Canada Gazette, Part I, Volume 160, Number 10: Regulations Amending the Marine Mammal Regulations (Southern Resident Killer Whale Approach Distance)
March 7, 2026
Statutory authority
Fisheries Act
Sponsoring department
Department of Fisheries and Oceans
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues
The Southern Resident killer whale (SRKW) is a marine mammal population that is one of several killer whale (Orcinus orca) populations found in Canadian Pacific waters. SRKW was first classified as endangered by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) in 2001, and was included as endangered on Schedule 1 of the Species at Risk Act (SARA) in 2003. Despite its protected status and ongoing conservation efforts and interventions, its numbers continue to decline. In 2018, and again in 2024, the Ministers of Fisheries and Oceans and the Ministers of the Environment determined that the SRKW population was facing imminent threats to its survival and recovery. Recent studies document that human activities occurring in proximity to SRKW, including physical and acoustic disturbances caused by vessels, disrupt SRKW life processes. Killer whales, including SRKW, rely heavily on echolocation to forage for food, communicate and mate: these disturbances reduce their ability to carry out these and other basic life processes.
The Government of Canada has several measures in place to protect SRKW. These include the Marine Mammal Regulations (MMR), made under the Fisheries Act, which prohibit, with exceptions, the disturbance of marine mammals. Since 2019, interim orders made annually by the Minister of Transport (annual TC IOs) under the Canada Shipping Act (CSA) [for example the Interim Order for the Protection of the Killer Whale (Orcinus orca) in the Waters of Southern British Columbia, 2025)] have included a prohibition against vessels approaching within 400 metres of Pacific killer whales in waters of Southern British Columbia. Although it has been possible to manage approach distances using the annual TC IOs, they are intended to be used in the short term and therefore do not offer the regulatory certainty of a long-term amendment to the MMR.
As part of the Government’s life cycle approach to regulation, Fisheries and Oceans Canada (the Department) has reviewed the MMR and determined that technical adjustments are needed to effectively and consistently manage protective measures for marine mammals.
Background
Killer whales are an iconic species that has important cultural significance for Indigenous Peoples, coastal communities in British Columbia (BC) and other Canadians. Several populations of killer whales are listed as endangered or as threatened under SARA: SRKWs, of which fewer than 75 individuals remain, are classified as endangered. The Government of Canada is committed to implementing long-term protections for SRKWs using the tools available.
The MMR prohibits the disturbance of marine mammals, with exceptions. It also prescribes specific approach distances, whereby if a person approaches a marine mammal at a distance that is closer than the prescribed distance, that person will be deemed to have disturbed the marine mammal. These approach distances apply to motorized and non-motorized vessels, such as kayaks and paddle boards. The approach distance prescribed by the MMR for all killer whales in Canadian Pacific fisheries waters is currently 200 metres.
The annual TC IOs have increased this approach distance to 400 metres for all killer whales in southern BC coastal waters. Under these IOs, the Minister of Transport may authorize commercial whale watching and ecotourism companies — through a whale-watching authorization (WWA) — to view non-SRKW populations at no less than 200 metres. The annual TC IOs prohibit WWA holders from referring to sightings of SRKW when offering or promoting excursions.
In spring of 2023, the Government of Canada announced its commitment to transitioning the approach distances for SRKW and Pacific killer whales such that they will no longer be included in the annual TC IOs. Instead, it was proposed that long-term or permanent changes to the MMR be made. In fall 2023, the Department launched consultations and engagement on proposed increases to approach distances for Pacific killer whales through amendments to the MMR, as well as other measures, including whale watching authorizations. Following consultations, engagement and consideration of available options, it was determined that increasing the approach distance to 1 000 metres for SRKW by amending the MMR is the most efficient long-term option. This proposal is generally supported by First Nations and stakeholders who, through regular SRKW advisory groups, have been requesting regulatory consistency.
Objective
The primary purpose of the proposed Regulations Amending the Marine Mammal Regulations (Southern Resident Killer Whale Approach Distance) [the proposed Amendments] is to mitigate physical and acoustic disturbances to SRKWs from some vessels (including boaters, paddlers and kayakers), though a long-term regulatory change that would increase the approach distance for this ecotype. This change would increase regulatory certainty and stability for Canadians by utilizing the MMR as the regulatory tool to manage approach distances for SRKWs in Canadian Pacific fisheries waters. Approach distances for all Pacific killer whales would no longer be prescribed in the annual TC IOs.
The proposed Amendments would also make several other amendments to areas of general application in order to provide increased clarity to regulated parties and to improve the administration of the MMR.
Description
Approach distance for Southern Resident killer whales
The proposed Amendments would increase the approach distance prescribed in the MMR for SRKWs in Pacific Canadian fisheries waters from 200 metres to 1 000 metres. The approach distance would remain 200 metres for other killer whale ecotypes in Pacific Canadian fisheries waters (Northern Resident killer whale, Transient killer whale, Offshore killer whale), as they do not face the same imminent threat as the SRKW.
The proposed Amendments would mitigate the threats posed to the SRKW by physical and acoustic disturbance related to some vessel traffic. As a result of the proposed Amendments, the annual TC IOs would no longer include any reference to approach distances for Pacific killer whales (currently 400 metres in the annual TC IO), but would focus on the other Transport Canada-led SRKW measures (vessel restricted zones, etc.). This would simplify enforcement and communication of the rules to industry members, First Nations and Canadians by consolidating approach distances within the MMR.
Technical amendments
To clarify that the prohibition against aircraft disturbing marine mammals in subsection 7.2(1) applies to remotely piloted aircraft systems (RPASs, also known as drones), an amendment is being proposed that would expressly indicate that the term “aircraft” includes RPASs as defined in the Canadian Aviation Regulations. The proposed Amendments would also exempt persons undertaking aircraft-related activities who are subject to an exception or authorization under SARA, avoiding duplicative authorization requirements for aircraft-related activities and reducing red tape for Canadians.
Under subsection 38(1) of the MMR, the Minister may “authorize” the disturbance of marine mammals in specific circumstances. Under subsection 43.4(1) of the Fisheries Act, a person must comply with the terms and conditions of a “lease” or “licence” issued under the authority of the Act. Failure to do so is an offence. The proposed Amendments would make clear that the authorizing instrument in subsection 38(1) of the MMR is a “licence,” thus facilitating enforcement.
Under section 15 of the MMR, the use of “shall” indicates that the Minister is obligated to issue a marine mammal transportation licence upon receipt of an application if the proposed transportation is one that is described in paragraphs 15(a) to (c), regardless of whether it is, in the Minister’s view, appropriate or acceptable. This is not consistent with ensuring that Canada’s oceans and other aquatic ecosystems are protected from negative impacts. The proposed Amendments would grant the Minister the discretion to determine whether issuing a licence is appropriate or acceptable and act accordingly.
The Department is also proposing to make corrections and updates to the MMR as needed to address minor inconsistencies and outdated language. These changes would increase the effectiveness of the MMR and correct inconsistencies, resulting in more regulatory clarity.
Regulatory development
Consultation
The Department consulted Indigenous groups and engaged with Canadians and stakeholders on the proposed Amendments between the fall of 2023 and the spring of 2025. Consultation and engagement were conducted with existing advisory groups established to discuss SRKW management measures. These groups include the Indigenous and Multi-stakeholder Advisory Group (IMAG), Multi-Nation Group (MNG) and the Technical Working Group on General Vessel Measures. Organizations and individuals who participate in these groups include Indigenous Peoples and groups, representatives from environmental non-governmental organizations, the commercial whale watching industry, recreational boating and fishing communities, academia, other governments and coastal communities.
The Department also consulted West Coast First Nations, Treaty Nations, Indigenous groups, stakeholders and Canadians on the proposed Pacific killer whale approach distance changes through a public online survey (June 3 to September 3, 2024); in-person and virtual bilateral meetings if requested; and consultation correspondence to the dedicated Marine Mammal Regulations inbox.
In addition to consultations, news releases and posts on the Department’s website and social media channels publicized the consultation process and instructed interested persons on how to share their views on the proposed Amendments with the Department.
In 2024, the Minister of Fisheries and Oceans and the Minister of the Environment formed the opinion that the SRKW continues to face imminent threats to its survival and recovery. This triggered the obligation under section 80 of the Species at Risk Act (SARA) for the Ministers to recommend that the Governor in Council (GIC) make an emergency order for the species. In March 2025, the Government of Canada declined to make the order and proposed alternative measures, including, among other things, increasing the approach distance for SRKWs to 1 000 metres under the MMR through the ongoing consultation process.
In March 2025, following consultations and engagement mentioned above, the “What we heard report: Marine Mammal Regulations Amendments” was published online. It was concluded that there is strong and general support for increasing the approach distance for the SRKW. All groups also shared their support for the continued protection of the species and encouraged longer-term and more permanent actions. There were mixed opinions regarding approach distances for other types of Pacific killer whales (non-SRKW): academia and non-governmental organizations recommended an increase to 400 or 1 000 metres for all Pacific killer whales. However, whale-watching industry members expressed concern for their businesses if the approach distance for non-SRKW was greater than 200 meters. While some Indigenous respondents agreed there should be no further increase in approach distance for non-SRKW, some Indigenous respondents urged further protection and an increased approach distance of 400 metres for the other Pacific killer whale ecotypes and other cetaceans as well.
All respondents supported the need for enhanced enforcement and public outreach to ensure effective protection of these species. Strong support was also expressed for clarifying the prohibition against aircraft disturbing marine mammals to include RPAS (drones) and that further guidance on drone usage around marine mammals is made available.
Indigenous engagement, consultation and modern treaty obligations
As per the 2015 Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment of the modern treaty implications was conducted on this proposal. The assessment concluded that implementation of this proposal will likely not have an impact on the rights or self-government provisions of the implicated modern treaty partners.
The Department has engaged with all interested Indigenous people, groups and whale-watching outfits and has respected the consultation obligations set out in implicated modern treaties. These included the four modern treaty partners — Tsawwassen First Nation, Maa-nulth First Nations, Tla’amin First Nation and Nisga’a Lisims Government — who have an interest in the proposed Amendments due to the cultural importance of the SRKW.
The proposed Amendments are anticipated to affect the interests, but not the exercise of rights, of modern treaty partners. Since prescribed approach distances do not apply to vessels in transit or stationary vessels, the proposed amendment to the approach distance for SRKW would not affect the exercise of rights-based fishing activities. Indigenous whale-watching organizations — and non-Indigenous organizations — have not been viewing or advertising tours to view SRKWs for several years. They have been offering tours only for non-SRKW killer whales and other whale species.
Instrument choice
Disturbance prohibitions and specific approach distances to address the risks posed to marine mammals by vessels and aircraft are detailed in the MMR. The approach distance for all killer whales in Canadian Pacific fisheries waters is currently 200 metres under the MMR; there is no specified approach distance for the SRKW population.
Although it has been possible to manage approach distances for killer whales in southern BC coastal waters by increasing them to 400 metres using the annual TC IOs, which are intended to be a short-term regulatory tool that does not offer the regulatory stability or certainty of a long-term solution such as amending the MMR. These IOs have included, among other things, a prohibition against positioning a vessel in the path of a killer whale and an authorization scheme to enable commercial ecotourism and whale-watching companies to approach non-SRKW killer whales at a distance of 200 metres. Under the annual TC IOs, among other things, authorization holders must not refer to sightings of SRKWs when offering or promoting excursions. If the proposed Amendments are made, Transport Canada will continue to consider making annual IOs for the protection of SRKWs, but they will no longer include approach distances.
Regulatory analysis
Incremental impacts are estimated by comparing a baseline scenario against the regulatory scenario.
Baseline and regulatory scenarios
Approach distances
Under the MMR, the approach distance for all Pacific killer whale populations is 200 metres. However, in the southern waters of British Columbia, it has been increased to 400 metres on a yearly basis under the annual TC IOs. The IOs also allow WWA holders to view non-SRKW Pacific killer whales at 200 metres. Under the annual TC IOs the holder of an authorization must not refer to sightings of SRKWs when offering or promoting excursions. The SRKW population continues to decline, due in part to threats associated with vessel-related physical and acoustic disturbance. Under the proposed Amendments, the approach distance would be increased to 1 000 metres for SRKWs and would remain at 200 metres under the MMR for other Pacific killer whale populations. Approach distances for SRKWs would not be included in future annual TC IOs.
Disturbance and aircraft
The disturbance prohibition in the MMR related to aircraft does not include a definition of “aircraft.” Thus, this provision could be misinterpreted by the general public as excluding RPASs (also known as drones); however, drones are considered aircraft in Canadian legislation (Aeronautics Act and Canadian Aviation Regulations). The proposed Amendments will therefore include an express reference to RPASs. Additionally, the prohibition currently applies regardless of whether the person undertaking the activity is subject to an exception or an authorization under SARA, creating a duplicative authorization requirement. Thus, the proposed Amendments provide an exception to the prohibition in cases where activities are already subject to exceptions or authorizations under SARA.
Authorization to disturb a marine mammal
The Minister may “authorize” the disturbance of marine mammals under the MMR in certain specific circumstances, and may include conditions in the authorization. Under the Fisheries Act (subsection 43.4(1)), a person must comply with the terms and conditions of a “lease” or “licence” issued under the authority of that Act. Failure to comply is an offence. To facilitate enforcement of marine mammal disturbance authorizations, the proposed Amendments make it clear that the authorizing instrument is a “licence.”
Marine mammal transportation licence
The MMR indicate that the Minister “shall” issue a marine mammal transportation licence if the transportation is for one of the three scenarios set out in a provision of these Regulations. This does not provide the Minister with the authority to determine if such authorization is appropriate or acceptable and to act accordingly. The proposed Amendments would make the issuance of a marine mammal transportation licence discretionary.
Benefits and costs
The proposed Amendments would increase the approach distance in the MMR for SRKWs (which applies all year in Canadian Pacific fisheries waters) from the current 200 metres to 1 000 metres. The approach distance for non-SRKW Pacific killer whales would remain at 200 metres. The proposed Amendments would also have the effect of exceeding the 400-metre approach distance for SRKWs under the annual TC IOs and reverting to 200-metre approach distances for non-SRKWs under the MMR. The proposed amendment is not expected to result in incremental costs to industry. Approach distances would not apply to vessels in transit or stationary vessels. Therefore, the proposed amendment would not incrementally impact fishing activities, including rights-based fishing activities, or any large commercial vessels in transit, including major project vessels and cruise ships in transit. Further, with respect to viewing of killer whales by commercial ecotourism and whale-watching companies, no incremental impacts are anticipated from the increase in the approach distance since, under the annual TC IOs, vessels of WWA-authorized tour operators may approach non-SRKW killer whales up to 200 metres. Like everyone else, they are prohibited from approaching within 400 metres of SRKWs. Under the annual TC IOs, they are also prohibited from referring to sightings of SRKWs when offering or promoting excursions.
The proposed amendment would not result in incremental costs to government as the approach distances and disturbance provisions for Pacific killer whales under the MMR are already enforced coast-wide.
The proposed amendment granting ministerial discretion related to marine mammal transportation licences would not result in substantial incremental costs to the government. The Department issues approximately 70 000 licences of various kinds each year under the Fisheries Act, of which less than 50 are marine mammal transportation licences. Therefore, any variation in the application review process for these licences would be negligible.
Under the baseline scenario, once an application for a mammal transportation licence is submitted, the Minister is required to issue a licence if the proposed transportation is for one of the purposes described in that provision of the MMR. Because the Minister has no discretion to deny an application, in cases where applications are lacking information, the Department must request additional information from applicants until it is clear that information related to other relevant considerations has been submitted (for example the fact that the applicant came into possession of the marine mammal or marine mammal parts legally). This process can, at times, be lengthy. Under the proposed Amendments, the Minister would have the authority to deny a marine mammal transportation licence application based on relevant considerations, such as instances where the applicant is unable to demonstrate that they came into possession of the marine mammal legally. This would enable the Department to communicate decisions regarding applications to proponents in a more timely and transparent manner, including providing clear rationales for refusals. In some cases, this process may result in faster resolution for applicants rather than extended exchanges seeking and supplying additional information. The proposed amendment is therefore expected to generate minor administrative benefits for both the Department and applicants by improving clarity and predictability in the licensing process.
Compared to the baseline scenario, this proposed amendment may result in minor costs for a small number of applicants whose licence applications would be denied. Such costs could include lost opportunities to display marine mammal parts or sell products made with marine mammal parts. Given the very low volume of applications and the narrow scope of the amendment, these impacts are expected to be limited.
Other proposed Amendments would clarify definitions, reduce permitting duplication, facilitate enforcement, and streamline administration for certain activities. These proposed Amendments would not impose any incremental costs for industry or government.
The proposed Amendments may result in some unquantifiable incremental benefits by reducing both physical and acoustic disturbances to SRKWs. This outcome would support the conservation of this endangered species and benefit people and communities for whom the SRKW holds cultural, ecological, or personal significance.
Small business lens
No incremental impacts related to the proposed Amendments are anticipated for small businesses (i.e. commercial whale-watching companies and the fishing industry).
One-for-one rule
The one-for-one rule does not apply as no additional administrative requirements are being imposed on businesses in the proposed Amendments.
Regulatory cooperation and alignment
If the proposed Amendments to the MMR are made, proactive coordination and consultations between Fisheries and Oceans Canada, Transport Canada and the Province of British Columbia would continue to ensure the coherence of the broader suite of SRKW protection measures. The administrative changes would not impact the mandate of any other minister, province or territory.
International obligations
There are no international obligations or agreements impacted by this proposal. Canada and the United States agree on the need for a long-term, strategic plan that will help mitigate the threats to the survival and recovery of the SRKW. In January 2025, the Washington State Whale Watching Licensing Program for commercial whale-watching vessels implemented a 1 000-yard (914-metre) buffer (approach distance) for viewing SRKWs and a 200-yard (182-metre) buffer for viewing non-SRKWs in Washington State waters as part of its whale-watching licensing regime. The proposed Amendments to the MMR would align Canada with the Washington State approach distances for SRKWs and non-SRKWs, and ensure enforcement consistency for this transboundary species. The United States and Washington State governments will continue to be engaged and consulted through the existing SRKW governance structure and working groups.
Effects on the environment
A preliminary assessment of possible impacts to climate, nature and economy was conducted and found that the proposed Amendments are built off pre-existing regulations and are anticipated to have no significant environmental or economic effects beyond those presented in this proposal.
Gender-based analysis plus
No gender-based analysis plus (GBA+) impacts have been identified for this proposal. A preliminary assessment was conducted and concluded that the proposed Amendments would have no potential benefits, differential outcomes, or adverse outcomes for Canadians based on factors such as gender, age, education, language, geography, culture and income.
Implementation and enforcement
Upon coming into force, the proposed Amendments would result in the approach distance for SRKWs that is included in the annual TC IOs becoming unnecessary. The Department will work with Transport Canada to prevent contradictory and duplicative regulatory requirements.
There are no new or incremental implementation requirements associated with the proposed Amendments. Proposed changes to the approach distance would not result in any changes to enforcement. The Department’s Conservation and Protection Directorate would continue enforcing approach distances: the increased distance for SRKWs would not result in an increase in responsibilities or associated costs. The proposed Amendments to clarify the MMR will streamline enforcement and communications surrounding approach distances, provide increased clarity to regulated parties and improve the administration of the Regulations for Pacific killer whales.
Contact
Brett Gilchrist
Director
Department of Fisheries and Oceans
200 Kent Street, 11th Floor
Ottawa, Ontario
K1A 0E6
Email: DFO.NCRFMMMRconsultation-consultationRMMGPRCN.MPO@dfompo.gc.ca
PROPOSED REGULATORY TEXT
Notice is given that the Governor in Council proposes to make the annexed Regulations Amending the Marine Mammal Regulations (Southern Resident Killer Whale Approach Distance) under section 43footnote a of the Fisheries Act footnote b.
Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. They are strongly encouraged to use the online commenting feature that is available on the Canada Gazette website but if they use email, mail or any other means, the representations should cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to Brett Gilchrist, Director, National Programs, Department of Fisheries and Oceans, 200 Kent Street, 11th Floor, Ottawa, Ontario K1A 0E6 (email: DFO.NCRFMMMRconsultation-consultationRMMGPRCN.MPO@dfo-mpo.gc.ca).
Ottawa, March 2, 2026
Janna Rinaldi
Acting Assistant Clerk of the Privy Council
Regulations Amending the Marine Mammal Regulations (Southern Resident Killer Whale Approach Distance)
Amendments
1 The portion of subsection 6(1) of the Marine Mammal Regulations footnote 1 before paragraph (a) is replaced by the following:
6 (1) An Indigenous person other than a beneficiary may, without a licence, fish for food, social or ceremonial purposes for
2 (1) Subsection 7.2(1) of the Regulations is replaced by the following:
7.2 (1) No person operating an aircraft — including a remotely piloted aircraft as defined in subsection 101.01(1) of the Canadian Aviation Regulations — at an altitude of less than 304.8 m (1000 ft.) within a radius of one-half nautical mile from a marine mammal 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 7.2(2) of the Regulations is amended by striking out “or” at the end of paragraph (d), by adding “or” at the end of paragraph (e) and by adding the following after paragraph (e):
- (f) to persons who are subject to an exception or authorization that is referred to in subsections 83(1), (3) or (4) of the Species at Risk Act.
3 Paragraph 13(2)(a) of the Regulations is replaced by the following:
- (a) an Indigenous person, other than a beneficiary, within the Northwest Territories, Yukon, Quebec or Newfoundland and Labrador; or
4 Sections 15 and 16 of the Regulations are replaced by the following:
15 (1) No person shall transport marine mammals or marine mammal parts from one province to another except under the authority of a marine mammal transportation licence issued by the Minister.
(2) Subsection (1) does not apply
- (a) to a person who fishes for marine mammals in one province and resides in another province and who is transporting their catch to their place of residence;
- (b) to a person who is transporting seals or seal parts taken from any of Sealing Areas 4 to 33; or
- (c) to a beneficiary who is transporting any marine mammal or marine mammal parts in accordance with the Agreement referred to in paragraph (c) of the definition beneficiary in subsection 2(1).
16 The Minister may, on application, issue a marine mammal transportation licence authorizing a person to transport, from one province to another,
- (a) edible marine mammal parts for the personal use of that person or the members of their family;
- (b) non-edible marine mammal parts; or
- (c) any marine mammal or marine mammal parts to be used for experimental, scientific, educational or public display purposes.
5 Paragraph 37(a) of the French version of the Regulations is replaced by the following:
- a) dans les eaux du havre Murray ou de ses tributaires, dans la province de l’Île-du-Prince-Édouard, en deçà d’une ligne droite tirĂ©e Ă partir du feu de la pointe Old Store, situĂ©e Ă 46°01′17″ de latitude nord et 60°28′44″ de longitude ouest, jusqu’à l’extrĂ©mitĂ© sud de la pointe Sable, situĂ©e Ă 46°01′14″ de latitude nord et 62°29′07″ de longitude ouest, durant la pĂ©riode commençant le 1er juin et se terminant le 30 septembre;
6 The portion of subsection 38(1) of the Regulations before paragraph (a) is replaced by the following:
38 (1) Despite sections 7 and 7.2, the Minister may issue a licence authorizing the disturbance of marine mammals if it is established that the activity causing the disturbance
| Item | Column 4 Area |
|---|---|
| 1 | Subject to items 2 to 4, 8 and 9, all Canadian fisheries waters |
| Item | Column 1 Species of Marine Mammal |
|---|---|
| 8 | Killer whale, except Southern Resident killer whale |
| Item | Column 4 Area |
|---|---|
| 8 | All Canadian fisheries waters in the Pacific Ocean and British Columbia |
| Item | Column 1 Species of Marine Mammal |
Column 2 Vehicles — Except Aircraft in Flight |
Column 3 Approach Distance |
Column 4 Area |
Column 5 Period |
|---|---|---|---|---|---|
| 9 | Southern Resident killer whale | All | 1000 m | All Canadian fisheries waters in the Pacific Ocean and British Columbia | January 1 to December 31 |
Coming into Force
10 These Regulations come into force on the day on which they are registered.
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