Critical Habitat of the Harbour Seal Lacs des Loups Marins subspecies (Phoca vitulina mellonae) Order: SOR/2018-268

Canada Gazette, Part II, Volume 152, Number 26

Registration

SOR/2018-268 December 5, 2018

SPECIES AT RISK ACT

Whereas the Harbour Seal Lacs des Loups Marins subspecies (Phoca vitulina mellonae) is a wildlife species that is listed as an endangered species in Part 2 of Schedule 1 to the Species at Risk Act 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 no portion of the critical habitat of that species that is specified in the annexed Order is in a place referred to in subsection 58(2) footnote b of that Act;

And whereas the Minister of Fisheries and Oceans is of the opinion that the annexed Order would affect an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species and, pursuant to subsection 58(8) of that Act, has consulted the wildlife management board in question with respect to the Order;

Therefore, the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act footnote a, makes the annexed Critical Habitat of the Harbour Seal Lacs des Loups Marins subspecies (Phoca vitulina mellonae) Order.

Ottawa, December 3, 2018

Jonathan Wilkinson
Minister of Fisheries and Oceans

Critical Habitat of the Harbour Seal Lacs des Loups Marins subspecies (Phoca vitulina mellonae) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Harbour Seal Lacs des Loups Marins subspecies (Phoca vitulina mellonae), which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry.

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.)

Lacs des Loups Marins Harbour Seal

Issues

The Harbour Seal, Lacs des Loups Marins subspecies (hereinafter referred to as Lacs des Loups Marins Harbour Seal), is a population endemic to Quebec, living exclusively in freshwater in a group of lakes and rivers located 250 km east of Hudson Bay in Nunavik. The population size is unknown, but it is estimated at between 50 and 600 individuals.

In April 1996, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the status of the Lacs des Loups Marins Harbour Seal and classified the species as special concern. Following an updated status report and reassessment by COSEWIC in November 2007, the status of the Lacs des Loups Marins Harbour Seal changed from Special Concern to Endangered. In April 2017, the Lacs des Loups Marins Harbour Seal was listed as Endangered footnote 1 in Part 2 of Schedule 1 to the Species at Risk Act footnote 2.

When a wildlife species is listed as an endangered species in Schedule 1 of SARA, the prohibitions in sections 32 and 33 of SARA automatically apply:

In addition, a recovery strategy, followed by one or more action plans, must be developed by the competent minister(s) and included in the Species at Risk Public Registry (Public Registry). The recovery strategy or action plan must include identification of the critical habitat for the species, to the extent possible, based on the best available information. The critical habitat for the Lacs des Loups Marins Harbour Seal has been identified in the Recovery Strategy for the Harbour Seal, Lacs des Loups Marins subspecies (Phoca vitulina mellonae) [2018] (the Recovery Strategy).

As the competent minister under SARA, the Minister of Fisheries and Oceans (MFO) is required to ensure that the critical habitat of the Lacs des Loups Marins Harbour Seal is protected by provisions in, or measures under, SARA or any other Act of Parliament, or by the application of subsection 58(1) of SARA. This is accomplished through the making of the Critical Habitat of the Harbour Seal Lacs des Loups Marins subspecies (Phoca vitulina mellonae) Order (the Order), under subsections 58(4) and (5) of SARA, which triggers the prohibition against destruction of any part of the species’ critical habitat in subsection 58(1) of SARA. The Order affords the MFO the tool needed to ensure that the critical habitat of the Lacs des Loups Marins Harbour Seal is legally protected and enhances the protection already provided to the habitat of the Lacs des Loups Marins Harbour Seal under existing legislation and supports efforts towards the recovery of the species.

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 and was enacted 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.

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. SARA also recognizes that “wildlife, in all its forms, has value in and of itself and is valued by Canadians for aesthetic, cultural, spiritual, recreational, educational, historical, economic, medical, ecological and scientific reasons.” A review of the literature confirms that Canadians value the conservation of species and measures taken to conserve their preferred habitat. In addition, 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.

The Harbour Seal of the Lacs des Loups Marins Harbour Seal is a subspecies of the Harbour Seal living exclusively in freshwater. This population is unique worldwide because its range is exclusive to Quebec, and even there is quite limited, extending only throughout a chain of lakes and rivers located in Nunavik, some 250 km east of Hudson Bay. It is estimated that the Lacs des Loups Marins population was isolated from its original marine habitat during the most recent glacial period, 3 000 to 8 000 years ago. Estimates of population size are highly uncertain, ranging from 50 to 600 individuals.

Works, undertakings or activities (projects) likely to destroy an element of the critical habitat of the Lacs des Loups Marins Harbour Seal are already subject to other federal regulatory mechanisms. Subsection 35(1) of the Fisheries Act prohibits serious harm to fish, which is defined in that Act as “the death of fish or any permanent alteration to, or destruction of, fish habitat.” Given that marine animals are included in the definition of “fish” in the Fisheries Act, that this species is a subspecies of the marine Harbour Seal, and that serious harm to fish encompasses destruction of fish habitat, the prohibition in subsection 35(1) of the Fisheries Act contributes to the protection of the critical habitat of the Lacs des Loups Marins Harbour Seal.

Objectives

The overall recovery target, as stated in the Recovery Strategy, is to reach a total population of 210 individuals over a 25-year period, and 250 mature individuals in the longer term. Given the many uncertainties surrounding the size, distribution and biology of the population, these objectives will evolve as the seal and its habitat become better known.

Efforts to meet the short- and long-term objectives are ongoing and include a number of actions outlined in the Recovery Strategy.

One of the main potential threats to survival mentioned in the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) status report is the development of hydroelectric dams, which could result in the loss of open water areas in winter and the contamination of fish with mercury. However, since July 2013, parc national Tursujuq (Quebec National Park) has protected the habitat of the Lacs des Loups Marins Harbour Seal (including the identified critical habitat) from this type of development.

The threats to the Lacs des Loups Marins Harbour Seal identified in the Recovery Strategy include climate change and human disturbances caused by tourism and scientific activities, as well as by mining exploration or exploitation. Also, Aboriginal hunters occasionally opportunistically harvest a few individuals (Aboriginal traditional knowledge suggests that Cree hunters catch a maximum of one per year), but the species is currently not the object of any targeted traditional hunts. Climate change is the most serious threat to the survival and recovery of the Lacs des Loups Marins Harbour Seal because the population may have difficulty adapting to a transformed environment. Areas that remain ice-free due to strong currents, cracks in the ice and air pockets created by the complex shape of the coast are essential for their survival. These seals do not have the long frontal claws of the ringed seal to pierce the ice, so they depend on permanent areas of open water to exit the water.

Although measurable progress has been made towards achieving the recovery objectives and performance indicators presented in the Recovery Strategy, it is important to identify and characterize the current range, define the habitat needs of the species for each period of its life cycle, and determine the biological capacity of the environment in order to implement recovery measures.

Protection of critical habitat is an important element in ensuring the survival or recovery of the Lacs des Loups Marins Harbour Seal. The low population size and limited geographic distribution of the Lacs des Loups Marins Harbour Seal increase their vulnerability and limit the recovery potential for this subspecies.

Pursuant to subsections 58(4) and (5) of SARA, the Order triggers the prohibition under section 58(1) of SARA against destroying any part of the critical habitat of the Lacs des Loups Marins Harbour Seal and ensures that the critical habitat of the Lacs des Loups Marins Harbour Seal is legally protected.

Description

The Lacs des Loups Marins Harbour Seal is a subspecies of Harbour Seals endemic to Quebec, living exclusively in freshwater in a group of lakes and rivers located 250 km east of Hudson Bay in Nunavik. The critical habitat for this species has been identified in the Recovery Strategy and corresponds to lakes where the presence of the freshwater Harbour Seal has been confirmed: Lake Bourdel, Lacs des Loups Marins and Petit Lac des Loups Marins. The Order triggers the application of the prohibition under subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, including the biophysical attributes and characteristics identified in the Recovery Strategy. As a result, the critical habitat of the Lacs des Loups Marins Harbour Seal designated in the Recovery Strategy is legally protected.

The Order provides an additional tool allowing the MFO to ensure that the habitat of the Lacs des Loups Marins Harbour Seal is protected against destruction, and to prosecute persons who commit an offence under subsection 97(1) of SARA. To support compliance with the prohibition in subsection 58(1) of SARA, SARA provides for penalties for contraventions, including fines or imprisonment, as well as alternative measures agreements, and seizure and forfeiture of things seized or of the proceeds of their disposition. This Order serves to

“One-for-One” Rule

The “One-for-One” Rule requires regulatory changes that increase administrative burden costs to be offset with equal reductions in administrative burden. In addition, ministers are required to remove at least one regulation when they introduce a new one that imposes administrative burden costs on business.

The “One-for-One” Rule does not apply to this Order, as there are no anticipated additional administrative costs on businesses. The Order will be implemented under existing processes.

Small business lens

The objective of the small business lens is to reduce regulatory costs on small businesses without compromising the health, safety, security and environment of Canadians.

The small business lens does not apply to this Order, as there are no administrative burden costs on small business.

Consultation

The proposed Recovery Strategy was published in the Public Registry for a 60-day public consultation period from May 3 to July 2, 2017. The Recovery Strategy states that the critical habitat is expected to be legally protected by an Order made under subsections 58(4) and (5) of SARA that will trigger the prohibition under subsection 58(1) against the destruction of critical habitat. This public consultation fulfils the obligation to consult with Wildlife Management Boards authorized to act under land claim agreements on land targeted by the Order (in this case, the James Bay and Northern Quebec Agreement). It was not necessary to consult the Minister of Indigenous and Northern Affairs and a band under the Indian Act, because no reserve or other land reserved for the use and benefit of a band will be covered by the Order.

Only one comment resulting from these consultations related to the protection of critical habitat. The Cree Nation Government had some concerns regarding the accessibility of the protected area for traditional hunting, but wrote a letter supporting the recovery strategy. Discussions were held to respond to the concerns of the Crees, and it was unanimously agreed that the coming into force of the Order would not result in additional restrictions to those existing for the Crees under federal regulatory mechanisms to prevent the destruction of critical habitat. The Hunting, Fishing and Trapping Coordinating Committee also wrote a letter supporting the Recovery Strategy. Other comments received were editorial and of minor importance.

Rationale

The Recovery Strategy distribution objective is to maintain the current distribution of the Lacs des Loups Marins Harbour Seal. The population and distribution objectives proposed in this strategy may be updated as new information on the seal and its habitat becomes available.

Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final recovery strategy or action plan on the Public Registry. That is, critical habitat that is not in a place referred to in subsection 58(2) of SARA footnote 3 must be protected either by the application of the prohibition in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, 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) and other provisions of SARA, failing which the MFO must make an Order under subsections 58(4) and (5) of SARA. This 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.

Projects that are likely to destroy the critical habitat of the Lacs des Loups Marins Harbour Seal are already subject to other federal regulatory mechanisms, including the Fisheries Act. No additional requirements are therefore imposed upon stakeholders or Indigenous groups as a result of the coming into force of this Order.

Based on the best available evidence and the application of existing regulatory mechanisms, no other administrative burden or cost of compliance is expected for Canadians and Canadian businesses. The threats to the critical habitat of the Lacs des Loups Marins Harbour Seal are managed and will continue to be so with the help of current measures in compliance with federal legislation.

Considering the existing federal regulatory mechanisms in place, the incremental costs and benefits resulting from the making of this Order are anticipated to be negligible. No incremental costs to Canadian businesses and Canadians are anticipated. However, the federal government may incur some negligible costs as it will undertake some additional activities associated with compliance promotion and enforcement, the costs of 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 critical habitat identification process, may also contribute towards behavioural changes on the part of Canadian businesses and Canadians (including Indigenous 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.

Implementation, enforcement and service standards

To protect the Lacs des Loups Marins harbour seal and its habitat, it is currently MFO practice to advise all project proponents to apply for a permit or to enter into an agreement authorizing a person to engage in an activity that affects a listed wildlife species or its critical habitat, provided that certain conditions are met. Under section 73 of SARA, the MFO may enter into an agreement with a person, or issue a permit to a person, authorizing the person to engage in an activity affecting a listed aquatic species, any part of its critical habitat, or the residences of its individuals. Under subsection 73(2) of SARA, the agreement may be entered into, or the permit issued, only if the MFO is of the opinion that

  1. the activity is scientific research relating to the conservation of the species and conducted by qualified persons;
  2. the activity benefits the species or is required to enhance its chance of survival in the wild; or
  3. affecting the species is incidental to the carrying out of the activity.

Further, the pre-conditions set out in subsection 73(3) of SARA must also be satisfied. This means that prior to entering into an agreement or issuing a permit, the MFO must be of the opinion that

If the above conditions cannot be met, proponents are advised to not undertake their project, or to modify their project so as to meet these conditions.

Fisheries and Oceans Canada is currently not aware of any planned or ongoing activities that will need to be mitigated beyond the requirements of existing legislative or regulatory regimes, and will work with Canadians on any future activities to mitigate impacts, so as to avoid destroying Lacs des Loups Marins Harbour Seal critical habitat or jeopardizing the survival or recovery of the species.

Fisheries and Oceans Canada will continue to implement SARA provisions and existing federal legislation under its jurisdiction and to advise stakeholders on an ongoing basis with regard to technical standards and specifications on activities that may contribute to the destruction of the habitat of the Lacs des Loups Marins Harbour Seal. These standards and specifications are aligned with those that will be required once the Order comes into force. If new scientific information supporting changes to the Lacs des Loups Marins Harbour Seal critical habitat becomes available, the Recovery Strategy will be updated as appropriate and this Order will apply to the revised critical habitat once included in a final amended Recovery Strategy published in the Public Registry. The prohibition triggered by the Order provides a further deterrent in addition to the existing regulatory mechanisms and specifically safeguards the critical habitat of the Lacs des Loups Marins Harbour Seal through penalties and fines under SARA, resulting from both summary convictions and convictions on indictment.

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 MFO 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 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, as stated above. Furthermore, the pre-conditions set out in subsection 73(3) of SARA, as stated above, must also be satisfied.

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 is liable to a fine of not more than $250,000 or to imprisonment for a term of not more than 5 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 a contravention of subsection 58(1) of SARA.

Any person planning on undertaking an activity within the critical habitat of the Lacs des Loups Marins Harbour Seal 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.

Contact

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