Critical Habitat of the Atlantic Salmon (Salmo salar) Inner Bay of Fundy Population Order: SOR/2019-322
Canada Gazette, Part II, Volume 153, Number 19
SOR/2019-322 August 29, 2019
SPECIES AT RISK ACT
Whereas the Atlantic Salmon (Salmo salar) Inner Bay of Fundy 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 recovery strategy that identified the critical habitat of that species has been included in the Species at Risk Public Registry;
Whereas a portion of the critical habitat of that species is in a place referred to in subsection 58(2) footnote b of that Act and, under subsection 58(5) of that Act, that portion must be excluded from the annexed Order;
And whereas, pursuant to subsection 58(5) of that Act, the Minister of Fisheries and Oceans has consulted with the Minister responsible for the Parks Canada Agency, namely the Minister of the Environment, with respect to the annexed Order;
Therefore, the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act footnote a, makes the annexed Critical Habitat of the Atlantic Salmon (Salmo salar) Inner Bay of Fundy Population Order.
Ottawa, August 27, 2019
Minister of Fisheries and Oceans
Critical Habitat of the Atlantic Salmon (Salmo salar) Inner Bay of Fundy Population Order
1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Atlantic Salmon (Salmo salar) Inner Bay of Fundy population — which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry — other than the portion of that critical habitat that is in a place referred to in subsection 58(2) of that Act, more specifically, in Fundy National Park of Canada as described in Part 7 of Schedule 1 to the Canada National Parks Act.
Coming into force
2 This Order comes into force on the day on which it is registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
The Atlantic salmon, inner Bay of Fundy population (hereafter, iBoF salmon) is an anadromous fish endemic to Canada. This population once bred in many rivers flowing into the inner Bay of Fundy; however, evidence of spawning is no longer found in most rivers. In May 2001, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the status of the iBoF salmon and classified the species as an endangered species. In June 2003, upon the coming into force of the Species at Risk Act footnote 1 (SARA), the iBoF salmon was listed as endangered footnote 2 in Part 2 of Schedule 1 of that Act. Following an updated status report and reassessment by COSEWIC in April 2006, and a re-examination in November 2010, the status of the iBoF salmon was confirmed as “endangered.”
When a wildlife species is listed as endangered or threatened in Schedule 1 of SARA, the prohibitions in sections 32 and 33 of SARA automatically apply:
- prohibition against killing, harming, harassing, capturing or taking an individual of that species;
- prohibition against possessing, collecting, buying, selling, or trading an individual of that species, or any part or derivative of such an individual; and
- prohibition against damaging or destroying the residence of one or more individuals of that species.
In addition, a recovery strategy, followed by one or more action plans, must be prepared by the competent minister or ministers and included in the Species at Risk Public Registry (the 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. The freshwater critical habitat of the iBoF salmon was identified in the Recovery Strategy for the Atlantic salmon (Salmo salar), inner Bay of Fundy populations (2010) [the Recovery Strategy].
As the competent ministers under SARA, the Minister of Fisheries and Oceans (MFO) and the Minister responsible for the Parks Canada Agency (the Minister of the Environment) are required to ensure that the critical habitat of the iBoF salmon 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. A description of the critical habitat located within Fundy National Park of Canada was published in the Canada Gazette, Part I, on August 7, 2010, pursuant to subsection 58(2) of SARA, triggering the prohibition against the destruction of that portion of the critical habitat in November 2010. The Critical Habitat of the Atlantic Salmon (Salmo salar) Inner Bay of Fundy Population Order (the Order), made under subsections 58(4) and (5) of SARA, triggers the prohibition in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat that is not in the Fundy National Park of Canada. The Order provides the MFO with the tool needed to ensure that the critical habitat of the iBoF salmon is legally protected and enhances the protection already afforded to the iBoF habitat under existing legislation to support efforts towards the recovery of the species.
The Government of Canada is committed to conserving biodiversity and ensuring the sustainable management of fish and fish habitat, 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.
The conservation of Canada’s natural aquatic ecosystems, and the protection and recovery of their 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 ecological functions such as filtering drinking water and capturing the sun’s energy, which is vital to all life.
The iBoF salmon spawns in those rivers of Nova Scotia and New Brunswick that drain into the Minas Basin and Chignecto Bay, as far south as the Mispec River in New Brunswick. After these salmon go to sea, they remain in the Bay of Fundy, at least until late autumn. The iBoF salmon is unlike other Atlantic salmon populations in that they are believed to remain mainly within the Bay of Fundy and Gulf of Maine area during the marine phase of their life cycle. These populations have declined by 90% or more: they were once estimated at 40 000 adults, but declined to fewer than 200 individuals in 2008. Evidence suggests that the rapid decline in numbers of iBoF salmon is likely due to a number of factors (both current and historical) acting in both the freshwater and the marine environment.
Works, undertakings or activities likely to destroy the critical habitat of the iBoF salmon are already subject to other federal regulatory mechanisms. The Fisheries Act protects all fish and fish habitat and provides protection against the harmful alteration, disruption or destruction of fish habitat, therefore contributing to the protection of iBoF salmon critical habitat. Protection is offered by the Canada National Parks Act and its regulations for the portion of critical habitat that falls within the Fundy National Park of Canada.
The overarching recovery goal, as set out in the Recovery Strategy, is to re-establish wild, self-sustaining populations as required to conserve the genetic characteristics of the remaining anadromous iBoF salmon. The persistence of iBoF salmon is currently dependent on support from Fisheries and Oceans Canada’s Live Gene Bank (LGB) program, which is a spawning and rearing program designed to minimize the loss of genetic diversity and fitness in the remnant population. Currently, the primary obstacle to recovery is thought to be related to low marine survival, rather than an inability to spawn and live successfully in freshwater rivers and streams.
Potential marine threats identified to date include interactions with farmed and hatchery salmon, increased predator abundance, lack of or reduced abundance of forage species, temperature shifts that depress ocean productivity, altered migration routes leading to decreased survival, excessive illegal and/or incidental catch, and depressed population phenomena (e.g. lack of recruits to form effective schools). Potential threats to the species in the freshwater environment are thought to be historical and contemporary in nature and include changes in environmental conditions, contaminants, barriers to fish passage, and depressed population phenomena (e.g. as a result of abnormal behaviour due to low abundance or because of inbreeding depression).
Critical habitat protection is important for ensuring the protection of the habitat necessary for the survival and recovery of the iBoF salmon. Pursuant to subsections 58(4) and (5) of SARA, the Order triggers the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the iBoF salmon that is not in the Fundy National Park of Canada, and results in the critical habitat of the iBoF salmon being legally protected.
The iBoF salmon require both freshwater and marine habitats to complete a life cycle, and as a salmon grows to maturity, habitat requirements change. Freshwater iBoF salmon habitat consists of riffles, runs and staging or holding pools found below complete natural barriers in rivers. IBoF salmon streams are generally clean, cool and well oxygenated, and have bottom substrates composed of assorted gravel, cobble and boulder. Marine habitat requirements for iBoF salmon are less well known than freshwater habitat requirements. The only available indicator of marine habitat quality for Atlantic salmon is temperature. The marine temperature preference for Atlantic salmon ranges between 1 and 13 °C, with high preference for 4 to 10 °C areas. The infusion of cold oceanic water into the Bay of Fundy and the Gulf of Maine provides this temperature range and supports two of the iBoF salmon’s principal prey species. The critical habitat for this species has been identified in the Recovery Strategy within select rivers in Nova Scotia and New Brunswick. The making of the Order triggers 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 Recovery Strategy, and results in the critical habitat of the iBoF salmon identified in the Recovery Strategy being legally protected.
The Order provides an additional tool that enables the MFO to ensure that the habitat of the iBoF salmon is protected against destruction, and to prosecute persons who commit an offence under subsection 97(1) of SARA. To support compliance with the subsection 58(1) prohibition, 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 Order serves to
- communicate to Canadians the prohibition against the destruction of any part of the iBoF salmon critical habitat, 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 that 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 this Order, as there are no anticipated additional administrative costs imposed on businesses. The Order will be implemented under existing processes.
Small business lens
The objective of the small business lens is to reduce the regulatory costs for small businesses without compromising the health, safety, security and environment of Canadians.
The small business lens was applied, and it was determined that this Order does not impose any regulatory costs on small business.
Consultations were held both on the identification of critical habitat for iBoF salmon during the recovery strategy development process, and on the use of an order to protect the identified critical habitat during information sharing meetings as well as through publication of the proposed Order in the Canada Gazette, Part I. Below is a summary of the consultations that have occurred and the outcomes of those consultations.
The draft Recovery Strategy for the iBoF salmon, which identified critical habitat within select rivers in Nova Scotia and New Brunswick, was developed in spring 2009 in cooperation and consultation with the multi-stakeholder iBoF Salmon Recovery Team. The Recovery Team comprises a broad range of groups, including federal and provincial jurisdictions, Indigenous organizations from the inner Bay of Fundy area, industry (e.g. aquaculture, forestry, hydroelectricity), and environmental non-governmental organizations. The draft Recovery Strategy stated that SARA requires the protection of critical habitat once it is identified in a recovery strategy and/or action plan, but it did not specify the mechanism by which the critical habitat would be protected.
The proposed Recovery Strategy was subsequently posted on the Public Registry for a 60-day public comment period from December 4, 2009, to February 2, 2010. During the public comment period, a utility company wrote a letter expressing opposition to the identification of the Gaspereau River watershed as containing critical habitat and expressing concerns about impacts to their ongoing operations. Follow-up with the utility company included a face-to-face meeting in March 2010 and a response letter in May 2010 to clarify the scientific basis on which the Gaspereau River was identified as critical habitat. Socio-economic considerations are not taken into account when identifying critical habitat in a recovery strategy. The final Recovery Strategy was published on May 4, 2010, and it maintained the identification of the Gaspereau River as an area containing freshwater critical habitat for iBoF salmon.
With respect to the critical habitat Order, information regarding broad process steps and progress on developing a critical habitat order for iBoF salmon was provided at meetings of the iBoF Salmon Recovery Team held in April and November 2012. A more detailed presentation at a meeting of the Recovery Team in April 2013 provided additional information on the requirement to develop an order for the protection of the iBoF salmon critical habitat, including the administrative process, the prohibition against destruction of critical habitat, the activities likely to destroy critical habitat as outlined in the Recovery Strategy, existing protection and practices, and improved critical habitat maps with geo-referenced coordinates.
An additional consultation meeting was held with Indigenous organizations in December 2014. Under subsection 58(8) of SARA, consultation with wildlife management boards was not required, as there are no 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 this Order.
Overall, no opposition or significant concerns were raised during the meetings with the Recovery Team or with Indigenous organizations with respect to the use of an order to protect the critical habitat.
The proposed critical habitat Order was prepublished in the Canada Gazette, Part I, on July 21, 2018, for a 30-day public comment period. Comments were received from the Province of New Brunswick, an Indigenous group, and a utility company.
The Province sought additional information on the anticipated date the Order would be implemented, and asked for clarification regarding the process for applying for permits. Additional information to clarify these points was provided to the Province by email and phone.
The Indigenous group expressed concern that critical habitat has been identified in freshwater systems only and not in marine areas such as the Bay of Fundy. Additional information was provided to this group by email to clarify that the Recovery Strategy includes a schedule of studies to refine and identify additional critical habitat. Outcomes from a 2013 Canadian Science Advisory Secretariat Science Advisory Report, the Important Marine and Estuarine Habitat of Inner Bay of Fundy Atlantic Salmon, are being used to identify additional critical habitat in the marine and estuarine environments of the inner Bay of Fundy. The additional areas of critical habitat will be identified through future amendments to the Recovery Strategy.
The utility company reiterated its opposition to the identification of the Gaspereau River watershed as containing critical habitat for the iBoF salmon, and expressed concern regarding the potential for additional compliance costs resulting from the Order. A face-to-face meeting was held with the company on November 27, 2018, to discuss their concerns. Much of the opposition and concern was focused on the impacts of management actions to protect the iBoF salmon and its critical habitat, rather than the making of the Order itself. The company recognizes that Fisheries and Oceans Canada will continue with the publication of the Order, but they requested that the Department consider revising the boundaries of critical habitat within the Gaspereau River watershed during planned amendments to the Recovery Strategy. Fisheries and Oceans Canada will continue to engage and collaborate with the utility company to address their concerns, including any actions that may be required to render their activities compliant with SARA.
No further opposition or significant concerns with respect to the Order are anticipated. While the Order serves as an additional tool, protection of critical habitat will continue to be managed under existing regulatory mechanisms, including the Fisheries Act.
The population and distribution objectives for the iBoF salmon, as outlined in the Recovery Strategy, consist of a five-year plan to conserve the genetic characteristics of the few remaining anadromous iBoF Atlantic salmon populations in order to progress towards re-establishing self-sustaining populations to their conservation levels in 10 river systems that contribute to the LBG program. The long-term target, should marine survival increase, is to re-establish self-sustaining populations of iBoF Atlantic salmon to a conservation level of 9 900 spawning adults distributed throughout 19 river systems.
Even though measurable progress has been made in achieving the recovery goals, objectives and performance indicators presented in the Recovery Strategy, there remain a number of knowledge gaps about the iBoF salmon, including the causes of the unusually high marine mortality, which are important to understand for effective implementation of recovery measures. The protection of critical habitat is an important component for ensuring the recovery of the iBoF salmon. Should marine survival improve, then the availability of quality freshwater habitat that affects the productive capacity of iBoF salmon will become an even more important factor in their recovery. It is envisaged that marine and estuarine areas of critical habitat will be identified in an amended Recovery Strategy.
Under SARA, the critical habitat of aquatic species must be legally protected within 180 days after the posting of the final recovery strategy on the Public Registry. That is, critical habitat that is not in a place referred to in subsection 58(2) of SARA footnote 3 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) of SARA, failing which the MFO must make an order under subsections 58(4) and (5) of SARA. This Order is intended to satisfy the obligation to legally protect critical habitat by triggering the prohibition under SARA against the destruction of any part of the species’ critical habitat.
Works, undertakings or activities likely to destroy the critical habitat of the iBoF salmon are already subject to other federal regulatory mechanisms, including the Fisheries Act. No additional requirements are therefore imposed on stakeholders as a result of the coming into force of the Order.
Based upon the best evidence currently available and the application of the existing federal regulatory mechanisms, no additional compliance cost or administrative burden on Canadians and Canadian businesses is anticipated. Threats to the iBoF salmon critical habitat are managed and will continue to be managed through existing measures under federal legislation.
Considering the existing federal regulatory mechanisms in place, the incremental costs and benefits resulting from the making of this Order are anticipated to be negligible. No incremental costs to Canadian businesses and Canadians are anticipated. However, the federal government may incur some negligible costs, as it will undertake some additional activities associated with compliance promotion and enforcement, the costs of which would be absorbed through existing funding allocations.
The compliance promotion and enforcement activities to be undertaken by Fisheries and Oceans Canada, 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, its habitat or the ecosystem. However, these incremental benefits cannot be assessed qualitatively or quantitatively 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 iBoF salmon and its habitat is to advise all proponents of works, undertaking or activities to apply for the issuance of a permit or agreement authorizing a person to affect a listed species or its critical habitat so long as certain conditions are first met. Under section 73 of SARA, the MFO 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 MFO is of the opinion that
- (1) the activity is scientific research relating to the conservation of the species and conducted by qualified persons;
- (2) the activity benefits the species or is required to enhance its chance of survival in the wild; or
- (3) affecting the species is incidental to the carrying out of the activity.
Further, the preconditions 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 MFO 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 these conditions cannot be met, the activity is not authorized and applicants may be advised to modify their works, undertakings or activities so as to enable these conditions to be met.
Fisheries and Oceans Canada is 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 the iBoF salmon critical habitat or jeopardizing the recovery of the species.
Fisheries and Oceans Canada will continue to implement SARA provisions and existing federal legislation under its jurisdiction 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 iBoF salmon. These standards and specifications are aligned with those that will be required once the Order comes into force. If new scientific information supporting changes to the iBoF salmon critical habitat becomes available at some point in the future, the Recovery Strategy will be updated as appropriate and this Order will continue to apply to the revised critical habitat once included in a final amended Recovery Strategy published in the Public Registry. The prohibition triggered by the Order provides a further deterrent in addition to the existing regulatory mechanisms and specifically safeguards the critical habitat of the iBoF salmon 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 34.4(2)(b) or 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 MFO for a permit under section 73 of SARA, or an authorization under section 34.4 or 35 of the Fisheries Act that is compliant with section 74 of SARA. In either case, the SARA permit or Fisheries Act authorization would contain terms and conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species or providing for its recovery.
In considering applications for authorizations under the Fisheries Act that would, if approved, have the same effect as a permit under section 73 of SARA, the MFO is 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 preconditions set out in subsection 73(3) of SARA 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 five years, or to both. It should be noted that maximum fines for a contravention of the prohibitions in subsections 34.4(1), 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 iBoF salmon 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.
Species at Risk Program
Fisheries and Oceans Canada
200 Kent Street