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Registration

SOR/2015-241 November 20, 2015

SPECIES AT RISK ACT

Critical Habitat of the Westslope Cutthroat Trout (Oncorhynchus clarkii lewisi) Alberta Population Order

Whereas the Westslope Cutthroat Trout (Oncorhynchus clarkii lewisi) Alberta population is a wildlife species that is listed as a threatened species in Part 3 of Schedule 1 to the Species at Risk Act (see footnote a);

Whereas the recovery strategy that identified the critical habitat of that species, entitled Recovery Strategy for the Westslope Cutthroat Trout (Oncorhynchus clarkii lewisi) Alberta Populations in Canada, was included in the public registry on March 28, 2014;

Whereas a portion of the critical habitat of that species is in a place referred to in subsection 58(2) of that Act and, under subsection 58(5) of that Act, that portion must be excluded from the annexed Order;

And whereas, pursuant to subsection 58(5) of that Act, the Minister of Fisheries and Oceans has consulted with the Minister responsible for the Parks Canada Agency, namely, the Minister of the Environment, with respect to the annexed Order;

Therefore, the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act (see footnote b), makes the annexed Critical Habitat of the Westslope Cutthroat Trout (Oncorhynchus clarkii lewisi) Alberta Population Order.

Ottawa, November 20, 2015

HUNTER TOOTOO
Minister of Fisheries and Oceans

CRITICAL HABITAT OF THE WESTSLOPE CUTTHROAT TROUT (ONCORHYNCHUS CLARKII LEWISI) ALBERTA POPULATION ORDER

APPLICATION

1. Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Westslope Cutthroat Trout (Oncorhynchus clarkii lewisi) Alberta population — which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry — other than the portion of that critical habitat that is already protected under that subsection because it is in a place referred to in subsection 58(2) of that Act, more specifically, in Banff National Park of Canada as described in Part 2 of Schedule 1 to the Canada National Parks Act.

COMING INTO FORCE

2. This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

In 2005, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) classified the Westslope Cutthroat Trout, Alberta population, as threatened. The assessment was based upon the best available information on the biological status of the species, including scientific knowledge. The assessment was confirmed by COSEWIC in 2006. A “threatened species” is defined under the Species at Risk Act (SARA) as a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction.

The assessment of the status of the species was provided to the Minister of the Environment and to the Canadian Endangered Species Conservation Council, which consists of the Minister of the Environment, the Minister of Fisheries and Oceans, the Minister responsible for the Parks Canada Agency (currently the Minister of the Environment) and the provincial minister in Alberta responsible for the conservation and management of the Westslope Cutthroat Trout, Alberta population.

In March 2013, on the recommendation of the Minister of the Environment, who consulted the Minister of Fisheries and Oceans and took into account the assessment of COSEWIC in respect of the species, the Governor in Council, after considering the potential impacts of adding the species to the List of Wildlife Species at Risk set out in Schedule 1 of SARA, decided to add the Westslope Cutthroat Trout, Alberta population, to Part 3 of Schedule 1 as a threatened species.

As a result of the addition of Westslope Cutthroat Trout, Alberta population, to Schedule 1 of SARA, the competent ministers were required to prepare a recovery strategy for the species. The recovery strategy was prepared by the Minister of Fisheries and Oceans and the Minister responsible for the Parks Canada Agency, in cooperation with the Province of Alberta (Alberta Environment and Parks); the Environmental Non-Governmental Organization Coalition; Spray Lake Sawmills; TransAlta Corporation; Trout Unlimited Canada; the University of Calgary; and the Canadian Association of Petroleum Producers.

The final recovery strategy, which includes an identification of the species’ critical habitat, was posted on the Species at Risk Public Registry (SAR Public Registry) on March 28, 2014. (see footnote 1) The critical habitat for the Westslope Cutthroat Trout, Alberta population, is partially identified as all areas of bankfull waterbodies currently occupied by naturally occurring, pure-strain populations within the original Westslope Cutthroat Trout distribution (as defined in section 2.0 of the Alberta Westslope Cutthroat Trout Recovery Plan 2012–2017). (see footnote 2) Currently, genetically pure Cutthroat Trout occupy only a small fraction of the original Westslope Cutthroat Trout distribution and occur as relatively small, disconnected populations. They are largely restricted to the Rocky Mountains and foothills in the uppermost reaches of mainstem rivers and the extreme headwaters of a few major tributaries. Critical habitat is only partially identified at this point in time and additional critical habitat will be identified in an amended recovery strategy or in an action plan. A schedule of studies (timeline: 2014–2018) is included in the current recovery strategy to identify additional critical habitat.

The critical habitat is defined by a sufficient flow of cold, clear water, and food availability where the species carry out all life stage processes including spawning, incubation, feeding, cover, movement (migration) and over-wintering, which are necessary for the species’ survival. Spawning in particular depends on the presence of sediment- and silt-free gravel substrates and cool flowing water with sufficient depth and velocity. Westslope Cutthroat Trout, Alberta population, create and use nests for spawning. The nests are considered to be the residence of this fish during the spawning time period. For more information on the life-cycle of the species, its residence and critical habitat, please refer to the final recovery strategy posted on the SAR Public Registry.

Once the critical habitat of a species listed as threatened (other than individuals in or on federal lands administered by the Parks Canada Agency) is identified in a recovery strategy that is posted as final on the SAR Public Registry, the Minister of Fisheries and Oceans must ensure that all of the critical habitat is legally protected. In most cases, this will be accomplished through the making of a critical habitat order, which triggers the prohibition against the destruction of any part of the critical habitat.

Therefore, this Critical Habitat of the Westslope Cutthroat Trout (Oncorhynchus clarkii lewisi) Alberta Population Order (the Order) is intended to satisfy the obligation to legally protect critical habitat by triggering the prohibition under SARA against the destruction of any part of the species’ critical habitat. The Order does not apply to critical habitat located within Banff National Park of Canada. On June 28, 2014, the Parks Canada Agency published a Critical Habitat Description in the Canada Gazette, Part I, pursuant to subsection 58(2) (see footnote 3), as the means of triggering the subsection 58(1) prohibition.

Background

The Government of Canada is committed to conserving biodiversity and the management of sustainable aquatic ecosystems, both nationally and internationally. Canada, with support from provincial and territorial governments, signed and ratified the United Nations’ Convention on Biological Diversity in 1992. Stemming from this commitment, the Canadian Biodiversity Strategy was jointly developed by the federal, provincial, and territorial governments in 1996. Building on the Canadian Biodiversity Strategy, the Species at Risk Act (see footnote 4) received royal assent in 2002. Its purposes are to prevent wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity, and to manage species of special concern to prevent them from becoming endangered or threatened.

Species listed on the List of Wildlife Species at Risk set out in Schedule 1 of SARA benefit from recovery planning and protections under SARA. In general, as stated in the preamble of SARA, “wildlife, in all its forms, has value in and of itself and is valued by Canadians for aesthetic, cultural, spiritual, recreational, educational, historical, economic, medical, ecological and scientific reasons,” which indicates that recovery would hold value for Canadians. Research confirms that Canadians value the conservation of species at risk and measures taken to conserve their preferred habitat. Conserving Canada’s natural aquatic ecosystems, and protection and recovery of its wild species, is essential to Canada’s environmental, social and economic well-being. Protecting species and their habitats helps preserve biodiversity — the variety of plants, animals, and other life in Canada. Biodiversity, in turn, promotes the ability of Canada’s ecosystems to perform valuable ecosystem services, such as filtering drinking water and capturing the sun’s energy, which is vital to all life. As a result, for individuals of aquatic species listed as extirpated, endangered or threatened, steps taken to help protect and recover them include

  • prohibitions against
    • killing, harming, harassing, capturing or taking an individual;
    • possessing, collecting, buying, selling or trading an individual or any of its parts or derivatives; and
    • damaging or destroying the residence of one or more individuals;
  • the preparation of a recovery strategy and one or more action plans; and
  • the identification, to the extent possible, and legal protection of critical habitat.

These prohibitions do not apply to activities authorized under SARA.

The protection of critical habitat is important for many species’ survival and recovery. The protection of the critical habitat of aquatic species is a legal requirement under sections 57 and 58 of SARA.

Orders made under subsections 58(4) and (5) of SARA, and which trigger the prohibition in subsection 58(1) against the destruction of any part of the species’ critical habitat, are made to legally protect the critical habitat and contribute to the broader goals set out by the Canadian Biodiversity Outcomes Framework and its commitments to the United Nations’ Convention on Biological Diversity.

Objectives

In 2005, the Canadian Council of Ministers of the Environment instructed the federal, provincial and territorial biodiversity working group to develop a corresponding outcomes-based framework for guiding and monitoring implementation of the Canadian Biodiversity Strategy. The Canadian Biodiversity Outcomes Framework was approved by ministers responsible for the environment, forests, parks, fisheries and aquaculture, and wildlife in October 2006. As part of the Biodiversity Outcomes Framework, conservation and use outcomes were identified, including

  • improved status of species at risk;
  • no new species extinctions due to human activity;
  • full complement of native species required for maintenance of ecosystem function; and
  • species assemblages maintained in their ecological regions.

This Order contributes to, and aligns with, these broader Biodiversity Outcomes Framework goals. The Order legally protects the critical habitat of the Westslope Cutthroat Trout, Alberta population, by triggering the prohibition against the destruction of any part of its critical habitat.

The “threatened” SARA status of the Westslope Cutthroat Trout, Alberta population, was the result of an assessment undertaken by COSEWIC, and was based on the species’ small distribution and continuing decline in the areas in which it is found, the severely fragmented nature of populations, continuing decline in quality of habitat, and the presence of barriers to dispersal making immigration between watersheds (and therefore rescue of the Alberta population from other jurisdictions) highly unlikely. Critical habitat was identified using an area of occupancy approach, which means that all areas currently occupied by non-stocked pure-strain populations within the original Westslope Cutthroat Trout population and distribution are considered critical habitat. These populations had an average purity of ≥ 99% for the individual fish sampled. The approach aligns with the distribution objective of protecting and maintaining the pure populations within the original Westslope Cutthroat Trout distribution. It is estimated that, out of approximately 274 waterbodies historically occupied by Westslope Cutthroat Trout, there are approximately 51 pure-strain populations remaining in the original Westslope Cutthroat Trout distribution in Alberta.

The population and distribution objectives outlined in the recovery strategy are considered to be both technically and biologically feasible to protect and maintain the existing ≥ 99% pure populations (currently believed to be approximately 51) at self-sustaining levels, and to re-establish additional pure populations to self-sustaining levels, within the species’ original distribution in Alberta, Canada. A number of key objectives are proposed in the recovery strategy to meet the population and distribution objective:

  • Identify and protect critical habitat for the remaining pure populations;
  • Improve knowledge of population genetics, size, distribution, and trends;
  • Identify opportunities to help recover pure and near-pure populations;
  • Increase education and awareness of the species for their conservation;
  • Re-establish pure populations in sites within the original Westslope Cutthroat Trout distribution; and
  • Determine the role that introduced pure Westslope Cutthroat Trout may play in the recovery effort.

Description

The Order is made to satisfy the obligation to ensure that the Westslope Cutthroat Trout, Alberta population, critical habitat is legally protected. With this Order, the Westslope Cutthroat Trout, Alberta population, will benefit from the prohibition in subsection 58(1) of SARA against the destruction of any part of its critical habitat. The prohibition will apply to anyone undertaking activities in and around the Westslope Cutthroat Trout, Alberta population, critical habitat that would result in the destruction of any part of it. The Order will serve to

  • communicate to Canadians the prohibition against the destruction of any part of the Westslope Cutthroat Trout, Alberta population, critical habitat, and where it applies, so that they can plan their activities within a regulatory regime that is clearly articulated;
  • complement existing federal and provincial acts and regulations; and
  • ensure that all human activities, which may result in the destruction of critical habitat, are managed to the extent required under SARA.

As a result of the Order, the prohibition in subsection 58(1) of SARA will apply to any ongoing or future human activities that could result in the destruction of any part of the Westslope Cutthroat Trout, Alberta population, critical habitat [excluding those areas of critical habitat described under subsection 58(2), which are already protected further to the publication of the critical habitat description and the subsequent application of the prohibition in subsection 58(1) of SARA]. This will further support management of human activities in the critical habitat and allow for the prosecution of any unauthorized destruction of the critical habitat under SARA.

Under SARA, an activity that will destroy a part of the species’ critical habitat may be permitted by the Minister if (a) the activity is scientific research relating to the conservation of the species and conducted by qualified persons; (b) the activity benefits the species or is required to enhance its chance of survival in the wild; or (c) affecting the species is incidental to the carrying out of the activity. The permit may be issued only if, among other things, the Minister is of the opinion that three conditions are met:

  • all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted;
  • all feasible measures will be taken to minimize the impact of the activity on the species or its critical habitat or the residences of its individuals; and
  • the activity will not jeopardize the survival or recovery of the species.

Examples of threats to the habitat of the Westslope Cutthroat Trout, Alberta population, include, but are not limited to, changes in water flow, sedimentation, or habitat loss, fragmentation and habitat alteration. Examples of activities likely to destroy critical habitat of this species include (see footnote 5)

  • dam/reservoir operation, mechanical forest removal or loss due to fire, and water extraction (leading to changes to water flow);
  • forest harvest and removal, road or trail construction and maintenance, urbanization, mining, grazing, in-stream construction and high-intensity or frequent off-road vehicle use (leading to sedimentation); and
  • mining, dam or reservoir construction, presence of dams and culverts, or linear disturbance, such as construction and maintenance or lack of maintenance of roads, pipelines, railway, recreational vehicles and trails (leading to habitat loss, fragmentation and alteration).

It is important to note that these examples of activities are not prohibited; rather, it is the destruction of critical habitat caused by human activities that will be prohibited once the Order is made. Under certain conditions, competent ministers may authorize activities which would otherwise contravene the SARA prohibitions. SARA provides tools, such as permits that can be issued with conditions and conservation agreements that can be entered into by the Minister of Fisheries and Oceans with any Government in Canada, organization or person to benefit a species at risk or enhance its survival in the wild. SARA also allows for the making of regulations and codes of practice, national standards or guidelines with respect to the protection of critical habitat. A person who, without a permit, carries out an activity that contravenes one of the prohibitions under SARA, commits an offence. The Act provides for penalties for contraventions, including fines or imprisonment, seizure and forfeiture of things seized or of the proceeds of their disposition. Alternative measures agreements are also available.

The Order comes into force on the day it is registered and triggers the prohibition in subsection 58(1) of SARA, which confers legal protection to the Westslope Cutthroat Trout, Alberta population, critical habitat. This will facilitate efforts to support the survival and recovery of the species.

Consultation

There were consultations on the recovery strategy for the Westslope Cutthroat Trout, Alberta population, that identified the critical habitat to which the Order applies. The proposed recovery strategy was posted for comment on the SAR Public Registry from December 24, 2013, to February 22, 2014. The recovery strategy included explicit reference to the fact that it was anticipated that the critical habitat of Westslope Cutthroat Trout, Alberta population, would be legally protected through an order made under subsections 58(4) and (5), which will invoke the prohibition in subsection 58(1) against the destruction of the identified critical habitat.

Information packages, which included a copy of the recovery strategy, were sent to potentially affected Aboriginal communities, and letters and/or emails were sent to non-governmental organizations, stakeholders and municipalities to direct them to the proposed Westslope Cutthroat Trout, Alberta population, recovery strategy on the SAR Public Registry. These groups were informed that the proposed recovery strategy was posted and the groups were invited to comment. As well, an announcement was prepared and published in newspapers with circulation in the area where Westslope Cutthroat Trout occurs or was historically found, to inform landowners and the general public about the recovery strategy and to request their comments. Comments were received from 16 different parties: nine from members of the public, three from non-governmental organizations, one from industry, one from a federal agency, one from a provincial agency, and one from a corporation providing professional consulting services in the field of aquatic ecology. No significant concerns were noted during the consultation period with respect to making an Order to trigger the prohibition against the destruction of critical habitat. Some comments indicated that more critical habitats should have been identified and expanded to include other features, such as greater riparian buffers, upstream tributaries, groundwater storage, active flood plains and areas of historical presence. Critical habitat identification may evolve in response and as per the planned scheduled studies set out in the recovery strategy.

Rationale

Purpose

Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final recovery strategy on the SAR Public Registry. Critical habitat not mentioned in subsection 58(2) must be protected either by the application of the prohibition against the destruction of critical habitat in subsection 58(1), or by provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11 of SARA. It is important to note that in order for another federal law to be used to legally protect critical habitat, it must provide an equivalent level of legal protection of critical habitat as would be afforded through subsection 58(1) of SARA, failing which, the Minister must make an order under subsections 58(4) and (5) of SARA. Therefore, this Order for the protection of critical habitat of the Westslope Cutthroat Trout, Alberta population, is intended to satisfy the obligation to legally protect critical habitat by triggering the prohibition under SARA against the destruction of any part of the species’ critical habitat.

Existing regulatory mechanisms

Works, undertakings or activities (projects) likely to destroy the critical habitat of the Westslope Cutthroat Trout, Alberta population, are currently already subject to other federal regulatory mechanism.

Table 1 provides examples of key existing federal regulatory mechanisms that already apply to the critical habitat of the Westslope Cutthroat Trout, Alberta population.

Act or Regulation Application to Critical Habitat
Species at Risk Act, subsection 32(1) This provision prohibits, among other things, the killing, harming or harassing of individuals of Westslope Cutthroat Trout, Alberta population. Activities that would contravene this prohibition require an authorization under SARA in order to proceed. Activities likely to destroy critical habitat are also likely to kill, harm or harass individuals of this species.

Therefore, anyone intending to carry out such activities is already subject to this prohibition.
Species at Risk Act, section 33 This provision prohibits, among other things, the damage or destruction of the residence of one or more individuals of a wildlife species that is listed as threatened.

Westslope Cutthroat Trout create and use redds (nests) for spawning, and these redds are considered to be residences during the spawning and incubation time period during which adults and/or eggs and/or alevins are present in the redd structure.

As the redds are often part of the critical habitat, activities that would destroy these redds are already subject to prohibitions under SARA.
Species at Risk Act, section 74 Under this section, any agreement, permit, licence, order or other similar document authorizing a person or organization to engage in an activity affecting, among other things, critical habitat, that is entered into, issued or made by the competent minister under another Act of Parliament has the same effect as an agreement or permit under subsection 73(1) of SARA if, among others, before it is entered into, issued or made, the competent minister is of the opinion that the requirements of subsections 73(2) to (6.1) are met.

The Department of Fisheries and Oceans (DFO) currently provides mechanisms for ensuring that authorizations issued under other federal legislation applicable to the critical habitat of the Westslope Cutthroat Trout have the same effect as permits issued under SARA.

Additional detail is provided in the “Application of Critical Habitat Order” section below.
Species at Risk Act, subsections 75(1) and (2) These provisions allow a competent minister to add terms and conditions to protect, among other things, any part of critical habitat, to any agreement, permit, licence, order or other similar document authorizing a person to engage in an activity affecting, among other things, the critical habitat of the Westslope Cutthroat Trout, Alberta population, that is entered into, issued or made by the competent minister under another Act of Parliament.

A competent minister may also revoke or amend any term or condition in any of those documents to protect, among other things, identified critical habitat.

To date, no amendments have been made to such documents with respect to activities in the critical habitat of the Westslope Cutthroat Trout and none are anticipated in the foreseeable future.
Species at Risk Act, subsection 77(1) Under this provision, any person or body, other than a competent minister, authorized under any other Act of Parliament other than SARA, to issue or approve a licence, a permit or any other authorization that might result in the destruction of any part of the critical habitat of the Westslope Cutthroat Trout, Alberta population, may enter into, issue, approve or make the authorization only if the person or body has consulted with the competent minister, has considered the impact on the species’ critical habitat and is of the opinion that
  • (a) all reasonable alternatives to the activity that would reduce the impact on the species’ critical habitat have been considered and the best solution has been adopted; and
  • (b) all feasible measures will be taken to minimize the impact of the activity on the species’ critical habitat.
To date, the Minister of DFO has not been consulted on the issuance of any licences, permits or other authorizations that might result in the destruction of any part of the critical habitat of the Westslope Cutthroat Trout, Alberta population. DFO works proactively with other departments to ensure that critical habitat destruction is avoided or mitigated to the extent possible.
Species at Risk Act, section 79 A person who is required by or under an Act of Parliament to ensure that an assessment of the environmental effects of a project is conducted, and an authority who makes a determination in relation to a project on federal lands under paragraph 67(a) or (b) of the Canadian Environmental Assessment Act, 2012 must notify the competent minister(s) of the project if it is likely to affect a listed species or its critical habitat.

In such a case, the person must identify the adverse effects of the project on the listed wildlife species and its critical habitat. If the project is carried out, the person must ensure that measures are taken (1) to avoid or lessen any adverse effects the project may have on a listed wildlife species and its critical habitat; and (2) to monitor them. These measures must be taken in a way that is consistent with any applicable recovery strategy and action plans. As the critical habitat of the Westslope Cutthroat Trout was identified in a recovery strategy published on March 28, 2014, all projects affecting critical habitat are already subject to this provision.
Fisheries Act, section 20 Section 20 relates to fish passage and the maintenance of water flow. This authority can be exercised to improve fish passage, prevent harm to fish or improve flow to areas below an obstruction.

This authority to require provision for the flooding of fish habitat or for fish passage can contribute, respectively, to the protection of the critical habitat directly, or indirectly by providing for the species’ access to the critical habitat.
Fisheries Act, section 35 This provision prohibits the carrying on of any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery unless authorized.

Serious harm to fish is defined as “the death of fish or any permanent alteration to, or destruction of fish habitat.” As a result, given that “serious harm to fish” encompasses destruction of fish habitat, the prohibition under section 35 contributes to the protection of critical habitat of the Westslope Cutthroat Trout.

Additional detail is provided in the “Application of Critical Habitat Order” section below.
Fisheries Act, section 36 This provision prohibits the deposit of deleterious substances in waters frequented by fish, where such deposits may be deleterious to fish, fish habitat or the use of fish, unless authorized by regulation.

Thus, prohibition of the deposit of deleterious substances in areas identified as critical habitat of the Westslope Cutthroat Trout would also contribute to the protection of the critical habitat.
Fisheries Act, section 37 This provision provides authority to request plans and specifications for works, undertakings or activities that may result in serious harm to fish or in the deposit of a deleterious substance, to determine what measures could be taken to prevent or mitigate these effects and to make orders to require the modification, restriction or closing of the work, undertaking or activity.

This authority contributes to the protection of the critical habitat of the Westslope Cutthroat Trout from a work, undertaking or activity that could result in serious harm to fish or the deposit of a deleterious substance.
Canadian Environmental Assessment Act, 2012 The proponent of any designated project in the critical habitat of the Westslope Cutthroat Trout must not do any act or thing in connection with the carrying out of the designated project, in whole or in part, if that act or thing may cause an environmental effect, unless
  • (a) the Canadian Environmental Assessment Agency makes a decision, pursuant to the Act, that no environmental assessment of the designated project is required; or
  • (b) the proponent complies with the conditions included in the decision statement with respect to that designated project.
The Act requires that environmental effects that are to be taken into account in relation to an act or thing, a physical activity, a designated project or a project include, among other things, a change that may be caused to the following components of the environment that are within the legislative authority of Parliament:
  • (i) fish and fish habitat as defined in subsection 2(1) of the Fisheries Act; and
  • (ii) aquatic species as defined in subsection 2(1) of the Species at Risk Act.
Application of critical habitat Order

The Order, upon coming into force, triggers the prohibition under subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Westslope Cutthroat Trout, Alberta population. The Order complements the existing federal regulatory framework by formally establishing, and clearly communicating the legal protection of critical habitat for the species in question as required by subsections 58(4) and (5) of SARA.

As summarized in the table above, there is an existing framework of federal regulatory mechanisms that offers protection to the Westslope Cutthroat Trout, Alberta population, and its critical habitat.

Based upon the best evidence currently available, it is anticipated that the application of the existing federal regulatory mechanisms is sufficient to manage the application of the prohibition in subsection 58(1) of SARA without the need for additional compliance and administrative measures on the part of Canadians and Canadian businesses. Fisheries and Oceans Canada anticipates that there are no planned or ongoing activities within the critical habitat of the Westslope Cutthroat Trout, Alberta population, that would need to be mitigated by Canadians or Canadian businesses beyond the requirements of existing federal regulatory mechanisms to avoid destruction of any part of critical habitat. That being said, should any future activities result in the destruction of any part of the critical habitat of Western Cutthroat Trout, Alberta population, they would be subject to the stringent requirements of SARA triggered through the making of this Order.

For added specificity, it should be noted that Fisheries Act authorizations are already required for applicants who seek to carry out any work, undertaking or activity that results in permanent alteration to, or destruction of, the critical habitat of the Westslope Cutthroat Trout. Fisheries and Oceans Canada provides a single window for proponents to apply for an authorization under paragraph 35(2)(b) of the Fisheries Act that will have the same effect as a permit issued under subsection 73(1) of SARA, as provided for by section 74 of SARA. For example, in cases where it is not possible to avoid the destruction of critical habitat, the project would either be unable to proceed, or the proponent could apply to the Department of Fisheries and Oceans for a permit under section 73 of SARA or an authorization under section 35 of the Fisheries Act that is compliant with section 74 of SARA. In either case, the SARA permit or Fisheries Act authorization would contain terms and conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.

In considering applications for authorizations under the Fisheries Act that would, if approved, have the same effect as a permit under section 73 of SARA, the Minister of Fisheries and Oceans is required to form the opinion that the activity is for a purpose set out in subsection 73(2) of SARA, that is, that the activity is scientific research relating to the conservation of the species and conducted by qualified persons, that the activity benefits the species or is required to enhance its chance of survival in the wild, or affecting the species is incidental to the carrying out of the activity. Furthermore, the pre-conditions set out in subsection 73(3) of SARA must also be satisfied. With respect to the latter, this means that prior to issuing SARA-compliant Fisheries Act authorizations, the Minister of Fisheries and Oceans must be of the opinion that all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted, that all feasible measures will be taken to minimize the impact of the activity on the species, its critical habitat or the residences of its individuals, and that the activity will not jeopardize the survival or recovery of the species.

The future impact of the Order was assessed by reviewing the scale and types of past “projects” that were assessed by Fisheries and Oceans Canada and that occurred within or adjacent to Westslope Cutthroat Trout, Alberta population, critical habitat from 2009 to 2013. Of the eight referrals found in the review, for some, advice was given by Fisheries and Oceans Canada, which took the presence of Westslope Cutthroat Trout, Alberta population, into consideration. The advice included full preventative measures to be taken and best management practices to be followed to ensure that destruction of critical habitat would not occur. In one of the eight cases, it was determined that the project would impact the habitat of the species. Thus, an application was made for an authorization under section 35 of the Fisheries Act. An authorization was subsequently issued. It contained, among other things, conditions that mitigated the impacts of the project so that survival or recovery of the species would not be jeopardized. The projects reviewed were considered low to medium risk to fish and fish habitat at the time of assessment. These types of projects will continue to be managed under the existing legislative framework after the entry into force of the Order. Based on the best available information, Fisheries and Oceans Canada has also determined that there are no future projects anticipated within the critical habitat that would need to be mitigated by Canadians or Canadian businesses beyond the requirements of the existing federal regulatory mechanisms highlighted in Table 1 to avoid either destruction of any part of critical habitat or jeopardy to survival or recovery of the species.

Cost-benefit analysis

It is anticipated that there will be no incremental impacts on stakeholders or Aboriginal groups as a result of the Order. Therefore, considering the existing federal regulatory mechanisms, the Order is anticipated to have minimal impact, resulting in negligible incremental costs. The federal government may undertake some additional activities associated with compliance promotion and enforcement. As a result, there may be some incremental costs for the federal government, however these are expected to be low and would be absorbed through existing funding allocations.

As discussed above, given the mechanisms already in place, any benefits resulting from this Order are anticipated to be negligible.

“One-for-One” Rule

Given that the information requirements of the existing regulatory framework are sufficient to promote compliance with the prohibition against destruction of critical habitat triggered by this Order, with no incremental administrative burden on businesses anticipated, the “One-for-One” Rule would not apply to this Order. Notwithstanding this analysis, this Order must be made to satisfy the obligation to legally protect critical habitat by triggering the prohibition under SARA against the destruction of any part of the critical habitat of the Westslope Cutthroat Trout, Alberta population.

Small business lens

At present, compliance for small business is being met through the administration of the existing federal regulatory framework. In addition to federal approvals under other acts, Fisheries Act authorizations and SARA permits are already required for applicants who seek specific permission to contravene prohibitions under subsection 32(1) and section 33 of SARA and subsection 35(1) of the Fisheries Act.

Fisheries and Oceans Canada provides a single window to proponents to apply for a SARA permit under section 73, or for an authorization under paragraph 35(2)(b) of the Fisheries Act, as provided for by section 74 of SARA. Therefore, the small business lens would not apply to this Order, as there would be no incremental costs to small business.

Implementation, enforcement and service standards

Fisheries and Oceans Canada continues to advise stakeholders on an ongoing basis with regard to technical standards and specifications on activities that may contribute to the killing, harming and harassing of individuals of the Westslope Cutthroat Trout, Alberta population. These standards and specifications are aligned with those that will be required once the Order comes into force. Fisheries and Oceans Canada also advises stakeholders on compliance specifications for other acts and regulations administered by the Department that apply to the species and its habitat.

The existing federal regulatory framework applies to the critical habitat of the Westslope Cutthroat Trout, Alberta population. The Order will provide an additional deterrent to the existing regulatory mechanisms and specifically safeguard the critical habitat of the Westslope Cutthroat Trout, Alberta population, through penalties and fines under SARA, including the pursuit of offences punishable on summary conviction or indictable offences.

A contravention of subsection 58(1) of SARA has the same maximum fines as for a contravention of subsection 32(1) or section 33 of SARA. Under the penalty provisions of SARA, a corporation that is not a non-profit corporation, found guilty of an offence punishable on summary conviction, is liable to a fine of not more than $300,000. A non-profit corporation is liable to a fine of not more than $50,000, and any other person is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. A corporation that is not a non-profit corporation, found guilty of an indictable offence, is liable to a fine of not more than $1,000,000, a non-profit corporation, to a fine of not more than $250,000, and any other person, to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both. It should be noted that maximum fines for a contravention of the prohibitions under subsections 35(1) or 36(3) of the Fisheries Act are higher than maximum fines for a contravention of SARA subsection 32(1), section 33, or subsection 58(1).

Any person planning on undertaking an activity within the critical habitat of the Westslope Cutthroat Trout, Alberta population, should inform himself or herself as to whether that activity might contravene one or more of the prohibitions under SARA and, if so, should contact Fisheries and Oceans Canada.

For more details on applying for a SARA permit under section 73, or for SARA-compliant Fisheries Act authorizations contemplated by section 74 of SARA, please visit: http://www.dfo-mpo.gc.ca/species-especes/permits-permis/permits-eng.htm or contact the Fisheries Protection Program at http://www.dfo-mpo.gc.ca/pnw-ppe/contact-eng.html.

Contact

Julie Stewart
Director
Integrated Species at Risk
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Fax: 613-990-4810
Email: SARA_LEP@dfo-mpo.gc.ca

  • Footnote a
    S.C. 2002, c. 29
  • Footnote b
    S.C. 2002, c. 29
  • Footnote 1
    http://www.sararegistry.gc.ca/document/default_e.cfm?documentID=1304
  • Footnote 2
    http://esrd.alberta.ca/fish-wildlife/species-at-risk/species-at-risk-publications-web-resources/fish/documents/SAR-WestslopeCutthroatTrout-RecoveryPlan-A-Mar2013.pdf
  • Footnote 3
    For critical habitat or portion of it located in a national park of Canada named and described in Schedule 1 to the Canada National Parks Act (http://laws-loi.justice.gc.ca/eng/acts/N-14.01), the Rouge National Urban Park established by the Rouge National Urban Park Act (http://laws-loi.justice.gc.ca/eng/acts/R-8.55), a marine protected area under the Oceans Act (http://laws-loi.justice.gc.ca/eng/acts/O-2.4), a migratory bird sanctuary under the Migratory Birds Convention Act, 1994 (http://laws-loi.justice.gc.ca/eng/acts/M-7.01) or a national wildlife area under the Canada Wildlife Act (http://laws-loi.justice.gc.ca/eng/acts/W-9), a description of the critical habitat or portion of it that is in that park, area or sanctuary must be published in the Canada Gazette within 90 days after the recovery strategy or action plan that identified the critical habitat is included in the SAR Public Registry.
  • Footnote 4
    S.C. 2002, c.29
  • Footnote 5
    The examples listed are neither exhaustive nor exclusive. The absence of a specific human activity does not preclude or fetter the competent ministers’ ability to regulate human activities to prevent destruction of critical habitat. Furthermore, the inclusion of an activity does not result in its automatic prohibition, since it is the destruction of critical habitat that is prohibited, not the activity.