ARCHIVED — Tarium Niryutait Marine Protected Areas Regulations

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Vol. 144, No. 15 — April 10, 2010

Statutory authority

Oceans Act

Sponsoring department

Department of Fisheries and Oceans

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issue: The Inuvialuit Settlement Region (ISR), created with the signing of the Inuvialuit Final Agreement (IFA) in 1984, lies within the Canadian Western Arctic region. Comprising a large portion of the ISR, the Beaufort Sea is home to one of the world’s largest summering stocks of beluga whales. In 1991, the Beaufort Sea Beluga Management Plan (BSBMP) was developed “to ensure the sustainable management of beluga and beluga habitat, as well as to protect and preserve harvesting traditions central to the Inuvialuit culture.” The BSBMP established management zones and provided voluntary guidelines for development activities for each of the management zones. Three areas, zoned as “Zone 1a — Traditional harvesting/concentration areas,” are the best known traditional summer concentration areas for the Beaufort Sea beluga. Growing interest in off-shore hydrocarbon exploration and development in and near these three areas has led to concerns that development pressures could override voluntary adherence to existing BSBMP guidelines. A need for an enforceable regulatory mechanism was identified. Following a ten-year consultative process, it was recommended that these three BSBMP Zone 1a areas be designated as federal Marine Protected Areas (MPAs), by regulations, under the Oceans Act. Designation of these three areas as federal MPAs would provide the statutory means to ensure sustainable management of the beluga stocks and their habitat, as well as to protect and preserve harvesting traditions central to the Inuvialuit culture which has been traced back over 500 years.

Description: The Regulations under the Oceans Act would designate the three Beaufort Sea Beluga Management Plan Zone 1a areas in the Mackenzie River estuary collectively as the Tarium Niryutait Marine Protected Areas; the three areas are individually named as Niaqunnaq, Okeevik and Kittigaryuit. Together, they cover approximately 1 800 km2. The Regulations will set out general prohibitions to protect beluga and ecosystem components of these areas and allow for some exceptions for specific activities. The Regulations will also establish two management zones within the boundaries of the Tarium Niryutait MPAs: the Primary Protection Zone (99% of the MPAs) and the Special Management Zone (1% of the MPAs).

Cost-benefit statement: There is growing recognition that marine protected areas have a critical role to play in the conservation and protection of marine life and their habitats. Designation will help conserve and protect unique habitat for beluga, waterfowl and seabirds, and anadromous fish. The Tarium Niryutait MPAs will provide for opportunities for research to improve the understanding of the function and interaction of species, communities, and ecosystems, and the impact and results of marine management activities.

The proposed Regulations, with exceptions, would prohibit exploratory and developmental activities in the MPA. There are identified oil and gas discoveries adjacent to the Tarium Niryutait MPAs. The estimated combined value of oil and natural gas discoveries adjacent to the Okeevik and Kittigaryuit proposed MPAs are $5.8 billion and $0.75 billion respectively, which represents a fraction of the total gross estimates for the Mackenzie Delta and Beaufort Sea region of $46–102 billion. The size of these discoveries is of interest because their development could be restricted with the MPA designation out of concern for potential negative environmental impacts. However, alternative technological means for accessing potential hydrocarbon deposits located below the MPA, for example directional drilling, may be considered. Special management measures will be put in place within the Special Management Zone located only within the Okeevik Marine Protected Area and coincident with the marine portions of existing Significant Discovery Licences (SDL). This will allow SDL holders to continue to exercise the rights conferred by these licences.

Costs associated with the development, planning and designation of an MPA is in the range of $600,000 to $1.2 million depending on the complexity of the area to be designated. Similarly, the management and monitoring (post-designation) of an MPA varies between an estimated $100,000 and $200,000 per year.

Business and consumer impacts: Marine Protected Areas are known to attract tourists interested in viewing and experiencing the values for which the areas have been protected. The Tarium Niryutait MPAs will provide additional opportunities for Inuvialuit to participate in small-scale tourism as a means for supplementing hunting activities. Establishment of new small businesses and expansion of existing businesses in support of visitors is a realistic benefit of interest as a result of the newly created Tarium Niryutait MPAs.

Domestic and international coordination and cooperation: The designation of the Tarium Niryutait MPAs would contribute to Canada’s commitment to conserve and protect the ecological integrity of marine ecosystems, species, and habitats through a system of marine protected areas, as per the Oceans Act. Designation would contribute to meeting Canada’s commitments made under Canada’s Oceans Strategy and the Department of Fisheries and Oceans (DFO) Sustainable Development Strategy, as well as commitments to international agreements with respect to oceans management, marine conservation and protecting biodiversity.

Performance measurement and evaluation plan: Marine Environmental Quality (MEQ) indicators, consistent with ecosystem-based management, will provide a means of determining whether the conservation objectives are being achieved under the Tarium Niryutait MPAs Management Plan. MEQ objectives and indicators will be set for the MPAs within 24 months after designation, focussing on the conservation and protection of beluga whales and other marine species and their habitat. The Management Plan will be reviewed every five years.

Issue

The Inuvialuit Settlement Region (ISR) lies within the Canadian Western Arctic region. Created with the signing of the Inuvialuit Final Agreement (IFA) in 1984, the ISR covers 906 430 km2. It includes four distinct geographic regions: the Beaufort Sea, the Mackenzie River Delta, the Yukon North Slope and the Arctic Islands.

The Beaufort Sea marine region has the world’s largest summering stock of beluga whales. During the summer, a portion of the Beaufort Sea beluga stock concentrates in the Mackenzie River Estuary, where it is harvested by Inuvialuit from Aklavik, Inuvik and Tuktoyaktuk to cover the basic subsistence needs of residents of these communities. The harvest comes largely from whale concentration areas in Kugmallit Bay, near Kendall Island, Shallow Bay and along the Yukon coast between Tent Island and King Point. The beluga population is recognised as healthy and the harvest as sustainable.

Beluga migrate through areas where oil and gas exploration activities have been underway, and where oil and gas production and transportation activities are proposed for the future. The beluga concentrate in areas where various development activities could affect water regimes, water quality and food availability. Such activities could affect beluga either directly or indirectly, although the likelihood, severity and biological implications of these effects are unknown.

In 1991, the Beaufort Sea Beluga Management Plan (BSBMP) was developed by community Hunter and Trapper Committees, Fisheries Joint Management Committee (FJMC) and DFO to ensure the responsible and effective, long-term management of the beluga resource by the Inuvialuit and Fisheries and Oceans Canada. The specific goals of the BSBMP are to maintain a thriving population of beluga in the Beaufort Sea and to provide for optimum sustainable harvest of beluga by Inuvialuit. The BSBMP divides the Beaufort Sea into four management zones. Zone 1 areas, called traditional harvesting/concentration areas, are considered to be protected areas; they encompass the best known traditional summer concentration areas for the Beaufort Sea beluga stock. Three areas were identified in the BSBMP as Zone 1a: Shallow Bay, east Mackenzie Bay and Kugmallit Bay.

The BSBMP has no regulatory status; it establishes voluntary guidelines for development activities associated with each of the zones. To date, there has been voluntary compliance with these guidelines. However, growing interest in off-shore hydrocarbon exploration and development in the Beaufort Sea over the past decade has led to concerns that development pressures may over-ride voluntary adherence to these existing management guidelines. Indian and Northern Affairs Canada (INAC) and the National Energy Board (NEB) have continued to fulfill their mandates with respect to issuing leases and promoting exploration, while the oil and gas sector has continued to invest extensively in exploration in the Mackenzie River Estuary and southern Beaufort Sea outside of the MPA areas.

In order to address these concerns, the three areas zoned as Zone 1a are being proposed as federal Marine Protected Areas, under the Oceans Act. Under subsection 35(3) of the Oceans Act, the Governor in Council has the authority to make Regulations designating MPAs in order to conserve and protect unique habitats, endangered or threatened marine species and their habitats, commercial and non-commercial fishery resources (including marine mammals) and their habitats, marine areas of high biodiversity or biological productivity, and any other marine resource or habitat requiring special protection. The proposed Tarium Niryutait MPAs Regulations would be designated to conserve and protect unique habitats and commercial and non-commercial fishery resources (including marine mammals) and their habitats.

The designation of the three Zone 1a areas as the Tarium Niryutait Marine Protected Areas, by Regulations under the Oceans Act would provide the regulatory mechanism to reduce or eliminate the concern that development pressures might over-ride voluntary adherence to the Beaufort Sea Beluga Management Plan guidelines, while providing opportunities for some activities to occur which do not compromise the conservation objectives of the MPAs.

Objectives

The conservation objective of the Tarium Niryutait MPAs will be to conserve and protect beluga whales and other marine species (anadromous fish, waterfowl and seabirds), their habitats and their supporting ecosystem.

The Tarium Niryutait MPAs would strengthen and complement the BSBMP’s objectives to ensure the long-term sustainable management of one of the world’s largest summering stocks of beluga whales and their habitat. The proposed MPA would also support harvesting traditions central to the Inuvialuit culture in the communities of Aklavik, Inuvik and Tuktoyaktuk.

Tarium Niryutait MPAs proposed Regulations would prohibit specific activities or classes of activities that could potentially negatively impact beluga or any part of the ecosystem in the areas upon which they depend. Emphasis will be on education and compliance promotion activities. Penalties, as provided for under the Oceans Act, will be used as necessary.

Description

Designation

The Regulations would designate three areas in the Mackenzie River Estuary collectively as the Tarium Niryutait Marine Protected Areas. The three areas are individually named Niaqunnaq, Okeevik, and Kittigaryuit. These areas are almost identical to the Zone 1a areas of the Beaufort Sea Beluga Management Plan. Together, these three areas cover approximately 1 800 km2. They are described in FB36305, and represented in CLSR plan No. 91991, sheets 1-4, certified on February 19, 2009, and deposited in the Canada Lands Surveys Records (see Appendix 1-4). They can also be accessed online at http://clss.nrcan.gc.ca/plansearch-rechercheplan-eng.php.

Management zones

The Tarium Niryutait MPAs Regulations would establish two management zones within the designated areas:

  • the Primary Protection Zone (PPZ), which would comprise 99% of the total MPA area. The Primary Protection Zone would allow the least flexibility with respect to development activities; and
  • the Special Management Zone (SMZ), which would comprise 1% of the total MPA area and would be located only within the Okeevik Marine Protected Area to coincide with the marine portions of existing Significant Discovery Licences (SDL) issued by INAC. The Special Management Zone would require special management measures to allow SDL holders to continue to exercise the rights conferred by these licences. Special management measures refer to additional conditions that are placed on exploratory and developmental activities in order for them to qualify as an exception from the general prohibitions. For example, exploratory drilling activities may be considered during ice cover as there are no beluga present in the MPAs at that time.

Prohibitions

The Tarium Niryutait MPAs Regulations would contain general prohibitions against disturbing, damaging or destroying, or removing from the Area, any living marine organism or any part of its habitat; or carrying 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. A seabed depth of 5 m is protected because this is considered the depth of the active biological layer in this sandy loamy area that has a high percentage of ice scour and bottom turnover.

A management plan developed for the MPA will provide further guidance to users on those activities considered acceptable and that remain below this harm threshold.

Exceptions

The Tarium Niryutait MPAs Regulations would allow for certain exceptions to the prohibitions. The exceptions would allow for continued subsistence harvesting. Inuvialuit harvesting is a constitutionally protected right; for this reason, this sustainable activity would continue to be allowed in the Tarium Niryutait MPAs.

Fishing activities, including recreational fishing, would be allowed in the MPA if carried out in accordance with the Fisheries Act, its regulations and the Inuvialuit Final Agreement. These requirements are considered sufficient to ensure that these activities will be conducted in a manner consistent with the conservation objectives of the MPA.

Dredging activities would be allowed in the MPA provided they have been recommended to proceed by the process set out under the IFA; are authorized by a competent government authority; are carried out in accordance with the Navigable Waters Protection Act, the Fisheries Act and their regulations; and do not result in or are not likely to result in the disturbance, damage, destruction or removal of a marine mammal.

Scientific research and monitoring activities would be allowed throughout the entire MPA provided they have been recommended to proceed by the process set out under the IFA; are authorized by a competent government authority; are carried out for the purpose of the management of the marine protected area or for monitoring the effectiveness of conservation measures implemented in the area; and are carried out in accordance with the Fisheries Act and its regulations.

Some hydrocarbon-related activities would be allowed in the MPA provided they (1) have been recommended to proceed by the process set out under the IFA and are authorized by a competent government authority; (2) do not result in, or are not likely to result in, the disturbance, damage, destruction or removal of a marine mammal; and (3) are conducted in accordance with other environmental legislation such as the Navigable Waters Protection Act, the Species at Risk Act, the Fisheries Act, the Canadian Environmental Protection Act and their regulations. Geophysical, exploratory drilling, pipeline construction and decommissioning activities are allowed only when the MPA is ice-covered as there are no beluga present in the MPAs at that time. Additionally, oil and gas production activities as well as exploratory drilling are limited to a special management zone in the Okeevik Marine Protected Area. Hydrocarbon-related activities are allowed, subject to approval, in order to recognize pre-existing rights or to explore for hydrocarbons outside the boundaries of the MPAs.

Any accident that is likely to result in the disturbance, damage, destruction or removal of marine species and their habitats referred to in the general prohibitions of the proposed Regulations would have to be reported within two hours after its occurrence to the Canadian Coast Guard (CCG). Such incidents include but are not limited to collisions with marine mammals, injury to marine mammals, spills or accidental discharges of deleterious substances.

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

Activities that are not prohibited continue to be subject to the existing Environmental Impact Screening Committee process established under the IFA, as well as any other approvals, licences, authorizations and permits that may be required. The Inuvialuit Final Agreement established two co-management bodies to manage environmental assessment and review processes in the Inuvialuit Settlement Region (ISR). These two bodies are the Environmental Impact Screening Committee (EISC) and the Environmental Impact Review Board (EIRB). The EISC screens all development proposals to assess whether there is the potential for significant negative environmental impacts. If so, the proposal is subjected to further review by the EIRB. The EISC process ensures Inuvialuit traditional knowledge is considered as an important part of environmental assessment in the region. The EISC process works to include the advice of other co-management bodies like the Fisheries Joint Management Committee. No licence or approval can be issued by any government regulatory or approval authority until the provisions of the environmental impact screening and review process have been met. Permission to proceed with any proposed development must therefore wait until the Inuvialuit have exercised their legislated right to participate in the impact assessment of the development.

Regulatory and non-regulatory options considered

The option of continuing to rely on voluntary compliance to the guidelines set out by the Beaufort Sea Beluga Management Plan was considered but rejected. Current management mechanisms are not designed to ensure the comprehensive, ecosystem-based and long-term protection that is required for this area.

Other alternatives considered included the assessment of Parks Canada legislation, such as the Canada National Marine Conservation Areas Act (National Marine Conservation Areas [NMCA]) and the Canada National Parks Act (National Parks), and of Environment Canada legislation, such as the Canada Wildlife Act (National Wildlife Areas [NWA] or Marine Wildlife Areas [MWA]) and the Migratory Birds Convention Act (Migratory Bird Sanctuaries [MBS]), to determine whether these departments’ legislative tools were a better fit than the DFO’s Oceans Act MPA designation.

The Oceans Act was found to be the most appropriate tool for providing the protection and flexibility required for the management of these areas. The primary objectives of NWA, MWA and MBS relate to conservation and protection of habitat only; the Canada National Marine Conservation Areas Act requires that all the land, including the sea or lake bed and its subsoil, within a NMCA, be owned by the Crown; that private lands and interests be acquired by negotiated settlement; that term interests be allowed to expire; and that the area be representative of Canada’s marine regions. The requirements of the Canada National Marine Conservation Areas Act are more complex and restrictive than appropriate under the circumstances.

While the Tarium Niryutait MPAs Regulations provide the primary tool for protecting and conserving marine species and habitats in these areas, the environmental provisions of existing legislation, regulations and policies will also contribute to the objectives of this initiative. Access to the Tarium Niryutait MPAs will be controlled, and activities will be managed through relevant provisions of several acts, including the Fisheries Act, the Coastal Fisheries Protection Act, the Species at Risk Act, the Coasting Trade Act, the Canada Shipping Act (2001), and the Canadian Environmental Assessment Act, as well as through the provisions in and processes established by the Inuvialuit Final Agreement.

The MPA Management Plan will provide further guidance on the Regulations and will be used to implement a comprehensive set of conservation and management strategies and measures to meet MPA conservation objectives.

Benefits and costs

There is growing recognition that marine protected areas have a critical role to play in the conservation and protection of marine life and their habitats. Tarium Niryutait MPAs designation will help to conserve and protect unique habitat for beluga, waterfowl and seabirds and anadromous fish (ascending rivers from the sea for breeding). The MPAs will also provide areas for research to improve the understanding of the function and interaction of species, communities, and ecosystems, and the impact and results of marine management activities.

Experience elsewhere has shown that marine protected areas are known to attract tourists interested in viewing and experiencing the values for which the areas have been protected, whether oceanographic, biological or cultural. Currently, some Inuvialuit participate in small-scale tourism as a means for supplementing hunting activities. Since 88% of the tourists who visit the region do so to view wildlife and nature, there is an opportunity for small tour operators to increase or expand their participation in the tourism industry. Tourism-related activities that stand to benefit as a result of establishment of MPAs range from guided whale watching and sport fishing, to cultural tours, establishment of accommodation facilities (bed and breakfast), sale of arts and crafts (sealskin products, prints, carvings), etc.

Benefits will accrue to air and marine transportation industries on a seasonal basis. Tourism and businesses that support tourism, such as suppliers of fuel, dry goods, building materials, and similar commodities, will see a likely increase in the movement of passengers and freight related directly to them. Measuring the economic values associated with these activities is difficult; however, due to the reluctance of companies to divulge information since there are few active players in the sector, i.e. tourism and marine transportation.

Over a period of 10 years, DFO has invested significant program resources into the MPA planning, consultation and designation process. Designating the Tarium Niryutait MPAs will create a long-term management and administrative responsibility. Ongoing and post-designation resource implications for the Department relate to the administration and management of the MPAs, such as the development and implementation of a management plan, enforcement, surveillance and monitoring of activities, information management and dissemination, and compliance promotion. Agreements with partners such as the FJMC will form the basis of the management framework for the MPAs.

The MPAs are a long-term management responsibility that will require ongoing resource support within DFO. Costs associated with the development, planning and designation of a MPA are in the range of $600,000 to $1.2 million, depending on the complexity of the area to be designated. Similarly, the management and monitoring costs (post designation) of a MPA vary between an estimated $100,000 and $200,000 per year. Departmental management of the MPA will be undertaken through horizontal program delivery consistent with national and regional strategic and business plans where possible. Costs will be managed within the Department’s existing budgetary allotments. Costs associated with enforcement activities will be assumed by DFO through existing funding. Supplementary activities such as public awareness and education activities or research may be undertaken in partnership with non-governmental organizations (NGOs), academic institutions and other interested partners.

Based on the 1998 estimates for the total volume of oil and gas discoveries in the Mackenzie Delta and Beaufort Sea, the gross value of the oil in the ground is approximately C$26 billion to C$64.1 billion (assuming an average 2000 oil price of $280/m3), and the gross value of natural gas is approximately C$20.5 billion to C$38.4 billion (assuming an average 2000 natural gas price of $110/103 m3). These gross value estimates are useful in that they indicate the potential economic impact of oil and gas development. However, information from which to reasonably estimate development costs, price changes, and production schedules for the region is not available. These estimates require more sophisticated modelling, but would allow for a more meaningful description of the net values. In other words, these estimates indicate the size of the resources in the ground, but not the net benefits that would be associated with oil and gas development.

There are identified oil and gas discoveries adjacent to two of the proposed areas. Using the above average prices, the value of the oil and gas discoveries immediately adjacent to the Okeevik and Kittigaryuit areas can be estimated. For the area adjacent to Okeevik, the value of the oil is approximately C$4.3 billion and the value of the natural gas is C$1.5 billion. For the area adjacent to Kittigaryuit, the value of the oil is approximately C$0.25 billion and the value of the natural gas is C$0.50 billion. The size of these significant discoveries is of interest here because their development could potentially be restricted with the MPA designation of the three areas. With their close proximity to the proposed areas, concern over potential significant environmental impacts may prohibit development. This is not to say that any future environmental impact assessment will arrive at this conclusion. The value estimates for the oil and gas discoveries immediately adjacent to the proposed MPAs are a fraction of the total for the Mackenzie Delta and Beaufort Sea region.

Production of oil and gas in the Mackenzie Delta and Beaufort Sea area will be highly dependent on the development of a pipeline. Until more detailed information is available on the costs associated with acquiring production, as well as the production schedule (i.e. how much is extracted each year), a reasonable estimate of net values will not be possible. It must be emphazised that the gross value estimates provided here are total “in ground” values. When or if oil and gas extraction takes place, actual annual gross and net values will be a fraction of the above dollar amounts, determined by the amount produced each year.

There are potentially exploitable deposits of sand and gravel within the boundaries of the Tarium Niryutait MPAs. However, exploitation of these types of deposits would cause rapid and potentially severe erosion of the adjoining sub-aerial deposits. In addition, any deposits in water depths of less than 1–1.2 m are likely to be ice-bonded with 1–2 m of the seabed. The economic potential for heavy minerals in the MPAs is considered to be low to very low. However, the presence of garnets as well as ilmenite in heavy mineral suites suggests that, given suitable conditions, placers could result from these sources. Placer mining refers to the mining of alluvial (river sediment) deposits for minerals. This may be done by open-pit (also called open-cast mining) or by various forms of tunnelling into ancient riverbeds. Excavation may be accomplished using water pressure (hydraulic mining), surface excavating equipment or tunnelling equipment. Potential significant environmental impacts will prohibit these activities from the MPAs unless it can be shown that they can be carried out in a manner that does not violate the general prohibitions.

Rationale

Canada’s oceans have enormous potential to benefit both present and future generations. Coastal and offshore marine ecosystems are home to a remarkable diversity of species, including marine mammals, fish, and a wide variety of invertebrate and plant species supporting commercial, recreational and subsistence fisheries. However, threats to the biodiversity, productivity and ecological integrity of marine ecosystems must be addressed, not only because we value our oceans, but also because coastal communities and regional economies depend on healthy, productive oceans.

Canada’s Oceans Strategy is the Government of Canada’s policy statement for the management of estuarine coastal and marine ecosystems. National in scope, Canada’s Oceans Strategy sets out the policy direction for ocean management in Canada. Under the Strategy, the Government of Canada re-affirms its commitment to promoting the wide application of the precautionary approach to the conservation, management and exploitation of marine resources in order to protect these resources and preserve the marine environment. This includes the application of conservation measures necessary to maintain the biological diversity and productivity of the marine environment, including the establishment of marine protected areas. The designation of the Tarium Niryutait MPAs makes it possible to meet the commitments made under Canada’s Oceans Strategy.

Canada has made a commitment, under the Oceans Act, to conserve and protect the ecological integrity of marine ecosystems, species, and habitats through a system of marine protected areas. In 2007, as part of Canada’s National Water Strategy, the federal government announced five-year funding of $61.5 million for various initiatives to protect fragile marine environments, counter pollution and strengthen preventive measures. This Health of the Oceans initiative will contribute to the establishment of the network of marine protected areas. The designation of the proposed Tarium Niryutait MPAs is an important step toward fulfilling Canada’s commitments.

In 2008, the Government of Canada announced several initiatives under its Northern Agenda, including measures to protect and understand the Arctic environment. Potential for environmental threats like oil spills, poaching and contamination is particularly high in the sensitive Arctic ecosystem. The designation of the Tarium Niryutait MPAs contributes to the commitment to conserve and protect the ecological integrity of marine ecosystems, species, and habitats.

The designation also makes it possible to meet the commitments made under DFO’s Sustainable Development Strategy 2005-2006. Output 2.2 of this Strategy focuses on the designation of marine protected areas under the Oceans Act.

Recognizing that achieving sustainability in the harvest of living ocean resources ultimately depends on healthy, productive ecosystems, the Government of Canada works with other countries to address concerns about the marine environment. Internationally, Canada has demonstrated its commitment by endorsing conventions that pursue the goals of conservation and protection, including the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities. Designation also contributes to the establishment of a circumpolar and global network of marine protected areas and contributes to meeting Canada’s commitments to international agreements with respect to protecting the marine environment and biodiversity. Among the international agreements pertaining to marine protected areas to which Canada is a signatory are the United Nations Convention on the Law of the Sea, the Convention on Biological Diversity, and the World Commission on Protected Areas program of the International Union for the Conservation of Nature. As a member of the Arctic Council, Canada participates on Arctic Council working groups such as the Conservation of Arctic Flora and Fauna. Member countries have agreed to work towards two outcomes: the establishment of a Circumpolar Marine Area Network and a Circumpolar Protected Area Network. While there are other marine protected area designations in Canada’s Arctic, Tarium Niryutait MPAs will be the first Oceans Act MPAs in this region.

Under the Oceans Act, Canada has made a commitment to conserve and protect the ecological integrity of marine ecosystems and habitats through a system of marine protected areas. Under the Act, the Minister of Fisheries and Oceans has been given the authority to lead and coordinate the development and implementation of a national system of marine protected areas. The Oceans Act provides the regulatory authority to effectively meet the conservation objectives and values of the Tarium Niryutait MPAs, and will provide for their long-term management and legal protection. The application of this Act offers the added benefit of promoting greater stewardship and responsible ocean use, both in and outside the Tarium Niryutait MPAs.

Designation would provide the certainty that the Inuvialuit have requested from the Government of Canada for the long-term protection of these areas, building on and complementing the substantial efforts made by Inuvialuit organizations, co-management bodies and the Government of Canada since the early 1990s. Existing rights, such as those specified in the Inuvialuit Final Agreement (IFA) and those stemming from two significant discovery licences will remain unaffected by the Regulations.

Strategic Environmental Assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals of 2004, a Strategic Environmental Assessment (SEA) was conducted. The SEA concluded that any environmental effects resulting from the designation of the Tarium Niryutait MPAs will be positive.

Consultation

The process that has led to the development of these Regulations has been open and transparent, consistent with the principles of sustainable development and based on the best available scientific information and traditional ecological knowledge. All interested parties, including Inuvialuit and other Aboriginal groups, federal and territorial government agencies, industry and other interested parties have participated in the process leading to the recommendation for its designation. The work has been built on existing structures such as the Fisheries Joint Management Committee (FJMC) for its implementation.

Consultations on the proposed Tarium Niryutait Marine Protected Areas were initiated in 1998. These included face-to-face public meetings, open houses and discussions with Inuvialuit Settlement Region (ISR) leaders and communities, industry, federal and territorial government agencies, and conservation organizations.

In 2000, Inuvialuit leaders, government and industry set up a Senior Management Committee (SMC) comprised of representatives from the Inuvialuit Regional Corporation (IRC), the Fisheries Joint Management Committee (FJMC), the Inuvialuit Game Council (IGC), the Canadian Association of Petroleum Producers (CAPP) and the Department of Fisheries and Oceans (DFO). The SMC established the Beaufort Sea Integrated Management Planning Initiative (BSIMPI) Working Group, which included the members of the SMC as well as INAC to guide the MPA evaluation and assessment process. Consultations reviewed the results of assessments of the proposal, and the implications of MPA designation. Participants discussed the intent of proposed Tarium Niryutait MPAs Regulations and how communities would be involved in the implementation and management of the Tarium Niryutait MPAs.

Industry representatives and federal government agencies were invited to make meeting presentations concerning their interests in the MPAs and to participate in the development of the regulatory intent used to inform drafting of the Regulations. Federal and territorial departments and agencies consulted throughout the process included INAC, DFO, CCG, Environment Canada, Parks Canada, Transport Canada (TC), National Energy Board, Natural Resources Canada, the Yukon Department of Energy, Mines and Resources, the Yukon Department of Environment, Yukon Intergovernmental Affairs, Northwest Territories Environment and Natural Resources, Northwest Territories Industry, Tourism and Trade, and Northwest Territories Intergovernmental Affairs.

A meeting of the community Hunters and Trappers Committees, Elders Committees and Community Corporations was held in March 2003 to provide an opportunity for a roundtable discussion to address any outstanding issues, and to re-confirm their support for continuation of the planning process. The intent of the proposed Regulations was understood and accepted in the three communities and among the user groups.

Throughout 2004–2005, meetings were held with community organizations, industry and government to continue to solidify support for the draft regulatory intent. Support, with very limited conditions attached, was received from each of the community organizations in the three communities. This conditional support allowed the WG to draft a letter to SMC recommending continuation of the MPA planning process. In June 2005, the SMC wrote to the Minister of Fisheries and Oceans and requested that he initiate the required regulatory process to move the proposed MPA to designation.

From 2006–2009, DFO has continued to consult through

  • regular meetings with the Beaufort Sea Integrated Management Planning Initiative Senior Management Committee which consists of the Inuvialuit Game Council, Inuvialuit Regional Corporation, Canadian Association of Petroleum Producers, Fisheries Joint Management Committee, and DFO;
  • information updates provided to the Regional Coordination Committee and the Beaufort Sea Partnership both established as part of the governance structure for the Beaufort Sea Integrated Ocean Management Planning process;
  • information updates provided through a number of one on one meetings with oil and gas industry members, environmental non-governmental organizations, and community organizations; and
  • information updates provided through a number of field visits to the communities of Tuktoyaktuk, Aklavik, Inuvik, Paulatuk, Sachs Harbour and Ulukhaktok, as part of the Integrated Ocean Management Planning process.

The key issues and concerns received as feedback through the various consultations are summarized below according to sector and interest groups.

Inuvialuit

Oil and gas exploration and associated activities have benefited Inuvialuit through negotiated agreements for access to Inuvialuit lands, training and employment, contracting opportunities and other economic benefits. At the same time, there were concerns among Inuvialuit Settlement Region (ISR) leaders and communities stemming from the impacts of development activities on the environment and animals which they require for subsistence. Accommodating development, while simultaneously protecting the marine environment and the subsistence harvest, was the main issue raised during discussions concerning the designation of the Tarium Niryutait MPAs. Overall, the Inuvialuit support proceeding with the proposed Regulations.

Oil and gas industry

As the largest sector stakeholder in the region, the oil and gas industry was a major focus of consultations. Consultations consisted of workshops and meetings with CAPP and their members, and face-to-face meetings with individual companies. Additionally, CAPP organized sessions with all representatives of oil and gas companies active in the Mackenzie River estuary. Other industry sectors were consulted at various stages during the MPA evaluation and assessment process.

The oil and gas industry is largely supportive of the establishment of these three areas as Marine Protected Areas. Industry has expressed interest in being permitted access to these areas to conduct seismic work on a limited basis, in order to verify resources next to and/or under the three areas. If approved, this work will be conducted only during winter, during ice cover, when beluga are absent from the area.

Industry raised a concern relating to future requirements once the Mackenzie Valley pipeline has been constructed and the issues surrounding selection of the optimum route for pipelines from producing wells beyond the MPA to the shore. Whether these pipelines would need to cross the MPA is dependent on a number of factors such as the termination point of the Mackenzie Valley pipeline, the geophysical make-up of the ocean floor, and incremental costs of circumventing the MPA.

Additional concerns regarding seismic activity and pipeline construction, operation and maintenance have been dealt with through specific conditional exemptions within the Regulations.

Commercial shipping authorities

Numerous consultations were held with authorities in regards to controlling commercial vessel traffic though the Tarium Niryutait MPAs. These included Transport Canada (TC), the Canadian Coast Guard (CCG), the Canadian Hydrographic Service (CHS) and an Arctic shipping company — the Northern Transportation Company Limited (NTCL). Options for confining shipping to designated corridors were discussed. Transport Canada, CHS and CCG discouraged the establishment of “official” shipping lanes because of potential liability, maintenance issues and time constraints. Due to the shallow nature of the shifting seafloor, one cannot reliably predict the best shipping routes over time.

The Management Plan will therefore include guidelines recommending that vessels avoid the Tarium Niryutait MPAs. If they must cross through the Tarium Niryutait MPAs, they are asked to transit these areas using recommended routes that will be identified in the Management Plan. Vessels must comply with all relevant provisions of the Marine Mammal Regulations pursuant to the Fisheries Act.

Other DFO sectors

Meetings were held across DFO sectors at the area, regional and headquarter levels throughout the processes. Program sectors consulted included Fisheries and Aquaculture Management, Fish Habitat Management, Science, Species at Risk, Policy and Area and Regional Directors. The main concerns expressed regarded ensuring regulatory and program delivery coordination and efficiencies in order to avoid duplication or infringements on decision-making authorities.

Other government departments

Since 1991, no oil and gas, mining or other extractive non-renewable resource activities have been permitted in the three areas, in accordance with management guidelines in the Beaufort Sea Beluga Management Plan (BSBMP). While the BSBMP has relied on voluntary compliance, federal government departments and industry have accepted the terms of the BSBMP. Indian and Northern Affairs Canada and the National Energy Board (NEB) continue to fulfill their mandates to manage oil and gas (including leasing) and to regulate oil and gas activities respectively while the oil and gas sector has continued to invest extensively in exploration in the Mackenzie River estuary and southern Beaufort Sea outside of these areas.

Designation of the proposed Tarium Niryutait MPAs is generally supported by other government departments. Some concerns over the restrictions on all oil and gas activities within the boundaries of the proposed Tarium Niryutait MPAs have been voiced by Indian and Northern Affairs Canada (INAC) and the National Energy Board (NEB), both of which have mandates to promote or facilitate non-renewable resource development. More specifically, the issues can be summarized as (a) concerns regarding the cumulative impact of all conservation initiatives in the ISR and how these may impact petroleum operations; (b) the potential for lost economic opportunity if there were complete exclusion of oil and gas opportunities in the MPA; and (c) the location of the central Okeevik portion of the MPA and the potential added costs to industry if feeder pipelines were not permitted to traverse the MPA. Their concerns have been addressed by allowing for specific conditional exceptions in the Tarium Niryutait MPAs Regulations.

The Government of the Northwest Territories (GNWT) has been supportive throughout the development of the Tarium Niryutait MPAs Regulations and has provided a letter of support. The Yukon Government has been active in the development of the intent of the proposed Regulations and has also provided a letter of support for the MPAs. The Department of Fisheries and Oceans is working with the FJMC and other partners to establish a mutually agreeable MPA management framework.

Other environmental interest groups and organizations

The World Wildlife Fund (WWF) and the Canadian Parks and Wilderness Society (CPAWS) have been the two primary environmental non-governmental organizations (ENGOs) active in the Beaufort Sea planning process for MPA designation. They are supportive of the creation of the Tarium Niryutait MPAs; however, they have expressed concerns over the exemptions allowed for industrial activities within the Tarium Niryutait MPAs. The establishment of the Tarium Niryutait MPAs Regulations will prohibit future development projects in the Primary Protection Zone and ensures a rigorous review process for limited activities that are considered compatible with the conservation objectives of the MPA.

Implementation, enforcement and service standards

A Tarium Niryutait MPAs Management Plan will be developed within the 24-month period after designation. The Management Plan will provide further guidance on the Regulations and is to be used to implement a comprehensive set of conservation and management strategies and measures for the Tarium Niryutait MPAs. The Management Plan will clearly define the Tarium Niryutait MPAs’ purpose and management direction over a given period and will address matters such as monitoring, enforcement, compliance, and stewardship.

The Management Plan will also describe the management arrangement and define the roles and responsibilities of the management body responsible for overseeing the Management Plan and making recommendations to the Minister of Fisheries and Oceans regarding the Tarium Niryutait MPAs. Guidelines and work plans will be developed to assist in the management of the Tarium Niryutait MPAs related to the non-regulatory components of the Management Plan. The effectiveness of the Management Plan will be reviewed and monitored on an ongoing basis. The Management Plan will be reviewed every five years.

Consistent with DFO’s strong commitment to co-management, the FJMC will be responsible for coordinating the administration of the Tarium Niryutait MPAs Management Plan. This would constitute a continuation of FJMC’s current responsibilities under the Beaufort Sea Beluga Management Plan.

The primary responsibilities related to the management of the Tarium Niryutait MPAs will include administrative responsibilities, education, monitoring and research, compliance and enforcement, reporting and program auditing. These duties will be carried out by DFO in cooperation with the FJMC, territorial governments, local users and other mandated authorities.

The Department of Fisheries and Oceans continues to work in partnership with the FJMC, to establish a mutually agreeable management framework. Administrative procedures will be developed jointly, as required, by DFO and the responsible authorities to ensure that the recommendations of the management body are taken into account in these processes. The FJMC, a co-management body established under the Inuvialuit Final Agreement (1984), will take the lead role in coordinating the administrative management of the Tarium Niryutait Marine Protected Areas.

As the lead federal authority for the Tarium Niryutait MPAs, DFO will have overall responsibility for ensuring the compliance and enforcement of management measures outlined in the Tarium Niryutait MPAs Regulations. This will be undertaken through the Department’s legislated enforcement mandate and responsibilities under the Oceans Act, the Fisheries Act and any other departmental legislation regarding fisheries conservation, environmental protection, habitat protection and marine safety. The Canadian Coast Guard will contribute to the protection of the Tarium Niryutait MPAs through the conduct of activities related to its mandate to provide aids to navigation, marine communications and traffic services; and its responsibility for marine pollution response, and the support of other government departments, boards and agencies.

For enforcement matters falling under the jurisdiction of another body, DFO will provide coordination and support roles as required in cooperation with the management body. As required, administrative agreements and procedures will be established with the responsible authorities to ensure compliance of activities within their jurisdiction with the Tarium Niryutait MPAs Regulations.

Restrictions and conditions for activities will be implemented, monitored and enforced through appropriate management mechanisms. For activities requiring the involvement of multiple agencies, interdepartmental arrangements and memoranda of understanding will be used to incorporate Tarium Niryutait MPAs 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 Tarium Niryutait MPAs. This may include development of best practice guidelines in cooperation with the affected industries, recognition and adoption of industry codes of practice, or the promotion and development of stewardship initiatives. The use of voluntary measures and a focus on awareness and enhancement of the marine environment will contribute significantly to achieving the conservation objectives and compliance with the Regulations. Given the overwhelming support and high level of participation and collaboration by partner organizations and users, it is anticipated that compliance with the Regulations will be high.

Section 37 of the Oceans Act contains provisions with respect to fines and other measures that may be prescribed in the case of contravention of the Tarium Niryutait MPAs Regulations. Contravention of the Regulations can result in fines of up to but not exceeding $500,000. Contraventions of authorized activities and conditions can also result in fines and/or imprisonment under the Fisheries Act and other applicable legislation such as the Canada Shipping Act (2001).

Performance measurement and evaluation

Marine Environmental Quality (MEQ) indicators, consistent with ecosystem-based management, will provide a means of determining whether the conservation objectives are being achieved under the Management Plan. For example, measuring water temperature, salinity or level of contaminants could be used as a MEQ indicator. MEQ objectives and indicators will be set for the MPA, focussing on the conservation and protection of beluga whales and other marine species and their habitat. The Management Plan will be reviewed every five years.

Contacts

Central and Arctic Region

Kelly Eggers
ISR Program Coordinator
Western Arctic Area
Fisheries and Oceans Canada, Inuvik Office
P.O. Box 1871
Inuvik, Northwest Territories
X0E 0T0
Telephone: 867-777-7521
Fax: 867-777-7501
Email: Kelly.Eggers@dfo-mpo.gc.ca

National Capital Region

Cal Wenghofer
Arctic Manager
Oceans Directorate
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Telephone: 613-990-9376
Fax: 613-990-4810
Email: Cal.Wenghofer@dfo-mpo.gc.ca

Houman Kousha
Policy Analyst
Legislative and Regulatory Affairs
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Telephone: 613-991-0493
Fax: 613-990-0168
Email: Houman.Kousha@dfo-mpo.gc.ca

PROPOSED REGULATORY TEXT

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

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I and the date of publication of this notice, and be addressed to Cal Wenghofer, Arctic Manager, Oceans Directorate, Fisheries and Oceans Canada, 200 Kent Street, Ottawa, Ontario K1A 0E6 (tel.: 613-990-9376; fax: 613-990–4810; e-mail Cal.Wenghofer@dfo-mpo.gc.ca).

Ottawa, April 1, 2010

JURICA ČAPKUN
Assistant Clerk of the Privy Council

TARIUM NIRYUTAIT MARINE PROTECTED AREAS REGULATIONS

INTERPRETATION

1. The following definitions apply in these Regulations.

“Agreement” means the Inuvialuit Final Agreement as approved, given effect and declared valid by the Western Arctic (Inuvialuit) Claims Settlement Act. (Convention)

“Areas” means the Tarium Niryutait Marine Protected Areas. (zones)

“waters” includes the seabed and subsoil below the waters to a depth of five metres. (eaux)

DESIGNATIONS

2. The Areas consist of

(a) the Niaqunnaq Marine Protected Area designated under section 3;

(b) the Okeevik Marine Protected Area designated under section 4; and

(c) the Kittigaryuit Marine Protected Area designated under section 5.

NIAQUNNAQ MARINE PROTECTED AREA

3. The area of the sea in Mackenzie Bay consisting of the waters within the boundaries described in plan number FB36305, certified on February 19, 2009 and depicted in plan number CLSR 91991, Sheet 2, which plans are deposited in the Canada Lands Surveys Records, is designated as the Niaqunnaq Marine Protected Area.

OKEEVIK MARINE PROTECTED AREA

4. (1) The area of the sea in the Mackenzie River Estuary consisting of the waters within the boundaries described in plan number FB36305, certified on February 19, 2009 and depicted in plan number CLSR 91991, Sheet 3, which plans are deposited in the Canada Lands Surveys Records, is designated as the Okeevik Marine Protected Area.

(2) The Okeevik Marine Protected Area is comprised of Special Management Zones 1 and 2 and the Primary Protection Zone as described in plan number FB36305, certified on February 19, 2009 and depicted in plan number CLSR 91991, Sheet 3, which plans are deposited in the Canada Lands Surveys Records.

KITTIGARYUIT MARINE PROTECTED AREA

5. The area of the sea in the Mackenzie River Estuary consisting of the waters within the boundaries described in plan number FB36305, certified on February 19, 2009 and depicted in plan number CLSR 91991, Sheet 4, which plans are deposited in the Canada Lands Surveys Records, is designated as the Kittigaryuit Marine Protected Area.

PROHIBITED ACTIVITIES

6. No person shall

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

(b) carry out any activity in the Areas— 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.

EXCEPTIONS

7. The following activities may be carried out in the Areas:

(a) fishing in accordance with the Agreement;

(b) dredging

(i) that has been recommended under the Agreement and authorized by a competent government authority,

(ii) that is carried out in accordance with the Navigable Waters Protection Act and the Fisheries Act and their regulations, and

(iii) that does not result in and is not likely to result in the disturbance, damage, destruction or removal of a marine mammal;

(c) fishing in accordance with the Fisheries Act and its regulations;

(d) a scientific activity that is carried out in accordance with the Fisheries Act and its regulations or

(i) that has been recommended under the Agreement and authorized by a competent government authority, and

(ii) that is carried out for the purpose of managing the Areas or for monitoring the effectiveness of conservation measures implemented in the Areas;

(e) a geophysical operation, as defined in section 2 of the Canada Oil and Gas Geophysical Operations Regulations,

(i) that has been recommended under the Agreement and authorized by a competent government authority,

(ii) that is carried out on, through or under the ice cover of the Areas,

(iii) that is carried out in accordance with the Navigable Waters Protection Act, Species at Risk Act, Fisheries Act and Canadian Environmental Protection Act, 1999 and their regulations, and

(iv) that does not result in and is not likely to result in the disturbance, damage, destruction or removal of a marine mammal;

(f) exploratory drilling for oil or gas in the Special Management Zones of the Okeevik Marine Protected Area

(i) that has been recommended under the Agreement and authorized by a competent government authority,

(ii) that is carried out on, through or under the ice cover of the Areas,

(iii) that is carried out in accordance with the Navigable Waters Protection Act, Species at Risk Act, Fisheries Act and Canadian Environmental Protection Act, 1999 and their regulations, and

(iv) that does not result in and is not likely to result in the disturbance, damage, destruction or removal of a marine mammal;

(g) oil or gas production in the Special Management Zones of the Okeevik Marine Protected Area,

(i) that has been recommended under the Agreement and authorized by a competent government authority,

(ii) that is carried out in accordance with the Navigable Waters Protection Act, Species at Risk Act, Fisheries Act and Canadian Environmental Protection Act, 1999 and their regulations, and

(iii) that does not result in and is not likely to result in the disturbance, damage, destruction or removal of a marine mammal;

(h) the construction or decommissioning of an oil or gas pipeline

(i) that has been recommended under the Agreement and authorized by a competent government authority,

(ii) that is carried out on, through or under the ice cover of the Areas,

(iii) that is carried out in accordance with the Navigable Waters Protection Act, Species at Risk Act, Fisheries Act and Canadian Environmental Protection Act, 1999 and their regulations, and

(iv) that does not result in and is not likely to result in the disturbance, damage, destruction or removal of a marine mammal;

(i) the maintenance of an oil or gas pipeline,

(i) that has been recommended under the Agreement and authorized by a competent government authority,

(ii) that is carried out in accordance with the Navigable Waters Protection Act, Species at Risk Act, Fisheries Act and Canadian Environmental Protection Act, 1999 and their regulations, and

(iii) that does not result in and is not likely to result in the disturbance, damage, destruction or removal of a marine mammal;

(j) any movement or other activity of a ship, submarine or aircraft if the movement or other activity is carried out for the purpose of

(i) public safety, law enforcement or national security or for the exercise of Canadian sovereignty and the ship, submarine or aircraft is owned or operated by or on behalf of Her Majesty in right of Canada or by a foreign military force acting in cooperation with, or under the command or control of, the Canadian Forces, or

(ii) an emergency response under the direction, command or control of the Canadian Coast Guard; and

(k) any activity carried out for the purpose of public health and safety.

REPORTING OF ACCIDENTS

8. Every person who is involved in an accident that is likely to result in any disturbance, damage, destruction or removal prohibited under section 6 shall, within two hours after its occurrence, report the accident to the Canadian Coast Guard.

COMING INTO FORCE

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

[15-1-o]

Footnote a
 S.C. 1996, c. 31