Critical Habitat of the Northern Wolffish (Anarhichas denticulatus) Order: SOR/2020-185

Canada Gazette, Part II, Volume 154, Number 19

Registration

SOR/2020-185 August 28, 2020

SPECIES AT RISK ACT

Whereas the Northern Wolffish (Anarhichas denticulatus) is a wildlife species that is listed as a threatened species in Part 3 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;

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;

And whereas the Minister of Fisheries and Oceans is of the opinion that the annexed Order would affect an area in respect of which a wildlife management board is authorized by a land claims agreement to perform functions in respect of wildlife species and, pursuant to subsection 58(8) of that Act, has consulted the wildlife management board in question with respect to the Order;

Therefore, the Minister of Fisheries and Oceans, pursuant to subsections 58(4) and (5) of the Species at Risk Act footnote a, makes the annexed Critical Habitat of the Northern Wolffish (Anarhichas denticulatus) Order.

Ottawa, August 25, 2020

Bernadette Jordan
Minister of Fisheries and Oceans

Critical Habitat of the Northern Wolffish (Anarhichas denticulatus) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Northern Wolffish (Anarhichas denticulatus), 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 orders.)

Issues

The Northern Wolffish and Spotted Wolffish are marine fish that inhabit waters on both sides of the North Atlantic and in the Arctic, and their distributions overlap. In Canadian waters, their distribution extends from the Gulf of Maine North to the Bay of Fundy, the Scotian Shelf, the Grand Banks, Gulf of St. Lawrence, Northeastern Newfoundland Shelf, and Labrador Sea as far as the waters west of Greenland.

In 2003, the Northern Wolffish and Spotted Wolffish were listed as threatened species footnote 1 in Part 3 of Schedule 1 to the Species at Risk Act footnote 2 (SARA). The critical habitat footnote 3 of the Northern Wolffish and Spotted Wolffish was identified in the amended Recovery Strategy for Northern Wolffish (Anarhichas denticulatus) and Spotted Wolffish (Anarhichas minor), and Management Plan for Atlantic Wolffish (Anarhichas lupus) in Canada (the amended Recovery Strategy), which was posted on the Species at Risk Public Registry (the Public Registry) on February 27, 2020.

As the competent minister under SARA, the Minister of Fisheries and Oceans (the Minister) is required to ensure that the critical habitat of the threatened Northern Wolffish and Spotted Wolffish is legally protected by provisions in, or measures under, SARA or any other Act of Parliament, including agreements under section 11, or 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 United Nations’ 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 and was enacted to prevent wildlife species from being extirpated or becoming extinct; provide for the recovery of wildlife species that are extirpated, endangered, or threatened as a result of human activity; and manage species of special concern to prevent them from becoming endangered or threatened.

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. The recovery strategy or action plan must include, to the extent possible based on the best available information, 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 posting on the Public Registry of the final recovery strategy or action plan that identifies that critical habitat. That is, critical habitat that is not in a place referred to in subsection 58(2) of SARA footnote 4 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, including agreements under section 11 of SARA.

Northern Wolffish and Spotted Wolffish

Northern Wolffish and Spotted Wolffish are marine fish that inhabit waters on both sides of the North Atlantic and in the Arctic, and their distributions overlap. In Canadian waters, their distribution extends from the Gulf of Maine north to the Bay of Fundy, the Scotian Shelf, the Grand Banks, Gulf of St. Lawrence, Northeastern Newfoundland Shelf, and Labrador Sea as far as the waters west of Greenland. They are most abundant off northeastern Newfoundland and in the Labrador Sea. Spotted Wolffish is found more frequently in the southern part of the range than Northern Wolffish. Dramatic declines in both species have occurred in recent decades, with steep declines in abundance recorded in the central part of their range. While both species experienced substantial declines during the 1980s and 90s, the proximal cause(s) remain uncertain.

In 2001, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed both the Northern Wolffish and Spotted Wolffish as threatened. In 2003, both the Northern Wolffish and Spotted Wolffish were listed as threatened species on the List of Wildlife Species at Risk (Schedule 1) of SARA. Following an updated status report and reassessment by COSEWIC in 2012, the status of both the Northern Wolffish and Spotted Wolffish was confirmed as threatened.

Since both species are listed as threatened under Schedule 1 of SARA, the prohibitions in sections 32 and 33 of SARA automatically apply to them:

In February 2020, the amended Recovery Strategy was posted on the Public Registry. The amended Recovery Strategy identifies the critical habitat necessary to support the recovery of the Northern Wolffish and Spotted Wolffish.

Objective

The objective of this regulatory initiative is to trigger, through the making of critical habitat orders for the Northern Wolffish and the Spotted Wolffish (the orders), the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of those species that is identified in the amended Recovery Strategy for these species.

Description

Critical habitat for the Northern Wolffish and Spotted Wolffish has been identified within the Gulf of St. Lawrence (including waters under the jurisdiction of the Province of Quebec), and the edge of the Grand Banks and Labrador Shelf in Newfoundland and Labrador. Maps of the critical habitat can be found in the amended Recovery Strategy. The orders trigger the application of the prohibition set out in subsection 58(1) of SARA against the destruction of any part of the species’ critical habitat, including the biophysical features and attributes identified in the amended Recovery Strategy, and result in the critical habitat of the Northern Wolffish and Spotted Wolffish identified in the amended Recovery Strategy being legally protected.

If new information becomes available to support changing the critical habitat of the Northern Wolffish and Spotted Wolffish, the amended Recovery Strategy will be updated as appropriate (taking into account feedback from public consultation) and the orders will apply to the revised critical habitat once included in a final further amended recovery strategy posted on the Public Registry.

The orders afford the Minister an additional tool to ensure that the critical habitat of the Northern Wolffish and Spotted Wolffish is legally protected against destruction. They enhance the protections already afforded to the species’ habitat under existing legislation, in particular subsection 35(1) of the Fisheries Act, which prohibits any work, undertaking, or activity that results in the harmful alteration, disruption, or destruction of fish habitat.

Regulatory development

Consultation

The amended Recovery Strategy was developed in consultation with multiple jurisdictions, stakeholders and Indigenous groups. In 2015, Fisheries and Oceans Canada (DFO) sought comments from targeted stakeholders and Indigenous groups on a draft amended Recovery Strategy, including the requirement for critical habitat protection. Comments received were constructive in nature and were addressed in the documents, as appropriate. The proposed amended Recovery Strategy for Northern Wolffish (Anarhichas denticulatus) and Spotted Wolffish (Anarhichas minor), and Management Plan for Atlantic Wolffish (Anarhichas lupus) in Canada (the proposed amended Recovery Strategy) was posted on the Public Registry on July 11, 2018, for a 60-day public comment period. The proposed amended Recovery Strategy included the identification of critical habitat, and noted the anticipated protection of critical habitat by SARA critical habitat orders made under subsections 58(4) and (5), which would invoke the prohibition in subsection 58(1) against the destruction of the identified critical habitat. No significant comments were received on the proposed amended Recovery Strategy or Action Plan during the comment period, and no comments were received regarding critical habitat or the making of the orders.

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 orders. Nonetheless, on the basis of good governance, 72 potentially affected Indigenous groups were contacted to provide an opportunity to review the draft amended Recovery Strategy. Comments were received from three Indigenous governments or groups on the amended Recovery Strategy: the Nunatsiavut Government, the Mi’kmaq Confederacy of Prince Edward Island, and the Maritime Aboriginal Peoples Council. Comments received were constructive in nature and expressed support for the conservation of the species and its critical habitat.

Under subsection 58(8) of SARA, consultation with a wildlife management board was required, as there are areas in respect of which a wildlife management board is authorized by a land claims agreement (the Labrador Inuit Land Claims Agreement) to perform functions in respect of wildlife species that will be affected by the orders. There is a slight overlap between Northern Wolffish critical habitat and the marine zone covered by the Labrador Inuit Land Claims Agreement. A meeting was held in June 2015 with the Nunatsiavut Government to discuss the draft amended Recovery Strategy for the Northern Wolffish and Spotted Wolffish, including the proposed critical habitat. A follow-up call was held in July 2015 after receiving its response during the targeted review. The Nunatsiavut Government expressed support for the proposed measures and the rationale to identify and protect wolffish critical habitat. In June 2018, the Nunatsiavut Government was contacted again as a reminder of the document and process, given that a significant amount of time had passed since they were last contacted. No further comments were provided.

There has been no critical habitat identified within the Nunavik Marine Region Wildlife Board (NMRWB) jurisdiction in Quebec. However, the NMRWB was consulted on the amended Recovery Strategy as Northern Wolffish and Spotted Wolffish distribution in Atlantic waters could reach the southern tip of the NMRWB jurisdiction where the NMRWB could have commercial fisheries (and where the Northern Wolffish and Spotted Wolffish are possible bycatch). In addition, the Northern Wolffish and Spotted Wolffish are occasionally encountered in the Davis Strait. Thus, in December 2016, the NMRWB and the Nunavut Wildlife Management Board (NWMB) received the proposed amended Recovery Strategy and the proposed Action Plan for the Northern Wolffish and Spotted Wolffish for approval in accordance with land claim agreements. The NMRWB did not raise any concerns with the proposed recovery documents. In January 2017, the NWMB sent a letter to the Minister of Fisheries and Oceans requesting to review and approve final versions of species at risk recovery documents (including those on the wolffish). DFO presented the final version of the amended Recovery Strategy for Northern Wolffish and Spotted Wolffish to the NWMB for approval in September 2019. The NWMB approved the document in September 2019.

Under SARA subsection 58(9), consultation with another federal minister was not required as there are no lands under the authority of another federal minister, other than a competent minister, that will be affected by the orders. Nonetheless, Environment and Climate Change Canada, the Parks Canada Agency, and Transport Canada were provided with an opportunity to review the draft amended Recovery Strategy in 2015 as per protocol. There were no comments received.

Overall, no significant concerns were raised during consultations with respect to the critical habitat of the Northern Wolffish and Spotted Wolffish.

Modern treaty obligations and Indigenous engagement and consultation

The critical habitat of the Northern Wolffish and Spotted Wolffish does not occur on reserves or any other lands that are set apart for the use and benefit of a band under the Indian Act.

An assessment of modern treaty implications was completed. The assessment concluded that implementation of this proposal will likely not have an impact on the rights, interests, and/or self-government provisions of treaty partners.

There are areas in respect of which a wildlife management board is authorized by a land claims agreement (the Labrador Inuit Land Claims Agreement) to perform functions in respect of wildlife species that will be affected by these orders. There is a slight overlap between Northern Wolffish critical habitat in the marine zone covered by the Labrador Inuit Land Claims Agreement. The Nunatsiavut Government and the Torngat Joint Fisheries Board were consulted, as required under SARA subsection 58(8).

Refer to the “Consultation” section above for information on the Indigenous engagement and consultation completed.

Instrument choice

Under SARA, all of a species’ critical habitat must be 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 by the Minister of an order to legally protect critical habitat may be necessary.

Regulatory analysis

Benefits and costs

Considering the existing federal regulatory mechanisms in place, the incremental costs and benefits resulting from the making of the orders are anticipated to be negligible. No incremental costs to Canadian businesses and Canadians are anticipated. However, the federal government may incur some negligible costs as it may undertake some additional activities associated with compliance promotion and enforcement, the costs of which would be absorbed through existing funding allocations.

The compliance promotion and enforcement activities to be undertaken by DFO, in combination with the continuing outreach activities undertaken as part of the critical habitat identification process, may also contribute towards behavioural changes on the part of Canadians and Canadian businesses that could 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 as a result of these outreach activities.

Small business lens

The small business lens was applied and it was determined that the orders do not impose any regulatory costs on small businesses.

One-for-one rule

The one-for-one rule does not apply to the orders, as there are no anticipated additional administrative burden costs imposed on businesses. These orders 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 United Nations’ Convention on Biological Diversity. Therefore, the orders will respect this international agreement in furthering the protection of significant habitats in Canada to conserve wildlife species at risk.

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 orders, because, considering the existing federal regulatory mechanisms in place, these orders are not expected to have an important environmental effect on their own.

However, it is expected that, when all planned recovery activities and legal protections are considered together, these orders 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 managed and will continue to be managed through existing measures under federal legislation.

In cases where it is not possible to avoid the destruction of a part of the critical habitat of the Northern Wolffish and Spotted Wolffish, the proponents of the works, undertakings, or activities may apply to the Minister of Fisheries and Oceans for a permit under section 73 of SARA, or an authorization under paragraphs 34.4(2)(b) and 35(2)(b) of the Fisheries Act that will have the same effect as a permit issued under subsection 73(1) of SARA, as provided for by section 74 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 (6.1) of SARA are met. After it is entered into or issued, the Minister must comply with the requirements of subsection 73(7).

DFO provides a single window for proponents to apply for an authorization under paragraphs 34.4(2)(b) and 35(2)(b) of the Fisheries Act that will have the same effect as a permit issued under subsection 73(1) of SARA, as provided for by section 74 of SARA. In considering applications for authorizations under the Fisheries Act that would, if approved, have the same effect as a permit under section 73 of SARA, the Minister must be of the opinion that the requirements of subsections 73(2) to (6.1) are met, after it is issued, the Minister must comply with the requirements of paragraph subsection 73(7).

A SARA permit or Fisheries Act authorization, 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.

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 Northern Wolffish and Spotted Wolffish should inform themselves as to whether that activity might contravene one or more of the prohibitions under SARA and, if so, should contact Fisheries and Oceans Canada.

Contact

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