Order Declining to make an Emergency Order for the protection of the Killer Whale Northeast Pacific Southern Resident Population: SI/2018-102

Canada Gazette, Part II, Volume 152, Number 23

Registration

SI/2018-102 November 14, 2018

SPECIES AT RISK ACT

Order Declining to make an Emergency Order for the protection of the Killer Whale Northeast Pacific Southern Resident Population

P.C. 2018-1352 November 1, 2018

Whereas the following recovery planning measures have been taken under the Species at Risk Act with respect to the Killer Whale (Orcinus orca) Northeast Pacific southern resident population (SRKW):

• (a) the Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada, published in 2008 and amended in 2011;
• (b) the Action Plan for the Northern and Southern Resident Killer Whale (Orcinus orca) in Canada and the Multi-species Action Plan for Pacific Rim National Park Reserve of Canada, published in 2017;
• (c) the Multi-species Action Plan for Gulf Islands National Park Reserve of Canada, published in 2018; and
• (d) the Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada (proposed), identifying additional areas of critical habitat and published on September 4, 2018;

Whereas, on May 24, 2018, the Minister of Fisheries and Oceans and the Minister of the Environment announced that they had formed the opinion that the SRKW faces imminent threats to its survival and recovery and identified three key threats to the population, namely prey availability, acoustic and physical disturbance and environmental contaminants;

Whereas, having formed that opinion, the Ministers recommended under subsection 80(2) of the Species at Risk Act that the Governor in Council make an emergency order;

Whereas measures under the Species at Risk Act are in place to protect and address the threats to the SRKW, including the prohibition in section 32 against the killing, harming, harassing, capturing or taking of an individual of an endangered species and the Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order, made in 2009, which triggered the prohibition in subsection 58(1) of the Species at Risk Act against the destruction of any part of the critical habitat of these two populations;

Whereas other measures have been taken, continue to be taken and will be taken by the Government of Canada and other organizations to address the three imminent threats to the survival and recovery of the SRKW, including

• (a) with respect to prey availability,
  • (i) fisheries closures for recreational finfish and commercial salmon fisheries in key foraging areas from June 1 to September 30, 2018, partial, varying closures in the mouth of the Fraser River from June 1 to September 30, 2018 and potential further closures at times and places to be established before the 2019 fishing season based on information available at that time,
  • (ii) a reduction in total fishery removals for Chinook salmon of 25-35% in 2018 and potential further reductions to be established before the 2019 fishing season based on information available at that time,
  • (iii) habitat restoration to increase Chinook productivity,
  • (iv) aerial coverage of the SRKW and their critical habitat and increased enforcement capacity,
  • (v) development of the Southern BC Chinook Strategic Planning Initiative (CSPI) to support the recovery and rebuilding of the Chinook salmon population,
  • (vi) finalization of a renegotiated Chinook chapter of the Pacific Salmon Treaty, and
  • (vii) increased hatchery production;
• (b) with respect to acoustic and physical disturbance,
  • (i) fishery closures in key foraging areas and reductions in fishery removals, which contribute to reducing the impacts associated with disturbance from vessel noise,
  • (ii) amendments to the Marine Mammal Regulations to establish 200 metres as the minimum approach distance for killer whales in all Canadian fisheries waters in the Pacific Ocean and British Columbia, which came into force on June 22, 2018,
  • (iii) enhancement of enforcement capacity for the Marine Mammal Regulations and the Species at Risk Act,
  • (iv) voluntary slow-downs of commercial vessels in Haro Strait and other zones,
  • (v) voluntary trial lateral displacement of commercial vessels within the shipping lanes in the Strait of Juan de Fuca away from foraging areas,
  • (vi) seeking of new expanded legislative authorities under the Canada Shipping Act, 2001 to regulate the impacts of vessels on the marine environment,
  • (vii) conservation agreements or memoranda of understanding with key stakeholder groups on vessel noise mitigation measures to formalize and expand on voluntary measures,
  • (viii) proposal to extend existing requirements for automatic identification systems to smaller commercial vessels to improve safety and collision avoidance while also strengthening the ability of government to better target dynamic management measures based on traffic density,
  • (ix) improvements to whale detection tools and alerting procedures,
  • (x) development of noise management plans with industry for quieting the marine environment,
  • (xi) deployment of hydrophones to acquire baseline data to help develop noise reduction targets, and
  • (xii) research on technical solutions for quieting ships;
• (c) with respect to environmental contaminants,
  • (i) regulatory measures governing the release of deleterious or toxic substances under the Metal and Diamond Mining Effluent Regulations, the Pulp and Paper Effluent Regulations, the Wastewater Systems Effluent Regulations and the Prohibition of Certain Toxic Substances Regulations, 2012,
  • (ii) strengthening of regulatory controls for five persistent organic pollutants, including two flame retardants (polybrominated diphenyl ethers (PBDEs) and hexabromocyclododecane (HBCD)) and three oil and water repellents (perfluorooctane sulfonate and its salts and precursors (PFOS), perfluorooctanoic acids and its salts and precursors (PFOA) and long chain perfluorocarboxylic acids and their salts and precursors (LC-PFCAs)), as outlined in a notice of intent published in October 2018, with publication of the proposed regulatory amendments in Part I of the Canada Gazette anticipated for winter 2020, subject to consultations,
  • (iii) upgrades to wastewater treatment with the construction in Victoria and Vancouver of two new wastewater treatment plants expected to be operational by January 1, 2021 and a third in Vancouver expected to be operational by January 1, 2031, and
  • (iv) research for the purpose of monitoring and measuring contaminants in the SRKW, their habitat and their main prey; and
• (d) with respect to all of those threats, expansion of research to inform future decision-making, including research
  • (i) on SRKW health and condition,
  • (ii) on the effectiveness of threat mitigations, and
  • (iii) on the foraging success of the SRKW in known key foraging areas and on prey availability over time;

Whereas the above measures, considered together, will contribute to abating the imminent threats to the survival and recovery of the SRKW;

And whereas social, economic, policy and other factors, and the broader public interest, have also been considered;

Therefore, Her Excellency the Governor General in Council declines to make an emergency order pursuant to section 80 of the Species at Risk Act ^{footnote a}.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

This Order confirms the Governor in Council’s decision declining to make an Emergency Order under section 80 of the Species at Risk Act (SARA) for the protection of the Killer Whale Northeast Pacific southern resident population (SRKW).

Background

In May 2018, the Minister of Fisheries and Oceans and the Minister of the Environment, in her role as the Minister responsible for the Parks Canada Agency, as competent ministers under SARA for the SRKW, jointly announced they had formed the opinion that SRKW is facing imminent threats to its survival and recovery. Three key threats to the population were identified as prey availability, acoustic and physical disturbance, and environmental contaminants.

Subsection 80(1) of SARA states that the Governor in Council may, on the recommendation of the competent minister, make an Emergency Order to provide for the protection of a listed wildlife species. Subsection 80(2) of SARA states that the competent minister must make the recommendation if he or she is of the opinion that the species faces imminent threats to its survival or recovery. Under section 81 of SARA, a recommendation is not required to be made if the competent ministers are of the opinion that equivalent measures have been taken under another Act of Parliament to protect the wildlife species.

Pursuant to subsection 80(2) of SARA, the Ministers must recommend an Emergency Order given that they are of the opinion that the SRKW face imminent threats to its survival or recovery, and after having carefully considered the matter, they concluded that equivalent measures addressing all the threats have not been taken under another Act of Parliament to protect the SRKW.

Implications

The Governor in Council’s decision to decline to make an Emergency Order under section 80 of SARA was informed by the objectives of SARA and the expected effectiveness of measures and activities that have been taken and continue to be taken by the Government of Canada and other organizations, consistent with the Recovery Strategy and Action Plans, to address the threats to SRKW and its critical habitat. The decision also took into account social, economic, policy and other factors, and the broader public interest.

It was determined that existing and planned measures, considered together, will contribute to abating the imminent threats to the survival and recovery of the SRKW. Future decisions about measures will be informed by more scientific knowledge to understand the threats, their interactions, and how the threats impact the SRKW.

The Government of Canada will continue to use a combination of other legislative mechanisms available under the Fisheries Act, the Canada Shipping Act, 2001 and the Canadian Environmental Protection Act, 1999, as well as non-regulatory measures to address the key threats. For example, the Government of Canada will continue to work in collaboration with Indigenous groups and other stakeholders to promote activities that contribute to the survival and recovery of the SRKW.

For these reasons it has been determined that the most effective approach is to continue to influence human activities without making an Emergency Order, using existing legislative tools and non-regulatory measures.

Therefore, Her Excellency the Governor General in Council declines to make an Emergency Order under section 80 of the Species at Risk Act.