Critical Habitat of the Killer Whale (Orcinus orca) Northeast Pacific Southern Resident Population Order: SOR/2018-278
Canada Gazette, Part II, Volume 152, Number 26
SOR/2018-278 December 13, 2018
SPECIES AT RISK ACT
Whereas the Killer Whale (Orcinus orca) Northeast Pacific southern resident population is a wildlife species that is listed as an endangered species in Part 2 of Schedule 1 to the Species at Risk Act footnote a;
Whereas the Minister responsible for the Parks Canada Agency, namely the Minister of the Environment, and the Minister of Fisheries and Oceans have together prepared a recovery strategy for that species;
Whereas the recovery strategy that identified the critical habitat of that species has been included in the Species at Risk Public Registry;
Whereas no portion of the critical habitat of that species that is specified in the annexed Order is in a place referred to in subsection 58(2) footnote b of that Act;
And whereas the Minister of the Environment and the Minister of Fisheries and Oceans are of the opinion that the annexed Order would affect areas in respect of which wildlife management boards are authorized by land claims agreements to perform functions in respect of wildlife species and, pursuant to subsection 58(8) of that Act, have consulted the wildlife management boards in question with respect to the Order;
Therefore, the Minister of the Environment and the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act a, make the annexed Critical Habitat of the Killer Whale (Orcinus orca) Northeast Pacific Southern Resident Population Order.
Gatineau, December 11, 2018
Minister of the Environment
Gatineau, December 11, 2018
Minister of Fisheries and Oceans
Critical Habitat of the Killer Whale (Orcinus orca) Northeast Pacific Southern Resident Population Order
1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Killer Whale (Orcinus orca) Northeast Pacific southern resident population, which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry.
2 The Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order footnote 1 is repealed.
Coming into force
3 This Order comes into force on the day on which it is registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the orders.)
Two distinct populations of Resident Killer Whales (Orcinus orca) occupy the waters off the Pacific coast of Canada: the Northeast Pacific Southern Resident Killer Whale (SRKW) population and the Northeast Pacific Northern Resident Killer Whale (NRKW) population. Although the ranges of these two populations overlap, they are acoustically, culturally, and genetically distinct from each other. As of November 2018, the SRKW population consisted of 74 individuals in one acoustic clan while the NRKW population consisted of approximately 309 individuals in three acoustic clans. Both populations feed primarily on salmonids, specializing on chinook and chum. In November 2001, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the status of the two populations and classified the SRKW as endangered and the NRKW as threatened. In June 2003, upon the coming into force of the Species at Risk Act (SARA), footnote 2 the SRKW was listed as endangered footnote 3 in Part 2 of Schedule 1 of SARA and the NRKW was listed as threatened footnote 4 in Part 3 of Schedule 1 of SARA. COSEWIC reexamined and confirmed the assessments of the SRKW and NRKW in November 2008 as endangered and threatened, respectively.
When a wildlife species is listed as endangered or threatened in Schedule 1 of SARA, the following prohibitions in sections 32 and 33 of SARA automatically apply:
- prohibition against killing, harming, harassing, capturing or taking an individual of such species;
- prohibition against possessing, collecting, buying, selling, or trading an individual of such species, or any part or derivative of such an individual; and
- prohibition against damaging or destroying the residence of one or more individuals of such species.
In addition, a recovery strategy, followed by one or more action plans, must be prepared by the competent minister(s) and included in the Species at Risk Public Registry (Public Registry). The recovery strategy or action plan must include an identification of the species’ critical habitat, to the extent possible, based on the best available information. Critical habitat is defined in subsection 2(1) of SARA as the habitat that is necessary for the survival or recovery of a listed wildlife species and that is identified as the species’ critical habitat in a final recovery strategy or action plan for the species. For marine mammals, critical habitat may support essential life processes such as feeding, foraging, socializing, reproduction, resting, or beach rubbing. These functions are supported by the features and attributes of the critical habitat, such as the availability of important prey species in sufficient quantity and quality.
The critical habitat of the SRKW and NRKW was originally identified in the Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada (the Recovery Strategy), published in 2008. At that time, SRKW critical habitat included the transboundary waters in southern British Columbia, including the Southern Strait of Georgia, Haro Strait, and Juan de Fuca Strait, while NRKW critical habitat included the waters of Johnstone and southeastern Queen Charlotte Straits. These critical habitat areas were protected in February 2009 through the making of the Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order (the 2009 Order), pursuant to subsections 58(4) and (5) of SARA, which triggered the prohibition in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitats that were described in the schedule to the 2009 Order.
In October 2011, minor amendments were made to the critical habitat section of the Recovery Strategy (the 2011 Recovery Strategy) to provide additional clarification. The 2011 amended Recovery Strategy replaced the 2008 version. The 2011 Recovery Strategy for the SRKW and NRKW was further amended in 2018 to include additional critical habitat areas (waters of the western Dixon Entrance and waters off southwestern Vancouver Island) to support the survival and recovery of the SRKW and NRKW and to provide additional clarification of the functions, features, and attributes of all Resident Killer Whale critical habitat. The 2018 amended Recovery Strategy (2018 Recovery Strategy) was posted in the Public Registry on December 5, 2018.
As the competent ministers under SARA, the Minister of Fisheries and Oceans and the Minister responsible for the Parks Canada Agency (the Minister of the Environment) are required to ensure that the critical habitat of the SRKW and NRKW is protected by provisions in, or measures under, SARA or any other Act of Parliament, or by the application of subsection 58(1) of SARA.
The 2009 Order that is presently in force for the SRKW and NRKW does not incorporate by reference the critical habitat identified in the recovery strategy but describes the critical habitat of the two Killer Whale populations in the Order itself. As a result, the 2009 Order does not include the additional critical habitat identified in the 2018 Recovery Strategy nor any future modifications to that critical habitat. Therefore, the 2009 Order is being repealed and replaced by two new orders that incorporate by reference the critical habitat of the NRKW and the SRKW that is identified in the Recovery Strategy; thus these orders will apply to all future modifications to the critical habitat of the NRKW and the SRKW once included in a final amended Recovery Strategy. One Order is made for each of the two populations of the resident Killer Whale as follows: the Critical Habitat of the Killer Whale (Orcinus orca) Northeast Pacific northern resident population Order and the Critical Habitat of the Killer Whale (Orcinus orca) Northeast Pacific southern resident population Order.
Critical habitat protection will be accomplished through the making of these two orders under subsections 58(4) and (5) of SARA, which trigger the prohibition against the destruction of any part of the species’ critical habitat in subsection 58(1) of SARA. The orders afford the Minister of Fisheries and Oceans and the Minister of the Environment the tool needed to ensure that the critical habitat of the SRKW and NRKW is legally protected and enhance the protection already afforded to SRKW and NRKW habitat under existing legislation to support efforts towards the recovery of the species.
The Government of Canada is committed to conserving biodiversity and the sustainable management of fish and their habitats, both nationally and internationally. Canada, with support from provincial and territorial governments, signed and ratified the United Nations Convention on Biological Diversity in 1992. Stemming from this commitment, the Canadian Biodiversity Strategy was jointly developed by the federal, provincial, and territorial governments in 1996. Building on the Canadian Biodiversity Strategy, SARA received royal assent in 2002 and was enacted to prevent wildlife species from being extirpated or becoming extinct; to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity; and to manage species of special concern to prevent them from becoming endangered or threatened.
Conserving Canada’s natural aquatic ecosystems, and protection and recovery of its wild species, is essential to Canada’s environmental, social and economic well-being. SARA also recognizes that “wildlife, in all its forms, has value in and of itself and is valued by Canadians for aesthetic, cultural, spiritual, recreational, educational, historical, economic, medical, ecological and scientific reasons.” A review of the literature confirms that Canadians value the conservation of species and measures taken to conserve their preferred habitat. In addition, protecting species and their habitats helps preserve biodiversity — the variety of plants, animals, and other life in Canada. Biodiversity, in turn, promotes the ability of Canada’s ecosystems to perform valuable ecosystem services such as filtering drinking water and capturing the sun’s energy, which is vital to all life.
In 2017, Fisheries and Oceans Canada published the Identification of Habitats of Special Importance to Resident Killer Whales (Orcinus orca) off the West Coast of Canada to assess important habitat for SRKW and NRKW. This information was used to inform the identification of additional critical habitat in the 2018 Recovery Strategy.
The known range of the SRKW is from southeastern Alaska to central California. The movements of SRKW are influenced by their preferred prey, chinook and chum salmon. During the summer and fall, SRKW are frequently seen in the waters of southern Vancouver Island. These preferred summer feeding areas include areas previously identified as critical habitat in the 2008 Recovery Strategy. Waters off southwestern Vancouver Island, particularly over the various banks including Swiftsure Bank and La Pérouse Bank, were recently identified as additional areas of special importance to SRKW. The areas are important feeding habitat for SRKW both during summer when groups of whales spend time west of the critical habitat area previously identified in the 2008 Recovery Strategy, and during winter when SRKW are mostly absent from that critical habitat area. Boat-based encounters and detections of SRKW vocalizations on acoustic recording instruments deployed at Swiftsure Bank indicate considerable habitat use by SRKW throughout much of the year.
The known range of the NRKW is from southern Alaska to northern Washington State. As with SRKW, the movements of this population are influenced by their preferred prey, chinook and chum salmon. From July to October, some members of this population frequent the Johnstone Strait and southeastern Queen Charlotte Strait areas, and these areas were previously identified as critical habitat for NRKW in the 2008 Recovery Strategy. More recently, acoustic monitoring and vessel-based surveys have demonstrated that waters of the western Dixon Entrance, along the north coast of Graham Island in Haida Gwaii, and waters off southwestern Vancouver Island, including Swiftsure and La Pérouse Banks, are habitat of special importance for NRKW throughout the year. The waters of western Dixon Entrance and off southwestern Vancouver Island are productive areas for chinook salmon, and are used by NRKW throughout the year. Additionally, these areas are used by NRKW pods that rarely use the existing critical habitat in Johnstone and southeastern Queen Charlotte Straits at any time of year.
The Report on the Progress of Recovery Strategy Implementation for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada for the Period 2009-2014 summarizes progress that the Government of Canada and the broader scientific community have made towards achieving the recovery goal and objectives set out in the Recovery Strategy. Progress to date includes continued monitoring of SRKW and NRKW, and improved understanding of the winter distribution of Resident Killer Whales.
Even though measurable progress has been made in achieving the goals, objectives and performance measures presented in the 2008, 2011, and 2018 Recovery Strategies, more information on the species’ distribution and diet throughout the year, and about threats to the species, is important for ongoing implementation of recovery measures.
Works, undertakings or activities likely to destroy any part of the critical habitat of the SRKW and NRKW are already subject to other federal regulatory mechanisms. Subsection 35(1) of the Fisheries Act prohibits serious harm to fish, which is defined in that Act as “the death of fish or any permanent alteration to, or destruction of, fish habitat.” Given that marine mammals are included in the definition of “fish” in the Fisheries Act and that serious harm to fish encompasses destruction of fish habitat, the prohibition in subsection 35(1) of the Fisheries Act contributes to the protection of the critical habitat of the SRKW and NRKW.
The recovery goal, as set out in the Recovery Strategy, is to ensure the long-term viability of Resident Killer Whale populations by achieving and maintaining demographic conditions that preserve their reproductive potential, genetic variation, and cultural continuity. Efforts to meet both the short- and long-term goals are ongoing and supported by the measures described in the Action Plan for the Northern and Southern Resident Killer Whale (Orcinus orca) in Canada (2017) [the Action Plan], as well as in the Multi-species Action Plan for Pacific Rim National Park Reserve of Canada (2017), the Multi-species Action Plan for Gulf Islands National Park Reserve of Canada (2018), and the Multi-species Action Plan for Gwaii Haanas National Park Reserve, National Marine Conservation Area Reserve, and Haida Heritage Site (2016).
The SRKW and NRKW are at risk due to their small population sizes and low reproductive rates. The existence of a variety of anthropogenic threats has the potential to cause further declines. The main threats to the SRKW and NRKW include: (1) environmental contaminants (including oil spills); (2) reduced prey availability; and (3) physical and acoustic disturbance. Incidental mortality in fishing gear and vessel strikes (an emerging threat) have also been identified as threats to these populations. SRKW, by virtue of the waters they spend significant time in, are particularly vulnerable to chemical and biological pollutants, including oil spills. Chinook salmon, the predominant prey of SRKW and NRKW, is also vulnerable to a variety of threats in both freshwater and marine life phases and has become less abundant in Canadian Pacific waters over the last several decades. When prey availability is reduced, SRKW and NRKW may need to spend more time and energy to travel greater distances to forage for food. Chinook salmon abundance varies year to year; years of reduced chinook abundance have been linked to lower Resident Killer Whale reproductive rates and higher mortality rates. Both physical and acoustic disturbance can impede the ability of the SRKW and NRKW to locate prey, access important feeding areas, and/or forage effectively; however, little is known about the potential long-term effects of disturbance on SRKW and NRKW behaviour, health, and foraging efficiency.
In May 2018, the Minister of Fisheries and Oceans and the Minister of the Environment jointly formed the opinion that the SRKW faces imminent threats to its survival and recovery and released the Southern Resident Killer Whale Imminent Threat Assessment in July 2018. Critical habitat protection is an important component aimed at ensuring the survival and recovery of both the SRKW and NRKW.
In order to avoid duplication of efforts, the Minister of Fisheries and Oceans and the Minister of the Environment, as competent Ministers, have agreed to make the joint orders to ensure that the identified critical habitat of the SRKW and NRKW is legally protected. Pursuant to subsections 58(4) and (5) of SARA, the orders trigger the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the SRKW and NRKW, and result in the critical habitat of the SRKW and NRKW being legally protected.
As stated in the 2011 Recovery Strategy, the existing critical habitat for the SRKW and NRKW is located within the transboundary waters in southern British Columbia, including the Southern Strait of Georgia, Haro Strait, and Juan de Fuca Strait for SRKW, and the waters of Johnstone Strait and southeastern Queen Charlotte Strait for NRKW. As identified in the 2018 Recovery Strategy, additional critical habitat areas are located within waters on the continental shelf off southwestern Vancouver Island, including Swiftsure and La Pérouse Banks for both SRKW and NRKW, and waters of western Dixon Entrance, along the north coast of Graham Island from Langara to Rose Spit for NRKW. As indicated in the 2018 Recovery Strategy, critical habitat is defined as the areas within the identified geographical boundaries, given that they contain the described biophysical features, attributes, and the functions they support. Critical habitat identified in the 2018 Recovery Strategy has a minimum approach distance of 200 m for all Resident Killer Whales to support the attribute of unimpeded physical space surrounding individual whales.
The orders trigger the application of the prohibition set out in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, including the biophysical features and attributes identified in the 2018 Recovery Strategy, and result in the critical habitat of the SRKW and NRKW identified in the 2018 Recovery Strategy being legally protected.
The orders provide an additional tool that enables the Minister of Fisheries and Oceans and the Minister of the Environment to ensure that the habitat identified as necessary for the survival or recovery of the SRKW and NRKW is protected against destruction, and to prosecute persons who commit an offence under subsection 97(1) of SARA. To support compliance with the prohibition in subsection 58(1) of SARA, SARA provides for penalties for contraventions, including fines or imprisonment, as well as alternative measures agreements, and seizure and forfeiture of things seized or of the proceeds of their disposition. The orders serve to
- communicate to Canadians the prohibition against the destruction of any part of the critical habitat of the SRKW and NRKW, and where it applies, so that they can plan their activities within a regulatory regime that is clearly articulated;
- complement existing federal acts and regulations; and
- ensure that all human activities which may result in the destruction of critical habitat are managed to the extent required under SARA.
The “One-for-One” Rule requires regulatory changes that increase administrative burden costs to be offset with equal reductions in administrative burden. In addition, ministers are required to remove at least one regulation when they introduce a new one that imposes administrative burden costs on business.
The “One-for-One” Rule does not apply to these orders, as there are no anticipated additional administrative costs on businesses. The orders will be implemented under existing processes.
Small business lens
The objective of the small business lens is to reduce regulatory costs on small businesses without compromising the health, safety, security and environment of Canadians.
The small business lens does not apply to these orders, as there are no administrative burden costs on small business.
The 2018 Recovery Strategy was prepared cooperatively with the Parks Canada Agency, and other federal government departments, with input sought from the Province of British Columbia, Indigenous peoples, the U.S. National Oceanic and Atmospheric Administration (NOAA), and the Washington Department of Fish and Wildlife.
The 2018 Recovery Strategy includes the identification of two additional critical habitat areas and their anticipated legal protection mechanism through the application of SARA Critical Habitat orders made under subsections 58(4) and (5), which will invoke the prohibition in subsection 58(1) against the destruction of any part of the critical habitat. Additional clarifications were made to describe the functions, features and attributes of both existing and new critical habitat. There were no changes to the overall content of the document outside of the “Critical habitat” section (section 7), except for minor updates to the background information and formatting of the Recovery Strategy.
Results from the 30-day external review
Input on the “Critical habitat” section (section 7) of the draft 2018 Recovery Strategy was sought from potentially affected Indigenous groups and stakeholders through a 30-day online external review that took place from June 12 to July 11, 2018. The external review was an opportunity for groups and individuals who may be directly affected by the Recovery Strategy to provide input on the draft version of the document prior to the proposed Recovery Strategy being posted in the Public Registry for a 60-day public comment period.
Under SARA subsection 58(8), consultation with wildlife management boards was required as there are areas in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species that will be affected by these orders. Emails providing advanced notification of this review period were sent to four wildlife management boards and 122 Indigenous groups on May 31, 2018.
Letters, emails, and faxes that included the “Critical habitat” section (section 7) of the draft 2018 Recovery Strategy and information on how to provide feedback were sent to each of these wildlife management boards and Indigenous groups at the start of the external review period. Emails with this information were also sent to other government agencies, stakeholders, environmental non-government organizations, and other interested individuals at this time. Information about the proposed revisions to the critical habitat and an invitation to provide feedback on the “Critical habitat” section of the draft 2018 Recovery Strategy were also provided at meetings of stakeholder groups, and advisory board meetings. Offers for bilateral meetings were extended to wildlife management boards and Indigenous groups, and meetings were held with representatives from Indigenous groups, the Department of National Defence, a sport fishing group and an environmental non-governmental organization during the external review period.
Approximately 690 responses were received during the 30-day external review. Concerns were raised surrounding the timing and duration of the external review process, as well as the potential implications of the newly identified critical habitat and potential future protection measures that would be required.
Input was received from several Indigenous groups, primarily expressing concern over perceived implications to Indigenous and Treaty Fishing Rights, potential implications to fishing activities and indicating that further meaningful consultation is required.
Concerns were raised about future management actions to protect critical habitat which may lead to fishery closures in the proposed critical habitat areas and about the community impacts of any additional fishery management measures. In many cases, it appeared that respondents were considering critical habitat protection as analogous to fishery closures. DFO provided a response to clarify the implications of identifying and protecting the additional critical habitat under SARA, versus the recent fishery closures under the Fisheries Act, which were not directly related to existing or new critical habitat designation. This clarification was posted on the consultation website, social media (Twitter), and delivered via email to all online respondents.
Opinions were also expressed questioning the validity of the published science advice on which the proposed critical habitat was based, particularly the strength of evidence supporting designation of La Pérouse Bank as part of critical habitat.
All feedback received during this external review period was considered and was incorporated into the proposed 2018 Recovery Strategy as appropriate, but no substantive changes were made to the document, as the majority of input was not directly related to critical habitat designation.
Results from the 60-day public comment period
The proposed 2018 Recovery Strategy was posted on the Public Registry for public comment from September 4 to November 3, 2018. Emails providing notification of this comment period were sent to a total of 987 groups and individuals including wildlife management boards, Indigenous groups, non-governmental organizations, regional and local government, and other stakeholders. Emails to wildlife management boards and Indigenous groups included the opportunity for bilateral meetings. Webinars and in-person engagement sessions were held during the public comment period to provide information about the proposed additional critical habitat and to answer questions about the amendments to the Recovery Strategy. Webinars were held in September for Indigenous groups and the public. Public in-person engagement sessions as well as bilateral meetings with Indigenous groups took place during October and November.
During bilateral meetings with Indigenous groups, concern was expressed about the potential for impacts to asserted or established Indigenous and Treaty Rights, fishing activities, and other economic opportunities. Concerns were primarily focused on the potential impacts of future measures that may be implemented to protect both Resident Killer Whale populations and their critical habitat, although some First Nations have raised concerns that their views were not taken into account in the preparation of the amended Recovery Strategy and that the critical habitat off Southwestern Vancouver Island was identified without their input or traditional knowledge. Concerns were also expressed that the timelines of the external review and public comment period did not allow sufficient time for meaningful consultation.
A total of 162 online responses and 38 letters were received during the 60-day public comment period and included both support for, and opposition to, the additional proposed critical habitat areas. Similar to the feedback received during the external review consultations, key concerns identified included the potential for adverse impacts to fishing activities and economic opportunities to coastal communities that may result if future additional management measures are implemented to protect critical habitat; questions and concerns regarding the validity of the science advice underlying the proposed new critical habitat, particularly the strength of evidence supporting designation of La Pérouse Bank as part of critical habitat; concerns that the timelines of the external review and public comment period did not allow sufficient time for meaningful consultation; and the need to examine factors other than fishing that impact RKW populations, including vessel traffic, and the need for increased hatchery production, chinook habitat restoration, and pollution controls.
Additionally, 2 petitions were received: one (9 960 signatories) that called for further measures to protect SRKW and one (263 signatories) requesting the Minister consider alternative measures to fishery closures to protect SRKW and the socio-economic impacts of SRKW recovery actions on coastal communities. A form letter campaign resulted in 274 submissions that called on DFO to support the proposed additional critical habitat and strengthen additional protection for SRKW. All comments were considered but did not lead to substantive changes to the final Recovery Strategy.
Based on the consultation results, there was both support (e.g. from ENGOs and the public) and opposition or concerns (e.g. from the sport fishing industry, and some municipal governments and Indigenous groups) expressed for the additional critical habitat identified and eventual Critical Habitat orders. All input received during the external review and public comment period was reviewed and considered, and resulted in some changes in the formulation of the identification of critical habitat and updates in background information.
Outreach and engagement actions including further face-to-face meetings may be undertaken to clarify the implications of the orders once made, to help address any concerns.
The following have been identified as measures necessary to support the recovery goal for the SRKW and NRKW:
- (a) long-term maintenance of a steady or increasing size for populations currently at known historic maximum levels and an increasing size for populations currently below known historic maximum levels;
- (b) maintenance of sufficient numbers of females in the population to ensure that their combined reproductive potential is at replacement levels for populations at known historic maximum levels and above replacement levels for populations below known historic maximum levels;
- (c) maintenance of sufficient numbers of males in the population to ensure that breeding females have access to multiple potential mates outside of their own and closely related matrilines; and
- (d) maintenance of matrilines comprised of multiple generations to ensure continuity in the transmission of cultural information affecting survival.
The identification and protection of critical habitat needed to support the recovery goal is required under SARA.
Under SARA, critical habitat must be legally protected within 180 days after the posting of the final recovery strategy on the Public Registry. That is, critical habitat that is not in a place referred to in subsection 58(2) of SARA footnote 5 must be protected either by the application of the prohibition in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, or by provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11 of SARA. It is important to note that in order for another federal law to be used to legally protect critical habitat, it must provide an equivalent level of legal protection of critical habitat as would be afforded through subsection 58(1) and other provisions of SARA, failing which the competent minister(s) must make an Order under subsections 58(4) and (5) of SARA. The orders are intended to satisfy the obligation to legally protect critical habitat by triggering the prohibition under SARA against the destruction of any part of the species’ critical habitat.
Based upon the best evidence currently available and the application of the existing regulatory mechanisms, no additional compliance cost or administrative burden on the part of Canadians and Canadian businesses is anticipated. Threats to the SRKW and NRKW critical habitat are managed and will continue to be managed through existing mechanisms under federal legislation. The federal government may incur some additional costs as it will undertake some additional activities associated with compliance promotion and enforcement of existing regulations.
The compliance promotion and enforcement activities to be undertaken by the Department and the Parks Canada Agency, in combination with the continuing outreach activities undertaken as part of the critical habitat identification process, may also contribute towards behavioural changes on the part of Canadian businesses and Canadians (including Indigenous groups) that could result in incremental benefits to the species, their habitat or the ecosystem. However, these incremental benefits cannot be assessed at this time due to the absence of information on the nature and scope of the behavioural changes as a result of these outreach activities.
Implementation, enforcement and service standards
Fisheries and Oceans Canada’s current practice for the protection of the SRKW and NRKW and their habitat is to advise all proponents of works, undertakings or activities to apply for the issuance of a permit or agreement authorizing a person to affect a listed species or its critical habitat. Under section 73 of SARA, the Minister of Fisheries and Oceans or the Minister of the Environment may enter into an agreement with a person, or issue a permit to a person, authorizing the person to engage in an activity affecting a listed aquatic species, any part of its critical habitat, or the residences of its individuals. Under subsection 73(2) of SARA, the agreement may be entered into, or the permit issued, only if the Minister of Fisheries and Oceans or the Minister of the Environment is of the opinion that
- the activity is scientific research relating to the conservation of the species and conducted by qualified persons;
- the activity benefits the species or is required to enhance its chance of survival in the wild; or
- affecting the species is incidental to the carrying out of the activity.
Further, the pre-conditions set out in subsection 73(3) of SARA must also be satisfied. This means that prior to entering into an agreement or issuing a permit, the Minister of Fisheries and Oceans or the Minister of the Environment must be of the opinion that
- (a) all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted;
- (b) all feasible measures will be taken to minimize the impact of the activity on the species, its critical habitat or the residences of its individuals; and
- (c) the activity will not jeopardize the survival or recovery of the species.
If the above conditions cannot be met, proponents are advised to not undertake their work, undertaking or activity, or to modify their project so as to meet these conditions.
Fisheries and Oceans Canada and the Parks Canada Agency are currently not aware of any planned or ongoing activities that will need to be mitigated beyond the requirements of existing legislative or regulatory regimes, and will work with Canadians on any future activities to mitigate impacts, so as to avoid destroying SRKW and NRKW critical habitat or jeopardizing the recovery of the species.
Fisheries and Oceans Canada and the Parks Canada Agency will continue to implement SARA provisions and existing federal legislation under their jurisdictions and to advise stakeholders on an ongoing basis with regard to technical standards and specifications on activities that may contribute to the destruction of the habitat of the SRKW and NRKW. These standards and specifications are aligned with those that will be required once the orders come into force. If new scientific information supporting changes to SRKW and NRKW critical habitat becomes available, the Recovery Strategy will be updated as appropriate and the orders will apply to the revised critical habitat once included in a final amended Recovery Strategy published in the Public Registry. The prohibition triggered by the orders provides a further deterrent in addition to the existing regulatory mechanisms and specifically safeguards the critical habitat of the SRKW and NRKW through penalties and fines under SARA, resulting from both summary convictions and convictions on indictment.
Fisheries and Oceans Canada provides a single window for proponents to apply for an authorization under paragraph 35(2)(b) of the Fisheries Act that will have the same effect as a permit issued under subsection 73(1) of SARA, as provided for by section 74 of SARA. For example, in cases where it is not possible to avoid the destruction of critical habitat, the project would either be unable to proceed, or the proponent could apply to the Minister of Fisheries and Oceans for a permit under section 73 of SARA, or an authorization under section 35 of the Fisheries Act that is compliant with section 74 of SARA. In either case, the SARA permit or Fisheries Act authorization would contain terms and conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.
Any works, undertakings or activities undertaken by the Parks Canada Agency that are likely to destroy the critical habitat of the SRKW and NRKW are already subject to other federal regulatory mechanisms. As required by the Canadian Environmental Assessment Act (2012), activities proposed on lands and waters managed by the Parks Canada Agency must be examined under the Agency’s impact assessment process, to ensure that they do not have the potential to generate significant adverse environmental effects. This assessment, including mitigation measures to address effects on natural and cultural resources, ensures compliance with SARA prohibitions. In addition, lands and waters administered by Parks Canada Agency are patrolled and protected by Parks Canada law enforcement personnel. These existing protection measures would continue to apply once the orders come into force.
In considering applications for authorizations under the Fisheries Act or the Canada National Parks Act that would, if approved, have the same effect as a permit under section 73 of SARA, the Minister of Fisheries and Oceans and the Minister of the Environment are required to form the opinion that the activity is for a purpose set out in subsection 73(2) of SARA, as stated above. Furthermore, the pre-conditions set out in subsection 73(3) of SARA, as stated above, must also be satisfied.
Under the penalty provisions of SARA, when found guilty of an offence punishable on summary conviction, a corporation other than a non-profit corporation is liable to a fine of not more than $300,000, a non-profit corporation is liable to a fine of not more than $50,000, and any other person is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. When found guilty of an indictable offence, a corporation other than a non-profit corporation is liable to a fine of not more than $1,000,000, a non-profit corporation is liable to a fine of not more than $250,000, and any other person is liable to a fine of not more than $250,000 or to imprisonment for a term of not more than 5 years, or to both. It should be noted that maximum fines for a contravention of the prohibitions in subsections 35(1) and 36(3) of the Fisheries Act are higher than maximum fines for a contravention of subsection 58(1) of SARA.
Any person planning on undertaking an activity within the critical habitat of the SRKW and NRKW, should inform himself or herself as to whether that activity might contravene one or more of the prohibitions under SARA and, if so, should contact Fisheries and Oceans Canada or the Parks Canada Agency.
Species at Risk Program
Fisheries and Oceans Canada
200 Kent Street
Parks Canada Agency
30 Victoria Street