Order Declining to make an Emergency Order for the protection of the Killer Whale Northeast Pacific Southern Resident Population: SI/2018-102

Canada Gazette, Part II, Volume 152, Number 23

Registration

SI/2018-102 November 14, 2018

SPECIES AT RISK ACT

Order Declining to make an Emergency Order for the protection of the Killer Whale Northeast Pacific Southern Resident Population

P.C. 2018-1352 November 1, 2018

Whereas the following recovery planning measures have been taken under the Species at Risk Act with respect to the Killer Whale (Orcinus orca) Northeast Pacific southern resident population (SRKW):

Whereas, on May 24, 2018, the Minister of Fisheries and Oceans and the Minister of the Environment announced that they had formed the opinion that the SRKW faces imminent threats to its survival and recovery and identified three key threats to the population, namely prey availability, acoustic and physical disturbance and environmental contaminants;

Whereas, having formed that opinion, the Ministers recommended under subsection 80(2) of the Species at Risk Act that the Governor in Council make an emergency order;

Whereas measures under the Species at Risk Act are in place to protect and address the threats to the SRKW, including the prohibition in section 32 against the killing, harming, harassing, capturing or taking of an individual of an endangered species and the Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order, made in 2009, which triggered the prohibition in subsection 58(1) of the Species at Risk Act against the destruction of any part of the critical habitat of these two populations;

Whereas other measures have been taken, continue to be taken and will be taken by the Government of Canada and other organizations to address the three imminent threats to the survival and recovery of the SRKW, including

Whereas the above measures, considered together, will contribute to abating the imminent threats to the survival and recovery of the SRKW;

And whereas social, economic, policy and other factors, and the broader public interest, have also been considered;

Therefore, Her Excellency the Governor General in Council declines to make an emergency order pursuant to section 80 of the Species at Risk Act footnote a.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

This Order confirms the Governor in Council’s decision declining to make an Emergency Order under section 80 of the Species at Risk Act (SARA) for the protection of the Killer Whale Northeast Pacific southern resident population (SRKW).

Background

In May 2018, the Minister of Fisheries and Oceans and the Minister of the Environment, in her role as the Minister responsible for the Parks Canada Agency, as competent ministers under SARA for the SRKW, jointly announced they had formed the opinion that SRKW is facing imminent threats to its survival and recovery. Three key threats to the population were identified as prey availability, acoustic and physical disturbance, and environmental contaminants.

Subsection 80(1) of SARA states that the Governor in Council may, on the recommendation of the competent minister, make an Emergency Order to provide for the protection of a listed wildlife species. Subsection 80(2) of SARA states that the competent minister must make the recommendation if he or she is of the opinion that the species faces imminent threats to its survival or recovery. Under section 81 of SARA, a recommendation is not required to be made if the competent ministers are of the opinion that equivalent measures have been taken under another Act of Parliament to protect the wildlife species.

Pursuant to subsection 80(2) of SARA, the Ministers must recommend an Emergency Order given that they are of the opinion that the SRKW face imminent threats to its survival or recovery, and after having carefully considered the matter, they concluded that equivalent measures addressing all the threats have not been taken under another Act of Parliament to protect the SRKW.

Implications

The Governor in Council’s decision to decline to make an Emergency Order under section 80 of SARA was informed by the objectives of SARA and the expected effectiveness of measures and activities that have been taken and continue to be taken by the Government of Canada and other organizations, consistent with the Recovery Strategy and Action Plans, to address the threats to SRKW and its critical habitat. The decision also took into account social, economic, policy and other factors, and the broader public interest.

It was determined that existing and planned measures, considered together, will contribute to abating the imminent threats to the survival and recovery of the SRKW. Future decisions about measures will be informed by more scientific knowledge to understand the threats, their interactions, and how the threats impact the SRKW.

The Government of Canada will continue to use a combination of other legislative mechanisms available under the Fisheries Act, the Canada Shipping Act, 2001 and the Canadian Environmental Protection Act, 1999, as well as non-regulatory measures to address the key threats. For example, the Government of Canada will continue to work in collaboration with Indigenous groups and other stakeholders to promote activities that contribute to the survival and recovery of the SRKW.

For these reasons it has been determined that the most effective approach is to continue to influence human activities without making an Emergency Order, using existing legislative tools and non-regulatory measures.

Therefore, Her Excellency the Governor General in Council declines to make an Emergency Order under section 80 of the Species at Risk Act.