.

One respondent questioned how the Order would affect any potential increase in shipping through the critical habitat of the Beluga Whale, SLE population. With regard to existing activities, in particular shipping, Fisheries and Oceans is already working with stakeholders and partners to understand if impacts from shipping on Beluga Whale, SLE population and other marine mammals are occurring, and, if so, how they can be mitigated. In addition, efforts to address potential effects of noise from existing and future activities, such as shipping, will be included in the development of a SARA Action Plan for the Beluga Whale.

The government of Quebec was supportive of the Order and stressed the need to have its Ministries (the ministère du Développement durable, de l’Environnement et de la Lutte contre les changements climatiques and the ministère des Forêts, de la Faune et des Parcs) work with DFO to harmonize efforts on the recovery of the Beluga Whale, SLE population. In particular, the Government of Quebec highlighted pre-existing federal and provincial legislative and regulatory mechanisms in the aiding of beluga whale recovery, and underlined that the decision to proceed with the Order would have implications for Quebec in fulfilling its responsibilities in matters of project analysis and the authorization of environmental approvals.

The Government of Canada is committed to strengthening the protection of species at risk and to taking the necessary steps to attain healthy ecosystems for present and future generations. As partners under the Cooperation Agreement for the Protection and Recovery of Species at Risk in Quebec, both governments coordinate their activities in relation to the protection and recovery of species at risk of common interest and their habitats and collaborate in order to avoid duplication.

With regards to the change in the classification of this species under Schedule 1 of SARA from threatened to endangered; no public consultations were undertaken. The change in classification does not affect the protection already afforded to the Beluga Whale, SLE population under the Act, nor this Order and will not add any additional burden on stakeholders.

Rationale

Purpose

Under SARA, the critical habitat of aquatic species identified in a recovery strategy must be legally protected within 180 days after the posting of the final recovery strategy on the Species at Risk Public Registry. Critical habitat not mentioned in subsection 58(2) must be protected either by the application of the prohibition against the destruction of 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 of SARA. It is important to note that in order for another federal law to be used to legally protect critical habitat, it must provide an equivalent level of legal protection of critical habitat as would be afforded through subsection 58(1) of SARA, failing which, the Minister must make an Order under subsections 58(4) and (5) of SARA. Therefore, this Critical Habitat of the Beluga Whale (Delphinapterus leucas) St. Lawrence Estuary Population Order is intended to satisfy the obligation to legally protect critical habitat by triggering the prohibition under SARA against the destruction of any part of the species’ critical habitat.

Existing regulatory mechanisms

Works, undertakings or activities (projects) likely to destroy the critical habitat of the Beluga Whale, SLE population are currently already subject to other federal regulatory mechanisms.

Table 1 provides examples of key existing federal regulatory mechanisms that apply to the critical habitat of the Beluga Whale, SLE population.

TABLE 1: Examples of existing federal regulatory mechanisms

Act or Regulations

Application to critical habitat

Species at Risk Act, subsection 32(1)

Prohibits, among other things, the killing, harming or harassing of individuals of the Beluga Whale, SLE population in Canada. Activities that would contravene this prohibition require an authorization under SARA in order to proceed. Activities likely to destroy critical habitat are also likely to kill, harm or harass individuals of this species.

Therefore, anyone intending to carry out such activities is already subject to this prohibition.

Species at Risk Act, section 74

Under this section, an agreement, permit, licence, order or other similar document authorizing a person or organization to engage in an activity affecting, among other things, critical habitat, that is entered into, issued or made by the competent minister under another Act of Parliament has the same effect as an agreement or permit under subsection 73(1) of SARA if, among others, before it is entered into, issued or made, the competent minister is of the opinion that the requirements of subsections 73(2) to (6.1) are met.

The Department of Fisheries and Oceans currently provides mechanisms for ensuring that activities authorized under other federal legislation applicable to the critical habitat of the Beluga Whale, SLE population address key threats to its survival or recovery.

Additional detail is provided in the section below titled "Application of the Critical Habitat Order."

Species at Risk Act, subsections 75(1) and (2)

Allows a competent minister to add terms and conditions to protect, among other things, any part of critical habitat to any agreement, permit, licence, order or other similar document authorizing a person to engage in an activity affecting, among other things, the critical habitat of the Beluga Whale, SLE population, that is entered into, issued or made by the competent minister under another Act of Parliament.

A competent minister may also revoke or amend any term or condition in any of those documents to protect, among other things, identified critical habitat.

To date, no amendments have been made to such documents with respect to activities in the critical habitat of the Beluga Whale, SLE population and none are anticipated in the foreseeable future.

Species at Risk Act, subsection 77(1)

Under this provision, any person or body, other than a competent minister, authorized under an Act of Parliament other than SARA, to issue or approve a licence, a permit or any other authorization that might result in the destruction of any part of the critical habitat of the Beluga Whale, SLE population may enter into, issue, approve or make the authorization only if the person or body has consulted with the competent minister, has considered the impact on the species’ critical habitat and is of the opinion that

  • (a) all reasonable alternatives to the activity that would reduce the impact on the species’ critical habitat have been considered and the best solution has been adopted; and
  • (b) all feasible measures will be taken to minimize the impact of the activity on the species’ critical habitat.

To date, the MFO has not been consulted on the issuance of any licences, permits or other authorizations that might result in the destruction of any part of the critical habitat of the Beluga Whale, SLE population. The Department of Fisheries and Oceans works proactively with other departments to ensure that critical habitat destruction is avoided or mitigated to the extent possible.

Species at Risk Act, section 79

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) of the project if it is likely to affect a listed species or its critical habitat.

In such a case, the person must identify the adverse effects of the project on the listed wildlife species and its critical habitat. 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 measures must be taken in a way that is consistent with any applicable recovery strategy and action plans.

Fisheries Act, subsection 7(1)

The MFO may, in his or her absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on.

For example, the prey quantity and quality of the beluga whale is a key feature of their critical habitat. Prey removal is currently authorized through Fisheries Act licences which are issued in accordance with Department of Fisheries and Oceans’ Sustainable Fisheries Framework. The Policy on New Fisheries for Forage Species includes as an objective maintaining ecological relationships (e.g. predator-prey and competition) among species affected directly or indirectly by the fishery within the bounds of natural fluctuations in these relationships.

Fisheries Act, section 35

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 unless authorized.

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 critical habitat of the Beluga Whale, SLE population.

Additional detail is provided in the section below titled "Application of Critical Habitat Order."

Fisheries Act, section 36

Prohibits the deposit of deleterious substances in waters frequented by fish, unless authorized by regulation. Deposits can be authorized under specific conditions by regulation under the Fisheries Act.

Thus, prohibition of the deposit of deleterious substances in areas identified as critical habitat of the Beluga Whale, SLE population also contributes to the protection of the critical habitat.

Fisheries Act, Marine Mammal Regulations, section 7

Prohibits the disturbance of a marine mammal except when fishing for marine mammals under the authority of these Regulations.

Canada Shipping Act, 2001

One of the objectives of this Act includes protection of the marine environment from damage due to navigation and shipping activities, including a framework for a Regional Response Team, whose role is to initiate cleanup operations in case of a spill.

Ballast Water Control and Management Regulations, SOR/2011-237

The Ballast Water Control and Management Regulations seek to reduce the likelihood of harmful aquatic organisms or pathogens being introduced into waters under Canadian jurisdiction and set out requirements for ballast water exchange and management.

Vessel Pollution and Dangerous Chemicals Regulations, SOR/2012-69

The Vessel Pollution and Dangerous Chemicals Regulations seek to minimize vessel-based marine pollution by adopting standards that are additional or complementary to the International Convention for the Prevention of Pollution from Ships of 1973 and its Protocols of 1978 and 1997.

Canadian Environmental Assessment Act, 2012

The proponent of any designated project in the critical habitat of the Beluga Whale, SLE population must not do any act or thing in connection with the carrying out of the designated project, in whole or in part, if that act or thing may cause an environmental effect, unless

  • (a) the Canadian Environmental Assessment Agency makes a decision, pursuant to the Act, that no environmental assessment of the designated project is required; or
  • (b) the proponent complies with the conditions included in the decision statement with respect to that designated project.

Under the Act, environmental effects that are to be taken into account in relation to an act or thing, a physical activity, a designated project or a project are a change that may be caused to the following components of the environment that are within the legislative authority of Parliament:

  • (i) fish and fish habitat as defined in subsection 2(1) of the Fisheries Act; and
  • (ii) aquatic species as defined in subsection 2(1) of the Species at Risk Act.

Canadian Environmental Protection Act,1999, Part 7, Division 3 ("Disposal at Sea")

Regulates disposal at sea. Applications are reviewed and permits are issued by Environment Canada. Process to incorporate the Department of Fisheries and Oceans’ mandated considerations (aquatic Species at Risk concerns, Fisheries Act concerns) already in place.

Saguenay-St. Lawrence Marine Park Act, Marine Activities in the Saguenay-St. Lawrence Marine Park Regulations

The operator of a vessel must maintain a minimum distance of 400 m between the vessel and a marine mammal of a species that is listed as endangered or threatened, such as the Beluga Whale, SLE population.

As well, the number of tour boats allowed to operate in the marine park is limited by a permit system and the speed and length of stay at the observation sites is limited.

TABLE 2: Examples of existing provincial regulatory mechanisms

Act or Regulations

Application to critical habitat

An Act to limit oil and gas activities

The effect of this 2011 provincial Act is that no mining right may be issued under Divisions IX to XIII of Chapter III of the Mining Act for part of the St. Lawrence River, including the area that includes critical habitat of the Beluga Whale, SLE population.

Thus, no licence may be issued for such activities as geophysical surveys to determine whether geological conditions are favourable to exploration for petroleum, natural gas or underground reservoirs.

TABLE 3: Examples of voluntary mechanisms

Measure

Application to critical habitat

Statement of Canadian Practice with respect to the Mitigation of Seismic Sound in the Marine Environment

Among other things, seismic surveys must be planned to avoid significant adverse effect for an individual marine mammal species listed as endangered or threatened in Schedule 1 of the Species at Risk Act.
Application of the Critical Habitat Order

The Order, on coming into force, triggers the prohibition under subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Beluga Whale, SLE population that is included within the scope of the Order. The Order complements the existing federal regulatory framework by formally establishing and clearly communicating the legal protection of critical habitat for the species in question as required by subsections 58(4) and (5) of SARA.

As summarized in the table above, there is an existing framework of federal regulatory mechanisms that offers protection to the Beluga Whale, SLE population and its critical habitat.

Based upon the best evidence currently available, it is anticipated that the application of the existing regulatory mechanisms is sufficient to manage the application of the prohibition in subsection 58(1) without the need for additional compliance and administrative measures on the part of Canadians and Canadian businesses. Fisheries and Oceans Canada anticipates that there are no planned or ongoing activities within the critical habitat of the Beluga Whale, SLE population that would need to be mitigated by Canadians or Canadian businesses beyond the requirements of existing federal and provincial legislative or regulatory mechanisms to avoid destruction of any part of critical habitat. That being said, should any future activities result in the destruction of any part of the critical habitat of the Beluga Whale, SLE population, they would be subject to the stringent requirements of SARA triggered through the making of this Order.

For added specificity, it should be noted that Fisheries Act authorizations are already required for applicants who seek to carry out any work, undertaking or activity that results in permanent alteration to, or destruction of, the critical habitat of the Beluga Whale, SLE population. Fisheries and Oceans Canada provides a single window for proponents to apply for an authorization under paragraph 35(2)(b) of the Fisheries Act that will have the same effect as a permit issued under subsection 73(1) of SARA, as provided for by section 74 of SARA. For example, in cases where it is not possible to avoid the destruction of critical habitat, the project would either be unable to proceed, or the proponent could apply to the Minister of Fisheries and Oceans for a permit under section 73 of SARA or an authorization under section 35 of the Fisheries Act that is compliant with section 74 of SARA. In either case, the SARA permit or the Fisheries Act authorization would contain terms and conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.

In considering applications for authorizations under the Fisheries Act that would, if approved, have the same effect as a permit under section 73 of SARA, the MFO is required to form the opinion that the activity is for a purpose set out in subsection 73(2) of SARA — that is, that the activity is scientific research relating to the conservation of the species and conducted by qualified persons, that the activity benefits the species or is required to enhance its chance of survival in the wild, or that affecting the species is incidental to the carrying out of the activity. Furthermore, the pre-conditions set out in subsection 73(3) of SARA must also be satisfied. With respect to the latter, this means that prior to issuing SARA-compliant Fisheries Act authorizations, the MFO must be of the opinion that all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted; that all feasible measures will be taken to minimize the impact of the activity on the species, its critical habitat or the residences of its individuals; and that the activity will not jeopardize the survival or recovery of the species.

The future impact of the Order was assessed by reviewing the scale and types of past “projects” that were assessed by Fisheries and Oceans Canada and that occurred within or adjacent to the Beluga Whale, SLE population critical habitat from 2004 to 2015. Most of these “projects” were minor and involved maintenance dredging, repair or construction of docks or marinas, repair of roads along the shore and maintenance of ferry causeways. The advice provided by Fisheries and Oceans Canada for these “projects” took the presence of the species into consideration, and the destruction of critical habitat was avoided. These types of projects will continue to be managed under the existing legislative framework after the entry into force of the Order.

Recently the province of Quebec has pledged to help finance a development plan for an industrial port zone in Cacouna near the critical habitat of the Beluga Whale, SLE population. This project is already subject to existing federal regulatory mechanisms such as Fisheries Act authorizations and SARA permits which are required for applicants who seek specific permission to contravene prohibitions under subsection 32(1) of SARA and subsection 35(1) of the Fisheries Act. Should any future activities arising from this project result in the destruction of any part of the critical habitat of the Beluga Whale, SLE population, they would be subject to the stringent requirements of SARA triggered through the making of this Order, as well as the existing federal regulatory mechanisms outlined in Table 1 above.

Based on the best available information, Fisheries and Oceans Canada has also determined that there are no future projects anticipated within the critical habitat that would need to be mitigated by Canadians or Canadian businesses beyond the requirements of the existing federal regulatory mechanisms highlighted in Table 1 above to avoid either destruction of any part of critical habitat or jeopardy to the survival or recovery of the species.

Cost-benefit analysis

Considering the existing federal regulatory mechanisms in place, the incremental costs and benefits are anticipated to be negligible. The proposed Order is not anticipated to result in incremental costs to Canadian businesses and Canadians. However, the federal government may incur some negligible costs as it will undertake some additional activities associated with compliance promotion and enforcement, the costs for which would be absorbed through existing funding allocations. The compliance promotion and enforcement activities to be undertaken by the Department, in combination with the continuing outreach activities undertaken as part of the identification process of critical habitat during the development of the Recovery Strategy and Action Plan, may also contribute towards behavioural changes on the part of Canadian businesses and Canadians (including Aboriginal groups) that could result in incremental benefits to the species, its habitat or the ecosystem. However, these incremental benefits cannot be assessed qualitatively or quantitatively at this time due to the absence of information on the nature and scope of the behavioural changes as a result of these outreach activities.

“One-for-One” Rule

Given that the information requirements of the existing regulatory mechanisms are sufficient to promote compliance with the prohibition against destruction of critical habitat triggered by this Order, with no incremental administrative burden on businesses anticipated, the “One-for-One” Rule does not apply to this Order. Notwithstanding this analysis, this Order must be made to satisfy the obligation to legally protect critical habitat by triggering the prohibition under SARA against the destruction of any part of the Beluga Whale, SLE population’s critical habitat.

Small business lens

At present, compliance of small business is being met through the administration of the existing federal regulatory mechanisms. In addition to federal approvals under other Acts, Fisheries Act authorizations and SARA permits are already required for applicants who seek specific permission to contravene prohibitions under subsection 32(1) of SARA and subsection 35(1) of the Fisheries Act.

Fisheries and Oceans Canada offers a single window to proponents to apply for a SARA permit under section 73, or for an authorization under paragraph 35(2)(b) of the Fisheries Act, as provided for by section 74 of SARA. Therefore, the small business lens does not apply to this Order, as there is no incremental costs to small business.

Implementation, enforcement and service standards

Fisheries and Oceans Canada continues to advise stakeholders on an ongoing basis with regard to technical standards and specifications on activities that may contribute to the destruction of the Beluga Whale, SLE population habitat. These standards and specifications are aligned with those that will be required once the Order comes into force. Fisheries and Oceans Canada also advises stakeholders on compliance specifications for other acts and regulations administered by the Department that apply to the species’ habitat.

The existing federal regulatory mechanisms apply to the critical habitat of the Beluga Whale, SLE population. The Order provides a further deterrent in addition to the existing regulatory mechanisms and specifically safeguards the critical habitat of the Beluga Whale, SLE population through penalties and fines under SARA, resulting from both summary convictions and convictions on indictment.

A contravention of subsection 58(1) of SARA has the same maximum fines as for a contravention of subsection 32(1) of SARA. 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 to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both. It should be noted that maximum fines for a contravention of the prohibitions in subsections 35(1) and 36(3) of the Fisheries Act are higher than maximum fines for the contravention of the prohibitions in subsections 32(1) and 58(1) of SARA.

Any person planning on undertaking an activity within the critical habitat of the Beluga Whale, SLE population should inform himself or herself as to whether that activity might contravene one or more of the prohibitions under SARA and, if so, should contact Fisheries and Oceans Canada.

For more details on applying for a SARA permit under section 73, or for SARA-compliant Fisheries Act authorizations contemplated by section 74 of SARA, please visit http://www.dfo-mpo.gc.ca/species-especes/sara-lep/permits-permis/index-eng.html, or contact the Fisheries Protection Program at http://www.dfo-mpo.gc.ca/pnw-ppe/contact-eng.html.

Contact

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