Canada Gazette, Part I, Volume 146, Number 12: Regulations Amending the Marine Mammal Regulations
March 24, 2012
Department of Fisheries and Oceans
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issue and objectives
There is concern that the cumulative effects of repetitive exposure to and interaction with humans may interrupt or prevent marine mammals from completing normal life processes (e.g. mating, calving and nursing) and threaten the survival of individual animals. While section 7 of the Marine Mammal Regulations (MMR) already prohibits the disturbance of marine mammals by any person, they do not expressly and effectively regulate specific activities such as marine mammal watching that may disturb the normal life processes of a marine mammal.
Regulating disturbance has been a challenge for the Department of Fisheries and Oceans (DFO). Voluntary guidelines exist and are generally followed. However, they are not enforceable. Consequently, it has been determined that there is a need to amend the MMR to elaborate on the concept of marine mammal disturbance to make it more understandable to the public and to provide a reference point as to when a disturbance is deemed to take place.
The objective of the proposed Regulations is to ensure the conservation and protection of marine mammals by providing DFO with specific measures applicable to marine mammal watching activities without imposing a host of national prohibitions, which may not always be appropriate in some areas in Canada. The proposed Regulations would provide a regulatory framework that can be varied and adjusted over time to allow DFO to find a balance between managing disturbance to marine mammals and limiting public access to marine mammals. It is anticipated that the enactment of these proposed Regulations will also result in increased public awareness that certain human activities negatively affect the life processes of marine mammals.
Description and rationale
Marine mammal watching, often referred to as whale watching, includes tours by boat, by air or from land to see, swim with, and/or listen to any of the 83 species of whales, dolphins and porpoises and other marine mammals, such as seals. Marine mammal watching can have important educational, environmental, scientific, and other socio-economic benefits.
In Canada, the current regulations do not effectively control the various activities that may disturb marine mammals with the exception of regulations made under the Saguenay-St. Lawrence Marine Park Act or the Canada National Marine Conservation Areas Act for certain conservation areas. DFO has developed guidelines for approaching and viewing marine mammals for particular species and areas; however, these guidelines are voluntary and unenforceable.
The proposed Regulations Amending the Marine Mammal Regulations (the Regulations) would have the following effects:
1. Expand the scope of the MMR to include conservation and protection objectives
The proposed Regulations would add conservation and protection to the scope of application of the MMR (section 3), include marine mammal watching in the application of the Regulations and define the word “disturb” for the purposes of the Regulations.
Repetitive human activities which occur close to a marine mammal have the potential of preventing a marine mammal from carrying out its life processes, such as feeding, migrating, mating, rearing its young and so on. When marine mammals cannot carry out these basic life processes, their survival or conservation is threatened.
The MMR currently prohibit the disturbance of marine mammals, and the proposed Regulations would further define “disturb” as approaching the marine mammal to feed it, swim with it or otherwise interact with it; move it or entice or cause it to move from the immediate vicinity in which it is found; or tag or mark it, and approaching the marine mammal to attempt to do any of those things.
2. Introduce a minimum approach distance of 100 m to marine mammals
The Regulations would introduce a general minimum approach distance of 100 m to marine mammals. The maintenance of this minimum separation gap between vehicles (including vessels) and marine mammals would provide a sufficient safety buffer for marine mammals and would reduce, in most cases, the impediment to the animal carrying out its normal life processes. There is no single approach distance that is appropriate for all species of marine mammals, vessel classes and seasons, nor for all situations as they relate to disturbing marine mammals. DFO considers a 100 m approach distance to be appropriate for these species in most circumstances without unnecessarily restricting the public from enjoying the benefits of marine mammal viewing.
Commercial vessels that are in transit are exempted from these proposed Regulations.
The 100 m minimum approach distance in the proposed Regulations is consistent with Australia’s Environment Protection and Biodiversity Conservation Regulations 2000 and most of the guidelines in the United States. There are various guidelines, codes of conducts and best practices guides in the United States. The approach distance varies for each region, state, and species. These various regulatory and non-regulatory instruments reflect a common purpose for conservation and protection, but have significant distinction in their application. They include rules such as keeping an approach distance of 100 yards. The U.S. National Oceanic and Atmospheric Administration’s northwest office has recently introduced a new regulatory requirement for killer whales in the Pacific region. Vessels must not approach any killer whale by nearer than 200 yards (183 m). They must stay out of the path of oncoming whales out to 400 yards (366 m). Finally, vessels are forbidden to intercept a whale or position a vessel in the path of a whale.
A policy document would be shared with all stakeholders in order to provide further guidance to ensure that marine mammals are not disturbed and would include best practices to follow.
3. Introduce alternative approach distances which are tailored to particular circumstances
In addition to the general minimum 100 m approach distance, the proposed Regulations would allow minimum approach distances other than 100 m in some circumstances, depending on the species of marine mammal, type of vehicle, location and period of the year. In this way, the restrictions on approaching marine mammals can be tailored to accommodate unique regional or local needs without unduly affecting the general public across Canada. The various minimum approach distances would be set out in a proposed new schedule to the MMR.
In an area adjacent to the Saguenay-St. Lawrence Marine Park, a minimum 200 m distance would have to be respected in the case of whales, dolphins and porpoises. The schedule would also specify an area in the St. Lawrence estuary where a minimum 400 m distance would have to be maintained when the whale, dolphin or porpoise is a threatened or endangered species within the meaning of the Species at Risk Act. In the narrow Churchill River area, a 50 m minimum approach distance would apply in the case of belugas to allow for safe boating activities.
The principle for determining the approach distance to walrus is related to their possibility to escape without injuring smaller animals. When the animals are on ice with open water on all sides of the ice, the walrus can escape in any direction. If they are on ice from which escape is possible in less than 360 degrees, they are “more trapped” and the approach distance by people would be greater. When on land, escape routes are further restricted. The minimum approach distance would be 100 m on water. In this situation, they are most able to respond accordingly (by changing course, or diving). The approach distance would be increased to 200 m when walrus are hauled out on floating ice, because there is increased risk of injury to calves or smaller animals as adults return to the water. Finally, the distance would be increased to 300 m when on the shore or on consolidated ice, because they are resting and they have only one escape option (back to water) and the risk is greatest that calves may be trampled. This also addresses the possibility that walrus may be disturbed by vessels in transit alongside land-based haul-outs. There have been examples of haul-outs being abandoned as a result of increased vessel traffic in the vicinity.
If these approach distances need to be adjusted at some point in the future, appropriate consultations would be undertaken in the affected regions and a new proposed regulatory amendment would be initiated.
4. Introduce a provision prohibiting flight manoeuvres, including landings, take-offs and changes in the course or altitude of the aircraft, that are intended to bring the aircraft closer to a marine mammal or to otherwise disturb it
This prohibition would be applicable when the aircraft is being operated at an altitude of less than 304.8 m (1 000 feet) within a one-half nautical mile radius of the marine mammal.
This provision would not apply to commercial aircraft operating on a scheduled flight plan. Holders of seal fishery observation licences would also continue to be permitted to take-off or land an aircraft within the half-mile radius in order to be able to conduct their authorized activities.
5. Introduce a provision that would allow the Minister of Fisheries and Oceans to authorize, by licence, activities that may disturb marine mammals, but would otherwise provide benefits to the conservation and protection of the species
This provision would be used to permit the licence holder to conduct targeted research that could contribute to the conservation and protection of marine mammals or to assist animals in distress, stranded or entangled, etc. The provision would not authorize licensing to permit such activities as fishing, marine transportation or oil and gas exploration, where the principal objective of work is not directed at marine mammals.
Under the proposed Regulations, the disturbance of marine mammals would also be allowed where the person is authorized to fish for marine mammals or where the disturbing activity is authorized by licence issued under section 52 of the Fishery (General) Regulations or under the Species at Risk Act.
An exemption from the disturbance prohibition would also be provided in the MMR for employees of DFO, the Canadian Coast Guard, the Parks Canada Agency or the Department of National Defence, members of the Canadian Forces and peace officers who are performing their duties or functions.
6. Introduce a provision that requires the reporting to DFO of any accidental contact with a marine mammal (e.g. entanglements, collisions)
Immediately after any accidental contact between a vehicle or fishing gear and a marine mammal, the operator of the vehicle or the fishing gear would be required by these proposed Regulations to notify their regional DFO office of the date, time and location of the incident; the species of marine mammal involved in the incident; the circumstances of the incident; the weather and sea conditions at the time of the incident; the observed state of the marine mammal after the incident; and the direction of travel of the marine mammal after the incident, to the extent that it can be determined. By collecting this type of data, DFO would be better able to assess the types of threats that may be affecting Canada’s marine mammals and develop mitigation strategies.
Benefits and costs
In Canada, there is an estimated 100 coastal communities involved in marine mammal watching and a slightly higher number of operators of marine mammal watching tours listed on their respective provincial tourism Web sites. However, this does not include smaller operators who only advertise locally. These operators are mainly found in Newfoundland and Labrador, Nova Scotia and Quebec. In the West, they are located in British Columbia, and they are also present in the arctic. In addition, there are thousands of recreational boaters who spend significant amounts of time engaged in marine mammal watching in specific habitat areas.
The marine mammal watching industry is accepted worldwide as a sustainable non-consumptive use of marine mammals. Responsible viewing of marine mammals provides the opportunity for people across all ages and cultures to become familiar with marine mammals and their critical habitat and to become involved in conservation efforts on a local, regional, national and international level. Awareness of approach distances and what constitutes disturbance of these animals, as presented in the proposed Regulations, would assist in raising awareness about the threats to marine mammals and promote a sustainable marine mammal watching industry.
There is evidence that the presence of marine mammal watching vessels disrupts the normal activities of the animals in the short and long term. The large number of vessels that approach marine mammals too closely, move too quickly, operate too noisily, or pursue animals has a consequence on the life processes for whales and other marine mammals by changing the behaviour of targeted species. The proposed Regulations would benefit the animals by reducing disruptions caused by marine mammal watching activities. A reduction of the disruption would permit the animals to complete life processes such as communication, residential behaviour, movement, and feeding and caring for their young. Reducing disruptions would help reduce the risk to the conservation of marine mammals.
The proposed Regulations would require operators of a vehicle to report a collision or other accidental contact with a marine mammal. This reporting would provide DFO with information on marine mammal and incident densities in certain locations at certain times. Vessel strikes and noise from vessel operations are threats to some marine mammals, and knowledge of the frequency of these incidents would be helpful in making further management decisions regarding approach distances and vessel speed restrictions. Overall, this requirement would help DFO assess and address the types of threats that may be affecting marine mammals in Canada and in Canadian waters.
There are no anticipated costs to the tour operators to implement the proposed Regulations, and there is no fee associated with the disturbance licence. No new equipment would be required either to respect the approach distances or to report any accidental contact with a marine mammal. There may be some minor administrative costs associated with the reporting of accidental contact, although they are expected to be infrequent and not a significant burden as reporting simply involves either a phone call or an email. Fishers will be able to report incidents through their logbooks.
All operators in a given region would be impacted in the same way. DFO does not foresee that there would be a reduction of tourism in marine mammal watching operations given that the proposed Regulations would have to be respected in all regions.
Additional enforcement costs to DFO are likely to be minimal as monitoring of activities is already in place.
In 2002, DFO initiated informal discussions with the tour operator industry on the need to control the effects of marine mammal watching on whales and other marine mammals in Canada. In January 2003, DFO began formal consultations with the Canadian public concerning the proposed Regulations to modify the MMR. The stakeholders consulted included eco-tourism companies, researchers, biologists, recreational boaters, First Nations, non-governmental organizations, fishers, sport fishing advisory board members, and interested government departments. A total of 12 meetings were held in different communities in Quebec (Rivière-du-Loup, Les Escoumins, Sept-Îles and Gaspé) and British Columbia (Port McNeil, Queen Charlotte City, Tofino, Prince Rupert, Saturna Island, Vancouver and Victoria [two meetings]). Further to those meetings, consultations were also conducted by mail-out and via the Internet in New Brunswick, Nova Scotia and Newfoundland and Labrador from 2003 to 2004. Hunter and trapper organizations were also consulted in several remote communities in Manitoba and Nunavut.
Consultations were conducted in two phases: the first phase examined the need to regulate activities affecting marine mammals, and the second phase focused on the types of measures needed if regulations were to be introduced.
The first phase of public consultations was completed in the fall of 2004 and results indicated that overall there was national concern for the welfare of Canada’s marine mammals. DFO received overall support for the introduction of regulations controlling the interaction of humans with marine mammals in their environment. Based on the feedback received, DFO drafted proposed Regulations and integrated an abbreviated version of the proposed Regulations into a consultation workbook that was prepared for the second phase of public consultations.
In March 2005, the second phase of public consultations was conducted through public meetings and mail-outs and by posting the information on DFO’s national and regional Web sites. The posting included a consultation package consisting of an information bulletin, a consultation workbook, and a summary in the form of a deck. This consultation package was also used to conduct three additional public meetings in Victoria, Port McNeil and Vancouver. In addition, DFO mailed out the information bulletin and consultation workbook to approximately 300 organizations and interested people throughout Atlantic Canada. Consultation through mail-outs was used because it provided broader coverage in many areas in Canada where eco-tourism is located away from large population centres.
Summary of consultations
In general, based on the first phase of consultations in the Atlantic regions, most of the tour operators considered the development of these Regulations a long-awaited initiative that would provide a better framework for watching activities. The implementation of a single approach distance in the proposed Regulations led to some concerns, which were addressed by creating a schedule with tailored distances. Industry representatives did not have any major objections to the proposed Regulations. However, they commented on the need for the proposed Regulations to be less stringent. Aboriginal groups commented that the Regulations should be based on the needs of each species and their environment, but not to the detriment of their socio-economic development.
During the consultations on the Pacific coast, the initiative was also well received because the 100 m approach distance is already accepted in informal guidelines. Concerns were raised on the cost and implementation of a whale watching licence, but the licences have since been removed from the proposed Regulations.
The results of the second phase of consultations varied by issue and location. The overarching idea of better regulatory control of marine mammal watching in Canada was not disputed. Most of the feedback related to the timing of the introduction of the proposed regulatory controls, and the suitability of the proposed Regulations for a given area. Questions were submitted on whether licences would be required.
The connection between disturbance and conservation was well accepted by the public as the basis for the development of the Regulations. The majority of responses supported placing greater emphasis on public education and information rather than relying on punitive measures.
The concept of setting a general approach distance of 100 m for marine mammal watching was considered to be a practical and comprehensible means to prevent disturbance to the animals. However, the practicality of setting a single approach distance that would be applicable to all circumstances proved to be a very difficult task. Although 100 m is considered to be a nationally and internationally reasonable distance to prevent disturbance, after consultation in several locations, different distances were considered. The introduction of a schedule which would tailor the approach distance to particular circumstances was DFO’s response to the comments received on setting a general approach distance of 100 m.
One such example, where a variation to the 100 m would be necessary, is the Churchill and Seal River Estuaries. These estuaries are located in areas where a shorter approach distance is deemed to be more appropriate. During the summer months, the belugas aggregate in the Seal, Churchill and Nelson rivers’ estuaries. The Churchill River and estuary, as well as the fishing lodges at the Seal River, are used regularly by local residents and business operators. An approach distance greater than 50 m would have a high likelihood of interfering with safe navigation and render it practically impossible to navigate on these waters. Therefore, in order to prevent disturbance and ensure safe navigation, an alternative to the general 100 m approach distance is required.
The proposed requirement for a licence to conduct commercial marine mammal watching activities was controversial. The benefits of a licensing program to control marine mammal watching activities were well understood and were not disputed by stakeholders. However, the majority of concerns raised by stakeholders were over the potential licensing policy and how it would be introduced. DFO considered the comments and modified the proposed Regulations by removing the licensing requirement from the regulations.
Implementation, enforcement and service standards
Enforcement costs of these proposed Regulations are not expected to increase. To ensure compliance, DFO would initiate an education and information program to inform the public and the marine mammal watching industry of the proposed regulatory changes.
Fisheries and Oceans Canada
200 Kent Street
Legislative and Regulatory Affairs
Fisheries and Oceans Canada
200 Kent Street
PROPOSED REGULATORY TEXT
Notice is hereby given that the Governor in Council, pursuant to section 43 (see footnote a) of the Fisheries Act, (see footnote b) proposes to make the annexed Regulations Amending the Marine Mammal Regulations.
Interested persons may make representations with respect to the proposed Regulations within 60 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part Ⅰ, and the date of this notice, and be addressed to Eve Ste-Marie, Analyst, Legislation and Regulatory Affairs, Fisheries and Oceans Canada, 200 Kent Street, Ottawa, Ontario K1A 0E6 (tel.: 613-993-0982; fax: 613-990-0168).
Ottawa, March 15, 2012
Assistant Clerk of the Privy Council
REGULATIONS AMENDING THE MARINE MAMMAL REGULATIONS
1. The long title of the Marine Mammal Regulations (see footnote 1) is replaced by the following:
MARINE MAMMAL REGULATIONS
2. Section 1 of the Regulations and the heading before it are repealed.
3. Subsection 2(1) of the Regulations is amended by adding the following in alphabetical order:
“Department” means the Department of Fisheries and Oceans; (ministère)
4. Section 3 of the Regulations is replaced by the following:
3. These Regulations apply in respect of
- (a) the management and control of fishing for marine mammals and related activities in Canada and in Canadian fisheries waters;
- (b) the management and control of fishing for marine mammals from Canadian fishing vessels in the Antarctic; and
- (c) the conservation and protection of marine mammals in Canada and in Canadian fisheries waters.
5. The Regulations are amended by adding the following after section 3.1:
3.2 In the case of any inconsistency between these Regulations and any regulations respecting marine mammals made under the Saguenay-St. Lawrence Marine Park Act or under the Canada National Marine Conservation Areas Act, the regulations made under those Acts shall prevail.
3.3 In the case of any inconsistency between these Regulations and the Canadian Aviation Regulations, the latter shall prevail.
6. (1) Subsection 4(1) of the Regulations is replaced by the following:
4. (1) Subject to subsections (2) and 32(1) and section 38, the Minister may, on application and payment of the fee set out in column II of an item of the table to this subsection, issue a licence referred to in column I of that item.
|5.||Marine Mammal Disturbance Licence||No charge|
(3) Section 4 of the Regulations is amended by adding the following after subsection (2):
(3) For the proper management and control of fisheries and the conservation and protection of fish, the Minister may specify in a marine mammal disturbance licence any condition respecting
- (a) the waters in which it is permitted to disturb marine mammals;
- (b) the marine mammals that may be disturbed;
- (c) the period during which the marine mammals may be disturbed;
- (d) the type, size, number and identification of vehicles that are permitted to be used and the persons who are permitted to operate them;
- (e) the manner in which those vehicles are to be operated, including proximity to marine mammals, the speed and direction of the vehicles and the requirement to avoid cutting off the path of marine mammals;
- (f) the manner in which the marine mammals may be disturbed and the measures that are required to mitigate or minimize the negative effects of disturbing them;
- (g) the diagnostic assessment or any other evaluations that are to be carried out in respect of the marine mammals before, during and after they are disturbed;
- (h) the information that the licence holder is to report to the Department, as well as the method by which, the times at which and the person to whom the report is to be made; and
- (i) the records that the licence holder is to maintain of any activity carried out under the licence, as well as the manner and form in which the records are to be maintained, the times at which and the person to whom the records are to be produced and the period for which the records are to be retained.
7. Section 7 of the Regulations is replaced by the following:
7. (1) No person shall disturb a marine mammal except
- (a) when fishing for marine mammals under the authority of these Regulations;
- (b) in the manner authorized by a marine mammal disturbance licence or a licence to fish for marine mammals for experimental, scientific, educational or public display purposes issued under the Fishery (General) Regulations; or
- (c) in the manner authorized by the Species at Risk Act.
(2) For the purposes of subsection (1), “disturbing” includes approaching the marine mammal to, or attempt to,
- (a) feed it;
- (b) swim with it or otherwise interact with it;
- (c) move it or entice or cause it to move from the immediate vicinity in which it is found; or
- (d) tag or mark it.
(3) For the purposes of subsection (1), in the case of a marine mammal that is of a species set out in column 1 of Schedule VI, “disturbing” also includes approaching the marine mammal with a vehicle of the type set out in column 2 within the approach distance set out in column 3 in the area set out in column 4 during the period set out in column 5.
(4) The requirement to respect the approach distances set out in Schedule VI does not apply
- (a) to a commercial vessel that is in transit; or
- (b) to the holder of a seal fishery observation licence who is observing the seal fishery.
7.1 The prohibition set out in section 7 does not apply to
- (a) employees of the Department who are performing their duties or functions or persons who are assisting them or who are otherwise present at the request of the Department; or
- (b) employees of the Parks Canada Agency or the Department of National Defence, members of the Canadian Forces and peace officers, who are performing their duties or functions.
7.2 (1) When an aircraft is being operated at an altitude of less than 304.8 m (1,000 feet) within a one-half nautical mile radius of a marine mammal, no person shall perform a flight manoeuvre — including taking off, landing or altering the course or altitude of the aircraft — for the purpose of bringing the aircraft closer to the marine mammal or otherwise disturbing it.
(2) Subsection (1) does not apply
- (a) to the holder of a marine mammal disturbance licence or a licence to fish for marine mammals for experimental, scientific, educational or public display purposes issued under the Fishery (General) Regulations, when conducting activities authorized by the licence;
- (b) to employees of the Department who are performing their duties or functions or persons who are assisting them or who are otherwise present at the request of the Department;
- (c) to employees of the Parks Canada Agency or the Department of National Defence, members of the Canadian Forces and peace officers, who are performing their duties or functions; or
- (d) in respect of a commercial flight that is operating on a scheduled flight plan.
(3) Despite subsection (1), the holder of a seal fishery observation licence is permitted to take off or land an aircraft within a one-half nautical mile radius of a marine mammal for the purpose of conducting activities authorized by the licence.
8. Section 11 of the Regulations is repealed.
9. Paragraph 33(2)(d) of the Regulations is replaced by the following:
- (d) to employees of the Department who are performing their duties or functions or persons who are assisting them or who are otherwise present at the request of the Department; or
10. The Regulations are amended by adding the following after section 37:
MARINE MAMMAL DISTURBANCE
38. A marine mammal disturbance licence may only be issued if the Minister determines that the disturbance to be authorized
- (a) could improve a marine mammal’s immediate chance of survival;
- (b) could ease the pain and suffering of a marine mammal that is in distress; or
- (c) would permit the production of audiovisual records of activities of marine mammals, which could facilitate a better understanding of marine mammals and, in so doing, contribute to their conservation and protection.
ACCIDENTAL CONTACT WITH MARINE MAMMALS
39. Immediately after any accidental contact between a vehicle or fishing gear and a marine mammal, the operator of the vehicle or the fishing gear, as the case may be, shall — unless the contact is reported as a by-catch in a log book — notify the Department of
- (a) the date, time and location of the incident;
- (b) the species of marine mammal involved in the incident;
- (c) the circumstances of the incident;
- (d) the weather and sea conditions at the time of the incident;
- (e) the observed state of the marine mammal after the incident; and
- (f) the direction of travel of the marine mammal after the incident, to the extent that it can be determined.
11. The Regulations are amended by adding, after Schedule V, the Schedule VI set out in the schedule to these Regulations.
COMING INTO FORCE
12. These Regulations come into force on the day on which they are registered.
(Subsections 7(3) and (4))
Vehicles — except aircraft in flight
|1.||Whale, dolphin, porpoise||All||100 m||Subject to items 2 to 4, all Canadian fisheries waters||January 1 to December 31|
|2.||Whale, dolphin, porpoise||All||200 m||
Subject to item 3, that portion of the waters of the St. Lawrence Estuary described as follows:
|January 1 to December 31|
|3.||Whale, dolphin and porpoise, if a threatened species or endangered species within the meaning of the Species at Risk Act||All||400 m, or any greater distance that is provided for under the Species at Risk Act||
That portion of the waters of the St. Lawrence Estuary including:
|January 1 to December 31|
That portion of the waters of the Churchill Estuary described as follows:
That portion of the waters of the Seal River from a central point situated at 59°05′ Latitude N., 94°47′ Longitude W., described as follows:
|June 1 to October 31|
|5.||Walrus||All||100 m||Subject to item 6, all Canadian fisheries waters||January 1 to December 31|
|6.||Walrus||All||200 m||On the ice of Canadian fisheries waters||June 1 to October 31|
|7.||Walrus||All||300 m||On the shores of Canadian fisheries waters||June 1 to October 31|