Vol. 137, No. 6 — March 12, 2003

Registration
SOR/2003-87 4 March, 2003

OCEANS ACT

Endeavour Hydrothermal Vents Marine Protected Area Regulations

P.C. 2003-283 4 March, 2003

Her Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to subsection 35(3) of the Oceans Act (see footnote a) , hereby makes the annexed Endeavour Hydrothermal Vents Marine Protected Area Regulations.

ENDEAVOUR HYDROTHERMAL VENTS MARINE PROTECTED AREA REGULATIONS

DESIGNATION

1. The area of the Pacific Ocean — the seabed, the subsoil and the waters superjacent to the seabed — that is bounded by a line drawn from a point at 47°54'N, 129°02'W, from there west to a point at 47°54'N, 129°08'W, from there north to a point at 48°01'N, 129°08'W, from there east to a point at 48°01'N, 129°02'W, and from there south to the point of beginning, is hereby designated as a marine protected area to be known as the Endeavour Hydrothermal Vents Marine Protected Area (the "Area").

PROHIBITIONS

2. No person shall

(a) disturb, damage or destroy, in the Area, or remove from the Area, any part of the seabed, including a venting structure, or any part of the subsoil, or any living marine organism or any part of its habitat; or
(b) carry out any underwater activity in the Area that is likely to result in the disturbance, damage, destruction or removal of anything referred to in paragraph (a).

3. (1) No person contravenes section 2 if

(a) the disturbance, damage, destruction or removal is for scientific research for the conservation, protection and understanding of the Area;
(b) subject to subsection (3), a research plan described in subsection (2) is submitted to the Minister at least 90 days before the start of the scientific research in the Area; and
(c) all licences, authorizations or consents required under the Oceans Act, the Coastal Fisheries Protection Act, the Coasting Trade Act or the Fisheries Act in respect of the scientific research have been obtained.

(2) A research plan shall include the following information:

(a) the name, nationality, overall length, maximum draught, net tonnage, propulsion type, call sign, registration number and port number of each ship to be involved in the scientific research in the Area, and the name of the captain of each ship;
(b) the names and positions of the persons who are responsible for the development of the scientific research, and the scientific research personnel who will be on board each ship;
(c) the date on which the scientific research in the Area is to start, and the itinerary for each ship while it is involved in the research; and
(d) a summary of the scientific research to be conducted in the Area, together with a detailed map of the research area, which summary shall specify

(i) the data to be collected and sampling protocols to be used,
(ii) the other techniques, if any, to be used, such as those involving explosives, radioactive labelling or remotely operated vehicles,
(iii) the equipment to be moored and the method of mooring, and
(iv) the substances, if any, that are intended to be discharged.

(3) A research plan is not required to be submitted under paragraph (1)(b) if the information required under subsection (2) has previously been submitted in writing to obtain a consent under the Coasting Trade Act to conduct the scientific research.

(4) A person who submits a research plan shall immediately notify the Minister in writing of any subsequent changes to the plan.

4. No person contravenes section 2 by carrying out an activity in the Area

(a) by means or under conditions that are authorized under subsection 35(2) of the Fisheries Act;
(b) for which they have a consent under the Coasting Trade Act; or
(c) for which they have a licence or authorization under the Oceans Act, the Coastal Fisheries Protection Act or a provision of the Fisheries Act other than subsection 35(2).

5. No person contravenes section 2 by carrying out any movement or other activity of ships or submarines if

(a) the movement or other activity is carried out for the purpose of public safety, law enforcement, or Canadian sovereignty or national security; and
(b) the ships or submarines, as the case may be, are owned or operated by or on behalf of Her Majesty in right of Canada or by foreign military forces acting in cooperation with, or under the command or control of, the Canadian Forces.

COMING INTO FORCE

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

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

The Oceans Act came into force on January 31, 1997. The Act gives the Governor in Council the authority to establish Marine Protected Areas (MPA), by regulation, for any of the following reasons:

(a) the conservation and protection of commercial and non-commercial fishery resources and their habitats;
(b) the conservation and protection of endangered or threatened species and their habitats;
(c) the conservation and protection of unique habitats;
(d) the conservation and protection of marine areas of high biodiversity or biological productivity; and
(e) the conservation and protection of any other marine resource or habitat as is necessary to fulfil the mandate of the Minister of Fisheries and Oceans.

In 1998, the Minister of Fisheries and Oceans selected the Endeavour Hydrothermal Vents area off Canada's Pacific coast as a pilot Marine Protected Area. This MPA candidate meets the criteria set out in paragraphs (c), (d) and (e) above. The present regulatory initiative formally designates the Endeavour Hydrothermal Vents as a Marine Protected Area pursuant to the Oceans Act.

In addition to designating the MPA, the regulations will prohibit the removal, disturbance, damage and destruction of anything within the MPA. However, responsible scientific research and monitoring activities necessary for achieving the conservation objectives of the Endeavour Hydrothermal Vents MPA will be permitted using existing authorization processes (i.e., licences under the Fisheries Act and clearances issued under the Coasting Trade Act Foreign Vessel Clearance Request Process) and through the requirement that a research plan be submitted to the Minister under this Regulation. Further exceptions to the prohibition include authorized fishing and vessel activities on or near the ocean surface of the MPA. Military activities involving National Security will also supersede these Regulations.

The Endeavour Hydrothermal Vents MPA is a 100 square kilometre area of ocean floor and the water column above it. The proposed MPA is located 250 kilometres (155 miles) southwest of Vancouver Island in 2,250 metres (7,280 feet) of water. The water column is an essential part of the hydrothermal vents ecosystem.

As part of the Juan de Fuca Ridge system, the Endeavour segment is an active seafloor-spreading zone where tectonic plates diverge and new oceanic crust is formed. The Endeavour Hydrothermal Vents area represents a unique habitat that is considered the most biologically productive and diverse hydrothermal vent site along the Juan de Fuca Ridge.

In hydrothermal vent areas, cold seawater percolates downward through the earth's crust where it is heated by molten lava, eventually boiling back up through vents in the seafloor as plumes rich in dissolved minerals, chemicals, and suspended particles.

The vents in the Endeavour area consist of groups of large black smokers which are chimney-like structures formed as plume particles settle out and harden when the plume fluids contact the cold surrounding seawater. These plumes of vent fluid, with temperatures of 300° Celsius, rise rapidly to about 300 metres off the seafloor cooling as they rise and warming the waters surrounding the vents.

In these warmer waters around the Endeavour hydrothermal vents, an abundance of life is supported by bacteria whose life processes are, in turn, fuelled by the chemical energy of the vent plumes. The waters near Endeavour's black smokers are home to animal concentrations that can reach up to half a million per square metre. There are some 60 distinct species native to the Juan de Fuca Ridge. Twelve species are endemic to the Endeavour area, that is, they do not exist anywhere else in the world. In comparison, the waters outside the MPA are much less biologically productive with animal densities of only about 20 organisms per square metre.

Currently, the distance of the Endeavour hydrothermal vents from the mainland and the depth of the vents from the ocean surface limits access to those with the technological equipment, ability and resources to reach the area. The MPA is not greatly affected by surface shipping traffic or by fishing activity near the surface.

The principal danger facing the Endeavour hydrothermal vents ecosystem and its unique flora and fauna is the potential for habitat degradation by physical damage to the vent structures.

There is a great deal of interest in the area from a variety of scientific disciplines and some interest in its resource potential from the mining industry. Currently, however, the main activity in the Endeavour area is from several scientific research expeditions conducted each year (8 cruises took place in 2000).

The designation of the Endeavour Hydrothermal Vents as a Marine Protected Area will provide for long-term protection of this biologically diverse and productive ecosystem. In conjunction with designation, prohibiting the removal, disturbance, damage and destruction of anything within the MPA, will ensure that activities in the area can be managed.

The measures to be used to manage the MPA are set out in the Endeavour Hydrothermal Vents Marine Protected Area Management Plan which was developed collaboratively with stakeholders and other groups involved in consultations. The conservation objectives for the MPA will be achieved through the implementation of the management plan which outlines provisions for authorizing access to the area, an observer program, and marine environmental quality documentation requirements. Also described in the management plan is the education and outreach program to be implemented as a means of sharing research information gathered about the area, and the roles and responsibilities of the multi-sector management committee that will oversee the implementation and maintenance of the Endeavour Hydrothermal Vents MPA management plan.

The means to be used to manage access to the MPA and thus ensure adherence to conservation objectives are already in use under provisions of the Fisheries Act, the Coastal Fisheries Protection Act and the Coasting Trade Act.

Access by domestic vessels to the area is currently managed under provisions of the Fisheries Act and its regulations which prohibit fishing without a licence, fishing for scientific purposes without a licence or alteration of fish habitat without authorization. The licences and authorizations under the Fisheries Act specify the conditions under which and the extent to which activities in the MPA may be carried out. In addition, this Regulation will require those that are proposing research activities within the MPA to submit a research plan to the Minister describing the nature and intent of their research. This parallels requirements for foreign research vessels that are described below.

Access by foreign vessels to Canadian waters is currently managed under two federal acts, the Coastal Fisheries Protection Act and the Coasting Trade Act. Fishing and access to Canadian ports by foreign fishing vessels is authorized under provisions and regulations of the Coastal Fisheries Protection Act.

Access to Canadian waters by other foreign vessels is managed under the Foreign Vessel Clearance Request Process which was developed pursuant to the Coasting Trade Act. This process is managed by the Department of Foreign Affairs and International Trade (DFAIT). All foreign vessels entering Canadian waters are required to submit a Clearance request for approval prior to commencing the requested activities. DFAIT forwards Foreign Vessel Clearance Requests to relevant government departments for input and comment. Access requests that involve activities in the Endeavour Hydrothermal Vents area are vetted by the Department of Fisheries and Oceans (DFO) on behalf of DFAIT. Pursuant to the authority of section 44 of the Oceans Act, DFO routinely requests that DFAIT attach conditions to all requests for clearance that require foreign ships to supply DFO with the results of any marine scientific research. In addition, DFO normally requests that a berth be provided for a Canadian observer and that a cruise report be submitted in a timely fashion. This access clearance process will continue to be used in identifying vessels and managing their access to the MPA.

Alternatives

Status Quo

The status quo was an option that was considered but rejected. Although the risk of damage to the Endeavour Hydrothermal Vents habitat is limited at this time, interest in these types of sites around the globe is high and the technology to access these sites will be available in the near future. The status quo would not provide the protection required to control the activities that could damage elements of this ecosystem and thus manage the risks associated with those activities.

As an exceptional example of an active and thriving hydrothermal vent site, the habitat of this area must be protected.

The Fisheries Act and the Coastal Fisheries Protection Act

Although the provisions of the Fisheries Act and the Coastal Fisheries Protection Act will complement the conservation focus given the Endeavour area by the present regulatory regulation, on their own, the use of the provisions of these Acts is considered insufficient to provide the comprehensive protection the MPA will need. These Acts and their regulations will be used to manage access by domestic vessels and foreign fishing vessels to the MPA for research or other purposes.

The Foreign Vessel Clearance Request Process

As with the above-mentioned legislation, this process, while providing partial control over activities in the MPA, could not provide the comprehensive protection required for this sensitive area. This process will continue to be used to manage foreign vessel access to the area for research or other purposes.

Marine Protected Area Designation

The option of designating the Endeavour Hydrothermal Vents as an MPA is the only alternative which will give focus and recognition to this unique area. The broad-based umbrella of protection given by the designation and by prohibiting damage to the MPA will safeguard the integrity of its diverse and productive ecosystem. Under this umbrella, access to and activities in the area will be managed and controlled using provisions of the Fisheries Act to deal with domestic fishing and fish habitat related issues, the Coastal Fisheries Protection Act to control foreign fishing vessel activity, the Coasting Trade Act Foreign Vessel Clearance Request Process to control other foreign vessel activity, and the research plan provision of this Regulation to manage domestic research vessels.

Benefits and Costs

The primary benefit of the Endeavour Hydrothermal Vents Marine Protected Area Regulations is the recognition and protection that will be afforded this highly diverse and productive ecosystem, rare in the world's oceans and unique in Canada.

Currently, scientific knowledge is limited on hydrothermal vent ecosystems and the geologic factors influencing them. With Marine Protected Area status, scientific exploration of the Endeavour Hydrothermal Vents will be managed and the knowledge gained will be shared as a condition of access. MPA status will also ensure that the ecosystem remains undisturbed so that scientific study of it, in its natural state, will bring better understanding of the ecological processes of this unique environment. Scientific knowledge gained about the geology of hydrothermal vent systems may also add to our understanding of terrestrial and marine mineral deposition.

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 and the 1994 Convention on Biological Diversity of the United Nations Environment Program, as well as Canada's commitment to the World Conservation Union (IUCN) Commission on Protected Areas Program.

Any licensed fishing in the MPA takes place very near the ocean surface and will continue as it does not significantly impact the hydrothermal vents ecosystem. There are no aboriginal interests or claims in the area designated as an MPA.

In early 2001, NRCan conducted an assessment of the technical and economic feasibility of developing mineral resource deposits in the Endeavour Hydrothermal Vents MPA by describing the operating environment, estimating tonnage of sulphides and comparing the deposits to other seafloor and land deposits in the world.

The overall conclusion was that the estimated tonnage within the Endeavour Hydrothermal Vents MPA is very small compared to other seafloor deposits nearby and, if found on land, would not constitute ore bodies. In addition, the cost of resource extraction using current deep sea mining technology would render uneconomical the small and dispersed deposits found in the MPA. Much larger deposits would be required to make recovery cost effective.

Prospects for oil and gas exploration in the MPA are very low due to seismic activity and the thin oceanic crust. The remoteness and depth of the Endeavour Hydrothermal Vents area and the current moratorium on oil and gas exploration makes oil and gas exploration and extraction economically infeasible.

The area's remoteness, depth and volatility also renders it unsuitable for marine cable installation and there is no commercial value in the marine life of the MPA. Therefore, designation of the area as an MPA will have no negative economic impact on these industries.

Most of the costs to government for the administration and management of the new MPA relate to potential public information and education programs, management of access to the area and research information management and dissemination. The area's remoteness and depth minimizes the need for intensive enforcement activity. In any case, costs related to the new MPA will be managed within DFO's existing budgetary allotments.

Consultation

In 1999, after Endeavour Hydrothermal Vents was identified as a pilot Marine Protected Area, a Planning Team was established to study the feasibility of a Marine Protected Area at the Endeavour site, to develop recommendations and an action plan and to develop and implement a consultation plan for the MPA. An Advisory Team was also formed to provide support to the Planning Team when required.

The Planning team brought together a cross section of interested groups from:

•  Department of Fisheries and Oceans,

•  Natural Resources Canada,

•  The University of Quebec at Montreal,

•  The University of Washington,

•  The Canadian Non-Government Science and InterRidge, and

•  International Science and RIDGE.

The Advisory Team consisted of representation from:

•  Department of Fisheries and Oceans,

•  The University of Victoria, and

•  St. Michael's University School.

Over the course of 8 months, the Planning and Advisory Teams determined that an MPA was feasible and developed a Recommendations Document outlining the results of that process. Although the primary interest in the Endeavour Hydrothermal Vents stems currently from the scientific community, input from a broad base of interested parties was obtained on the Recommendations Document. Groups consulted included representatives from Heritage Canada, Canadian Parks and Wilderness Society, the Sierra Club, and Pennsylvania State University who have a longstanding and active interest in hydrothermal vent fields.

Due to the geographic distribution of interest groups and the international importance of the Endeavour Hydrothermal Vents Area, consultations were designed to reach the widest possible audience. These included a workshop for interested groups, teleconference calls, meetings, and bilateral discussions.

The Endeavour workshop, held in March 1999, presented and gathered feedback on the Endeavour Hydrothermal Vents Eco system Overview and other management issues. Participants included, among others, representatives of federal and provincial governments (Parks Canada Agency, Natural Resources Canada, BC Ministries of Energy and Mines, of Environment, Lands and Parks, and of Fisheries and the Information, Science and Technology Agency), U.S. National Oceanic and Atmospheric Administration, academic institutions (Universities of Victoria, Washington, and Quebec at Montreal, Lester B. Pearson College, Oregon State and Pennsylvania State Universities), museums (Canadian Museum of Nature, Royal BC Museum), and oceanographic groups (Bamfield Marine Station, Canadian Scientific Submersible Facility).

Workshop participants were concerned about the ability to conduct research in the area if Endeavour becomes an MPA and about being able to access the MPA. Participants were assured that scientific and educational objectives were very important in the designation of Endeavour as an MPA and that current mechanisms for accessing the area for research will remain the same though conditions to protect the area's integrity could be applied, if required.

Following the Endeavour Workshop, a CD-ROM containing the Endeavour Hydrothermal Vents Ecosystem Overview and results of the workshop were distributed to participants and to those invited who could not attend which included other academic institutions (Universities of Toronto, New Brunswick, British Columbia, Minnesota, Hawaii, Florida), marine science institutions (Pacific Marine Environmental Laboratory, Monterey Bay Aquarium Research Institute, Woods Hole Oceanographic Institution), other federal and provincial departments and agencies (Foreign Affairs and International Trade Canada, Canadian and U.S. Coast Guards, Environment Canada, National Research Council, Science Council of BC), and deep sea mining and technology groups (International Submarine Engineering Ltd., Deep-Sea Minerals, Offshore Minerals Western Subsea Technology Limited, Sea Science Inc.). Again, concerns about continued access for research were expressed and assurances given.

In addition, mailings to the Federal Committee on Oceans - Pacific Region were sent requesting their comments. This committee is comprised of the following federal agencies and departments: Fisheries and Oceans Canada, Indian Affairs and Northern Development, Environment Canada, Natural Resources Canada, Royal Canadian Mounted Police, Canadian Heritage, Human Resources Development Canada, Canadian Environmental Assessment Agency, Agriculture and Agri-Food Canada, Industry Canada, Western Diversification, Transportation Safety Board, and Public Works and Government Services Canada and the Vancouver Port Authority. No concerns were raised regarding the proposed designation of the Endeavour Hydrothermal Vents as a Marine Protected Area.

In September 2000, InterRidge, an initiative concerned with facilitating international and multi-disciplinary research associated with mid-ocean ridges, conducted an international hydrothermal vent management workshop. A portion of the agenda of this workshop was devoted to the proposed designation of the Endeavour Hydrothermal Vents as an MPA. Representatives from the marine policy sector, international law, and various scientific disciplines were in attendance from across Canada and from a number of countries including Japan, Germany, Britain, France, and the U.S. The participants at the workshop were supportive of the conservation and protection of hydrothermal vent sites in general, and of Endeavour Hydrothermal Vents in particular.

Transport Canada, the Department of National Defence, and Natural Resources Canada were also consulted regarding their interest in the Endeavour area. Transport Canada indicated no concerns about the designation of an MPA as surface shipping traffic does not impact the proposed MPA.

The Department of National Defence (DND) has been assured that the proposed MPA regulations would not impact its ability to ensure national security. DND was also assured that the proposed regulations would not interfere with future military activity, even though the proposed MPA is not currently used for routine military operations.

In early 2000, DFO and NRCan sought input from the only company currently interested in marine non-renewable mineral resources in the Endeavour area. This company believes that improvements in deep-sea mineral exploration technology will soon make mineral extraction from the ocean floor feasible and that MPA status would preclude such extraction in the Endeavour area.

However, in a technical and economic feasibility assessment conducted in the area in February/March 2001, NRCan concluded that estimates of mineral tonnage in the area are too small to be developed economically. With no viable mineral deposits, the Endeavour Hydrothermal Vent area would not be an area of undersea mining interest.

Information on the proposed Endeavour Hydrothermal Vents Marine Protected Area was sent to the Mining Association of British Columbia and the BC and Yukon Chamber of Mines requesting their input. Neither of these organizations expressed objections or concern about the proposed MPA designation.

DFO was afforded another opportunity to consult with a stakeholder group through the Foreign Vessel Clearance Request Process. DFO was able to place an observer aboard a research cruise to the Endeavour Hydrothermal Vents area. During the expedition, the scientific crew members were consulted regarding the proposed MPA designation. The proposal was fully supported provided that MPA status would not unduly hamper responsible scientific research. They also requested that the government continue to involve the academic and scientific communities. These stakeholders were assured of the importance of the scientific and educational understanding of Endeavour and of the involvement of interested groups such as theirs.

On two occasions, presentations were made to the Central Region Board on Vancouver Island regarding the proposed Endeavour Hydrothermal Vents MPA. The Central Region Board membership consists of all Nuu-chah-nulth First Nations chiefs, and local and regional government representatives. The Central Region Board expressed great interest in the MPA project but no objections or concerns were expressed.

Finally, input from the general public has been invited as part of a display on the Endeavour Hydrothermal Vents MPA proposal at the Wickaninnish Interpretive Centre at Pacific Rim National Park Reserve. Since the display was established at the beginning of June 2000, no comments have been received.

Results of Pre-publication

The proposed Endeavour Hydrothermal Vents Marine Protected Area Regulations were published in the Canada Gazette, Part I, on June 9, 2001. The only comment received during the thirty-day pre-publication period was from DND. Although the RIAS clearly stated that "Military activities involving National Security will also supersede these Regulations", DND officials raised the concern that this was not clear enough in the regulations. DND officials were of the view that the regulations should contain an explicit exemption for military vessels carrying out activities in the Endeavour area for the purposes of public safety, national security, law enforcement or Canadian sovereignty.

After several discussions with DND, a new section has been added to the proposed Regulations which provides for the above exemption.

Compliance and Enforcement

The designation of the Endeavour Hydrothermal Vents as a Marine Protected Area and the prohibition of disturbance of or damage to the MPA forms the foundation of protection for this unique ecosystem. The management plan for the area outlines the conservation objectives of the MPA, the access authorization process, observer program, and marine environmental quality documentation requirements. Also described in the management plan is the education and outreach program, and the roles and responsibilities of the multi-sector management committee.

Post-designation, DFO will conduct an outreach exercise to inform current and potential user groups of the designation and the management plan for the MPA.

Licences and authorizations under the Fisheries Act and the Coastal Fisheries Protection Act, clearance consents issued via the Foreign Vessel Clearance Request process under the Coasting Trade Act, and the research plan provisions of this Regulation will manage access to the MPA and the conditions of such access for domestic and foreign vessels. DFO has developed a referral process for access requests to the Endeavour Hydrothermal Vents MPA so that the management committee can ensure consistency with the conservation objectives and management plan for the MPA. Compliance will be monitored via the observer program and cruise reports requested under the Foreign Vessel Clearance Request Process.

Since research by the scientific and academic communities will be the main activity conducted in the area, compliance with access conditions and thus conservation objectives of the MPA is anticipated. However, violations of the MPA regulations carry penalties under the Oceans Act, while contraventions of access authorizations and licences can result in charges under the Fisheries Act and under the Coasting Trade Act. Upon conviction, the courts may impose fines and prisons terms for offences under each of these Acts.

Of course, management of the MPA will be an adaptive process utilizing all present and future tools available. The objectives of the MPA will be continuously assessed using the most current scientific information available and adjusted when appropriate.

Contacts

PACIFIC REGION
Doug Andrie
Coordinator
Integrated Coastal Zone Management
Oceans Directorate — South Coast
Fisheries and Oceans Canada
4166 Departure Bay Road
Nanaimo, British Columbia
V6B 5G3
Telephone: (250) 756-7251
FAX: (250) 756-7349
E-mail: AndrieD@pac.dfo-mpo.gc.ca

NATIONAL CAPITAL REGION
Mary Jean Comfort
Marine Protected Areas National Coordinator
Marine Ecosystems Conservation Branch
Fisheries and Oceans
200 Kent Street
Ottawa, Ontario
K1A 0E6
Telephone: (613) 991-5935
FAX: (613) 993-6414
E-mail: ComfortM@dfo-mpo.gc.ca

Andrew Aryee
Regulatory Analyst
Legislative and Regulatory Affairs
Department of Fisheries and Oceans
200 Kent Street
Ottawa, Ontario
K1A 0E6
Telephone: (613) 991-9410
FAX: (613) 990-2811
E-mail: AryeeA@dfo-mpo.gc.ca

Footnote a 

S.C. 1996, c. 31

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