Banc-des-Américains Marine Protected Area Regulations: SOR/2019-50
Canada Gazette, Part II, Volume 153, Number 5
SOR/2019-50 February 25, 2019
P.C. 2019-95 February 23, 2019
Her Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to subsection 35(3) of the Oceans Act footnote a, makes the annexed Banc-des-Américains Marine Protected Area Regulations.
Banc-des-Américains Marine Protected Area Regulations
1 (1) The following definitions apply in these Regulations.
Marine Protected Area means the area of the sea that is designated by section 2. (zone de protection marine)
vessel has the same meaning as in section 2 of the Canada Shipping Act, 2001. (bâtiment)
(2) In the schedule, all geographical coordinates (latitude and longitude) are expressed in the North American Datum 1983 (NAD83) reference system.
Geographical coordinates for points
(3) The geographical coordinates of the points referred to in sections 2 and 3 are set out in the schedule.
Marine Protected Area
2 (1) The area of the sea depicted in the schedule that is bounded by a series of rhumb lines drawn from points 1 to 4 and then back to point 1 is designated as the Banc-des-Américains Marine Protected Area.
Seabed, subsoil and water column
(2) The Marine Protected Area consists of the seabed, the subsoil to a depth of five metres and the water column above the seabed.
3 The Marine Protected Area consists of the following management zones, each of which is depicted in the schedule:
- (a) Zone 1, which is bounded by a series of rhumb lines drawn from point 1 to point 5, then to points 6 to 16 and then back to point 1;
- (b) Zone 2a, which is bounded by a series of rhumb lines drawn from point 5 to point 2, then to point 3, then to point 11, then to point 10, then to point 9, then to point 8, then to point 7, then to point 6 and then back to point 5; and
- (c) Zone 2b, which is bounded by a series of rhumb lines drawn from point 16 to point 15, then to point 14, then to point 13, then to point 12, then to point 4 and then back to point 16.
4 Subject to sections 5 to 8, it is prohibited to carry out any activity in the Marine Protected Area that disturbs, damages, destroys or removes from the Marine Protected Area any living marine organism or any part of its habitat or that is likely to do so.
5 The following activities may be carried out in the Marine Protected Area if they are carried out in accordance with the provisions of the Fisheries Act and the Coastal Fisheries Protection Act, as well as their regulations:
- (a) fishing, other than commercial fishing, that is authorized under the Aboriginal Communal Fishing Licences Regulations;
- (b) in Zones 2a and 2b, commercial fishing — for any species other than capelin, herring, mackerel, sand lace, krill or copepods — by means of a trap, longline or handline or by angling; and
- (c) in Zones 2a and 2b, recreational fishing by means of a handline or by angling.
6 Navigation may be carried out in the Marine Protected Area subject to the following conditions:
- (a) a vessel must not anchor in Zone 1; and
- (b) in the case of a vessel that is of 400 gross tonnage or more or certified to carry 15 persons or more, it must not discharge sewage as defined in subsection 1(1) of the Vessel Pollution and Dangerous Chemicals Regulations or release greywater as defined in subsection 131.1(1) of those Regulations.
Safety or emergency
7 Any activity may be carried out in the Marine Protected Area if it is carried out for the purpose of public safety, national defence, national security, law enforcement or to respond to an emergency.
8 Any activity that is part of an activity plan that has been approved by the Minister may be carried out in the Marine Protected Area.
Submission to Minister
9 (1) Any person may submit to the Minister an activity plan for the carrying out of any scientific research or monitoring, habitat restoration, educational or commercial marine tourism activity in the Marine Protected Area.
Contents of plan
(2) The activity plan must contain
- (a) the person’s name, address, telephone number and email address;
- (b) if the activity plan is submitted by an institution or organization, the name of the individual who will be responsible for the proposed activity and their title, address, telephone number and email address;
- (c) the name of each vessel that the person proposes to use to carry out the activity, its state of registration and registration number, its radio call sign and the name, address, telephone number and email address of its owner, master and any operator;
- (d) a detailed description of the proposed activity and its purpose, the methods or techniques that are to be used to carry out the activity and the data to be collected;
- (e) the geographical coordinates of the site of the proposed activity and a map that shows the location of the activity within the boundaries of the Marine Protected Area;
- (f) the proposed dates and alternative dates on which the activity is to be carried out;
- (g) a list of the equipment that is to be used, the means by which it will be deployed and retrieved and the methods by which it is to be anchored or moored;
- (h) a list of the type and quantity of samples that are to be collected;
- (i) a list of any substances that may be deposited during the proposed activity in the Marine Protected Area — other than substances that are authorized under the Canada Shipping Act, 2001 to be deposited in the navigation of a vessel — and the quantity and concentration of each substance;
- (j) a description of the adverse environmental effects that are likely to result from carrying out the proposed activity and of any measures that are to be taken to monitor, avoid, minimize or mitigate those effects;
- (k) a description of any scientific research or monitoring, habitat restoration, educational or commercial marine tourism activity that the person has carried out or anticipates carrying out in the Marine Protected Area; and
- (l) a general description of any study, report or other work that is anticipated to result from the proposed activity and its anticipated date of completion.
Approval of activity plan
10 (1) The Minister must approve an activity plan if
- (a) the scientific research, monitoring or habitat restoration activities that are set out in the plan are not likely to destroy the habitat of any living marine organism in the Marine Protected Area and serve to
- (i) increase knowledge of the biodiversity or biological productivity of the Marine Protected Area,
- (ii) increase knowledge of the habitat of any living marine organism in the Marine Protected Area or of the ecosystem structure and function of the Marine Protected Area, or
- (iii) assist in the management of the Marine Protected Area; and
- (b) the educational or commercial marine tourism activities that are set out in the plan
- (i) are not likely to damage, destroy or remove from the Marine Protected Area any living marine organism or any part of its habitat, and
- (ii) serve to increase public awareness of the Marine Protected Area.
(2) Despite subsection (1), the activity plan must not be approved if
- (a) any substance that may be deposited during the proposed activity is a deleterious substance as defined in subsection 34(1) of the Fisheries Act, unless the deposit of the substance is authorized under subsection 36(4) of that Act; or
- (b) the cumulative environmental effects of the proposed activity, in combination with those of any other past and current activities carried out in the Marine Protected Area, are such that the activity is likely to
- (i) destroy the habitat of any living marine organism in the Marine Protected Area,
- (ii) adversely affect the biodiversity or biological productivity of the Marine Protected Area,
- (iii) adversely affect the ecosystem structure and function of the Marine Protected Area, or
- (iv) adversely affect whales or wolffish.
Timeline for approval
(3) The Minister’s decision in respect of an activity plan must be made within
- (a) 60 days after the day on which the plan is received; or
- (b) if amendments to the plan are made, 60 days after the day on which the amended plan is received.
11 (1) If the Minister approves an activity plan, the person who submitted it must provide the Minister with an activity report within 90 days after the last day of the activity. The report must contain
- (a) the data collected during the activity;
- (b) a list of the type and quantity of samples that were collected, the date of their collection and the geographic coordinates of the sampling sites;
- (c) an evaluation of the effectiveness of any measures taken to monitor, avoid, minimize or mitigate the adverse environmental effects of the activity; and
- (d) a description of any event that occurred during the activity and that was not anticipated in the activity plan, if the event could result in the disturbance, damage, destruction or removal from the Marine Protected Area of any living marine organism or any part of its habitat.
Studies, reports or other works
(2) The person must also provide the Minister with a copy of any study, report or other work that results from the activity and is related to the conservation and protection of the Marine Protected Area. The study, report or other work must be provided within 90 days after the day on which it is completed.
Coming into Force
12 These Regulations come into force on the day on which they are registered.
(Subsections 1(2) and (3) and 2(1) and section 3)
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues: Human activity is putting increasing pressure on Canada’s oceans. An assessment of the impacts from human activities was conducted and results indicate that certain current and potential human activities within the Banc-des-Américains Marine Protected Area (MPA) could compromise the achievement of the conservation objectives established for this MPA. The regulatory framework that applies to these activities does not provide comprehensive protection for the species and habitats of this unique site. A more cohesive and predictable regulatory framework in the form of regulations designating the marine area in question as an MPA under the Oceans Act is necessary to focus on the conservation and long-term protection of important ecological and biological features of this area, particularly by prohibiting activities in areas where they pose the greatest risk of damage.
Description: The Banc-des-Américains Marine Protected Area Regulations (the Regulations) are adopted pursuant to subsection 35(3) of the Oceans Act to designate a 1 000 km2 area of the American Bank footnote 1 as an MPA. This designation allows for the conservation and protection of the marine ecosystem in this area.
The Regulations prohibit any activity that disrupts, damages, destroys or removes any living marine organism or any part of its habitat, or that is likely to do so, from this MPA. However, exceptions to this general prohibition allow certain activities that do not compromise the achievement of this MPA’s conservation objectives to be carried out therein.
This MPA consists of two management zones. More stringent restrictions apply in the core protection zone, the most sensitive part (Zone 1), while an adaptive management zone (composed of Zones 2a and 2b) would allow activities that are compatible with the conservation objectives to take place therein under certain conditions. Activities carried out to ensure such things as public safety and national security are permitted throughout this MPA.
Cost-benefit statement: This MPA is intended to limit or mitigate the impacts of certain human activities on this unique ecosystem by conserving and protecting marine species and the habitats on which they depend. The protection of marine species, their habitats and water quality will reinforce the diversity and productivity in this MPA and will allow an increase in the abundance of species having commercial value.
The incremental costs associated with this MPA are low and are estimated to be approximately $3.84 million (in 2015 Canadian dollars) over a 30-year period, from 2018 to 2047 (using a 7% discount rate), or an average annual value of $0.31 million. The incremental costs associated with the designation of the Banc-des-Américains MPA affect commercial fisheries, the tourism industry and the Government of Canada.
“One-for-One” Rule and small business lens: The “One-for-One” Rule applies to these Regulations because additional administrative costs are expected, as tourism businesses will be required to prepare and submit activity plans and activity reports. There are currently three tourism companies operating in this MPA. The total administrative cost is estimated at $173 for the three tourism companies, or $57 per company. footnote 2 The small business lens does not apply to these Regulations, as the anticipated additional costs for the industry are estimated to be lower than the $1 million per year threshold.
Domestic and international coordination and cooperation: The designation of the Banc-des-Américains MPA directly contributes to Canada’s efforts to implement measures consistent with a number of international agreements, the most important of which is the Convention on Biological Diversity (CBD). In 2010, the Conference of the Parties, having subscribed to the CBD, set the following target, referred to as Aichi Target 11: “By 2020, at least 17 percent of terrestrial and inland water areas and 10 percent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well-connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscape and seascape.”
On June 8, 2016, the Minister of Fisheries and Oceans reaffirmed the Government of Canada’s commitment to protect 10% of Canada’s marine and coastal areas by 2020. This commitment is reflected in the mandate letters of the Minister of Fisheries and Oceans and the Minister of the Environment. On behalf of the Government of Canada, the Minister coordinates the development and establishment of a national network of marine protected areas (MPAs). Under the Oceans Act, the Minister of Fisheries and Oceans has the power to recommend the designation of MPAs to the Governor in Council.
In 2011, Fisheries and Oceans Canada (DFO) selected the Banc-des-Américains as an area of interest for potential designation as an MPA. This MPA Regulations aim to conserve and protect the biodiversity of the American Bank from damage caused by human activities. This MPA is designated for special protection under subsection 35(1) of the Oceans Act for four of the five reasons for which an MPA may be designated:
- (a) the conservation and protection of commercial and non-commercial fishery resources, including marine mammals, and their habitats;
- (b) the conservation and protection of endangered or threatened species, and their habitats;
- (c) the conservation and protection of unique habitats; and
- (d) the conservation and protection of marine areas of high biodiversity or biological productivity.
The Banc-des-Américains MPA is located in the Gulf of St. Lawrence. Near Cape Gaspé and Bonaventure Island to the west, it extends for 35 km eastward, off the Gaspé coast. This MPA includes the seabed and the subsoil to a depth of 5 m. This MPA is in the Estuary and Gulf of St. Lawrence bioregion and in regulatory area T4 of the Northwest Atlantic Fisheries Organization (NAFO). The area’s particular rock formation and the Gaspé current that carries nutrients are the primary reasons for the wide variety of habitats and marine species found in this area.
This MPA is visited by many commercially fished species and by marine mammals, including species listed under the Species at Risk Act (SARA), such as the Blue Whale (Atlantic population) [listed as an endangered species] and the North Atlantic Right Whale (listed as an endangered species). Fifteen cetacean species are observed every year in the region, which is a feeding ground and an essential migration route to and from the St. Lawrence Estuary. The Leatherback Sea Turtle (listed as an endangered species under SARA), the largest reptile in the world, has been observed in the area. Currently, the area is home to the Atlantic Wolffish (listed as a species of special concern under SARA), which is particularly fond of the rocky cavities of the area. Moreover, species at risk as rare as the Spotted and the Northern Wolffish (listed as threatened species under SARA) have been captured in the area. This MPA is an important feeding, spawning, shelter and migration area for many of these species.
The most frequent commercial activities in the area are fishing, boating and tourism activities at sea. An assessment of the impacts of these human activities on the achievement of the conservation objectives of this MPA and an update based on new information were completed. The following paragraphs explain the results of this assessment.
Some commercial and recreational fisheries are carried out in the area. Bottom trawling can alter the composition of the habitats and species that live on the sea floor, and even destroy them. In addition, this type of fishing gear catches many non-targeted species (by-catch), footnote 3 some of which are in a precarious state, such as the Atlantic Wolffish or Atlantic Cod. The practice of bottom trawling is therefore considered to be an activity that poses a very high risk of compromising the achievement of the conservation objectives of this MPA.
Assessment of the use of traps in fishing activities indicated that traps cause disruptions on the seabed, especially when depositing them on the bottom of the seabed and raising them. footnote 4 In addition, this type of gear generates a risk of entanglement with marine mammals. footnote 5 From 1975 to 2016, the timing of when whales frequent this MPA did not coincide with the timing of the crab fishery. Therefore, the risks associated with the practice of fishing for crab by way of traps are considered low and do not compromise the achievement of the conservation objectives of this MPA. However, since 2017, North Atlantic Right Whales have visited the Gulf of St. Lawrence in greater numbers and earlier in the season. According to scientists, it is too early to know whether this situation is likely to continue. footnote 6 The Department has therefore implemented temporary fishing closures that prohibit, among other things, the use of traps in this MPA area when North Atlantic Right Whales are present, in order to reduce the risks of entanglement. The Department will continue to assess the right whale situation in this MPA and permanent measures may be taken if necessary to avoid the risks of entanglement.
Gillnets and longline gear are currently used very little (< 1%) in this area, while other fishing gear (hand line, Danish seine, traps) are used on a marginal basis (< 0.1%). However, a gillnet is a type of fishing gear that is very damaging to the marine ecosystem footnote 7 and the risk of gillnet entanglement with certain whales, some of which are at risk, is very high. The combined effect of seabed alteration and whale entanglement risks associated with the use of this fishing gear are therefore considered to pose a very high risk to the achievement of the conservation objectives of this MPA.
Marine transportation is another source of risk. These risks relate to contamination from accidental spills, collisions between whales and ships, and noise. The discharge of sewage and the release of grey water could also contaminate the water column and marine sediments, which are both important habitats for marine organisms living in this MPA.
Some commercial vessels, including tankers, cargo ships, chemical carriers and cruise ships carrying up to 400 passengers, cross this MPA to enter and leave Chaleur Bay and the port of Gaspé. Transportation of petroleum and chemical products by tankers may compromise the achievement of the conservation objectives, in case of spills. In addition, vessel passage can disrupt the behaviour of marine mammals due to the noise the vessels produce and can pose a risk of collision. However, for the moment, marine transportation is fairly limited in the American Bank area, such that allowing this activity in this MPA is not considered to compromise the achievement of the conservation objectives.
Marine tourism activities in this MPA are seasonal and are mainly for marine mammal observation. The main threats related to these activities are the disturbance caused by the proximity of the vessels, vessel noise and the risk of collision with marine mammals. This MPA is considered to be far from the home ports of marine tour operators, especially those operating small craft. For this reason, few operators frequent the area. In addition, the Marine Mammal Observation Network provided boat captains with awareness information kits to encourage them to adopt better approach and animal observation practices. In addition, the modifications to the Regulations Amending the Marine Mammal Regulations (SOR/2018-126 — Canada Gazette, Part II, volume 152, number 14, July 11, 2018) impose minimum vehicle approach distances (including a minimum approach distance of 100 m for whales, dolphins and porpoises and of 200 m if the individual is at rest or with its calf), which helps limit disturbances to cetaceans in the area. As a result, the risks of this activity compromising the achievement of the conservation objectives are considered low.
Natural resources and energy industries
Natural resource exploration or exploitation activities present high risks to the achievement of this MPA’s objectives. However, there is currently no oil, gas or mineral exploration or development activity in this MPA. No oil, gas or mineral exploration or development claims or licences have been issued in areas that overlap with part or the entirety of this MPA. In addition, no hydroelectric power generation or other marine infrastructure projects are being considered in this MPA.
There are currently no submarine cables in this MPA. During the development period of the Banc-des-Américains MPA Regulations, no submarine cable installation projects were considered at the site. However, during the public consultation period after the prepublication of the proposed Regulations in the Canada Gazette, Part I, Hydro-Québec (the company responsible for producing, transporting and distributing electricity in Quebec) informed DFO that one of the layouts being studied for a new proposed submarine cable installation project linking the Magdalen Islands to the Gaspé Peninsula overlaps part of this MPA. The impacts of submarine cables compromise the achievement of the conservation objective intended to protect benthic habitat (seabed). footnote 8
In summary, the results of the assessment of the human activity impacts previously described regarding the achievement of the conservation objectives of this MPA justifies the need to implement regulatory protection measures. This MPA Regulations address this need to protect the American Bank ecosystem and will allow for the adequate management, among other things, of these human activities to achieve the conservation objectives of this MPA.
Human activities are putting increasing pressure on Canada’s oceans. An ecological risk assessment was conducted and results indicate that certain human activities may compromise the achievement of the conservation objectives established for this MPA area. The existing regulatory tools applicable to these activities, applied independently, do not adequately mitigate the risks they pose.
Some marine activities are regulated through various federal laws, such as the Canada Shipping Act, 2001, and the Species at Risk Act, which aim to achieve different objectives than those of the Oceans Act and its regulations. Without a unifying authority, such as the designation of an MPA under the Oceans Act, the overall protection of species and habitats will remain incomplete. Additional governmental intervention in the form of an MPA, designated by way of a regulation under the Oceans Act, is therefore necessary for the responsible management of activities to conserve and protect the American Bank ecosystem in the long term, particularly by prohibiting activities in the zones that pose the greatest risk to the achievement of the objectives of this MPA.
The purpose of this MPA is to promote the productivity and diversity of fishery resources in the American Bank and the plains adjacent to it, and to promote the recovery of species that are in a precarious situation. This goal would be achieved through the following conservation objectives:
- (1) Conserve and protect benthic (seabed) habitats;
- (2) Conserve and protect pelagic (water column) habitats and forage species (prey); and
- (3) Promote the recovery of at-risk whales and wolffish.
The Banc-des-Américains Marine Protected Area Regulations is adopted pursuant to subsection 35(3) of the Oceans Act. This MPA covers an area of 1 000 km2.
The Regulations prohibit, within the boundaries of this MPA, any activity that disrupts, damages, destroys or removes any living marine organism or any part of its habitat, or that is likely to do so, from this MPA. The Regulations contain exceptions to the general prohibition that would allow certain activities to be carried out in this MPA, or in certain parts of it. The activities that are allowed within this MPA are those that do not compromise the achievement of the conservation objectives.
Limits of the marine protected area and management areas
The Regulations establish two management zones in this MPA (Figure). In each of the management zones, specific activities that do not compromise the achievement of the conservation objectives of this MPA are permitted (as an exception from the general prohibition). More stringent restrictions apply in the core protection zone, the most sensitive zone (Zone 1), while activities that are compatible with the achievement of the conservation objectives are permitted in the adaptive management zone (composed of Zones 2a and 2b), under certain conditions. The management zones are as follows:
- Zone 1 (core protection zone): This area covers an area of 127 km2. It covers all of the rocky ridges associated with the American Bank, as well as their escarpments and the surrounding sea floor. It represents the highest protection area for the part of this MPA that is richest in biodiversity and most sensitive to human activities.
- Zones 2a and 2b (adaptive management zone): These zones cover an area of 873 km2 and include almost 90% of this MPA. They include the deep plains on either side of the American Bank. Zones 2a and 2b are considered less fragile than Zone 1. Certain activities that are compatible with the achievement of the conservation objectives are permitted, under certain conditions.
Activities that are permitted in the marine protected area through the Regulations
The Regulations provide exceptions to the prohibitions in order to allow specific activities within this MPA. In order to be carried out in this MPA, some of these activities require the approval of an activity plan by the Minister of Fisheries and Oceans. The activities that are permitted in this MPA are listed below.
Activities allowed to take place within this MPA continue to be subject to all other applicable legislative and regulatory requirements. Proponents continue to be required to obtain all other necessary approvals (e.g. permits and licences), in accordance with applicable laws, in order to carry out their activities within the area.
The exceptions are the following:
The following fishing activities are allowed to take place within this MPA, if they are carried out in accordance with the provisions of the Fisheries Act, and the Coastal Fisheries Protection Act, as well as with their regulations.
Indigenous fishing for food, social and ceremonial purposes
Indigenous fishing for food, social and ceremonial purposes is allowed throughout this MPA. This activity continues to be subject to the requirements under the Aboriginal Communal Fishing Licences Regulations.
Commercial and recreational fishing
Commercial and recreational fishing activities are restricted to specific areas and types of fishing gear:
- Zone 1: commercial fishing (including under the Aboriginal Communal Fishing Licences Regulations) and recreational fishing are not permitted.
- Zones 2a and 2b: commercial fishing for any species other than capelin, herring, mackerel, sand lance, krill and copepods by means of traps, longlines, angling or hand lines is permitted. Recreational fishing by means of lines or hand lines is allowed in Zones 2a and 2b.
All activities related to shipping and transportation continue to be allowed within this MPA. However, anchoring of vessels is not permitted in Zone 1. In addition, discharge of sewage and release of grey water (as defined in the Vessel Pollution and Dangerous Chemicals Regulations) from vessels with a gross tonnage of 400 tonnes or more, or certified to carry 15 or more passengers, are prohibited in this MPA.
(3) Public safety and national security
Throughout this MPA, activities carried out for the purposes of public safety, law enforcement, national security, national defence or to respond to an emergency (e.g. search and rescue operations at sea, or a response in the event of an incident involving the discharge of deleterious substances) are permitted to ensure the safety of Canadians.
(4) Scientific research and monitoring, habitat restoration, educational activities, and commercial marine tourism
Scientific research or monitoring, habitat restoration activities, education and commercial marine tourism activities are permitted in the Banc-des-Américains MPA provided that these form part of an activity plan approved by the Minister. These activities also continue to be subject to all other applicable legislative and regulatory requirements such as obtaining licences or authorizations required for the respective activity.
To ensure that the conduct of these activities in this MPA does not compromise the achievement of conservation objectives, the Regulations require that an activity plan containing specific information for each activity be submitted to the Minister of Fisheries and Oceans for review and approval before the activity in question can be conducted in this MPA.
If the review of the activity plan concludes that the proposed activity fulfils the conditions stipulated in the Regulations, the activity plan will be approved by the Minister and the activity can be conducted in this MPA.
However, the activity plan will be rejected under certain circumstances. In accordance with the Regulations, the Minister will withhold approval of the activity plan in the following cases:
- (a) any of the substances that may be released during the activity is a deleterious substance within the meaning of subsection 34(1) of the Fisheries Act and is not permitted to be released under subsection 36(4) of this Act;
- (b) the cumulative environmental effects of the activity, combined with those of previous and ongoing activities in this MPA, are such that the activity is likely to
- (i) result in the destruction of the habitat of a marine organism living in this MPA,
- (ii) adversely affect marine areas of high biodiversity or high biological productivity in this MPA,
- (iii) adversely affect the functioning and structure of the ecosystem of this MPA, or
- (iv) harm whale or wolffish populations.
The Minister of Fisheries and Oceans has a maximum of 60 days to review and approve or reject the activity plan. If a plan is amended and then resubmitted to the Minister by the applicant, the Minister shall make a decision on the amended plan no later than 60 days after the date of its resubmission.
Persons whose activity plan is approved by the Minister must present a report to the latter on the activities conducted in this MPA within 90 days after the last day of the activity. This information is used, among other things, to monitor the pressure exerted by human activities on the ecological aspects of this MPA, and contributes to the ongoing monitoring of the risks that these activities could pose to the achievement of conservation objectives of this MPA.
In addition, when a report, study or any other publication is produced as a result of the activity, a copy of this document must be provided to the Minister within 90 days of its completion.
Regulatory and non-regulatory options considered
An assessment of human activities has been conducted and the results show that certain current and potential human activities in this MPA may compromise the achievement of the conservation objectives established for this area. Existing regulatory tools, applied independently, do not adequately mitigate these risks. Some marine activities are already regulated under the provisions of the Fisheries Act, the Canada Shipping Act, 2001 and the Species at Risk Act as well as other federal statutes with different objectives than those of the Oceans Act. DFO is not aware of voluntary measures in place that provide protection that is adequate in terms of the environmental characteristics of this MPA. Additional government intervention is therefore considered necessary for responsible management of activities, and to conserve and protect the American Bank ecosystem.
The designation of the Banc-des-Américains MPA through the Regulations pursuant to the Oceans Act is considered necessary to focus efforts on the long-term conservation and protection of the important ecological and biological features of the region. Implementation of this MPA will help conserve and protect the American Bank ecosystem by prohibiting certain current, potential and future activities that jeopardize the achievement of the conservation objectives defined for the area.
Benefits and costs
The costs and benefits of the Regulations have been evaluated in accordance with the Canadian Cost-Benefit Analysis Guide, published by the Treasury Board of Canada Secretariat (TBS). The cost-benefit analysis was performed by comparing the baseline (status quo) with this MPA scenario. The impacts of this MPA have been identified and, where possible, quantified or monetized. The cost estimates are stated in Canadian dollars at 2015 values applying a discount rate of 7% from 2018 to 2047 (30-year period). The projected impacts in this MPA are based on the human activities that occurred between 2006 and 2015 in the area.
Benefits of the Regulations
These MPA Regulations create a general framework which reinforces the regulatory protection currently applicable to the area. These Regulations create a holistic regulatory framework which limits or mitigates impacts of certain human activities on this unique ecosystem, while conserving and protecting marine species and the habitats on which these depend. The protection of marine species, their habitats (spawning grounds, mating sites, nursery and feeding areas) and water quality will reinforce the diversity and productivity in this MPA and increase the abundance of species with a commercial value. Moreover, the protection of prey species (capelin, herring, mackerel, sand lance, krill and copepods) will attract predator species, some of which are listed as endangered (e.g. Atlantic Wolffish and blue whales), which would contribute to the recovery of these species. In the longer term, this MPA should contribute to increase biodiversity beyond its limits by overspill of marine organisms from this MPA to adjacent areas.
Access to an MPA creates a unique opportunity to perform controlled scientific research in Canada, whether for the federal government or for universities. At the same time, the tourism industry and environmental organizations will be able to use this MPA to raise public awareness of this unique and productive ecosystem by developing projects in the area.
This MPA has traditionally been used by the Mi’gmaq community. Following a project relating to this MPA, interpretive posters will illustrate the history and importance of this MPA for the Mi’gmaq community and provide information on the historical and cultural heritage of the Mi’gmaq community related to this MPA to members of the community and visitors to the Micmac interpretation Site of Gespeg.
The incremental costs associated with this MPA are estimated at around $3.84 million (in 2015 Canadian dollars applying a discount rate of 7%) over a 30-year period, from 2018 to 2047. The incremental costs associated with the designation of the Banc-des-Américains MPA affect communal commercial fisheries, regular commercial fisheries, tourism businesses and the Government of Canada.
No impact is expected on indigenous fisheries for food, social and ceremonial purposes.
All commercial fishing activities, including commercial communal fishing under a communal commercial licence under the Aboriginal Communal Fishing Licences Regulations, are prohibited in Zone 1. Commercial fishing by means of certain types of fishing gear, such as trawls and gillnets, and aimed at certain species, is also prohibited in Zones 2a and 2b. Between 2006 and 2015, the holders of approximately 26 commercial fishing licences, 3 of which were Indigenous communities with communal commercial licences, engaged in commercial fishing activities that are now prohibited by the Regulations in Zones 1, 2a and 2b.
Species that were fished under an Aboriginal commercial fishing licence between 2006 and 2015 were snow crab and northern shrimp. It is anticipated that the loss of landing revenues would be $0.05 million annually or $0.61 million over 30 years for the 3 Indigenous communities that have been active in this area. These incremental costs represent 55% of the total incremental costs for commercial fishing in American Bank over a 30-year period. It should be noted that landings in this MPA account for only 0.41% of the total catch of these three communities between 2006 and 2015.
The Regulations may have an impact on the fishing and tourism industries. Taking into account the past 10 years (2006–2015), it may be concluded that the maximum total additional cost to businesses is $0.50 million at present value over a 30-year period or $0.04 million annually. No additional costs resulting from the Regulations are anticipated for the shipping or natural resource industries.
The species historically fished by commercial fishermen in this MPA are snow crab, northern shrimp, groundfish species and pelagic fish species.
Based on landing data from 2006 to 2015, fishing revenues in Zones 1, 2a and 2b that are subject to the prohibitions associated with this MPA are estimated at an average of around $0.04 million per year. On the basis of this average landed value, the expected present value of commercial fishing activities in this MPA is $0.50 million over 30 years. This is a conservative estimate assuming that any landed value is lost if fishermen are unable to conduct their fishing activities in adjacent areas.
However, it is expected that fishermen will continue to be able to fill their quotas by moving their fishing activities from Zone 1 to Zones 2a or 2b, or to waters adjacent to this MPA. As a result, the additional costs associated with commercial fishing prohibitions in this MPA can result in a minimal profit loss due to lower landings or increased costs related to fishing (i.e. fuel and additional payroll costs to obtain the same catches outside the prohibited area).
In addition, between 2006 and 2015, one to five processors purchased catches from the fishermen who fished in this MPA area. On average, 0.4% of their total supply came from areas in which fishing is prohibited in this MPA. However, there is no anticipated impact for these companies because they can easily get their supplies from catches in other fishing areas.
As there are no licences for the recreational fishery and participants are not required to report on their catch within this MPA, there is no readily available information regarding the size and nature of this fishery. Due to a lack of data on the number of individuals involved in this fishery and the expenditures associated with the activity, the impact pertaining to the establishment of this MPA cannot be quantified with any degree of certainty.
Currently, there are three tourism companies (cruises and sea tours) operating in this MPA. The administrative costs associated with this MPA designation are related to the requirement to prepare and submit an activity plan prior to the commencement of operations and a progress report at the end of these operations. In addition, if tourism companies produce a study as a result of the activity, a copy of this document must be presented to the Minister. However, the cost incurred by this requirement is minimal. The present value of administrative costs is estimated at $3,150 or $252 per year for the three companies over the 30-year period. These costs are estimated with the assumption that an activity plans would be submitted every five years, and activity reports would be submitted every year.
The prohibition of the discharge and release of sewage and grey water provided for in this MPA Regulations applies to a portion of the area that is not subject to the prohibition already in effect under the Vessel Pollution and Dangerous Chemicals Regulations. Restrictions imposed on grey water and sewage to certain vessels under this MPA Regulations result in negligible costs to the marine industry since the majority of the vessels that are subject to the prohibitions already possess the equipment necessary for treating and storing these waters, thereby enabling them to withhold from releasing these substances into this MPA. In addition, the Regulations do not require deviation of navigation routes.
Natural resources and energy industries
No oil, gas, or mining related activities are currently practised in this MPA. The potential for hydrocarbons in the area is low to medium, while the mineral potential in the area is low. Further, no claims or licences for oil and gas exploration or development or seabed mining activities have been issued in areas that partially or fully overlap with this MPA. As a result, the prohibition on these activities in this MPA does not have an impact on these industries and does not impose any costs on them. However, the establishment of this MPA affects any future oil, gas or mining activity that could be permitted through the issuance of licences. In the absence of information on the scope (i.e. quantity of resources, duration of projects, production costs, and timing of project development and production activity) of these potential activities, it is not possible to estimate the cost impacts of this MPA on these future activities.
In May 2018, the Crown corporation Hydro-Québec began a study of potential submarine cable routes as part of an energy transition project in the Magdalen Islands, one of which straddles this MPA. The route that passes through this MPA is not the shortest one and, if a cable must be installed, this MPA could be avoided. In order to protect the seabed habitat, the Regulations do not allow submarine cables to be buried in this MPA. In the absence of information on Hydro-Québec’s preferred option for installing the submarine cable, it is not possible to determine the impact of this MPA on Hydro-Québec.
The costs of administering and managing an MPA include costs associated with scientific research and monitoring; identification and monitoring of ecological and socioeconomic indicators; surveillance, enforcement and regulatory compliance; the development and implementation of the management plan; as well as the evaluation and approval of activity plans. The implementation of the Regulations represents a total incremental cost of $2.73 million in present value over 30 years or $0.22 million per year. The management costs for the area are covered by DFO’s current budget allocation.
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 businesses.
The “One-for-One” Rule applies to this proposal because additional administrative costs will be generated for tourism companies. The Regulations are new and, according to the Government of Canada’s “One-for-One” Rule, they should be offset by the repeal of an existing regulation.
There are currently three tourism companies operating in this MPA. Each company assumes administrative costs to comply with the requirement to prepare and submit activity plans and reports.
The total annualized administrative cost is estimated at $173 for the three tourism companies, or $57 per company. These costs are estimated with the assumption that an activity plan would be submitted every five years, and activity reports would be submitted every year. Under the Red Tape Reduction Regulations, these values are calculated over a 10-year period, with a discount rate of 7% in 2012 dollars. The salary rate was estimated at $29 per hour. The time required to complete each requirement was estimated at four hours for the activity plan and two hours for the activity report.
Small business lens
The small business lens does not apply to these Regulations, as the administrative and compliance costs associated with this MPA are expected to be well below the $1 million per year threshold. Small businesses will not experience a significant increase in costs as a result of the Regulations.
Selection of the area of interest
The process of selecting the area of interest (AOI) dates back to 2009 and included several multi-sectoral, regional and interregional consultations within DFO, and, among four proposed sites, the American Bank area was recommended by all who were consulted. The Banc-des-Américains was officially announced as an AOI in June 2011. In 2012, DFO held two information sessions on the AOI for interested parties.
Establishment of an advisory committee and development of a regulatory draft
In 2013, a consultation booklet containing ecological information and questions about the AOI was sent to 55 industry stakeholders. The intent of the consultation booklet was to obtain stakeholders’ input on the formulation of the conservation objectives and the impacts from human activities on the achievement of this MPA’s conservation objectives. By answering the questions in the booklet, representatives from the fishing, aquaculture, at-sea observation and commercial shipping sectors; the renewable (hydroelectricity) and nonrenewable (oil, gas, ore) resource industries; Indigenous groups in Quebec and New Brunswick; environmental, recreational boating and underwater diving organizations; academic institutions; and regional county municipalities were able to provide their views on how human activities had or could have an impact on the three conservation objectives proposed for the area. Of all these stakeholders, 15 agreed to sit on the AOI advisory committee, which first met in December 2013. Their mandate was to provide advice and recommendations on all aspects leading to the designation of this MPA, including geographic boundaries, conservation objectives, impacts of human activities on the achievement of the conservation objectives, proposed regulatory and non-regulatory measures, and their socioeconomic effects. The comments collected from the consultation booklets and during the various meetings of the advisory committee showed widespread support for the designation of this MPA.
Comments and concerns considered by the advisory committee and through other bilateral meetings are summarized by sector below.
Province of Quebec
This proposed MPA was presented to the Government of Quebec in January 2009 before the Bilateral Group on Marine Protected Areas (BGMPA). The BGMPA is composed of the provincial ministries (ministère de l’Environnement et de la Lutte contre les changements climatiques [ministry of the environment and climate change]; ministère de l’Agriculture, des Pêcheries et de l’Alimentation [ministry of agriculture, fisheries and food]; ministère des Forêts, de la Faune et des Parcs [ministry of forestry, wildlife and parks]; ministère de l’Énergie et des Ressources naturelles [ministry of energy and natural resources]) and federal departments (DFO, Environment and Climate Change Canada, Parks Canada Agency) responsible for the implementation of MPAs. The BGMPA indicated its preference for the selection of the Banc-des-Américains AOI over three other possible sites. The BGMPA meets twice a year, at a minimum, and the Banc-des-Américains MPA is regularly on the agenda.
In June 2015, the Government of Quebec announced its maritime strategy. The Strategy confirms its intention to work with the federal government to create an MPA network that will cover 10% of the province’s marine surface area by 2020. Thus, it emphasized its efforts to collaborate with the federal government on marine conservation. In March 2018, the federal and Quebec governments signed a collaboration agreement on the establishment of protected areas that includes the responsibilities of each party in this regard. The Banc-des-Américains MPA is the first project covered by this collaboration.
Information sessions were held in 2011 and 2012 with the four Indigenous communities of the Lower St. Lawrence and Gaspé, namely the Mi’gmaq of Gespeg, Gesgapegiag and Listuguj, and the Maliseet of Viger. A consultation booklet was also sent to these groups, as well as an invitation to sit on the advisory committee. The three Mi’gmaq communities joined the advisory committee through a representative of the Mi’gmawei Mawiomi Secretariat (MMS — tribal council representing the three nations). The Maliseet of Viger declined the invitation because members do not fish in this area.
During meetings with the Indigenous communities, the main concern raised by the representatives present was ensuring that no oil and gas development would be permitted in this MPA and ensuring that their ability to engage in fishing activities for food, social and ceremonial purposes be preserved.
Between 2013 and 2015, four other consultation meetings were organized with the MMS Consultation and Accommodation Unit and the Mi’gmaq Maliseet Aboriginal Fisheries Management Association (MMAFMA). The MMS is also represented on the advisory committee and has participated in all of its meetings.
The three Indigenous communities continued to be informed of developments regarding this MPA through correspondence up until the Regulations were adopted.
To date, Indigenous communities have demonstrated their support for the regulatory initiative. They particularly support the prohibition of oil and gas development in this MPA and are satisfied that fishing for food, social and ceremonial purposes can continue to be practised throughout this MPA. The Mi’gmaq representatives expressed their desire to be involved in the management of this MPA. DFO encourages Indigenous communities to participate in the implementation of MPA management activities, such as monitoring activities.
The commercial fishing industry is composed of a wide range of groups and associations with diverse interests and opinions. Since May 2009, six meetings have been held, which facilitated discussions with the 10 Gaspé fishing associations. Some of their representatives sat on this MPA establishment advisory committee, and four information and follow-up letters were also sent to the fishing associations involved. In general, the fishing industry supports the designation of this MPA. However, certain associations and some independent fish harvesters have expressed concerns, which are outlined below.
Industry representatives on the advisory committee suggested and unanimously supported the creation of three management zones in this MPA to protect the most vulnerable part (Zone 1) and authorize certain fishing activities in Zone 2a and Zone 2b. DFO has adopted this zoning method in the Regulations.
Although the Association des Capitaines Propriétaires de la Gaspésie (ACPG) did not wish to sit on the advisory committee, some of its members expressed concern about the restriction on mobile gear (i.e. bottom trawl net) in Zone 2a and Zone 2b. They feared they would not be able to resume the cod fishery in this MPA if the moratorium on the groundfish fishery is eventually lifted. Three meetings were held with the ACPG in 2014 and 2015 to discuss this issue. In one of them, they suggested the creation of a fourth area, in which the use of a trawl net would be authorized. DFO did not implement that suggestion, given the significant damage this gear causes to the seabed. footnote 9 Another meeting (held on June 17, 2015) with the members of the association led to the conclusion that they would not oppose the trawling prohibition included in this MPA Regulations. In addition, through a contribution agreement, DFO committed to working with fish harvesters to develop fishing methods that are less damaging to the seabed.
In 2015, a summary of the regulatory intent of this MPA containing the proposed restrictions on fishing activities was sent to all commercial fishing associations in Quebec and New Brunswick that had access to this MPA. These associations have not returned any comments. However, during a meeting of the Gulf of St. Lawrence’s Groundfish Advisory Committee held in February 2016 in Moncton, the Fédération régionale acadienne des pêcheurs professionnels intervened. It indicated that it was concerned about the prohibitions on bottom trawling gear throughout this MPA and on the snow crab fishery in Zone 1. During a follow-up discussion, the regulatory intent was explained to the federation, including the authorization of the crab fishery in Zone 2a and Zone 2b. Following this discussion, the federation has not raised this issue again.
Cruises and sea tours
There are seven marine excursion companies that operate in the area, but only three of them travel to this MPA for marine mammal observation excursions. The opinion of the members of this industry was solicited throughout the consultation process, first in 2012, when they were invited to the first information meeting, and then in 2013, through the consultation booklet. An industry representative had hoped to sit on the advisory committee, but was unable to attend the meetings. More recently, in 2016, stakeholders in this industry were asked about their perception regarding the designation of this MPA. footnote 10 Overall, the comments received were very favourable, and no opposition to this MPA’s creation was expressed. Some concerns were raised about whether the measures prescribed by this MPA Regulations will be adequate to ensure the protection of marine mammals. The business owners have indicated their desire to play a role in the decision-making in relation to the management of their activities. Some would also like to participate in scientific research on marine mammals in the area.
This industry has not expressed opposition to the designation of this MPA. The vast majority of commercial vessels in transit through the Gulf of St. Lawrence do not cross this MPA since the seaway passes north of the area. However, when the regulatory intent was presented to the advisory committee in December 2014, the Shipping Federation of Canada (SFC) raised concerns regarding the prohibition of discharging sewage in this MPA. The Federation estimated that this restriction could lead to a shortage of cargo for ship owners, who would be required to set aside storage space for these contaminated waters. A meeting was held on May 5, 2015, with the SFC, the St. Lawrence Economic Development Council and Transport Canada to discuss their concern. Telephone and email exchanges also took place in 2015 and 2016. Discussions with Transport Canada determined that the Regulations would have a negligible economic impact on the maritime industry in general because the majority of the vessels subject to the requirement not to discharge sewage or release grey water already possess the equipment necessary to treat or store these waters.
Natural resources and energy industries
Oil, gas and mining companies (Junex, Petrolia, Vantex Resources) that have rights in the vicinity of (but not overlapping with) this MPA, as well as the Quebec Oil and Gas Association, Ultramar and Irving, were invited to an information meeting on this MPA in March 2012. Only Ultramar sent a representative. All of these companies received the minutes of the meeting. None provided comments. In 2013, the consultation booklet was sent to them. They did not respond and they did not wish to sit on the advisory committee.
Hydro-Québec has been a member of the advisory committee since its creation in 2013. During meetings in 2013 and 2014, the Hydro-Québec representative expressed the desire to authorize running a submarine cable in this MPA, should the Magdalen Islands require an electricity supply. However, no projects were planned in the proposed MPA during the consultation process prior to prepublication of the Regulations in the Canada Gazette, Part I, in June 2018. Following prepublication of the Regulations, the Crown corporation informed the Department that a project was initiated in May 2018 involving the study of a submarine cable route through part of this MPA. Submarine cables can have a significant, long-term impact that compromises the achievement of MPA conservation objectives, namely the one aiming for the protection of the seabed. For this reason, this activity is not permitted in this MPA.
Environmental non-governmental organizations
All organizations consulted (Canadian Parks and Wilderness Society, Marine Mammal Observation Network, Nature Québec, Nature Conservancy of Canada, Amphibia-Nature, Chaleur Bay ZIP Committee) expressed their support for this MPA. They also issued public notices on the positive contribution that this MPA would have on achieving national and international marine conservation targets. Throughout the consultation process, the sole concern of these organizations was that this MPA is not large enough. They would have liked it to be expanded and connected with Forillon National Park (under the authority of Parks Canada) and the Parc national de l’Île-Bonaventure-et-du-Rocher-Percé (under the authority of the Quebec provincial ministry of Environnement et de la Lutte contre les changements climatiques). All of these organizations endorse the prohibition of oil, gas and mining exploration and development, and the strictest protection accorded in Zone 1 in order to maximize the applicable conservation in this MPA, in accordance with applicable international guidance on MPAs.
The Procès-verbal Applying the March 27, 1972 Agreement between Canada and France on their Mutual Fishing Relations (PV) is a bilateral treaty between Canada and France that, among other things, provides France with a right of access to certain Canadian quotas and Canadian fishery waters for French fishing vessels from Saint-Pierre and Miquelon to fish for particular fish stocks, notably in the waters of this MPA. However, French officials have informed DFO, and the data confirms it, that no French fishing vessel has engaged in fishing activities in this area in recent years. Consequently, it is not foreseen that the establishment of an MPA in the American Bank area would result in negative impacts on French access to PV fisheries in Canadian fishing waters. On March 29, 2017, as part of a bilateral meeting between the Canadian and French governments, Canada presented an overview of this MPA to the French government, which expressed its support for this project.
Summary of comments received during prepublication in the Canada Gazette, Part I
The proposed Regulations were prepublished in the Canada Gazette, Part I, on June 30, 2018, for a 30-day public consultation period. Stakeholders, including federal agencies, the provincial government, First Nations, industry and non-governmental organizations, were notified of the publication by email.
A total of 11 submissions were received and considered. Stakeholders who submitted comments included a federal government department, a provincial Crown corporation, one stakeholder from the fishing industry, environmental non-governmental organizations (ENGOs), a non-profit applied research centre and a stakeholder from the marine mammal observation industry.
None of the comments resulted in any changes to the proposed Regulations as presented in the Canada Gazette, Part I. A summary of the comments received during the above-mentioned consultations and how they were taken into account is presented below.
1. Request to review the boundaries of this MPA
Six ENGOs questioned and suggested reviewing the boundaries of this MPA or its management zones. Five organizations requested that the size of Zone 1 of this MPA be increased or that a buffer zone be added around Zone 1. The reasons given are (1) to ensure that strict protection reaches 30% of this MPA’s total area; (2) to facilitate monitoring of the effectiveness of the measures implemented in Zone 1 (restricted harvesting) compared to Zone 2; (3) to minimize bycatch of fish or seabirds; and (4) to protect Zone 1 from accidental encroachment by human activities that would cause damage to species or habitat. One organization also requested that this MPA’s boundaries follow the contours of important sensitive zones in the area and that they be linked to create a connected conservation network that encompasses important habitats, such as coastal zones and existing parks, in the vicinity of the zone. One organization also suggested regulating activities outside this MPA if they could affect conservation objectives.
The primary objective of this MPA is to protect the American Bank ecosystem, a unique marine environment. Protecting adjacent plains, which act as buffer zones around the bank, also protects a wider range of habitats and further protects the bank ecosystem. Ecological, ecosystem and logistical considerations were taken into account in defining the boundaries of this MPA and management areas.
The proposed rectangular shape of this MPA is intended to facilitate the identification of boundaries by users of the environment and to facilitate the application of management measures and the Regulations. This quadrilateral integrates the entire (100%) structure of the American Bank, its ridges and escarpments. It also includes part of the adjacent plains on either side of this geological formation and part of the intertidal zone to the west. At a cross-sectoral workshop in 2010 at DFO, expansions to the north or east and south were considered. However, it was demonstrated that such expansions would not provide significant gains in the diversity of habitats or species represented. footnote 11 Although the plains adjacent to the American Bank are diverse habitats inhabited by several species, this habitat type is less sensitive to disturbances. footnote 12 Therefore, there is no rationale from a habitat vulnerability standpoint for expanding Zone 1 or adding a buffer zone to include more areas covering adjacent plains.
The management measures introduced in this MPA strictly target the achievement of conservation objectives. The effectiveness of these measures in achieving the objectives is to be verified through a scientific monitoring plan. There are no plans to compare the effectiveness of management areas with one another, but rather their respective effectiveness in achieving conservation objectives. Similarly, adding regulatory measures to minimize seabird bycatch would not be warranted because there are no seabird conservation and protection objectives. Also, only fisheries that meet conservation objectives have been allowed in this MPA. For authorized fisheries, commercial fisheries management plans and licences and their conditions are the most appropriate tools for managing fish bycatch, for example, through initiatives such as the Policy on Managing Bycatch under the Fisheries Act.
With respect to the regulation of activities outside this MPA, it should be noted that MPA regulations made under the Oceans Act only regulate activities within the designated area. However, following designation, a management plan will be developed in conjunction with the relevant stakeholders. This management plan will be the most appropriate tool for addressing emerging issues in this MPA or adjacent areas. The management plan will, for example, establish voluntary non-regulatory measures to mitigate the impacts of some currently unregulated human activities. In addition, DFO is working with its partners to establish a network of marine protected areas, which will include the Banc-des-Américains MPA. The Canada-Quebec Collaborative Agreement to establish a network of marine protected areas in Quebec provides that other marine protected area projects could be selected, planned and implemented jointly. Network issues that need to be addressed on a broader scale, such as biodiversity and connectivity within the entire Estuary and Gulf of St. Lawrence bioregion, will be considered. footnote 13
2. Request for additional restrictions to protect pelagic habitats
Four environmental non-governmental organizations (ENGOs) suggested that additional restrictions be added to shipping activities to ensure better water quality in the marine environment. The purpose of their request is (1) to prohibit marine transportation of contaminants and hazardous chemicals to reduce the risk of accidental spills; and (2) to add wastewater discharge restrictions.
Currently, marine transportation in this MPA is so limited that the Department is of the view that this activity does not compromise the achievement of conservation objectives, even though tankers and chemical carriers occasionally transit through it. It is important to note that no anchoring is permitted in Zone 1. The vessels are therefore only in transit. In addition, the discharge of wastewater and greywater (as defined in the Vessel Pollution and Dangerous Chemicals Regulations) by vessels of 400 gross tonnage or more, or authorized to carry 15 or more persons, is prohibited in this MPA. Some small craft do not have a wastewater retention or treatment system, but due to the small volume, they are not considered an issue.
Issues that are likely to change, for example, an increase in maritime traffic to the Port of Gaspé, or emerging issues, can be managed through the adaptive management plan to be developed. An adaptive management approach involving relevant stakeholders will allow for the completion of outreach activities or the introduction of voluntary measures to address relevant conservation issues and make amendments to this MPA Regulations, if deemed necessary.
3. Request for additional restrictions to protect species at risk
Seven stakeholders are concerned about adequate protection of species at risk. Many individuals raised issues such as protecting whales from the risks caused by navigation (collision, noise, disturbance), scientific and tourism activities (disturbance, noise) and fishing (entanglement). With respect to entanglement, some stakeholders pointed out that there are a large number of crab traps in the area, the crab-fishing season has recently overlapped with the period during which right whales use the area, and the risk that the ban on fishing in this MPA could lead to a greater density of gear around the perimeter of this MPA, which would increase the risk of entanglement. Two of the stakeholders also want specific measures to be established for all species at risk in the area, including wolffish.
The additional restrictions requested are (1) to increase the area of Zone 1 within which fishing is prohibited. This would reduce the risk of entanglement of whales and accidental catch of wolffish by longline. It would also reduce the risk for all other species that may or may not be at risk; (2) to add a speed limit for boats or other measures deemed effective to minimize the risk of collision with cetaceans; (3) to add strict rules to reduce noise because of its harmful effects on marine mammals; and (4) to add a specific objective for species at risk, including those designated by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), by monitoring and reporting on the achievement of this objective.
Whales at risk
Various regulatory or non-regulatory tools already provide protection for whales. In particular, the recent amendment to the Marine Mammal Regulations imposes new minimum approach distance limits for vessels (including a minimum approach distance of 100 m for whales, dolphins and porpoises, and of 200 m if the individual is at rest or with its calf), which helps limit disturbances to cetaceans in the area. In the specific case of the North Atlantic Right Whale, greater numbers of right whales have only recently been observed in the Gulf of St. Lawrence and scientists footnote 14 believe it is too early to say whether this is a long-term trend. Patrols monitoring the right whale, dynamic temporal and spatial measures introduced by DFO under the Fisheries Act (temporary fishing area closure protocol) and the static protected area in which speed restrictions are imposed on vessels, issued by Transport Canada, footnote 15 are the most appropriate tools to properly address the current situation in order to reduce the risk of entanglement and whale collisions. The Department will continue to assess the right whale situation in this MPA and permanent measures may be taken if necessary to avoid the risks of entanglement.
These MPA Regulations were constructed to address gaps in existing tools to promote the conservation and recovery of marine mammals, based on documented risks. These measures include protection of whale prey by prohibiting fishing for forage species (capelin, herring, mackerel, sand lance, krill, copepods) in order to maintain this MPA’s feeding ground status. In addition, the prohibition of gillnet fishing within MPA boundaries is intended to reduce whale exposure to entanglement risks.
Finally, noise regulation is an emerging marine mammal conservation issue. DFO intends to continue to document the effects of noise to see what actions could be taken. This issue can be addressed by adaptive management of this MPA as the issue is better understood, which may include proposing voluntary measures or even amending the Regulations.
According to scientific surveys, the Atlantic Wolffish is the only species whose presence has been confirmed in the Banc-des-Américains MPA. The Spotted Wolffish is probably present, and the Northern Wolffish may or may not be present. It is important to note that there are no directed fisheries in Canada for these three species. Under the recovery strategy for the Northern Wolffish and Spotted Wolffish, any person who accidentally catches these species must release them in a manner that minimizes harm. Also, commercial fishermen must report these bycatches to DFO. Because the fishing bans imposed under the Species at Risk Act do not apply to Atlantic Wolffish, due to its status as a species of special concern, it is recommended that fishermen release Atlantic Wolffish bycatch and report it to DFO.
To reduce the risk of wolffish bycatch, longline fishing is prohibited in the most sensitive area and where the presence of Atlantic Wolffish has been confirmed (Zone 1). Also, trawling is prohibited within the boundaries of this MPA (Zones 1, 2a and 2b). In addition to these protective measures, consideration was given to adding a mandatory Atlantic Wolffish release provision to this MPA Regulations. However, since fish landings extend beyond the Banc-des-Américains MPA, it is not possible to determine the precise origin of where Atlantic Wolffish are caught. This measure was therefore considered inviable from a compliance and enforcement standpoint.
In this context, current regulations and adaptive management, as required, are considered sufficient to achieve the wolffish conservation objective.
Other species at risk
The purpose of the Banc-des-Américains MPA is to promote the productivity and diversity of fisheries resources and the recovery of species at risk. Overall, this MPA therefore aims to promote the health of all species at risk populations. However, a specific objective has only been established for two groups of species at risk, whales and wolffish, because these are two groups of species that are confirmed to frequent this MPA. Also, because we do not know what species COSEWIC will list in the future, appropriate measures cannot be defined. The role of the Banc-des-Américains MPA is therefore to ensure comprehensive and proactive long-term protection of the ecosystem of this ecologically and biologically significant region, as well as appropriate management of pressures caused by activities that may have negative impacts on the ecological components of the site. The Banc-des-Américains MPA is a management tool that will complement the Species at Risk Act by contributing to the implementation of the recovery strategy or management plan measures specific to each listed species targeted by this MPA’s conservation objectives.
4. Request to add prohibitions to the Regulations
Five ENGOs suggested (1) including a prohibition on oil and gas exploration and development, and a prohibition on all activities to produce other energy sources (wind turbines or tidal power) in this MPA; (2) prohibiting seismic surveys or any other method that could disturb marine species; and (3) adding a specific coastal strip (of width to be determined) where such activities would also be prohibited. These organizations also mentioned that they would like this prohibition to be clearly specified in the Regulations.
The Regulations contain a general prohibition that states that any activity that disrupts, damages, destroys or removes from this MPA any living marine organism or any part of its habitat, or that is likely to do so, is prohibited unless it is part of an exception listed in the Regulations. Oil and gas exploration and development activities are not part of an exception provided for in the Regulations, and therefore they are prohibited as they are covered by the general prohibition.
Finally, this MPA Regulations are under the Oceans Act, which does not regulate activities on land. Regulations made under the Oceans Act may only provide restrictions that apply within this MPA.
5. Issues related to a new submarine cable project
During the prepublication period in Part I of the Canada Gazette, the Crown Corporation, Hydro-Québec, indicated that it launched the Transition énergétique des Îles-de-la-Madeleine (Magdalen Islands Energy Transition Project) on May 25, 2018. This project aims to connect the Magdalen Islands to the electricity grid using a submarine cable coming from the Gaspé Peninsula. As part of this project, one of the possible routes under consideration would overlap the southwestern end of Zone 2b of this MPA. As a result of the recent evolution of this project, Hydro-Québec wishes to qualify its position in relation to that transmitted during the public consultations of 2013–2014, where it did not formally oppose this MPA limits or the regulatory intention to prohibit the passage of submarine cables.
The company considers that the residual impact of the installation of an underwater power line (two-75 mm cables that can be buried at a depth of 1 to 2 metres, depending on the nature of the substrate) in Zone 2b is negligible and temporary. Due to this, it has requested a temporary suspension of this MPA designation process to identify a solution that would conciliate the assessment of submarine cable line installation routes with conservation objectives. The conciliation solutions proposed by Hydro-Québec are (1) to provide a mechanism, within the Regulations, allowing it to preserve the possibility of crossing such a line in the event that the environmental analysis of the project is favourable to its implementation; or (2) to modify the boundaries of the territory covered by the Regulations to exclude the area of the passage of the submarine cable.
In general, various ecological impacts are associated with submarine cables. These environmental impacts can occur at any time during the life cycle of the cable (installation, operation, maintenance, dismantling or abandonment) and during accidents. Work required to install, remove, and maintain cables can cause noise, seabed and marine life disturbance, including sediment redesign or resuspension (turbidity) of nutrients and contaminants, as well as a displacement or destruction of fauna and flora. footnote 16, footnote 17 The death of ecosystem-structuring species (e.g. corals and sponges) can result in habitat loss for many organisms and therefore a loss of biodiversity at the site. footnote 18 In addition, the transport of electrical energy leads to an increase in temperature near the cables, which can lead to a change in the physico-chemical conditions of the sediments and an increase in bacterial activity. Electromagnetic fields are also emitted, which can disrupt orientation, navigation, migration, feeding, and ability of organisms to recognize their congeners (especially sharks and rays). Thus, in general, submarine cables can have a significant and long-term impact that, according to the Department, compromises the achievement of this MPA conservation objectives, including the protection of the seabed. For this reason, this activity is not permitted in this MPA.
The option of revising the boundaries of this MPA was not chosen because, although the primary objective of this MPA is to protect the ecosystem associated with the unique marine formation of the American Bank, the protection of adjacent plains protects a greater diversity of habitats and enhances the protection of the bank ecosystem, while also acting as buffer zones around the bank. The boundaries of this MPA and the management areas were chosen according to the best scientific advice in order to achieve the conservation objectives. As a result, the Department maintains the boundaries of this MPA for ecological and ecosystem considerations.
6. Issues related to fishing restrictions
A fishing industry stakeholder expressed dissatisfaction with the multiple fishing closures in the Gulf of St. Lawrence without specifically opposing the measures put in place for this MPA. The stakeholder considers that the many closures cause more shifting to other areas, conflicts over access to fishing areas between shrimp and turbot boats (Greenland halibut fishermen), and an increase in fishing efforts to allow quotas to be reached.
Between 2008 and 2015, very little fishing activity took place in Zone 1 of this MPA (approximately four trawl fishing activities), footnote 19 where all fishing activities, except indigenous fishing for food, social, and ceremonial purposes, are now prohibited. In Zones 2a and 2b, only 51 trawl fishing activities took place between 2008 and 2015, accounting for 4.4% of fishing activities in Zones 2a and 2b. Gillnet fishing has been sporadic in this MPA. It accounted for only 0.5% of fishing activities between 2008 and 2015. Fishing effort shifts resulting from fishing bans in the Banc-des-Américains MPA are therefore considered minimal.
The Government of Canada is committed to establishing additional marine protected areas and conservation measures as part of a network of marine protected areas to ensure that conservation measures are taken as part of a comprehensive and balanced approach. This approach considers economic activities and the participation of all interested parties and will attempt to minimize economic costs as much as possible. In addition, increasing the productivity of a protected area can lead to a higher abundance of commercially valuable species outside the boundaries of the area through spillover effects, which would benefit the fishing industry in the future.
7. Issues related to marine mammal observations
A stakeholder from the marine mammal observation community requested clarification on the proposed Regulations regarding the possibility of operating permits being required for all marine tourism operators operating in this MPA.
This same person mentioned that an issue that could affect the achievement of our conservation objective was the disturbance of whales due to the presence of a considerable number of boats at certain times. He stated that the marine tourism industry wants to raise awareness and ensure that appropriate measures are put in place to protect whales. He also raised an issue regarding the practice of scientific activities such as biopsies and photo-identification, which he considers stressful for whales.
There will be no operating permit requirement for all tourism businesses operating in the Banc-des-Américains MPA area. However, all marine tourism operators will be required to prepare and submit an activity plan for approval by the Minister in order to be able to operate in this MPA. Operators who are able to operate in this MPA will also be required to prepare and submit an activity report after their activity.
The enactment of the Marine Mammal Regulations imposes new minimum approach limits for vehicles (a minimum approach distance of 100 m at all times for whales, dolphins and porpoises and 200 m if the individual is at rest or with its calf), which will help limit the disturbance of whales present in the area. Considering the general adherence of industry players to respectful practices, additional regulation does not seem necessary. However, voluntary measures may be established in the management plan that will be developed with local stakeholders. These measures could be, for example, similar to those found in the Saguenay–St. Lawrence Marine Park (SSLMP) for marine mammal observation activities (e.g. speed of 10 knots in the observation area, maximum time of one hour per boat, limit of the number of boats in an area).
Access to an MPA creates a unique opportunity for controlled scientific research in Canada, both for the federal government and for university researchers. Scientific research or monitoring activities will also be subject to the submission and approval of an activity plan to be approved by the Minister. These activities will also continue to be subjected to all other applicable legislative and regulatory requirements, such as obtaining permits or authorizations specific to the activity in question. The requirement to have an activity plan will allow DFO to consider the cumulative effects of scientific activities and to refuse certain activities if the sum of the disturbances jeopardizes the achievement of conservation objectives.
8. Issues related to management and engagement
One ENGO indicated that ongoing stakeholder engagement would help to develop a network of marine protected areas and find solutions that further reduce the impacts of activities that would be permitted there. Another organization indicated that regulations should be regularly reviewed to consider species at risk.
Regarding the designation of an MPA, key steps will follow, including the development and implementation of a management plan including a monitoring program. The monitoring program consists of a scientific monitoring plan for several indicators that identify trends in the achievement of conservation objectives and the effectiveness of management measures.
The management plan is developed in close collaboration with local stakeholders and applies adaptive management, one of the guiding principles of the national Marine Protected Areas Program. It is an iterative decision-making process by which management strategies are gradually adjusted as new and relevant information becomes available. This means that new knowledge (scientific, industry-related, traditional indigenous, etc.) and the results of monitoring and accountability programs may lead to a change in management measures to ensure that they are still appropriate for achieving conservation objectives. The application of adaptive management can result in, for example,
- a revision of this MPA management plan with the addition of recommended voluntary measures;
- an adjustment to the scientific monitoring plan to better measure changes affecting this MPA; and
- as a last resort, an amendment to this MPA Regulations when the need has been demonstrated.
This MPA will be subject to a periodic management cycle during which any new information will be reviewed and the ability of regulatory measures to meet conservation objectives will be reassessed. Adaptive management is therefore the most appropriate way to manage a dynamic ecosystem and emerging issues. Adaptive management highlights the importance of monitoring and of using the best information available to guide the management of this MPA.
International commitments and agreements
The designation of this MPA contributes to Canada’s efforts to implement measures relating to several international agreements, the most important being the Convention on Biological Diversity. In 2010, the “Strategic Plan for Biodiversity 2011–2020, including Aichi Biodiversity Targets” resulted from this Convention. Target 11 stipulates that: “By 2020, at least 17 percent of terrestrial and inland water areas and 10 percent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well-connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscape and seascape.” The implementation of this MPA contributes to the achievement of this international objective.
Various international declarations concerning the establishment of MPAs and MPA networks were also made, including at the World Summit on Sustainable Development (2002), the G8 Action Plan on the Marine Environment and Maritime Safety (2003), the Durban Action Plan developed at the World Parks Congress (2003), and at the IUCN World Conservation Congress (2008). In addition, the Commission for Environmental Cooperation established under the North American Agreement on Environmental Cooperation (of which Canada is a member) is developing a network of MPAs in North America. The Banc-des-Américains MPA is contributing to this initiative as it is part of the Canadian MPA network, namely in the bioregional MPA network in the Estuary and Gulf of St. Lawrence.
The Government of Canada is committed to protecting 10% of its marine and coastal areas by 2020. On June 8, 2016, the Minister of Fisheries and Oceans announced the Government of Canada’s commitment to implement a plan to achieve these marine conservation objectives, both nationally and internationally. The designation of the Banc-des-Américains MPA contributes to this objective and increases Canada’s total ocean protection area by 0.02%, or 1 000 km2.
The incremental costs associated with this MPA are estimated at approximately $3.84 million over a period of 30 years or an average of $310,000 per year for commercial communal fisheries, commercial fisheries, the tourism industry, and the Government of Canada. Incremental costs to the fishing industry will be mitigated if fishers move their fishing efforts to areas outside the area where fishing is prohibited.
The administrative costs associated with the requirements to prepare and submit a plan and activity report for tourism activities are estimated at $3,150, spread out over 30 years. Although costs are anticipated for the preparation and submission of the activity plans and reports, the information included in activity plans and reports will be used to manage these activities to achieve the conservation objectives.
Designation of the American Bank as an MPA provides a proactive and comprehensive protection for this ecologically and biologically important area. The establishment of this MPA protects the ecosystem by prohibiting certain current, potential, and future activities that may prevent the achievement of the conservation objectives defined for this MPA.
With this protection, the impact of human activities on fragile and important habitats will be reduced, and the conservation and protection of unique and productive ecosystems will help to preserve their integrity.
The purpose and objectives that informed the development of the Regulations were validated through a multistage stakeholder engagement process. The Government of Quebec, Indigenous communities, and stakeholders generally supported the proposal for the designation of the Banc-des-Américains MPA. The Banc-des-Américains MPA is beneficial for Canadians because of low costs and the potential for significant long-term ecological benefits.
Implementation, enforcement and service standards
The Regulations come into force at the time of registration. As the federal authority responsible for the designation and management of this MPA, DFO will assume responsibility for ensuring compliance and enforcement of the Regulations. These activities will be carried out through the Department’s official mandate and enforcement responsibilities under the Oceans Act, the Fisheries Act, the Coastal Fisheries Protection Act and other legislation related to fisheries conservation and protection, and maritime security. Enforcement officers with enforcement powers designated by the Department pursuant to section 39 of the Oceans Act will enforce the Regulations in this MPA. Every person who contravenes the Regulations commits an offence and can be subject to the punishments contemplated under section 37 of the Oceans Act.
To complement the overall direction provided by the Regulations, an MPA management plan will be developed to implement a comprehensive set of conservation and management strategies and measures for this MPA. The management plan will clearly define the management objectives and priorities of this MPA and address topics such as ecological monitoring, enforcement, compliance and stewardship, education, and public awareness.
The information requirements and timelines for the submission and review process of activity plans will be presented in this MPA’s guidance documents and management plan. The management plan for this MPA would also provide guidelines for the management of this MPA.
Compliance and enforcement activities conducted by law enforcement officers would include vessel and air patrols to ensure compliance with fishing licence conditions and restrictions contained in the Regulations. Fishing activities within the Banc-des-Américains MPA could also be monitored through other mechanisms, including the At-Sea Observer Program, logbooks, and the Vessel Monitoring System. Using these data sources, automated reports on fishing activities in this MPA will be generated daily as part of the existing compliance monitoring program for MPAs in the Maritime region.
Currently, under section 37 of the Oceans Act, any contravention of the Regulations will be punishable by a maximum fine of $100,000 for a summary conviction offence, and a maximum fine of $500,000 for an indictable offence.
Violation of permit and licence conditions, such as fishing licences, applicable to activities in this MPA, may also result in charges under other applicable Canadian legislation, such as the Fisheries Act, the Coastal Fisheries Protection Act, the Species at Risk Act or other applicable laws or regulations.
Regional Ecosystems Management Directorate
Fisheries and Oceans Canada
850 Route de la Mer, P.O. Box 1000
National Marine Conservation Program, Operations
Fisheries and Oceans Canada
200 Kent Street