Canada Gazette, Part I, Volume 150, Number 51: St. Anns Bank Marine Protected Area Regulations

December 17, 2016

Statutory authority

Oceans Act

Sponsoring department

Department of Fisheries and Oceans

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: Canada's oceans and aquatic ecosystems are under growing pressures from human activities. One of the means by which these pressures can be addressed is through the creation of marine protected areas (MPAs) by regulation under the Oceans Act. The Government of Canada has recognized the need to preserve the health of the country's oceans by committing to protect 5% of Canada's marine and coastal areas by 2017, and 10% by 2020, in the 2016 mandate letter issued by the Prime Minister to the Minister of Fisheries, Oceans and the Canadian Coast Guard and the Minister of Environment and Climate Change. The proposed St. Anns Bank Marine Protected Area Regulations (proposed Regulations) would provide protection from the impacts of human activities to an additional 0.08% (4 364 km2) of Canada's oceans.

The proposed St. Anns Bank MPA is located to the east of Cape Breton, Nova Scotia, and has many ecologically and biologically significant features including unique habitats, areas of high biodiversity, areas of high biological productivity, and both endangered and threatened marine species and their habitats. These features have been determined to be at risk from some ongoing and potential future activities such as some commercial fisheries, and oil and gas exploration and production. The proposed Regulations would help to conserve and protect the biodiversity, ecosystem function, and special natural features of this marine area.

Description: The proposed Regulations would be made under subsection 35(3) of the Oceans Act to designate, conserve and protect the St. Anns Bank area, including Scatarie Bank, most of St. Anns Bank, and part of the western edge of the Laurentian Slope and Channel, as an MPA totalling approximately 4 364 km2.

The proposed Regulations would prohibit any activity that disturbs, damages, destroys or removes a living marine organism or any part of its habitat in the St. Anns Bank MPA, while allowing certain exceptions to the prohibitions for specified activities that do not contravene the conservation objectives (e.g. some fishing activities, scientific research approved by the Minister). Consequently, the proposed Regulations would prohibit activities that contravene the achievement of the conservation objectives of the MPA, including the use of mobile bottom-contacting fishing gears and oil and gas exploration and development throughout the MPA. The proposed Regulations would establish four management zones, including a core protection zone of minimal human activity and three adaptive management zones where current low-impact activities would be permitted, including but not limited to fishing by rod and reel, and pot gear. Together these zones would provide for the conservation and protection of biological diversity, habitat and biological productivity of the St. Anns Bank area.

“One-for-One” Rule and small business lens: Neither the “One-for-One” Rule nor the small business lens applies to this regulatory proposal. It is anticipated that the proposed Regulations will not result in any new administrative burden to commercial enterprises, and the expected incremental costs to industry are significantly lower than the $1 million threshold that would trigger the small business lens.

Cost-benefit statement: The designation of the St. Anns Bank MPA would offer long-term protection to an area with high species and habitat diversity, sensitive species and habitats, and many other ecologically important features. These protections would provide marine populations with a refuge from exploitation and other negative impacts, reduce human-imposed impacts on sensitive and important habitat, and help to protect and improve ecosystem integrity through the conservation and protection of unique and productive ecosystems.

The St. Anns Bank MPA would be beneficial for Canadians because of low costs and the potential for important long-term ecological benefits. One of the primary costs identified with designation of the MPA would occur within the fishing and seafood processing industries, although costs are not anticipated to significantly affect the industries' ability to function and generate revenue. In addition, many of these losses could potentially be offset if the affected fisheries move their effort to areas outside of the respective core protection and/or adaptive management zones. No known offshore oil and gas development within or nearby the MPA is planned in the near future due to limited economic opportunities for oil and gas production along the continental shelf and slope and the proximity to shore. Therefore, no costs to the oil and gas industry are anticipated. Some administration and management costs to Government are projected as a result of the designation of the MPA.

Domestic and international coordination and cooperation: Designation of the St. Anns Bank MPA by regulation would contribute directly to Canada's efforts to implement measures in line with several international agreements, the most prominent of which is the Convention on Biological Diversity (CBD). In 2010, the Conference of the Parties to the CBD established the following target, known as Aichi Target 11: “By 2020, at least 17 per cent of terrestrial and inland water, and 10 per cent 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 landscapes and seascapes.”

Issues

Canada's oceans and aquatic ecosystems are under growing pressures from human activities. The need to preserve the health and productivity of our oceans has been recognized by stakeholders and the Government of Canada, which reiterated its mandate commitment to “increase the proportion of Canada's marine and coastal areas that are protected — to five percent by 2017, and ten percent by 2020,” in the 2016 mandate letter issued by the Prime Minister to the Minister of Fisheries, Oceans and the Canadian Coast Guard and the Minister of Environment and Climate Change. The designation of marine protected areas (MPAs) under the Oceans Act (the Act) provides for the protection of the marine ecosystem from human-induced pressures and helps ensure the long-term health and sustainability of our oceans.

The area proposed for designation as an MPA is located to the east of Cape Breton, Nova Scotia, and encompasses Scatarie Bank, most of St. Anns Bank, and part of the western edge of the Laurentian Slope and Channel, totalling approximately 4 364 km2. The proposed MPA has many ecologically and biologically significant features, including but not limited to

The area's habitats, productivity and biodiversity are at risk from some ongoing and potential future activities that are likely to impact ecological and biological features. DFO has carried out an ecological risk assessment to determine the relative risk presented by interactions between the conservation priorities for the proposed MPA and ongoing or potential future human activities within the context of existing legislation and programs. The results of the risk assessment indicate that certain current and potential future activities pose a high risk to many of the conservation priorities for the proposed MPA. The results of the risk assessment helped to inform the exceptions to the general prohibition in the proposed Regulations. In light of the risks detailed below, the St. Anns Bank Marine Protected Area Regulations (proposed Regulations) are proposed to provide long-term protection from human activities that could negatively impact this ecologically important marine area.

Background

Ongoing activities within the proposed MPA include research surveys, marine transportation and a variety of commercial fisheries. While there is no known planned oil or gas activity in the proposed MPA boundary, it is possible that in the future such activity could take place given the petroleum potential in a portion of the proposed MPA. (see footnote 1)

At present, fisheries are authorized and managed throughout the area under either the Fisheries Act or the Coastal Fisheries Protection Act. The risk assessment found that redfish bottom and midwater trawl had a high risk of impact for many priority species and their habitats (e.g. Atlantic cod, demersal fish) and other conservation priorities (e.g. protecting an area of high fish diversity); see the “Objectives” section for more details. Bottom trawl was also determined to present high risk to sensitive benthic environments, including areas of structure-forming species (e.g. corals). The snow crab fishery posed medium to high risks to turtles and marine mammals due to entanglement, but low or very low risks to other conservation priorities. The whelk pot fishery posed medium risks to marine mammals and sea turtles due to entanglement potential, and medium risks to certain priority species (i.e. demersal fish and Atlantic wolffish) and benthic invertebrates (other than whelk) due to bycatch. The lobster pot fishery and gillnet fisheries for herring roe and bait received low or very low risk scores for all conservation priorities. While the halibut longline fishery presented low risks to leatherback turtles, sharks, sensitive benthic/structure-forming species, and benthic invertebrates, medium to high risk scores were assigned to most fish-related conservation priorities due to bycatch of depleted/at-risk fish species (e.g. Atlantic wolffish, Atlantic cod). The seal harvest was determined to pose low risks to all conservation priorities.

The assessment of risks presented by oil and gas activities was limited to interactions between the conservation priorities and pressures associated with exploratory oil and gas activities, namely seismic surveys and exploratory drilling (drill muds and cuttings, drilling-associated noise, and accidental spills and blowouts), given that attempts to forecast the developmental activities that might take place within the area of interest (AOI) would be highly speculative. Seismic surveys were determined to pose medium risk to sensitive life stages of invertebrates and primary producers, and high risk to leatherback turtles, marine mammals and certain fish. Activities associated with exploratory drilling posed medium to high risk scores for interactions with all conservation priorities (e.g. fish, benthic invertebrates, primary producers, benthic habitats, leatherback turtles and top predators).

With existing mitigation as prescribed by Canada's Ballast Water Control and Management Regulations, ballast exchange activities were determined to pose a low risk to the conservation priorities for the site. Vessel strikes were determined to pose a medium risk to leatherback turtles and a high risk to marine mammals, and vessel noise presented medium to high risks to fish, turtles and marine mammals. Large accidental spills from vessels posed medium to high risks to all conservation priorities. Under the United Nations Convention on the Law of the Sea, Canada's authority to regulate international navigation rights within Canada's exclusive economic zone is limited. Nevertheless, based on experience with other MPAs, efforts will be made to enhance stewardship and awareness of the area within the shipping community (e.g. Notices to Mariners).

Canada's commitment

The Government of Canada is committed to meeting the international goals set in Aichi Target 11. The Prime Minister's mandate letter to the Minister of Fisheries, Oceans and the Canadian Coast Guard directed the Minister to “increase the proportion of Canada's marine and coastal areas that are protected — to five percent by 2017, and ten percent by 2020 — supported by new investments in community consultation and science.” The 2016 federal budget provided further clarity on this matter by allocating “$81.3 million over five years, starting in 2016–17, to Fisheries and Oceans Canada and Natural Resources Canada to support marine conservation activities, including the designation of new Marine Protected Areas under the Oceans Act.”

These recent developments build on previous commitments made through the Health of the Oceans Initiative (2007) and the National Conservation Plan (2014). The St. Anns Bank area was selected from three candidate areas in DFO's Maritime Region following a seven-month public consultation period that took place in 2009 and 2010. In June 2011, St. Anns Bank was formally announced as an AOI. This area was selected for advancement because it aligns with all the purposes for MPA designation that are specified under subsection 35(1) of the Act, and it received positive support during the consultation period. Furthermore, St. Anns Bank was a strong candidate for an MPA, as it has many ecologically significant features, including unique habitats, areas of high biodiversity, areas of high biological productivity, and both endangered and threatened marine species and their habitats.

Objectives

Goals and objectives for the proposed MPA were developed through a peer-reviewed science advisory process (see footnote 2) and finalized using additional advice from a stakeholder advisory committee. The overarching purpose of the proposed Regulations is the conservation and protection of the area's biodiversity, ecosystem function, and the special natural features of the St. Anns Bank MPA. The conservation objectives of the MPA are set out more specifically below.

1. Habitat

Conserve and protect

2. Biodiversity

Conserve and protect biodiversity at the community, species, population and genetic levels within the St. Anns Bank MPA, including, but not limited to,

3. Productivity

Conserve and protect biological productivity across all trophic levels so that they are able to fulfill their ecological role in the ecosystems of the St. Anns Bank MPA.

The risk assessment showed that a small number of activities identified as exceptions to the prohibitions posed a medium to high risk to some conservation priorities. The proposed Regulations, in conjunction with other management measures that already apply to those activities, would contribute to the conservation and protection of the overarching biodiversity, ecosystem function, and special natural features of this marine area. Thus, allowing these activities as outlined below would not compromise achievement of the conservation objectives.

Secondary goals of the proposed Regulations are to

Description

The proposed Regulations would be made pursuant to subsection 35(3) of the Oceans Act to establish the St. Anns Bank MPA. The proposed MPA would cover an area of 4 364 km2.

Prohibition

The proposed Regulations would prohibit any activity within the designated boundaries that disturbs, damages, destroys or removes any living marine organism or any part of its habitat, or that is likely to do so. The proposed MPA would include the seabed and subsoil to a depth of 5 m in order to protect the active biological layer of seabed communities in the area.

MPA boundaries and management zones

The proposed Regulations would establish the St. Anns Bank MPA boundaries and management zones (Figure 1). Within each of the designated management zones, specific activities would be allowed (as exceptions to the prohibition), insofar as they do not compromise the overall conservation objectives of the MPA. The proposed zoning would provide varying levels of protection within the proposed MPA, offering the most stringent protection to areas that need it most. The management zones would be divided in the following manner:

Figure 1: Map showing an illustration of the proposed St. Anns Bank Marine Protected Area, its boundaries and its management zones

Map showing an illustration of the proposed St. Anns Bank Marine Protected Area, its boundaries and its management zones

Activities to be allowed within the MPA by the proposed Regulations

The proposed Regulations would include exceptions to the prohibition to allow specific activities to occur within the MPA. Some of these activities would require the approval of an activity plan by the Minister of Fisheries, Oceans and the Canadian Coast Guard (the Minister) in order to be carried out in the MPA. The only activities that would be allowed are those listed below. Other activities would fall under the prohibition and would therefore not be allowed within the MPA (e.g. oil and gas exploration and production, mobile bottom-contacting gear).

The proposed exceptions include the following:

(1) Fishing

The following fishing activities would be allowed in the MPA if they are carried out in accordance with the Fisheries Act, the Coastal Fisheries Protection Act and regulations made under those acts:

Note: Immediately upon designation, only some fisheries using the above-noted gears would be allowed within certain zones of the MPA, pursuant to existing fisheries management mechanisms under the Fisheries Act or the Coastal Fisheries Protection Act. See the “Implementation, enforcement and service standards” section below for a list of the fisheries allowed within the MPA immediately upon designation.

(2) Navigation

All navigation and shipping-related activities would be allowed within the proposed MPA provided that they are carried out in accordance with the Canada Shipping Act, 2001 and its regulations.

(3) Safety or emergency

Throughout the MPA, activities for the purpose of public safety, law enforcement, national security or emergency response (e.g. vessel search and rescue operations or responding to an incident resulting in the release of deleterious substances) would be permitted.

(4) Scientific research or monitoring, educational or commercial marine tourism activities

Scientific research or monitoring, educational or commercial marine tourism activities would be allowed to be carried out throughout the MPA (in the CPZ and all AMZs) if they are part of an activity plan that has been approved by the Minister. Although allowed within the proposed MPA, these activities would continue to be subject to all other applicable legislative and regulatory requirements. Proponents would continue to be required to secure all other necessary authorizations (e.g. permits, licences) in order to engage in respective activities.

To ensure that the activities being undertaken in the MPA are aligned with the conservation objectives, applicants would be required to submit an activity plan containing the information listed in section 9 of the proposed Regulations for approval by the Minister. That information would be used to evaluate the impacts of the proposed activity on the conservation objectives of the MPA and would serve as the basis for decisions on whether or not to approve the activity.

Scientific research and monitoring activities would be approved throughout the MPA if they are not likely to destroy the habitat of any living marine organism and serve to (a) increase knowledge of the biodiversity, the biological productivity or the habitat of any living marine organism in the MPA; or (b) assist in the management of the MPA.

Educational and commercial marine tourism activities would be approved throughout the MPA if the activities are not likely to damage, destroy or remove any living marine organism or any part of its habitat in the MPA and if they serve to increase public awareness of the MPA.

The Minister would be required to approve or not approve an activity plan within 60 days from the day the plan is submitted. An individual could amend their activity plan at any time before a decision is made by the Minister. If an amended plan is submitted, the time for evaluation would be reset to 60 days regardless of the date of the proposed activity.

Under the proposed Regulations, the Minister would not approve an activity plan if

The proposed Regulations would require that all proponents of approved activities submit a post-activity report to the Minister within 90 days of the last day of the activity. This report would have to contain the information listed in section 11 of the proposed Regulations. This information would help monitor pressures from human activities on the ecological aspects of the MPA and would contribute to ongoing monitoring of the potential risk of activities to achievement of the conservation objectives.

Regulatory and non-regulatory options considered

As highlighted above, an ecological risk assessment has shown that some ongoing (e.g. redfish otter trawl) and potential future activities (e.g. oil and gas exploration) pose a risk to conservation priorities identified for the proposed MPA. Existing regulatory tools, applied independently, do not adequately mitigate those risks.

Certain marine activities are already regulated under provisions of the Fisheries Act, the Species at Risk Act, the Canada Shipping Act, 2001 and other federal legislation, whose purposes differ from that of the Oceans Act. DFO is not aware of any voluntary measures in place that afford adequate protection to the St. Anns Bank area.

A more cohesive and predictable regulatory framework in the form of an MPA through regulations made under the Oceans Act is considered necessary to focus efforts on the long-term conservation and protection of the area's important ecological and biological features, particularly through the prohibition of activities in areas where they pose the greatest risk of harm.

Benefits and costs

Benefits of the proposal

The designation of the St. Anns Bank MPA is anticipated to offer some potential benefits. While these benefits cannot be directly attributed to the proposed MPA due to a lack of data, a review of nearly 130 studies and journal articles (see footnote 3) on benefits to be derived from the protection of marine ecosystems in Canada and other countries suggests the following potential benefits may exist:

Costs of the proposal
Food, social and ceremonial fisheries

There are no proposed changes to Aboriginal fisheries for food, social or ceremonial purposes. Therefore, no costs to these fisheries are anticipated.

Government

Costs to the Government for the administration and management of an MPA include costs associated with activity assessments and the issuance of approvals, scientific research, information management, ecosystem monitoring, surveillance and enforcement, and public consultation, education and stewardship programs. The full cost of MPA management and monitoring has been estimated by the Department to be approximately $280,000 (nominal value) per year. This represents a total cost of $3.8 million in present value terms over a 30-year period (discounted at 7%).

Industry

Fishing and seafood processing

The establishment of the proposed MPA would eliminate a portion of the total management area in which harvesters are authorized to fish. Based on average catch data for 2009 to 2013, the nominal value of the annual loss of landings from commercial fisheries as a result of the proposed Regulations is estimated to be $161,700 with an associated loss of profit of about $20,200 per year. (see footnote 4) Over 95% of the anticipated loss is from the prohibition of all fisheries (with the exception of fishing for food, social and ceremonial purposes and the seal harvest) in the high protection zone (Zone 1). Less than 2% of the loss would be from the prohibition of mobile bottom-contacting gear in each of the other zones. The proposed Regulations are anticipated to have the most significant impacts on annual landed values (presented as nominal values) for the halibut longline ($88,200) and snow crab fisheries ($42,300). In addition, the redfish, shrimp, sea urchin, rock crab and scallop fisheries are anticipated to lose a total of just under $31,000 per year in revenue. The total present value of the incremental costs (i.e. loss of profits) to the commercial fishing industry is estimated at approximately $271,000 (over a 30-year period discounted at 7%).

Much of the loss in landed values identified above could be offset if the impacted fisheries move their effort to areas outside of the respective core protection and/or adaptive management zones. The degree to which such offsetting activities would occur is currently unknown.

Based on the five-year average catch data, the proposed Regulations are anticipated to impact 17 licence holders in the affected fisheries to varying degrees. Although the level of impact varies by licence holder, none of the licence holders are overly dependent on the MPA area, as the affected landings represent no more than 5% of each licence holder's total catch.

The anticipated loss of landings from fisheries that are prohibited from all or part of the MPA is estimated to result in a reduction of $296,000 (nominal value) in revenue per year for seafood processors. The loss in profits associated with these reductions in processing activity is estimated to be about $14,800 (nominal value) per year. The total present value of the incremental costs (i.e. loss of profits) to the seafood processing industry is estimated at approximately $198,000 (over a 30-year period discounted at 7%).

Recreational fishing would be allowed in Zones 2, 3 and 4, and the proposed Regulations would not impose any additional requirements for recreational fisheries in these zones. The cost of recreational fisheries being prohibited in Zone 1 cannot be determined, as the level of recreational fishing activity in the proposed MPA area is unknown at this time, and is expected to have remained very low even in the absence of the proposed MPA.

Oil and gas

Although there are estimated reserves of oil and natural gas in the proposed MPA boundary, DFO is not aware of any planned offshore oil and gas development activities that are expected to occur within or near the MPA in the near future. This expectation is based on current market projections for petroleum resources, economic opportunities for oil and gas production along the continental shelf and slope, and the proximity of the MPA to shore. Since the expected returns from an oil or natural gas project in the MPA are not currently considered attractive, it is anticipated that there would be no costs to the oil and gas industry.

There are no active wells or exploration, significant discovery, or production licences in or near the proposed St. Anns Bank MPA. Exploratory efforts, such as seismic surveying, have been very low in the area, with little industry interest in this general region since the late 1990s. No licences have been issued in the St. Anns Bank area since Call for Bids NS97-1 (1997). The Canada-Nova Scotia Offshore Petroleum Board three-year plan (2015–2017) for the Call for Bids Forecast Areas includes the proposed MPA area for 2017 and identifies its boundary (see footnote 5). Despite the inclusion of the AOI in the Call for Bids Forecast Areas, there are no known planned oil and gas projects in the area.

Other resource industries

There are no existing or proposed mineral development projects within the proposed MPA. As a result, no impacts are anticipated on the mineral resource industry.

There are no anticipated costs to the renewable energy industry given that there are no existing or proposed wind, wave or tidal energy projects within or near the proposed MPA.

Transportation industry

There will be no cost to the transportation industry, as the proposed Regulations would recognize international and Canadian navigational rights and will not place added restrictions on shipping.

Scientific, education and tourism activities

The proposed Regulations would provide for access to the MPA for scientific, education and commercial marine tourism activities. This includes a requirement for proponents to provide detailed information on planned research, monitoring, educational and commercial marine tourism activities, and to consider potential impacts on the MPA. However, incremental costs related to the submission and approval processes are expected to be minimal, as much of the information required would be readily available to the proponent as a result of other permitting and licensing activities. For example, if a researcher was planning on taking a sample of a marine species, the researcher would have to also complete an application for a licence issued pursuant to section 52 of the Fishery (General) Regulations.

In addition, there are no commercial marine tourism activities currently operating in the vicinity of the MPA, and there is no expectation for new business opportunities within the MPA.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there would be no change in administrative costs to business. No commercial marine tourism activities currently take place or are planned within the proposed MPA. Furthermore, it is not anticipated that any commercial enterprises would be involved in the scientific and educational activities carried out in the MPA.

Small business lens

The small business lens does not apply to this proposal, as the administrative and compliance costs associated with the proposed MPA are expected to be well below the $1 million threshold.

Consultation

The proposed MPA Regulations have been developed through multiple rounds of consultation with interested and affected stakeholders (including industries, local communities and conservation organizations) as well as lead agencies in the Government of Nova Scotia, Indigenous peoples and communities. The consultation approach has emphasized the principles of sustainable development, and sought to use the best available scientific information and traditional ecological knowledge.

Area of interest selection process

A public consultation process was initially conducted between October 2009 and May 2010 with the objective of gathering feedback from various marine users, First Nations and Indigenous organizations, government agencies, and the general public to inform the selection of the next AOI for possible MPA designation on the Eastern Scotian Shelf. Based on consultation results, the St. Anns Bank AOI received the most direct support and was expected to have the lowest economic impact. This feedback was a significant consideration in selecting St. Anns Bank as an AOI to advance for MPA designation.

Response to MPA regulatory proposal

The St. Anns Bank AOI Stakeholder Advisory Committee (Advisory Committee) was established shortly after St. Anns Bank was identified as an AOI for possible MPA designation, and is composed of representatives from industry, academia, environmental non-governmental organizations, other provincial and federal government regulators, and First Nations and Indigenous organizations. Between April 2012 and April 2013, the Advisory Committee met four times to review available information, to participate in the development of the conservation objectives and the delineation of the MPA boundary and zones, and to provide advice on allowable activities. Regular updates have been provided to interested stakeholders or their representative organizations in 2014, 2015 and 2016.

In addition to engagement through the Advisory Committee, bilateral engagement and direct communication with individual stakeholders and partners were initiated to identify and address issues of concern. Four meetings were held with a fishing industry working group composed of representatives from the major fisheries active in the St. Anns Bank area, including First Nations and other Indigenous participants. Additional bilateral consultations with the Province of Nova Scotia, First Nations, and the fishing industry were also held over this period. Information has been distributed to First Nations through letters and an information package mailed to First Nations and Indigenous organizations in Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland and Labrador that provided all the available information DFO had gathered about the site, including proposed restrictions.

Consultation summary

A summary of key issues and concerns received as feedback through the various consultations is provided below according to sector or interest group.

Federal departments

Environment and Climate Change Canada, Transport Canada, Natural Resources Canada, Global Affairs Canada and the Department of National Defence support the designation of the proposed St. Anns Bank MPA. These departments attended Stakeholder Advisory Committee meetings and/or were consulted through bilateral meetings.

Both Natural Resources Canada and the Canada-Nova Scotia Offshore Petroleum Board expressed concern about the potential impacts of a preliminary MPA proposal on future petroleum exploration and a potentially significant loss of access to future reserves and related economic activity. The northern portion of the original AOI boundary was adjusted through the consultation process, which resulted in a reduction in overlap with areas expected to have higher petroleum potential.

Province of Nova Scotia

The Province of Nova Scotia has expressed general support for the proposed MPA designation, while promoting flexibility in the future management of the MPA. Several provincial agencies (Department of Energy, Department of Fisheries and Aquaculture, Department of the Environment, and Intergovernmental Affairs) have participated on the Advisory Committee. Supplemental consultations were undertaken with these departments through a dedicated working group that also involved the Office of Aboriginal Affairs, the Department of Natural Resources and the Department of Justice.

In response to a preliminary MPA proposal, some provincial agencies expressed concern over the potential loss of future opportunities to access petroleum resources in the northern portion of the original AOI boundary. The boundaries of the proposed St. Anns Bank MPA have been adjusted to reduce overlap with areas expected to have moderate to high petroleum potential. At present, there are no licences for petroleum activity within or adjacent to the proposed MPA.

Concern was also expressed regarding future access to the proposed MPA to conduct limited seismic activity for the purposes of understanding the petroleum geology of the region. DFO recognizes that the nature and potential impacts of such activities vary greatly. Scientific research activities, which could include seismic research, would be allowed only if they are part of an activity plan approved by the Minister, which requires that such activities are not likely to destroy the habitat of any living marine organism, and serve to increase knowledge of the important features of the MPA or contribute to its management (see the “Description” section for additional details).

Commercial fisheries

The commercial fishing industry is comprised of a wide variety of participants and associations with varying views. Generally, the fishing industry supports the proposed MPA designation, but has noted concerns with respect to limitations on ongoing fisheries. These concerns have been evaluated by DFO and addressed to the extent possible.

Throughout the consultation process, some members of the fishing industry operating within the proposed MPA boundary expressed opposition to the MPA due to concerns about placing any spatial restrictions on active fisheries and the need to consider the return of historical commercial fisheries to the area. The fishing industry working group was formed in 2011, and four meetings were held to ensure all interested fishing industry sectors had the opportunity to provide input into the design of the MPA. As a result, three management zones (Zones 2, 3 and 4) were designed to allow existing fixed-gear, rod and reel and dive fisheries to continue within the MPA. These zones have addressed the concerns of some industry participants, as they capture the bulk of landings from the St. Anns Bank area over the last decade. After MPA designation, additional fixed gear, rod and reel, and harpoon fisheries (e.g. return of historical fisheries) could be allowed within Zones 2, 3 and/or 4 provided their ecological impacts do not compromise the conservation objectives for the MPA. While the mobile groundfish fishing fleet will be closed out of the entire MPA, boundary adjustments have reduced concerns about the loss of fishing grounds.

As the regulatory proposal was refined over time, DFO continued to share updated information with the fishing industry and to seek its input. In 2015, concerns were expressed by some groundfish licence holders regarding the closure of any available fishing grounds to the halibut fishery in the 4Vn management unit (i.e. the Northwest Atlantic Fisheries Organization fisheries management unit off eastern Cape Breton). More licence holders are becoming active, as the halibut fishery is making use of increasing quotas across the region, including off Cape Breton. In light of these emerging trends within the fishery, stakeholders anticipate that fishing effort and species distributions will expand or vary from current patterns. Industry participants argued that all available fishing areas are required to provide access to both active and newer entrants. DFO has responded to the industry by clarifying its approach, which would ensure that the bulk of fishing effort in the proposed fishing zones within the MPA remains unaffected. Zone 1 of the MPA (the core protection zone), within which some past halibut fishing activity has occurred, will not be accessible after designation. The science-based risk assessment supports the prohibitions proposed in the core protection zone, because it demonstrates that risks to conservation objectives are reduced when there is minimal overlap between available fishing areas and ecological features of interest.

In 2016, a request was submitted to DFO to allow tuna angling and swordfish by harpoon throughout the MPA, and rock crab by pot and handline and longline for all species in Zones 2–4, and to increase the size of Zones 2–4. DFO confirmed that pot, rod and reel (angling), handline and longline were assessed to not pose a risk to the achievement of the conservation objectives of the MPA and were already included in the proposed list of fishing gears to be allowed in Zones 2, 3 and 4. Upon further analysis, DFO determined that the addition of harpoon to the list of fishing gears allowed within Zones 2, 3 and 4 would not pose a risk to the conservation objectives of the MPA and reflected this modification in the proposed Regulations. The size and location of the adaptive management zones are deemed appropriate based on the best available information at this time.

First Nations and Indigenous organizations

First Nations and Indigenous groups are generally supportive of the MPA proposal. First Nations and Indigenous groups contacted as part of these consultation efforts included the Assembly of Nova Scotia Mi'kmaq Chiefs via the Kwilmu'kw Maw-klusuaqn Negotiation Office (KMKNO, Mi'kmaq Rights Initiative); the five First Nations on Cape Breton (Membertou, Eskasoni, Potlotek/Chapel Island, Wagmatcook and Waycobah); the Unama'ki Institute of Natural Resources; and off-reserve groups such as the Native Council of Nova Scotia and the Maritime Aboriginal Aquatic Resources Secretariate. First Nations and off-reserve Indigenous organizations throughout neighbouring provinces were also invited to provide input throughout the process. No responses from First Nations outside of Nova Scotia were received.

First Nations and Indigenous organizations were represented on the Stakeholder Advisory Committee and the fishing industry working group. Consultation efforts also included bilateral meetings and information-sharing through electronic and postal mail. Examples of information provided through these processes include ecological and socio-economic overviews, a Mi'kmaq Traditional Use Study report containing information obtained from interviews with knowledge holders from Eskasoni, Membertou, Potlotek, Waycobah, Millbrook and Wagmatcook First Nations, and proposed MPA boundaries, zones and regulatory measures.

The KMKNO expressed concern with restrictions the proposed MPA would pose on Mi'kmaq access to commercial fisheries. A request was made by KMKNO for further dialogue on the impacts on Indigenous fishing activities and to explore opportunities for collaboration and building First Nations capacity to address site management needs and future MPA selection. To address concerns over fisheries access, DFO confirmed in a letter to KMKNO in July 2013 that no changes were proposed to Aboriginal food, social and ceremonial fisheries, and that some commercial fisheries would be allowed to continue in three of the four zones within the proposed MPA, where the majority of commercial fisheries have occurred.

In their early correspondence, the KMKNO, Native Council of Nova Scotia and local community members expressed concerns about unexploded ordnance and designated munitions dumps known to be within the proposed MPA boundary and potential effects they may have on the environment. Remediation activities carried out by the Government of Canada related to the designated munitions dumps or to address unexploded ordnance in the MPA would be considered activities related to public safety. While no remediation activities are planned in the area, DFO and the Department of National Defence would cooperate to ensure that impacts on the conservation priorities of the MPA are monitored and minimized to the extent possible.

In December 2014, DFO forwarded the regulatory intent with proposed boundaries and fishing restrictions to KMKNO via the multi-stakeholder Advisory Committee and received no response.

The proposed regulatory and management framework for the St. Anns Bank MPA would present an opportunity for collaboration between DFO, local First Nations and other Indigenous groups. DFO initiated a grants and contributions project in fiscal year 2014–2015 to support efforts of the Unama'ki Institute of Natural Resources (UINR) to explore UINR involvement in scientific and/or human use monitoring of the proposed MPA. This initiative has established the foundation for collaboration in the future.

In 2016, concerns were expressed by a First Nation commercial communal licence holder that rod and reel fishing would not be allowed in the proposed MPA. DFO recognized that there have been developments in various fisheries in 4Vn since the conclusion of the initial MPA consultations. Having determined that the tuna fishery in Zones 2, 3 and 4 would not pose a risk to the conservation objectives, rod and reel was added to the list of allowed fishing gear within those zones, and DFO intends to allow fishing for tuna with that gear within Zones 2, 3 and 4 of the MPA.

Non-renewable energy

The Canadian Association of Petroleum Producers was invited to participate on the Advisory Committee and received information related to the establishment of the proposed St. Anns Bank MPA, including the proposed boundary, management zones and regulatory approach. No response was received from the Association.

There are no existing or proposed mineral development projects within or in proximity to the proposed MPA. Consequently, no direct engagement was undertaken with the mineral development sector.

Renewable energy

There are no proposed wind, wave or tidal energy projects in the waters within or nearby the AOI. Consequently, no direct engagement was undertaken with the renewable energy sector.

Shipping

The sector was represented on the Advisory Committee by the Shipping Federation of Canada. The shipping industry is generally supportive of the MPA designation. The proposed Regulations will not impede navigation rights afforded under Canadian or international law.

Concerns were expressed by the sector about the impact of the proposed Regulations on vessel movements in this high-traffic area and operational shipping impacts due to potential changes to the winter Alternative Ballast Water Exchange Zone within the Laurentian Channel, which overlaps with a portion of the proposed MPA. Similarly, with existing mitigation in place, ballast water exchange has been evaluated as low risk and would be allowed to continue. DFO would work in collaboration with Transport Canada to monitor vessel activity within the MPA and to ensure that ecological risks to the area posed by shipping activities are addressed and mitigated using existing national and international legislation.

Non-governmental organizations — conservation

The marine conservation sector is strongly supportive of MPA designation.

The marine conservation sector was represented on the Advisory Committee by World Wildlife Fund, Ecology Action Centre and Canadian Parks and Wilderness Society. Additional consultation with the marine conservation sector took place through regular correspondence and bilateral meetings.

Concerns were expressed about the overall reduction in size of the proposed MPA compared to the original AOI in 2011. Specific concerns were raised regarding the reduction of the amount of habitat for priority species (i.e. groundfish). With the extension of the AOI boundary to the southeast, the final boundary of the proposed MPA contains several features that are of particular ecological interest to environmental organizations.

The sector also recommended that a significant portion of the proposed MPA should be a core protection zone (no extraction) to maximize MPA effectiveness and follow international guidance and best practices for designing protected areas (e.g. International Union for Conservation of Nature [IUCN]). DFO has determined that the creation of a large core protection zone for the St. Anns Bank MPA, as proposed, aligns with these international best practices.

Early in the process, the sector expressed interest in having cod included as a separate conservation priority for the St. Anns Bank MPA and indicated that tracking of changes in abundance of species like cod would be vital to track the conservation success of the MPA. Through discussions between DFO and the marine conservation sector, it was agreed that cod would be considered a priority species and, like for all other groundfish species, DFO would conduct ongoing monitoring of the stock in this area and investigate additional monitoring requirements, such as through the At-sea Observer Program and Vessel Monitoring Systems.

The marine conservation sector seeks continued engagement on the MPA initiative, particularly with respect to the ongoing management and monitoring of the MPA. DFO would seek opportunities to engage with stakeholders to ensure the effectiveness of the post-designation management approach.

Recent consultations include a presentation on the regulatory proposal to the ENGO Forum in fall 2014, and status updates in December 2015 and September 2016. No new concerns were raised.

Regulatory cooperation

Designation of the St. Anns Bank MPA by regulation would contribute directly to Canada's efforts to implement measures in line with several international agreements, the most prominent of which is the Convention on Biological Diversity (CBD). In 2010, the Conference of the Parties to the CBD established the following target, known as Aichi Target 11: “By 2020, at least 17 per cent of terrestrial and inland water, and 10 per cent 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 landscapes and seascapes.”

DFO and the Canada-Nova Scotia Offshore Petroleum Board (CNSOPB) have a Memorandum of Understanding, which outlines joint efforts and regulatory cooperation regarding matters of common interest, including MPAs. In a manner consistent with the efforts undertaken with the Gully MPA, DFO will work with the CNSOPB to ensure regulatory compliance with the Oceans Act for all activities and authorizations under CNSOPB control.

Rationale

The designation of the proposed St. Anns Bank MPA would offer long-term protection to an area with high species and habitat diversity, sensitive species and habitats, and many other ecologically important features. This protection would provide marine populations with a refuge from exploitation and other negative impacts, reduce human-imposed impacts to sensitive and important habitat, and help to protect and improve ecosystem integrity through the conservation and protection of unique and productive ecosystems.

The goals and objectives that have informed the development of the proposed Regulations have been validated through a multi-step stakeholder engagement process. All key stakeholders have supported the proposed designation of the St. Anns Bank MPA. The St. Anns Bank MPA would be beneficial for Canadians because of low costs and the potential for important long-term ecological benefits.

Designation of the St. Anns Bank MPA by regulation would further demonstrate Canada's efforts to implement measures in line with several international agreements, the most prominent of which is the CBD. Establishing St. Anns Bank as an MPA would make a contribution to this international target. Currently, approximately 1% of Canada's oceans are conserved through federal and provincial MPAs. The proposed St. Anns Bank MPA would generate an increase of 0.08% in the total protected area of Canada's oceans.

Implementation, enforcement and service standards

The proposed Regulations would come into force upon registration. As the lead federal authority for the MPA, DFO would have overall responsibility for ensuring compliance with, and enforcement of, the proposed Regulations. This would be undertaken through the Department's legislated mandate and responsibilities under the Oceans Act, the Fisheries Act and the Coastal Fisheries Protection Act, as well as other departmental legislation regarding fisheries conservation, environmental protection, habitat protection and marine safety. Enforcement officers designated by the Minister under section 39 of the Oceans Act would enforce the proposed Regulations for these areas. Enforcement of the proposed Regulations and offences would be dealt with under section 37 of the Oceans Act.

The implementation of a risk-based approach would allow for the ecologically sustainable use of resources in the proposed MPA without compromising the overarching objectives of protecting and conserving habitat, biodiversity and biological productivity. For example, some activities that produced mixed risk scores, such as the snow crab pot and halibut longline fisheries, would be permitted access only in specific locations and would be subject to additional monitoring.

No changes are proposed to Aboriginal food, social and ceremonial fishing.

Exceptions for fishing gears were outlined in the proposed Regulations. However, only ongoing fisheries that were assessed for their potential impacts on the MPA and deemed aligned with the conservation objectives of the MPA would be allowed to continue in certain management zones of the MPA subject to applicable requirements of the Fisheries Act or the Coastal Fisheries Protection Act. Fisheries other than those specified in the table below, intending to use fishing gears allowed in the proposed Regulations, would be assessed for their potential impacts on the conservation objectives prior to being authorized within the MPA through existing Fisheries Act or Coastal Fisheries Protection Act mechanisms. The ongoing fisheries that would be allowed in the MPA immediately upon designation are listed in the table below.

Table 1: Fisheries allowed within the zones of the proposed St. Anns Bank MPA, immediately upon designation
Fishery Zone 1 Zone 2 Zone 3 Zone 4
Lobster pot   √    
Rock crab pot   √    
Snow crab trap   √ √ √
Whelk pot   √ √  
Groundfish (targeting halibut) with bottom longline/handline   √ √ √
Herring roe and bait fishery for herring/mackerel with gillnet   √    
Seal harvest √ √ √ √
Urchin by diving   √    
Bluefin tuna by rod and reel   √ √ √
Food, social and ceremonial √ √ √ √

Complementary to the direction provided by the proposed Regulations, an MPA management plan would be developed following designation to provide further guidance on the Regulations and to implement a comprehensive set of conservation and management strategies and measures for the MPA. The Management Plan would clearly define the MPA's purpose and management priorities, address matters such as monitoring, enforcement, compliance, and stewardship, and provide the detail required to ensure that the rationale for management decisions, prohibitions, and activity approvals is clearly justified and understood.

Website materials would also be developed to engage the public and share information about the MPA, including a summary of information provided in the Management Plan, and guidelines and best practices for conducting activities within the site. Time frames and information requirements for the activity application process would be outlined in guidance documents and the MPA Management Plan.

Compliance and enforcement activities carried out by DFO enforcement officers would include vessel and aerial patrols to ensure compliance with fishing licence conditions and closure areas. Fisheries activities within the St. Anns Bank MPA could also be monitored through other mechanisms, including the At-Sea Observer Program, fishing logbooks, and the Vessel Monitoring System. Using these data sources, automated reports on fishing activity in the MPA would be generated as often as daily as part of an existing compliance monitoring program for MPAs in the Maritime Region.

Contravention of the proposed Regulations would carry fines of up to $100,000 for an offence punishable on summary conviction and of $500,000 for an indictable offence under section 37 of the Oceans Act. Contraventions of activity approvals and conditions could also result in charges under other applicable Canadian legislation such as the Fisheries Act or the Species at Risk Act.

Contacts

Maritime Region

Glen Herbert
Regional Manager
Ecosystems Management Branch
Fisheries and Oceans Canada
Bedford Institute of Oceanography
1 Challenger Drive, P.O. Box 1006
Dartmouth, Nova Scotia
B2Y 4A2

National Capital Region

Christie Chute
Manager
National Marine Protected Areas
Oceans Management Branch
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 35(3) of the Oceans Act (see footnote a), proposes to make the annexed St. Anns Bank Marine Protected Area Regulations.

Interested persons may make representations concerning the proposed Regulations within 45 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Christie Chute, Manager, Marine Conservation Programs, Integrated Oceans Management, Department of Fisheries and Oceans, 200 Kent Street, Room 12W127, Ottawa, Ontario K1A 0E6 (email: SABMPA-BSAZPM@dfo-mpo.gc.ca).

Ottawa, December 1, 2016

Jurica Čapkun
Assistant Clerk of the Privy Council

St. Anns Bank Marine Protected Area Regulations

Interpretation

Definition of Marine Protected Area

1 (1) In these Regulations, Marine Protected Area means the area of the sea that is designated by section 2.

Geographical coordinates

(2) In Schedules 1 and 2, all geographical coordinates (latitude and longitude) are expressed in the North America Datum 1983 (NAD83) reference system.

Designation

Marine Protected Area

2 (1) The area depicted in Schedule 1 that is bounded by a series of rhumb lines drawn from points 1 to 10, the coordinates of each of which are set out in that Schedule, and back to point 1 is designated as the St. Anns Bank 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.

Management Zones

Boundaries

3 The Marine Protected Area consists of the following management zones:

Prohibited Activities

Prohibition

4 Subject to sections 5 to 8, it is prohibited in the Marine Protected Area to carry out any activity that disturbs, damages, destroys or removes from the Marine Protected Area any living marine organism or any part of its habitat or is likely to do so.

Exceptions

Fishing

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, the Coastal Fisheries Protection Act and their regulations:

Navigation

6 Navigation may be carried out in the Marine Protected Area if it is carried out in accordance with the provisions of the Canada Shipping Act, 2001 and its regulations.

Safety or emergency

7 An 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.

Activity plan

8 A scientific research or monitoring activity, educational activity or commercial marine tourism activity may be carried out in the Marine Protected Area if it is part of an activity plan that has been approved by the Minister.

Activity Plan

Submission and contents

9 Any person who proposes to carry out a scientific research or monitoring activity, educational activity or commercial marine tourism activity in the Marine Protected Area must submit to the Minister an activity plan that contains the following information:

Approval of activity plan

10 (1) The Minister must approve an activity plan if

Approval prohibited

(2) Despite subsection (1), the Minister must not approve an activity plan if

Timeline for approval

(3) The Minister's decision in respect of an activity plan must be made within

Post-activity report

11 If an activity plan has been approved by the Minister, the person who submitted the plan must, within 90 days after the last day of the activity, provide the Minister with a post-activity report that contains

Coming into Force

Registration

12 These Regulations come into force on the day on which they are registered.

SCHEDULE 1

(Subsections 1(2) and 2(1))

Marine Protected Area

This Schedule is a map depicting the location of the St. Anns Bank Marine Protected Area. The Schedule also includes a table setting out the geographical coordinates of the points establishing the Marine Protected Area's boundaries, as described in subsection 2(1) of the Regulations.

SCHEDULE 2

(Subsection 1(2) and section 3)

Management Zones

This Schedule is a map depicting the location of the four management zones comprising the St. Anns Bank Marine Protected Area. The Schedule also includes a table setting out the geographical coordinates of the points establishing the zones' boundaries, as described in section 3 of the Regulations.

[51-1-o]