Regulations Amending the Marine Mammal Regulations: SOR/2018-126

Canada Gazette, Part II, Volume 152, Number 14

Registration

June 22, 2018

FISHERIES ACT

P.C. 2018-842 June 21, 2018

Her Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to section 43 footnote a of the Fisheries Act, footnote b makes the annexed Regulations Amending the Marine Mammal Regulations.

Regulations Amending the Marine Mammal Regulations

Amendments

1 The long title of the Marine Mammal Regulations footnote 1 is replaced by the following:

Marine Mammal Regulations

2 Section 1 of the Regulations and the heading before it are repealed.

3 Subsection 2(1) of the Regulations is amended by adding the following in alphabetical order:

Department means the Department of Fisheries and Oceans; (ministère)

4 Section 3 of the Regulations is replaced by the following:

3 These Regulations apply in respect of

5 The Regulations are amended by adding the following after section 3.1:

3.2 In the event of any inconsistency between these Regulations and any regulations respecting marine mammals made under the Oceans Act, the Saguenay-St. Lawrence Marine Park Act or the Canada National Marine Conservation Areas Act, the regulations made under those Acts shall prevail to the extent of the inconsistency.

3.3 In the event of any inconsistency between these Regulations and the Canadian Aviation Regulations, the latter shall prevail to the extent of the inconsistency.

6 Section 7 of the Regulations is replaced by the following:

7 (1) No person shall disturb a marine mammal except

(2) For the purposes of subsection (1), disturb includes to approach the marine mammal to, or to attempt to,

(3) For the purposes of subsection (1), in the case of a marine mammal that is of a species set out in column 1 of Schedule VI, disturb also includes to approach the marine mammal with a vehicle of the type set out in column 2 within the approach distance set out in column 3 in the area set out in column 4 during the period set out in column 5.

(4) For the purposes of subsection (1), in the case of a whale, dolphin or porpoise in resting position or with its calf, disturb also includes to approach the whale, dolphin or porpoise with a vehicle of the type set out in column 2 of Schedule VI, at an approach distance of less than 200 m in all Canadian fisheries waters from January 1 to December 31.

(5) The requirement to respect the approach distances set out in Schedule VI and in subsection (4) does not apply to

7.1 The prohibition set out in section 7 does not apply to

7.2 (1) When an aircraft is being operated at an altitude of less than 304.8 m (1,000 ft.) within a radius of one-half nautical mile from a marine mammal, no person shall perform a flight manœuvre — including taking off, landing or altering the course or altitude of the aircraft — for the purpose of bringing the aircraft closer to the marine mammal or otherwise disturbing it.

(2) Subsection (1) does not apply

(3) Despite subsection (1), the holder of a seal fishery observation licence is permitted to take off or land an aircraft within a radius of one-half nautical mile from a marine mammal for the purpose of conducting activities authorized by the licence.

7 Section 11 of the Regulations is repealed.

8 Paragraph 33(2)(d) of the Regulations is replaced by the following:

9 The Regulations are amended by adding the following after section 37:

PART V

Marine Mammal Disturbance

Authorized Disturbance

38 (1) Despite sections 7 and 7.2, the Minister may authorize the disturbance of marine mammals if it is established that the activity causing the disturbance

(2) The authorization may be subject to any condition respecting

Accidental Contact with Marine Mammals

39 Immediately after any accidental contact between a vehicle or fishing gear and a marine mammal, the operator of the vehicle or the fishing gear, as the case may be, shall — unless the contact is reported as a bycatch in a log book — notify the Minister of

10 The Regulations are amended by adding, after Schedule V, the Schedule VI set out in the schedule to these Regulations.

Coming into Force

11 These Regulations come into force on the day on which they are registered.

SCHEDULE

(Section 10)

SCHEDULE VI

(Subsections 7(3) to (4))

Approach Distances to Marine Mammals

Item

Column 1


Species of Marine Mammal

Column 2

Vehicles — Except Aircraft in Flight

Column 3


Approach Distance

Column 4



Area

Column 5



Period

1

Whale, dolphin and porpoise

All

100 m

Subject to items 2 to 4, all Canadian fisheries waters

January 1 to December 31

2

Whale, dolphin and porpoise

All

200 m

Subject to item 3, that portion of the waters of the St. Lawrence Estuary described as follows:

January 1 to December 31
  • (a) bordered on the north and south by the coast;
  • (b) bordered on the west by straight lines joining the following points in order of presentation:
  
 

Point

North

Latitude

West

Longitude

  
 

1

47°16′05″

70°13′45″

  
 

2

47°12′10″

70°28′21″
 

3

47°23′35″

70°29′48″
  • (c) bordered on the east by straight lines joining the following points in order of presentation:
  
 

Point

North

Latitude

West

Longitude

  
 

1

49°15′44″

68°06′06″

  
 

2

48°41′35″

67°56′49″
  • (d) excluding the waters bordered by the coast and straight lines joining the following points in order of presentation:
  
 

Point

North

Latitude

West

Longitude

  
 

1

Point at the intersection of the boundary line between lots A-4 and A-5 of Range A of the township of Escoumins

  
 

2

48°17′28″

69°17′17″

  
 

3

48°06′25″

69°29′38″

  
 

4

48°04′30″

69°31′42″

  
 

5

47°52′54″

69°37′17″

  
 

6

47°51′21″

69°39′00″

  
 

7

47°48′16″

69°42′43″

  
 

8

47°38′39″

69°53′16″

  
 

9

Point situated on the boundary line between lots 252 and 254 of the
Saint-Paul Range, cadastre of the parish of Saint-Fidèle (Gros Cap-à-l’Aigle)

  

3

Whale, dolphin and porpoise, if a threatened species or endangered species as defined in the Species at Risk Act:

endangered species means a wildlife species that is facing imminent extirpation or extinction. (espèce en voie de disparition)

threatened species means a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction. (espèce menacée)

All

400 m, or any greater distance that is provided for under the Species at Risk Act

That portion of the waters of the St. Lawrence Estuary including

  • (a) the waters of the St. Lawrence upstream of a line joining the following points in order of presentation:

January 1 to December 31
 

Point

North

Latitude

West

Longitude
 

1

49°20′00″

67°23′00″
 

2

49°00′00″

67°00′00″
  • (b) the waters of the Saguenay River upstream of a line joining the following points in order of presentation:
 

Point

North

Latitude

West

Longitude
 

1

48°05′52″

69°42′24″
 

2

48°08′02″

69°41′10″

4

Beluga whale

Vessels

50 m

That portion of the waters of the Churchill Estuary described as follows:

  • (a) bordered on the north by lat. 58°50′30″ N;
  • (b) bordered on the west by a line extending from a point situated at lat. 58°50′30″ N, long. 94°16′30″ W, south to the coast;
  • (c) bordered on the east by a line extending from a point situated at lat. 58°50′30″ N, long. 94°08′30″ W, south to the coast;
  • (d) including the waters of the Churchill River south to the weir (approximately lat. 58°40′45″ N).

June 1 to October 31

That portion of the waters of the Seal River from a central point situated at lat. 59°05′ N, long. 94°47′ W, described as follows:

  • (a) bordered on the north by a line 2 nautical miles (5 km) north of the central point and extending from the coast along lat. 59°07′ N to a point 2 nautical miles (5 km) offshore;
  • (b) bordered on the south by a line 2 nautical miles (5 km) south of the central point and extending from the coast along lat. 59°03′ N to a point 2 nautical miles (5 km) offshore;
  • (c) bordered on the east by a line joining points (a) and (b);
  • (d) including the waters of the Seal River.

5

Walrus

All

100 m

Subject to item 6, all Canadian fisheries waters

January 1 to December 31

6

Walrus

All

200 m

On the ice of Canadian fisheries waters

June 1 to October 31

7

Walrus

All

300 m

On the shores of Canadian fisheries waters

June 1 to October 31

8

Killer whale

All

200 m

Subject to item 3, in all Canadian fisheries waters in the Pacific Ocean and British Columbia

January 1 to December 31

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The cumulative effects of repetitive exposure to and interaction with humans via whale watching and related activities can interrupt or prevent marine mammals from completing normal life processes (e.g. mating, calving and nursing) and threaten the survival of individual animals. While section 7 of the Marine Mammal Regulations (MMR) currently prohibits any activity that would disturb a marine mammal, it does not specify the types of activities that are prohibited and is therefore difficult to communicate and enforce in a whale-watching context. Existing regional guidelines do provide some direction on how to approach and view marine mammals in a manner that minimizes disturbance to the animals; however, these guidelines are voluntary in nature, are not consistently followed, and do not have uniform application in all Canadian regions where whale watching occurs. As a result, whale-watching activities continue to represent a source of disturbance to marine mammals. In addition, the Department of Fisheries and Oceans (DFO) lacks a clear mechanism under the existing Regulations to authorize beneficial activities such as scientific research, and there has been inconsistent reporting of collisions and accidental contact between marine mammals and vessels or fishing gear.

Background

Marine mammal watching, often referred to as whale watching, includes tours by boat, by air or from land to see, swim with, and/or listen to any of the 83 species of whales, dolphins and porpoises and other marine mammals, such as seals, that are found in Canadian fisheries waters. Marine mammal watching can have important educational, environmental, scientific, and other socio-economic benefits. The public’s interest in whale watching has been increasing over the past three decades.

Watching marine mammals is a popular activity in Canada. In 1991, there were 185 200 whale watchers taking commercial tours. In the most recent published survey, in 2008, there were over 6.25 million whale watchers in North America, of which a total of 1.16 million carried out the activity in Canada. footnote 2 In 2015, an estimated 366 small to medium whale watching businesses were operating in Canada.

Well-intentioned watchers may unknowingly disturb marine mammals, displacing them from their habitat or disrupting them during their normal activities, such as nursing and feeding. If not done correctly, watching marine mammals may increase the risk of injury through collisions with boats or being slashed by their propellers. Whale watching activities can disturb individuals and groups and such disturbances, if repetitive and persistent over time, can produce harmful conservation impacts. A number of studies from around the world report on the various impacts that may be associated with whale watching. Approaching marine mammals too quickly, coming too close or making too much noise risks disrupting their activities and needlessly stressing the animals. Our impacts on them must be minimized if we are to continue watching them.

Objectives

The amendments to the MMR have the following objectives:

Description

The amendments to the MMR do the following:

1. Expand the scope of the MMR to include conservation and protection objectives

The amendments add conservation and protection to section 3 of the MMR, which defines the scope of application of the Regulations. The previous wording of section 3 was limited to the management and control of “fishing for marine mammals and related activities,” which did not clearly apply to activities such as whale watching and scientific research.

2. Define what it means to “disturb” a marine mammal for the purposes of the prohibition

The MMR currently prohibit the disturbance of marine mammals, but do not define this concept. The amendments more clearly define “disturb” by including several examples of what constitutes disturbance. These include the following: approaching or attempting to approach a marine mammal to feed it, swim or interact with it, move it or entice or cause it to move from the immediate vicinity in which it is found, separate it from its group or go between it and a calf, trap it or its group between a vessel and the shore or between a vessel and other vessels, or tag or mark it.

3. Introduce a general minimum approach distance of 100 metres (m) from marine mammals

The amendments introduced a general minimum approach distance of 100 m from certain species of marine mammals. Vessels that are in transit are exempt from this requirement.

4. Introduce alternative approach distances that are tailored to particular circumstances

In addition to the general minimum 100 m approach distance, the amendments allow minimum approach distances other than 100 m in some circumstances, depending on the species of marine mammal, type of vehicle, location and period of the year. These alternative approach distances allow for the general restrictions on approaching certain species of marine mammals to be tailored to accommodate unique species, regional or local needs. The various alternative minimum approach distances are set out in schedule VI to the MMR, as follows:

5. Introduce a provision prohibiting flight manoeuvres

The amendments prohibit flight manoeuvres, including taking off, landing or altering the course or altitude of the aircraft for the purpose of bringing the aircraft closer to a marine mammal or otherwise disturbing it. This prohibition is applicable when the aircraft is being operated at an altitude of less than 304.8 m (1 000 ft.) within a radius of one-half nautical mile from the marine mammal.

This provision does not apply to commercial aircraft operating on a scheduled flight plan. Holders of seal fishery observation licences or an authorization to disturb are permitted to take-off or land an aircraft within the half-mile radius in order to be able to conduct their authorized activities.

The provision does not apply, either, to a helicopter being used for seal pup observation on the ice of Canadian fisheries waters in the St. Lawrence Estuary if that helicopter maintains a distance of at least two metres from a seal pup.

6. Introduce a provision to allow the Minister of Fisheries and Oceans to authorize beneficial activities that may disturb marine mammals

This provision will be used to authorize activities that may disturb individual animals, but that would contribute to the conservation and protection of marine mammals. It can also be used to provide authority for activities to assist animals that are in distress. As well, marine scientific research may be authorized even if there were no direct or indirect benefits to the conservation and protection of marine mammals.

Under the amendments, the disturbance of marine mammals will also be allowed where the person is authorized to fish for marine mammals or where the disturbing activity is authorized by licence issued of the Fishery (General) Regulations, or is carried out in a manner that is authorized under the Species at Risk Act.

An exemption from the disturbance prohibition is also provided in the MMR for employees of DFO, the Parks Canada Agency and the Department of National Defence, members of the Canadian Forces and peace officers who are performing their duties or functions.

7. Introduce an exception to the prohibition on disturbance of marine mammals for any work, undertaking or activity authorized under the Fisheries Act

The exception clarifies that works, undertakings or activities authorized under the Fisheries Act will not be subject to the prohibition on disturbance of marine mammals.

8. Introduce a provision that requires the reporting to DFO of any accidental contact between a marine mammal and a vehicle or fishing gear

Immediately after any accidental contact between a vehicle or fishing gear and a marine mammal, the operator of the vehicle or the fishing gear is required by these amendments to notify the Minister of the date, time and location of the incident; the species of marine mammal involved in the incident; the circumstances of the incident; the weather and sea conditions at the time of the incident; the observed state of the marine mammal after the incident; and the direction of travel of the marine mammal after the incident, to the extent that it can be determined.

“One-for-One” Rule

These regulatory amendments trigger the “One-for-One” Rule footnote 3 as they will impose a new administrative burden on business as a result of the new requirement for businesses to apply for an authorization to disturb marine mammals, where such disturbance is anticipated, and for notifying DFO in the case of accidental contact between a marine mammal and a vessel or fishing gear.

Under the amendments, businesses wishing to apply for a disturbance authorization will experience increased administrative costs as a result of having to fill out an application form. The annualized average administrative costs related to applying for disturbance authorizations have been estimated at $512 (constant 2012 $).

The administrative costs for disturbance authorizations were calculated based on the following assumptions:

The administrative burden was calculated based on businesses having to obtain the necessary information to complete the application for a disturbance authorization footnote 4, as well as ensuring the information provided in the application form was accurate. The Department is estimating that the application process, although iterative, will take businesses about one hour to complete from start to finish. All estimates of the time came directly from discussions that the Department had undertaken with affected businesses.

The annualized administrative cost to business related to the mandatory reporting of accidental contacts is estimated at $227 (constant 2012 $). The annualized average cost per transaction (i.e. reporting of accidental contact) is estimated to be approximately $3 (constant 2012 $).The administrative costs for contact reporting were calculated based on the following assumptions:

The administrative burden was calculated based on businesses having to take the time to report the accidental contact. The Department is estimating that businesses will spend an estimated 30 minutes to report the contact. This estimate came from discussions that the Department had undertaken with affected businesses.

Combined, the administrative burden on business as a result of applying for an authorization, and notifying Fisheries and Oceans Canada in the case of accidental contact with a marine mammal and a vessel or fishing gear will amount to an increase in annualized administrative costs estimated at $738 (constant 2012 $).

Small business lens

The small business footnote 6 lens does not apply to these regulatory amendments, as the costs are less than the one million dollar threshold.

Consultation

In 2002, Fisheries and Oceans Canada initiated informal discussions with the tour operator industry (i.e. whale watching businesses) on the need to control the effects of marine mammal watching on whales and other marine mammals in Canada. Formal consultations were organized based on the identified need to regulate the marine mammal watching industry and took place in two phases.

The first phase was completed between 2003 and 2004, and based on the initial informal discussions. DFO began formal consultations with the Canadian public concerning the United States’ then proposed Marine Mammals Viewing Regulations. The stakeholders consulted included ecotourism companies, researchers, biologists, recreational boaters, First Nations, non-governmental organizations, fishers, sport fishing advisory board members, and interested government departments. A total of 12 meetings were held in different communities in Quebec (Rivière-du-Loup, Les Escoumins, Sept-Îles and Gaspé) and British Columbia (Port McNeil, Queen Charlotte City, Tofino, Prince Rupert, Saturna Island, Vancouver and Victoria [two meetings]). Further to those meetings, consultations were also conducted by mail-out and via the Internet in New Brunswick, Nova Scotia and Newfoundland and Labrador from 2003 to 2004. Hunter and trapper organizations were also consulted in several remote communities in Manitoba and Nunavut.

In general, most of the excursion operators considered the development of Canadian whale watching provisions to be a long-awaited initiative that will provide a better framework for viewing activities.

Some elements of the regulatory intent were strongly opposed by stakeholders during this phase of the consultations (e.g. a proposed licensing regime for whale watching activities). In addition, questions were raised on all sections of the regulatory intent text during this phase of the consultations.

In March 2005, the second phase of public consultations was conducted through public meetings and mail-outs and by posting the information on Fisheries and Oceans Canada’s national and regional websites. For this consultation, and based on the feedback received in 2003–2004, DFO drafted the then proposed amendments to the MMRs and integrated an abbreviated version of the proposed amendments into a consultation workbook. At that time, the proposed amendments still included a provision to license whale watching vessels.

The consultation package used included an information bulletin, a consultation workbook, and a summary of the proposed amendments in the form of a PowerPoint presentation. During this phase of consultation, three additional public meetings were held in Victoria, Port McNeil and Vancouver. Fisheries and Oceans Canada mailed out the information bulletin and consultation workbook to approximately 300 organizations and interested people throughout Atlantic Canada. Consultation through mail-outs was used because it provided broader coverage in many areas of Canada where ecotourism was located away from large population centres.

The connection between disturbance and conservation was well accepted by the public as the basis for the development of the proposed amendments. The majority of responses supported placing greater emphasis on public education and information rather than relying on punitive measures. Most of the negative feedback from the consultations related to the licence requirement, and the suitability of the proposed minimum approach distance in all areas of the country.

With respect to the proposed licensing requirement (at the time), the whale watching industry representatives objected to the potential administrative burden of obtaining a licence, licence restrictions (e.g. licences for specific areas, viewing time restrictions, restrictions on the number of vehicles), and also the cost (if any). The smaller players in the industry voiced that they were already subject to significant regulatory costs. The small businesses stated that if new licensing fees were to be implemented, the more affluent operators would benefit and possibly create a monopoly over the industry as small operators would be put out of business. Indigenous groups commented that the amendments should be based on the needs of each species and their environment, but not to the detriment of Indigenous socio-economic development. In particular, they were concerned with a licensing requirement restricting entry into the whale watching industry. DFO considered these comments and determined that the objective of protecting marine mammals from disturbance could be achieved without licensing. The Department therefore modified the proposed amendments to the MMR by removing the licensing requirement.

With respect to the general approach distance of 100 m for marine mammal watching, it was considered to be a practical and comprehensible means to prevent disturbance to the animals; however, the practicality of setting a single approach distance that will be applicable to all areas and circumstances proved to be a very difficult task. Although 100 m is considered to be a nationally and internationally (in Australia and the United States) reasonable distance to prevent disturbance, after consultation in several locations, different distances were considered. Therefore, in response to these comments, it was decided that DFO would introduce a schedule to the Regulations that will tailor the approach distance to particular circumstances.

In addition, the implementation of a single approach distance in the proposed amendments led to some concerns from environmental non-governmental organizations. Specifically, the 100 m distance was viewed as not sufficient for Stellar sea lions and suggestions were made to increase the distance to 200 m, especially when the animals nurse their young (from May to July), and to increase the distance to 400 m during the same period in estuaries. The Department is seeking scientific advice with respect to this concern. This process may take several years but should an alternative approach distance be required, it would be added to the Schedule.

Overall, participants viewed these amendments as a long-awaited initiative that provides a flexible tool for management. Most stakeholders considered the distance restriction to be an excellent management measure. Excursion operators wanted recreational and scientific vessels to be equally covered by these Regulations, unless a special permit was granted (for the latter) on a case-by-case basis. A mandatory requirement to report contact or injured animals was deemed a worthwhile mechanism. Feedback showed an overall agreement with preventing people from disturbing marine mammals and their normal life processes. There was general consensus that an approach distance of 100 m was a minimum requirement that could be reviewed and increased over time.

The proposed amendments were published in the Canada Gazette, Part I on March 24, 2012, for a 60-day public comment period. A total of 31 comments were received from stakeholders across the country, including the whale watching industry, environmental non-governmental organizations, academia, a Wildlife Management Board in Nunavut, and the general public.

During prepublication, comments received from the industry, environmental non-governmental organizations and the U.S. government were supportive of the proposed amendments, particularly the expansion of the scope to minimize disturbance and cover interaction between marine mammals and vehicles.

In addition, some comments were received seeking clarification of the definition of the exempted commercial vessels. The Department has adjusted the amendments to restrict the exemption to vessels in transit.

The International Whaling Commission (IWC) requested that information on the size and type of vehicle involved in the incident also be submitted when reporting an incident to align with their international standards. Canada was initially a party to the International Convention for the Regulation of Whaling in 1946, but withdrew from the Convention ending its membership in the IWC in 1981. Canada has not renewed its membership in the IWC since then. However, the Department has modified the amendments in accordance with the IWC’s request.

Several comments were also received from various stakeholders during the pre-publication period asking that the approach distance for killer whales in Canadian Pacific waters be increased to 200 metres. One of the reasons raised for this request was to align with the U.S. Protective Regulations for Killer Whales in the Northwest Region Under the Endangered Species Act and the Marine Mammal Protection Act in which the approach distance for killer whales is 200 yards. As a response to these comments, the amendments will allow, depending on the species and circumstances, for different approach distances including a 200 m minimum approach distance for killer whales in Canadian fisheries waters in the Pacific Ocean and in the province of British Columbia, and specifies an area in the St. Lawrence Estuary where a minimum 400 m distance must be maintained when the whale, dolphin or porpoise is a threatened or endangered species as defined by the Species at Risk Act. In the narrow Churchill River area, a 50 m minimum approach distance must be applied in the case of belugas to allow for safe boating activities.

Two letters were received from the U.S.: one from the National Oceanic and Atmospheric Administration; and, one from the Washington Department of Fish & Wildlife. Both were very supportive of the proposed amendments and commended the Department for undertaking them. However, in both letters it was mentioned that they would like Canada to align its proposed approach distance for killer whales with the 200-yard distance adopted by U.S. federal and Washington State legislation.

Other comments

The Department received a comment from a whale watching company opposed to the inclusion of “swimming” as a form of “disturbance.” The Department is of the view that swimming with whales constitutes a disturbance under the proposed amendments. Furthermore, at present, this is an activity that the Department does not sanction because it leads to the habituation of marine mammals to vessels and human interaction. Swimming with marine mammals is discouraged due to possible serious negative consequences for humans and animals alike. For example, marine mammals used to interacting with vessels in one location are at a higher risk of collision with other vessels when completing their migrations.

Other comments were received from environmental non-governmental organizations recommending the addition of acoustic disturbance to the amendments. footnote 7 It should be noted that the Department has a statement footnote 8 to address this matter. The Department considers this an important issue to address and scientific research is underway to better evaluate the impacts of this type of disturbance so that options for mitigation can be considered in the future.

Environmental non-governmental organizations also suggested the addition of a licence for commercial whale watching vehicles. Consultations on the proposal to license whale watching vehicles occurred well before publication in the Canada Gazette, Part I. This provision was not included in the proposed amendments then since the intent to regulate the viewing of marine mammals could be achieved without licensing. Furthermore, there was no clear benefit to requiring licences since the MMR effectively apply to all vehicles and not only the commercial whale watching operators. The licences would not have added an extra level of benefit for the conservation and protection of marine mammals, and would have been costly for the Department to administer and an unfair burden to some business owners.

Additional suggestions from stakeholders included: a viewing time limit; limiting the number of vehicles circling a whale; specifying how to approach a marine mammal; restricting approaching from the front or back of the animals; and, limiting the approach speed. Rather than including these suggestions in the amendments, the Department will address these concerns through national guidelines footnote 9 that will accompany the amendments. The decision to address these concerns in this manner is based on feedback received during the initial consultations when stakeholders called on the Department to place greater emphasis on public education and information rather than relying on punitive measures.

Several representatives from environmental nongovernmental organizations and academia also suggested the closure of certain areas at certain times (e.g. for mothers with calves) or to introduce logbooks for whale watching vehicles to record species viewed, date and location. With respect to the first suggestion, the proposed schedule could be used as a tool should the Department determine, through appropriate consultation and scientific review, that there is a need for the modification of approach distances at specified times and locations. With respect to the second suggestion, Fisheries and Oceans Canada considered the suggestion of logbooks but did not include them in these amendments because they would result in a disproportionate burden to industry when compared to the benefits provided to marine mammals.

From November 2014 to March 2015, the Department undertook a targeted consultation on the proposed amendments with stakeholders who provided comments in 2012 and new known entrants into the whale tourism industry and non-government organizations. Comments received during this targeted consultation were similar to those previously heard during the Canada Gazette, Part I process.

Rationale

While previously the MMR prohibited the disturbance of marine mammals, the lack of a clear definition of the word “disturb” has made enforcement of the Regulations challenging and has created uncertainty for the public. In addition, although voluntary guidelines developed over the past 20 years through government and industry partnerships exist, they are not always adhered to and do not apply to recreational boaters.

Benefits

The marine mammal watching industry is accepted worldwide as a sustainable non-consumptive use of marine mammals. Responsible viewing of marine mammals provides the opportunity for people across all ages and cultures to become familiar with marine mammals and their critical habitat and to become involved in conservation efforts on a local, regional, national and international level. Awareness of approach distances and what constitutes disturbance of these animals, as presented in the amendments, will assist in raising awareness about the threats to marine mammals and promote a sustainable marine mammal watching industry.

In Canada, there are an estimated 366 small to medium whale watching businesses (Statistics Canada, 2015), of which 194 are located in British Columbia. In addition, there are thousands of recreational boaters who spend significant amounts of time engaged in marine mammal watching in specific habitat areas.

There is evidence that the presence of marine mammal watching vessels disrupts the normal activities of the animals in the short and long term. The large number of vessels that approach marine mammals too closely, move too quickly, operate too noisily, or pursue animals has a consequence on the life processes for whales and other marine mammals by changing the behaviour of targeted species. The amendments will benefit the animals by reducing disruptions caused by marine mammal watching activities. A reduction of the disruption will permit the animals to complete life processes such as communication, residential behaviour, movement, and feeding and caring for their young. Reducing disruptions will help reduce the risk to the conservation of marine mammals.

Amendments to the MMR require operators of a vehicle to report a collision or other accidental contact with a marine mammal. This reporting will provide DFO with information on marine mammal and incident densities in certain locations at certain times. Vessel strikes and noise from vessel operations are threats to some marine mammals, and knowledge of the frequency of these incidents will be helpful in making further management decisions regarding approach distances and vessel speed restrictions. Overall, this requirement will help DFO assess and address the types of threats that may be affecting marine mammals in Canada and in Canadian fisheries waters.

Costs

There are no anticipated costs to the tour operators to implement the proposed amendments, and there is no fee associated with applications under the proposed ministerial authorization to carry out activities that may disturb marine mammals. No new equipment will be required either to respect the approach distances or to report any accidental contact between a marine mammal and a vessel or fishing gear. There may be some minor administrative costs associated with the reporting of accidental contact, although they are expected to be infrequent and not a significant burden, since reporting simply involves either a phone call or an email. Fishers will be able to report incidents through their logbooks.

DFO currently monitors whale watching activities, therefore, additional enforcement costs to DFO are likely to be minimal, since monitoring of such activities is already in place.

Alignment with scientific advice and international standards

The maintenance of the minimum separation gap between vehicles (including vessels) and marine mammals as required by the amendments will provide a sufficient safety buffer for marine mammals and will reduce, in most cases, the impediment to the animal carrying out its normal life processes. There is no single approach distance that is appropriate for all species of marine mammals, vessel classes and seasons, nor for all situations as they relate to disturbing marine mammals. Based on the scientific advice it has received, DFO considers a 100 m approach distance to be appropriate for these species in most circumstances without unnecessarily restricting the public from enjoying the benefits of marine mammal viewing. The 200 m approach distance for killer whales is supported by published studies and evidence that this distance will reduce noise and vessel interference on whale foraging activities.

In addition, a 200-meter minimum approach distance is required for all marine mammals within an area adjacent to the Saguenay-St Lawrence Marine Park (see Regulations for exact description of the area) that contains high concentration of krill and capelin, making it a critical feeding ground of critical importance for many species of marine mammals. Every year, large numbers of cetaceans, including large whales, migrate to the area to feed and build up their energy reserves for the breeding season.

For marine mammals that are endangered or threatened, as defined by the Species at Risk Act, a 400-meter minimum approach distance is required in an area within the St Lawrence Estuary (specific coordinates provided in the Regulations), where, every year, large numbers of cetaceans, including large whales, migrate to the area to feed. Additionally, the critical habitat of the endangered Beluga Whale, St. Lawrence Estuary population extends into most areas within the St Lawrence Estuary.

The principle for determining the approach distances for walruses is related to the possibility of their escape without injuring smaller animals. On water, the approach distance of 100 m reflects the fact that the animals are most able to respond by changing course or diving. The approach distance of 200 m when the animals are on ice reflects the increased risk of injury to calves or smaller animals as adults return to the water. Finally, the distance of 300 m on land reflects the fact that the animals are often resting and have only one escape option (back to water), with a greater risk that calves may be trampled.

The approach limits specified in the amendments are also generally consistent with standards adopted internationally, including Australia’s Environment Protection and Biodiversity Conservation Regulations 2000 and most of the guidelines in the United States (U.S.). There are various guidelines, codes of conducts and best practices guides in the U.S. under which the approach distance to marine mammals varies depending on the region, state, and species. Although they are distinct in their application, these regulatory and non-regulatory instruments reflect a common purpose for conservation and protection of marine mammal species, and include rules such as keeping a minimum approach distance of 100 yards from all marine mammals. Moreover, the U.S. National Oceanic and Atmospheric Administration’s northwest office has established a regulatory requirement specific to killer whales in the Pacific region, which requires that vessels must not approach any killer whale by any distance less than 200 yards (183 m) and must stay 400 yards (366 m) out of the path of oncoming whales. Finally, vessels are forbidden to intercept a whale or position a vessel in the path of a whale.

Implementation, enforcement and service standards

Enforcement costs of these proposed amendments are not expected to increase. To ensure compliance, DFO will initiate an education and information program to inform the public and the marine mammal watching industry of the proposed regulatory changes.

Contacts

Melissa Landry
Resource Management
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Fax: 613-852-5619
Email: melissa.s.landry@dfo-mpo.gc.ca

Ramzi Yonis
Legislative and Regulatory Affairs
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Email: ramzi.yonis@dfo-mpo.gc.ca