ARCHIVED — Vol. 151, No. 25 — June 24, 2017

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Laurentian Channel Marine Protected Area Regulations

Statutory authority

Oceans Act

Sponsoring department

Department of Fisheries and Oceans

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: The Government of Canada has committed to increase the proportion of Canada’s marine and coastal areas that are protected to 5% by 2017, and to 10% by 2020. As part of this commitment, the Laurentian Channel Marine Protected Area Regulations (proposed Regulations) would provide protection to an additional 0.2% of Canada’s oceans located off the southwest coast of Newfoundland and Labrador. A scientific risk assessment has shown that some ongoing and potential future activities, such as commercial fisheries and the installation of submarine cables in some areas, pose risks to the valuable ecosystem features of the areas. The proposed Regulations would help to conserve the area’s biodiversity through the protection of key species and habitats, and ecosystem structure and function from human activities that pose a risk.

Description: The proposed Regulations would be made under subsection 35(3) of the Oceans Act to designate the specified portion of the Laurentian Channel as a Marine Protected Area (MPA), covering an area of 11 619 km2. The proposed Regulations would prohibit any activity that disturbs, damages, destroys or removes from the Laurentian Channel MPA a living marine organism or any part of its habitat. The proposed Regulations would allow certain exceptions to the prohibitions for specified activities, if they are compatible with the conservation objectives of the MPA.

The proposed Regulations would establish two different management zones within the MPA, each of which would be composed of two spatially distinct areas and would provide varying levels of protection, offering the most stringent protection to the areas that need it most. This design would prohibit certain human activities, such as oil and gas development, submarine cable installation and anchoring, within a core protection zone where the ecosystem features and functions of the area are susceptible to their impacts. However, those human activities would be allowed within the adaptive management zone because they would not significantly impact the conservation objectives.

Cost-benefit statement: The proposed Laurentian Channel MPA would be beneficial for Canadians because of the potential for important long-term ecological benefits gained through the conservation and protection of unique and productive ecosystems. Important components of the marine ecosystem, such as Smooth Skate, Northern Wolffish, Black Dogfish, Porbeagle Shark, Leatherback Sea Turtle, and sensitive benthic habitats represented by coral (sea pens), would be protected through the management of human activities within the MPA. While difficult to forecast with specificity, the establishment of this MPA is anticipated to promote the replenishment of depleted stocks within its boundaries and potential spillover to surrounding areas.

The prohibition of recreational and commercial fishing is not anticipated to result in significant costs to Canadian businesses. Due to the offshore location of the proposed MPA, recreational fishing in the area is limited; therefore, the incremental impact on recreational fishery is anticipated to be negligible. Most of the commercial fishing activity in the area occurs outside the proposed MPA’s boundaries, and commercial fishing activity within its boundaries has been low in recent years. The average value of fisheries occurring inside the proposed MPA represents less than 1% of the annual average landed value of $57 million in the larger fish management area in which the MPA is located.

Assuming that affected fisheries do not move their fishing effort to areas outside the proposed MPA in adjacent fishing areas, the present value of potential costs identified with designation of the MPA relate to fishing and seafood processing industries and are estimated to be approximately $490,000 over the 30-year analysis period. However, these costs are not anticipated to significantly affect the industries’ ability to function and generate revenue.

Costs to the oil and gas industry are anticipated to be negligible, as the proposed Regulations would allow related activities in Zones 2a and 2b of the MPA and seismic activity within an eight-month window throughout the MPA to limit impacts on key migratory species. No significant new restrictions are proposed with respect to marine navigation beyond a prohibition against anchorage in Zones 1a and 1b, which is not expected to result in any incremental costs.

The estimated total annual costs for ecological and compliance monitoring, enforcement and management of the MPA are estimated to be approximately less than $325,000 (nominal value) per year. This represents a total cost of $4.3 million in present value terms over a 30-year period (discounted at 7%).

“One-for-One” Rule and small business lens: The “One-for-One” Rule does not apply, as the proposed Regulations do not impose new administrative burden costs on business. The small business lens does not apply, as the expected nationwide costs of the proposed Regulations are well below the $1 million annual threshold and are not disproportionately higher for small business.

Domestic and international coordination and cooperation: The establishment of the Laurentian Channel MPA would contribute directly to Canada’s efforts to implement measures in line with several international agreements, the most prominent of which is the Convention on Biological Diversity (CBD). In 2010, the Conference of the Parties to the CBD established the following target, known as Aichi Target 11: “By 2020, at least 17 per cent of terrestrial and inland water, and 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well-connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscapes and seascapes.” By designating Canada’s largest MPA under the Oceans Act, the proposed Regulations would ensure the long-term conservation of an ecologically and biologically important area and contribute to the achievement of Aichi Target 11.

Background

The Laurentian Channel is a deep submarine valley over 1 200 km long, which extends from where the St. Lawrence Estuary and the Saguenay River meet to the edge of the continental shelf off Newfoundland and Labrador. A portion of this area was identified as an Ecologically and Biologically Significant Area (EBSA) in 2007 and was selected as an Area of Interest (AOI) in 2010 by the Minister of Fisheries and Oceans Canada for consideration as a Marine Protected Area (MPA).

The proposed Laurentian Channel MPA is an ecologically important area, providing critical habitat for a variety of marine species, some of which are fished commercially and others that are not. Non-commercial species are part of the marine ecosystem in the area. More specifically, Black Dogfish and young and juvenile Smooth Skate are present in high numbers throughout the area. Porbeagle Sharks and Basking Sharks move into the area in the spring and reside within the proposed MPA throughout the summer. One of only two known Porbeagle Shark mating grounds occurs within the proposed boundaries. Two species at risk, the Northern Wolffish and the Leatherback Sea Turtle, have been found in the area. In addition, at least 20 species of whales and dolphins have been observed in the area, as it is a critical feeding area and migration route into and out of the Gulf of St. Lawrence.

The Laurentian Channel contains significant coral and sea pen populations, representing sensitive benthic habitats. Coral and sea pens are important to the ecosystem and depend on the integrity of the sands and muds in the area for their survival. Of the variety of coral species found in the area, sea pens have been recorded in the greatest numbers and diversity, with the Laurentian Channel being described as having the highest sea pen concentrations within the entire Newfoundland and Labrador Shelves Bioregion.

Human activities and related impacts

A science-based risk assessment completed in 2012 determined that some ongoing activities (fishing, vessel traffic) and some potential activities (oil and gas exploration and development, submarine cable installation, anchoring) in the proposed Laurentian Channel MPA were incompatible, to varying degrees, with the conservation objectives for this area.

This area is also a known migration route for various species of fish and pinnipeds. Many of these vulnerable species are present in and/or frequent the Laurentian Channel in ways that necessitate habitat protection due to the particular ecological and geographic features of the area. These animals are vulnerable to activities currently occurring in the area, and in particular to fishing equipment and methods, marine traffic, and other forms of human-related contact, as they can cause harm to these species and their habitat.

The area within the proposed MPA has historically been used by commercial fishermen, shipping vessels, and Indigenous peoples for centuries. At present, impacts from traditional use by Indigenous peoples are negligible, as the Miawpukek First Nation is the only Indigenous group with a food, social and ceremonial (FSC) licence on the south coast of Newfoundland and Labrador, but members of this First Nation do not fish within the proposed MPA.

Commercial resources in the area have included Atlantic Cod, Redfish, Monkfish, Snow Crab and Atlantic Halibut, and are harvested in accordance with the Fisheries Act, the Coastal Fisheries Protection Act and their regulations. Despite existing legislation, non-commercial species have seen their populations continually decline in the area. Additional protections are required to conserve non-commercial species and help ensure future commercial opportunities in the region. The results of the risk assessment have shown that commercial fishing activities are associated with the greatest risk of harm to the conservation objectives and to the overall goal of biodiversity conservation to the proposed MPA. While fishing activity within the proposed boundaries of the MPA has been low in recent years, impacts of commercial fishing activity result in targeted removal, bycatch, and habitat damage. Several species covered by the conservation objectives are also depleted or at risk, and even limited impacts by commercial fishing activity can have severe consequences for these vulnerable populations. For example, on average, 82% of Smooth Skate caught as bycatch in the Newfoundland and Labrador Region is caught in the Laurentian Channel. Trawling has the potential to impact coral such as sea pens through bottom contact, as well as Black Dogfish, Smooth Skate, and Northern Wolffish through incidental catch. Longlines and gillnets have the potential to catch incidental species, and entangle sharks, marine mammals and Leatherback Sea Turtles. Pot gears have been identified as being a significant threat to marine mammals and Leatherback Sea Turtles.

The Gulf of St. Lawrence and the St. Lawrence Seaway, as well as the main shipping lanes between Newfoundland and Labrador and the Maritime provinces, pass through the proposed MPA. Merchant, cruise, and fishing vessels sail across this passageway. Vessel traffic poses a moderate risk of harm to Leatherback Sea Turtles. However, there are no recorded incidences of collisions with boats documented in Atlantic Canada. Shipping poses a risk to coral (sea pens) to the extent that anchoring can damage and destroy these bottom-dwelling animals. It should be noted that between 4 800 and 12 299 vessels, including merchant, cruise, and fishing vessels, transit through the proposed MPA in an average year with goods headed for destinations across North America. In light of an incomplete understanding of Leatherback Sea Turtle distribution patterns at this time, it has not been possible to identify conservation measures for marine vessels in transit that would be effective and justifiable given the potential impacts to the Canadian economy. Other threats to the Leatherback Sea Turtle while at sea include entanglement in fishing gear, marine pollution, and acoustic disturbances.

There is currently no oil production in the proposed MPA; however, there was an exploration licence for drilling that expired in 2014, and seismic and other geophysical surveys have occurred and may still occur in the area. Oil and gas activities can cause permanent harm to coral and sea pens and were therefore determined to be incompatible with conservation efforts for these species. However, the effect of oil exploration and production on fish, marine mammals and sea turtles is considered reversible due to the species’ behaviour. Unlike coral, these species are mobile and can move away from noises and other disturbances. Results from environmental effects monitoring programs from Newfoundland and Labrador offshore oil and gas production have shown no significant adverse effects. It is important to note that the proposed MPA would be located over a natural gas field and a substantial gas hydrate resource, not viable oil fields. Therefore, the potential risk of oil spills and blowouts from a gas development is limited. Seismic surveys are only considered to be a threat to certain species during sensitive periods. The area has low wave and tidal energy; there is a low level of interest for developing these industries from energy development industries.

Submarine cable installation has historically occurred in the area inside the proposed MPA, though most installations are inactive. Once cables are installed, their use causes no significant harm to the marine ecosystem, and the installations may even be used as habitat or attachment sites for certain organisms. A typical cable installation may involve two or more corridors, each with a footprint of less than 5 m in width. Even though the installations of submarine cables pose a low risk due to their small footprint, any excavation or impact to the sea floor can result in direct mortality of coral as a result of breaking, crushing and burying. These activities must therefore be prevented from occurring in areas where sensitive sea pens are concentrated.

Issues

The proposed Laurentian Channel MPA would be located off the southwest coast of Newfoundland and Labrador and lies within the Newfoundland and Labrador Shelves Bioregion, and within North Atlantic Fisheries Organization (NAFO) Regulatory Area 3P (3Ps and 3Pn). A science-based risk assessment has demonstrated that continued fishing pressure would not align with a protection or recovery conservation objective. The long-term prohibition of current and potential future fishing activity from this area is needed to alleviate a leading threat to the conservation objectives of the proposed MPA, including endangered species such as the Leatherback Sea Turtle. Further, restrictions on seismic activity are needed to protect Leatherback Sea Turtles and Porbeagle Sharks while they are in the area in the highest density. Activities such as drilling, which pose a risk to sensitive benthic habitats (e.g. sea pens) must be prohibited from areas where these species are present in high concentrations to ensure alignment with the conservation objectives.

Although current legislation helps regulate activities that could impact the features and functions of the Laurentian Channel area, there is no overarching management plan or framework in place to limit or mitigate the impacts of existing or emerging human activities that pose a risk to the conservation objectives. Unanticipated pressures in other areas or environmental conditions could shift high-risk fishing to the area in the future. Therefore, a more cohesive and predictable regulatory framework in the form of an MPA made through regulations under the Oceans Act is considered necessary to focus efforts on the long-term conservation and protection of the area’s important ecological and biological features. This would be achieved not only through the prohibition of activities in areas where they pose the greatest risk of harm, but also through the implementation of a management plan that would guide scientific research and other authorized activities in the area.

Under the United Nations Convention on the Law of the Sea, Canada’s authority to regulate international navigation rights within Canada’s exclusive economic zone is limited. Nevertheless, based on experience with other MPAs, efforts will be made to enhance stewardship and awareness of the area within the shipping community (e.g. Notices to Mariners).

Objectives

The primary objective of the Laurentian Channel MPA is to conserve biodiversity through the protection of key species and their habitats, ecosystem structure and function, and through scientific research. The most effective way to preserve biodiversity and ensure the survival of species is through long-term habitat protection. The proposed MPA regulations aim to foster biodiversity conservation in the Laurentian Channel through the reduction of risk and harm posed by human activities.

Supporting the overarching goal and recognizing the important ecological features of the Laurentian Channel, the following conservation objectives were developed for the proposed MPA:

  1. Protect coral, particularly significant concentrations of sea pens, from harm due to human activities (e.g. fishing, oil and gas exploratory drilling, submarine cable installation and anchoring) in the Laurentian Channel MPA.
  2. Protect Black Dogfish from human-induced mortality (e.g. bycatch in the commercial fishery) in the Laurentian Channel MPA.
  3. Protect Smooth Skate from human-induced mortality (e.g. bycatch in the commercial fishery) in the Laurentian Channel MPA.
  4. Protect Porbeagle Sharks from human-induced mortality (e.g. bycatch in the commercial fishery, seismic activities) in the Laurentian Channel MPA.
  5. Promote the survival and recovery of Northern Wolffish by minimizing the risk of harm from human activities (e.g. bycatch in the commercial fishery) in the Laurentian Channel MPA.
  6. Promote the survival and recovery of Leatherback Sea Turtles by minimizing the risk of harm from human activities (e.g. entanglement in commercial fishing gear, seismic activities) in the Laurentian Channel MPA.

Description

The proposed Regulations would be made pursuant to subsection 35(3) of the Oceans Act to establish the Laurentian Channel MPA. The MPA would cover an area of 11 619 km2.

Prohibition

The proposed Regulations would prohibit any activity within the designated boundaries that disturbs, damages, destroys or removes any living marine organism or any part of its habitat, or that is likely to do so. The proposed MPA would include the water column, seabed, and subsoil to a depth of 5 m, which is considered the depth of the active biological layer necessary to support the conservation objectives for the proposed MPA.

MPA boundaries and management zones

The proposed Regulations would designate the Laurentian Channel MPA boundaries and its internal management zones (Figure 1). Within the designated management zones, specific activities would be allowed (as exceptions to the prohibition), insofar as they do not compromise the overall conservation objectives of the MPA. The zoning would provide varying levels of protection within the MPA, offering the most stringent protection to the areas that need it most.

Core protection zone (CPZ)

The CPZ would comprise two spatially distinct areas (Zone 1a and Zone 1b) that are strict protection zones designed to provide the highest level of protection to areas containing high concentrations of coral and sea pens. The only activities that would be allowed within the CPZ are activities for public safety and national security; Aboriginal food, social and ceremonial fisheries; and marine navigation (excluding anchoring). Other activities that would be allowed if they are approved by the Minister as part of an activity plan or if they meet the requirements specified in the proposed Regulations are those directly related to managing the MPA (e.g. scientific monitoring)and seismic surveying within an eight-month window. Zone 1a is approximately 1 495 km2 and Zone 1b is approximately 614 km2. The CPZ would ensure that areas of high concentrations of coral and sea pens, which are fixed to the sea floor and are greatly affected by activities that impact the sea floor such as trawling, oil and gas activity, anchoring, and submarine cable installation, would be protected over the long term.

Adaptive Management Zone (AMZ)

Zone 2a and Zone 2b, the AMZ, are proposed to allow varying levels of use and would accommodate those activities that are compatible with the conservation objectives of the MPA as described above. Given that species of concern may be found within the AMZ, all commercial fishing would be prohibited as this activity poses a high risk to these particular species. (see footnote 1) Temporal restrictions for seismic surveys would also apply. Zone 2a is approximately 4 034 km2 and Zone 2b is approximately 5 476 km2. All species are affected by commercial fishing, but impacts from oil and gas activity and submarine cables are considered negligible. Therefore, oil and gas activities would be allowed in the AMZ. In addition, marine navigation, including anchoring, would be allowed in this area as it does not present a particular threat to the marine life in this portion of the MPA. The best coral distribution data available has shown that there are limited concentrations of these sensitive benthic habitats in the AMZ. The exceptions for activities in the AMZ would therefore not result in misalignment with the conservation objectives.

Figure 1: Map showing an illustration of the proposed Laurentian Channel Marine Protected Area, its boundaries and its management zones

Detailed information can be found in the surrounding text.

Activities to be allowed within the MPA by the proposed Regulations

Oil and gas activities: Certain oil and gas activities would be allowed within a specified portion of the MPA provided they are carried out in accordance with relevant legislation and are not likely to destroy marine habitat in the proposed MPA. The proposed Regulations would allow oil and gas exploration and production activities within Zones 2a and 2b. Subject to relevant legislation, activities related to construction, maintenance, or decommissioning of oil and gas pipelines, flowlines, and/or submarine infrastructure would be allowed only in Zones 2a and 2b so long as they are not likely to destroy marine habitat in the proposed MPA.

Seismic activity: Seismic activity would be prohibited throughout the proposed MPA from the beginning of August to the end of November to protect species covered by the conservation objective during sensitive life cycle periods (i.e. Leatherback Sea Turtle foraging and Porbeagle Shark mating). However, seismic activity would be allowed between December 1 and July 31, so long as it is not likely to destroy marine habitat in the proposed MPA. This restriction coincides with the increased presence of marine mammals in the area.

Fishing: Aboriginal food, social and ceremonial fisheries would, subject to relevant legislation, continue to be allowed throughout the MPA. All other commercial and recreational fishing would be prohibited.

Marine navigation: All navigation would be allowed within the proposed MPA, with the exception of anchoring, which would be prohibited in Zones 1a and 1b to protect the sensitive benthic coral and sea pen concentrations.

Cables: Installation, repair and maintenance of submarine cables would continue to be allowed in Zones 2a and 2b so long as they are not likely to destroy marine habitat in the proposed MPA. These activities would be prohibited in Zones 1a and 1b due to the level of risk associated with their impact to coral and sea pen concentrations.

Scientific research, monitoring, and education: Scientific research, scientific monitoring, and educational activities would be permitted throughout the MPA subject to the Minister’s approval of an activity plan. Applicants would be required to submit an activity plan containing the information listed in section 6 of the proposed Regulations for approval by the Minister. Activity plan information would be used to help better evaluate the potential impacts of the proposed activity on the conservation objectives of the MPA and would serve as the basis for decisions on whether or not to approve the activity.

Safety and security: Activities related to public safety, national defence, national security, law enforcement, or in response to an emergency (including environmental emergencies) would be allowed throughout the MPA.

Regulatory and non-regulatory options considered

A risk assessment has shown that some ongoing (e.g. fishing) and potential future activities (e.g. oil and gas exploration and development in some portions of the Laurentian Channel) pose a risk to conservation objectives. Existing regulatory tools, applied independently, do not adequately mitigate those risks.

Certain marine activities are already regulated under provisions of the Fisheries Act, the Species at Risk Act and other federal legislation, whose purposes differ from that of the Oceans Act. Fisheries and Oceans Canada (DFO) acknowledges that voluntary measures are employed by some sectors to limit impacts to the area’s ecology (e.g. voluntary avoidance of certain areas to limit damage to coral and sponges from bottom contact fishing gear). However, these measures are not enforceable and create inconsistencies within the relevant sectors.

Each MPA is uniquely designed to achieve site-specific conservation objectives while minimizing, to the extent possible, socio-economic impacts on stakeholders. The activities prohibited or allowed in each MPA are determined on a case-by-case basis through a risk assessment of the potential impacts of human activities on the achievement of the respective conservation objectives. Therefore, the conservation objectives and regulatory approaches for the proposed Laurentian Channel MPA differ from other Oceans Act MPAs. The proposed regulatory framework, including the prohibitions against most fishing, restrictions on anchoring, and spatial/temporal restrictions on oil and gas and seismic activities, has been assessed to ensure its alignment with the conservation objectives of the MPA.

Benefits and costs

Benefits

The incremental benefits of the MPA are largely related to conserving and protecting unique, sensitive and productive ecosystems. MPAs generally have been demonstrated to function as both a refuge for and a source of commercially and socially valuable marine species. The establishment of an MPA would mitigate direct and indirect risks to migratory populations and protect fish, marine mammals, invertebrates, coral, and benthic fauna during critical life cycle stages. Protection of multiple habitat elements for fish, marine mammals, invertebrates, coral, and benthic fauna, which are critical to certain key life cycle stages (including mating, spawning, nursing, and feeding), would contribute to general health of the marine area. While difficult to quantify due to lack of data, international literature suggests that there is potential for increases in the abundance, diversity, and productivity of marine organisms through the designation of MPAs. In the context of the proposed Laurentian Channel MPA, important components of the marine ecosystem, such as Smooth Skate, Northern Wolffish, Black Dogfish, Porbeagle Shark, Leatherback Sea Turtle, and sensitive benthic habitats represented by coral and sea pens, would be protected through the management of human activities within its boundaries.

Additionally, designation of the MPA is also anticipated to provide social and cultural benefits to the people residing in the region and to the economy as a whole. Subsistence and ceremonial fishing contribute to preserving traditional Aboriginal lifestyles in the region and would continue to do so while serving as an important source of food. As fish stocks improve over time, opportunities to maintain traditional uses would be enhanced under the proposed regulatory requirements.

Furthermore, the proposed MPA designation is also expected to contribute to non-consumptive use benefits that stem from the value held by Canadians for the continued existence and protection of unique habitat and species. As well, important marine features, and the value society places on MPAs and their current and future contribution to a strong and healthy ecosystem would be augmented.

The proposed MPA designation would promote focused scientific research in an area protected from the impacts of human activities that pose a risk. Therefore, the proposed MPA would provide an opportunity for controlled scientific research within Canada, not only for the federal government, but also for academia and research institutions.

Costs
Government

Costs to the Government of Canada for the administration and management of an MPA include costs associated with activity plan assessments and approvals, scientific research, information management, ecosystem monitoring, surveillance and enforcement, emergency response, as well as public consultation, education and stewardship programs. The estimated total annual costs for ecological and compliance monitoring, enforcement and management of the MPA would be approximately less than $325,000 (nominal value) per year. This represents a total cost of $4.3 million in present value terms over a 30-year period (discounted at 7%). These costs are associated with a range of activities including, but not limited to, vessel costs, technical equipment, an aerial surveillance program, and a coordinated inter-agency approach to compliance and enforcement that reflects the site’s remote offshore location.

Commercial fishing and seafood processing sector

Costs associated with fisheries prohibitions in the MPA can be categorized as forgone revenue, (see footnote 2) increased variable fishing costs and/or compliance costs. The proposed MPA represents a geographic subset of larger fishing areas where fishing enterprises or fleets have defined fishing privileges with quota allocations. In addition, fishing activity within the proposed boundaries of the MPA has been low in recent years. The average annual value of fisheries occurring inside the proposed MPA represents less than 1% of the total value of the larger fish management area within which the MPA is contained.

Prohibition of fishing activity throughout the proposed MPA is not expected to result in any significant loss of landings because it is anticipated that the fishing enterprises could make up for the loss in landings in the adjacent areas, where they would retain fishing privileges. Furthermore, it is possible that fishing in the adjacent areas will actually be enhanced in the longer term due to the presence of the MPA. The degree to which such offsetting activities would occur cannot be estimated with certainty at this time but are expected to be low impact. The maximum possible losses are estimated below, assuming zero redirection of effort.

Based on the most recent average catch data for the 2012–14 period, the maximum nominal value of the annual loss of landed revenue from commercial fisheries as a result of the proposed Regulations is estimated to be $112,500 with an associated loss of profit of about $20,800 per year. The proposed Regulations are anticipated to primarily impact annual landed values for the Redfish, Whelk, Atlantic Halibut and Snow Crab fisheries. The total present value of the incremental costs (i.e. loss of profits) to the commercial fishing industry is estimated at approximately $276,000 (over a 30-year period discounted at 7%). The incremental costs of the proposed Regulations could potentially impact 11 enterprises in the affected fisheries, to varying degrees, that had landings from the proposed MPA during the 2012–14 period. Although the level of impact may vary by enterprise, none of the enterprises have a high degree of dependency on the MPA.

Fish harvesters would be required to comply with the proposed MPA. Vessels that fish near this offshore area are generally equipped with Global Positioning System technology to support efficient fishing operations and to respect existing fishing boundary constraints. Therefore, associated compliance costs are expected to be negligible.

The maximum anticipated loss of landings from fisheries that are prohibited from the proposed MPA is estimated to result in an additional reduction of $161,000 (nominal value) in revenue per year for seafood processors. The loss in profits associated with these reductions in processing activity is estimated to be about $16,100 (nominal value) per year. The total present value of the incremental costs (i.e. loss of profits) to the seafood processing industry is estimated at approximately $214,000 (over a 30-year period discounted at 7%).

Oil and gas exploration and development

Parts of the proposed MPA reside over two major sedimentary basins, both of which have low conventional oil and gas potential. The proposed Regulations would prohibit direct drilling in Zones 1a and 1b of the MPA, and would limit seismic activity to an eight-month window throughout the MPA. At present, there are no exploratory licences and/or active wells in the proposed MPA. Natural Resources Canada (NRCan) has indicated that due to the relatively low resource potential and level of front-end investment required, an oil project was not viewed as viable for development. Furthermore, based on forecasted natural gas prices and representative cost estimates, the return on investment for a natural gas project was deemed marginal.

Given the scale of the CPZ spatial limitation, it is anticipated that the only associated future costs to industry may be an incremental increase in fixed and variable costs associated with directional versus conventional drilling and extraction. Because of the emergent nature of drilling technology it is not possible to estimate these potential incremental costs.

Temporal limitations on seismic surveys would limit activity within the proposed MPA to an eight-month window from December 1 to July 31. Consultations with industry demonstrated that an effective seismic program can be conducted in a three-month window with average 3 m sea conditions, which is commonly viewed as the operational limit. As the weather and sea conditions in the area are highly variable and unpredictable, the proposed time frame identified in the exception for seismic surveys is necessary to ensure operational safety. Also, this approach aligns with the conservation objectives, as key migratory species would not be present in the area within that time frame. Therefore, the proposed Regulations are not anticipated to result in any incremental increase in costs associated with undertaking seismic activities.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business. No commercial enterprises are carrying out the activities subject to the requirement to prepare and submit an activity plan for scientific and educational activities in the MPA.

Small business lens

The small business lens does not apply to this proposal, as there are no significant increased costs to small businesses as a result of these proposed Regulations. The administrative and compliance costs associated with the proposed MPA are expected to be well below the $1 million threshold.

Consultation

The AOI selection process and subsequent MPA development process have been transparent and participatory, including extensive consultations initiated in 2008, so that any potential issues could be addressed early on. Through Advisory Committee and bilateral meetings, DFO has completed over 130 consultations with more than 30 stakeholder groups throughout the MPA designation process, including AOI selection, ecological and socio-economic assessments, establishment of conservation objectives, boundary delineation, and management scenarios. By selecting this portion of the Laurentian Channel as the AOI, DFO has maintained the site’s significant conservation value while minimizing potential impacts on resource users. DFO negotiated spatial boundaries and regulatory proposals for the proposed MPA that reflect and balance economic concerns with biological conservation objectives.

AOI selection process

DFO consulted with 10 key stakeholder groups during the spring and summer of 2008 to narrow the original list of 11 ecologically and biologically significant areas (EBSAs) identified by DFO to a shortlist of 5 candidate AOI sites. Formal consultations on those 5 EBSAs were conducted between December 2008 and April 2009 with industry, other federal departments, the provincial government, Aboriginal groups, environmental organizations, and other stakeholders. In addition to comments that were recorded during these consultations, participants were also encouraged to provide written submissions. Formal consultation sessions were conducted with 22 groups in total. On World Oceans Day (June 8, 2010) the Laurentian Channel was announced as a new AOI for potential designation as an MPA under the Oceans Act.

Laurentian Channel Advisory Committee

The Laurentian Channel Advisory Committee was created in 2011 to actively engage stakeholders and other government departments in the development of regulatory measures, plans, and strategies for MPA management and to provide advice to the DFO Minister on these matters. The Committee, chaired by DFO, includes representatives of other federal departments, the Government of Newfoundland and Labrador, the Canada-Newfoundland and Labrador Offshore Petroleum Board, the Miawpukek First Nation, the fishing industry (inshore and offshore representative organizations), conservation organizations, and academia. Through this Committee, all stakeholders and partners have had, and will continue to have, direct involvement in the MPA development and management processes. In addition, several key stakeholders participated in the DFO Science-led Biophysical Regional Assessment Process and preparation of the Social, Economic, and Cultural Overview. All Committee members were consulted about the regulatory intent before the regulatory proposal was finalized.

MPA design and management proposal

The key elements of the proposed regulatory framework for this MPA were summarized in a document titled “Management Approach” and distributed to the Advisory Committee and other stakeholders during the summer of 2014. Since that time, more than 30 meetings have been held with stakeholders. To ensure that all interested parties would have access to the latest information available, 26 of those meetings have taken place since April 2016. These meetings focused on the Government’s marine conservation targets, the regional plan to meet those targets and, more specifically, the proposed designation of the Laurentian Channel MPA in 2017. Participants have included provincial and federal representatives, Nunatsiavut Government, Miawpukek First Nation, conservation organizations, and industry.

A summary of the feedback received during the MPA development process is provided below. No additional concerns regarding the proposed Laurentian Channel MPA have been raised with DFO in the most recent meetings with the listed stakeholders.

Commercial fishing sector
Fishery prohibitions

Throughout the consultation process, some members of the fishing industry expressed opposition to the MPA due to concerns about the prohibition that would eliminate existing fisheries within its boundaries. DFO subsequently negotiated spatial boundaries and regulatory proposals for the proposed MPA that reflect and balance economic concerns with biological conservation objectives. Furthermore, it was demonstrated that the proposed Regulations would only create a displacement of effort, not a reduction in catch nor an increase in costs. It is anticipated that affected fishing enterprises would make up for the loss of landings (see footnote 3) due to the proposed MPA in the adjacent areas where they will continue to have fishing privileges. The prohibition of fishing activity within the proposed MPA is not expected to result in any significant loss of landings and the fishing enterprises are not anticipated to experience any incremental costs. Although the fisheries union is not in disagreement, some individuals from the inshore fishing sector have expressed concern regarding the intent of the prohibition of fishing while allowing oil and gas activities in the AMZ of the proposed MPA. DFO has based the proposed regulatory framework on the results of the scientific risk assessment, which showed that fishing poses high risks to most of the conservation objectives. DFO is committed to working with all stakeholders to develop a management plan that will incorporate new and emerging information.

Adaptive management

Fish harvesters emphasized the need to consider the possible return of historical commercial fisheries to the area. Several questions were related to what would happen in the future if currently depleted stocks rebound within the MPA, and if so, whether fishing would be allowed. As a response, a clear commitment to adaptive management was outlined in the Management Approach document to clarify that “…the MPA will undergo a 5 year adaptive management cycle whereby regulatory measures – including boundaries and allowed activities – will be assessed and all new information reviewed.”

Oil and gas sector
Core protection zone (Zone 1a and Zone 1b)

While there are no current plans for oil and gas production in the proposed MPA or adjacent areas, representatives from the oil and gas industry raised concerns with respect to limitations on potential future activities, as the proposed MPA would overlap with two different sedentary basins. (see footnote 4) Given the original size and shape of Zone 1a and Zone 1b, a significant portion of the proposed area would have been inaccessible to directional drilling. Subsequent modifications to the boundaries of Zone 1a and Zone 1b have addressed this concern while capturing the significant concentrations of sea pen areas within the proposed MPA to ensure compatibility with the conservation objectives.

Seismic activity temporal restriction

Consultations with representatives of the oil and gas industry active in the area demonstrated that an effective seismic program can be conducted in a three-month window of time. The temporal limitations in the proposed Regulations, which allow for these activities any time within an eight-month window, accommodate the industry’s needs to operate safely in variable and unpredictable conditions while ensuring that no seismic activity could occur during sensitive periods for the conservation of key species. For example, the restriction of seismic activity throughout the MPA would protect Leatherback Sea Turtles when they are found in the highest concentrations in this area (August and September).

Province of Newfoundland and Labrador

The Province of Newfoundland and Labrador has been engaged in the development of the proposed MPA. The most significant issue raised by the Province was the size of the CPZ in the original policy proposal. A reduction in the size of the CPZ was requested since oil and gas exploration (with the exception of seismic surveying) and production are prohibited in these areas. Subsequent modifications to the boundaries of the CPZ have addressed this concern while still capturing the significant concentrations of sea pen areas within the proposed MPA to ensure compatibility with the conservation objectives. No further issues were identified in the most recent communication between DFO and the Province in 2016.

Government of France (Saint-Pierre and Miquelon)

A French territory in North America is located 25 km southwest of Newfoundland and Labrador, with an Economic Exclusion Zone adjacent to the proposed MPA. The archipelago of Saint-Pierre and Miquelon is composed of eight islands, totalling 242 km2. The Government of France (Saint-Pierre and Miquelon) was consulted on the proposed MPA throughout the MPA development process and has not expressed any concerns about the proposal. The MPA will not cause any reductions in the commercial French fishing quotas or capabilities.

Conservation organizations and academia
Core protection zone

Representatives from conservation organizations and academia disagreed with the reduction in size of the CPZ, as they suggested it was based exclusively on possible economic gains in the future. The original boundaries of the CPZ captured a larger than necessary area to safeguard coral, based on distribution data available at the time. The proposed CPZ is reduced in size, but DFO is of the view that it still encompasses the significant concentrations of sea pen areas that were identified through a formal DFO Canadian Science Advisory Secretariat process and remains large enough to achieve the conservation objectives.

Oil and gas activity

Representatives of environmental non-governmental organizations (ENGOs) are opposed to allowing oil and gas activity inside an MPA. (see footnote 5) However, they have expressed support for the proposed MPA designation and agree with the overarching conservation goal. DFO and other stakeholders engaged ENGO representatives through the Advisory Committee over the four-year period from 2010 to 2014. All parties have agreed that the Oceans Act does not require that MPAs be fully closed to all human activities if these activities do not compromise the conservation objectives of the area. DFO is of the view that the current proposal protects important conservation objectives that are based on risk assessment results.

Indigenous groups

All Indigenous groups and associations have been consulted during the MPA establishment process, including the Miawpukek First Nation, the Innu Nation, the Federation of Newfoundland Indians, the NunatuKavut Community Council, and the Nunatsiavut Government. No issues of concern regarding the proposed MPA designation, the zoning specifications or the regulatory proposal were raised by Indigenous groups. Most of these groups are located in Labrador and were consulted with respect to the proposed MPA from 2009 to 2013. The Miawpukek First Nation is present on the south coast of Newfoundland and Labrador and has elected to participate on the Laurentian Channel Advisory Committee, which provides an additional forum for engagement on the designation process.

Rationale

The designation of the proposed Laurentian Channel MPA would offer long-term protection of an area with important sensitive species and habitat. Species would be protected during migration, spawning, and pupping periods, and human-imposed impacts to sensitive coral species would be reduced. The establishment of this area as an MPA would contribute to the regeneration of species and work to maintain the integrity of the marine habitats and ecosystems that they rely on.

The Department has engaged in multiple consultations with more than 30 stakeholder groups over the past four years to inform the development of the boundaries of the MPA and the management approach. The AMZs have been designed and modified during consultations in order to factor in as many concerns presented by these stakeholders, while still maintaining protection and conservation as the primary goal. Risk assessments and consultations with stakeholders have shown that there is little objection to the establishment of the MPA, and accommodations have been made in order to address the various uses of the area.

Designation of the proposed Laurentian Channel MPA by regulation would further demonstrate Canada’s efforts to implement measures in line with several national and international agreements. The proposed MPA would generate an increase of 0.2% in the total protected area of Canada’s oceans and would be Canada’s largest MPA to date.

Implementation, enforcement and service standards

As the lead federal authority for the proposed MPA, DFO would have overall responsibility for ensuring compliance with, and enforcement of, the proposed Regulations. This would be undertaken through the Department’s legislated mandate and responsibilities under the Oceans Act and the Fisheries Act, as well as other legislation applicable to fisheries conservation, environmental protection, habitat protection and marine safety. Enforcement officers designated by the Minister according to section 39 of the Oceans Act would enforce the proposed Regulations for these areas. Enforcement of the proposed Regulations and offences would be dealt with under section 37 of the Oceans Act.

Complementary to the direction provided by the proposed Regulations, an MPA management plan would be developed following designation to provide further guidance on the proposed Regulations and to implement a comprehensive set of conservation and management strategies and measures for the MPA. The management plan would clearly define the MPA’s purpose and management priorities over a five-year period, address matters such as ecological monitoring, enforcement, compliance, and stewardship, and provide the details required to ensure that the rationale for management decisions, prohibitions, and activity approvals is clearly justified and understood.

Website materials would also be developed to engage the public and share information about the MPA, including a summary of information provided in the management plan, and guidelines and best practices for conducting activities within the site. Time frames and information requirements for the activity plan submission process would be outlined in guidance documents and the MPA management plan.

Compliance and enforcement activities carried out by DFO fishery officers would include vessel and aerial patrols to ensure compliance with fishing licence conditions and closure areas. Fisheries activities within the proposed MPA would also be monitored through other mechanisms, including the At-Sea Observer Program, fishing logbooks, and the Vessel Monitoring System. Using these data sources, automated reports on fishing activity in the MPA would be generated as often as daily as part of an existing compliance monitoring program for MPAs in the Maritimes Region.

Contravention of the proposed Regulations would carry fines of up to $500,000 under section 37 of the Oceans Act. Contraventions of activity plan approvals and conditions could also result in charges under other applicable Canadian legislation.

Contacts

Christie Chute
Manager
Marine Conservation Program
Integrated Oceans Management
Department of Fisheries and Oceans
200 Kent Street
Ottawa, Ontario
K1A 0E6

Stephen Snow
Division Manager, Oceans
Department of Fisheries and Oceans
Northwest Atlantic Fisheries Centre
80 East White Hills
St. John’s, Newfoundland and Labrador
A1C 5X1

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 35(3) of the Oceans Act (see footnote a), proposes to make the annexed Laurentian Channel Marine Protected Area 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 Christie Chute, Manager, Marine Conservation Programs, Integrated Oceans Management, Department of Fisheries and Oceans, 200 Kent Street, Room 12W127, Ottawa, Ontario K1A 0E6 (email: Oceans-NL@dfo-mpo.gc.ca).

Ottawa, June 19, 2017

Jurica Čapkun
Assistant Clerk of the Privy Council

Laurentian Channel Marine Protected Area Regulations

Interpretation

Definition of Marine Protected Area

1 (1) In these Regulations, Marine Protected Area means the area of the sea that is designated by section 2.

Geographical coordinates

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

Geographical coordinates for points

(3) The geographical coordinates of the points referred to in sections 2 and 3 are set out in the schedule.

Designation

Marine Protected Area

2 (1) The area of the sea depicted in the schedule that is bounded by the following lines is designated as the Laurentian Channel Marine Protected Area:

  • (a) a series of rhumb lines drawn from points 1 to 8;
  • (b) a geodesic line drawn from point 8 to point 9; and
  • (c) a series of rhumb lines drawn from points 9 to 18 and then back to point 1.

Seabed, subsoil and water column

(2) The Marine Protected Area consists of the seabed, the subsoil to a depth of five metres and the water column above the seabed.

Management Zones

Description

3 The Marine Protected Area consists of the following management zones, each of which is depicted in the schedule:

  • (a) Zone 1a, which is bounded by a series of rhumb lines drawn from point 6 to point 7, then to points 19 to 23 and then back to point 6;
  • (b) Zone 1b, which is bounded by a series of rhumb lines drawn from points 24 to 27 and then back to point 24;
  • (c) Zone 2a, which is bounded by a series of rhumb lines drawn from points 1 to 6, then to point 23, then to point 22, then to points 14 to 18 and then back to point 1; and
  • (d) Zone 2b, which is bounded by
    • (i) a series of rhumb lines drawn from point 7 to point 24, then to point 27, then to point 26, then to point 25 and then to point 8,
    • (ii) a geodesic line drawn from point 8 to point 9, and
    • (iii) a series of rhumb lines drawn from points 9 to 13, then to point 21, then to point 20, then to point 19 and then back to point 7.

Prohibited Activities

Prohibition

4 It is prohibited to carry out any activity in the Marine Protected Area that disturbs, damages, destroys or removes from the Marine Protected Area any living marine organism or any part of its habitat or is likely to do so.

Exceptions

Permitted activities

5 Despite section 4, the following activities may be carried out in the Marine Protected Area:

  • (a) the navigation of vessels provided that there is no anchoring in Zone 1a or 1b;
  • (b) fishing, other than commercial fishing, that is authorized under the Aboriginal Communal Fishing Licences Regulations;
  • (c) the laying, maintenance and repair of cables in Zones 2a and 2b, provided that it is not likely to destroy the habitat of any living marine organism in the Marine Protected Area;
  • (d) seismic surveying activities that are carried out between December 1 and July 31, provided that they are not likely to destroy the habitat of any living marine organism in the Marine Protected Area;
  • (e) oil or gas exploration and production activities that are carried out in Zones 2a and 2b, provided that
    • (i) they are carried out in accordance with the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act and do not contravene the Species at Risk Act, the Fisheries Act or their regulations, and
    • (ii) they are not likely to destroy the habitat of any living marine organism in the Marine Protected Area;
  • (f) construction, maintenance or decommissioning activities that are carried out in Zones 2a and 2b in respect of an oil or gas pipeline, flow line or submarine infrastructure, provided that
    • (i) they are carried out in accordance with the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act and do not contravene the Species at Risk Act, the Fisheries Act or their regulations, and
    • (ii) they are not likely to destroy the habitat of any living marine organism in the Marine Protected Area;
  • (g) any activity that is carried out for the purpose of public safety, national defence, national security, law enforcement or responding to an emergency; and
  • (h) any activity that is part of an activity plan that has been approved by the Minister.

Activity Plan

Submission to Minister

6 (1) Any person may submit to the Minister an activity plan for the carrying out of scientific research or monitoring or educational activities in the Marine Protected Area.

Content of plan

(2) The activity plan must contain

  • (a) the person’s name, address, telephone number and email address;
  • (b) if the activity plan is submitted by an institution or organization, the name of the individual who will be responsible for the proposed activity and their title, address, telephone number and email address;
  • (c) the name of each vessel that the person proposes to use to carry out the activity, its state of registration and registration number, its radio call sign and the name, address, telephone number and email address of its owner, master and any operator;
  • (d) a detailed description of the proposed activity and its purpose, the methods or techniques that are to be used to carry out the activity and the data to be collected;
  • (e) the geographical coordinates of the site of the proposed activity and a map that shows the location of the activity within the boundaries of the Marine Protected Area;
  • (f) the proposed dates and alternative dates on which the activity is to be carried out;
  • (g) a list of the equipment that is to be used, the means by which it will be deployed and retrieved and the methods by which it is to be anchored or moored;
  • (h) a list of the type and quantity of samples that are to be collected;
  • (i) a list of any substances that may be deposited during the proposed activity in the Marine Protected Area — other than substances that are authorized under the Canada Shipping Act, 2001 to be deposited in the navigation of a vessel — and the quantity and concentration of each substance;
  • (j) a description of the adverse environmental effects that are likely to result from carrying out the proposed activity and of any measures that are to be taken to monitor, avoid, minimize or mitigate those effects;
  • (k) a description of any scientific research or monitoring activity or educational activity that the person has carried out or anticipates carrying out in the Marine Protected Area; and
  • (l) a general description of any study, report or other work that is anticipated to result from the proposed activity and its anticipated date of completion.

Approval of activity plan

7 (1) The Minister must approve an activity plan if

  • (a) the scientific research or monitoring activities set out in the plan are not likely to destroy the habitat of any living marine organism in the Marine Protected Area and
    • (i) will serve to increase knowledge of the habitat of any living marine organism or the biodiversity or the ecosystem structure and function of the Marine Protected Area, or
    • (ii) will serve to assist in the management of the Marine Protected Area; and
  • (b) the educational activities set out in the plan
    • (i) are not likely to damage, destroy or remove from the Marine Protected Area any living marine organism or any part of its habitat, and
    • (ii) will serve to increase public awareness of the Marine Protected Area.

Approval prohibited

(2) Despite subsection (1), the Minister must not approve an activity plan if

  • (a) any substance that may be deposited during the proposed activity is a deleterious substance as defined in subsection 34(1) of the Fisheries Act, unless the deposit of the substance is authorized under subsection 36(4) of that Act; or
  • (b) the cumulative environmental effects of the proposed activity, in combination with any other past and current activities carried out in the Marine Protected Area, are such that the activity is likely to destroy the habitat of any living marine organism in the Marine Protected Area or adversely impact the biodiversity or the ecosystem structure and function of the Marine Protected Area.

Timeline for approval

(3) The Minister’s decision in respect of an activity plan must be made within

  • (a) 60 days after the day on which the plan is received; or
  • (b) if amendments to the plan are made, 60 days after the day on which the amended plan is received.

Post-activity report

8 (1) If the Minister approves an activity plan, the person who submitted it must provide the Minister with a post-activity report within 90 days after the last day of the activity. The report must contain

  • (a) the data collected during the activity;
  • (b) the type and quantity of any sample that was collected, the date of collection and the geographic coordinates of the sampling site;
  • (c) an evaluation of the effectiveness of any measures taken to monitor, avoid, minimize or mitigate the adverse environmental effects of the activity; and
  • (d) a description of any event that occurred during the activity and that was not anticipated in the activity plan, if the event could result in the disturbance, damage, destruction or removal from the Marine Protected Area of any living marine organism or any part of its habitat.

Studies, reports or other works

(2) The person must also provide the Minister with a copy of any study, report or other work that results from the activity and is related to the conservation and protection of the Marine Protected Area. The study, report or other work must be provided within 90 days after the day on which it is completed.

Coming into Force

Registration

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

SCHEDULE

(Subsections 1(2) and (3), subsection 2(1) and section 3)

Laurentian Channel Marine Protected Area

Laurentian Channel Marine Protected Area

[25-1-o]

  • Footnote 1
    These species include but are not limited to coral, sea pens, Black Dogfish, Smooth Skate, Porbeagle Shark, Northern Wolffish and Leatherback Sea Turtle.
  • Footnote 2
    Forgone revenue is the difference between the actual revenue gained and the potential revenue in the absence of regulations. This cost assumes no redirection of fishing efforts to areas outside the MPA.
  • Footnote 3
    Landings are defined as a part of the catch that is put ashore (http://www.dfo-mpo.gc.ca/stats/commercial/land-debarq-eng.htm).
  • Footnote 4
    The Sydney Basin and the Laurentian Sub-basin.
  • Footnote 5
    Consultations were done with the World Wildlife Fund (WWF-Canada), the Sierra Club, the Protected Areas Association of Newfoundland and Labrador, the Canadian Parks and Wilderness Society (CPAWS), and One Ocean.
  • Footnote a
    S.C. 1996, c. 31