Species at Risk Act: order amending Schedules 1 to 3 (volume 139, number 50, December 10, 2005)

Vol. 139, No.50 -- December 10, 2005

Statutory authority

Species at Risk Act

Sponsoring department

Department of the Environment

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Description

The Minister of the Environment proposes recommending, pursuant to section 27 of the Species at Risk Act (SARA), that three aquatic species be added to Schedule 1, the List of Wildlife Species at Risk. This recommendation is based on the advice of the Minister of Fisheries and Oceans as the competent minister for aquatic species under SARA. The recommendation of the Minister of Fisheries and Oceans is based on scientific assessments by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) and on consultations with Aboriginal peoples, wildlife management boards, governments, stakeholders and the Canadian public as well an analysis of benefits and costs.

The purpose of SARA is threefold: to prevent wildlife species from being extirpated or becoming extinct; to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity; and to manage species of special concern to prevent them from becoming endangered or threatened. SARA complements provincial and territorial laws as well as existing federal legislation.

By means of an Order issued by the Governor in Council (GIC), SARA provides for wildlife species to be added to or removed from Schedule 1, or their classification changed, following their assessment by COSEWIC. The regulatory process for amending the List of Wildlife Species at Risk is subject to the Federal Regulatory Policy, which requires consultations with Canadians as well as consideration of benefits and costs.

SARA establishes COSEWIC as an independent, scientific advisory body on the status of species at risk. The Committee's primary function is to assess the level of risk for wildlife species based on the best available information on the biological status of a species, including scientific knowledge, Aboriginal traditional knowledge and community knowledge. This assessment is based on biological factors identified in detailed status reports and the application of assessment criteria.

The degree of risk to a species is categorized according to the following terms: extirpated, endangered, threatened and special concern. A species is assessed by COSEWIC as extirpated when it no longer exists in the wild in Canada, but still exists elsewhere in the wild. It is endangered if it is facing imminent extirpation or extinction, and threatened if the species is likely to become endangered if nothing is done to reverse the factors leading to its extirpation or extinction. Special concern status is given to a species if it may become threatened or endangered because of a combination of biological characteristics and identified threats.

Adding a species to Schedule 1 as extirpated, endangered or threatened under SARA may lead to the application of prohibitions that make it an offence to kill, harm, harass, capture or take an individual of a wildlife species, or to damage or destroy the residence of one or more individuals of a wildlife species. Prohibitions may also apply that make it an offence to possess, collect, buy, sell or trade individuals of a wildlife species. Generally speaking, these prohibitions apply automatically to aquatic species that are listed as extirpated, endangered or threatened wherever they are found. For all species listed as extirpated, endangered or threatened, a recovery strategy must be developed within fixed timelines and, in general, at least one action plan must be prepared based on the recovery strategy. For those listed as species of special concern, a management plan must be prepared.

In January 2004, the Minister of the Environment received assessments for 79 species that had been assessed by COSEWIC at its meetings of May 2002, November 2002, and May 2003. Of these 79 assessments, 28 were for aquatic species. COSEWIC assessments for 16 of these 28 aquatic species were forwarded to the GIC for receipt in April 2004, which initiated the 9-month timeline that ended in January 2005. For these initial 16 aquatic species, the GIC decided to list 13, not to list 2, and to return one assessment back to COSEWIC for further consideration. Forwarding the COSEWIC assessments to the GIC for the remaining 12 aquatic species was delayed to provide adequate time for consultations and analysis of the biological, social, and economic impacts of listing the species under SARA. It was recognized at that time that listing these species could have significant social and/or economic impacts.

The COSEWIC assessments for the remaining 12 aquatic species were forwarded to the GIC for receipt on July 15, 2005, which initiated the 9-month listing timeline that will end on April 15, 2006. By this date, the GIC must decide whether or not to add these 12 aquatic species to Schedule 1 of SARA, or refer the assessment back to COSEWIC for further consideration or information. The Minister of the Environment, on the advice of the Minister of Fisheries and Oceans, proposes recommending to the GIC that three aquatic species be added to Schedule 1, three aquatic species not be added to Schedule 1, and COSEWIC assessments for 6 aquatic species be referred back to COSEWIC for further information or consideration.

The three aquatic species that are recommended for addition to Schedule 1 are the Northern Bottlenose Whale (Scotian Shelf population), the Channel Darter, and the Coho Salmon (Interior Fraser population).

Northern Bottlenose Whale (Scotian Shelf population)

The Northern Bottlenose Whale (Hyperoodon ampullatus) is a member of the beaked whale family Ziphiidae, and is one of only two species belonging to the genus Hyperoodon known worldwide. The 6–9-metre-long whale is found only in the North Atlantic, primarily in water deeper than 800 metres. There are several known areas of abundance, two of which are off Canada--the edge of the Scotian Shelf and the Davis Strait. These two populations are described as largely or totally distinct from one another. The Scotian Shelf population is seen regularly within and between three submarine canyons: the Gully, Shortland Canyon and Haldimand Canyon. As well, there have been sightings in other areas of the Scotian Shelf.

Northern Bottlenose Whales feed primarily on deep-living squid and they appear to spend a significant portion of their time foraging for food at great depths. Northern Bottlenose Whales have highly developed vocalizing and hearing abilities that allow them to communicate, navigate, and locate prey in canyons and other deep areas. They are social animals, frequently seen in small groups of up to 4 whales and occasionally in larger groups of up to 20 whales. COSEWIC has assessed this population as endangered and states that oil and gas development in and around prime habitat poses the greatest threat.

Channel Darter

The Channel Darter is a small bottom-dwelling fish that is light sand- or olive-coloured with brown speckles on its back and X-shaped markings scattered over its dorsal surface. The Channel Darter was and still is uncommon in Canada, with disjunct populations currently found in Ontario and Quebec. In the United States, the Channel Darter is widely but discontinuously distributed and is present in low numbers. This species prefers pools and the margins of riffles of small to medium-sized rivers and sand and gravel beaches of lakeshores where the current is slow or sluggish. Locations where Channel Darters were collected in Canada have been described as undisturbed rivers along forested or agricultural areas with natural shorelines and good water quality.

COSEWIC has assessed the Channel Darter as threatened. The primary threats identified by COSEWIC are the loss of suitable habitat because they are sensitive to sedimentation, decreased water quality, the disruption of spawning activities, and invasive predator species.

Coho Salmon (Interior Fraser population)

Coho is one of seven species of the salmon native to North America. Most Coho spend their first year in fresh water and the next 18 months in the ocean before returning to fresh water to spawn and die. Interior Fraser Coho are genetically unique from other Coho populations.

Coho Salmon (Interior Fraser population), which begin and end their lives upstream of the Fraser River Canyon in British Columbia, occupy a significant proportion of the range of Coho Salmon within Canada. They are widespread throughout the upper Fraser and Thompson River systems, the Thompson being the largest tributary watershed in the Fraser River system. Coho Salmon that were spawned in the interior Fraser River watershed have been recovered in fisheries from Alaska to Oregon, but most were caught off the west coast of Vancouver Island and in the Strait of Georgia.

COSEWIC has assessed Coho Salmon (Interior Fraser population) as endangered. The primary reasons given by COSEWIC for this designation and the declining numbers of Coho Salmon were overfishing, changing marine conditions, and habitat perturbations.

Detailed information on each species recommended for addition to Schedule 1 is available from the COSEWIC status reports, which can be found on the SARA Public Registry at www. sararegistry.gc.ca.

Alternatives

Under SARA, the GIC can, within nine months after receiving an assessment of the status of a species by COSEWIC, take one of three courses of action: (1) accept the assessment and add the species to Schedule 1; (2) decide to not add the species to Schedule 1; or (3) refer the assessment back to COSEWIC for further information or consideration. All three courses of action were considered when developing this proposed order.

The first course of action is to accept the assessments and to propose adding the species to Schedule 1 of SARA. Species added to Schedule 1 receive protection in accordance with the provisions of SARA, including mandatory recovery planning. The Minister of the Environment, on the advice of the Minister of Fisheries and Oceans, is recommending that three aquatics species be added to Schedule 1 of SARA.

The second course of action is to not add the species to Schedule 1. Species at risk not added to Schedule 1 would not benefit from the protection and recovery planning measures afforded by SARA. They would, however, be managed, protected, and recovered under other federal, provincial, or territorial legislation, through other government programs or policies, or actions of non-government organizations or individuals.

Three populations of Atlantic Cod (Newfoundland and Labrador, Laurentian North, Maritimes) are being recommended by the Minister of the Environment, on the advice of the Minister of Fisheries and Oceans, to not be listed on Schedule 1 of SARA for several reasons, including complexities associated with the differing biological status, socio-economic and management implications of each individual cod stock. Atlantic Cod is found all across Atlantic Canada and Quebec and some stocks within the COSEWIC-defined populations are recovered, while others are not. For the Newfoundland and Labrador and Laurentian North populations there are potential unacceptable socio-economic impacts on Canadians and coastal communities of Atlantic Canada. There are also international management considerations.

Atlantic Cod (Newfoundland and Labrador population, Laurentian North population, Maritimes population)

The Atlantic Cod is a medium to large marine fish inhabiting coastal areas and in offshore waters overlying the continental shelf throughout the Northwest and Northeast Atlantic Ocean. On a global scale, the historical distribution of cod probably differs relatively little from that of its present distribution. In Canada, Atlantic Cod are found from Georges Bank and the Bay of Fundy in the south, northward along the Scotian Shelf, throughout the Gulf of St. Lawrence, around the island of Newfoundland, and finally along the eastern shores of Labrador and Baffin Island, Nunavut. There are landlocked populations of Atlantic Cod on Baffin Island. Outside Canadian waters in the Northwest Atlantic, cod can be found on the northeast and southeast tips of Grand Bank and on Flemish Cap. Cod inhabiting the Northeast Newfoundland Shelf, eastern Labrador, and the Barents Sea typically mature between five and seven years of age. In the warmer waters at the southern end of its Canadian range (Georges Bank, off the state of Maine) and in the Bay of Fundy, cod commonly attain maturity at two to three years of age. The colour of cod varies a great deal throughout Canadian waters, having been described as near-black, brown, and red, depending on the location of capture.

COSEWIC has assessed the Newfoundland and Labrador, Laurentian North, and Maritimes populations as endangered, threatened, and special concern, respectively. COSEWIC has identified the threats to these three populations of cod as fishing, predation by fish and seals, and natural and fishing-induced changes to the ecosystem. The cod stocks that make up these three populations are at various levels of abundance. While it is true that there are fewer cod in stocks in offshore waters where they were once abundant, the situation for the cod species as a whole is highly variable. There are tens of millions of cod, particularly in the near shore waters of Newfoundland and Labrador, and some cod stocks are recovered and increasing, supporting sustainable fisheries.

Of the 12 aquatic species currently under consideration for listing under SARA, these three populations of Atlantic Cod are particularly challenging. The decline of the once-dominant cod fishery and the historical and current significance of Atlantic Cod to the fishery and economy of Atlantic Canada and Quebec have been key considerations in the development of this recommendation. In the early 1990s it became clear that groundfish populations were reduced. Many stocks were closed to fishing in 1992/93. Cod management through the 1990s and into the early 2000s focused on the recovery of the fishery. Moratoria on directed fishing of many cod stocks continue to this day, throughout much of Canada's Exclusive Economic Zone.

Despite the fact that shellfish have dominated the Atlantic fishing industry in terms of value and effort since the collapse of most groundfish species in the 1990s, cod still holds a place of pre-eminence among those who rely on the fishery for their livelihood, as the species upon which the Atlantic fishery was built. The cod fishery is at the core of the cultural roots of many coastal rural communities in Atlantic Canada and Quebec. Consequently, any decision that is made with respect to the management of Atlantic Cod will likely generate intense reactions. This was certainly evidenced in 2003 when the directed cod fisheries in two cod management areas (4RS3Pn and 2J3KL) were closed. These closures resulted in forceful and extended public backlash, including from industry and provinces.

Significant socio-economic impacts are anticipated if the Newfoundland and Labrador and Laurentian North populations of Atlantic Cod are listed under SARA. The fishing industry in Newfoundland and Labrador and the Lower North Shore of Quebec has already been hard hit by downturns in groundfish fisheries since the early 1990s, and a listing under SARA would exacerbate this decline. Listing cod could effectively extinguish any hope in rural coastal communities for a return of the cod fishery in the region for the foreseeable future, and may increase out-migration from rural coastal communities. Also, if Atlantic Cod were to be listed, there is the potential for impact on the management of other groundfish fisheries, such as yellowtail flounder, skate, and redfish.

If Laurentian North and Newfoundland and Labrador populations of Atlantic Cod were to be listed at this time, there would be upwards of $82 million in losses to the fish harvesting and processing sectors, 9 782 fishers and crew would be affected to some degree, and 1 905 processing jobs would be lost. As Atlantic Cod, Maritimes population is a species of special concern, SARA prohibitions do not apply.

Any identified long-term benefits of listing the three populations of Atlantic Cod may not accrue, if at all, until a number of years in the future. In light of aging demographics of the industry and rural communities as well as the length of time required for any recovery to be realized, those who bear the brunt of the immediate costs may not be those who would realize the future benefits of a listing decision. Instead, the approach will be to continue to work with domestic and foreign governments, the fishing industry, non-government organizations and others to rebuild the cod populations using current and new initiatives. The Government believes the best way forward is to manage the recovery of cod through a comprehensive, integrated and Atlantic-wide approach that will build on the unprecedented collaboration of the cod action teams.

The third course of action is to refer the assessment back to COSEWIC for further information or consideration. During the time that COSEWIC reviews the new information and confirms or modifies its assessment, the species would not benefit from the protection and recovery planning measures afforded by SARA. It would, however, be managed, protected, and recovered under other federal, provincial, or territorial legislation, through other government programs or policies, or actions of non-government organizations or individuals.

The Minister of the Environment, on the advice of the Minister of Fisheries and Oceans, is recommending that the assessments for Atlantic Cod (Arctic population), Bocaccio Rockfish, Cusk, Harbour Porpoise (Northwest Atlantic population), Shortjaw Cisco, and the Lake Winnipeg Physa be returned to COSEWIC for further information or consideration.

Assessments may be referred back to COSEWIC in cases where new information has become available, existing information (Aboriginal traditional knowledge and community knowledge) was not considered, where it is unclear to what species, populations, or individuals a status designation applies, or where there are questions regarding the interpretation of the science used in making the status designation.

For these six species, assessments are being recommended for return to COSEWIC based on several factors including lack of clarity regarding speciation or definition of the designatable unit, incomplete use of available abundance and distributional information, and questions regarding the suitable incorporation of abundance and distributional information. For the Arctic population of Atlantic Cod, the assessment is missing Aboriginal traditional knowledge and does not clearly differentiate between landlocked and marine Arctic Cod stocks. For Bocaccio, two scientific assessments subsequent to that by COSEWIC reported a different species abundance; there is also a lack of confidence in the strength of the data used to support the COSEWIC assessment. In the case of Cusk, the assessment placed significant emphasis on trawl survey data that may have exaggerated the decline in abundance of Cusk. For Harbour Porpoise (Northwest Atlantic population), the assessment has combined three subpopulations of Harbour Porpoise although it is acknowledged that there is insufficient information to estimate the abundance of two of the subpopulations. The assessment for the Lake Winnipeg Physa is based on a scientific paper that has not been peer reviewed and does not adequately define whether the physa is a distinct species or a variant of a much more abundant species found elsewhere. The assessment for the Shortjaw Cisco lacks Aboriginal traditional knowledge and also applies a single designatable unit when there is insufficient information to do so.

COSEWIC will be asked to review and respond as to whether appropriate and clear speciation and definition of designatable units have been used for Atlantic Cod (Arctic population), Shortjaw Cisco, Harbour Porpoise (Northwest Atlantic population), and the Lake Winnipeg Physa, whether there has been appropriate use of available abundance data and distributional information for Bocaccio, Cusk, Harbour Porpoise (Northwest Atlantic population) and the Lake Winnipeg Physa, and whether Aboriginal traditional knowledge has been duly considered in the case of Atlantic Cod (Arctic population) and the Shortjaw Cisco.

Benefits and costs

Adding species to Schedule 1 of SARA entails both benefits and costs in terms of social, economic and environmental considerations through the implementation of SARA's immediate prohibitions upon listing and recovery requirements. Some impacts can be quantified in absolute terms, while others are more qualitative, such as the intrinsic value of species or their contribution to biological diversity.

Benefits

SARA provides a framework for actions across Canada to help to ensure the survival of wildlife species at risk and the protection of our natural heritage. Upon being listed as extirpated, endangered or threatened on Schedule 1 of SARA, migratory birds protected by the Migratory Birds Convention Act, 1994 and aquatic species wherever they are found, as well as all extirpated, endangered or threatened species found on federal lands, benefit from immediate protection in the form of prohibitions against killing, harming, harassing, capturing or taking individuals of the species. Once listed, these species are also protected by prohibitions against possessing, collecting, buying, selling or trading individuals, or parts or derivatives thereof, of extirpated, endangered or threatened listed species. In addition, the damage or destruction of the residences of one or more individuals of these species is prohibited for those species listed as endangered or threatened, or for those species listed as extirpated if a recovery strategy has recommended the re-introduction of the species into the wild in Canada.

Listed species also benefit from the implementation of recovery strategies, action plans and management plans. If a species is listed on Schedule 1 as extirpated, endangered or threatened, under section 37 of SARA, the competent minister is required to prepare a strategy for its recovery. Recovery strategies and action plans are developed through consultation and co-operation with people likely to be affected by the implementation of recovery measures, including Aboriginal peoples, provincial and territorial governments, stakeholders, and other interested groups and individuals. Action plans implement recovery strategies for listed species by identifying measures to achieve the population objectives for the species; activities that would destroy the species' critical habitat; any portions of unprotected critical habitat; and methods to monitor the recovery of the species and its long-term viability. An action plan also requires an evaluation of the socio-economic costs of the actions and the benefits to be derived from its implementation. For those listed as species of special concern, management plans must be prepared. Proposed recovery strategies, actions plans and management plans must be included in the Public Registry within the timelines set out under SARA.

Many of the species occupy an ecological niche as predators, prey or symbionts, such that their recovery may contribute to strengthening related predator/prey populations and ecosystems. Conservation measures taken to protect species listed under SARA may also prevent other species from becoming at risk. For example, habitat measures already in place and those that may be taken under SARA to improve freshwater productivity of the Coho Salmon (Interior Fraser population) would also benefit Interior Fraser Steelhead, Sockeye Salmon and Spring Chinook Salmon. These species provide various ecosystem services and serve as indicators of, and contributors to, environmental quality. Many of these geographically and biologically distinct species are of public and scientific interest due to their unique genetic composition and evolutionary histories.

Industries such as fishing have recognized that sustainable use of the resource can lead to the long-term viability of the resource. Ecosystem health and the sustainable use of our current natural resources may be the source of future economic and employment opportunities. Coho Salmon (Interior Fraser population) is an example of a species that is valued by Aboriginal peoples for cultural, spiritual and subsistence purposes.

Species also have substantial non-economic or intrinsic value to Canadian society. Canadians want to preserve species for future generations to enjoy. Many derive value from knowing the species exists, even if they will never personally see or "use" them. There is also value derived from retaining the option to observe or even use the species at some future time.

Listing of species under SARA may also contribute to Canada's image as international leader in environmental conservation and supports our role in international trade discussions. In the past, some American interests have charged that the lack of federal endangered species legislation in Canada has presented Canadian industry with an unfair advantage over U.S. firms.

Costs

Adding an endangered or threatened species to Schedule 1, and the resulting application of prohibitions and mandatory recovery provisions, may lead to costs for Aboriginal communities, industry, governments and other affected parties. Costs may also arise from SARA prohibitions, as well as from recovery and critical habitat protection measures, once they are in place. As a result of the protection afforded by the prohibitions and recovery actions applying to listed aquatic species found everywhere, listing of these species creates obligations for the federal government to ensure compliance with SARA.

A major cause of the decline of species at risk is the conversion of our natural areas for other uses that provide a value to society but force us to find substitutes for the services that the natural habitat provides. Such services include water purification, waste treatment, cleansing of the atmosphere, mitigation of greenhouse gas emissions, erosion control, pollination, pest control, flood prevention, soil formation and retention, alternative recreation services and more. The substitutes for natural services may be more expensive to build and to continuously operate.

Although there are potential costs associated with listing these three aquatic species, it appears at the present time that they will be limited, as existing conservation measures have already been in place for a number of years, particularly for Coho Salmon (Interior Fraser population) and the Northern Bottlenose Whale (Scotian Shelf population). Any incremental costs from listing will be mitigated to the extent possible through stakeholder involvement, using mechanisms such as recovery teams.

With respect to the Channel Darter, this species is not directly commercially or recreationally harvested, although there is likely some incidental catch by bait fishers in Ontario and Quebec. Future recovery measures will likely involve some level of mitigation of habitat threats, rather than fishery restrictions. However, even for future further reduction of habitat threats, the estimated impacts are low for water level regulation, hydro operations, and agriculture operations. While there is a potential for impacts to hydro operations, it remains unclear as to what will be required to bring existing structures into compliance with SARA. Fishing operations may be minimally impacted in the future through the implementation of bycatch avoidance measures.

Within the existing measures and current marine survival conditions, little or no socio-economic impacts are expected from listing Coho Salmon (Interior Fraser population), as existing conservation measures in place since 1980 would be maintained, including the complete ban on Coho retention since 1998. However, there is uncertainty around future foregone revenue for Coho following its listing under SARA and the increased harvest that may result in the event of increased marine survival. As well, there is uncertainty due to the fact that currently, the sale of legally harvested fish is prohibited, though it is expected that these issues will be resolved before Coho recover to the extent where open sale would be possible. Under future improved marine survival conditions there could be losses experienced by the fishing industry. In the 2005–2016 timeframe, foregone gross combined revenue loss for the fish harvesting and processing sectors could range from $4.9 million to $52.9 million (present value), with direct total employment impacts ranging from 350 to 2 160 person-years. In addition, losses in recreational sector revenue resulting from reduced angling opportunities could be between $41.9 million and $227 million.

The costs associated with listing the Northern Bottlenose Whale (Scotian Shelf population) under SARA are anticipated to be minimal due to overlap with other ongoing conservation efforts and regulatory controls. In the future, if new conservation measures are required, there may be some additional incremental costs to industry. These might include additional costs to the oil and gas industry for mitigation and monitoring or increased operating costs to the fishing industry if certain areas become closed to fishing. Protection and recovery of this species should be viewed in the context of the conservation efforts undertaken over the past ten years; various regulators and industries have made significant efforts to understand and mitigate impacts.

A variety of direct management costs will result from adding a species to Schedule 1, including developing and implementing recovery strategies, action plans and management plans, as well as conducting research, consultation, negotiation, monitoring, enforcement and stewardship activities. There are three main federal funding programs centered on the protection and recovery of species at risk that add to the investments made by Environment Canada, Fisheries and Oceans Canada, the Parks Canada Agency and many other federal departments and Crown corporations, governments, and non-government organizations involved in the recovery of species at risk. The three federal funding programs are the Habitat Stewardship Program for Species at Risk, the Endangered Species Recovery Fund, and the Interdepartmental Recovery Fund.

For future projects that are likely to affect a listed wildlife species and trigger a federal environmental assessment, SARA requires that the competent Minister be notified in writing of the project. The person required to ensure that a federal environmental assessment is conducted must identify any adverse effects on the listed wildlife species and its critical habitat and, if the project is carried out, ensure that measures are taken to avoid or lessen those effects and to monitor them. These requirements may lead to additional costs to the proponent in both preparing the environmental assessment and fulfilling any mitigation and monitoring requirements.

Consultation

Public consultation is an essential part of the regulatory and decision-making process of the Government of Canada. The SARA listing process was designed to be both open and transparent. Under SARA, the scientific assessment of species status and the decision to place a species on the legal list involve two distinct processes. This separation guarantees that scientists benefit from independence when making assessments of the biological status of wildlife species and that Canadians have the opportunity to participate in the decision-making process in determining whether or not a species will be listed under SARA.

Public consultations were conducted by Fisheries and Oceans Canada on the proposed listing of the current 12 aquatic species during 2004 and 2005. Consultations were facilitated through workshops, workbooks and other supporting documents, which were posted online on the SARA Public Registry and on Fisheries and Oceans Canada Web sites. These documents were also mailed directly to Aboriginal peoples, other government departments, stakeholders, and non-governmental organizations. Public sessions were conducted in communities, and additional meetings were held with interested or potentially affected individuals, organizations and Aboriginal peoples.

For three populations of Atlantic Cod (Newfoundland and Labrador, North Laurentian, and Maritimes), consultation meetings were held with Aboriginal peoples, the general public, and interested stakeholders in the Atlantic provinces and Quebec. Thousands of individuals participating in meetings in Newfoundland and Labrador, Nova Scotia, and Quebec overwhelmingly opposed the listing of these three Atlantic Cod populations under SARA. Reasons given for this position included the impacts of closing directed and bycatch fisheries, concerns with the COSEWIC process, and that SARA is not a suitable tool for managing aquatic species. The provinces of Newfoundland and Labrador, New Brunswick and Nova Scotia have recommended that these three Atlantic Cod populations not be listed under SARA. In Nova Scotia and New Brunswick, responses from the public and numerous fishing industry groups were against listing, based on concerns with COSEWIC's assessments and process. In Quebec, reaction from the fishing industry to listing these three Atlantic Cod populations under SARA was mixed. Responses from environmental organizations were generally favourable to listing under SARA.

Consultations on the proposed listing of Cusk and the Northern Bottlenose Whale (Scotian Shelf population) were conducted with the general public and interested stakeholders from September 15 to October 29, 2004. Two hundred and nine individuals or organizations were provided consultation workbooks and surveys, which were also available online via the SARA Public Registry. As well, approximately 130 participants attended meetings on the proposed listing under SARA of Northern Bottlenose Whale (Scotian Shelf population) and Cusk. The vast majority of responses during public meetings were against listing Cusk, based on potential negative economic implications and concerns with COSEWIC's assessment and process. A number of First Nations indicated that a decision to list Cusk could impact some Marshall-related commercial fisheries and raised concerns that the COSEWIC assessment was potentially flawed. The provinces of Nova Scotia and New Brunswick have recommended that Cusk not be added to the SARA list. For Northern Bottlenose Whale (Scotian Shelf population), the majority of those that participated in the public consultations support listing, including conservation organizations. Some industry stakeholders had some concerns about listing based on potential costs and lost opportunities if additional protection measures are introduced. The oil and gas industry, while not opposed to listing, has raised some concerns with the COSEWIC designation criteria. The province of Nova Scotia is not opposed to listing, as the socio-economic implications are relatively small.

Consultations on whether or not to list Harbour Porpoise (Northwest Atlantic population) under SARA were conducted in 2004 and 2005 through the use of consultation workbooks, which were mailed to stakeholders and provided online, and meetings with governments and stakeholders. Several conservation organizations support listing the Harbour Porpoise (Northwest Atlantic population). Responses from industry were mixed. Some stakeholders and organizations involved in the shipping industry generally did not oppose listing, while some fishing groups and Atlantic governments indicated that listing could negatively impact fishing opportunities. Comments received during consultations noted that there had been a substantial reduction in bycatch in the gillnet fishery in recent years due in part to voluntary measures taken by the local fishing industry. As well, there is currently a program to live-release harbour porpoise from herring weirs in the Bay of Fundy. While the Nunavut Wildlife Management Board (NWMB) has not formally given its position on listing this species, the NWMB has responded informally that this species is not of great concern to northern residents and that members are not concerned with listing the Harbour Porpoise (Northwest Atlantic population).

Recommendations on whether or not to list four inland aquatic species were the subject of consultations during 2004 and 2005.

With respect to the Arctic population of Atlantic Cod, the Government of Nunavut does not support listing this species. Along with others, they are unclear whether the COSEWIC assessment refers to landlocked populations or also includes those found in the marine environment. Nunavut is also concerned that listing this species could negatively impact developing fisheries. The Qikitarjuaq, Iqaluit, and Pangnirtung hunting and trapping organizations neither agreed nor disagreed with listing but noted that COSEWIC did not speak with them or employ Aboriginal traditional knowledge when developing the assessment. The NWMB has not formally given its position on whether or not this species should be listed under SARA.

Overall, the public and environmental groups support listing the Channel Darter under SARA. Of the five First Nations contacted regarding this species, one responded and indicated that the preservation of the species was important. The Government of Quebec has no objection to listing this species under SARA. Likewise, the Government of Ontario does not anticipate any issues related to listing this species.

During consultations on whether or not to list the Lake Winnipeg Physa, significant concerns were raised with respect to the COSEWIC assessment. Specifically, some scientists raised questions as to whether or not the Lake Winnipeg Physa is a separate species, a hybrid, or a population of a more widespread species with various morphologies, based on ecology. There were also concerns about the lack of clarity regarding the threats described by COSEWIC. The importance of validating threats is that if a species listed and the threats became validated, impacts from listing could range from increased monitoring of near-water activities to significant restrictions on agriculture and mining activities, fertilizer and waste management practices, and changes to hydro operating procedures. In addition, it is difficult to protect a species unless threats are clearly identified. Environmental groups and the public largely support the listing of this species.

Responses on whether or not to list the Shortjaw Cisco ranged from general support for listing, conditional support for listing based on the development of sound management decisions, and rejection of listing based on a lack of credible scientific data and the lack of recognition of First Nation treaty rights. The commercial and sport fishing sectors are concerned that listing would negatively impact directed or bycatch fisheries. First Nations are opposed to listing until more information becomes available about this species and the potential impacts on their fishing activities. The Government of Ontario is concerned that listing this species will negatively impact First Nations' fisheries, as well as fisheries in Lake Nipigon, Lake Huron, and Lake Superior. The governments of Saskatchewan, Alberta, and Northwest Territories support listing the Shortjaw Cisco.

During 2004, DFO undertook consultation throughout British Columbia to provide information on listing a number of Pacific aquatic species, including Bocaccio and Coho Salmon (Interior Fraser population). More than 700 individuals attended meetings from the First Nations, the commercial and sport fishing industry, a number of environmental groups and non-government environmental organizations, the provincial government, and the general public. Most commercial fishery stakeholders strongly oppose listing Bocaccio and question the methodology used by COSEWIC to determine population decline rates, while environmental and stewardship groups support listing. Some First Nations, particularly those involved in the commercial fishery, do not support the addition of Bocaccio to the SARA list. They also raised concerns that food, social, and ceremonial fishing for rockfish could be negatively impacted if this species was listed. They also question the lack of abundance data for central and north coasts and identified the need for more assessment. For Coho Salmon (Interior Fraser population), environmental groups and some First Nations were supportive of listing, while others involved in the commercial fishery are largely opposed to listing. Recreational and commercial harvesters oppose listing this species. They believe that sufficient recovery has taken place to relax current restrictions. Fishing interests have questioned why a species that is already rebuilding should be listed and potentially subjected to new restrictions. Given the vast size and the great variability in the habitat of the Fraser River watershed, participants recommended applying separate goals and objectives to the management of each subspecies of Coho Salmon (Interior Fraser population). The Government of British Columbia has recommended not listing both Bocaccio and Coho Salmon (Interior Fraser population).

Publication in the Canada Gazette, Part I, and the federal public registry of these proposed listing recommendations provides another final opportunity for public review and comment.

Strategic environmental assessment

A decision to list the Northern Bottlenose Whale (Scotian Shelf population), the Channel Darter, and the Coho Salmon (Interior Fraser population) as assessed by COSEWIC will ensure that they receive the full benefits of the protection and recovery measures established in the SARA. These benefits are in addition to those provided by existing legislative and non-legislative tools to manage aquatic species.

For the current species, the Northern Bottlenose Whale (Scotian Shelf population), the Channel Darter, and the Coho Salmon (Interior Fraser population) are recommended for listing as endangered, threatened, and endangered, respectively. Upon listing, the prohibitions under SARA will be in force and recovery strategies will be required within two years for the Channel Darter and within one year for the Coho Salmon (Interior Fraser population) and within three years for the Northern Bottlenose Whale (Scotian Shelf population), since the latter is a reassessment of a species that occurred on Schedule 3 of SARA.

The protection and recovery of these three species will also continue under other complementary legislation and programs. For example, the Marine Mammal Regulations of the Fisheries Act govern some aspects of activities that may affect Northern Bottlenose Whale, as they prohibit disturbing or killing marine mammals unless authorized. To date, these Regulations have been used to effectively prevent any hunting of this marine mammal since the 1970s. The Gully Marine Protected Area, designated by regulation in May 2004, provides protection for Northern Bottlenose Whale in a portion of its range. Enhanced requirements for the environmental assessments of oil and gas activities have been put in place since the late 1990s to address uncertainties of the effects of seismic activity. The Statement of Canadian Practice on the Mitigation of Seismic Noise in the Marine Environment is also under development and provides guidelines to mitigate the effects of seismic activity on marine mammals. Substantial protective measures for Interior Fraser Coho Salmon have been in place by DFO since 1980, including the complete ban on Coho retention. While stocks continued to decline until 2000, more recently the population has started to recover, such that escapement levels are well above minimum viable population levels.

A decision to not list species means that the prohibition and recovery measures under SARA will not apply. However, other existing tools, including legislation such as the Fisheries Act, and non-legislative tools, such as government programs and actions by non-government organizations, industry, and Canadians, will continue to protect and recover the species.

Three populations of Atlantic Cod are not being recommended for listing under SARA. However, many conservation measures are already in place to protect and conserve Atlantic Cod. These measures include moratoria, reduced direct and bycatch harvests, reduced allowable harvest of capelin (a prey species of cod), mandatory harvest plans for all groundfish, and the use of at-sea observers to monitor the harvest of Atlantic Cod. Three complementary federal-provincial Cod Action Teams have existed since 2003 and are developing rebuilding strategies for most stocks in these populations.

Assessments for six species are being proposed for return to COSEWIC for further consideration or information. Where there is concern about whether a population is a designatable unit or not or where validation of threats is needed, such as for the Lake Winnipeg Physa, Shortjaw Cisco, and the Arctic population of Atlantic Cod, further consideration by COSEWIC may be helpful to substantiate or clarify the assessment such that a reasonable analysis of next steps by governments and stakeholders can take place. If, for example, a species is reconsidered and more research is needed to substantiate the existence of the species or threats, resources that would have been targeted to protect and recover that species could be redirected to species that do exist and for which threats can be validated and addressed.

In other cases where the designatable unit is certain or threats are known, existing conservation measures are often already in place. For example, conservation measures for Bocaccio are well monitored in both the commercial trawl fishery and hook-and-line fisheries through at-sea observer programs and dockside monitoring. Voluntary mitigative measures adopted in 2004 in the commercial trawl fishery have resulted in a 50% decrease in bycatch of Bocaccio. As well, catches of Bocaccio in the United States, which may have an impact on Canadian abundance, have been significantly reduced. DFO will support scientific research in this area and will continue to work with industry to design protection and recovery measures for Bocaccio.

For both Cusk and Harbour Porpoise (Northwest Atlantic population), DFO will focus on a commitment to increase scientific research regarding these species, which will allow for tracking of the status of these species. For Cusk, current and proposed research includes efforts to define biological status, evaluation of survival upon release from fishing gear, and potential benefits from modifications to fishing gear or practices. In the case of Harbour Porpoise (Northwest Atlantic population), scientific research will continue in the area of reduced gear entanglement. As well, the Harbour Porpoise (Northwest Atlantic population) will continue to be protected under the Marine Mammal Regulations of the Fisheries Act, which prohibit the harvest of Harbour Porpoise. While there remains some bycatch of Harbour Porpoise (Northwest Atlantic population), steps have been taken to reduce this catch through measures such as time and area closures. While bycatch of Harbour Porpoise exists in herring weir and groundfish gillnet fisheries, approximately 93% of these marine mammals that are captured in the Bay of Fundy herring weir fishery are released alive. Other future measures to conserve Harbour Porpoise could involve the use of acoustic deterrents or modified gear by the fishing industry.

Compliance and enforcement

SARA promotes protection and recovery of species at risk by engaging Canadians in stewardship programs and by giving landowners, land users and other stakeholders the opportunity to participate in the recovery process. Stewardship actions include the wide range of voluntary actions Canadians are taking to monitor species at risk and their habitats, recovery measures to improve the status of species at risk, and direct actions to protect species at risk.

Environment Canada, the Parks Canada Agency and Fisheries and Oceans Canada facilitate stewardship activities and promote compliance with SARA by producing promotional and educational materials and by organizing educational activities. These materials and activities include, for example, the SARA Public Registry, an electronic information bulletin, posters, information sessions, engaging learning activities, Web features, curricula and other public education projects. As well, funding under the Habitat Stewardship Program is available for those groups or individuals wishing to undertake projects to protect and enhance important habitat.

At the time of listing, timelines apply for the preparation of recovery strategies, action plans or management plans. The implementation of these plans may result in recommendations for further regulatory action for protection of the species. It may draw on the provisions of other acts of Parliament, such as the Fisheries Act, to provide required protection.

SARA provides for penalties for contraventions to the Act, including liability for costs, fines or imprisonment, alternative measures agreements, and seizure and forfeiture of the proceeds of an illegal activity. SARA also provides qualified officers designated under the Act with inspections and search and seizure powers. Under the penalty provisions of SARA, a corporation found guilty of an offence punishable on summary conviction is liable to a fine of not more than $300,000, a non-profit corporation to a fine of not more than $50,000, and any other person to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. In the case of a corporation found guilty of an indictable offence, it is liable to a fine of not more than $1,000,000, a non-profit corporation to a fine of not more than $250,000, and any other person to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both.

Certain activities affecting a listed species will require permits. Such permits can be considered only for research relating to the conservation of a species that is conducted by qualified scientists, for activities that benefit a listed species or enhance its chances of survival, or when affecting the species is incidental to the carrying-out of an activity. These exceptions can be made when it is established that all reasonable alternatives to the activity have been considered and the best solution has been adopted, when all feasible measures will be taken to minimize the impact of the activity, and when the survival or recovery of the species will not be jeopardized by the activity.

Contact

Peter Ferguson, Policy Coordination and Liaison, Legislative and Regulatory Affairs, Fisheries and Oceans Canada, Ottawa, Ontario K1A 0E6, sararegistry@ec.gc.ca (email).

Appendix 1: Three species proposed for listing on Schedule 1, List of Wildlife Species at Risk, to the Species at Risk Act

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to section 27 of the Species at Risk Act (see footnote a), proposes to make the annexed Order Amending Schedules 1 to 3 to the Species at Risk Act.

Interested persons may make representations with respect to the proposed Order within 30 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 the Director General, Canadian Wildlife Service, Environment Canada, Gatineau, Quebec K1A 0H3.

Ottawa, November 28, 2005

DIANE LABELLE
Acting Assistant Clerk of the Privy Council

ORDER AMENDING SCHEDULES 1 TO 3 TO THE SPECIES AT RISK ACT

AMENDMENTS

1. Part 2 of Schedule 1 to the Species at Risk Act(see footnote 1) is amended by adding the following in alphabetical order under the heading "MAMMALS":

Whale, Northern Bottlenose (Hyperoodon ampullatus) Scotian Shelf population
Baleine à bec commune, population du plateau néo-écossais

2. Part 3 of Schedule 1 to the Act is amended by adding the following in alphabetical order under the heading "FISH":

Darter, Channel (Percina copelandi)
Fouille-roche gris

Salmon, Coho (Oncorhynchus kisutch) Interior Fraser population
Saumon coho, population du Fraser intérieur

3. Part 2 of Schedule 2 to the Act is amended by striking out the following under the heading "FISH":

Darter, Channel (Percina copelandi)
Fouille-roche gris

4. Schedule 3 to the Act is amended by striking out the following under the heading "MAMMALS":

Whale, Northern Bottlenose (Hyperoodon ampullatus) Gully population
Baleine à bec commune, population du ravin océanique

COMING INTO FORCE

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

[50-1-o]

Footnote a

S.C. 2002, c. 29

Footnote 1

S.C. 2002, c. 29