Registration
SOR/2004-112 7 May, 2004

OCEANS ACT

Gully Marine Protected Area Regulations

P.C. 2004-606 7 May, 2004

Her Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to subsection 35(3) and section 52.1 of the Oceans Act (see footnote a), hereby makes the annexed Gully Marine Protected Area Regulations.

GULLY MARINE PROTECTED AREA REGULATIONS

INTERPRETATION

1. (1) In these Regulations, all geographical coordinates (latitude and longitude) are expressed in the North America Datum 1983 (NAD83) geodetic reference system.

(2) In Schedules 1 and 2, the lines connecting the points are rhumb lines.

DESIGNATION

2. The area of the Atlantic Ocean depicted in Schedule 1 — consisting of the seabed, the subsoil to a depth of 15 m and the water column above the seabed — that is bounded by a rhumb line drawn from a point 44°13'N, 59°06'W to a point 43°47'N, 58°35'W, then to a point 43°35'N, 58°35'W, then to a point 43°35'N, 59°08'W, then to a point 43°55'N, 59°08'W, then to a point 44°06'N, 59°20'W (which points are shown as points 1 to 6, respectively, in Schedule 1), and back to the point of origin, is hereby designated as a marine protected area to be known as the Gully Marine Protected Area.

MANAGEMENT ZONES

3. The Gully Marine Protected Area consists of the following management zones:

(a) Zone 1, as depicted in Schedule 2;

(b) Zone 2, as depicted in Schedule 2, consisting of the area surrounding Zone 1,

(c) Zone 3, as depicted in Schedule 2, consisting of the Gully Marine Protected Area, other than Zones 1 and 2.

PROHIBITED ACTIVITIES

4. Subject to sections 8 to 10, no person shall

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

(b) disturb, damage or destroy in the Gully Marine Protected Area, or remove from it, any part of the seabed, including the subsoil to a depth of 15 m of the seabed; or

(c) carry out any activity — including depositing, discharging or dumping any substance, or causing any substance to be deposited, discharged or dumped — in the Gully Marine Protected Area, in the vicinity of that Area or in any area adjacent to it, that is likely to result in the disturbance, damage, destruction or removal of anything referred to in paragraph (a) or (b).

PLAN TO BE SUBMITTED

5. Subject to sections 10 and 11, every person who proposes to carry out an activity in the Gully Marine Protected Area must submit to the Minister for approval, not less than 60 days before beginning the proposed activity, a plan that sets out the activity, indicates the management zone in which the activity is proposed to be carried out and includes

(a) a statement of the purpose of the activity;

(b) a detailed description of the activity;

(c) the identity of every ship and aircraft proposed to be used during or in connection with the activity, as well as the name of the captain of each ship and the name of the pilot in command of each aircraft;

(d) the proposed period or periods during which the activity will take place;

(e) the location of the activity, expressed in latitude and longitude;

(f) two copies of all plans and specifications relating to the activity;

(g) two copies of a report assessing the environmental impact of the activity on the Gully Marine Protected Area, including a consideration of any cumulative environmental effects that are likely to result from the activity in combination with any other past and current activities undertaken in or affecting that Area and any other anticipated activities that may be undertaken in or may affect that Area;

(h) a list of every licence, permit, authorization or consent obtained or applied for in respect of the activity; and

(i) the name, address and telephone number and, if applicable, the facsimile number and electronic mail address of the contact person.

6. (1) Subject to subsection (2), the Minister shall, within 30 days after receiving a plan submitted in accordance with section 5, approve the plan, subject to the following conditions, as applicable:

(a) in the case of scientific research or monitoring activities in Zone 1, the activities

(i) are to be carried out for the purpose of

(A) managing the Gully Marine Protected Area or monitoring the effectiveness of the conservation measures being implemented in that Area, or
(B) investigating incidents that may have an environmental impact on the Gully Marine Protected Area, or

(ii) are to be carried out for a purpose other than the purposes referred to in subparagraph (i) and will not result in any damage or destruction referred to in section 4 in Zone 1 or 2;

(b) in the case of scientific research or monitoring activities in Zone 2 or 3, the activities

(i) are to be carried out for the purpose of

(A) managing the Gully Marine Protected Area or monitoring the effectiveness of the conservation measures being implemented in that Area, or
(B) investigating incidents that may have an environmental impact on the Gully Marine Protected Area, or

(ii) are to be carried out for a purpose other than the purposes referred to in subparagraph (i) and

(A) will not result in any damage or destruction referred to in section 4 in Zone 1 or 2, and
(B) will only result in damage or destruction referred to in section 4 in Zone 3 that is within the natural variation of the ecosystem in which that Zone is located; and

(c) in the case of any other activity in the Gully Marine Protected Area, the activity

(i) will be limited to Zone 3,
(ii) will not result in any disturbance, damage, destruction or removal referred to in section 4 in Zone 1 or 2, and
(iii) will only result in disturbance, damage, destruction or removal referred to in section 4 in Zone 3 that is within the natural variation of the ecosystem in which that Zone is located.

(2) The Minister shall not approve the plan referred to in subsection (1) if the cumulative environmental effects of the proposed activity, in combination with any other past and current activities undertaken in or affecting the Gully Marine Protected Area and any other anticipated activities that may be undertaken in or may affect that Area, are likely to result in disturbance, damage, destruction or removal that exceeds the parameters described in the conditions set out in paragraph (1)(a), (b) or (c), as applicable.

ACCIDENTS TO BE REPORTED

7. Every accident that results in any disturbance, damage, destruction or removal referred to in section 4 must be reported within two hours to the Canadian Coast Guard by the captain of the ship or the pilot of the aircraft that is involved in the accident or by the person who caused the accident.

EXCEPTIONS

8. Living marine organisms may be removed from Zone 2 or 3 if they are removed by the holder of a valid commercial fishing licence issued under subsection 7(1) of the Fisheries Act in the following circumstances:

(a) the licence is for swordfish, tuna or shark and the holder of the licence, when fishing for a species of fish authorized by the licence, complies with the terms and conditions of the licence;

(b) the licence is for groundfish and the holder of the licence, when fishing for halibut, complies with the terms and conditions of the licence; or

(c) the licence is a valid commercial fishing licence, other than a licence referred to in paragraph (a) or (b), and the holder of the licence, when fishing for a species of fish authorized by the licence,

(i) complies with the terms and conditions of the licence,
(ii) does not cause any damage or destruction referred to in section 4 in Zone 2,
(iii) causes only damage or destruction referred to in section 4 in Zone 3 that is within the natural variation of the ecosystem in which that Zone is located, and
(iv) removes living marine organisms from Zone 2 or 3 only to an extent that is within the natural variation of the ecosystem in which Zone 2 or 3, as the case may be, is located.

9. Paragraph 4(c) does not apply in respect of an activity carried out in the vicinity of the Gully Marine Protected Area or in any area adjacent to it if the disturbance, damage, destruction or removal referred to in that paragraph

(a) is limited to Zone 3; and

(b) is within the natural variation of the ecosystem in which Zone 3 is located.

10. Sections 4 and 5 do not apply in respect of any movement or other activity of a ship, submarine or aircraft if the movement or other activity is carried out for the purpose of public safety, law enforcement or national security or for the exercise of Canadian sovereignty and

(a) the ship, submarine or aircraft is owned or operated by or on behalf of Her Majesty or by a foreign military force acting in cooperation with, or under the command or control of, the Canadian Forces; or

(b) the movement or other activity is carried out for the purpose of an emergency response under the direction, command or control of the Canadian Coast Guard.

11. Section 5 does not apply in respect of

(a) fishing activities carried out in Zone 2 or 3 by the holder of a valid commercial fishing licence, issued under subsection 7(1) of the Fisheries Act, if the activities are carried out in a manner that complies with the terms and conditions of the licence;

(b) marine scientific research activities that are carried out or sponsored by a foreign government in the Gully Marine Protected Area and in respect of which that government has received the consent of the Minister of Foreign Affairs under paragraph 3(2)(c) of the Coasting Trade Act, if the activities are carried out in a manner that complies with the terms and conditions of the consent; or

(c) the activities of a ship that is exercising international navigational rights in the Gully Marine Protected Area and is not contravening the Canada Shipping Act or any requirements of the International Maritime Organization.

COMING INTO FORCE

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

SCHEDULE 1
(Section 2)

GULLY MARINE PROTECTED AREA

SCHEDULE 2
(Section 3)

MANAGEMENT ZONES

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

The 1997 Oceans Act gives the Governor in Council the authority to designate Marine Protected Areas, 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.

"The Gully", a deep canyon ecosystem on the edge of the Scotian Shelf near Sable Island, has been the focus of national and regional conservation efforts since the early 1990s. In December 1998, the Minister of Fisheries and Oceans selected "The Gully" as an Area of Interest (AOI) under the Department's national Marine Protected Area Program, following a comprehensive Science Review. This site meets the criteria set out in paragraphs (a), (b), (c), (d) and (e) above. The present regulatory initiative formally designates "The Gully" as a Marine Protected Area (MPA) pursuant to the Oceans Act.

The purpose of this designation is to conserve and protect the natural biological diversity of "The Gully", and to ensure its long-term health. A number of whale species, including the at-risk Scotian Shelf population of the northern bottlenose whale, are attracted to the area by its high productivity and food supply. "The Gully" also contains a diversity of benthic habitats, including the highest known diversity of deep sea coral species in Atlantic Canada.

Ecological Description

"The Gully" is the largest submarine canyon in the western North Atlantic. The canyon is approximately 65 kilometres long, 15 kilometres wide, and more than 2500 metres deep at its mouth. The geology and shape of "The Gully" are considered unique. It has many near-vertical cliffs and large areas of exposed bedrock. Other submarine canyons in Atlantic Canada are not as large, nor do they extend as far back into the shelf to closely link open ocean and coastal shelf ecosystems. Although "The Gully" is largely defined by the canyon itself, the ecosystem also encompasses an upper trough area, smaller feeder canyons, the shallow banks on either side of the canyon, and parts of the Scotian Slope. Owing to its location, shape, size, geology and physical oceanography, "The Gully" ecosystem contains many diverse habitats and is highly productive.

Large scale circulation patterns around "The Gully" collect and transport productivity from the surrounding banks to the canyon, providing a year-round source of food. Circulation patterns within the confined canyon create a deep water retention area for marine life. Retention areas are important biologically as they concentrate food and keep eggs, larvae and juvenile fish in preferred conditions. These types of habitats, with high food availability and retention, are sought out by many species for spawning and juvenile rearing. "The Gully" is thought to be the largest such deep water retention area in the western North Atlantic and a key habitat for deep water species.

Large numbers of whales from a variety of species are attracted to "The Gully" by the high food supply, particularly concentrations of zooplankton, lanternfish and squid. Baleen whales feed here during their migrations and deep diving whales feed in the canyon throughout the year. "The Gully" is especially important for the Scotian Shelf population of northern bottlenose whales that makes use of the canyon year-round. Observations of northern bottlenose whales are concentrated in the deeper portions of "The Gully". This whale population was classified as a species of special concern in 1996. In November 2002, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) changed the population status to endangered. The blue whale, which is listed as endangered by COSEWIC, is also known to frequent "The Gully".

"The Gully" is known to be important for both commercial and non-commercial fish species. The area has a higher diversity of demersal (bottom) fish than adjacent areas of the eastern Scotian Shelf. It is a particularly important area for halibut. "The Gully" also has high concentrations of less well-known fish, including a variety of mesopelagic fishes (mid-size fish inhabiting the water column, such as lanternfish).

"The Gully" is used as an over-wintering area by some fish and invertebrate species. The springtime flow into "The Gully" is twice as strong as the flow out. This provides an important mechanism for distributing species over-wintering in "The Gully" to other areas of the Scotian Shelf.

The variety of depths in "The Gully" support a great diversity of habitats and species. In particular, this area has a high diversity of benthic (bottom) habitat types and the highest known diversity of coral species in Atlantic Canada. Moreover, "The Gully" contains many species types and assemblages that are rare and have limited distribution in the broader region, such as deep sea corals. While these species are not formally listed as endangered or threatened, their vulnerability to human impact is clear.

MPA Boundary and Management Zones

The regulations establish the MPA boundary and three internal management zones in which different activities may be permitted, provided that they do not compromise the conservation objectives of the MPA. The MPA is 2364 square kilometres in size and the outer boundary is defined by six points. The three management zones are defined by a series of points and rhumb lines.

Zone 1 encompasses the core canyon area deeper than 600 metres. This zone contains the deep water elements of "The Gully" ecosystem and including the core canyon area important for a number of whale species, including northern bottlenose whales. It also supports a significant biomass of non-commercial species, such as squid and lanternfish, on which northern bottlenose and other whales feed. This Zone is afforded the highest level of protection.

Zone 2 is defined by three different areas: (a) between 600 metres and 300 metres along the canyon walls, (b) the head of the canyon, including the trough and upper feeder canyons, and (c) the deep water area of the abyssal plain. Owing to the complexity of the topography and the gradation in depth, this area contains a high diversity of benthic organisms. Consequently, this Zone is afforded a high level of protection for benthic habitats and other ecosystem elements.

Zone 3 is defined by the shallow banks (shallower than 300 metres) on either side of the canyon. These banks comprise relatively homogenous habitats in comparison to other areas in "The Gully". Owing to the shallow depths, these banks are subject to highly dynamic oceanographic processes and regular natural disturbances, such as storms.

Prohibitions

The regulations prohibit the disturbance, damage, destruction or removal of any living marine organism or any part of its habitat within the MPA. These general prohibitions also apply to the seabed, including the subsoil to a depth of 15 metres, to protect benthic organisms and habitats. In addition, the Regulations prohibit activities, including the depositing, discharging or dumping of substances within the MPA and in areas adjacent to or in the vicinity of the MPA, that contravene the prohibitions listed above. This requirement recognizes that activities occurring outside the boundary have the potential to cause harmful impacts within the MPA.

The Regulations recognize that certain activities, such as science and specific types of fishing, may be allowed to occur within the MPA without compromising the conservation objectives. Moreover, certain activities, such as monitoring and emergency response, may be required to support the management and protection of the MPA, while other activities may be required for specified over-riding purposes, such as those for national security. Activities in the MPA will be managed through the Regulations and "The Gully" MPA Management Plan. Within the Regulations, activities are managed through: (1) the submission and approval of activity plans according to specified conditions, and (2) specific exceptions to the general prohibitions. The MPA Management Plan will provide further guidance on the Regulations and will be used to implement management strategies to meet MPA conservation objectives.

Activity Plan Approvals and Reporting

In order to ensure that activities being undertaken in the MPA are consistent with the conservation objectives, the Regulations require that a plan containing specified information be submitted for the approval of the Minister of Fisheries and Oceans. The submission of plans will be required 60 days in advance of the proposed activity. The Minister will approve a plan within 30 days of receiving the submission if the activity does not contravene the protection requirements of the MPA.

In general, scientific research and monitoring will be approved in all zones of the MPA if the activities meet the ecosystem protection requirements. Science and monitoring will also be approved if they contribute to the management of the MPA, or to the evaluation of the effectiveness of the conservation measures being implemented. Additionally, science and monitoring activities will be approved for the purpose of investigating incidents that may have had an environmental impact on the MPA.

For activities other than monitoring and scientific research, plans may be approved for Zone 3 provided that the activities will not result in effects beyond natural variation in the Zone. Also, activities carried out in Zone 3 cannot result in effects that contravene the protection requirements of Zones 1 and 2.

The plan submission process requires an assessment of cumulative environmental effects. In order to receive approval from the Minister, the proposed activity — in combination with other activities in and affecting the MPA — must not contribute to cumulative effects in the MPA.

In order to further safeguard the MPA ecosystem, all accidents, including those resulting from excepted activities, must be reported to the Canadian Coast Guard within two hours of occurrence. Such incidents could include collisions with marine mammals, entanglement of turtles or marine mammals, spills or accidental discharges.

Exceptions

Exceptions to the general prohibitions and the plan submission requirements are granted in Zones 2 and 3 for the holders of valid commercial fishing licences, issued pursuant to the Fisheries Act, directing for halibut (longline), swordfish, tuna and shark. The exceptions only apply when fishing activities are undertaken in compliance with the terms and conditions of the fishing licence. These exceptions have been incorporated in the Regulations based on a determination that the specified fisheries can be undertaken in a manner consistent with the conservation objectives of the MPA, and that fisheries management plans approved by the Department of Fisheries and Oceans (DFO) contain the required conservation measures. Additional fisheries may be considered in Zones 2 and 3 if they would not result in any damage or destruction in Zone 2, and any resulting environmental effects are within the natural variation of Zone 3.

Exceptions to the general prohibitions and plan submission requirements are provided for any movements or activities by a ship, submarine or aircraft operated by, or on behalf of the Government of Canada, if these are carried out for the purposes of public safety, law enforcement, national security, the exercise of Canadian sovereignty or emergency response.

Exceptions to the plan submission requirements are provided for marine scientific research activities when they are carried out or sponsored by foreign governments in compliance with a valid consent issued pursuant to the Coasting Trade Act.

Exceptions to the plan submission requirements are provided for ships exercising international navigational rights and abiding by all relevant international and Canadian laws.

MPA Management Plan

The MPA Management Plan will elaborate on the Regulations and be used to implement a comprehensive set of conservation and management strategies. The Management Plan will provide the detail required to ensure that the rationale for management decisions, prohibitions, controls and approvals are clearly justified and understood. Additionally, the Management Plan will address matters such as research, monitoring, public education, compliance, surveillance and enforcement. Roles and responsibilities will also be defined for a multi-stakeholder Management Committee established to support the preparation, implementation and maintenance of the Management Plan.

Conservation Issues

The deep water ecosystem of "The Gully" supports a range of mammal, fish and benthic organisms, including rare, fragile and at-risk species, all of which are susceptible to impact from human activity. At the present time, shipping, fishing, hydrocarbon exploration and scientific research are the most active sectors in and around "The Gully". These human activities are potential sources of pressure on this unique ecosystem. Primary conservation issues include disturbance to deep sea corals and other benthic communities; noise and the risk of oil pollution from vessel traffic; retention and concentration of contaminants transported from nearby areas; and disturbance or injury to whales as a result of noise, pollution, fishing gear interactions and vessel collisions.

Over the last number of years, a range of organizations have been working to understand and protect "The Gully" ecosystem. The area has been a major focus of government, university and private sector research, with a number of ongoing science activities aimed at understanding this complex ecosystem. In 1994, a portion of the "The Gully" was designated by DFO as a Whale Sanctuary. The annual Notice to Mariners issued by the Canadian Coast Guard provides voluntary guidelines for vessel operation in the area. As part of the identification of "The Gully" as an AOI under the national MPA Program, DFO also placed a restriction on new and developing fisheries in the area.

The oil and gas industry and its regulator, the Canada-Nova Scotia Offshore Petroleum Board (CNSOPB), have implemented a number of voluntary measures and policy initiatives to reduce impacts on "The Gully" ecosystem. Since 1997, the CNSOPB has not authorized oil and gas activities or issued licences within the AOI boundary. Companies holding nearby licences have developed expanded environmental assessments, enhanced mitigation measures, operational codes of conduct and environmental effects monitoring. These precautionary measures reflect the uncertainty surrounding potential effects of this industry on "The Gully".

The present level of human activity in "The Gully" remains low in comparison to adjacent areas on the eastern Scotian Shelf. As a result, "The Gully" remains an intact and relatively undisturbed ecosystem that requires legal protection and direct management prior to any increase in human use or introduction of new activities.

Alternatives

Status Quo

The status quo option was considered but rejected. Current management mechanisms are not providing the comprehensive, ecosystem-based and long-term protection that is required for this important area. Although there have been many important efforts by both government and industry to address and minimize impacts, reliance on the status quo will not provide the protection required to consistently control impacts from all activities.

Reporting Area

To ensure protection of the MPA from external activities, DFO initially considered including a reporting area surrounding the MPA in the Regulations. Defined by circulation patterns and the bank origins of productivity, the reporting area extended well beyond the MPA boundary. Under this earlier proposal, plans for all activities within the reporting area would have been submitted to the Minister for approval. This alternative to the present Regulations was rejected owing to the large size of the reporting area, additional costs to industry proponents, administrative burden, and duplication of existing application and approval processes.

Marine Protected Area Designation and Management

An MPA designation will provide for the direct management and legal protection of "The Gully", thereby conserving this unique, diverse and sensitive deep sea canyon ecosystem. Designation will ensure comprehensive, ecosystem-based and long-term management and protection for this exceptional part of Canada.

Although the Regulations will provide the primary tool for protecting the MPA, the environmental provisions of existing legislation, regulations and policies will also fulfil an important role in achieving conservation objectives. Access to the MPA will be controlled, and approved activities will be managed, through relevant provisions of several Acts, including the Fisheries Act, the Coastal Fisheries Protection Act, the Coasting Trade Act, the Canada Shipping Act, the Canadian Environmental Assessment Act and the Species at Risk Act.

DFO will use the Fisheries Act and fisheries management plans to ensure that fishing activities are undertaken in a manner consistent with conservation objectives of the MPA.

In many cases, MPA designation will serve to reinforce, augment and formalize various interim protection policies and measures that have been used in anticipation of the MPA being designated. These measures include review mechanisms undertaken by the CNSOPB and DFO for offshore oil and gas exploration.

Non-regulatory actions will also form an integral part of the conservation and management of "The Gully", particularly when dealing with activities in the vicinity of the MPA. The intergovernmental and multi-stakeholder planning process for the Eastern Scotian Shelf Integrated Management (ESSIM) Initiative will lead to an integrated ocean management plan for the broader area surrounding "The Gully". In addition to improved government coordination and stakeholder involvement in ocean planning, this Initiative will promote greater stewardship and responsible ocean use, both within and outside the MPA.

The MPA will enhance current awareness and stewardship efforts in the shipping industry and will include use of the Annual Notice to Mariners to advise vessels of conservation requirements. Collaborative efforts with industry associations, the Canadian Coast Guard and Transport Canada will be used to develop further measures to minimize the potential for adverse impacts on "The Gully" ecosystem. This may include a future submission to the International Maritime Organization proposing a precautionary designation for the area. In addition, the sensitivities of the MPA will be recognized in the development of regional and national ballast water management practices and controls.

Benefits and Costs

The primary benefit to Canadians of "The Gully" MPA is the recognition and protection that will be achieved for this important and unique canyon ecosystem. The MPA designation will serve to prevent species loss and allow ecosystem concerns to be addressed in a comprehensive manner. The broad-based umbrella of long-term protection provided by the designation and the Regulations prohibiting damage to the MPA will safeguard its diverse and productive ecosystem.

"The Gully" is both nationally and globally acknowledged as an important and exceptional marine habitat. General public support for "The Gully" MPA has been high as Canadians increasingly recognize the importance of proactive marine conservation and biodiversity protection. This public enthusiasm is exemplified by thousands of support letters written to the Department. The MPA will serve as an important conservation legacy for all Canadians.

Under the Oceans Act, the Minister is directed to establish a national system of MPAs. The designation of "The Gully" MPA will be a key contribution to the development of this national system and for meeting commitments under Canada's Oceans Strategy, the federal ocean policy statement. Protected areas are also a key contribution to the Sustainable Development Strategy of the Government of Canada.

Based on available information, the deep water shelf edge portions of the MPA contain the most important habitat for the Scotian Shelf population of northern bottlenose whales. The whales in this population are considered to be at-risk by the Government of Canada. COSEWIC has recently recommended an endangered designation, the highest level of concern under the Species at Risk Act. Therefore, the MPA will provide core protection for these important whales and will be a key contribution to meeting responsibilities under the Species at Risk Act and the recovery planning process.

Currently, global scientific knowledge is limited on deep sea and canyon ecosystems and the factors influencing them. As a relatively undisturbed deep sea ecosystem, "The Gully" will serve as an important scientific reference area. The MPA will support important research opportunities and allow for a better understanding of the ecological processes at work in deep sea environments. Research in "The Gully" will provide insight into other shelf edge ecosystems in Atlantic Canada and improve our understanding of their importance to fish, corals and mammals.

Designation of "The Gully" MPA will provide Canada with international recognition in the important field of marine biodiversity protection. Furthermore, the establishment of this MPA will clearly demonstrate Canada's resolve to fulfil its international commitments for ocean management and marine conservation. These include commitments made under the 1982 UN Convention on the Law of the Sea, the 1992 UN Conference on Environment and Development, the 1994 Convention on Biological Diversity, and the 2002 Johannesburg Summit.

Minerals and Hydrocarbons

Natural Resources Canada (NRCan) and the CNSOPB have conducted an assessment of the technical and economic feasibility of mineral and hydrocarbon resource deposits in "The Gully" and surrounding area. Where possible, the potential for developing resources in the area was evaluated on a full cycle basis. Due to the lack of detailed information about this area, qualitative procedures were used in many cases to determine this potential, using established criteria and prospectivity ratings.

Minerals

The NRCan mineral assessment concluded that the highest mineral potential is aggregates (well-sorted sand and gravel deposits), which are in large quantities and suitable for industrial uses. The greatest potential for such deposits exists on the shallow waters of Sable Island Bank, located on the western flank of the MPA. Similar and larger deposits exist elsewhere on the Scotian Shelf, making these resources common and not unique to "The Gully". Nevertheless, there is growing regional demand for aggregates, which may make areas on the Scotian Shelf attractive for either exports to the construction market or for replenishment projects.

There is minimal economic potential for other minerals. Phosphorite deposits may exist in the area, however, extraction is currently technically difficult in this type of environment. There is potential for heavy mineral deposits, such as garnet, in the area. These resources are not expected to be exploitable using existing technology.

The removal of seabed to 15 metres is prohibited under the Regulations and, as such, will result in the loss of future access to mineral resources in this area. The present technological limitations and access to similar or higher quality and quantity of these resources elsewhere on the Scotian Shelf minimizes the overall impact of the Regulations. Potential opportunities aside, Canada currently has no management regime or licensing mechanism in place to administer and approve offshore seabed mining.

Hydrocarbons

The Scotian Shelf and slope have become an increasingly important area for petroleum exploration and development. At present, the resources within "The Gully" MPA are not believed to be more significant than other areas of offshore Nova Scotia. The area represents 5% of gas potential on the Scotian Shelf and 0.4% of Canada's estimated undiscovered gas potential. These resources are not considered significant to the nation's supply. However, there are proven reserves in adjacent shelf areas and initial drilling results indicate some potential in nearby deep water areas.

Within "The Gully" MPA, the Primrose field represents the only existing petroleum licence. The Primrose field was discovered in 1973 and has been classified as a significant discovery by the CNSOPB in the mid-1980s. Based on 2001 figures, the estimated recoverable reserves and values, without costs included, of Primrose are calculated at 1.3 million barrels of oil (gross value $36 million) and 122 billion cubic feet of gas (gross value $756 million, condensate value $21 million). To date, the rights to develop this licence have not been exercised.

The highest prospectivity for oil and gas reserves in the MPA is in the shallow portions of Sable Island Bank. The deeper area along the slope and below the mouth of "The Gully" has the next highest prospectivity. The lowest prospectivity is in the deeper portions of the canyon proper. According to an economic overlay by NRCan based on the resource assessment conducted by the CNSOPB in 1998, "The Gully" has a 50% probability of 1.23 trillion cubic feet of recoverable natural gas and 10.5 million barrels of recoverable crude oil. It should be noted that the area assessed by the CNSOPB in 1998 was smaller than the current MPA. As such, it is reasonable to assume that the numbers for resource potential would be larger based on the current boundary.

The regulations do not remove the existing sub-surface rights to hydrocarbons within the MPA boundary. However, the regulations will have an impact on the operational practices of exploratory and production activities, requiring additional levels of protection for the MPA. Petroleum activities in or in the vicinity of the MPA will need to conduct a specific assessment of the impacts on "The Gully" ecosystem and ensure they are in compliance with the MPA Regulations. As such, it is expected that industry costs will be higher for environmental assessments and development activities in and around the MPA.

A number of management measures and policies aimed at protecting "The Gully" are already in effect owing to recognized environmental sensitivities, such as at-risk whales. Since 1997, no petroleum activities have been authorized by the CNSOPB in "The Gully". Since the heightened conservation interest in the 1990s, "The Gully" has become a key consideration in environmental assessments and industry-led research and environmental effects monitoring for petroleum activities on the eastern Scotian Shelf. Essentially, the MPA will enshrine existing review processes and mechanisms and, in many cases, the Regulations and Management Plan will augment and formalize the various interim protection measures that have been adopted by the petroleum regulators and industry. The Management Plan and supporting research activities will provide further guidance to the petroleum regulators, industry and the public on these requirements and will ensure that they are met consistently. Industry collaboration in the protection of the MPA will provide important opportunities to contribute to regional sustainable development strategies.

Commercial Fisheries

In the past decade, there have been two commercially significant fisheries within "The Gully" MPA. This area is particularly important to halibut fishers using groundfish longline, with catches from the area representing a significant proportion of the total halibut caught on the eastern Scotian Shelf. Vessels are based throughout Nova Scotia, with the community of Sambro taking largest percentage of this catch. The swordfish fishery, along with some tuna and shark fishing, is conducted in the area using pelagic longline. This fishery crosses the mouth of "The Gully" as part of an extensive continuum along the edge and slope of the Scotian Shelf.

Based on a comprehensive fisheries assessment of the area, the economic impact of the Regulations on current fisheries conducted in "The Gully" will be minimal. Fishing for halibut, swordfish, tuna and shark is provided with a regulatory exception within Zones 2 and 3, based on DFO's assessment that the current level of activity poses minimal risk to those parts of "The Gully". As part of the Management Plan, additional joint measures with industry will be put in place to further minimize the impact of fishing on non-target species and habitats in the ecosystem.

Zone 1 does not provide exceptions for any existing fishing activities. The exclusion of pelagic longlining activity in Zone 1 will affect the current practice of fishing along the slope of the Scotian Shelf. Pelagic fishing gear is often in the range of 40 kilometres in length, and is subject to considerable drift, potentially kilometres. To avoid Zone 1, gear will need to be set at some distance and the overall displacement of fishing effort is, therefore, larger than the Zone itself. Swordfish catches are characterized as variable in the area, with landings from "The Gully" comprising significant percentages of the overall catch during some years. However, this fishery can be conducted elsewhere in the region. Potential impacts on the regional stock assessment process due to changes in catch per unit effort rates will have to be addressed.

Given that longline fishing for halibut rarely occurs at depths below 600 metres, only minimal impacts are anticipated from the Zone 1 exclusion. However, there may be alterations to current fishing patterns and berths directly adjacent to Zone 1 as a result of the requirement to avoid gear incursions into the closed area.

Historically, "The Gully" was a commercially important area for groundfish, including cod and haddock. Fisheries for these species have been under moratorium on the eastern Scotian Shelf (NAFO Area 4VSW) since 1993. In particular, pollock was an important component of the catch in the area for the large trawler fishery in the 1980s and early 1990s. Most of this activity took place in Zone 3 and in some shallow sections of Zone 2. Current groundfish trawl fisheries, including those for pollock, redfish and flounders, are focused elsewhere on the Scotian Shelf. In the event that the groundfish moratorium is reduced or lifted, interest in "The Gully" by the trawl fishery may appear again.

The snow crab fishery currently occurs in several areas adjacent to the MPA boundary. Recognizing that this fishery was encroaching on "The Gully", DFO placed specific restrictions on the fleet through conditions of licence in 2003. All exploratory crab fishing along the shelf edge has been excluded from the original AOI since 2000. Given that this fishery has had nominal activity in the area encompassed by the MPA, its continued exclusion is not considered by DFO to result in a significant impact on the sector. However, it is recognized that the fishery has been expanding in an offshore direction, raising the possibility of some future impacts on the snow crab fleet.

In summary, the regulations do not alter the allocation process for determining the level of resources available to the fishing industry on the eastern Scotian Shelf (4VSW). There is no significant economic impact of the MPA on the overall value and amount of living resources currently removed. However, the displacement of current and future fishing effort in the area may result in additional operational costs to the industry, as well as increased effort in other areas. In terms of benefits, "The Gully" MPA is an important contribution to efforts by DFO and industry to further the development of a sustainable and ecosystem-based approach to fisheries management in the region.

Shipping

The Regulations recognize international navigational rights and do not place added restrictions on shipping. Vessels will be expected to adhere to any regulations, controls and management measures under the Canada Shipping Act, other relevant Canadian legislation, and the International Maritime Organization, the principal international authority. Current national and international controls on the discharge of substances from vessels, such as the requirements regarding oil content in water, are consistent with the conservation objectives of the MPA. The requirement under the Regulations to report accidents or incidents to the Canadian Coast Guard within two hours of occurrence is not considered to place undue burden on vessel activity. Similarly, the voluntary precautionary measures currently in place for the Whale Sanctuary in the Notice to Mariners do not result in undue burden on vessel activities.

The current and expected level of commercial vessel traffic is considered low in relation to other parts of the region and will not be affected significantly by the Regulations. Generally, vessels transit between 10-30 kilometres to the north or south of the MPA to avoid navigational hazards associated with Sable Island. Vessel traffic related to offshore oil and gas activities is also limited, and usually addressed through industry codes of conduct or controls put in place by regulators.

Scientific Research

Increased research interest in "The Gully" is expected as a result of the establishment of the MPA. DFO will support scientific research in the MPA to foster better understanding of its ecosystem and to meet management and conservation objectives. The Regulations enable appropriate levels of access to the MPA for science and monitoring. This includes the requirement for research proponents to provide detailed information on planned scientific activities and to consider potential impacts, including cumulative effects, for each management zone. The added costs of the plan submission and approval process will be minimal, and will ensure ecologically responsible behaviour and encourage information sharing. The reporting requirements contained in the Regulations will utilize and augment various existing research planning and approval processes within government, universities and the private sector.

Government Administration and Management

The general costs to government for the administration and management of the MPA involve: environmental and activity assessments and approvals; scientific research and information management; surveillance, monitoring, enforcement and emergency response; and public consultation, information and stewardship programs.

As the lead authority for the MPA, the majority of costs will be borne by DFO. To date, the Department has invested significant program resources into the MPA planning, consultation and designation process. Ongoing and post-designation resource implications for the Department relate to the development and implementation of the Management Plan and a range of supporting programs and functions. These include: integrated management and planning; fisheries licensing, management, surveillance and enforcement; vessel activity monitoring, pollution surveillance and emergency response; science and ecosystem understanding; and related technical requirements (e.g., revised Notice to Mariners and applicable Canadian Hydrographic Charts).

The MPA is a long-term management responsibility that will require ongoing resource support within DFO. Where possible, departmental management of the MPA will be undertaken through horizontal program delivery consistent with national and regional strategic and business plans. In most cases, costs related to the MPA will be managed within the Department's existing budgetary allotments. However, the resource requirements associated with the MPA may be incorporated into future departmental funding submissions and allocation decisions. For example, costs related to fisheries management and licensing, or fisheries surveillance and emergency response may involve additional funding requirements. Supplementary resources may be obtained through related national priority programs, such as the Species at Risk Program or funding related to marine security and increased area surveillance coverage.

"The Gully" MPA is a keystone component of the Department's mandate to deliver on the Oceans Act, national MPA Policy and Program, Canada's Oceans Strategy, and its Sustainable Development Strategy, among other responsibilities. Efficiencies will also be realized in relation to potential Species at Risk responsibilities in "The Gully".

In the case of other government departments, it is expected that relevant management requirements will be incorporated into existing programs and functions. For example, environmental impact assessment requirements in relation to the MPA will be incorporated into current departmental processes, such as those under the Canadian Environmental Assessment Act. Wherever possible, interdepartmental cooperation and partnerships will be encouraged.

The overall value and benefits of "The Gully" MPA justify the management costs to the Government of Canada. The effective protection of this important ecosystem through MPA designation and management contributes to a broad range of national and international commitments and responsibilities.

Consultation

"The Gully" has been the strong focus of conservation interest since the early 1990s. As a result, there have been a number of opportunities for many of the interests to evaluate conservation issues and protection measures for this area.

During 1997-1998, DFO drafted the Gully Conservation Strategy, which included several broad scale mail-outs and three open meetings to gather viewpoints on the conservation needs of the area. Based on feedback from these efforts, DFO recommended that "The Gully" be investigated further as a potential MPA under the Oceans Act.

In the process of conducting the various assessments associated with the MPA designation process, presentations, meetings and discussions were held with all major interests on conservation needs and values. These discussions contributed greatly to the understanding of the concerns and interests of marine user groups, conservation organizations and government departments, all of which were considered in the development of the Regulations and conservation strategies. In addition, multimedia presentations and print materials, along with public displays, have been used to communicate ecological and management issues.

In March 2002, a Gully Working Group was established under the auspices of Scotia-Fundy Fishing Industry Roundtable to review fisheries and conservation issues in "The Gully". With representation from key fishing organizations, this group and the broader Roundtable has provided opportunities to discuss conservation objectives for "The Gully" in relation to commercial fishing industry interests and concerns. Outside this forum, DFO held a number of discussions with various fishing industry companies, associations and individuals.

In addition to the fishing industry, a number of presentations and discussions have been held on "The Gully" MPA initiative with the oil and gas industry and regulators, environmental interest groups, the shipping sector, and the science and academic community.

In Fall 2002, DFO developed and distributed a document describing the regulatory intent for "The Gully" MPA. This regulatory proposal document outlined the proposed MPA and management zone boundaries, and described the scope and intent of the Regulations being developed. The document was distributed broadly on a regional and national basis, including through the multi-stakeholder network of the ESSIM Initiative. This distribution list comprised more than 160 individuals and groups, including offshore industries, academia, government agencies, First Nations, environmental interest groups and other non-government organizations.

To gather further input on the regulatory proposal, DFO gave presentations and held separate meetings with key interests during 2002-2003, including:

• Federal/Provincial ESSIM Working Group

• Natural Resources Canada

• Department of National Defence

• Canada-Nova Scotia Offshore Petroleum Board

• Atlantic Canada Opportunities Agency

• East Coast Interdepartmental Marine Operations Committee

• Canadian Marine Advisory Committee

• Canadian Association of Petroleum Producers

• Shell Canada

• Marathon Oil Canada

• BP Canada

• Scotia-Fundy Fishing Industry Roundtable

• Seafood Producers of Nova Scotia

• Nova Scotia Swordfishermen's Association

• Individual groundfish and pelagic longline licence holders

• Unama'ki Institute of Natural Resources

• Dalhousie University

• World Wildlife Fund Canada

• Canadian Parks and Wilderness Society

• Ecology Action Centre

In order to facilitate ongoing dialogue and implementation of the Management Plan, DFO formed the multi-stakeholder Gully Advisory Committee (GAC) in January 2003. The Advisory Committee comprises a core group of key government and non-government interests in "The Gully" with skills, knowledge and experience relating to the ecology, management, conservation and use of the area. The Advisory Committee has been used as a multi-stakeholder forum for DFO to discuss and receive input on the regulatory proposal and associated conservation strategies. This group will continue to play a major role in the development and implementation of the Management Plan and related activities for the MPA.

The key issues, concerns and feedback received through the various consultations and discussions are summarized below according to sector and interest groups. In cases where the Benefits and Costs section does not address a particular issue or point raised, specific responses provided by DFO are included below.

Commercial Fishing Industry

In general, the fishing industry is supportive of marine conservation measures, such as MPAs, and recognizes the need to protect "The Gully", a traditional fishing area, from human impacts. However, several industry sectors have raised some concerns regarding the implications of the Regulations for continued fishing access to the area.

Representatives of the swordfishing industry raised concerns about the MPA zoning scheme and disagreed with the exclusion of this fishery from Zone 1. The swordfish representatives noted that the impact of this action was larger than Zone 1 itself, as boats would need to set gear (which can exceed 40 kilometres in length) at a significant distance from the Zone to ensure that it does not drift into the area. Their view is that the exception granted for Zones 2 and 3 does not meet the sector's requirements as there is no fishery in those areas. As well, representatives noted that the exclusion from Zone 1 needs to be considered in the context of other restrictions and issues being faced by the fleet, particularly the additive effect of other ocean uses in the region that can substantially reduce the available area for fishing. The swordfish representatives believe that their exclusion from Zone 1 is based on unsubstantiated concerns by environmental groups about potential gear entanglements with northern bottlenose whales. Additionally, the sector has expressed concern that the exclusion from such a productive area for its fleet will translate in reduced catch per unit effort levels upon which estimates of species abundance are based by DFO. Their concern is that the regional allocations may be reduced on the assumption that catch levels have declined.

Given the concerns identified above, DFO will undertake a number of steps to assess and, where possible, reduce potential impacts on the swordfish sector at the regional scale. These include an examination of the reduction in access to fishing areas by a variety of factors external to the sector, and necessary adjustments in stock assessment to account for reduced catches in "The Gully".

Groundfish longline representatives expressed concerns about the possibility of gear inadvertently entering Zone 1 and the potential for accidental violations of the Regulations. Given that key areas for halibut fishing are located directly adjacent to the Zone 1 boundary, there is a risk of unintended incursions by vessels or gear into the restricted area. DFO provided assurances that future investigations of infractions would be careful to take this possibility into account.

Large trawler representatives identified their future interest in returning to fishing grounds in "The Gully". These fishing areas were important for trawlers prior to the groundfish moratorium on the eastern Scotian Shelf, and there is concern about the exclusion of this fleet from the MPA. Additionally, representatives of offshore fishing interests have noted concerns about the selection process for future MPAs in the region. In response, DFO will ensure that all affected interests are provided with opportunities for input to MPA planning. The Regulations also contain provisions for additional fisheries to be considered for Zones 2 and 3, based on an assessment by DFO of environmental impacts.

Oil and Gas Industry

The oil and gas industry is supportive of the establishment of an MPA in "The Gully". This has been exemplified by various measures, including codes of conduct, taken by the industry on an interim basis to reduce impacts on the area. The primary concerns raised by industry representatives relate to impacts of the Regulations on activities occurring around the MPA. The industry believes that current practices provide adequate protection for "The Gully". It was noted that the current expectation by the regulators and the public for more comprehensive environmental assessments around "The Gully" has already led to increased planning costs for a number of companies. The further development of mitigation measures and standards for environmental assessments, plans and operations will result in increased costs for industry activity around the MPA. The industry also indicated that additional controls associated with the MPA could result in undue regulatory burden and be contrary to current efforts aimed at regulatory streamlining and efficiency in the region. It was stressed that full involvement of both the industry and regulators, such as the CNSOPB, is required for the development of the Management Plan, as it will be used to define the conditions for activities in relation to the MPA.

In response, DFO has emphasized that the management of hydrocarbon activities will incorporate and build on existing review and management processes. DFO has committed to full involvement of the industry and the regulators in the development and implementation of protection measures for the MPA. DFO is also working to clarify the environmental assessment requirements in relation to "The Gully" and to help reduce uncertainties and associated planning costs to the industry.

Another general industry concern relates to the selection process for future MPAs and the identification of sensitive areas in the region. As with the fishing industry, DFO is committed to providing meaningful opportunities for industry input to these planning processes.

On the specific topic of the Primrose significant discovery, the principal licence holder has expressed concerns about possible loss of access to its holdings due to the MPA designation. Although the natural variation requirements of Zone 3 do not eliminate the possibility for hydrocarbon activity, the licence holder has pointed out that it may be difficult to access the site due to strict environmental controls and anticipated public opposition to development in the area. The licence holder indicated its interest in working with the CNSOPB to redress the situation.

Environmental Interest Groups

Environmental interests groups are supportive of the designation of "The Gully" MPA. The majority of concerns raised by these groups involve potential transboundary environmental impacts from activities around the MPA. Key questions relate to how effective regulation and control will be exercised over activities outside of the MPA to ensure that such impacts do not occur. In particular, there are significant concerns over the impact of seismic activities surrounding "The Gully". Concerns have also been raised about the possible allowance of oil and gas activities in Zone 3, even if the activities meet the protection requirements of the Regulations. Most groups would prefer to see oil and gas activities removed from "The Gully" in perpetuity. Several groups also expressed concerns about swordfishing in Zones 2 and 3 and felt that the risk of gear impacts is too significant to allow this type of fishing in the MPA.

Some representatives suggested that the MPA is too small to provide adequate safeguards to northern bottlenose whales, particularly given that these whales are found in several smaller adjacent canyons.

In response to the concerns raised above, DFO has stated its commitment to ensuring that activities around "The Gully" do not cause harm in the MPA. DFO also recognizes that the MPA tool cannot address all issues effectively, and there is an ongoing need for all interests to work together in addressing regional marine conservation issues.

Other Government Departments

A number of federal and provincial (Nova Scotia) departments have provided feedback to DFO on "The Gully" MPA and the regulatory intent. In general, other government departments are supportive of the Oceans Act and conservation tools such as MPAs. This is also the case with "The Gully" MPA. The majority of questions and concerns raised by other government departments have related to potential implications for their respective management and regulatory jurisdictions, and potential resource implications for carrying out any additional functions, services or responsibilities that may be required in relation to the MPA. Another common interest among these departments is for clarity of roles, responsibilities and accountabilities, and for clarity of requirements for activities under their mandates. Effective participation by affected departments in the development of the Management Plan and supporting measures are seen as a prerequisite for continued support to "The Gully" MPA, and Oceans Act programs more generally in the region.

DFO has had the opportunity on several occasions to respond to concerns raised by NRCan, the CNSOPB and the Province of Nova Scotia regarding possible impacts on competitiveness for the oil and gas industry. A number of joint initiatives are underway to address this issue and to improve current regulatory and assessment processes for the industry. The aim is to achieve necessary levels of environmental protection while enabling industry activities to occur in a responsible manner.

Specific questions raised by the Maritime Forces over access and activity restrictions have been addressed through exceptions for specific types of operations in the MPA. The Maritime Forces are also developing operating guidance for naval activities in relation to MPAs.

First Nations

There are currently no aboriginal claims in "The Gully" or the area to be encompassed by the MPA. It is expected that fisheries and other potential resource interests by First Nations in this area will be addressed through ongoing management processes.

Consistent with the Oceans Act, the Regulations will not abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal people of Canada, as provided under section 35 of the Constitution Act, 1982. Based on reviews of regulatory intent to date, First Nations have not raised any concerns regarding the specific MPA designation, but have stated the requirement for the development of appropriate mechanisms for consultation and cooperation on MPAs and marine conservation more generally in the region.

These amendments were pre-published in the Canada Gazette, Part I, on December 6, 2003.

Results of Pre-Publication

As a result of pre-publication, DFO received a number of written submissions and comments on the proposed Regulations. The majority of the submissions received during the 30-day public comment period provided strong levels of support for the regulatory initiative. The written submissions and additional comments received through the Gully Advisory Committee provided important input into DFO's final review of the Regulations.

The intent and structure of the Regulations have not changed as a result of the final review. However, some specific changes to the Regulations have been made to provide improvements and clarity to the language contained in several of the sections. In several cases, minor amendments and corrections were also made to the Regulatory Impact Analysis Statement (RIAS) to reflect comments received.

The comments received by DFO relate to the following parts of the Regulations:

1. MPA Management Zone Boundaries

2. Prohibited Activities

3. Activity Plans

4. Exceptions

1. MPA Management Zone Boundaries

DFO received several comments regarding the description of the boundaries for the three internal management zones of the MPA. These comments coincided with existing departmental concerns about the use of depth contours on the Canadian Hydrographic Service Chart 4045 to define portions of Zones 1, 2 and 3. DFO has identified significant discrepancies between the depth information contained in Chart 4045 and that defined for the area through high-resolution multi-beam sonar imagery collected by the Canadian Hydrographic Service.

DFO has also identified problems regarding the application of depth contours for various administrative, management and enforcement purposes. Of particular concern is the incorporation of the management zone boundaries in commercial fishing licences and management plans, and related issues regarding the enforcement of fisheries restrictions in these zones due to possibilities of navigational error and misunderstanding of boundary locations.

In response to these problems, DFO has revised the description of the management zone boundaries by replacing the reference to depth contours with coordinates and rhumb lines. The selection of these coordinates has been based on high-resolution bathymetric data. These boundaries have been validated by qualified Canada Land Surveyors within the Canadian Hydrographic Service.

The technical amendments to these boundaries retain the intent of the Regulations to define Zones 1, 2 and 3 on an ecological basis, while providing more practical boundary definitions for the purposes of activity reviews, use, management and enforcement. The changes to the boundary descriptions are reflected in the revised text of section 3 (Management Zones) and the associated Schedule in the Regulations. The MPA Boundary and Management Zones section of the RIAS has also been amended to reflect the change from depth contours to a coordinate and rhumb line system.

2. Prohibited Activities

A number of comments were aimed specifically at aspects of section 4 (Prohibited Activities) of the Regulations. A main area of concern pertains to the definition of several terms used for the general prohibitions in this section. In particular, clarification was sought regarding the meaning of disturbance, damage, destruction and removal in relation to the prohibition of environmental effects. Similar comments were also received regarding the definition of adjacency and vicinity as used in section 4 to describe the application of the general prohibitions to activities occurring outside of the MPA boundary. Several commentators recommended that definitions be provided in the Regulations to provide greater certainty.

DFO recognizes the complexity of applying the above terms for the management and protection of the MPA and has determined that common language definitions are appropriate for the purposes of the Regulations. The determination of environmental effects and the specific application of these terms, such as disturbance, will depend on various considerations, including the ecosystem component or species involved and the nature of the activity and potential effects associated with it. DFO will set ecosystem targets and indicators to define the environmental conditions that must be maintained for each management zone.

The determination of what constitutes adjacency and vicinity in the application of the general prohibitions to activities outside of the MPA boundary will also depend on the nature of the activity and the zones of potential influence and sensitivities involved. Several industry commentators from the hydrocarbon and shipping sectors expressed concerns regarding potential impacts and restrictions on their activities in areas around the MPA. In response, DFO has committed to working with regulators and industry to provide clear guidance on the application of the MPA protection measures. For example, DFO and the CNSOPB have committed to the joint development of protocols for hydrocarbon activities around the MPA to provide clarity and certainty for this industry.

DFO has also identified and corrected an inconsistency in section 4 that would have subjected certain activities occurring outside of the MPA to more stringent restrictions than those for activities approved within Zone 3 of the MPA under sections 5 and 6 (Plans to be submitted). This has been corrected by providing an exception to section 4 whereby activities outside of the MPA may be permitted to cause environmental effects within the natural variation of Zone 3.

Commentators from the hydrocarbon industry stated that the hydrocarbon assessment conducted by the CNSOPB and NRCan for DFO is inadequate given that it does not address resource potential in areas around "The Gully". It was recommended that the assessment be revised and expanded to account for potential impacts on hydrocarbon activities in areas outside of the MPA. As stated at the time of pre-publication, DFO recognizes that the hydrocarbon assessment does not cover the entire area encompassed by the MPA boundary and, as such, resource potential in the MPA is expected to be higher than presented in the assessment. However, DFO does not believe that revisions to the hydrocarbon assessment are required to deal with activities outside of the MPA as exploration rights are not removed by the Regulations.

Questions were raised about responsibilities (i.e., "burden of proof") for the determination of environmental effects and contraventions of the Regulations. In response, DFO confirms that the onus will be on activity proponents to demonstrate that their activities will not cause negative environmental effects or result in contraventions of the Regulations. As the regulatory authority, DFO will be required to determine compliance with the Regulations. DFO recognizes that the management of the MPA will require its direct involvement in the assessment, approval, mitigation and restriction of activities and associated environmental effects within and outside the MPA.

Similar concerns were voiced regarding DFO's capability to influence the management of activities outside of the MPA in order to effectively control potential environmental effects. In response, DFO confirms that all regulatory authorities are required to adhere to the Regulations. The Department will work with these authorities to establish appropriate mechanisms and measures, including those contained in the MPA Management Plan, to ensure that the Regulations are respected.

3. Activity Plans

Several commentators recommended that the 60-day timeframe for submitting a plan to and receiving a response from the Minister under sections 5 and 6 be expanded to provide greater opportunity for thorough reviews of various activity plans. However, DFO has maintained the 60-day timeframe as it does not place undue burden on activity proponents and provides adequate review time for the Department. DFO commits to the establishment of an effective and efficient review process to ensure that all activities proposed for the MPA are reviewed thoroughly and within the required timeframe.

A number of commentators requested clarification on the term natural variation as it is used to describe allowances for potential environmental effects in Zone 3 (and Zone 2 in the case of removals by fishing) of the MPA. The primary concern relates to the challenges in defining the various elements of natural variation and in determining whether an effect meets these criteria. Several conservation organizations expressed concern that the natural variation test will not provide the necessary safeguards for the MPA. These organizations recommended an explicit exclusion of all hydrocarbon activities in the MPA. Conversely, a commentator from the hydrocarbon industry suggested that the natural variation test will have the effect of eliminating activities in Zone 3 given the potential uncertainties involved in its application.

DFO is undertaking an ecosystem approach to the management of the MPA and is continuing to build on existing knowledge and understanding of "The Gully" ecosystem. The allowance for effects within natural variation recognizes the fact that the shallow water bank ecosystem in Zone 3 is subject to highly variable natural conditions, such as storms. In certain cases, limited activities may be allowed to occur in these parts of the MPA without causing significant or long-term environmental effects.

The provisions in sections 5 and 6 for addressing potential cumulative effects of proposed activities have also been expanded to incorporate the consideration of future activities in or affecting the MPA. This change was made on the recommendation of commentators from the hydrocarbon industry. The primary rationale for this change is to ensure consistency with cumulative effects assessment requirements of the Canadian Environmental Assessment Act.

4. Exceptions

The majority of the comments received by DFO on the various activity exceptions contained in the Regulations were focused on fishing activities and restrictions in the MPA. Several commentators recommended that no fisheries be undertaken in any parts of the MPA so as to provide a true "no-take" reserve for the region. Conversely, DFO received several submissions from the fishing industry expressing concerns about exclusions either from Zone 1 or the entire MPA.

In response to the comments received on the fisheries exceptions, DFO reiterates its previous assessment that those fisheries provided with access to Zones 2 and 3 under section 8 meet the ecosystem protection requirements of the MPA. Although Zone 1 is essentially a core "no-take" area, the intent of the MPA is not to eliminate activities that can be undertaken in a manner consistent with the conservation objectives for each management zone. The exceptions for longline halibut fishing and pelagic longline fishing for swordfish, tuna and shark have been retained for Zones 2 and 3, along with the various controls already identified for fishing activity in the MPA.

The swordfish sector reiterated its strong objections to its exclusion from Zone 1. The range of concerns held by the swordfish sector is described in the Benefits and Costs and Consultation sections of the RIAS. As a result of further correspondence from sector representatives, the RIAS has been amended to better reflect the concerns associated with the Zone 1 exclusion.

Although DFO recognizes and understands the specific concerns of the swordfish sector, the Zone 1 exclusion has been retained for all fisheries. Exclusion of all fishing gear from the core deep water habitat in Zone 1 is an essential element of the MPA conservation objectives and cannot be compromised. The Department is committed to working with the swordfish industry to address its concerns, including the potential impacts on the stock assessment and allocation process.

The snow crab sector has raised concerns regarding its exclusion from the MPA and has asked for either a boundary change or an exception under section 8 to accommodate access to the shallower portions of the MPA. Initial concerns regarding a major impact on a large segment of the snow crab fleet were largely a result of a misunderstanding regarding the location of the northwestern MPA boundary in relation to present and past fishing activity. This misunderstanding has since been resolved. However, concerns about the exclusion of this fishery remain given industry observations of trends that indicate an offshore shift in the biomass and fishery toward, and potentially within, the MPA. In addition, the sector believes that the snow crab fishery will not have a negative impact on the ecology of the MPA.

DFO recognizes the importance of the bank areas around "The Gully" to the snow crab sector but has not provided either a boundary change or exception for this fishery. The Benefits and Costs section of the RIAS has been corrected to reflect the fact that all snow crab licence holders were excluded from the original AOI boundary for the 2003 fishing season through conditions of licence. Similarly, the RIAS notes that all shelf edge and slope exploratory crab licence holders have been excluded from the AOI boundary since 2000. Given the fact that snow crab activity has been very recent and limited within the current MPA boundary, an assessment of potential impacts of this fishery on the MPA has not been undertaken by the Department.

Members of the snow crab and groundfish mobile gear sectors have asked for more detail on the provision in section 8 for the consideration and assessment of potential additional fisheries in Zones 2 and 3. For clarification, the purpose of the provision is to require that all fisheries - other than those already provided with an exception in the Regulations - be reviewed by the Department for impacts on the MPA before any additional access is provided to Zones 2 and 3. DFO has committed to an appropriate assessment process for reviewing and considering additional fisheries in the MPA.

A specific concern was raised about the wording in section 9 (now section 10) that would have potentially provided exceptions for vessels or aircraft meeting only one of the conditions prescribed in that section. DFO has corrected this to ensure that exceptions are only provided to vessels or aircraft operating in cooperation with or under the control of the Government of Canada for the specified purposes of public safety, law enforcement, national security, or the exercise of Canadian sovereignty.

A related concern was expressed regarding potential impacts on whales from domestic or foreign military operations or research, including the use of sonar within or in the vicinity of the MPA. The commentator suggested that the exception provided to military vessels is not justified in light of potential risks posed to marine life. DFO has committed to work with the Department of National Defence to ensure that all operations of the Canadian Forces and foreign militaries are subject to appropriate controls in relation to the MPA.

DFO received a submission from the commercial shipping sector stating concerns that the Regulations will have the effect of preventing shipping in the area owing to the potential for contraventions of the general prohibitions during the course of normal transit operations. Concerns were also raised about the potential for penalties under both the Canada Shipping Act and the Oceans Act. The commentator requested an amendment to the relevant provision in section 10 (now section 11) for the exercise of international navigational rights so as to provide an exception to the general prohibitions in section 4 for transiting vessels. The commentator also recommended that specific conditions for vessel transit be provided in the Regulations for purposes of clarity, including speed requirements and a prohibition on ballast water exchange and discharge in the MPA. Further, it recommended that any contravention of the Canada Shipping Act be dealt with under that legislation and not be subject to penalties under the Oceans Act.

DFO, in consultation with Transport Canada, has determined that no change is required in the Regulations. The existing provision for the exercise of international navigational rights is interpreted to mean that any vessel operating in accordance with the Canada Shipping Act or any requirements of the International Maritime Organization (IMO) is deemed to be in compliance with the Regulations. An exception to the general prohibitions in section 4 is not appropriate as it could limit the ability of the Government of Canada to hold vessels accountable for environmental effects within the MPA, whether they are accidental or intentional. With respect to the investigation and prosecution of contraventions of the Regulations or the Canada Shipping Act, DFO is committed to working with relevant regulatory authorities in accordance with well-defined national policies. Specific guidance for vessel transit will be provided through the Coast Guard's Notice to Mariners and other relevant mechanisms for the marine transportation sector.

A commentator from the hydrocarbon industry questioned why the approval mechanism and legislative authority exercised under the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act did not constitute a basis for any type of exception for hydrocarbon activities in or around the MPA. The commentator was drawing a link to the use of approval mechanisms and authorities under the Fisheries Act, the Coasting Trade Act and the Canada Shipping Act as bases for specific exceptions to the Regulations. In response, DFO agrees that existing environmental protection mechanisms for the hydrocarbon industry will provide the primary basis for controlling the effects of activities in areas outside of the MPA. However, the Department requires direct approval and control functions for all activities occurring within the MPA. These direct oversight functions are already exercised by DFO for activities carried out pursuant to the Fisheries Act and the other legislation specified in the Regulations. In contrast, the Department's role in the hydrocarbon regulatory and authorization process is defined by its assigned regulatory authorities and review functions within the context of the Canadian Environmental Assessment Act.

Compliance and Enforcement

A coordinated inter-agency approach to compliance and enforcement is required for the MPA given its remote offshore location and multiple nature of ocean use, management jurisdictions, and potential interactions and impacts. A compliance and enforcement component of the Management Plan will define roles and responsibilities for government authorities to meet the regulatory requirements of the MPA. The Management Plan will also identify compliance promotion tools and approaches for the MPA, including stewardship activities involving key user groups.

As the lead federal authority for the MPA, DFO will have overall responsibility for ensuring that conservation measures are respected and enforced. This will be undertaken through the Department's legislated enforcement mandate and responsibilities under the Oceans Act, the Fisheries Act and other departmental legislation, including that for fisheries conservation, environmental protection, habitat protection, and marine safety. The primary means of departmental enforcement presence will be through the fisheries aerial surveillance program. The Canadian Coast Guard will also monitor the MPA as part of its emergency response planning, vessel traffic management, and pollution surveillance programs.

Owing to the remote offshore location and the seasonal nature of fishing activities being monitored, dedicated and year-round coverage of the MPA is not possible solely through DFO's fisheries surveillance program. Increased use of fisheries observers or "black box" reporting technologies could augment DFO's surveillance efforts. Cooperation with Canada's Maritime Forces has also led to opportunistic patrols by naval vessels through the MPA, as well as the sharing of surveillance data for all vessel activity in the area. Similarly, the Canadian Coast Guard will work with other marine agencies to provide more comprehensive pollution surveillance and increased emergency response capabilities.

For enforcement matters falling under the jurisdiction of another body, DFO will provide coordination and support roles as required. Based on current and expected sector activities in and around the MPA, the key agencies include Canada's Maritime Forces, the CNSOPB, Transport Canada and Environment Canada. Wherever possible, MPA-related tasks will be incorporated into existing agency enforcement and compliance programs. Restrictions and conditions for activities will be implemented, monitored and enforced through relevant management mechanisms, such as those for pollution prevention or hydrocarbon activity. For activities requiring involvement by multiple agencies, existing interdepartmental arrangements and Memoranda of Understanding will be used to incorporate MPA enforcement considerations, where applicable. The overall objective is to provide effective coverage, presence and deterrence using existing surveillance, enforcement and compliance programs, arrangements and capabilities.

Violations of the Regulations carry penalties under the Oceans Act ranging from $100,000 to $500,000. Contraventions of activity approvals and conditions can also result in charges under the Fisheries Act and other applicable legislation, such as the Canada Shipping Act. Convictions can result in fines and imprisonment under these various Acts.

In addition to government enforcement activities, compliance promotion approaches will be used in support of the MPA. This will include best practice guidelines for various activities, the recognition and adoption of industry codes of practice, and promotion and development of stewardship initiatives. It is expected that marine user groups operating in the MPA (e.g., fishers, researchers) or near the area (e.g., oil and gas companies) can contribute to the surveillance and monitoring effort. This will be promoted and supported through the development of a "Gully Watch" program.

In general, compliance with the Regulations is anticipated to be high. This assessment is based on current industry practice in relation to "The Gully" and strong levels of commitment and cooperation from partner marine agencies.

Contacts

MARITIMES REGION

Faith Scattolon
Regional Director
Oceans and Environment Branch
Fisheries and Oceans Canada
P.O. Box 1006, B500
5th Floor Polaris Building
Bedford Institute of Oceanography
Dartmouth, Nova Scotia
B2Y 4A2
Telephone: (902) 426-2065
FAX: (902) 426-9909
E-mail: scattolonf@mar.dfo-mpo.gc.ca

NATIONAL CAPITAL REGION

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

Dave Luck
Legislative and Regulatory Affairs
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Telephone: (613) 990-0199
FAX: (613) 990-2811
E-mail: luckd@dfo-mpo.gc.ca

Footnote a

S.C. 1996, c. 31

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