Vol. 139, No. 25 — June 18, 2005

Gilbert Bay Marine Protected Area Regulations

Statutory authority

Oceans Act

Sponsoring department

Department of Fisheries and Oceans

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

The Oceans Act (the Act) came into force on January 31, 1997. Part II of the Act authorizes the establishment of Canada's Ocean Strategy (COS) based on the principles of sustainable development, integrated management and the precautionary approach. This Part of the Act also provides authority for the development of tools necessary to carry out COS, such as the establishment of Marine Protected Areas (MPAs).

Section 35 of the Act authorizes the Governor in Council to designate, by regulations, MPAs for one or more of the following reasons:

(a) the conservation and protection of commercial and non-commercial fishery resources, including marine mammals and their habitats;

(b) the conservation and protection of endangered or threatened marine species and their habitats;

(c) the conservation and protection of unique habitats;

(d) the conservation and protection of marine areas of high bio- diversity or biological productivity; and

(e) the conservation and protection of any other marine resource or habitat as is necessary to fulfill the mandate of the Minister.

Gilbert Bay is located on Labrador's southeast coast. During the 1970s, people living near Gilbert Bay recognized that this particular bay was populated by a different group of Atlantic cod (Gadus morhua) than those caught on traditional fishing grounds. Local people identified the cod in Gilbert Bay as "bay cod," recognizable by their golden-brown colouration and residency within the confines of the bay. A single-family enterprise fished cod commercially in Gilbert Bay from the late 1970s until 1992, when a moratorium was placed on northern cod stocks, i.e. those found off southeastern Labrador, the Northeast Newfoundland Shelf, and the northern half of Grand Bank (North Atlantic Fisheries Organization Divisions 2J, 3K, and 3L).

Since 1996, scientists from Memorial University of Newfoundland (MUN), in co-operation with the Department of Fisheries and Oceans (DFO), have been studying the Atlantic cod in Gilbert Bay. Scientists identified Gilbert Bay cod as a resident population, genetically distinct from other Atlantic cod populations. In light of this information, residents became very concerned when the commercial northern cod fishery re-opened in 1998. Fishing effort in the region targeted Gilbert Bay cod because of its relative abundance compared to that found on traditional fishing grounds. Area residents believed that the population was being over-fished.

In May 2003, the Committee on the Status of Wildlife in Canada (COSEWIC) recommended that Atlantic cod (Newfoundland and Labrador population), which includes northern cod in 2J3KL, be listed as endangered under the Species at Risk Act (SARA). In addition to the harm provisions, the Act requires the development of recovery strategies and action plans for listed species and the protection of critical habitat. Whether Atlantic cod (Newfoundland and Labrador population) is officially listed under SARA, an MPA designation in Gilbert Bay would contribute enormously to recovery efforts of this unique, resident population.

In order to protect the Gilbert Bay population of cod, the communities of Port Hope Simpson and Williams Harbour, with support from local fish harvesters, approached DFO to implement conservation measures. In October 2000, the Minister of Fisheries and Oceans accepted this proposal and announced Gilbert Bay as an Area of Interest (AOI). This regulatory initiative proposes to formally designate Gilbert Bay as an MPA, as it meets the following criteria set out in paragraphs 35(1)(a), (c), and (e) of the Oceans Act:

Conservation and protection of commercial and non-commercial fishery resources, including marine mammals and their habitats

• Historically, the Atlantic cod fishery was the most important commercial activity in Newfoundland and Labrador. However, the northern cod stocks are at an extremely low level despite fishery closures and catch reductions since the early 1990s. Gilbert Bay has been identified as one of the few coastal concentrations of northern cod in the Newfoundland region. MPA status for Gilbert Bay will help conserve and protect the cod population as well as provide indirect protection to other species and their habitats.

Conservation and protection of unique habitats

• The physical characteristics of Gilbert Bay likely play a very important role in the establishment and continued support of the local cod population found there. Within Gilbert Bay, specific areas have been identified as important spawning areas and nursery habitats, and the highest level of protection afforded to these areas.

Conservation and protection of any other marine resource of habitat as is necessary to fulfil the mandate of the Minister

• Under the Oceans Act, the Minister is directed to establish a national network of MPAs. The designation of the Gilbert Bay MPA will be a key contribution to the development of this national network and for meeting commitments under Canada's Oceans Action Plan.

MPAs are established according to a process set out in the National Framework for Establishing and Managing Marine Protected Areas. This process involves the identification of Areas of Interest (AOI), a series of evaluations that includes an ecological assessment of the area, the development of regulations outlining the MPA boundary and regulatory management measures to be implemented within the MPA, the development of a Management Plan to accompany the regulations, and ongoing monitoring of the MPA.

Ecological description

Gilbert Bay is 28 km long, but relatively shallow, with two narrow openings to the Labrador Sea near the community of Williams Harbour. The Gilbert Bay AOI is approximately 60 km². Several biophysical conditions exist in concert within the bay, including a short ice-free season, highly stratified temperature and salinity gradients, the presence of shallow sills rising to depths of 5 m separating portions of the bay, and a number of restricted arms. These, and other biophysical features, most likely play an important role in the life history of Atlantic cod in Gilbert Bay and, by retaining eggs and larvae, may in fact enable this local population to exist.

Gilbert Bay contains the most genetically distinguishable population of Atlantic cod within the range of northern cod. The population's life history characteristics suggest local adaptations to the Gilbert Bay environment. The Gilbert Bay cod exist almost entirely inside Gilbert Bay, having a range of 60 km², and are characteristically dark brown in colouration, which has been attributed primarily to a carotenoid-rich diet of invertebrates. Researchers in the area have identified several biological characteristics that set Gilbert Bay cod apart from other Atlantic cod. Differences involve genetics, movement patterns, growth rates, timing of spawning, spawning locations, and primary feeding habitats.

There are a number of coralline algae beds present within Gilbert Bay. These are a sensitive habitat which support a wide variety of marine organisms and plants. The waters of Gilbert Bay also support a wide range of marine species, including shellfish (e.g. Icelandic scallop, rock crab), demersal fish (e.g. Atlantic cod, winter flounder, staghorn sculpin), pelagic fish (e.g. herring, capelin), and anadromous fish (e.g. Atlantic salmon, Arctic char) as well as aquatic plants (e.g. Winged kelp, eelgrass). The area is also frequented by several species of marine mammals, including minke whales, harbour porpoise and harp seals, and is inhabited seasonally by several species of waterfowl, including common loons, Canada geese, and common mergansers.

MPA boundaries and management zones

The proposed MPA includes all the waters of Gilbert Bay, a total area of approximately 60 km². In order to conserve and protect this ecosystem, specific activities will be prohibited within various zones of the MPA to ensure the health of the cod population and its key habitats. The MPA will be divided into the following management zones:

• Zone 1 is comprised of two very shallow areas in the upper reaches of the bay, identified as Zone 1A and Zone 1B. These areas have been identified as key areas due to their importance for spawning, feeding, juvenile and over-wintering habitat for Gilbert Bay cod. They contain the highest concentrations of cod found anywhere in Gilbert Bay as well as capelin beaches. The Zone 1 areas also represent the beginning and end of the annual migration of the cod to and from the outer zones of the bay. Due to the importance and sensitivity of this area, it will be given the highest level of protection.

• Zone 2 is comprised of the main arm of the bay. Zone 2 has a smaller number of cod than the Zone 1 areas; however, it is an important migratory route for mature fish moving into Zone 3 during the summer and returning to the Zone 1 areas in the fall. There is strong evidence that cod feed in this area, supporting an important component of the cod population. The cod would be at risk to directed fishing in this area during most of the summer months.

• Zone 3 is comprised of the area from the coastal low water mark, seaward to the two channels connecting Gilbert Bay to the Labrador Sea. Zone 3 is an important feeding area for cod during the summer and fall. It appears that mature cod migrate into Zone 3 to feed on species such as capelin and have been known to concentrate in a number of areas within this zone. The population, particularly mature breeding fish, would be at risk from directed commercial fishing.

The Regulations contain a general prohibition against the disturbance, damage, destruction or removal of any living marine organism or any part of its habitat within the MPA. In addition, the Regulations prohibit activities, including the depositing, discharging or dumping of substances within the MPA that result in the disturbance, damage, destruction or removal of any living marine organism or any part of its habitat within the MPA .

The Regulations recognize that certain activities, such as scientific research and specific types of fishing, may be allowed to occur within the MPA under specific conditions without compromising the conservation objectives. Moreover, certain activities, such as monitoring, may be required to support the management and protection of the MPA, while other activities may be required for specific overriding purposes, such as public safety and security. Within the Regulations, activities are managed through 1) the submission and approval of plans for science and education activities according to specified conditions; and 2) specific exceptions to the general prohibitions according to specified conditions. These are described below.

Throughout the MPA, sealing activities and the maintenance, repair, and removal of wharves are exempted from the prohibitions if the applicable authorizations for these activities have been obtained. Requirements under the legislation currently regulating these activities are considered sufficient to ensure that these activities will be conducted in a manner consistent with the conservation objectives of the proposed MPA. Activities for the purpose of public safety, law enforcement or emergency response are also permitted throughout the entire MPA to ensure the safety of Canadians.

Aboriginal Peoples fishing in accordance with the Aboriginal Communal Fishing Licences Regulations will be permitted.

Any accident that is likely to result in the disturbance, damage, destruction or removal referred to in the general prohibitions of the Regulations must be reported within two hours after its occurrence to the Canadian Coast Guard.

Scientific research and educational activities will be approved throughout the entire MPA under specific conditions. A plan for these activities must be submitted, specific information listed in the Regulations must be supplied about the activity, and the activity must not damage or destroy the habitat of living marine organisms within the MPA. The Minister will approve plans for scientific activities in Zone 1A and 1B only if they are for the purposes of managing the MPA or monitoring the effectiveness of the conservation measures being implemented and for educational activities in Zone 1A and 1B, if they are for the purposes of increasing awareness of the MPA or providing information in respect of the conservation measures implemented in the MPA. In Zone 2 and 3, scientific and educational activities can be for other purposes as long as they do not damage or destroy the habitat of living marine organisms. Throughout the MPA, the cumulative environmental effects of these activities, in combination with all other past and current activities being undertaken within the MPA, will also be taken into consideration and ministerial approval will be granted only if the activity is not likely to cumulatively result in damage or destruction of the MPA. Scientific research will not only improve the understanding of this unique population of cod but may further knowledge of this commercially significant species of concern, more broadly.

In Zone 1, in addition to the exemptions mentioned above for the entire MPA, the only removal of living marine organisms permitted will be recreational angling for trout, salmon, and arctic char in accordance with the Atlantic Fishery Regulations, 1985 and the Newfoundland and Labrador Fishery Regulations. The type of gear used for this activity does not result in harm to the bottom habitat.

In Zone 2, commercial and recreational cod fishing will remain prohibited but there will be exceptions for commercial fishing for other species (e.g. Icelandic scallop), and recreational fishing for other species (e.g. sea trout) in accordance with the Atlantic Fishery Regulations, 1985 and the Newfoundland and Labrador Fishery Regulations. There will be some impact on the benthic habitat of this portion of the bay as a result of the scallop fishery. However, the significance of this area for the cod is mainly as a migratory route and feeding area. Directed removal of cod is the main threat in this portion of the bay. The number of scallop licenses in the MPA will be restricted to 'active' fishers (those in the last three years), vessels larger than 35 feet are restricted from the area (through variation order), and a logbook program for scallop fishers will be added as part of the license condition in order to monitor fishing activity. Several methods are available to mitigate against habitat alteration and to improve the scallop stocks such as rotating area closures, identifying and protecting spawning beds, larval enhancement, and the development of alternative fishing methodologies. A management plan will be developed for this MPA and will include working with local fishers to minimize the impact of fisheries in Gilbert Bay and protecting the core, key habitat of the cod.

In addition to the maintenance, repair and removal of wharves which is permitted throughout the MPA, construction of wharves will be permitted in Zone 2 if the applicable authorizations for this activity have been obtained under the Navigable Waters Protection Act or the Fisheries Act. Requirements under this legislation are considered sufficient to ensure that these activities will be conducted in a manner consistent with the conservation objectives of the proposed MPA.

In Zone 3, commercial cod fishing will remain prohibited, however activities such as commercial fishing for other species, and recreational fishing will be permitted in accordance with the Atlantic Fishery Regulations, 1985 and the Newfoundland and Labrador Fishery Regulations. The Regulation allows for the possibility of a recreational food fishery for cod in this outer zone at such time as the cod moratorium is lifted and a licence can be obtained for this activity. In other words, the cod population must recover sufficiently to allow for this limited use in this outer zone (not the key nursery and spawning habitat for the cod) at sustainable levels.

As in Zone 2, construction, maintenance, repair and removal of wharves will be permitted if the applicable authorizations for this activity have been obtained. In addition, the maintenance, repair, removal or construction of a causeway or bridge will be permitted in Zone 3 if the applicable authorizations for this activity have been obtained under the Navigable Waters Protection Act or the Fisheries Act. The habitat provisions under the Fisheries Act (section 35) stipulate that no person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat unless authorized by the Minister or under regulations made by the Governor in Council (there are currently no regulations to this effect). Any proposed activities relating to a causeway or bridge in this area will be either completed in a manner that does not result in harm to fish habitat or some harm may be authorized under specified conditions as long as the impact remains consistent with the conservation objectives of the MPA. Some level of habitat perturbation is acceptable in Zone 3 of Gilbert Bay as this is not the key habitat for the cod and because the primary threat in this zone would be directed commercial fishing for cod.

Alternatives

Status quo — Interim protection under the Fisheries Act

In September 1998, DFO issued a notice to fishers closing a large portion of Gilbert Bay to commercial cod fishing. In 2001, a DFO Variation Order was issued under the Fisheries Act effectively closing more than 70 percent of the bay to recreational Atlantic cod fishing. In the early 1990s, DFO designated two areas (approximately 16 km²) as inland waters. (see footnote 1) Marine areas designated as Inland Waters are closed to all commercial fishing activity and recreational net fishing. This is particularly significant in Gilbert Bay because these areas are important juvenile and spawning habitats for bay cod. Although it was not their intention, these inland waters regulations provided some interim protection for an important component of the Gilbert Bay cod population and habitats.

However, inland waters are designated for the protection of anadromous species, not spawning and rearing habitat for demersal species such as Atlantic cod. Also, current habitat protection afforded through the Fisheries Act does allow, in some circumstances, approval of permits to remove, damage or destroy fish habitat. Therefore, even though the area has been afforded some interim protection, the status quo is considered insufficient to provide the comprehensive, long term, and ecosystem-based protection necessary for this unique, resident population of cod and its key habitats.

Cod moratorium

Although the Minister of Fisheries and Oceans announced in April 2003 that the commercial cod fishery would be placed under moratorium in 2J (including Gilbert Bay) to protect the northern cod population, an MPA designation will offer broader and more flexible protection. It will focus on multiple uses and activities in the bay and coastal area, not only fishing activities. The Regulations and the management plan are based on the scientific and local knowledge of the Gilbert Bay cod population, designed to meet the specific conservation goals of the MPA. In addition, Fisheries Act closures are temporary and can be altered or discontinued from year-to-year while MPA regulations are more permanent in nature.

Voluntary measures

Although there is a high level of community support for the MPA initiative in Gilbert Bay, voluntary measures were not considered sufficient to afford adequate protection to the population of cod and its habitat. Without a regulatory regime, and accompanying management measures, it would be difficult to ensure consistent compliance. This approach will also provide a basis from which to conduct monitoring of management effectiveness. The streamlined, long-term and formal designation of an MPA under the Oceans Act was considered preferable to reliance on voluntary measures, which are often dependent on inconsistent and unstable funding sources.

Marine protected area under the Oceans Act

An Oceans Act regulation in Gilbert Bay will streamline management measures in a focused area, under one set of regulations, and in the long term. In addition, Oceans Act regulations have been developed for the specific needs (protection of fish and their habitat) of Gilbert Bay, unlike the general protection afforded under the Fisheries Act. The MPA designation will also offer more broad-ranging benefits for many components of the ecosystem, resulting in benefits for many stakeholder groups, not only the fishing industry. The MPA has already, and will continue to garner, a heightened interest in the community and allow for significant involvement in its establishment and management. There will be increased opportunities for monitoring, education and public outreach activities in the area with an MPA designation.

A relatively small, geographically fixed and protected area such as the Gilbert Bay MPA will provide an ideal setting for scientific research to further the understanding of the life processes of the Atlantic cod and the mechanisms that have isolated this unique population. If Atlantic cod (Newfoundland and Labrador population) is officially listed under SARA, an MPA designation in Gilbert Bay could also contribute significantly to recovery strategies and action plans. Finally, designating Gilbert Bay as an MPA under the Oceans Act will provide an opportunity for a collaborative, integrated management approach involving several federal and provincial government agencies, aboriginal groups, and local stakeholders to conserve and protect the area.

Benefits and costs

The primary benefit of the proposed Regulations establishing the Gilbert Bay MPA is that the foundation will be set for ensuring the conservation and protection of the resident Atlantic cod population and its supporting marine ecosystem. This MPA will facilitate the protection of the cod population and its important habitat areas while allowing for the sustainable use of marine resources, providing a source of food and income for local communities.

Scientific research, which has been an integral part of the MPA initiative, will continue through partnerships with MUN. Other universities, both national and international, have expressed interest in research in Gilbert Bay. In recent years, the region has also seen a growth in the tourism industry. The designation of an MPA will help add to the region's growth, attracting visitors and researchers to the area. This interest may generate economic spin-offs in the service and accommodation sector in the area.

A subsidiary benefit of designating the Gilbert Bay MPA is the opportunity to initiate a focused, co-operative, and ecosystem-based management approach involving federal and provincial government agencies using their respective authorities. It is also an opportunity to encourage stewardship and co-operation with an alliance of stakeholder groups in the Gilbert Bay area.

Under the Oceans Act, the Minister is directed to establish a national network of MPAs. The designation of the Gilbert Bay MPA will be a key contribution to the development of this national network and for meeting commitments under Canada's Oceans Action Plan, an action plan which builds upon the legislative and policy framework of the Oceans Act and Canada's Oceans Strategy. Protected areas are also a key contribution to the Sustainable Development Strategy of Canada.

The establishment of this MPA will also demonstrate Canada's resolve to fulfil its commitments under the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity, the World Commission on Protected Areas Program and the 2002 World Summit on Sustainable Development. This designation will also help the Canadian government fulfil its commitment under the Oceans Act to establish a national network of MPAs.

Commercial cod fishing will be prohibited throughout the Gilbert Bay MPA due to the small size of the cod population (less than 70 metric tonnes). Community representatives and local fishers recognize that the cod population is unable to support a sustainable commercial fishery. In addition, this area is currently closed to commercial cod fishing as a part of a moratorium announced by DFO in April 2003, thus the socio-economic impact of this prohibition should be minimal. A recreational or food fishery for Atlantic cod will be prohibited in Zone 1 and Zone 2 of the MPA. In April 2003, DFO announced that there would be no recreational or food fishery for cod in the Gilbert Bay region (2K3KL); therefore, the socio-economic impact of this prohibition should also be minimal.

Commercial fishing activities will be prohibited in Zone 1 (e.g. scallop fishing). This measure is not anticipated to have a negative impact as the majority of this area had already been designated as Inland Waters. Recreational net fishing is also prohibited in Zone 1 (e.g. sea trout fishing). Again, this restriction was in place in a portion of the area prior to the establishment of the MPA through an Inland Waters designation.

The exemption for causeway construction in Zone 3 of the MPA allows for the possibility of a road connecting the town of Williams Harbour to the Trans Labrador Highway. Although the road project has been deferred for an indefinite period of time, the designation of the Gilbert Bay MPA will not preclude its construction, which may provide economic benefits for the community. However, this exemption is only valid as long as any proposed construction is carried out in accordance with the Fisheries Act and Navigable Waters Protection Act. This stipulation will ensure that the conservation objectives of the MPA are met as well as accomplish the community's desire to see the cod's key habitat protected.

Internal DFO funding has facilitated the designation process thus far including assessments, consultation, and regulatory development. Upon designation, DFO will fund the management actions described in the MPA regulation, compliance and enforcement activities, monitoring for management effectiveness, and support for a management body. Supplementary activities such as public awareness and education activities or research may be undertaken by partners such as non-governmental organizations or academic institutions. Costs associated with enforcement activities will be assumed by DFO through existing funding for fisheries officers and should be minimal considering the high level of compliance and small size of coastal MPAs. See the section entitled "Compliance and enforcement" below for further information.

Consultation

Prior to and since its announcement in 2000, the MPA initiative in Gilbert Bay has engendered strong local support. The consultative process has developed new trust-based relationships, and the regulatory designation of the MPA will maintain the level of momentum and stakeholder confidence.

To facilitate the MPA consultative process, the Gilbert Bay Steering Committee (GBSC) was established in 2001. The committee consists of representatives from municipal governments, the Labrador Métis Nation, aquaculture, tourism, and fishing industries, academia (Memorial University of Newfoundland), Fisheries and Oceans Canada (ex officio member), and the provincial Department of Fisheries and Aquaculture (ex officio member).

The role of this committee is to

(a) represent key constituent groups or stakeholders;

(b) provide advice to DFO and the provincial government on the consultation process;

(c) collate and analyse feedback from consultations and management proposals;

(d) make consensus-based recommendations to DFO and the Province for the proposed establishment of an MPA at Gilbert Bay; and

(e) ensure community involvement in the establishment and ongoing management of the Gilbert Bay MPA.

The GBSC, and associated public meetings, have provided an excellent forum for issue identification, discussion and resolution. They have functioned well and guided the development of the proposed co-operative management regime. The resulting commitment to stewardship and co-operation in the protection of this area as an MPA has laid the groundwork for the proposed Regulations. The recommendations reflect the outcome of a consensus-based process by the GBSC and directions expressed by the public, stakeholders and other partners through consultations conducted over a three-year period. Since 1998, there have been fifteen public meetings (two in 1998, one in 1999, one in 2000, one in 2001, two in 2002, two in 2003, five in 2004 and one in 2005) held in the Gilbert Bay area.

The Gilbert Bay MPA will have many benefits for the communities of Port Hope Simpson and Williams Harbour. The MPA is a community-driven conservation initiative and subsequently an important source of pride for the residents. In Williams Harbour, for example, the community hosts an annual Golden Cod Festival which raises awareness about the unique cod population and attracts visitors to the area.

The Labrador Métis Nation (LMN) is participating as a partner with DFO through providing advice, research, funding and enforcement. The LMN represents the largest aboriginal group in southern Labrador. The MPA will allow traditional activities of their people to continue while ensuring sufficient protection for the Gilbert Bay cod population.

Consultations have been held with several federal departments and agencies, including Environment Canada, Parks Canada, Transport Canada and Natural Resources Canada. Within DFO, a number of sectors were also consulted, including Fisheries and Aquaculture Management, Canadian Coast Guard, Science, and Policy and Economics.

Consultations have been held with several departments and agencies within the government of Newfoundland and Labrador. These include Fisheries and Aquaculture; Intergovernmental Affairs; Natural Resources; Environment and Conservation; Labrador and Aboriginal Affairs; Transportation and Works; Tourism, Culture and Recreation; and Innovation, Trade and Rural Development.

During consultations, the provincial Department of Transportation and Works in Newfoundland and Labrador requested that the boundaries of the MPA be adjusted in order to allow for the construction of a road to link Williams Harbour with the Trans Labrador Highway. This was not considered an option as the boundaries of the MPA were designed based on ecological considerations, and the potential for impact on the MPA would exist whether the road was constructed within or adjacent to the boundaries. However, because Zone 3 is not the key habitat for the cod and some level of perturbation is considered acceptable in this zone, an exception has been created for maintenance, repair, removal, and construction of causeways and bridges as long as any authorizations under the Fisheries Act and the Navigable Waters Protection Act, are obtained if required. These conditions will ensure that if the road is constructed, it will be done in a manner consistent with the conservation objectives of the MPA.

Environmental non-governmental organizations have also been consulted with regard to the proposed Regulations. The World Wildlife Fund (Canada) has expressed concern with regard to scallop dragging in the MPA, particularly in Zone 2. The Regulations proposed by DFO are based on the conservation and protection of the Gilbert Bay cod population and key habitats (e.g. spawning areas). The highest level of protection will be afforded in these key areas. Fishing activities in the other zones will be managed through the Atlantic Fishery Regulations, 1985 and the Newfoundland and Labrador Fishery Regulations. DFO will continue to work with locals to ensure that the impact of these fishing activities is minimized. A monitoring and evaluation program will be established to review the effectiveness of the conservation measures being implemented in the area and to ensure that conservation objectives are being met.

Some concerns were also raised by the Canadian Association of Petroleum Producers about the impact of the MPA on possible oil and gas development activities in the future. These activities are not specifically excluded in Gilbert Bay. However, in order to protect the unique cod population and its habitat, MPA Regulations may serve to restrict the way resources may be obtained in the Gilbert Bay area but do not, as a matter of course, foreclose on all opportunities in perpetuity. Moreover, there are currently no exploration or development activities associated with mining or hydrocarbon in Gilbert Bay.

Media coverage since the initial announcement of the AOI initiative in Gilbert Bay has been regular, positive and resulted in continued public discussion and interest. Meetings and other activities have been covered in the Labradorian and the Northern Pen (local distribution), in the Telegram and the Navigator (provincial distribution) and in the Southwester (regional distribution). The Gilbert Bay project has also been the subject a number of reports on CBC Radio.

In discussing and developing recommendations for designation and management of the Gilbert Bay MPA, all members of the GBSC and their constituents clearly understood that, upon designation, the area would be managed and regulated by prohibitions and other management actions. The GBSC expect that some traditional activities will continue as they have for many years. These include angling, seal hunting, and some commercial fisheries, which will be managed in a manner consistent with the conservation objectives of the MPA. It was also accepted that the regulation would not prevent the removal of marine organisms for scientific purposes to assess and monitor the long-term health of the Gilbert Bay marine ecosystem and the Atlantic cod population.

Strategic environmental assessment

Impacts of these prohibitions and management actions are understood, accepted and supported within the community and among the user groups. A Strategic Environmental Assessment (SEA) has been completed for the Gilbert Bay MPA initiative in compliance with the 2004 Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals. Generally, it is anticipated that any environmental effects resulting from the Gilbert Bay MPA will be positive. The management measures associated with the MPA will help to achieve the conservation and protection of this unique population of cod and its key habitat.

Compliance and enforcement

Violations of the MPA Regulations carry penalties under the Oceans Act ranging from $100,000 to $500,000.

There will be some increased pressure on DFO conservation and enforcement personnel and resources to enforce the MPA Regulations. The remote location of Gilbert Bay makes it difficult to patrol. Illegal fishing activity is an issue, and in the past, individuals have been prosecuted. There is an expectation by local residents that enforcement within the MPA will be effective in order to ensure compliance with the MPA Regulations.

A compliance and enforcement component of the management plan will address the operational responsibilities of DFO to meet regulatory requirements. DFO fisheries officers in the area will serve as the primary enforcement body, complemented by other applicable conservation officers (e.g. provincial conservation officers). DFO enforcement officers are currently working with the LMN guardians and provincial conservation officers to deal with illegal fishing activity. The LMN guardians are funded by the federal government through the Aboriginal Fishery Strategy Program. They make boat patrols all along the coast, including Gilbert Bay, to enforce the regulations under the LMN communal fishing licence. DFO sometimes conducts joint patrols with the LMN guardians and the provincial conservation officers. This is more economical and fosters good relationships with all the fisheries enforcement personnel. These agencies have been coordinating their patrols to ensure maximum coverage of Gilbert Bay. This partnership will become more formalized through the designation of the MPA. Non-compliance will result in prosecution and will be detected by regular patrols and inspections by enforcement officers as well as reliance on feedback by community members.

Principal stakeholder groups have expressed a keen interest in developing non-regulatory actions to ensure a high degree of compliance such as public awareness and education. Additional stewardship initiatives will contribute to meeting the compliance objectives of the Regulations. The high level of support for the creation of an MPA in Gilbert Bay suggests that there is a strong community-based compliance environment. Monitoring and assessment of the effectiveness of the management plan and guidelines will take place over a three-year period.

Contacts

Tracy Kerluke, Acting Senior Analyst, Marine Protected Areas, Fisheries and Oceans Canada, 200 Kent Street, Ottawa, Ontario K1A 0E6, (613) 991-6692 (telephone), (613) 993-6414 (fax), kerluket@dfo-mpo.gc.ca (email); Dave Luck, Regulatory Analyst, Legislative and Regulatory Affairs, Fisheries and Oceans Canada, 200 Kent Street, Ottawa, Ontario K1A 0E6, (613) 990-0199 (telephone), (613) 990-2811 (fax), luckd@dfo-mpo.gc.ca (email).

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council proposes, pursuant to subsection 35(3) of the Oceans Act (see footnote a), to make the annexed Gilbert Bay Marine Protected Area Regulations.

Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Tracy Kerluke, Marine Protected Areas A/Senior Analyst, Marine Ecosystems Conservation Branch, Fisheries and Oceans Canada, 200 Kent Street, Ottawa, Ontario K1A 0E6 (tel.: (613) 991-6692; facsimile: (613) 993-6414; e-mail: kerluket@dfo-mpo.gc.ca).

Persons making representations should identify any of those representations the disclosure of which should be refused under the Access to Information Act, in particular under sections 19 and 20 of that Act, and should indicate the reasons why and the period during which the representations should not be disclosed. They should also identify any representations for which there is consent to disclosure for the purposes of that Act.

Ottawa, June 6, 2005

EILEEN BOYD
Assistant Clerk of the Privy Council

GILBERT BAY MARINE PROTECTED AREA REGULATIONS

INTERPRETATION

1. (1) The following definitions apply in these Regulations.

"Area" means the Gilbert Bay Marine Protected Area designated under section 2. (zone)

"vessel" has the same meaning as in section 2 the Canada Shipping Act. (bâtiment)

"waters" means, in addition to the waters, the bed and subsoil below the waters to a depth of two metres. (eaux)

(2) In these Regulations, all geographical coordinates (latitude and longitude) are expressed in the North America Datum 1983 (NAD 83) geodetic reference system.

(3) In the schedule, the lines connecting the points are rhumb lines.

DESIGNATION

2. The areas of the sea in Gilbert Bay comprised of the management zones described below — and depicted in the schedule — are together designated as the Gilbert Bay Marine Protected Area:

(a) Zone 1A, consisting of waters lying generally northwest of a rhumb line connecting points at 52°38'56" N, 55°59'28" W and 52°37'43" N, 55°59'36" W, that are within an area of the sea bounded by the low-water line of the bay and by the rhumb line to its points of intersection with the low-water line;

(b) Zone 1B, consisting of waters lying generally southwest of a rhumb line connecting points at 52°37'00" N, 55°58'07" W and 52°36'49" N, 55°57'45" W, that are within an area of the sea bounded by the low-water line of the bay and by the rhumb line to its points of intersection with the low-water line;

(c) Zone 2, consisting of waters that are within an area of the sea bounded by the low-water line of the bay and by the following rhumb lines to their respective points of intersection with the low-water line, namely,

(i) a line connecting points at 52°38'56" N, 55°59'28" W and 52°37'43" N, 55°59'36" W,

(ii) a line connecting points at 52°37'00" N, 55°58'07" W and 52°36'49" N, 55°57'45" W, and

(iii) a line connecting points at 52°36'16" N, 55°52'19" W and 52°35'38" N, 55°52'20" W; and

(d) Zone 3, consisting of waters that are within an area of the sea bounded by the low-water line of the bay and by the following rhumb lines to their respective points of intersection with the low-water line:

(i) a line connecting points at 52°36'16" N, 55°52'19" W and 52°35'38" N, 55°52'20" W,

(ii) a line connecting points at 52°36'01" N, 55°51'08" W and 52°35'44" N, 55°50'42" W,

(iii) a line connecting points at 52°33'17" N, 55°46'27" W and 52°32'59" N, 55°46'58" W, and

(iv) a line connecting points at 52°33'25" N, 55°54'19" W and 52°33'01" N, 55°33'31" W.

PROHIBITED ACTIVITIES

3. (1) In the Area, no person shall

(a) disturb, damage or destroy, or remove from the Area, any living marine organism or any part of its habitat; or

(b) carry out any activity — including depositing, discharging or dumping any substance, or causing any substance to be deposited, discharged or dumped — that is likely to result in the disturbance, damage, destruction or removal of a living marine organism or any part of its habitat.

(2) Despite subsection (1), a person may carry out any activity excepted under section 4 or any scientific or educational activity for which a plan is approved under section 6.

EXCEPTIONS

4. The following activities may be carried out in the Area:

(a) the following fishing activities, namely,

(i) fishing that is carried out in accordance with the Aboriginal Communal Fishing Licences Regulations,

(ii) fishing for seals under the Marine Mammal Regulations and any related activity to which those Regulations apply when the fishing or the related activity is carried out in accordance with those Regulations,

(iii) any of the following recreational fishing activities carried out in accordance with the Atlantic Fishery Regulations, 1985 or the Newfoundland and Labrador Fishery Regulations, namely,

(A) in Zone 1A or 1B, angling for Arctic char, salmon or trout,

(B) in Zone 2, fishing for any species other than Atlantic cod, and

(C) in Zone 3, fishing for any species, and

(iv) commercial fishing in Zone 2 or 3, for any species other than Atlantic cod, that is carried out in accordance with the Atlantic Fishery Regulations, 1985 or the Newfoundland and Labrador Fishery Regulations;

(b) any of the following activities — in relation to which approval or authorization is not required under the Navigable Waters Protection Act or the Fisheries Act, as the case may be, or that is carried out in accordance with a related approval or authorization required under either of those Acts — namely,

(i) in Zone 1A or 1B, the maintenance, repair or removal of a wharf,

(ii) in Zone 2, the construction, maintenance, repair or removal of a wharf, and

(iii) in Zone 3, the construction, maintenance, repair or removal of a wharf, causeway or bridge; and

(c) any activity that is carried out for the purpose of public safety, national security or law enforcement or in response to an emergency.

ACTIVITY PLAN

5. Every person who proposes to carry out a scientific or an educational activity in the Area shall submit to the Minister for approval, not less than 60 days before the day on which the activity is proposed to begin, a plan that contains the following information and documents:

(a) the name, address and telephone number, and if applicable, the facsimile number and electronic mail address, of a person who can be contacted in respect of the plan;

(b) a detailed description of the proposed activity that sets out

(i) the purpose of the proposed activity,

(ii) the period or periods during which the proposed activity is to be carried out,

(iii) a map on which the location of the proposed activity is identified,

(iv) the types of data that are to be collected, if any, and the sampling protocols or other techniques to be used to collect the data,

(v) the types of equipment, if any, that are to be used during the proposed activity, including those for gathering data, and, if any of the equipment is to be anchored or moored in the Area, the methods by which the anchoring or mooring is to be conducted,

(vi) the type and identity of every vessel that is to be used to carry out the proposed activity, and

(vii) every substance, if any, that is to be deposited, discharged or dumped within the Area during the proposed activity;

(c) an assessment of the environmental effects that are likely to occur within the Area as a result of the proposed activity; and

(d) a list of every licence, permit, authorization or consent obtained or applied for in respect of the proposed activity.

6. (1) Subject to subsection (2), the Minister shall, within 30 days after the day on which a plan that is submitted in accordance with section 5 is received, approve the plan if the proposed activity is not likely to damage or destroy the habitat of a living marine organism in the Area and

(a) in the case of a scientific activity that is proposed to be carried out in Zone 1A or 1B, the activity is for the purpose of monitoring the effectiveness of conservation measures implemented in, or for the management of, the Area; and

(b) in the case of an educational activity that is proposed to be carried out in Zone 1A or 1B, the activity is for the purpose of increasing public awareness of the Area or providing information in respect of the conservation measures implemented in the Area.

(2) The Minister shall not approve a plan if the cumulative environmental effects of the proposed activity, in combination with any other past and current activities carried out within the Area, are likely to damage or destroy the habitat of living marine organisms in that area.

REPORTING OF ACCIDENTS

7. Every person involved in an accident that is likely to result in any disturbance, damage, destruction or removal prohibited under subsection 3(1) shall, within two hours after its occurrence, report the accident to the Canadian Coast Guard.

COMING INTO FORCE

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

SCHEDULE
(Subsection 1(3) and section 2)

GILBERT BAY MARINE PROTECTED AREA

[25-1-o]

Footnote 1

In the Newfoundland and Labrador Fishery Regulations, inland waters are de-fined as any of the waters within the Province that are above low water spring tide or that are inland of a line between points marked by caution notices posted under authority of the Regional Director General at or in the vicinity of the mouth of a river or stream flowing into the sea.

Footnote a

S.C. 1996, c. 31

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