Critical Habitat of the Lilliput (Toxolasma parvum) Order: SOR/2022-215

Canada Gazette, Part II, Volume 156, Number 23

Registration
SOR/2022-215 October 20, 2022

SPECIES AT RISK ACT

Whereas the Lilliput (Toxolasma parvum) is a wildlife species that is listed as an endangered species in Part 2 of Schedule 1 to the Species at Risk Act footnote a;

Whereas the recovery strategy that identified the critical habitat of that species has been included in the Species at Risk Public Registry;

And whereas no portion of the critical habitat of that species that is specified in the annexed Order is in a place referred to in subsection 58(2)footnote b of that Act;

Therefore, the Minister of Fisheries and Oceans makes the annexed Critical Habitat of the Lilliput (Toxolasma parvum) Order under subsections 58(4) and (5) of the Species at Risk Act footnote a.

Ottawa, October 17, 2022

Joyce Murray
Minister of Fisheries and Oceans

Critical Habitat of the Lilliput (Toxolasma parvum) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Lilliput (Toxolasma parvum), which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry.

Coming into force

2 This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

Lilliput (Toxolasma parvum) is a small freshwater mussel present in Canada in southern Ontario. The species has a fairly restricted range in Canada, and it appears its Canadian range has diminished, as it is no longer encountered in the Detroit or North Sydenham rivers.

In August 2019, Lilliput was listed as an endangered speciesfootnote 1 under the Species at Risk Act footnote a (SARA). The critical habitatfootnote 2 of the Lilliput was identified in the Recovery Strategy and Action Plan for Lilliput (Toxolasma parvum) in Canada (PDF) (the Recovery Strategy), which was posted on the Species at Risk Public Registry (the Public Registry) on April 21, 2022.

As competent minister under SARA, the Minister of Fisheries and Oceans (the Minister) is required to ensure that the critical habitat of the endangered Lilliput is legally protected by (a) provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11; or (b) by the application of subsection 58(1) of SARA.

Background

The Government of Canada is committed to conserving biodiversity both nationally and internationally. Canada, with support from provincial and territorial governments, signed and ratified the Convention on Biological Diversity in 1992. As a party to this Convention, Canada developed the Canadian Biodiversity Strategy and federal legislation to protect species at risk. SARA received royal assent in 2002. Its purpose is to

Habitat protection under SARA

Once a wildlife species has been listed as endangered, threatened, or extirpated in Schedule 1 of SARA, a recovery strategy, followed by one or more action plans, must be prepared by the competent minister(s) and posted on the Public Registry. Based on the best available information and to the extent possible, the recovery strategy or action plan must include an identification of the species’ critical habitat (i.e. the habitat necessary for a listed wildlife species’ recovery or survival).

Under SARA, critical habitat must be legally protected within 180 days after the final recovery strategy or action plan identifying that critical habitat is posted on the Public Registry. Critical habitat that is not located in a place referred to in subsection 58(2) of SARAfootnote 3 must be protected either by the application of the prohibition in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, or by provisions in, or measures under, SARA or any other Act of Parliament (this includes agreements under section 11 of SARA).

Lilliput

Lilliput is a small freshwater mussel species with a fairly restricted range in Canada. Its current range appears limited to four tributaries of Lake St. Clair (East Sydenham, Thames [Baptiste Creek], Ruscom and Belle rivers), one system in the Lake Erie drainage (Grand River), and three systems from the Lake Ontario drainage (Welland River/Oswego Creek, Hamilton Harbour and surroundings, and Jordan Harbour). A contraction of the species’ distribution is thought to have occurred, as surveys have failed to detect Lilliput in extirpated (that is, Detroit River) and historical (possibly extirpated) locations (that is North Sydenham River, Thames River [McGregor Creek]). Lilliput can be found in a variety of habitats, from small to large rivers to wetlands and the shallows of lakes, ponds and reservoirs. It prefers to burrow in soft substrates (river and lake bottoms) made of mud, sand, silt or fine gravel.

The main threats facing the species include

In May 2013, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the Lilliput as endangered. In May 2019, Lilliput was listed as an endangered species on the List of Wildlife Species at Risk (Schedule 1) of SARA.

With regard to an endangered aquatic species listed under Schedule 1 of SARA, the prohibitions in section 32 and section 33 of SARA that automatically apply upon listing are the following:

In April 2022, the Recovery Strategy was posted on the Public Registry. The Recovery Strategy identifies the critical habitat necessary to support the recovery of the Lilliput.

Objective

The objective of this regulatory initiative is to trigger, through the making of a critical habitat order, the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Lilliput that is identified in the Recovery Strategy for the species.

Description

Critical habitat has been identified in the following waterbodies: the Belle/Ruscom rivers, East Sydenham River, Grand River, Hamilton Harbour (Cootes Paradise, Grindstone Creek estuary), Jordan Harbour, and Welland River/Oswego Creek. Maps of the areas that contain critical habitat can be found in the Recovery Strategy. Only those areas within the identified geographical boundaries possessing features and attributes necessary to support defined life stage functions comprise the critical habitat.

The Critical Habitat of the Lilliput (Toxolasma parvum) Order (the Order) triggers the application of the prohibition set out in subsection 58(1) of SARA against the destruction of any part of the Lilliput critical habitat. It results in the legal protection of the critical habitat identified in the Recovery Strategy.

If new information becomes available to support changing the critical habitat of the Lilliput, the Recovery Strategy will be updated as appropriate (taking into account feedback from public consultation). The Order will apply to the revised critical habitat once included in an amended recovery strategy posted on the Public Registry.

The Order affords the Minister an additional tool to ensure that the critical habitat of the Lilliput is legally protected. It complements the protections already afforded to the species’ habitat under existing legislation, in particular subsection 35(1) of the Fisheries Act. This subsection prohibits the carrying on of any work, undertaking, or activity that results in the harmful alteration, disruption, or destruction of fish habitat.

Regulatory development

Consultation

Consultation on the critical habitat for Lilliput, and the intention to protect the species’ critical habitat through a critical habitat order, occurred during the development of the Recovery Strategy. Fisheries and Oceans Canada (the DFO), in cooperation with the Province of Ontario, assembled a group of experts from various levels of government, academia, consultants, and non-governmental organizations to develop the Recovery Strategy. This team was composed of representatives from federal (the DFO and Environment and Climate Change Canada) and provincial departments (Ontario Ministry of Natural Resources and Forestry) responsible for fisheries and natural resource management, as well as members representing the Grand River Conservation Authority, St. Clair Region Conservation Authority, Ausable Bayfield Conservation Authority, Bishop Hills Natural History Centre, and Lower Thames Valley Conservation Authority. The team also included representation from the University of Guelph, Texas State University, and Central Michigan University.

The proposed Recovery Strategy and Action Plan for Lilliput (Toxolasma parvum) in Canada (the proposed Recovery Strategy) was posted on the Public Registry for public comment between September 24, 2020, and November 23, 2020. Emails were sent on September 14, 2020, to 100 stakeholder groups to advise them of the public comment period. This included conservation authorities, municipalities, environmental non-governmental organizations (ENGOs), fishing organizations, and agricultural organizations. Indigenous groups were also notified of the public comment period (see section below for more information on Indigenous consultations).

No comments were received from non-Indigenous groups or the general public on the proposed Recovery Strategy for Lilliput.

Modern treaty obligations and Indigenous engagement and consultation

The DFO consulted 12 Indigenous groups identified as those potentially having reserve lands or traditional lands near the distribution of the Lilliput. Lilliput critical habitat has not been identified on any First Nation reserve lands.

Indigenous groups were first notified of the opportunity to comment on the proposed Recovery Strategy on August 21, 2020, via a letter that was sent by email. They were subsequently provided notice on September 25, 2020, that the proposed Recovery Strategy was posted on the Public Registry. A reminder email was circulated on November 18, 2020, in advance of the closing of the comment period.

A response from Chippewas of the Thames was received during the public comment period with questions relating to critical habitat in general. The questions were primarily procedural in nature (e.g. critical habitat order enforcement, monitoring, activities allowed). These questions were addressed via a virtual meeting with the DFO on November 12, 2020. No additional follow-up was required.

Under SARA subsection 58(7), consultation with the Minister of Indigenous Services and a band under the Indian Act was not required, as there are no reserves or any other lands that are set apart for the use and benefit of such band that will be affected by the Order.

Under SARA subsection 58(8), consultation with a wildlife management board was not required, as there are no areas in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species that will be affected by the Order.

An assessment of modern treaty implications was completed. The assessment concluded that implementation of this Order will likely not have an impact on the rights, interests, and/or self-government provisions of treaty partners. There is no modern treaty that covers the species’ range.

Instrument choice

Under SARA, all of a species’ critical habitat must be legally protected either by the application of the prohibition against the destruction of any part of the critical habitat in subsection 58(1), or by provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11. Courts have concluded that other federal laws must provide an equal level of legal protection for critical habitat as would be engaged through subsections 58(1) and (4), failing which the Minister must make a critical habitat order, triggering the application of subsection 58(1) of SARA. They have also concluded that subsection 35(1) of the Fisheries Act does not legally protect critical habitat, because subsection 35(2) grants the Minister complete discretion to authorize the destruction of fish habitat. As a result, in most cases, the making of an order by the Minister may be necessary to legally protect critical habitat of an aquatic species at risk.

Regulatory analysis

Benefits and costs

Considering the existing federal regulatory mechanisms in place, the incremental costs and benefits resulting from the making of this Order are anticipated to be negligible. No incremental costs to Canadian businesses and Canadians are anticipated. Should a project proponent require a permit to affect the critical habitat of the Lilliput, the permitting process is the same regardless of whether a critical habitat order is in place (refer to the “Implementation” section). The federal government may incur some minimal costs as it may undertake some additional activities associated with compliance promotion and enforcement. These costs would be absorbed through existing funding allocations.

The compliance promotion and enforcement activities to be undertaken by the DFO to fulfill requirements under SARA, in combination with the continuing outreach activities undertaken as part of the critical habitat identification process, may contribute towards behavioural changes on the part of Canadian businesses and Canadians (including Indigenous groups). These behavioural changes could also result in incremental benefits to the species, its habitat or the ecosystem. However, these incremental benefits cannot be assessed qualitatively or quantitatively at this time due to the absence of information on the nature and scope of the behavioural changes resulting from these outreach activities.

Small business lens

The small business lens was applied, and it was determined that the Order does not impose any incremental regulatory costs on small businesses.

One-for-one rule

The one-for-one rule does not apply to the Order, as no additional administrative burden is anticipated to be imposed on businesses. The Order will be implemented under existing processes.

Regulatory cooperation and alignment

SARA is a key tool for the conservation and protection of Canada’s biological diversity, and fulfills a commitment made under the Convention on Biological Diversity. As such, the Order will respect this international agreement in furthering the protection of significant habitats in Canada to conserve wildlife species at risk.

Lilliput is a species also protected under Ontario’s Endangered Species Act, 2007. Other provincial legislation that provide habitat protection include, but may not be limited to, considerations under section 3 of Ontario’s Planning Act, section 2.1.7 of the Provincial Policy Statement (2020) under the Planning Act, as well as Ontario’s Lakes and Rivers Improvement Act.

There are no international trade agreements that will be impacted as a result of this Order.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan to identify the potential for important environmental effects was conducted. It concluded that a strategic environmental assessment was not required for the Order, because the Order is not expected to have an important environmental effect on its own, considering the existing federal regulatory mechanisms in place.

However, it is expected that, when all planned recovery activities and legal protections are considered together, these will have a positive environmental impact and will contribute to the achievement of the Federal Sustainable Development Strategy goal of healthy wildlife populations.

Gender-based analysis plus

A preliminary consideration of gender-based analysis plus (GBA+) factors did not reveal potential differences in impact on groups or subgroups of individuals.

Implementation, compliance and enforcement, and service standards

Implementation

Threats to critical habitat are currently managed and will continue to be managed through existing measures under federal legislation, such as protections under the Fisheries Act. The DFO provides a single window for proponents to apply for authorizations under the Fisheries Act or permits under SARA when they propose conducting works, undertakings or activities in or near water.

In order to lawfully conduct an activity resulting in the destruction of any part of the critical habitat of the Lilliput, the proponent must apply for and obtain an authorization under paragraphs 34.4(2)(b) and 35(2)(b) of the Fisheries Act that would have the same effect as a permit issued under subsection 73(1) of SARA.

Under section 73 of SARA, the Minister may enter into an agreement with a person, or issue a permit to a person, authorizing the person to engage in an activity affecting a listed aquatic species, any part of its critical habitat, or the residences of its individuals, provided that the requirements of subsections 73(2) to 73(6.1) of SARA are met. After the agreement is entered into or the permit is issued, the Minister must comply with the requirements of subsection 73(7), by reviewing the permit if an emergency order is made with respect to the species.

Provided that the Minister is of the opinion that the requirements of subsections 73(2) to (6.1) are met, an authorization under paragraphs 34.4(2)(b) and 35(2)(b) of the Fisheries Act can have the same effect as a permit issued under subsection 73(1) of SARA (as provided for by section 74 of SARA). After it is issued, the Minister must comply with the requirements of subsection 73(7).

A SARA permit or Fisheries Act authorization that acts as a SARA permit, if approved, would contain the terms and conditions considered necessary for protecting the species, minimizing the impact of the authorized activity on the species, or providing for its recovery. The permit application process is the same whether or not there is a critical habitat order in place in the affected area; the requirements of the Fisheries Act and SARA, including critical habitat considerations, are already considered by the DFO staff during the review of a project. It is therefore not expected that there would be an increased administrative burden for a project proponent as a result of a critical habitat order.

Compliance and enforcement

Under the penalty provisions of SARA, when found guilty of an offence punishable on summary conviction, a corporation other than a non-profit corporation is liable to a fine of not more than $300,000; a non-profit corporation is liable to a fine of not more than $50,000; and any other person is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. When found guilty of an indictable offence, a corporation other than a non-profit corporation is liable to a fine of not more than $1,000,000; a non-profit corporation is liable to a fine of not more than $250,000; and any other person is liable to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both.

Any persons planning on undertaking an activity within the critical habitat of the Lilliput should inform themselves as to whether that activity might contravene one or more of the prohibitions under SARA and, if so, should contact the DFO. For more information, proponents should consult the DFO’s projects near water webpage.

Contact

Courtney Trevis
Director
Species at Risk Operations
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Email: SARA_LEP@dfo-mpo.gc.ca