Vol. 140, No. 26 — December 27, 2006

Registration
SOR/2006-354 December 14, 2006

OCEANS ACT

Musquash Estuary Marine Protected Area Regulations

P.C. 2006-1580 December 14, 2006

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 Musquash Estuary Marine Protected Area Regulations.

MUSQUASH ESTUARY MARINE PROTECTED
AREA REGULATIONS

INTERPRETATION

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

"Area" means the Musquash Estuary Marine Protected Area designated under section 2. (zone)

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

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

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

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

DESIGNATION

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

(a) Zone 1, consisting of waters lying generally northwest of a rhumb line connecting points at 45°11'19.63" N, 66°15'37.35" W and 45°11'23.96" N, 66°15'33.38" W, that are within an area bounded by the low-water line of the estuary and by

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

(c) Zone 2B, consisting of waters that are within an area known as Gooseberry Cove and bounded by the low-water line of the cove and by a rhumb line, to its points of intersection with the low-water line, connecting points at 45°08'28.46" N, 66°15'12.23" W and 45°08'14.39" N, 66°15'35.50" W; and

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

PROHIBITED ACTIVITIES

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

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

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

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

EXCEPTIONS

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

(a) the following fishing activities, namely,

(b) in Zone 2A, 2B or 3, the recreational or commercial harvesting of dulse manually;

(c) the operation of a vessel in Zone 2A or 2B at a speed no greater than five knots or in Zone 3 at a speed no greater than eight knots;

(d) in Zone 2A, the construction of a boat launch, the maintenance, repair or removal of a wharf or boat launch or the maintenance of a navigation channel, for which approval or authorization is not required under the New Brunswick Clean Water Act, S.N.B. 1989, c. C-6.1, the Navigable Waters Protection Act or the Fisheries Act, as the case may be, or that is carried out in accordance with an approval or authorization required under any of those Acts; and

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

ACTIVITY PLAN

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

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

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

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

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

6. (1) The Minister shall, within 30 days after the day on which a plan that is submitted in accordance with section 5 is received, approve the plan if the proposed activity is not likely to damage or destroy the habitat of a living marine organism in the Area and, in the case of a habitat restoration activity, the proposed activity is to be carried out for the purpose of managing the Area.

(2) Despite subsection (1), the Minister shall not approve a plan if the cumulative environmental effects of the proposed activity, in combination with any other past and current activities carried out within the Area, are likely to damage or destroy the habitat of living marine organisms in the Area.

REPORTING OF ACCIDENTS

7. Every person involved in an accident that is likely to result in any prohibited activity shall, within two hours after its occurrence, report the accident to the Canadian Coast Guard.

COMING INTO FORCE

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

SCHEDULE
(Subsection 1(3) and section 2)

MUSQUASH ESTUARY MARINE PROTECTED AREA

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

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

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

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

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

(c) the conservation and protection of unique habitats;

(d) the conservation and protection of marine areas of high biodiversity or biological productivity; and

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

The Musquash Estuary is located on the Bay of Fundy, approximately 20 km west of the city of Saint John, New Brunswick. The total area is estimated at about 7.9 square kilometres. Musquash has been described as one of the last relatively ecologically intact estuaries in the Bay of Fundy, providing a rich habitat, and a refuge, for many species of wildlife. On February 8, 2000, the Minister of Fisheries and Oceans selected Musquash as an Area of Interest (AOI) under the Marine Protected Areas Program. The site meets the criteria set out above in paragraphs 35(1)(a), (c), (d) and (e) of the Oceans Act in that: it is recognized as one of the last relatively ecologically intact estuaries in the Bay, it provides a rich habitat (including nursery areas) for a variety of fish and wildlife, it is a highly productive ecosystem in Canada's coastal waters and it will contribute to a national network of MPAs. The regulation designates the Musquash Estuary as a Marine Protected Area pursuant to the Oceans Act.

MPAs are established according to a process set out in the National Framework for Establishing and Managing MPAs. This process involves the identification of AOI, a series of evaluations including an ecological assessment of the area, the development of regulations outlining the MPA boundary and regulatory management measures to be implemented within the MPA, and the development of a Management Plan to accompany the regulation which includes ongoing management, monitoring, and enforcement activities in the MPA.

Ecological description

Estuaries are partially enclosed coastal bodies of water where ocean water and fresh water mix. Salt marshes are characterized by salt-tolerant grasses, with an extensive shallow rhizome (root) system that traps, and stabilizes, the soft sediment. Estuaries rank as one of the most productive ecosystems on earth, and marshes are referred to as the life-support system, generating vital functions. Musquash marshes are classified as Class I salt marshes (known or assumed to be of high value to wildlife, and represent the highest priority for protection and management). Estuaries and associated salt marsh communities play an important role in the functioning and integrity of the Bay of Fundy ecosystem.

The Estuary is macrotidal (6-8 m tidal amplitude) and has depths ranging between 1-4 meters. Three-quarters of the water in the Musquash Estuary is flushed twice daily with the tidal forces of the Bay of Fundy, and the waters from the ebb tide (i. e. outward flowing tidal waters) re-enter the Estuary on the succeeding flood tide. Approximately 80% of the volume of water is replaced daily by water that is blended with that of the Saint John Harbour.

Conservation issues

The health of Musquash is closely linked to the inputs of both the surrounding watershed and the open sea. To maintain diverse biological communities, the quality of important chemical and physical conditions and processes (i. e. habitat) must be protected. Marine organisms are adapted to specific conditions and as such these conditions are critical in determining the community of species in coastal ecosystems. As a sheltered estuary, the marine environment and biological communities of Musquash may be particularly sensitive to human induced changes. Ecosystem integrity will be a priority in managing the MPA. Therefore all efforts should be made to maintain healthy populations of resident species by reducing human influence on natural processes and dynamics with appropriate management.

Threats to biodiversity in the coastal zone are broad, including habitat loss, overexploitation, pollution, and introduced/invasive species. There are concerns over the degradation of water and sediment quality resulting in effects on biota, including commercially valued species. Toxins and broad environmental quality parameters, such as nutrients or turbidity, can negatively impact biological communities and the overall functioning of the estuarine system. As a small confined habitat, all efforts should be made to minimize inputs into the estuary, and to maintain or improve its environmental quality.

The present level of human activity in Musquash remains low, in comparison to other estuaries in the Bay of Fundy. As a result, Musquash remains a relatively undisturbed ecosystem. Legal protection and direct management now will ensure that its health and function are maintained for the future. Because the Musquash MPA is surrounded by salt marshes and mudflats in the intertidal area under provincial jurisdiction, the Government of New Brunswick has transferred these Crown owned lands to the Government of Canada under a transfer of administration and control (TAC) on November 2, 2006. The province of New Brunswick will continue to work with Fisheries and Oceans to manage the whole area in a manner consistent with the MPA regulations.

MPA boundaries and management zones

The regulations establish an MPA boundary and three internal management zones in which different activities may be permitted, provided that they do not compromise the overall conservation objectives of the MPA.

The regulations contain a general prohibition on the disturbance, damage, destruction or removal of any living marine organism or any part of its habitat within the MPA. In addition, the regulations prohibit the depositing, discharging or dumping of substances within the MPA that are likely to result in the disturbance, damage, destruction, or removal of any living organisms or any part of its habitat within the MPA.

The regulations recognize that certain activities such as scientific research and certain types of fishing activities may cross the harm threshold but still may be allowed to occur within the MPA under specific conditions without compromising the conservation objectives. Moreover, certain activities such as monitoring may be required to support the management and protection of the MPAs, while other activities may be required for specific over-riding purposes, such as public safety and security. Within the regulations activities are managed through: (1) the submission and approval of plans for specified activities according to conditions, and (2) specific exceptions to the general prohibitions according to specified conditions. These are described below.

Throughout the MPA, activities for the purpose of public safety, law enforcement, national defence, national security or emergency response are permitted throughout the MPA to ensure the safety of Canadians.

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

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

Scientific, archaeological, educational, commercial tourism or habitat restoration activities will be approved throughout the MPA under specific conditions. A plan for these activities must be submitted, specific information listed in the regulations must be supplied about the activity, and the activity must not damage or destroy the habitat of living marine organisms in the Area. In addition, habitat restoration activities must be carried out for the purpose of managing the MPA. Throughout the MPA, the cumulative environmental effects of these activities, in combination with all other past and current activities being undertaken within the MPA, will also be taken into consideration and ministerial approval granted only if the activity is not likely to cumulatively result in damage or destruction of the MPA.

An exception has been provided for clamming with hand-held tools throughout the MPA pursuant to the Fishery (General) Regulations. There are currently no areas open for clamming in the Musquash area. In order for this activity to take place in the future, there is a process in place by which Environment Canada would have to conduct water quality testing and classify the area with specific reference points and boundaries for clamming activities. A variation order under the Fishery (General) Regulations would then be used to manage the activity. The use of hand-held tools, in addition to existing review processes, is considered sufficient to manage this activity in a manner consistent with the conservation objectives of the MPA.

In Zone 1, in addition to the activities noted above which are permitted throughout the MPA under specified conditions, recreational fishing by means of angling, dip nets, or by hand picking, in accordance with the Atlantic Fishery Regulations, 1985 or the Maritime Provinces Fishery Regulations, is permitted. Commercial fishing for elvers or eels by means of a hand-deployed fyke net or dip net in accordance with the Atlantic Fishery Regulations, 1985 or the Maritime Provinces Fishery Regulations, is also permitted. These fishing activities are considered low impact and requirements under the fishery regulations are considered sufficient to ensure that these activities will be conducted in a manner consistent with the conservation objectives of the MPA. In Zone 1, the maintenance, repair or removal of a bridge will be permitted with applicable authorizations under the New Brunswick Clean Water Act (provincial), Navigable Waters Protection Act, or the Fisheries Act to ensure that this existing structure will be maintained properly.

In Zone 2, in addition to the activities permitted throughout the MPA, recreational fishing is permitted under the same conditions as in Zone 1. Commercial fishing is allowed for lobster by means of individual traps and for herring by means of a weir, beach seine, bar seine or drag seine in accordance with the Atlantic Fishery Regulations, 1985 or the Maritime Provinces Fishery Regulations. The recreational or commercial harvesting of dulse by hand is also permitted in the Zone 2 areas. Again, these fishing activities are considered low impact and requirements under the fishery regulations are considered sufficient to ensure that these activities will be conducted in a manner consistent with the conservation objectives of the MPA.

The operation of a vessel will be permitted in Zone 2 at a speed no greater than five knots in order to minimize habitat damage by wave action. In Zone 2A, the construction of a boat launch, the maintenance, repair or removal of a wharf or a boat launch, and the maintenance of a navigation channel, will be permitted with applicable authorizations under the New Brunswick Clean Water Act (provincial), Navigable Waters Protection Act or the Fisheries Act to ensure that these existing structures are maintained properly.

In Zone 3, recreational fishing is allowed under the same conditions as in the remainder of the MPA. Commercial fishing for lobster, herring, and commercial and recreational fishing for dulse is permitted under the same conditions as in Zone 2. In addition, fishing for scallops is permitted in Zone 3 in accordance with the Atlantic Fishery Regulations, 1985 or the Maritime Provinces Fishery Regulations. There will be some impact on the benthic habitat of this portion of the MPA as a result of the scallop fishery. However, due to the highly dynamic nature of this zone, the level of impact is considered acceptable and fishery regulations will be used to ensure that these activities will be conducted in a manner consistent with the conservation objectives of the MPA. The operation of a vessel will be permitted in Zone 3 at a speed no greater than eight knots to limit damage to shore by wave action.

In addition to regulatory requirements outlined for the MPA, activities occurring within the MPA remain subject to existing legislative and policy requirements and processes.

MPA management plan

In addition to the regulations, the conservation objectives will be met through the implementation of an MPA Management Plan. The Management Plan will elaborate on the regulations and be used to implement a comprehensive set of conservation and management strategies and measures for the MPA. The management plan will also include complimentary measures to be implemented in the foreshore area under the Fisheries Act and integrated management policies. Additionally, the Management Plan will address matters such as monitoring, enforcement and compliance, and will provide the detail required to ensure that the rationale for management decisions, prohibitions, controls and approvals are clearly understood.

Alternatives

Status quo

The status quowas an option that was considered. Provincial legislation such as the Clean Environment Act, Clean Water Act, and policies such as the Coastal Areas Protection Policy and the Wetlands Conservation Policy do present some opportunity for protection of the marsh and estuary in Musquash. However, current management mechanisms are not providing the comprehensive, ecosystem-based and long-term protection that is required for this area. Although there have been many important efforts by both government and industry to minimize impacts, reliance on the status quo will not provide the protection required to consistently control impacts from all activities.

Reporting zone

To ensure protection of the MPA from external activities, DFO initially considered including a reporting area surrounding the MPA in the regulation, and a High Water boundary. The reporting zone extended seaward from the boundary of the MPA, as defined by circulation patterns. Plans for all activities within this reporting zone would have been submitted to the Minister for approval. This alternative to the present regulation was rejected due to the additional costs to industry proponents, administrative burden, and duplication of existing application and approval processes. A High Water boundary was not an option as legal advice has indicated that MPAs under the Oceans Act cannot be established in the foreshore area, i.e., above the low water mark. The Oceans Act definition of internal waters is restricted to the "waters". Because the foreshore is continually changing with the tide, the reference to "waters" has been interpreted to mean some type of permanency or continuance of the waters. The transfer of administration and control of lands from the province to the federal government does not change the interpretation of where MPAs can be established under the Oceans Act.

The Fisheries Act, Canada Shipping Act, and Coastal Fisheries Protection Act

Although the provisions of the Fisheries Act, Canada Shipping Act and the Coastal Fisheries Protection Act will complement the conservation focus given to Musquash by the present regulation, the use of a streamlined, long term and formal designation of a Marine Protected Area with specific conservation objectives will provide more comprehensive and enduring protection for the area.

Voluntary measures

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

Marine Protected Area designation and management

The option of designating the Musquash Estuary as a MPA is the best alternative as it will give focus and recognition to this threatened coastal ecosystem. The broad-based umbrella of protection provided by the designation will safeguard the integrity of this diverse and productive ecosystem. An Oceans Act regulation in Musquash will streamline management measures in a focused area and for the long-term. The MPA designation will also offer more broad ranging benefits for many components of the ecosystem, resulting in benefits for many stakeholder groups.

The MPA has already, and will continue to, garner a heightened interest in the community and allow for significant involvement in its management. There will be increased opportunities for monitoring, education and public outreach activities in the area with an MPA designation. A relatively small, geographically fixed and protected area such as the Musquash Estuary MPA will provide an ideal setting for scientific research to further the understanding of this unique coastal environment.

Benefits and Costs

The primary benefit of the Musquash MPA regulations is the recognition and protection that will be afforded to this highly productive, sensitive coastal ecosystem. This action will provide a long-term commitment to conservation and protection of the area, building on and complimenting the substantial efforts the Government of Canada has made since the early 1990s.

This MPA will also be afforded complementary protection through efforts by the province of New Brunswick to protect the watershed and the salt marsh system, and by the adjacent wetlands and coastal lands protected by Eastern Habitat Joint Venture and Nature Conservancy of Canada.

Under the Oceans Act, the Minister of Fisheries and Oceans Canada is directed to lead and coordinate the development and implementation of a national network of marine protected areas. Designation of the Musquash Estuary will be a key contribution to the development of this network and for meeting commitments under Canada's Oceans Action Plan, an action plan which builds upon the legislative and policy framework of the Oceans Act and Canada's Oceans Strategy. Protected areas are also a key contribution to the Sustainable Development Strategy of Canada.

The establishment of this MPA will also demonstrate Canada's resolve to fulfil its international commitments for ocean management and marine conservation. Under the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity, the World Commission on Protected Areas Program and the 2002 World Summit on Sustainable Development. The establishment of the MPA will also demonstrate Canada's commitment to the Global Program of Action through the National Program of Action's focus and action plan on addressing activities that are land-based sources of marine pollution.

Musquash is both regionally and internationally known as a case study for community support of a coastal MPA, for numerous interdisciplinary studies, specifically in mapping the area, and for the natural beauty of the easily viewed salt marsh. Public and community support is high, as can be attested to by the large number of letters of support sent to the Department, and by the enthusiastic participation of conservation and community groups (e.g. World Wildlife Fund Canada, Conservation Council of New Brunswick, Nature Conservancy of Canada, and Friends of Musquash).

Commercial and recreational fisheries

There is limited recreational fishing activity currently in the MPA and this will be permitted to continue. The harvesting of periwinkles will not be affected as this activity takes place outside the MPA boundaries. Musquash is presently designated as a Rockweed long-term study area and as a result no harvesting of Ascophyllum is being conducted in the area. The rockweed industry is prepared to concede this area for protection. Therefore, these Regulations will have no impact on this industry. There are also no aquaculture leases or applications within the boundaries of the Musquash MPA.

The livelihood of licensed lobster, herring, eel, and scallop fishers working in the Musquash area will not be affected as exceptions have been provided for these types of commercial fishing activities with specified gear, and in specified zones. Where these fishing activities are permitted in the regulation, they are considered consistent with the conservation objectives of the MPA. Clamming activity will not be adversely affected since it is currently not allowed in the MPA and would only be allowed in the future if Environment Canada standards are met and Fishery (General) Regulations are complied with. No other fish species of interest were identified by local fishers, and therefore there will be little effect on fishery activities in the area.

Minerals and Hydrocarbons

Mineral and hydrocarbon exploration and development activities are not specifically excluded in the Musquash MPA. However, in order to protect this unique and productive estuary, MPA regulations may serve to restrict the way resources may be obtained in the area. The regulations do not, as a matter of course, foreclose on all opportunities in perpetuity. Moreover, presently there are no mineral leases directly within the MPA boundaries. There are however, four mineral claims that include coastal land adjacent to the MPA. Proposals for limestone extraction from these claims, potentially for use in the nearby Coleson Cove Generating station, would come under close scrutiny during the Environment Assessment Review process as these areas are well within the Musquash Watershed.

The New Brunswick Mining Act allows the province to withdraw lands from prospecting and staking via an Order in Council. The province of New Brunswick intends to prepare the documentation to do so for the entire transferred area. In other words, no new prospecting and staking could take place however, any current claim owners would be able to continue to hold those claims until they were no longer renewed.

Shipping and recreational boating

There is moderate shipping activity in the area, mainly from local fishing vessels travelling to and from Five Fathom Hole (Zone 2A). No significant economic impact is expected to these operations as the regulations allow boat traffic within Zone 2, with an imposed speed limit.

Regulations allow for the maintenance, repair and removal of the Five Fathom Hole wharf, and maintenance of the navigational channel. The main reason for these allowances is to ensure that these structures are properly maintained. There is no public boat launch for small craft, but there is limited small craft activity for recreational purposes. However, the regulations do allow for construction, maintenance, repair and removal of a single small craft launch site for public access purposes in Zone 2A to limit this activity to one location.

The Port of Saint John Harbour has authority to operate in an area overlapping the MPA boundaries under the Canada Marine Act. However, the province maintains ownership of the land in this area. Shipping activities in this area will continue to follow the rules and regulations set out by the Port of Saint John Harbour Authority. There are no port developments presently being reviewed for the Musquash area, however, the regulations set out for the MPA will impact any potential future developments by the port within the MPA boundaries. The Saint John Port Authority has been consulted on this issue and has indicated support for the MPA designation.

Scientific research, education, archaeology, and habitat restoration activities

The identification of the Musquash Estuary as a potential MPA has resulted in increased research by oceanographers, benthic ecologists, and many other scientists. The regulations will increase the requirements of proponents of these activities to provide detailed information on planned activities, conduct activities in a manner that does not damage or destroy the habitat of living marine organisms, consider potential cumulative effects, and in the case of habitat restoration activities, be for the purpose of managing the MPA. The added costs of the plan submission and approval process will be minimal and will encourage ecologically responsible behaviour and information sharing.

Commercial tourism

The Musquash Estuary is a coastal location and is easily accessible from the Trans Canada Highway. As such, the Estuary is highly visible and provides numerous recreational opportunities such as kayaking, canoeing and bird watching. The establishment of the MPA may result in the attraction of sightseeing and ecotourism operators, increasing opportunities for this sector in the future. While restrictions within the MPA will apply, such as the speed restrictions for motorized vessels in Zones 2 and 3 and submission of an activity plan, the economic impact to the tourism industry is expected to be a positive one.

Government administration and management

To date, DFO 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 a Management Plan, monitoring, and enforcement activities. Costs associated with enforcement activities will be assumed by DFO through existing funding for fisheries officers and should be minimal considering the high level of compliance and relatively small size of this coastal MPA. Supplementary activities such as public awareness and education activities or research may be undertaken by partners such as non-government organizations or academic institutions.

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 and will be 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 (e.g. Canada's Oceans Action Plan).

The overall value and benefits of the Musquash 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 sustained conservation interest in the Musquash Estuary has resulted in a variety of opportunities for broad input into conservation issues and objectives. In 1998, the Musquash MPA Planning Group was established as a means to hold several meetings to gather viewpoints on the conservation needs of the area. This resulted in formulation of an overall conservation objective and several long-term goals for the Musquash area.

To facilitate the consultative process, an Advisory Committee was established in 2002 to further examine the feasibility of a MPA at the Musquash Estuary site. DFO developed a "management proposal" in fall of 2002 which provided the regulatory intent and other management actions required to protect the Musquash Estuary ecosystem. Consultations concerning the regulatory intent were conducted with all levels of Government, First Nations, industry, stakeholders, coastal landowners and other interested parties.

Other government departments

A number of federal and provincial departments have provided feedback to DFO on the proposed Musquash MPA. In general, other government departments are supportive of the Oceans Act, conservation tools, MPAs, and the Musquash MPA initiative. The majority of questions and concerns raised by other government departments 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 was clarity of roles, responsibilities and accountabilities, and clarity of requirements for activities under their mandates. Effective participation by affected departments in the development of the Management Plan and supporting measures is seen as a prerequisite for continued support.

First Nations

There are currently no aboriginal claims within the proposed Musquash Estuary MPA. It is expected that fisheries and other potential resource interests by First Nations in this area will be addressed through ongoing management processes.

Aboriginal activities at present are relatively limited, although there is evidence of historical use of the resources in the area, and of several seasonal camps. There are a few individuals from the Saint John River Band that frequently collect sweet grass in the area. There is also some interest in the potential of a scallop fishery in Zone 3 which would be consistent with the regulatory approach taken in Musquash.

First Nations have been included in all discussions and in the development of the regulatory intent. First Nations interests have been regularly represented by the Union of New Brunswick Indians, Aboriginal Peoples Council, and the Malisset Advisory Council on Archaeology. Other groups kept informed have been Mawiw, the Passamaquoddy-Scoodic Nation, and the Tobique First Nation. There have also been discussions with First Nations Chiefs and First Nations Fisheries Coordinators.

Based on reviews of regulatory intent to date, First Nations have not raised any concerns regarding this 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. Mechanisms for formal consultation have not yet been defined.

Commercial fishing industry

Musquash was originally proposed as a potential MPA by the Conservation Council of New Brunswick (CCNB), with support from the Fundy North Fishermen's Association (FNFA). As primary users of its fishing resources, the support from this fishing organization has been instrumental in advancing the Musquash MPA initiative. The chief concerns of the FNFA were the allowance of continued safe navigation in the vicinity of Five Fathom Hole wharf and the provision of an ongoing scallop fishery, both of which are addressed in the regulation.

Other industry groups involved in discussions included the Clam Harvesters Association, and the Acadia Seaplants rockweed harvesting company.

Environmental and other interest groups

The CCNB, with support from the FNFA, were the original proponents of the Musquash MPA. As one of the primary users of this area, the FNFA was instrumental in achieving local community acceptance of the Musquash initiative. Early on in the initiative, the CCNB and DFO facilitated several community meetings in the Musquash area to raise awareness and to inform local citizens. CCNB has continued to support and facilitate this initiative.

World Wildlife Fund Canada participates regularly in all meetings, and is an active supporter of the proposed Musquash MPA. The Nature Conservancy of Canada has shown direct support for this initiative, and has been able to purchase and protect land in the vicinity of the MPA.

Groups representing the various rural communities along the MPA, such as the Lorneville Recreation Association, the Musquash Local Service District, and Friends of Musquash, have actively participated in this initiative. Specifically, Friends of Musquash was formed to ensure that information flowed to and from the nearby communities and landowners, and that appropriate discussions occurred.

Environmental groups are supportive of the designation of the Musquash MPA. Some concerns were raised by these groups about potential environmental impacts from activities around the MPA. Key questions relate to how to ensure that activities outside of the MPA do not negatively impact the MPA. In particular, there were significant concerns over the impact of effluents from the Saint John estuary, or from potential aquaculture or port developments near the entrance to Musquash Harbour. Other concerns relate to shipping activities nearby, specifically tankers carrying orimulsion to Saint John; coastal mineral leases, and emissions from the use of orimulsion in the adjacent Lorneville Power plant. Several groups also expressed concerns about allowing scallop fishing in Zone 3.

As a result of the science information on circulation patterns, there is also concern from scientists regarding the location of the outer boundary of the MPA. Science information suggests that the line should be further seaward to capture the body of water that mixes with Musquash twice daily.

In response to the concerns raised above, DFO will work with the province of New Brunswick and stakeholders to encourage compatible land uses adjacent to the MPA. DFO also recognizes that the MPA tool alone cannot address all issues of concern in this area, especially outside of federal oceans jurisdiction. There is an ongoing need for all interests to work together in addressing regional marine conservation issues.

Results of Pre-Publication

The Musquash Estuary Marine Protection Area Regulations were pre-published in the Canada Gazette, Part I, on June 18, 2005.

The Department of National Defence (DND) requested that the term "national defence" to be added to the exception for activities carried out for the purpose of public safety, national security or law enforcement or in response to an emergency (paragraph 4(e)). DND felt that there are specific activities they would like to see allowed if necessary which do not technically constitute activities for the purpose of public safety, national security, law enforcement, or emergency response. The only concern raised to this request by DFO was that "national defence" could be interpreted to encompass activities such as military training exercises. It is preferred that these types of activities, that do not necessarily need to be conducted within an MPA, be conducted elsewhere. Through bilateral discussions and with the assistance of legal counsel, it was determined that the term "national defence" would be added. There is a low risk that military activities will be occurring in these small, coastal areas such as Musquash Estuary, many of which are inland waters. Moreover, an administrative agreement/protocol will be developed with DND which outlines their intent to respect the conservation objectives of the MPA and the prohibitions where possible.

Some minor revisions were made to the regulations as a result of comments received by editors of the Canada Gazette. These were limited to grammatical revisions or to ensure consistency between French and English text. These changes did not substantively alter the meaning of the regulations.

Because the proposed MPA area consists of Crown land/waters under the administration and control of the province of New Brunswick and because of the large inter-tidal zone in this area of the Bay of Fundy, DFO has reached an agreement (TAC) with the province regarding the implementation of the MPA. Several meetings were held between officials from DFO and representatives from the New Brunswick Departments of Intergovernmental Affairs, Environment, Agriculture, Fish and Aquaculture, and Natural Resources. Of the options identified, it was decided that:

An MPA would be designated under the Oceans Act with the low water line as the inner boundary. The Department of Natural Resources would transfer the administration and control (TAC) of all the submerged Crown lands that it owns within the Musquash Estuary to the Government of Canada (i.e. land within the MPA and surrounding foreshore area).

The TAC was approved under the authority of the New Brunswick Executive Council on November 2, 2006. The transfer was done for a nominal fee, and included the following conditions:

(a) Agreement that should the boundaries of the lands/waters to be protected by Her Majesty in Right of Canada as a Marine Protected Area deviate significantly from the proposed federal regulation, all such lands/waters to be transferred herein will revert back to the Minister of Natural Resources free of any and all encumbrances.

(b) Reserving to Her Majesty in Right of the province of New Brunswick, as represented by the Minister of Natural Resources, all Coals, Minerals, Oils and Natural Gas, Bituminous Shale and Mines.

DFO will manage the MPA through regulation under the Oceans Act. The foreshore area will be managed under the Fisheries Act and integrated management policies in a manner consistent with the conservation objectives of the MPA. A management plan for the entire area will be developed. Provincial policies, standards, guideline, etc. will be incorporated into the management plan where relevant and complementary.

The province of New Brunswick also provided specific comments on the proposed Musquash Estuary MPA regulations and Regulatory Impact Analysis Statement (RIAS). Several of these comments were editorial and minor in nature while others were points of clarification. Some of these comments resulted in changes to the regulation or RIAS which have been incorporated and DFO has provided a detailed response to questions to the satisfaction of the province. Other main comments are summarized below.

There was an inquiry regarding whether clamming activity is currently occurring in the MPA and whether it would be allowed. There are no areas legally opened for claming currently in the Musquash Area. Environment Canada can identify areas for potential harvesting. Water quality testing would be conducted and then an area would be classified with specific reference points and boundaries. A variation order would then be used to manage the activity.

An exception for claming will be included for the entire MPA pursuant to the Fishery (General) Regulations, if the activity is done by hand-held tools. Conducted in this manner, this activity would not have a significant impact on the MPA. In addition, the processes in place by Environment Canada and under the Fishery (General) Regulations are considered sufficient to manage this activity in a manner consistent with the conservation objectives of the MPA.

The province suggested that the northerly boundary of the proposed MPA be changed from "the hydroelectric dam" to the former railway line, which is located immediately below Route 1. The Department of Natural Resources has requested this boundary change because the province is presently evaluating its options relative to the future of the Musquash Power Plant and related infrastructure.

DFO took this suggestion under consideration and agreed to make the boundary change but using the # 1 highway, east-bound bridge as it will make a much more visible boundary limit, as opposed to the abandoned rail line that is no longer maintained, and be easier to monitor and enforce.

DFO discussed this boundary change with stakeholders at a meeting of the Musquash Advisory Committee. The outcome of this discussion also recommended the boundary be changed to the #1 highway for similar reasons. This was recommended by the non-government participants only because they did not want to impede the process of implementation. Some members would have preferred that the boundary remain at the Hydro dam, but this change was seen as a requirement to proceed. As well as several other protective measures (Ducks Unlimited and the Nature Conservancy) also use the highway as a boundary.

With respect to ecological concerns of not including the whole of the estuarine and salt marsh (i.e. the area between the highway bridge and the hydro dam), this is a small portion of the system and the watercourse and marsh area is afforded protection under the Clean Water Act's Watercourse and Wetland Alteration Regulation, the Clean Environment Act's Environmental Impact Assessment Regulation, the New Brunswick Coastal Areas Protection Policy and the Wetlands Conservation Policy. Again, some Advisory Committee members expressed concerns regarding this area not being included within the MPA suggesting that the above Act and policies may not be strong enough. DFO will work with the province of New Brunswick to encourage management decisions relating to lands adjacent to the MPA to take MPA conservation objectives under consideration.

The province of New Brunswick's Aboriginal Affairs Secretariat inquired as to whether Aboriginal people would be able to conduct traditional activities, such as sweet grass collection, as a result of the MPA regulations. There is no exception for the collection of sweet grass as it is not present in the MPA. As for other activities, aboriginal people would need to comply with the prohibitions and exceptions outlined in the regulation. There is a specific exception related to aboriginal fishing which is carried out in accordance with the Aboriginal Communal Fishing Licences Regulations. In addition, with the submission and approval of an activity plan, scientific, educational, archaeological, commercial tourism or habitat restoration activities could be undertaken in the MPA. Any other activity which does not violate the prohibitions would also be allowed. In the foreshore area covered under the TAC, the management plan developed for the entire area would include the management of activities such as harvesting of sweet grass and other traditional activities in a manner which would allow them to continue while achieving conservation objectives.

The province of New Brunswick is supportive of the MPA initiative and will work with DFO to achieve conservation objectives.

Strategic environmental assessment

Impacts of the prohibitions and management actions associated with the Musquash MPA are understood, accepted and supported within the community and among the user groups. A Strategic Environmental Assessment (SEA) has been completed for the Musquash Estuary MPA initiative in compliance with the 2004 Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals. Generally, it is anticipated that any environmental effects resulting from the Musquash Estuary MPA will be positive.

Compliance and Enforcement

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

A compliance and enforcement component of the management plan will address the operational responsibilities of DFO to meet regulatory requirements. Fishery officers in the area will serve as the primary enforcement body. Interdepartmental co-ordination and planning will also be used to ensure efficient, cost-effective use of enforcement assets and capabilities. The use of compliance promotion tools will assist in reducing the cost and resource implications of the MPA. The high level of interest and support by the community in implementing protection for the Musquash Estuary suggests high compliance among local community members.

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 DFO and Environment Canada. Provincial enforcement officers include Forest Rangers. 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 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.

In addition to government enforcement, 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., shipping industry, coastal landowners) can contribute to the surveillance and monitoring effort. This will be promoted and supported through the initiatives of the community group "Friends of Musquash".

In general, compliance with the regulations is anticipated to be high. This assessment is based on current industry practice in relation to Musquash and strong levels of commitment and cooperation from partner agencies and the surrounding community.

Contacts

Ken Huffman
Atlantic Desk
Oceans Directorate
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Telephone: (613) 990-8864
FAX: (613) 993-6414
E-mail: HuffmanK@dfo-mpo. gc. ca

Dave Luck
Policy Analyst
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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