Canada Gazette, Part I, Volume 152, Number 26: Banc-des-Américains Marine Protected Area Regulations

June 30, 2018

Statutory authority

Oceans Act

Sponsoring department

Department of Fisheries and Oceans

REGULATORY IMPACT ANALYSIS STATEMENT

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: Human activity is putting increasing pressure on Canada’s oceans. An assessment of the impacts from human activities was conducted and results indicate that certain current and potential human activities within the proposed Banc-des-Américains Marine Protected Area (MPA) could compromise the achievement of the conservation objectives established for this proposed MPA. The current regulatory framework that applies to these activities does not provide comprehensive protection for the species and habitats of this unique site. A more cohesive and predictable regulatory framework in the form of an MPA designated by way of regulations under the Oceans Act is necessary to focus on the conservation and long-term protection of important ecological and biological features of this area, particularly by prohibiting activities where they pose the greatest risk of damage.

Description: The Banc-des-Américains Marine Protected Area Regulations (the proposed Regulations) would be adopted pursuant to subsection 35(3) of the Oceans Act to designate a 1 000 km2 area of the American Bank footnote 1 as an MPA. This would allow for the conservation and protection of the marine ecosystem in this area.

The proposed Regulations would prohibit any activity that disrupts, damages, destroys or removes any living marine organism or any part of its habitat, or that is likely to do so, from the MPA. However, exceptions to this general prohibition would allow certain activities that do not compromise the achievement of the proposed MPA conservation objectives to be carried out therein.

The MPA would be composed of two management zones. More stringent restrictions would apply in the core protection zone, the most sensitive area (Zone 1), while an adaptive management zone (composed of Zone 2a and Zone 2b) would allow activities that are compatible with the conservation objectives to take place therein under certain conditions. Activities carried out to ensure such things as public safety and national security would be permitted throughout the MPA.

Cost-benefit statement: The proposed MPA is intended to limit or mitigate the impacts of certain human activities on this unique ecosystem by conserving and protecting marine species, their habitat and the ecosystem on which they depend. The protection of marine species, their habitats and water quality would reinforce the diversity and productivity in the proposed MPA and could increase the abundance of species having commercial value.

The incremental costs associated with the proposed MPA would be low and are estimated to be approximately $3.84 million (in 2015 Canadian dollars) over a 30-year period, from 2018 to 2047 (using a 7% discount rate), or an average annual value of $0.31 million. The incremental costs associated with the designation of the proposed Banc-des-Américains MPA would affect commercial communal fisheries, commercial fisheries, the tourism industry and the Government of Canada.

“One-for-One” Rule and small business lens: The “One-for-One” rule applies to this proposal because additional administrative costs are expected for tourism companies, as they would be required to prepare and submit activity plans and activity reports. There are currently five tourism companies operating in the proposed MPA. The total administrative cost is estimated at $280 for the five tourism companies, or $60 per company. footnote 2 The small business lens does not apply to the proposed Regulations, as the anticipated additional costs to the industry are estimated to be lower than the $1 million per year threshold.

National and international coordination and cooperation: The designation of the proposed Banc-des-Américains MPA would directly contribute to Canada’s efforts to implement measures consistent with a number of international agreements, the most important of which is the Convention on Biological Diversity (CBD). In 2010, the Conference of the Parties, having subscribed to the CBD, set the following target, referred to as Aichi Target 11: “By 2020, at least 17 per cent of terrestrial and inland water areas 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 landscape and seascape.”

Background

On June 8, 2016, the Minister of Fisheries and Oceans reaffirmed the Government of Canada’s commitment to protect 10% of Canada’s marine and coastal areas by 2020. This commitment is reflected in the mandate letters of the Minister of Fisheries and Oceans and the Minister of the Environment. On behalf of the Government of Canada, the Minister coordinates the establishment of a national network of MPAs. Under the Oceans Act, the Minister of Fisheries and Oceans has the power to recommend the designation of MPAs to the Governor in Council.

In 2011, Fisheries and Oceans Canada (DFO) selected the Banc-des-Américains as an Area of Interest for potential designation as an MPA. The proposed MPA Regulations aim to conserve and protect the biodiversity of the American Bank from damage caused by human activities. The proposed MPA would be designated for special protection under subsection 35(1) of the Oceans Act for four of the five reasons for which MPAs may be designated under the Oceans Act:

The proposed Banc-des-Américains MPA is located in the Gulf of St. Lawrence. Near Cape Gaspé and Bonaventure Island to the west, it extends for 35 km eastward, off the Gaspé coast. The proposed MPA includes the seabed and the subsoil to a depth of 5 m. The proposed MPA is in the Estuary and Gulf of St. Lawrence bioregion and in Regulatory Area 4T of the Northwest Atlantic Fisheries Organization (NAFO). The area’s particular rock formation and the Gaspé current that carries nutrients are the primary reasons for the wide variety of habitats and marine species found in this area.

The proposed MPA is heavily frequented by a number of commercially fished species and by marine mammals, including species listed under the Species at Risk Act (SARA), such as the blue whale (Atlantic population) [listed as an endangered specie] and the North Atlantic Right Whale (listed as an endangered species). Fifteen cetacean species are observed every year in the region, which is a feeding ground and an essential migration route to and from the St. Lawrence Estuary. The Leatherback Sea Turtle (listed as an endangered species under SARA), the largest reptile in the world, has been observed in the area. Currently, the area is home to the Atlantic Wolffish (listed as a species of special concern under SARA), which is particularly fond of the rocky cavities of the area. Moreover, species at risk as rare as the Spotted and the Northern Wolffish (listed as a threatened species under SARA) have been captured in the area. The proposed MPA is an important feeding, spawning, shelter and migration area for many of these species.

The most frequent commercial activities in the area are fishing, boating and tourism activities at sea. An assessment of the impacts of these human activities on the achievement of the conservation objectives of the proposed MPA was conducted. The following paragraphs explain the results of this assessment.

Fishing

Some commercial and recreational fisheries are carried out in the area. Bottom trawling can alter the composition of the habitats and species that live on the sea floor, and even destroy them. In addition, this type of fishing gear catches many non-targeted species (bycatch), footnote 3 some of which are in a precarious state, such as the Atlantic Wolffish or Atlantic Cod. The practice of bottom trawling is therefore considered to be an activity that poses a very high risk of compromising the conservation objectives of the proposed MPA.

Assessment of the use of traps in fishing activities indicated that traps cause disruptions on the seabed, especially when depositing them on the bottom of the seabed and raising them. footnote 4 In addition, this type of gear generates a risk of entanglement with marine mammals. footnote 5 However, very few whales sensitive to this threat frequent the area during the crab-fishing season, when traps are used. Given that the timing of when whales frequent the proposed MPA does not coincide with the timing of the crab fishery, the risks associated with the practice of fishing for crab by way of traps are considered low for these whales and does not compromise the achievement of the conservation objective of the proposed MPA. Gillnets and longline gear are currently used very little (< 1%) in this area, while other fishing gear (hand line, Danish seine, traps) are used on a marginal basis (< 0.1%). However, gillnet is a type of fishing gear that is very damaging to the marine ecosystem footnote 6 and the risk of gillnet entanglement with certain whales, some of which are at risk, is very high. The combined effect of seabed alteration and whale entanglement risks associated with the use of this fishing gear are therefore considered to pose a very high risk to the achievement of the conservation objectives of the proposed MPA.

Marine transportation

Marine transportation is another source of risk. These risks relate to contamination, collisions and noise. The discharge of sewage and the release of grey water from vessels could contaminate the water column and marine sediments, which are both important habitats for marine organisms living in the proposed MPA. The impacts associated with the discharge and release of these substances are considered to have a high risk of compromising the conservation objectives of the proposed MPA.

Some commercial vessels, including tankers, cargo ships, chemical carriers and cruise ships carrying up to 400 passengers, cross the proposed MPA to enter and leave Chaleur Bay and the port of Gaspé. Transportation of petroleum and chemical products by tankers presents the greatest risks of compromising the conservation objectives, in case of spills. In addition, vessel passage can disrupt the behaviour of marine mammals due to the noise the vessels produce and can pose a risk of collision. However, for the moment, marine transportation is fairly limited in the American Bank area, such that allowing this activity in the proposed MPA is not considered to compromise the achievement of the conservation objectives.

Tourism

Marine tourism activities in the proposed MPA are seasonal and are mainly for marine mammal observation. The main threats related to these activities are the disturbance caused by vessel noise and the risk of collision with marine mammals. The distance between the coast and the proposed MPA is considered to be far for marine tour operators, especially those operating small craft. For this reason, few operators frequent the area. In addition, the Marine Mammal Observation Network works closely with boat captains to encourage them to adopt better approach and animal observation practices. As a result, the risks associated with this activity were considered to pose a low risk to the achievement of the conservation objectives.

Resource industries

There is currently no oil and gas exploration or development activity or seabed mining activity in the proposed MPA. Further, no claims or licences for oil and gas or seabed mining activities have been issued in areas that overlap with part or the entirety of the proposed MPA. In addition, there are no submarine cables in the proposed MPA or in its vicinity, and no projects to install underwater generators or other marine infrastructure are being considered.

The results of the assessment of the impacts of the aforementioned human activities on the achievement of the conservation objectives of the proposed MPA justify the need for the implementation of regulatory safeguards. The proposed MPA Regulations would address the need to protect the American Bank ecosystem and allow for adequate management of these and other human activities in order to achieve the conservation objectives for this MPA.

Issues

Human activity is putting increasing pressure on Canada’s oceans. An ecological risk assessment was conducted and results indicate that certain current and potential human activities in the proposed MPA may compromise the achievement of conservation objectives established for this area. The existing regulatory tools applicable to these activities, applied independently, do not adequately mitigate the risks they pose.

Some marine activities are regulated through various federal laws, such as the Fisheries Act, the Canada Shipping Act, 2001, and the Species at Risk Act, which aim to achieve different objectives than those of the Oceans Act and its regulations. Without a unifying authority, such as the designation of an MPA under the Oceans Act, the overall protection of species and habitats will remain incomplete. Additional governmental intervention in the form of an MPA, designated by way of a regulation under the Oceans Act, is therefore necessary for the responsible management of activities to conserve and protect the American Bank ecosystem in the long term, particularly by prohibiting activities in the zones that pose the greatest risk of damage.

Objectives

The purpose of the proposed MPA is to promote the productivity and diversity of fishery resources in the American Bank and the plains adjacent to it, and to promote the recovery of species that are in a precarious situation. This goal would be pursued through the following conservation objectives:

Description

The Banc-des-Américains Marine Protected Area Regulations would be adopted pursuant to subsection 35(3) of the Oceans Act. The proposed MPA would cover an area of 1 000 km2.

Prohibition

The proposed Regulations are intended to prohibit, within the boundaries of the MPA, any activity that disrupts, damages, destroys or removes any living marine organism or any part of its habitat, or that is likely to do so, from the MPA. The proposed Regulations contain exceptions to the general prohibition that would allow certain activities to be carried out in the MPA, or in certain parts of it. The activities that would be allowed within the MPA are those that have been determined not to compromise the achievement of the conservation objectives.

Limits of the proposed Marine Protected Area and management areas

The proposed Regulations would establish two management zones in the MPA (Figure). In each of the management zones, specific activities would be permitted (as an exception from the general prohibition). These activities are considered not to compromise the achievement of the conservation objectives of the MPA. More stringent restrictions would apply in the central protection zone, the most sensitive zone (Zone 1), while activities that are compatible with the conservation objectives would be allowed in the adaptive management zone (composed of Zone 2a and Zone 2b), under some conditions. The management zones are as follows:

Figure: Map showing the boundary and the management areas of the proposed Banc-des-Américains MPA

Map-Detailed information can be found in the surrounding text.

Activities that would be permitted in the Marine Protected Area through the proposed Regulations

The proposed Regulations provide exceptions to the prohibitions in order to allow specific activities within the MPA. In order to be carried out in the MPA, some of these activities would require the approval of an activity plan by the Minister of Fisheries and Oceans. The only activities that would be allowed within the MPA are those listed below.

Activities allowed to take place within the proposed MPA would continue to be subject to all other applicable legislative and regulatory requirements. Proponents would continue to be required to obtain all other necessary approvals (e.g. permits and licences) in order to carry out their activities within the area.

The proposed exceptions are the following.

(1) Fishing

The following fishing activities would be allowed to take place within the MPA, if they are carried out in accordance with the provisions of the Fisheries Act and the Coastal Fisheries Protection Act, as well as with their regulations.

Indigenous fishing for food, social and ceremonial purposes

Indigenous fishing for food, social, and ceremonial purposes would be allowed throughout the MPA. This activity would continue to be subject to applicable requirements under the Aboriginal Communal Fishing Licences Regulations.

Commercial and recreational fishing

Commercial and recreational fishing activities would be restricted to specific areas of the MPA and types of fishing gear:

(2) Navigation

All activities related to shipping and transportation would continue to be allowed within the MPA. However, anchoring of vessels would not be permitted in Zone 1. In addition, discharge of sewage and release of grey water (as defined in the Vessel Pollution and Dangerous Chemicals Regulations) from vessels with a gross tonnage of 400 tonnes or more, or certified to carry more than 15 passengers, would be prohibited in the MPA.

(3) Public safety and national security

Throughout the MPA, activities carried out for the purposes of public safety, law enforcement, national security, national defence or to respond to an emergency (e.g. search and rescue operations at sea, or a response in the event of an incident involving the discharge of deleterious substances) would be permitted to ensure the safety of Canadians.

(4) Scientific research and monitoring, habitat restoration, education, and commercial marine tourism activities

Scientific research or monitoring, habitat restoration, educational activities and commercial marine tourism activities would be permitted in the Banc-des-Américains MPA if they are part of an activity plan approved by the Minister. These activities would also continue to be subject to all other applicable legislative and regulatory requirements such as obtaining permits or necessary authorizations to carry out the activity in question.

To ensure that these activities proposed to be carried out in the MPA do not compromise the achievement of the conservation objectives, the proposed Regulations would require that an activity plan containing specific information about each activity be submitted to the Minister of Fisheries and Oceans for review and approval, before the activity in question can be carried out in the MPA.

Following the review of the activity plan, if the proposed activity meets the conditions stipulated in the proposed Regulations, the activity plan would be approved by the Minister and the activity could be carried out in the MPA.

The activity plan would be rejected in certain circumstances. Under the proposed Regulations, the Minister could not approve an activity plan under the following circumstances:

The Minister of Fisheries and Oceans would have a maximum of 60 days to review and approve or reject the activity plan. If a proponent amends and resubmits a plan to the Minister, the Minister will have to make a decision with respect to the amended plan 60 days after the day on which the amended plan is received.

If the Minister approves the activity plan, the person who submitted it must provide the Minister with an activity report on the activities carried out in the MPA within 90 days of the last day of the activity. This information will be used, among other reasons, to monitor the pressure exerted by human activities on the ecological aspects of the MPA, and will contribute to the ongoing monitoring of the risks that these activities may pose to the achievement of the MPA conservation objectives.

In addition, when a report, study or any other work is completed as a result of the activity carried out in the MPA, a copy of the document in question must be provided to the Minister within 90 days of its completion.

Regulatory and non-regulatory options considered

An assessment of human activities was conducted that shows that certain current and potential activities in the proposed MPA may compromise the achievement of the conservation objectives established for this area. Existing regulatory tools, applied independently, do not adequately mitigate these risks. Some marine activities are already regulated under the provisions of the Fisheries Act, the Canada Shipping Act, 2001 and the Species at Risk Act as well as other federal statutes with different objectives than those of the Oceans Act. DFO is not aware of voluntary measures in place that provide adequate protection to the ecological features in the proposed MPA. Additional governmental intervention is therefore necessary for the responsible management of activities and to conserve and protect the American Bank ecosystem.

The proposed designation of the Banc-des-Américains MPA through regulations made under the Oceans Act is considered necessary to focus efforts on the long-term conservation and protection of the important ecological and biological features of the region. Implementation of the proposed MPA would help conserve and protect the American Bank ecosystem by prohibiting certain current, potential and future activities that might impede the achievement of the conservation objectives for the area.

Benefits and costs

Analytical framework

The costs and benefits of the proposed Regulations have been assessed in accordance with the Canadian Cost-Benefit Analysis Guide, published by the Treasury Board Secretariat (TBS). The analysis of costs and benefits was conducted by comparing the baseline (i.e. the status quo) with the proposed MPA scenario. The impacts of the proposed MPA have been identified and, where possible, quantified and/or monetized. The cost estimates are presented in 2015 Canadian dollars using a discount rate of 7%, from 2018 to 2047 (30-year period). Expected impacts from the proposed MPA are based on historic human activities in the area between 2006 and 2015.

Benefits of the proposed Regulations

The proposed MPA Regulations would provide a general framework that would strengthen the current regulatory protection applicable to the area. The proposed Regulations would create a holistic regulatory framework that would limit or mitigate the impacts of certain human activities on this unique ecosystem by conserving and protecting marine species, their habitat and the ecosystems on which they depend. Protection of marine species, their habitats (spawning grounds, mating sites, growth and feeding areas) and water quality would enhance diversity and productivity in the proposed MPA and increase the abundance of species with a commercial value. In addition, the protection of prey species (capelin, herring, mackerel, sandeel, krill and copepods) would attract predatory species, some of which are at risk (e.g. Atlantic Wolffish and blue whales), which would contribute to the recovery of these species. In the longer term, the proposed MPA would help increase biodiversity beyond the area’s boundaries because of marine organisms spilling over into adjacent areas.

Access to an MPA creates a unique opportunity for Canadian-controlled scientific research, whether for the federal government or for universities. In parallel, the tourism industry and environmental organizations could use the MPA to raise public awareness of this unique and productive ecosystem by developing research and educational projects in the area.

The proposed MPA has been used traditionally by the Mi’gmaq community. Interpretive posters, a project undertaken in relation to the proposed MPA, should soon be available at the Gespeg Micmac Interpretation Site. These interpretive posters would illustrate the history and importance of the proposed MPA to the Mi’gmaq community, and contribute to the dissemination of information on the Mi’gmaq community’s historical and cultural heritage associated with the proposed MPA to its members and visitors of the Gespeg Micmac Interpretation Site.

Costs

The incremental costs associated with the proposed MPA are estimated to be approximately $3.84 million in 2015 Canadian dollars using a 7% discount rate, from 2018 to 2047 (30-year period). The incremental costs associated with the designation of the Banc-des-Américains MPA are expected to affect commercial communal fisheries, commercial fisheries, tourism businesses and the Government of Canada.

Indigenous fishery

There is no expected impact on indigenous fisheries for food, social and ceremonial purposes.

All commercial fishing activities, including communal commercial fishing under the authority of a commercial communal fishing licence under the Aboriginal Communal Fishing Licences Regulations, would be prohibited in Zone 1. Commercial fishing by way of certain gear, such as a trawl and gillnet, and for certain species would also be prohibited in Zone 2a and Zone 2b. Between 2006 and 2015, the holders of approximately 26 commercial fishing licences per year, 3 of which were Indigenous communities holding commercial communal licences, engaged in commercial fishing activities that would be prohibited by the proposed Regulations in Zone 1, Zone 2a, and Zone 2b. Prior to 2001, there was no indigenous commercial communal fishery in the proposed MPA.

Species that were harvested under commercial communal fishing licences between 2006 and 2015 were snow crab and shrimp. It is expected that lost landing revenues could amount to up to $46,020 per year or $0.61 million over 30 years to the three Indigenous communities actively fishing in the area. These incremental costs would represent approximately 55% of total incremental costs to the commercial fishing industry over the 30-year time frame. It should be noted that the landings in the proposed MPA accounted for only 0.41% of these three Indigenous communities’ total catch for the period between 2006 and 2015.

Industry

The proposed Regulations could have an impact on the commercial fishing and tourism industries. Considering a scenario that accounts for the last 10 years, the maximum total additional cost to businesses would be $0.50 million in present value over a period of 30 years. No additional costs are anticipated from the proposed Regulations for the shipping or natural resource industries.

Commercial fishing

Species that have historically been harvested by commercial fish harvesters in the proposed MPA include snow crab, shrimp, groundfish, and pelagic fish.

Based on the landing data from 2006 to 2015, fishery revenues in Zone 1, Zone 2a and Zone 2b, which would be affected by the restrictions on commercial fishing in the proposed MPA, are estimated to total approximately $0.04 million per year on average. Considering this average landed value, the expected present value of commercial fishing activities in the proposed MPA would be $0.50 million over 30 years. This represents a conservative value assuming all landed value would be lost under a scenario where fish harvesters would not be able to conduct their fishing activities in adjoining areas.

However, it is expected that fish harvesters could continue to fill their quotas by moving their fishing efforts from Zone 1 to Zone 2a or Zone 2b, or to waters adjacent to the proposed MPA. As a result, the additional costs associated with applicable commercial fishing prohibitions in the proposed MPA could result in a minimal profit loss due to lower landings or increased costs related to the fishery (i.e. fuel and additional payroll costs to achieve the same amount of catches outside the prohibited area).

Further, between 2006 and 2015, one to five processors purchased seafood products from fish harvesters who were actively fishing in the area covered by the proposed MPA. On average, 0.4% of their total supply came from zones in which fishing would be prohibited in the proposed MPA. However, there is no anticipated impact for these companies because they could get their supply from catches in other fishing areas.

Tourism

Currently, there are five tourism companies (cruises and sea tours) operating in the proposed MPA and neighbouring waters. If the proposed MPA Regulations were adpoted, these companies would assume some administrative costs related to the requirement to prepare and submit an activity plan. They would also assume administrative costs related to the requirement to prepare and submit an activity report at the end of their operations. In addition, if tourism companies produce a study as a result of the activity, a copy of this document must be provided to the Minister. However, the cost related to this requirement would be minimal. The present value of administrative costs is estimated at $5,200 for the five companies, or a total of $1,050 per company, over the 30-year period. These costs are estimated in a scenario where activity plans are submitted every five years, and activity reports are submitted every year.

Marine transportation

It is currently prohibited, under the Vessel Pollution and Dangerous Chemicals Regulations, to discharge sewage and release grey water up to 12 nautical miles from shore. The prohibition of the discharge and release of these substances provided for in the proposed MPA Regulations would apply to a portion of the area that is not subject to the prohibition already in effect under the Vessel Pollution and Dangerous Chemicals Regulations. Restrictions imposed on grey water and sewage to certain vessels under the proposed MPA Regulations would result in negligible costs to the marine industry since the majority of the vessels that would be subject to the prohibitions of the proposed Regulations already possess the equipment necessary for treating and storing these waters, thereby enabling them to withhold from releasing these substances into the proposed MPA. In addition, no deviation of navigation routes is planned.

Resource industries

There is no oil and gas exploration or development activity or seabed mining activity in the proposed MPA. The potential for hydrocarbons in the area is low to medium, while the mineral potential in the area is low. Further, no claims or licences for oil and gas or seabed mining activities have been issued in areas that overlap with the proposed MPA, in its entirety or in part. As a result, a prohibition on these activities in the proposed MPA is not expected to impact these industries and would not impose any costs on these industries. However, the establishment of the proposed MPA would directly impact any potential future hydrocarbon or mining activity in the area that could be permitted through the issuance of licences. In the absence of information on the scope (i.e. quantity of reserves, life of the project, production costs, timing of project development and production activity) of these potential activities, it is not possible to estimate the potential cost impacts of the proposed MPA on these types of activities.

The Crown corporation Hydro-Québec, responsible for the production, transportation and distribution of hydroelectricity in Quebec, has no underwater cable installation projects underway or planned in the proposed MPA, in the short or medium term. No additional cost is therefore expected related to these activities.

Government

The costs of administering and managing the MPA include costs associated with scientific research and monitoring; identification and monitoring of ecological and socio-economic indicators; surveillance, enforcement and regulatory compliance; the development and implementation of the management plan; and the evaluation and approval of activity plans. The implementation of the proposed Regulations represents a total incremental cost of $2.73 million in present value over 30 years. The management costs for the area would be covered by DFO’s current budget allocation.

“One-for-One” Rule

The “One-for-One” Rule requires regulatory changes that increase administrative burden costs to be offset with equal reductions in administrative burden. In addition, ministers are required to remove at least one set of regulations when they introduce a new one that imposes administrative burden costs on business.

The “One-for-One” Rule applies to this proposal because additional administrative costs are expected for tourism companies. The proposed Regulations would be a new set of regulations, and, according to the “One-for-One” Rule of the Government of Canada, it should be offset by the repeal of an existing one.

There are currently five tourism companies operating in the proposed MPA. Each company would assume administrative costs to comply with the requirement of preparing and submitting activity plans and reports.

The total annualized administrative cost is estimated at $284 for the five tourism companies, or $57 per company. These costs are estimated in a scenario where activity plans are submitted every 5 years, and activity reports are submitted every year. Under the Red Tape Reduction Regulations, these values are calculated over a 10-year period, with a discount rate of 7% in 2012 dollars. The salary rate was estimated at $29 per hour. The time required to complete each requirement was estimated at four hours for the activity plan and two hours for the activity report.

Small business lens

The small business lens does not apply to these proposed Regulations, as the administrative and compliance costs associated with the proposed MPA are expected to be well below the $1 million per year threshold. Small businesses will experience no significant increase in cost due to the proposed Regulations.

Consultation

Selection of the Area of Interest

The process of selecting the American Bank as Area of Interest (AOI) for potential designation as an MPA under the Oceans Act dates back to 2009 and included several multi-sectoral, regional and inter-regional consultations within Fisheries and Oceans Canada, and, among four proposed sites, the Banc-des-Américains area was recommended by all who were consulted. The Banc-des-Américains was officially announced as an AOI in June 2011. Subsequently, Fisheries and Oceans Canada held two information sessions in 2012 on the AOI for interested parties.

Establishment of an advisory committee and development of regulatory draft

In 2013, a consultation booklet containing ecological information and questions about the AOI was sent to 55 industry stakeholders. The intent of the consultation booklet was to obtain stakeholders’ input on the formulation of the proposed MPA conservation objectives and the impacts from human activities on the achievement of proposed MPA conservation objectives. By answering questions in the booklet, representatives from the fishing, aquaculture, at-sea observation and commercial shipping sectors, as well as Indigenous groups in Quebec and New Brunswick, environmental organizations, recreational boating and underwater diving organizations, academic institutions, regional county municipalities, and the renewable resource (hydroelectricity) and non-renewable (oil, gas, ore) industries, were able to provide their views on how human activities had or could have an impact on the three conservation objectives proposed for the area. Of all these stakeholders, 15 agreed to sit on the AOI advisory committee, which first met in December 2013. Their mandate was to provide advice and recommendations on all aspects leading to the designation of the proposed MPA (geographic boundaries, conservation objectives, impacts of human activities on the achievement of the conservation objectives, proposed regulatory and non-regulatory measures, and their socio-economic effects, etc.). The comments collected from the consultation booklets and during the various meetings of the advisory committee showed widespread support for the designation of the proposed MPA.

Consultation summary

Comments and concerns considered by the advisory committee and through other bilateral meetings are summarized by sector below.

Province of Quebec

The proposed MPA was presented to the Government of Quebec in January 2009 before the Bilateral Group on Marine Protected Areas (BGMPA). The BGMPA is composed of the provincial ministries (ministère du Développement durable, de l’Environnement et de la Lutte contre les changements climatiques [ministry of sustainable development, the environment and climate change]; the ministère de l’Agriculture, des Pêcheries et de l’Alimentation [ministry of agriculture, fisheries and food]; the ministère des Forêts, de la Faune et des Parcs [ministry of forestry, wildlife and parks]; the ministère de l’Énergie et des Ressources naturelles [ministry of energy and natural resources]) and federal departments (DFO, Environment and Climate Change Canada, Parks Canada Agency) responsible for the implementation of MPAs. The BGMPA indicated its preference for the selection of the Banc-des-Américains AOI over three other possible sites. The BGMPA meets twice a year, at a minimum, and the proposed Banc-des-Américains MPA is regularly on the agenda.

In June 2015, the Government of Quebec announced its Maritime Strategy. The strategy confirms the intention of the Government of Quebec to work with the federal government to create an MPA network that will cover 10% of the province’s marine surface area by 2020. It emphasized its efforts to collaborate with the federal government on marine conservation. In March 2018, the federal and Quebec governments signed a collaboration agreement on the establishment of protected areas that includes the responsibilities of each party in this regard.

Indigenous groups

Information sessions were held in 2011 and 2012 with the four Indigenous communities of the Lower St. Lawrence and Gaspé, namely the Mi’gmaq of Gespeg, Gesgapegiag and Listuguj, and the Maliseet of Viger. A consultation booklet was also sent to these groups, as well as an invitation to sit on the advisory committee. The three Mi’gmaq communities joined the advisory committee through a representative of the Mi’gmawei Mawiomi Secretariat (MMS — tribal council representing the three nations). The Maliseet of Viger declined the invitation because members do not fish in this area.

During meetings with the Indigenous communities, the main concern raised by the representatives present was ensuring that no oil and gas development would be permitted in the proposed MPA and ensuring that their ability to engage in fishing activities for food, social and ceremonial purposes be preserved.

Between 2013 and 2015, four other consultation meetings were organized with the MMS Consultation and Accommodation Unit, which represents all Mi’gmaq communities, and the Mi’gmaq Maliseet Aboriginal Fisheries Management Association (MMAFMA). The MMS is also represented on the advisory committee and has participated in all of its meetings.

The three Indigenous communities continued to be informed of developments regarding this proposed MPA through correspondence and will continue to be informed until the proposed MPA is designated.

To date, Indigenous communities have demonstrated their support for the regulatory initiative. They particularly support the prohibition of oil and gas development in the proposed MPA and are satisfied that fishing for food, social and ceremonial purposes can continue to be practised throughout the MPA. The Mi’gmaq representatives have expressed their desire to be involved in the management of the MPA. DFO encourages Indigenous communities to participate in the implementation of MPA management activities, such as monitoring activities.

Fishing industry

The commercial fishing industry is composed of a wide range of groups and associations with diverse interests and opinions. Since May 2009, six meetings were held, which facilitated discussions with the 10 Gaspé fishing associations. Some of their representatives sat on the MPA establishment advisory committee, and four information and follow-up letters were also sent to the fishing associations involved. In general, the fishing industry supports the designation of the proposed MPA. However, certain associations and some independent fish harvesters have expressed concerns, which are outlined below.

Industry representatives on the advisory committee suggested and unanimously supported the creation of three management zones in the proposed MPA to protect the most vulnerable area (Zone 1) and authorize certain fishing activities in Zone 2a and Zone 2b. DFO has adopted this zoning method in the proposed Regulations.

Although the Association des Capitaines Propriétaires de la Gaspésie (ACPG) did not wish to sit on the advisory committee, some of its members expressed concern about the restriction on mobile gear (i.e. bottom trawl net) in Zone 2a and Zone 2b. They feared they would not be able to resume the cod fishery in the MPA if the moratorium on the groundfish fishery is eventually lifted. Three meetings were held with the ACPG in 2014 and 2015 to discuss this issue. In one of them, they suggested the creation of a fourth area, in which the use of a trawl net would be authorized. DFO did not implement that suggestion, given the significant damage this gear causes to the seabed. footnote 7 Another meeting (held on June 17, 2015) with the members of the association led to the conclusion that they would not oppose the trawling prohibition included in the proposed MPA Regulations. In addition, through a contribution agreement, DFO committed to working with fish harvesters to develop methods that are less damaging to the seabed.

In 2015, a summary of the regulatory intent of the proposed MPA containing the proposed restrictions on fishing activities was sent to all commercial fishing associations in Quebec and New Brunswick that had access to the proposed MPA. These associations have not returned any comments. However, during a meeting of the Gulf of St. Lawrence’s Groundfish Advisory Committee held in February of 2016 in Moncton, the Fédération régionale acadienne des pêcheurs professionnels intervened. It indicated that it was concerned about the prohibitions on bottom trawling gear throughout the proposed MPA and on the snow crab fishery in Zone 1. During a follow-up discussion, the regulatory intent was explained to the federation, including the authorization of the crab fishery in Zone 2a and Zone 2b. Following this discussion, the federation has not raised this issue again.

Cruises and sea tours

The five companies that operate in the area mainly offer marine mammal observation excursions. They have not expressed opposition to the creation of the proposed MPA. The opinion of the members of this industry was solicited throughout the consultation process, first in 2012, when they were invited to the first information meeting, and then in 2013, through the consultation booklet. An industry representative had hoped to sit on the advisory committee, but was unable to attend the meetings. More recently, in 2016, stakeholders in this industry were asked about their perception regarding the designation of the proposed MPA. footnote 8 Overall, the comments were very favourable. Some concerns were raised about whether the proposed MPA Regulations would impact their procedures during marine mammal observations and diminish customer satisfaction in cases where tourists would not be able to observe whales closely enough. The business owners have indicated their desire to play a role in the decision making in relation to the management of their activities. Some would also like to participate in scientific research on marine mammals in the area.

Marine transportation

This industry has not expressed opposition to the designation of the proposed MPA. The vast majority of commercial vessels in transit through the Gulf of St. Lawrence do not cross the proposed MPA since the seaway passes north of the area. However, when the regulatory intent was presented to the advisory committee in December 2014, the Shipping Federation of Canada (SFC) raised concerns regarding the prohibition of discharging sewage in the proposed MPA. The Federation estimated that this restriction could lead to a shortage of cargo for ship owners, who would be required to set aside storage space for these contaminated waters. A meeting was held on May 5, 2015, with the SFC, the St. Lawrence Economic Development Council and Transport Canada to discuss their concern. Telephone and email exchanges also took place in 2015 and 2016. Discussions with Transport Canada determined that the proposed Regulations would have a negligible economic impact on the maritime industry in general because the majority of the vessels subject to the requirement not to discharge sewage or release grey water already possess the equipment necessary to treat or store these waters.

Resource industries

No objection to the proposed MPA is anticipated from these industries. Oil, gas, and mining companies (Junex, Petrolia, Vantex Resources) that have rights in the vicinity of (but not overlapping with) the proposed MPA, as well as the Quebec Oil and Gas Association, Ultramar and Irving, were invited to an information meeting on the proposed MPA in March 2012. Only Ultramar sent a representative. All of these companies received the minutes of the meeting. None provided comments. In 2013, the consultation booklet was sent to them. They did not respond and they did not wish to sit on the advisory committee.

Hydro-Québec has been a member of the advisory committee since its creation in 2013. During meetings in 2013 and 2014, the Hydro-Québec representative expressed the desire to authorize running a submarine cable in the proposed MPA, should the Magdalen Islands require an electricity supply. However, this is not the shortest route, and if a cable must be installed, the proposed MPA could be avoided. No projects are planned by Hydro-Québec in the short- or medium-term in the proposed MPA.

Environmental Non-Governmental Organizations

All organizations consulted (Canadian Parks and Wilderness Society, Marine Mammal Observation Network, Nature Québec, Nature Conservancy of Canada, Amphibia-Nature, Chaleur Bay ZIP Committee) expressed support for the proposed MPA. They also issued public notices on the positive contribution that the proposed MPA would have on achieving national and international marine conservation targets. Throughout the consultation process, the sole concern of these organizations was that the proposed MPA is not large enough. They would have liked it to be expanded and connected with Forillon National Park (under the authority of Parks Canada) and the Parc national de l’Île-Bonaventure-et-du-Rocher-Percé (under the authority of the Quebec provincial ministry of Développement durable, de l’Environnement et de la Lutte contre les changements climatiques). All of these organizations endorse the prohibition of oil, gas, and mining exploration and development and stricter protection accorded in Zone 1 in order to maximize the applicable conservation in the proposed MPA, in accordance with international guidance on MPAs.

International governments

The Procès-verbal Applying the March 27, 1972 Agreement between Canada and France on their Mutual Fishing Relations (PV), is a bilateral treaty between Canada and France that, among other things, provides France with a right of access to certain Canadian quotas and Canadian fishery waters for French fishing vessels from Saint-Pierre and Miquelon (SPM) to fish for particular fish stocks, notably in the waters of the proposed MPA. However, French officials have informed DFO, and the data confirms, that no SPM fishing vessel has engaged in fishing activities in this area in recent years. Consequently, it is not foreseen that the establishment of an MPA in the American Bank area would result in negative impacts on French access to PV fisheries in Canadian fishing waters. On March 29, 2017, as part of a bilateral meeting between the Canadian and French governments, Canada presented an overview of the proposed MPA to the French government, which expressed its support for this project.

Regulatory cooperation

International commitments/agreements

The designation of the proposed MPA would contribute to Canada’s efforts to implement measures relating to several international agreements, the most important being the Convention on Biological Diversity. In 2010, the “Strategic Plan for Biodiversity 2011–2020 and the Aichi Targets” resulted from the Convention. Target 11 stipulates the following: “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 landscape and seascapes.” The designation of the proposed MPA would contribute to meeting this international objective.

Various international declarations concerning the establishment of MPAs and MPA networks were also made, including at the World Summit on Sustainable Development (2002), the G8 Group of Nations Action Plan on the Marine Environment and Maritime Safety (2003), the Durban Action Plan developed at the World Parks Congress (2003), and at the IUCN World Conservation Congress (2008). In addition, the Commission for Environmental Cooperation of the North American Free Trade Agreement (of which Canada is a party) is developing a network of MPAs in North America. The proposed Banc-des-Américains MPA would contribute to this initiative, because it would be part of the Canadian network of MPAs, namely in the bioregional network of MPAs in the Estuary and Gulf of St. Lawrence.

Rationale

The Government of Canada has committed to protecting 10% of its marine and coastal areas by 2020. On June 8, 2016, the Minister of Fisheries and Oceans announced the Government of Canada’s commitment to implement a plan to achieve these marine conservation targets, both nationally and internationally. The designation of the Banc-des-Américains MPA would help achieve this goal and increase the total protected area of Canada’s oceans by 0.02%.

The incremental costs associated with the proposed MPA are estimated to be approximately $3.84 million over 30 years or an annual average of $0.31 million for commercial communal fisheries, commercial fisheries, tourism businesses and the Government of Canada. Incremental costs to industry could be mitigated if harvesters shifted their fishing efforts to areas outside the prohibited areas of the proposed MPA.

The administrative costs related to the requirement to prepare and submit activity plans and reports for tourism activities are estimated at $5,200, spread out over 30 years. Although costs are anticipated for the preparation and submission of activity plans and reports, the information from the activity plans and reports would be used to manage these activities to ensure the achievement of conservation objectives.

The designation of the Banc-des-Américains MPA would ensure the proactive and complete protection of this ecologically and biologically important area. Implementation of the proposed MPA would protect the ecosystem by prohibiting certain current, potential and future activities that might impede the achievement of the conservation objectives for this area.

With this protection, the impact of human activities on fragile and important habitats will be reduced, and the conservation and protection of unique and productive ecosystems would help preserve their integrity.

The purpose and objectives that informed the development of the proposed Regulations were validated through a multistage stakeholder engagement process. The Government of Quebec, Indigenous communities and all stakeholders supported the proposal for the designation of the Banc-des-Américains MPA. The MPA would benefit Canadians because of low costs and the potential for significant long-term ecological benefits.

Implementation, enforcement and service standards

The proposed Regulations would come into force the day on which they are registered. As the federal authority responsible for the designation and management of the proposed MPA, Fisheries and Oceans Canada would be responsible for ensuring compliance with the proposed Regulations and for enforcing them. These activities would be accomplished through the Department’s official mandate and enforcement responsibilities under the Oceans Act, the Fisheries Act, the Coastal Fisheries Protection Act and other legislation related to fisheries conservation and protection and marine safety. Enforcement officers with enforcement authority designated by the Minister pursuant to section 39 of the Oceans Act would enforce the proposed Regulations. The enforcement of the proposed Regulations and any contravention thereof would be dealt with under section 37 of the Oceans Act.

To complement the overall direction provided by the proposed Regulations, a management plan for the MPA will be developed after its designation to implement a comprehensive set of conservation and management strategies and measures for the MPA. The management plan will clearly define the management objectives and priorities for the MPA and address topics such as ecological monitoring, enforcement, compliance and stewardship, education and public awareness.

The information requirements and timelines with respect to the submission and review of activity plans would be outlined in the guidance documents and the MPA management plan. The management plan for the MPA would also provide guidance for the management of the MPA.

Compliance and enforcement activities conducted by enforcement officers would include boat and air patrols to ensure compliance with fishing licence conditions and restrictions contained in the regulations. Fishing activities within the Banc-des-Américains MPA could also be monitored through other mechanisms, including the At Sea Observer Program, logbooks and the Vessel Monitoring System. With these data sources, automated reports on fishing activities in the MPA would be generated daily as part of the existing compliance monitoring program for MPAs in the Maritime Region.

Currently, under section 37 of the Oceans Act, any contravention of the proposed Regulations would be subject to a fine of up to $100,000 for a summary conviction offence, and up to $500,000 for an indictable offence.

Violating licence and permit conditions applicable to activities carried out within the proposed MPA, such as fishing licences, could also lead to charges under other applicable laws, such as the Fisheries Act, the Coastal Fisheries Protection Act, the Species at Risk Act or other applicable legislation and regulations.

Contacts

Contacts

Sylvie Sirois
Program Officer
Oceans Management
Regional Ecosystems Management Branch
Fisheries and Oceans Canada
850 Route de la Mer, P.O. Box 1000
Mont-Joli, Quebec
G5H 3Z4

Kate Ladell
Manager
National Marine Conservation Program, Operations
Oceans Management
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6

PROPOSED REGULATORY TEXT

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 35(3) of the Oceans Act footnote a, proposes to make the annexed Banc-des-Américains 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 Sylvie Sirois, Program Officer, Oceans Management, Regional Ecosystems Management Branch, Department of Fisheries and Oceans, 850 Route de la Mer, Mont-Joli, Quebec G5H 3Z4 (email: Oceans-QC@dfo-mpo.gc.ca).

Ottawa, June 19, 2018

Jurica Čapkun
Assistant Clerk of the Privy Council

Banc-des-Américains Marine Protected Area Regulations

Interpretation

Definitions

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

Marine Protected Area means the area of the sea that is designated by section 2. (zone de protection marine)

vessel has the same meaning as in section 2 of the Canada Shipping Act, 2001. (bâtiment)

Geographical coordinates

(2) In the schedule, all geographical coordinates (latitude and longitude) are expressed in the North American Datum 1983 (NAD83) 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 a series of rhumb lines drawn from points 1 to 4 and then back to point 1 is designated as the Banc-des-Américains Marine Protected Area.

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

Boundaries

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

Prohibited Activities

Prohibition

4 Subject to sections 5 to 8, 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 that is likely to do so.

Exceptions

Fishing

5 The following activities may be carried out in the Marine Protected Area if they are carried out in accordance with the provisions of the Fisheries Act and the Coastal Fisheries Protection Act, as well as their regulations:

Navigation

6 Navigation may be carried out in the Marine Protected Area subject to the following conditions:

Safety or emergency

7 Any activity may be carried out in the Marine Protected Area if it is carried out for the purpose of public safety, national defence, national security, law enforcement or to respond to an emergency.

Activity plan

8 Any activity that is part of an activity plan that has been approved by the Minister may be carried out in the Marine Protected Area.

Activity Plan

Submission to Minister

9 (1) Any person may submit to the Minister an activity plan for the carrying out of any scientific research or monitoring, habitat restoration, educational or commercial marine tourism activity in the Marine Protected Area.

Contents of plan

(2) The activity plan must contain

Approval of activity plan

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

Approval prohibited

(2) Despite subsection (1), the activity plan must not be approved if

Timeline for approval

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

Activity report

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

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

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

SCHEDULE

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

Banc-des-Américains Marine Protected Area

Detailed information can be found in the surrounding text.