Scott Islands Protected Marine Area Regulations: SOR/2018-119
Canada Gazette, Part II, Volume 152, Number 13
June 12, 2018
CANADA WILDLIFE ACT
P.C. 2018-714 June 11, 2018
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to section 12footnote c of the Canada Wildlife Act footnote b, makes the annexed Scott Islands Protected Marine Area Regulations.
Scott Islands Protected Marine Area Regulations
1 The following definitions apply in these Regulations.
aircraft includes an air vehicle which does not have a pilot on board. (aéronef)
Protected Marine Area means the Scott Islands Protected Marine Area established by order of the Governor in Council. (zone marine protégée)
vessel means a boat, ship or craft that is designed, used or capable of being used solely or partly for navigation in, on, through or immediately above water, without regard to method of propulsion or lack of it, and includes any such vessel that is under construction, but does not include a floating object of a prescribed class established under the Canada Shipping Act, 2001. (bâtiment)
2 (1) It is prohibited to
- (a) carry out any activity that is likely to disturb, damage or destroy wildlife or its habitat in the Protected Marine Area or to remove wildlife or its habitat from the Protected Marine Area;
- (b) dump or discharge any waste material or substance that is likely to harm wildlife or degrade the quality of wildlife habitat in the Protected Marine Area;
- (c) introduce any living organism that is likely to harm wildlife or degrade the quality of wildlife habitat in the Protected Marine Area;
- (d) fly an aircraft above the flight restriction zone described in subsection (2) at an altitude that is below 3500 feet above mean sea level;
- (e) be within 300 metres of the low water mark of the Triangle, Sartine or Beresford Islands; or
- (f) anchor a vessel of more than 400 gross tonnes within one nautical mile (1852 metres) of the low water mark of the Triangle, Sartine or Beresford Islands.
Flight restriction zone
(2) The flight restriction zone depicted in the schedule is the part of the Protected Marine Area that is bounded by a line, based on the North American Datum 1983, Canadian Spatial Reference System (NAD83 CSRS) 1997 epoch, commencing at latitude 50°49′22″ north and longitude 128°31′29″ west, then along a rhumb line to a point at latitude 50°56′14″ north and longitude 129°05′39″ west, then along a rhumb line to a point at latitude 50°50′14″ north and longitude 129°08′22″ west, then along a rhumb line to a point at latitude 50°43′22″ north and longitude 128°34′47″ west and then along a rhumb line to the point of commencement.
Exception — public safety, national security or emergency
3 Section 2 does not apply in respect of an activity carried out for the purpose of public safety or national security or in response to an emergency.
Exception — foreign vessels or aircraft
4 Section 2 does not apply in respect of activities of foreign vessels or aircraft in the part of the Protected Marine Area situated within the exclusive economic zone of Canada, unless the application of that section is consistent with Article 56 of the United Nations Convention on the Law of the Sea, signed by Canada on December 10, 1982.
Exception — fishing and navigation
5 Paragraphs 2(1)(a) and (b) do not apply in respect of
- (a) fishing carried out in accordance with the Coastal Fisheries Protection Act and the Fisheries Act;
- (b) the navigation of a vessel in accordance with the Canada Shipping Act, 2001; or
- (c) the navigation of a vessel that belongs to a foreign military force or that belongs to or is under the command of the Canadian Forces.
Exceptions — certain federal or provincial officers or employees
6 Paragraphs 2(1)(d) and (e) do not apply in respect of
- (a) a federal or provincial enforcement officer when they are performing their duties or functions or a person who is acting under their direction or control; or
- (b) an employee or officer of the government of British Columbia who, in the course of performing their duties or functions, is carrying out an activity for the purpose of wildlife research or the conservation or interpretation of wildlife, or a person who is acting under the direction or control of that employee or officer.
7 (1) Despite section 2, the Minister may, on application, issue a permit authorizing any person or government body to carry out an activity described in that section if
- (a) the purpose of the proposed activity is to promote the conservation of wildlife or its habitat in the Protected Marine Area, the proposed activity is likely to provide benefits for the conservation of that wildlife or habitat that outweigh any adverse effects that it is likely to have on them and there is no alternative to the proposed activity that is likely to provide the same or equivalent benefits but that is likely to have less significant adverse effects on that wildlife or habitat; or
- (b) the adverse effects that the proposed activity is likely to have on wildlife or its habitat in the Protected Marine Area do not compromise their conservation, or are not likely to do so as a result of the applicant taking the measures described in paragraph (2)(d), and there is no alternative to the proposed activity that allows the applicant to achieve the same outcome but that is likely to have less significant adverse effects on that wildlife or habitat.
Information to be provided
(2) The application must include the following information:
- (a) the applicant’s contact information;
- (b) details regarding the activity that the applicant proposes to carry out, including
- (i) the purpose of the activity,
- (ii) the location where it will be carried out,
- (iii) the conveyances that will be used,
- (iv) the types of equipment that will be used, and
- (v) the number of persons who will be carrying out the activity and their qualifications;
- (c) details regarding the effects that the activity is likely to have on wildlife or its habitat in the Protected Marine Area, including
- (i) the likelihood that the effects will occur and their scope, and
- (ii) the likely effects on birds or their habitat or on species that are a significant source of food for birds; and
- (d) details regarding the measures that will be taken by the applicant to monitor the effects described in paragraph (c) and to prevent or, if prevention is not feasible, mitigate any adverse effects.
Criteria — evaluating effects
8 The Minister must, in evaluating the likely effects of a proposed activity on wildlife or its habitat in the Protected Marine Area and determining if the effects are adverse, consider the following:
- (a) the likelihood that the effects will occur and their scope;
- (b) the capacity of wildlife to recover or its habitat to be restored, if the effects occur;
- (c) the likely effects on birds or their habitat or on species that are a significant source of food for birds; and
- (d) the cumulative effects of the proposed activity when combined with the effects of other activities carried out in the Protected Marine Area.
9 A permit must include the following conditions:
- (a) the permit holder must notify the Minister of any change to any information provided in the application for the permit; and
- (b) each individual who carries out an activity authorized by the permit must carry a copy of the permit on their person at all times when in the Protected Marine Area.
10 A permit may include any other conditions with respect to
- (a) the locations, dates, duration and frequency of the activity that may be carried out and the types of equipment or conveyances that may be used;
- (b) the name and type of any vessel that may be used to carry out the activity, the State in which it is registered, its registration number, radio call sign and the name and address of its owner, master and operator;
- (c) the measures that the permit holder must take to
- (i) monitor the effects that the activity is likely to have on wildlife or its habitat in the Protected Marine Area, and
- (ii) prevent or, if prevention is not feasible, mitigate any adverse effects;
- (d) the reports that the permit holder must provide to the Minister with respect to the activity, including its actual and likely effects on wildlife or its habitat in the Protected Marine Area; and
- (e) the minimum or maximum number of persons that may carry out the activity and the qualifications they are required to possess.
Maximum duration of permit
11 A permit expires on the fifth anniversary of the day on which it is issued or the date of expiry set out in the permit, whichever is earlier.
Suspension and Cancellation
12 (1) The Minister may suspend a permit if
- (a) it is necessary to do so for the conservation of wildlife or its habitat in the Protected Marine Area, particularly in relation to birds or species that are a significant source of food for birds; or
- (b) the permit holder has failed to comply with any condition of the permit.
Period of suspension
(2) The permit is suspended until the day on which the Minister notifies the permit holder that the suspension of the permit is lifted.
Lifting of suspension
(3) The Minister must lift the suspension when the grounds for the suspension no longer exist or when the permit holder has taken the measures that are necessary to remedy the situation.
13 The Minister may cancel a permit if
- (a) it is necessary to do so for the conservation or wildlife or its habitat in the Protected Marine Area, particularly in relation to birds or species that are a significant source of food for birds;
- (b) there are grounds on which to suspend the permit under subsection 12(1) and the permit has been suspended at least twice before;
- (c) the permit has been suspended for at least six months; or
- (d) the permit holder has provided false or misleading information.
Coming into Force
14 These Regulations come into force on the day on which they are published in the Canada Gazette, Part II.
Map of the Flight Restriction Zone in the Protected Marine Area
In this schedule, the lines connecting the points are rhumb lines.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
A recent assessment of the population trends of monitored seabirds around the world indicates a population decline of 70% since 1950.footnote 1 Another recent study found that only 9% of 1 451 migratory bird species benefit from protected areas across all stages of their migration, and that this lack of consistent protection is driving rapid population declines of migratory birds around the world.footnote 2 The 2016 report, entitled The State of North America’s Birds,footnote 3 states that the outlook for oceanic birds including seabirds “is the bleakest of any North American bird group.” The report identifies several threats to seabirds, including invasive predators at nesting sites, overfishing of forage fish stocks, accidental bycatch by commercial fishing vessels, pollution, and climate change. Disturbance to nesting seabirds is also commonly cited as a threat to reproductive success. Preserving the habitat of seabirds — many of which are migratory — is key to their conservation.
Located off the northwest tip of Vancouver Island, British Columbia (BC), the Scott Islands and surrounding waters make up one of the most productive and biologically diverse marine ecosystems on the Canadian Pacific coast, particularly for seabirds. The islands themselves are protected provincially, thereby providing a level of protection from threats to the breeding and nesting habitat of seabirds. However, the surrounding marine environment, which is important foraging habitat for seabirds and other marine species, is not afforded the same level of protection. This creates a corresponding risk of certain human activities or disturbances occurring in the marine environment that could have adverse effects on the breeding productivity and survival of seabirds and marine species that frequent this area. Despite the area’s high concentration of seabirds, changes to habitat and declining populations for certain species demonstrate the vulnerability of seabirds and other marine life in the area.
The Scott Islands are an archipelago of five islands. The land area and the foreshorefootnote 4 of all five islands are protected by the Provincial Government of BC (Lanz and Cox Islands Provincial Park, Beresford Island Ecological Reserve, Sartine Island Ecological Reserve, and Anne Vallée [Triangle Island] Ecological Reserve). Triangle Island, which is the furthest from the coast of Vancouver Island at approximately 45 km from Cape Scott, is the site of the largest seabird breeding colony on Canada’s Pacific coast. The Province has closed the ecological reserves to the public to protect the breeding birds and their nesting habitat, but scientific research for the purpose of seabird conservation is allowed through the issuance of permits. Lanz and Cox Islands Provincial Park is zoned for wilderness conservation and receives few visitors. In addition, located on the northwestern tip of Vancouver Island is Cape Scott Provincial Park which allows for low-impact activities, such as hiking and wilderness camping. The Province manages activities in these protected areas through provincial legislation (the Park Act, the Ecological Reserve Act, and the Protected Areas of British Columbia Act), which includes provisions that allow for some activities to occur via a Letter of Authorization or a Park Use Permit. Further information on all six provincially protected areas is available at BC Parks.
The Department of Fisheries and Oceans Canada (DFO) also provides protection in the waters around Lanz, Cox, Beresford and Sartine Islands where there is a Rockfish Conservation Area, which protects inshore rockfish from mortality associated with some recreational and commercial fisheries under the Fisheries Act and its associated regulations. With regards to bottom trawling, currently 80% of the proposed Protected Marine Area (PMA), which will be commonly referred to by the Department of the Environment (the Department) as the Scott Islands marine National Wildlife Area, is closed to bottom trawl fisheries for groundfish under the Fisheries Act and its associated regulations.
In this transition zone between the Alaska and California currents, tidal mixing, summer winds and prevailing currents create an environment favourable to high marine productivity and diversity. The highly productive waters around the Scott Islands attract millions of seabirds seeking food. The Scott Islands support the highest concentration of breeding seabirds in the Canadian Pacific, sustaining 40% of BC’s seabirds, including 90% of Canada’s Tufted Puffins, 95% of Pacific Canada’s Common Murre, 50% of the world’s Cassin’s Auklets and 7% of the global population of Rhinoceros Auklet. The surrounding ocean waters are key foraging habitat for the birds that nest on the islands, and also attract an additional 5–10 million migratory birds annually that may travel vast distances across the Pacific to feed on the abundance of small fish and zooplankton in the area. Several species that nest in or frequent the area have been identified as being at risk, either globally by the International Union for Conservation of Nature (IUCN) or nationally under the Species at Risk Act (SARA). Examples are the Black-footed Albatross (IUCN, near-threatened; SARA, special concern), the Short-tailed Albatross (IUCN, vulnerable; SARA, threatened), the Pink-footed Shearwater (IUCN, vulnerable; SARA, threatened), the Sooty Shearwater (IUCN, near-threatened), the Buller’s Shearwater (IUCN, vulnerable), the Marbled Murrelet (IUCN, endangered; SARA, threatened), the Ancient Murrelet (SARA, special concern), and the Cassin’s Auklet (assessed as special concern by the Committee on the Status of Endangered Wildlife in Canada [COSEWIC] and a candidate to be added to Schedule 1 of SARA). In 1997, the Scott Islands were identified as an Important Bird Area (IBA) by BirdLife International,footnote 5 recognizing the essential habitat they provide to Canada’s bird population, as well as the importance of the area to the conservation of bird species worldwide. In addition to being a key area for seabirds, the marine area around the Scott Islands has also been identified as an Ecologically and Biologically Significant Area (EBSA) by DFO due to the high marine productivity and diversity of marine mammals and fish species present, and because it contains important habitat for several marine mammal species that are listed under SARA.
Significance to First Nations
West Coast First Nations have a long-standing connection to the ocean and its resources. The Scott Islands and surrounding marine area overlap with the territories of the Quatsino and Tlatlasikwala First Nations. The region is their ancestral home and continues to hold important cultural and spiritual significance for them. A traditional knowledge and use study footnote 6 inventoried 38 documented ethno-historic sites and 14 archaeological sites within the Scott Islands area. The data compiled for this study indicate that the Scott Islands and surrounding marine area were, and continue to be, significantly important for local First Nations.
The area is a hub of research, with the focus being on wildlife species, particularly seabirds and other migratory birds. The two primary commercial activities in the area are fishing and marine transportation. There are various fisheries, which include longline, troll, trap and trawl methods of fishing. There are no ports on the coast of the PMA and anchorage is relatively exposed, which means that most marine vessels are transiting through the PMA. While there are some deep sea shipping vessels and cruise ships that pass through to large ports along the Pacific coast, there are also many in transit that are directly related to and support economic activities on northern Vancouver Island, such as tug/tow vessels related to the local forest industry. Although most guided fishing and marine wildlife companies in the area are based out of Port Hardy, the PMA makes up part of the marine area that they frequent, depending on the season and the weather. There is also limited water taxi transportation, with many of the clients being campers at Cape Scott Provincial Park. Recreational fishing and boating activities also take place in the area but are limited due to the remote location and often unpredictable waters. Due to federal and provincial moratoria on oil and gas (O&G) exploration and development implemented in 1972, the full value of O&G resources in the Pacific offshore is currently unknown.
Threats to Scott Islands seabirds
Although this area has the highest concentration of seabirds on the Canadian Pacific coast, changes to habitat and declines in certain species over the years demonstrate the vulnerability of the continued vitality of these populations. Some of the characteristics and behavioural traits of seabirds make them particularly vulnerable to the effects of human activities in the marine environment. For example, many seabird species produce a small number of eggs (or even a single egg) per year and do not necessarily breed every year. This means that the deaths of breeding adults can have a substantial impact on populations over time. Several threats have been identified to seabirds in the Scott Islands area, including the following:
- Disturbance from human activities, in particular to the nesting colonies.footnote 7 Noise and physical disturbance can cause seabirds to abandon their nests or young, or to use valuable energy reserves for defence instead of incubating eggs and feeding their young. The presence of humans near nests may prevent adults from returning to protect and feed young, and expose eggs or young to predation and the effects of the weather. Away from the nesting colonies, disturbance can flush seabirds from feeding and roosting areas, causing them to stop feeding and lose prey intended for their young and to use energy that would otherwise be used for survival.
- Introduced mink and raccoon to Lanz and Cox Islands have eliminated the nesting colonies on these islands.
- The colonies on the Triangle, Sartine, and Beresford Islands are vulnerable to predator introductions, namely from rats that could jump from ships or be deposited on the islands from disabled boats or lost cargo.
- Oil spills from ships, due to accidents or chronic dumping, continue to be a threat to seabirds and marine wildlife. Analysis of oil discharges within the Exclusive Economic Zone (EEZ) on the Pacific coast by aerial surveillance detected 101 discharges between 2008 and 2010.footnote 8 A preliminary spatial assessmentfootnote 9 of risk based on these analyses identifies northwest Vancouver Island as an area important to marine birds that is potentially at higher risk of exposure to oiling. The rate of surveillance within or near the PMA is low, and it is estimated that less than 1% of occurrences are currently detected in this area.footnote 10
- Incidental bycatch in fishing gear is a known threat to seabirds in general. Seabird bycatch in longline fisheries is known to occur within the PMA. Seabird bycatch in bottom trawl fisheries has not been documented within the PMA, but has been elsewhere on the Pacific Coast. Seabirds are also susceptible to being caught in gillnets, although these fisheries do not currently take place in the PMA.
- Marine debris, which can be ingested by seabirds or entangle them, and microplastics, which can be ingested by seabirds and their prey, are also present in the area and can cause both direct and indirect harm to seabirds.
- Forage fish are a key component of marine ecosystems and transfer energy from plankton to upper trophic predators, including seabirds. Fisheries of forage species can create shifts in prey abundance and distribution, and have been linked to seabird population declines in other areas. Forage fisheries do not currently exist in the PMA.footnote 11
- The effects of climate variability are having an impact on seabirds in the area and globally, as their food availability, survival and reproduction vary with changing ocean conditions.
- Bottom trawl fishing and other activities that disturb benthic habitats can damage sensitive habitats important to marine species, including seabird prey species. Pacific sand lance, a key seabird forage species, is linked to particular benthic habitats within the PMA and could be impacted by such activities. The severity and longevity of the impact vary depending on factors such as depth, substrate, the intensity, frequency and spatial extent of the disturbance, the natural disturbance regime, and the life histories of the species being impacted.
- Oil and gas development could lead to increased risks for birds related to spills and increased chronic oil pollution during extraction and transport, as well as issues with collisions and light attraction with platforms.
Selection as a candidate area for marine protection
Three federal departments have a mandate, under various legislation, to protect marine areas in Canada: Marine Protected Areas (MPAs) established under the Oceans Act and managed by DFO; National Marine Conservation Areas established under the Canada National Marine Conservation Areas Act and managed by Parks Canada Agency (PCA); and PMAs, established under the Canada Wildlife Act (CWA) and managed by the Department. In addition to these core marine protected area programs, migratory bird sanctuaries, terrestrial national wildlife areas, and national parks with a marine component are also considered important contributors to the marine protected areas network. These protected areas are established under the Migratory Birds Convention Act, 1994 (MBCA), the CWA, and the Canada National Parks Act respectively. Each form of marine protection has a different conservation mandate and management approach; therefore, the selection of the appropriate federal legislative mechanism is based on the distinct conservation needs of the candidate area.
The marine area around the Scott Islands was first identified as a possible candidate area for protection in 1995 by the Department and others, given identified threats to seabirds in the area. In 2003, the Government of Canada officially announced that the Department would establish a protected area in the waters around the Scott Islands. Protection of this marine area was determined to be best accomplished by the Department, as it has the explicit mandate for the conservation of migratory birds through the MBCA and the CWA. A protected marine area established under the CWA was determined to provide the most appropriate framework for the protection of the marine foraging habitat, as it provides the authority to protect areas for the preservation of habitats that are critical to migratory birds and other wildlife species, particularly for those that are in danger of extinction. The area also met the following criteria used to determine appropriate areas to be protected under the CWA: the area supports at least 1% of the Canadian population of a species; the area supports an appreciable assemblage of species of migratory birds or species at risk; and, the area is a unique wildlife habitat whose characteristics contribute to exceptional conditions for seabirds and other marine wildlife.
Process for protection
Under the CWA, the establishment of the boundaries of a protected marine area, and putting conservation measures in place within this area, requires two legal instruments. The first instrument is an Establishment Order made by the Governor in Council under subsection 4.1(1) of the CWA establishing the protected marine area and designating its boundaries. The second instrument is made under section 12 of the CWA, which provides the Governor in Council with the authority to make regulations prescribing measures for the conservation of wildlife in the protected marine area.
An Order in Council designating the boundaries of the PMA has been made. The PMA comprises 11 546 km2 of entirely marine environment, composed of internal waters, the territorial sea, and the EEZ of Canada. This area will contribute to Canada’s commitment to protect 10% of its marine and coastal areas by 2020. The Department intends to recognize the PMA as a Category VI protected area whose aims include the conservation of biodiversity and the sustainable use of the area, noting that this IUCN protected area management category is assigned based on the primary stated management objective of the marine protected area which must apply to 75% of the MPA.
The primary conservation objective of the PMA as a whole is to conserve migratory seabirds, species at risk, and the habitats, ecosystem linkages and marine resources that support these species. This will be achieved through various means.
The overall management framework for the PMA will include the Scott Islands Protected Marine Area Regulations, proposed complementary regulatory and non-regulatory measures by DFO and Transport Canada (TC), collaborative management with the Province of BC, and the Quatsino and Tlatlasikwala First Nations, as well as an adaptive Scott Islands management plan (Management Plan) informed by advice from a renewed advisory committee.
The specific objective of the Scott Islands Protected Marine Area Regulations (the Regulations) is to provide an effective framework for the management of human activities that may interfere with the conservation primarily of the migratory seabirds, but also of other wildlife and wildlife habitat in the area, thus contributing to the achievement of the primary conservation objective of the PMA.
The Regulations describe prohibited and exempted activities in the PMA, and establish a permitting scheme to authorize activities that may have an impact on the environment, but that have been evaluated to be compatible with the conservation objectives of the PMA.
The Regulations, subject to some exceptions, enact prohibitions with the purpose of preventing activities from occurring in the PMA that would threaten the vitality of the Scott Islands marine environment, thus providing protection to the area’s wildlife and wildlife habitat, in particular for seabirds. The prohibited activities are the following:
- Disturbing, damaging, destroying or removing wildlife or wildlife habitat. The Regulations prohibit activities that would be likely to disturb damage, destroy, or remove wildlife or wildlife habitat in the PMA.
- Dumping or discharging waste material or any substance that is likely to harm wildlife or degrade the quality of its habitat. The purpose of this prohibition is to ensure that humans conducting activities in the PMA do not introduce pollution into the environment that would threaten wildlife in the PMA or the habitat on which it depends for survival.
- Introducing living organisms. It is prohibited to introduce any living organism that is likely to result in harm to wildlife or degrade the quality of its habitat.
- Low-level overflight. In order to prevent air traffic related disturbance of the birds, the Regulations prohibit flight below 3 500 feet above mean sea-level within a defined rectangular area that is within a minimum of one nautical mile of the low-water mark of Lanz, Cox, Beresford, Sartine, and Triangle Islands.
- Approach and anchorage. The Regulations set out two prohibitions in the vicinity of the seabird nesting colonies, which are on Triangle, Sartine, and Beresford Islands:
- a. It is prohibited to be within 300 m of the low-water mark of these three islands (e.g. in a vessel); and
- b. Vessels displacing greater than 400 gross tonnage are prohibited from anchoring within one nautical mile of the islands.
The prohibitions remain fairly consistent with the proposed Regulations as published in the Canada Gazette, Part I (CGI), with the exception of the flight prohibition. It had been originally proposed that the flight restriction applies to the entire PMA. However, flight safety issues were identified, due to the unique weather conditions of the Scott Islands area, including low cloud cover. As such, a decision was made to reduce the area of application of the restriction to a rectangular area, being a minimum of one nautical mile from the low-water mark of Lanz, Cox, Beresford, Sartine, and Triangle Islands, where seabirds congregate to breed and nest. This prohibition was also amended from what had been proposed to the use of imperial units of measurement (3 500 feet) instead of metric units (approximately 1 100 m), for consistency with flight instrumentation and ease of reference for pilots. Additional information on the feedback received on the flight restriction can be found below in the Consultation section.
The prohibitions are meant to reduce the chances of specific threats to nesting birds from occurring. The first threat is predator introduction to the nesting islands. Ground or burrow nesting seabirds on the Scott Islands are very vulnerable to predation from mammal predators that can eliminate or drastically reduce populations of seabirds. In some other areas, rats have reached nesting islands from ships, either by jumping off or by being deposited from disabled ships or spilled cargo. While introduced raccoons and mink have eliminated seabirds from Lanz and Cox Islands, the other nesting islands in the Scott Island group remain predator-free. Pending First Nations support, the Department is proposing a predator-eradication program for Lanz and Cox islands using investments proposed in Budget 2018 and with the support of, and in partnership with, the Quatsino and Tlatlasikwala First Nations, the Province of BC, and the environmental non-governmental organization (ENGO) community. This program would effectively create a significant amount of new, available habitat for nesting seabirds through the removal of introduced predators.
The second threat is from spills from boats or ships due to beaching. The waters in the area can be very rough and unpredictable, and reefs extend from and around the islands. The prohibition against being within 300 m of the low-water mark of the Triangle, Sartine or Beresford Islands is intended to prevent human disturbance to the nesting birds, and complements the existing provincial Ecological Reserve designations, which prohibit access to the islands without a permit. The setback distances are consistent with existing policy guidance from the Department. These prohibitions do not apply to Lanz or Cox Islands, however, as they constitute a park with public access for boaters and provide safe, temporary anchorage in adverse weather conditions.footnote 12 They also currently do not have significant nesting seabird colonies. These prohibitions may be considered in the future, however, after introduced predators on the islands are eliminated and seabird colonies re-established.
The Regulations include exemptions to allow for certain activities within the PMA, which would otherwise contravene one or more of the prohibitions, to occur without a permit issued under the Regulations. The exemptions are as follows:
- Public safety, national security or emergency. Activities that occur for reasons of public safety, national security or in response to an emergency are not subject to the prohibitions. Such activities may include, among others, search and rescue operations or response to an incident that has resulted in the release of unauthorized hazardous waste.
- Foreign vessels or aircraft. The prohibitions apply to foreign vessels or aircraft in the part of the PMA situated within the EEZ of Canada only to the extent that the application of the Regulations is compatible with Article 56 of the United Nations Convention on the Law of the Sea, which addresses rights, jurisdiction, and duties of the coastal state in the EEZ.
- Fishing and navigation. The Regulations exempt current fishing from the prohibitions against disturbing, damaging, destroying or removing any wildlife or wildlife habitat, as well as against dumping or discharging harmful waste material or substances, so long as it is carried out in accordance with the Fisheries Act and the Coastal Fisheries Protection Act and their regulations. The Regulations also exempt marine navigation from the same prohibitions, so long as it is carried out in accordance with the Canada Shipping Act, 2001 and its regulations. This ensures that the regulation of these activities remain under the authority of DFO and TC, respectively. The reason for these exemptions for fishing and navigation is that it has been found, through research and analysis conducted by the Department, that, for the most part, as long as fishing and navigation activities in the PMA are carried out in accordance with existing legal requirements and voluntary measures that aim to minimize threats to wildlife, footnote 13 their adverse environmental effects are minimal, and they are therefore compatible with the conservation objectives of the PMA. As part of the regulatory framework for the area, fishing activities are managed by DFO through the Sustainable Fisheries Framework, which provides the foundation of an ecosystem-based and precautionary approach to fisheries management in Canada to support conservation and sustainable use. The Framework incorporates existing fisheries management policies with new and evolving policies and includes tools to monitor and assess those initiatives (e.g. Integrated Fisheries Management Plans). As a result, the Department is working with DFO to develop and implement additional conservation measures, research, and to prohibit certain fisheries to mitigate the effects of sustainable fisheries so that they do not negatively impact the conservation objectives of the area.
The navigation of foreign military vessels or vessels that belong to, or are under the command of, the Canadian Forces are also exempt from the prohibitions against disturbing, damaging, destroying or removing any wildlife or wildlife habitat, as well as against dumping or discharging harmful waste material or substances. These exemptions ensure that existing permitting processes are not duplicated. For instance, fishing activities in the PMA could occur as long as they have been permitted by DFO and are carried out in accordance with the applicable laws. However, the exemptions do not apply to some prohibitions, such as the prohibition of being within 300 m of the low-water mark of Triangle, Sartine, and Beresford Islands; therefore, DFO permitted fishing could not occur within this zone unless it was also authorized through a permit under the Regulations. These recommendations may result in new future protections under the Fisheries Act, the Coastal Fisheries Protection Act, and the Canada Shipping Act, 2001 and the regulations.
- Enforcement and conservation activities. Enforcement activities carried out by federal or provincial enforcement officers or officials in the performance of their duties or functions, British Columbia public servants in the course of performing their duties in relation to wildlife research, conservation or interpretation, and persons acting under their direction or control (e.g. students, contractors, charters) are exempt from the prohibitions against flying an aircraft below 3 500 feet above mean sea-level within the defined rectangular area that is a minimum of one nautical mile of the low-water mark of Lanz, Cox, Beresford, Sartine, and Triangle Islands and from being within 300 m of the low-water mark of Triangle Island, Sartine Island, or Beresford Island. The purpose of these exemptions is to allow provincial public servants access to the islands and to avoid interfering with enforcement activities occurring close to the islands.
The exemptions remain consistent with the proposed Regulations as published in CGI, with the following exceptions.
The proposed Regulations published in CGI included an exemption for fishing activities carried out in accordance with the Fisheries Act, except fishing for three key forage species of seabirds: Pacific sand lance, Pacific saury, and North Pacific krill. While fishing for these species currently does not occur within the PMA, a North Pacific krill fishery does exist elsewhere, and it is possible that there could one day be an interest in developing these resources within the PMA. The Regulations effectively would have prohibited fishing for these species within the PMA. However, the prohibition against fishing for the three forage species has not been included in the final Regulations. Following discussions between the Department and DFO it has been established that for legislative consistency and clarity for regulated communities, continuing to manage fisheries under the Fisheries Act is the most effective and efficient approach.
As part of the overall approach to the area, DFO anticipates issuing a public Notice of Intent to regulate fisheries within the PMA shortly following its designation. DFO will consult on a new Fisheries Act regulation which would include a regulatory prohibition on bottom trawling in 80% of the PMA, a prohibition on fishing for three key forage species, and potential prohibitions to other gear types where best available science indicates they pose a risk to the conservation objectives of the PMA. Preliminary engagement on these potential prohibitions has been initiated.
DFO currently provides protection in the waters around Lanz, Cox, Sartine, and Beresford Islands through a Rockfish Conservation Area, which protects inshore rockfish from mortality associated with recreational and commercial fisheries under the Fisheries Act and its associated regulations. With regards to bottom trawling, currently 80% of the PMA is closed to bottom-trawl fisheries for groundfish also by way of a Variation Order under the Fisheries Act and its associated regulations.
In the interim, until a new regulation is in place, the Minister of Fisheries, Oceans and the Canadian Coast Guard intend to maintain the existing fishing restrictions that support the PMA and intend not to authorize any new fishing activity in the PMA that is deemed to pose a risk to the conservation objectives of the PMA based upon the best available science.
The exemption for federal and provincial enforcement officers in the course of performing their duties or functions was amended from what had been proposed in CGI to apply to the flight restriction and to include individuals under the direction of federal and provincial enforcement officers, such as students and contractors in order to ensure that law enforcement activities continue to be undertaken as efficiently as possible.
A new exemption was added for British Columbia’s public servants, in the course of performing their duties in relation to wildlife conservation and interpretation, and persons acting under their direction or control (e.g. students, contractors, charters), from the flight prohibition and the prohibition against being within 300 m of the low-water mark of the Triangle, Sartine or Beresford Islands.
The Regulations set out a permitting scheme in which the Minister of the Environment and Climate Change Canada (the Minister) may issue a permit authorizing an activity to occur that would otherwise be prohibited. The permit is assigned with terms and conditions. A proposed activity may be permitted if it meets the criteria set out below in regard to the impacts that the activity is likely to have on wildlife or wildlife habitat in the PMA:
- Activities whose purpose is to promote the conservation or protection of wildlife or wildlife habitat in the PMA. Permit applicants are required to demonstrate that
- a. the likely benefits of the proposed activity for the conservation or protection of wildlife or wildlife habitat outweigh any likely adverse effects; and
- b. there are no alternatives to the proposed activity that would be likely to produce the same or equivalent benefits for the conservation or protection of wildlife or wildlife habitat, that would have less significant adverse effects.
- Any other activities. Permit applicants are required to demonstrate that
- a. the adverse effects that the proposed activity will likely have on wildlife or wildlife habitat would not compromise their conservation or protection, taking into account the implementation of proposed measures to monitor, prevent or mitigate the adverse effects; and
- b. there are no alternatives to the proposed activity that would allow the applicant to achieve the same outcome that would have less significant adverse effects.
Permit applications. The Regulations set out the information that permit applicants are required to submit, including administrative information, details pertaining to the requested activity, descriptions of anticipated positive and negative effects on wildlife or wildlife habitat, and explanations of how adverse effects would be prevented or mitigated. The Regulations further establish factors that the Minister would be required to consider in evaluating the effects of a proposed activity on wildlife or wildlife habitat, and to determine whether the effects would be adverse.
Permit conditions. Permit holders are required to notify the Minister of any change to the information provided in the permit application, and to ensure that those conducting the permitted activity have the permit on their person while carrying out the activity in the PMA. A permit may also be subject to additional conditions, such as specific details on the carrying out of activity, monitoring effects and mitigation of adverse effects, the number of persons carrying out the activity and their qualifications, and the reporting requirements.
Permit suspension, cancellation and expiry. The Regulations provide the Minister with the authority to suspend or cancel a permit. These provisions will aid in the management of the PMA for conservation, by providing tools to stop activities temporarily or permanently when warranted. A permit granted under the Regulations is valid for a maximum of five years from the date of issuance.
Coming into force
The Regulations came into force on the day of their publication in the Canada Gazette, Part II (CGII).
Benefits and costs
This analysis presents the benefits and costs by comparing the differences between two scenarios: the policy scenario in which the Regulations are implemented, and a baseline scenario that reflects current and planned activities in the PMA. The only change to the benefits and costs as described in CGI relates to government costs, which increased as a result of the inclusion of additional management and coordination efforts beyond what was proposed at the time of CGI publication.
The Scott Islands and the surrounding marine environment make up a biologically unique and diverse area hosting millions of seabirds and many marine species, including several species at risk. The implementation of the Regulations is expected to benefit wildlife species in the PMA through the enactment of conservation measures via the prohibitions and the permitting scheme.
The prohibitions ensure that several of the main threats to wildlife from human activities, in particular for nesting birds, are minimized. The conservation measures apply additional protections to migratory seabirds while in the PMA. For many, this occurs during the critical reproductive stage. By managing activities in the PMA and minimizing known threats to seabirds, such as predator introductions and fishing of key forage species, the colonies may be more resilient to changes brought on by climate change.
The permitting system ensures that future proposed activities that would be in contravention of the prohibitions are evaluated against higher environmental standards than those under the baseline scenario, and therefore only proceed if they are assessed as being compatible with the conservation objectives of the PMA. Information obtained through reports submitted by permit holders could provide the Department with important information on the interactions and effects of human activities on wildlife in the PMA, and could help in understanding possible ways to mitigate harm.
The Regulations also contribute to the network of marine protected areas in the Pacific region. This results in an additional benefit to the west coast Pacific marine environment and its wildlife species, and contributes to maintaining biodiversity and healthy, resilient marine ecosystems in Canada.
The establishment of the PMA coupled with the funding proposed in Budget 2018 will bring additional attention to an important area and will enable a number of conservation activities to be implemented. A habitat mapping and biological research program will begin post-establishment and, if supported, a predator eradication program will be implemented on Lanz and Cox islands, effectively freeing a significant amount of habitat and making it available for seabirds. All these actions will be guided by a management plan that will be developed in consultation with partners, including Indigenous peoples and the ENGO community.
Local First Nations
First Nations have long used the various seasonally available resources (e.g. fish, mammals, shellfish, crustaceans, sea grasses, kelp) on the Scott Islands and in the surrounding marine area. The implementation of conservation measures through the Regulations will promote a healthy, functioning marine ecosystem that will allow First Nations to continue to access the ocean resources depended on for food, social, and ceremonial purposes. Local First Nations have expressed support for the PMA and the Regulations, as they help protect the ecosystem that First Nations have relied on for generations. The Quatsino and Tlatlasikwala First Nations have been in discussions with the Department regarding collaborative management of the area.
Several communities in the Regional District of Mount Waddington (population 11 035), footnote 14 adjacent to the PMA, rely in part on economic activities which benefit from a healthy marine environment, such as fishing and marine wildlife viewing. Although the extent to which the Regulations will benefit these activities is unknown and has not been quantified, protecting the ecosystem through the prohibitions and permitting system is expected to help the continued viability of these activities in, and in the vicinity of, the PMA.
Canada’s natural heritage is an integral part of its national identity and history. Wildlife is valued by Canadians for aesthetic, cultural, spiritual, recreational, educational, historical, economic, medical, ecological and scientific reasons. footnote 15 A 2011 Ipsos Reid poll conducted for Nature Canada found that 75% of Canadians surveyed “feel that preserving natural areas and the variety of native plant and animal life in Canada is important to them.” Protecting this area provides value to Canadians in terms of the knowledge that an area of ecological importance and biological diversity is being preserved for future generations. Protecting the Scott Islands marine environment, including its wildlife, helps to ensure that the opportunity to encounter the species that rely on this environment (both within the PMA and in other areas that the species frequent) is maintained for future generations.
Commercial and recreational fishing
The Regulations do not significantly impact current fishing activity. All of the fisheries that are presently active in the PMA will continue to be managed by DFO under the Fisheries Act. Although there is some recreational fishing within the 300 m zone of Triangle, Sartine, and Beresford Islands, it is limited due to the remote location of the islands relative to the mainland, and to the ocean conditions in this area which can be unpredictable and hazardous. The 300 m prohibition does not apply around Lanz and Cox Islands, which are the closest islands to the shore of Vancouver Island, so recreational fishing vessels could continue to approach these islands without being in contravention of the Regulations.
Marine transportation — Shipping and navigation
The Regulations do not result in increased costs or impacts on the marine transportation sector. This sector is able to continue its current activities as usual while respecting the applicable prohibitions and the anchorage prohibition for large boats does not affect this sector. Representatives of the shipping industry have indicated that anchorage in this area is not common for large ships.
Recreation and tourism
The Regulations do not result in increased costs or impacts on recreational or tourism activities. Very few personal or commercial tourist boats operate in the vicinity of Triangle, Sartine, and Beresford Islands, given their remote location. Wildlife viewing can still occur from more than 300 m from these islands, and is safer due to the often hazardous ocean conditions around the islands. Currently, there are no airplane or helicopter tours in the area, so the flight restriction does not affect existing tourism activities.
Oil and gas exploration and development
The Minister of Natural Resources (NRCan) issued 36 exploration permits in the 1960s and one exploration licence in the 1990s for areas that are within what is now the PMA. However, the Regulations are not expected to result in increased impacts on offshore O&G activities, or to the holders of the permits and licence.
Since 1972, the federal government has maintained a policy moratorium on O&G exploration and development in the Pacific offshore, which includes those permits and licences for the PMA. The effect of the moratorium is to “suspend” the permits and licence without voiding their validity. If the moratorium were lifted, the owners could exercise the rights conferred in their permits and licences, provided they receive the required authorizations from the Minister of NRCan and/or the National Energy Board. Under the Regulations, if the moratorium was lifted and permit/licence owners pursued those rights, they would be required to seek permits from the Department pursuant to the Regulations. A permit could be issued by the Minister if the adverse effect their activity was likely to have on wildlife or its habitat in the PMA was deemed not to compromise the conservation of the PMA.
The Regulations do not result in increased costs to the renewable energy sector, as there are currently no renewable energy production activities underway within the area. Three investigative licences for wind energy in the PMA are currently held by a renewable energy producer. At this time, no proposed project has been submitted to a provincial or federal environmental assessment process. Proposals for renewable energy production would be subject to the existing environmental assessment process, and authorization through a permit under the Regulations would be required.
The Regulations have a minor impact on the scientific research that may occur in the PMA, as a permit may be required for some research in order to proceed. Most of the current research in the PMA focuses on wildlife, and although it is done for the overall purpose of conservation, some activities may contravene one or more of the prohibitions. The change for many researchers is small, as a multi-year permit could be obtained for research that is long-term, thus limiting the burden. Also, many researchers are already familiar with obtaining government permits, particularly those researchers that currently apply for provincial permits to access the islands.
As the lead authority for the PMA, the Department bears the majority of costs due to the existing management and coordination of the area, as well as for compliance promotion and enforcement activities related to the implementation of the Regulations. Further work and more detailed analysis following publication in CGI have led to an updated estimate of ongoing funding requirements. The Department estimates that the annual salary, capital and operations budget required for management of the PMA will be approximately $700,000. These funds will support the implementation of collaborative management agreements and activities under the Management Plan, including the required collaborative science and ecosystem monitoring for adaptive management of the PMA.
In addition, these resources will support environmental enforcement and compliance monitoring, including working with existing governmental discharge-at-sea detection programs to increase surveillance in the PMA, as well as inspections, investigations and intelligence-gathering activities, including but not limited to the salary of enforcement officers and operational costs, taking into consideration the remote location. The cost for these enforcement and compliance monitoring activities, which is included in the total cost estimate of $700,000, will vary yearly. Also included in the above estimate is the one-time cost of compliance promotion products (e.g. fact sheets, signage) in the first year after the establishment of the PMA, estimated to be between $10,000 and $12,000.
Ongoing compliance promotion in the following years has not been estimated but would likely be considerably less. Administrative costs of the Regulations to the Department are expected to be minimal, as only a few permit applications are expected each year. Budget 2018 proposes to direct funding to the Scott Islands PMA.
Section 5 of the Red Tape Reduction Act (the “One-for-One” Rule) does not apply, because the Regulations do not impose any new administrative burden on business.
Small business lens
The small business lens does not apply, as the Regulations do not impose any compliance or administrative costs on small businesses.
The development of these Regulations has been a collaborative process, and based on the best available information. All interested parties, including local First Nations, federal and provincial government agencies, local and regional governments, industry, and conservation organizations have participated in the process leading to the making of the Regulations.
Consultations on a proposal to establish a protected area in the marine environment around the Scott Islands first started in 2004 with community open houses and information meetings held in Vancouver and several Vancouver Island communities. Meetings were also held with local governments and regional districts on Vancouver Island.
In September 2004, Canada and the Province of BC signed the Memorandum of Understanding (MOU) Respecting the Implementation of Canada’s Oceans Strategy on the Pacific Coast of Canada to collaborate on the implementation of specific activities and objectives identified in the Oceans Strategy. Under the MOU, Canada and the Province of BC agreed to develop subsidiary agreements, one of which was to develop a framework to coordinate the establishment of marine protected areas on the Pacific coast. During early discussions regarding the subsidiary agreement, the Scott Islands marine area was identified as a priority under the new framework. As a result, the Department postponed further consultation while work was underway to develop the agreement. While the agreement was never finalized, the Department and the Province of BC did develop an action plan on a process and path forward for the PMA.
The Department resumed consultations in 2009 following a federal commitment to establish a protected area in the Scott Islands marine environment. In 2010, a government Steering Committee and a stakeholder Advisory Group, both chaired by the Department’s Canadian Wildlife Service (CWS), were established. The Steering Committee includes representatives from federal departments (DFO, TC and NRCan), the Province of BC (Ministry of Environment and Climate Change Strategy and Ministry of Forests, Lands, Natural Resource Operations and Rural Development), the Quatsino First Nation, and the Tlatlasikwala First Nation. The Advisory Group includes representatives from the commercial fishing, recreational fishing, marine transportation, non-renewable energy, conservation, and tourism sectors as well as local and regional governments. The renewable energy sector was invited to be part of the Advisory Group, but did not participate.
Meetings with both the Steering Committee and the Advisory Group were held between 2010 and 2017, and resulted in a common understanding of the establishment process, management vision and goals, and recommended boundaries for the PMA. In addition, bilateral meetings were held with governments and stakeholders to discuss and consult on specific issues. These meetings were also instrumental in providing guidance on the development of the draft Regulatory Strategy for the Designation of the Proposed Scott Islands Marine National Wildlife Area footnote 16 (the Regulatory Strategy). In March 2013, the Regulatory Strategy was posted on the Department’s website for a 60-day public comment period. Feedback received on the Regulatory Strategy was incorporated into a regulatory intent footnote 17 document that was shared with the Steering Committee and the Advisory Group in June 2016, as well as into the draft Management plan for the PMA, which is anticipated to be available for public consultation in early 2019.
Following the posting of the Regulatory Strategy there were ongoing consultation and engagement, through the Steering Committee and the Advisory Group and directly with governments and stakeholders, to address outstanding issues and concerns and to seek support for the establishment of the PMA.
Canada Gazette, Part I, summary
On December 31, 2016, a notice of intent to establish the boundary of the Scott Islands PMA, as well as the associated proposed Regulations, was prepublished in CGI for a 30-day consultation period. Federal, provincial, regional and local governments, First Nations, and stakeholders were provided written notification of the publication through email correspondence.
A total of 11 436 submissions were received and taken into consideration. The majority of the submissions were generated through on-line campaigns facilitated by three ENGOs. Comments were also received from First Nations, academics, local and regional governments, the Province of BC, industry, and members of the public.
A summary of the comments received following the prepublication in CGI and how they have been addressed follows.
Ban oil and gas exploration and development and withdraw mineral and oil and gas rights
Several submissions from ENGOs and the public recommended a total ban on O&G exploration in the proposed PMA, or a wider ban in all Canadian marine protected areas. Several ENGOs commented that the current moratorium on O&G exploration does not offer the guaranteed long-term protection required to safeguard critical habitat for seabirds, other listed species and the broader ecosystem. Comments received from the O&G industry indicated concerns that permit conditions in the proposed Regulations could prevent O&G development, or result in undue restraints on activities.
Energy and mineral resource development within the PMA continues to be managed by NRCan. Although there is currently no mineral or O&G activity in the PMA due to the federal and provincial moratoria on offshore O&G exploration and development in the Pacific offshore, there are potential, but unproven, resources in the area. At present, four companies hold a total of 36 O&G exploration permits and one licence that overlap wholly or partially with the PMA. If the moratoria were to be lifted, permit and licence holders could apply for a permit to conduct O&G exploration in the PMA; however, they would have to demonstrate that the impacts of their proposed activity would not compromise the conservation of the area. Such applications would also be subject to the required authorizations from the Minister of NRCan and/or the National Energy Board. The Department will consider the recommendations of the National Advisory Panel on marine protected areas, pending direction by the Ministers of DFO and the Department, including any recommendations related to oil and gas activities.
Flight restriction may pose safety issue
TC advised the Department that concerns had been raised to them regarding the proposed flight restriction by members of the aviation industry. In addition, in July 2017, a letter was received by the Minister of the Environment and Climate Change from an aviation association, expressing concerns regarding the possible impacts of the proposed flight restriction to aviation. It was determined that the proposed prohibition against flying an aircraft above the PMA at an altitude that is below 1 100 metres would force aviation traffic in bad weather to fly inland over much higher terrain, or far out to sea, in order to remain clear of the restricted area, and that this would create a flight safety issue. It was also determined that the flight restriction should be expressed in imperial units (feet), in addition to metric, for consistency with flight instrumentation and ease of reference for pilots. As well as the above-mentioned safety concerns, the stakeholder felt the industry had not been adequately consulted and that the scientific data to support the proposed 1 100-metre height restriction was unclear. The association requested that a proposal for the flight restriction be developed in consideration of both safety and conservation.
The restriction on flight below 1 100 metres is consistent with existing departmental guidelines for areas where birds are known to concentrate (e.g. Migratory Bird Sanctuaries, breeding colonies, moulting areas) and is based on a literature review of scientific studies on aircraft disturbance as well as observations of the response of birds to aircraft. However, in consideration of the unique weather conditions of the Scott Islands area, including low cloud cover, and to address the safety concerns a decision was made to reduce the area of application of the restriction to a rectangular area, being a minimum of one nautical mile from the low-water mark of Lanz, Cox, Beresford, Sartine, and Triangle Islands, where seabirds congregate to breed and nest. This prohibition was also amended from what had been proposed to use imperial units of measurement (3 500 feet) in addition to metric units (approximately 1 100 metres). Limiting the area of application also addresses an issue identified by the Province of BC relating to air access for private land owners in Cape Scott Provincial Park on Vancouver Island.
Additional restrictions needed for shipping/vessel traffic
Submissions from ENGOs, academics and the public commented on the need for greater restrictions on ship passage and higher penalties for spills. Comments from these stakeholders stated that the proposed Regulations did not adequately address the impacts on seabirds from spills and chronic oiling in the PMA. These stakeholders also recommended that navigation lanes be created to keep vessels away from key feeding areas and migratory corridors of seabirds and other species, and speed limits be established to reduce disturbance and the risk of collision. The Province of BC commented that the prohibition of anchoring a vessel of more than 400 gross tonnes within one nautical mile of the low-water mark of the Triangle, Sartine or Beresford Islands may be insufficient to protect wildlife and habitat from a significant spill. The province recommends a larger buffer that takes into account the effect of adverse weather conditions on response times and actions.
Shipping within the PMA is regulated and managed by TC. The Department continues to collaborate with TC to address known or potential risks to seabirds and other wildlife from marine vessel traffic in the PMA, and to explore additional conservation measures where necessary. A small proportion of vessel operators in the PMA continue to be non-compliant with existing national and global shipping regulations. To address this issue, the Department is working with TC to increase surveillance in the area through the National Aerial Surveillance Program (NASP).
TC proposes to address shipping concerns through a number of initiatives under the OPP to improve marine safety and better protect Canada’s oceans and coasts. These initiatives include the following:
- Enhanced Marine Situational Awareness (EMSA) — this initiative will improve access for all marine users to real-time information on marine traffic and enable improved monitoring of vessel traffic on the coast.
- Proactive vessel management — this initiative will develop collaborative processes to identify issues associated with marine traffic in local waterways, as well as regulatory and voluntary tools to better respond to local marine traffic issues, such as restrictions on speed and routing and identification of areas to be avoided around sensitive sites.
- Regional response planning — a pilot project is being developed for the north coast of BC that will tailor environmental response preparedness to area-specific risks and conditions, including environmental sensitivities and marine activity.
- Cumulative effects assessment framework — this initiative will identify tools and strategies to mitigate the effects of existing and future vessel movements on the environment.
The Department is collecting and analyzing baseline data to fill key information gaps on marine birds and species at risk (listed under SARA) needed to inform emergency preparedness and response and investigative efforts related to impacts of shipping on BC’s north coast.
Restrict fishing and explicitly prohibit bottom trawling and gillnetting
Submissions from individual ENGOs, generic letterwriting campaigns, a collective of academics and several members of the public indicated a belief that there is a need for greater restrictions on fishing in the proposed PMA.
- The comments from ENGOs focused on the need to effectively regulate fishing that causes direct seabird mortality or reduces seabird prey. They noted that the most direct form of harm from fishing is through entanglement and bycatch, which is associated with high levels of direct mortality and that to their knowledge, there has been no attempt to calculate the effects of direct mortality on seabird populations. They also commented that the proposed Regulations only prohibited three fisheries (sand lance, saury, and krill), none of which are currently fished within the PMA, and allow commercial bottom trawling, longlining, and gillnetting to continue despite the risk these fishing activities pose to seabirds and other marine life in the area. Some ENGOs suggested permanent prohibitions on these types of fisheries given the potentially significant impacts to the marine ecosystem. They also expressed disappointment that a strict no-take zone had not been included in the proposed Regulations. During follow-up meetings, the ENGOs that had requested further fisheries restrictions clarified their comments by stating they are not proposing that all fishing be closed in the area.
- The submission from academics called for commercial fishing activities to be prohibited within the PMA until it can be proven that they have no harmful effects on seabird populations, species at risk, or marine ecosystems. They also requested that bottom trawling be permanently prohibited in the PMA, and all other marine protected areas, due to the significant impacts to benthic marine ecosystems, the potential risk of bycatch and entanglement, and the removal of non-target prey species. In addition, they recommended that gillnet fisheries be explicitly and permanently prohibited in the PMA due to the significant risks of bycatch, especially to alcids.
Fishing industry groups, on the other hand, and a number of individual commercial fishers noted that further fishing restrictions in the PMA would impact not just fishers, but also residents and coastal communities that rely on the jobs and infrastructure that the fishing industry contributes to the local and regional economy. In addition, they expressed concerns about further fishing restrictions leading to increasing reliance on imports from areas that may not have sustainable fishing practices.
In June 2017, a joint letter was received from two members of the groundfish trawl industry and two ENGOs, expressing their willingness, subject to DFO’s support, to have the existing groundfish bottom trawl closures included in the Regulations.
The proposed Regulations were based on the best available scientific data and evidence which indicates that closing the whole area to fishing is not necessary to meet the conservation objective for the PMA. However, Budget 2018 proposes new investments in Scott Islands — once established — including the creation of a new advisory committee that would assess new data as it becomes available and may, as necessary, recommend new measures (including prohibitions) to protect habitat and wildlife. DFO has initiated a consultation on a proposed regulatory prohibition on bottom trawling in 80% of the PMA (as per Variation Order under the Fisheries Act), a prohibition on fishing for three key forage species and potential prohibitions to other gear types where best available science indicates they pose a risk to the conservation objectives of the PMA. This approach is consistent with the guidelines footnote 18 published by the International Union for the Conservation of Nature (IUCN) which state that “the appropriate IUCN [protected area management] category is assigned based on the primary stated management objective of the [marine protected area (MPA)] which must apply to 75% of the MPA.”
With regards to concerns relating to seabird bycatch, measures to avoid seabird bycatch have been implemented such as the use of seabird avoidance streamers in groundfish hook and line, groundfish longline and salmon troll; the use of sinking baited hooks and sinking groundlines for groundfish longline; and, coral and sponge protocols in groundfish trawl to minimize the impact to habitat. The Department and DFO will work together in collaboration with local First Nations and the fishing sector to better understand the potential impacts of fisheries operating within the PMA. Areas for further review and analysis include impacts to seabirds, their prey species, and their prey species’ habitat. Recommendations to improve current practices to minimize seabird and forage prey species interactions will be developed with established fisheries advisory boards and through the appropriate Integrated Fisheries Management Plans. In addition, the Department and DFO will continue to work together through the Pacific Seabird Bycatch Working Group, developed under the Sustainable Fisheries National Plan of Action, to share and analyze data and implement measures to minimize fishing impacts on seabirds. The proposed new advisory committee, to be established after the designation of the PMA, may make recommendations regarding additional future measures. Further, the Department would consider the recommendations of the National Advisory Panel on marine protected areas, pending direction by the Ministers of DFO and the Department. These recommendations may result in new future protections under the Fisheries Act, the Coastal Fisheries Protection Act, and the Canada Shipping Act, 2001 and the regulations.
With respect to other types of fisheries that are not currently fished, no such fisheries will be allowed to operate unless an application is made to DFO. As noted earlier, DFO will consult on a new Fisheries Act regulation which would include a regulatory prohibition on bottom trawling in 80% of the PMA, a prohibition on fishing for three key forage species, and potential prohibitions to other gear types where best available science indicates they pose a risk to the conservation objectives of the PMA.
For legislative consistency and clarity for regulated communities, as mentioned above, DFO will continue to manage fisheries through the Fisheries Act. The Regulations allow fishing within the PMA as long as it is carried out in accordance with the Fisheries Act and the Coastal Fisheries Protection Act, as well as voluntary measures to minimize seabird bycatch.
DFO currently provides protection in the waters around Lanz, Cox, Beresford and Sartine Islands where there is a Rockfish Conservation Area, which protects inshore rockfish from mortality associated with recreational and commercial fisheries under the Fisheries Act and its regulations. With regards to bottom trawling, currently 80% of the PMA is closed to bottom-trawl fisheries for groundfish under the Fisheries Act and DFO is currently consulting on a proposal to regulate fisheries within the PMA under the Fisheries Act in support of the conservation objectives of the area. DFO anticipates issuing a public Notice of Intent to regulate fisheries within the PMA shortly following its designation.
In the interim, until a new regulation is in place, the Minister of Fisheries, Oceans and the Canadian Coast Guard intends to maintain the existing restrictions that support the PMA and intends not to authorize any new fishing activity in the PMA that is deemed to pose a risk to the conservation objectives of the PMA based upon the best available science.
The proposed Regulations published in the Canada Gazette, Part I, included an exception for fishing activities carried out in accordance with the Fisheries Act, except fishing for three key forage species of seabirds: Pacific sand lance, Pacific saury, and North Pacific krill. This effectively would have prohibited fishing for these species within the PMA under the Canada Wildlife Act. However, the proposed prohibition against fishing for the three forage species has not been included in the final Regulations. Following further discussions between the Department and DFO, it has been established that for legislative consistency and clarity for regulated communities, continuing to manage fisheries under the Fisheries Act is the most effective and efficient approach.
Exemption needed for provincial staff and private landowners
The submission from the Government of BC stated that the Province supports conservation efforts for seabirds and their habitats in the Scott Islands and surrounding marine environment, and acknowledges that the area is globally significant and would benefit from additional protection. However, the Province raised concerns that the proposed Regulations would add significant administrative burden to the Province to manage provincial lands, since a permit would be needed to access the ecological reserves and provincial parks by air and water for any purpose other than compliance and enforcement. As such, the Province of BC requested that an exemption be added to the Regulations that would provide for the Province to access its lands by air or water for research and management purposes. In addition, the Province noted that the proposed Regulations could also impact private landowners on Vancouver Island and that the Cape Scott Provincial Park management plan allows for owners of private inholdings to access their properties (by air or water), and similar exceptions should be considered in the final Regulations.
The Regulations now provide an exemption from the amended prohibition against flying an aircraft below 3 500 feet above mean sea-level within one nautical mile of the low-water mark of Lanz, Cox, Beresford, Sartine, and Triangle Islands and the prohibition against being within 300 m of the low-water mark of Triangle Island, Sartine Island, or Beresford Island for provincial public servants performing research, conservation or interpretation duties and for those assisting them in the course of their exempted duties (e.g. students, contractors, charters). These changes address the Province’s request for an exemption for provincial staff, while at the same time addressing the issue of access to private landholdings as the amended flight restriction leaves a flight corridor between Lanz and Cox Islands and Vancouver Island’s mainland.
Additional restrictions needed to limit noise and physical disturbances to seabirds
The submission from academics called for clear, strong regulations to limit noise and physical disturbances that disrupt seabirds feeding grounds and marine mammals. They noted that noise and physical disturbance can flush seabirds from feeding grounds, causing them to stop feeding and lose prey intended for their young, and also disturb whales, sea lions and sea otters. While they recognized that the establishment of the PMA will allow for enhanced monitoring and research, they strongly recommended that the precautionary approach be applied to all current activities, and that activities be prohibited until it is demonstrated that they do not cause harm.
The Regulations are based on the best available information and contain prohibitions against being within 300 m of the low-water mark of Triangle Island, Sartine Island, or Beresford Island and flying an aircraft below 3 500 feet above mean sea-level within one nautical mile of the low-water mark of Lanz, Cox, Beresford, Sartine, and Triangle Islands, in order to prevent air traffic related disturbance to the birds. These measures protect, through regulation, the waters and airspace adjacent to the main breeding islands throughout the year. Although part of the objective of the PMA is to conserve other species at risk, the primary focus of the PMA is the conservation of seabirds.
Need for consideration of climate change impacts
ENGOs expressed concerns about the effects of climate variability on seabirds in this area — specifically with regards to changing ocean conditions having adverse effects on food availability, survival and reproduction — and indicated that the impacts of climate change had not been sufficiently taken into account in the proposed Regulations.
The effects of climate variability are having an impact on seabirds in this area, as their food availability, survival and reproduction vary with changing ocean conditions. As part of the adaptive management of the PMA, the Department will monitor for the effects of climate change and potential negative interactions with human activities and propose mitigation strategies as necessary, either as part of the Management Plan or in the context of marine spatial planning for the broader Northern Shelf Bioregion in which the PMA is situated.
Strong protections required as declines in some seabird species in area are occurring
Academics stated that strong protections are required as some seabird species in the area are experiencing declines.
The Regulations are based on the best available information. The causal factors driving changes in productivity and numbers of breeding individuals within the PMA are well understood for Cassin’s auklet, rhinoceros auklet, and common murre. Ongoing monitoring is required to track the status of these species to inform future adaptive management of the area. Tufted puffins are less studied and there are emerging concerns about their coast-wide status. Additional research and monitoring is required to understand if tufted puffins are declining and if so, what causal factors may be contributing to the decline.
Many other seabird species are found within this area. For some wide-ranging species at risk that do not breed in the area, such as the pink-footed shearwater, and the short-tailed and black-footed albatross, global population declines are primarily due to factors outside of the PMA and Canadian jurisdiction. These species do not breed within Canadian waters, and are usually observed during opportunistic ship transect surveys. However, bycatch of these species within Canadian waters is adding to their decline.
Predator removal on Lanz and Cox Islands is expected to have a significant positive impact on the populations of seabirds nesting and breeding in the area. Predator eradication will be highlighted in the Scott Islands Management Plan and is a priority conservation action in the Lanz and Cox Islands Provincial Park Purpose Statement and Zoning Plan. Preliminary time and cost estimates for this work and published information from other projects indicate that it is unlikely any one organization can fund this work through to completion. It will therefore require a collaborative and multi-partner approach. This will require planning and implementation of pre-eradication baseline monitoring, evaluating feasible and culturally acceptable eradication options, engaging with local communities, completing the applications and reports required for compliance with applicable provincial environmental assessment processes and federal and provincial permits, operational planning and implementation. The Department is currently supporting the development of tools for pre-eradication baseline monitoring and feasibility plans. Budget 2018 is expected to direct funding to Scott Islands PMA including work to eradicate introduced predators on Lanz and Cox Island in cooperation with academia, the Government of British Columbia, the Quatsino and Tlatlasikwala First Nations, academia, and the ENGO community.
Need for explicit protections for species at risk and other wildlife that are not migratory birds
The lack of explicit protections for species at risk or other wildlife that are not migratory birds was a concern raised by academics and individual Canadians.
Listed species at risk are explicitly and legally protected under the SARA. Recovery documents must be prepared that describe management actions and, for threatened and endangered species, identify critical habitat. Critical habitat orders are issued for the protection of critical habitat. The objective for this PMA is to conserve migratory seabirds, species at risk, and the habitats, ecosystem linkages and marine resources that support these species and the Regulations are anticipated to help achieve this objective. Coordinated consideration of species at risk within the PMA will occur through the management planning process.
Protections do not meet the international definition for effective protected areas
While industry stakeholders commented that the PMA should count towards Canada’s marine conservation targets, ENGOs, in their joint submission, commented that the PMA does not meet the international definition of an effective protected area and should not be included in Canada’s targets. They expressed concerns that the Regulations are too permissive of existing and potential future resource uses within the PMA and therefore do not provide an adequate level of protection for seabirds and the marine ecosystem on which they rely.
For an area to be considered by the IUCN to be a protected area, conservation must be the primary overarching objective of the area, and this objective must apply to 75% of the area. Given that the primary objective of the PMA is to conserve migratory seabirds, species at risk, and the habitats, ecosystem linkages and marine resources that support these species, the Department’s position is that the PMA meets the IUCN definition of a protected area: “A clearly defined geographical space, recognized, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values.” The Department has also communicated with stakeholders that the approach for Scott Islands is adaptive — should evidence present a need for stricter conservation measures, it is committed to working with all involved to put additional regulatory and non-regulatory measures in place as necessary. Additionally, the investments proposed in Budget 2018 will enable the implementation of a number of new conservation activities. Further, the Department would consider the recommendations of the National Advisory Panel on marine protected areas, pending direction by the Ministers of DFO and the Department. These recommendations may result in new future protections under the Fisheries Act, the Coastal Fisheries Protection Act, and the Canada Shipping Act, 2001 and the regulations. Based on a review of the IUCN Guidelines for Applying Protected Area Management Categories the PMA is recommended to be categorized as an IUCN category VI — a protected area with sustainable use of natural resources.
Ongoing engagement since prepublication in the Canada Gazette, Part I
After prepublication in CGI, the Department continued to engage with key partners and stakeholders, through the Steering Committee, Advisory Group, bilateral meetings and other processes. Between January and June 2017, the Department participated in a number of meetings, including DFO-led meetings and advisory processes. A conference call was held with the Steering Committee and Advisory Group in January 2017 to discuss the prepublication and next steps to establish the PMA. An Advisory Group meeting was held on May 31 and June 1, 2017, in Port Hardy to provide a further update on the establishment process as well as information on potential complementary measures that were being considered by DFO and TC under existing legislation and initiatives to address the comments and concerns from stakeholders. In addition to Advisory Group and Steering Committee members, other stakeholders who had expressed an interest in this meeting were invited to attend as guests.
Since prepublication, stakeholders have reiterated a number of their comments and concerns raised during the public comment period. ENGOs noted that the lack of availability of recent ecological data is a problem and that they would like to see more recent ecological and fisheries data in order to provide more specific recommendations. ENGOs also commented on their efforts to collaborate with the shipping industry to identify potential joint shipping related recommendations that could be included in the Management Plan for the area. The fishing sector reiterated their concerns on the social and economic impacts of future management restrictions to coastal communities. ENGOs and some fishing sector representatives expressed some interest in pursuing similar collaboration on identifying potential fishing related recommendations.
There were varying views about the precautionary approach and how it should be applied to the management of activities in the PMA. The conservation sector and academics recommended that a precautionary approach be applied to current and future activities until sufficient data are available to demonstrate that there are no negative impacts on seabird populations or marine ecosystems. Industry stakeholders commented that the approach utilized should allow for acceptable risk while additional research is undertaken, instead of adopting a zero-risk approach. They noted that current fisheries are sustainably managed and mitigation measures are in place to address seabird bycatch and mortality although there was some acknowledgement that these mitigation measures could be improved. These concerns will be addressed by the adaptive management approach that will be based on assessments of risks associated with human activities in the area. Appropriate management measures to mitigate the risks will be included in the Management Plan, in consultation with partners and stakeholders.
The Department has continued to consult and provide information through the following:
- Regular presentations and information updates provided to the Pacific Interdepartmental Oceans Committee (PIOC); Pacific Region Committee on Ocean Management (RCOM); its subcommittee, the Canada-British Columbia Ocean Coordinating Committee (OCC); and the Marine Protected Areas Technical Team (MPATT), which is currently developing a bioregional MPA network plan for the Northern Shelf Bioregion;
- Information updates provided to the working groups and committees established as part of the governance structure for the Pacific North Coast Integrated Management Area (PNCIMA) planning process (the boundaries align with the Northern Shelf Bioregion MPA network); and
- Presentations and updates provided through a number of one-on-one meetings and calls with O&G industry members, commercial fishing representatives, ENGOs, commercial shipping industry members, local governments, and other stakeholders.
The implementation of the Regulations applies conservation measures to the PMA and helps to maintain long-term biodiversity on Canada’s Pacific coast by putting protections in place for seabirds and marine wildlife, including many species at risk. The provisions also allow for a dynamic and diverse ocean economy in the PMA to continue while ensuring that the marine environment on which that economy is based is protected. The permitting and reporting scheme enables additional coordinated, long-term, stable and focused research and reporting in the PMA, improve management of human activity, and ensure the continued conservation of the high biological productivity and biodiversity in this area. The Regulations also complement other tools for ecological management in the PMA, which will include collaboration with DFO, TC, the Province of BC and local First Nations in adaptive management and ecological planning, as well as the Management Plan, which will guide conservation and research priorities.
The overall cost to the Government of implementing the Regulations is anticipated to be relatively low and will mostly be for actions related to compliance promotion and enforcement. There are no anticipated costs to businesses for activities that are currently occurring in the area.
By maintaining management authority for all current fishing and all navigation activities with DFO and TC respectively, no increased administrative burden has been introduced, as the Regulations allow these activities to continue as currently managed.
Strategic environmental assessment
A strategic environmental assessment was conducted and it concluded that the PMA and the Regulations under the CWA would have positive environmental effects and would contribute to the implementation of Theme III of the FSDS, “Protecting nature and Canadians,” and would fulfill goal 4, “Conserving and Restoring Ecosystems, Wildlife and Habitat, and Protecting Canadians.”
Implementation, enforcement and service standards
The implementation of the Regulations provides protection and recourse against certain threats to seabirds as well as to other marine species in the area. Analysis has demonstrated that most current activities will not result in a contravention of the Regulations and that permit applications would primarily be for scientific research. The Department is responsible for issuing permits, alongside fisheries permits issued through DFO, and is the lead department for compliance promotion and enforcement activities. Cooperative measures to promote compliance with, and enforcement of, the Regulations may be developed with DFO, TC, the Province of BC and local First Nations who are also active in the PMA.
A compliance strategy has been developed, and a compliance promotion plan will now be implemented. Compliance promotion initiatives are proactive measures that encourage voluntary compliance with the law through education and outreach activities that raise awareness and understanding. Compliance promotion activities will have a targeted and local focus. The purpose of these activities is to inform local stakeholders who currently conduct activities in the PMA of the prohibitions and the permitting scheme. Awareness campaigns will be conducted locally and within the Province of BC and, to a lesser extent, will be aimed at Canadians more broadly.
To secure compliance, the CWA provides officers with inspection, search and seizure powers. It also provides mechanisms for liability for costs, seizure and forfeiture of things seized or of the proceeds of their disposition. It grants officers the authority to issue tickets, compliance orders and to recommend prosecutions. It establishes an offence and punishment regime for contravention of the Act or its Regulations that includes fines and/or imprisonment. The Department, in collaboration with the Steering Committee and Advisory Group, is also currently drafting the Management Plan for the PMA. The Quatsino First Nation, Tlatlasikwala First Nation, the Province of BC, and stakeholders have expressed significant interest in participating in the collaborative management of the PMA. An ongoing adaptive management approach will be used to address the socio-economic and conservation benefits of current and future use of the PMA. Ongoing research and monitoring will be an important component of the Management Plan. The Department will use this data to adapt the Management Plan and to support changes in policies and practices within the Department, as well as with DFO and TC, when necessary.
Upon coming into force, the Regulations will be coordinated with other complementary regulatory and non-regulatory measures being currently considered by DFO and TC.
DFO anticipates publishing a public Notice of Intent to regulate fisheries within the PMA shortly following its designation. DFO has been consulting on a proposed new Fisheries Act regulation, which would include a regulatory prohibition on bottom trawling in 80% of the PMA (as is currently accomplished through a Variation Order under the Fisheries Act), a prohibition on fishing for three key forage species and potential prohibitions to other gear types where best available science indicates they pose a risk to the conservation objectives of the PMA.
The proposed new advisory committee, to be established after the designation of the PMA, would make recommendations regarding additional future protections. Further, the Department will consider the recommendations of the National Advisory Panel on marine protected areas, pending direction by the Minister of Fisheries, Oceans and the Canadian Coast Guard and the Minister of Environment and Climate Change Canada.
A number of complementary initiatives are also currently being undertaken under the Government of Canada’s OPP, which may further contribute to conservation efforts in the Scott Islands area:
- Under the OPP, the Department will collect and collate baseline environmental data on BC’s north coast and make the data available for use in preparedness planning and emergency response.
- The Government of Canada will also be establishing a dedicated Primary Environmental Response Team (PERT), composed of dedicated, specially trained personnel, near Port Hardy, BC. This team will strengthen the Coast Guard’s on-the-scene capacity to respond to marine pollution incidents in the Scott Islands area.
- TC also proposes to address shipping concerns through a number of initiatives under the OPP. For example, this could include a shipping and transportation mitigation plan that is consistent with Canada’s OPP, developed in cooperation with the Department and in consultation with stakeholders, after the establishment of the PMA; EMSA — to improve access to real-time information on marine traffic in local waters/areas; and proactive vessel management that could include regulatory and other tools to better respond to local marine traffic issues.
The additional complementary measures proposed by DFO and TC will be considered in the development of the Management Plan, in collaboration with local First Nations, the Province of BC, and stakeholders.
Wildlife Management and Regulatory Affairs Division
Canadian Wildlife Service
Department of the Environment