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Vol. 150, No. 22 -- May 28, 2016

Critical Habitat of the Roseate Tern (Sterna dougallii) Order

Statutory authority

Species at Risk Act

Sponsoring department

Department of the Environment

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

Research conducted at the University of British Columbia indicates that monitored seabird populations around the world have declined by 70% since the 1950s. (see footnote 1) Loss of habitat is one of the greatest threats to biodiversity and species persistence in the world today, (see footnote 2) and preserving the habitat of species at risk, including seabirds, is therefore key to their conservation.

The Roseate Tern (Sterna dougallii), a medium-sized, graceful seabird, is found on coasts and islands along the Atlantic, Indian and Pacific oceans, with important North Atlantic nesting sites on islands off the coast of Nova Scotia. (see footnote 3) In 2003, the Roseate Tern was listed as endangered under the Species at Risk Act (SARA). While the primary threat to the Roseate Tern in Canada is believed to be predation and displacement of colonies by gulls, habitat limitations are also documented threats.

As required by SARA, a recovery strategy for the Roseate Tern was completed and posted on the Species at Risk (SAR) Public Registry on October 25, 2006. The recovery strategy identified habitat that is critical to the survival and recovery of the species (also known as critical habitat), some of which is on federal land. When, in a final posted recovery strategy, all of a species’ critical habitat or portions of that critical habitat have been identified on federal lands, (see footnote 4) in the exclusive economic zone of Canada or on the continental shelf of Canada, SARA requires that it be protected within 180 days.

Background

Habitat protection under SARA

Canada’s natural heritage is an integral part of its national identity and history. In 1992, Canada signed and ratified the Convention on Biological Diversity (the Convention), an international agreement between governments that was established to help ensure that biological diversity is conserved. The Convention notes that the conservation of ecosystems and natural habitats is a “fundamental requirement for the conservation of biological diversity.” (see footnote 5)As a party to this Convention, Canada has developed a national strategy for the conservation of biological diversity (see footnote 6) as well as federal legislation to protect species at risk, namely Canada’s SARA. The purposes of SARA are to prevent wildlife species from being extirpated from Canada (see footnote 7) or becoming extinct, (see footnote 8) to provide for recovery of wildlife species that are listed as extirpated, endangered (see footnote 9) or threatened (see footnote 10) as a result of human activity and to manage species of special concern (see footnote 11) to prevent them from becoming endangered or threatened. Consistent with the Convention, SARA recognizes that the habitat of species at risk is key to their conservation, and includes provisions that enable the protection of this habitat.

Once a species has been listed under SARA as endangered, threatened or extirpated, the competent federal minister (see footnote 12) (for the Roseate Tern, this is the Minister of the Environment, hereafter referred to as the Minister) must prepare a recovery strategy. Recovery strategies must contain information such as a description of the species, threats to species survival and, to the extent possible, the identification of the species’ critical habitat (i.e. the habitat necessary for a listed wildlife species’ recovery or survival). Recovery strategies are posted on the SAR Public Registry.

When, in a final posted recovery strategy, critical habitat or portions of critical habitat have been identified on federal lands, in the exclusive economic zone of Canada or on the continental shelf of Canada, SARA requires that it be protected within 180 days. Protection can be achieved through other Acts of Parliament or provisions under SARA, including conservation agreements under section 11 of the Act. If protection is in effect, a protection statement setting out how the critical habitat or portions of it are legally protected must be posted on the SAR Public Registry.

If critical habitat is located in a migratory bird sanctuary (MBS) under the Migratory Birds Convention Act, 1994 (MBCA), (see footnote 13) or in a national park described in Schedule 1 of the Canada National Parks Act (CNPA), in the Rouge National Urban Park established by the Rouge National Urban Park Act, in a marine protected area under the Oceans Act, or in a national wildlife area under the Canada Wildlife Act, the competent minister must publish a description of that critical habitat in the Canada Gazette within 90 days of the date that critical habitat was identified in a final recovery strategy. Ninety days after this description of critical habitat is published in the Canada Gazette, the critical habitat protections under subsection 58(1) of SARA (i.e. prohibiting the destruction of critical habitat) come into effect automatically, and critical habitat located in the federally protected area is legally protected under SARA.

If critical habitat or any portion of that habitat is not in a national park described in Schedule 1 of the CNPA, in the Rouge Urban Park established by the Rouge National Urban Park Act, in a marine protected area under the Oceans Act, in a migratory bird sanctuary under the MBCA or in a national wildlife area under the Canada Wildlife Act, the competent minister must, under subsection 58(4) of SARA, either make a ministerial order to apply subsection 58(1) of SARA, prohibiting the destruction of this critical habitat, within 180 days following the identification of this habitat in a final posted recovery strategy, or publish on the SAR Public Registry a statement explaining how the critical habitat (or portions of it) is protected under another Act of Parliament.

Following the development of a recovery strategy, the Act requires the development of one or more action plans. Action plans summarize the projects and activities required to meet recovery strategy objectives and goals. They include information on habitat, details of protection measures, and evaluation of socio-economic costs and benefits.

Roseate Tern critical habitat on federal lands

The final recovery strategy for the Roseate Tern was completed and posted on the SAR Public Registry on October 25, 2006. On September 8, 2010, the recovery strategy was amended to clarify the language used to describe critical habitat, the activities likely to result in destruction of critical habitat, and the Department of the Environment’s approach to, and timing of, the development of an action plan for the species. The proposed Action Plan for the Roseate Tern was posted for public consultation on the SAR Public Registry on December 23, 2014, and the final action plan was posted on December 30, 2015, following public consultation.

The recovery strategy for the Roseate Tern identifies terrestrial and aquatic critical habitat, some of which is on federal land. Those portions of critical habitat that are found on federal land are illustrated in Annex 2 of the Regulatory Impact Analysis Statement, and include

  1. the terrestrial habitat of, and waters surrounding, Sable Island, Nova Scotia;
  2. the waters surrounding North Brother and South Brother Islands, Nova Scotia; and
  3. the terrestrial habitat of, and waters surrounding, Country Island, Nova Scotia.

Sable Island is administered by the Parks Canada Agency and is currently both a Migratory Bird Sanctuary (MBS) under the MBCA and a National Park Reserve (NPR) under the CNPA. The NPR includes the island, its shore and foreshore. Sable Island is 161 km offshore of Canso, Nova Scotia, and has a year-round population of 4 people, sometimes increasing to as many as 20 people (primarily researchers and government employees) for short periods. North and South Brother Islands are uninhabited islands near Pubnico, on the west coast of Nova Scotia, and the terrestrial habitat on the islands is under the jurisdiction of Nova Scotia. Country Island, which is also uninhabited, is located off the southeast coast of Nova Scotia, and is under the administration of the Department of Fisheries and Oceans (DFO) and managed by the Canadian Coast Guard.

Existing protections for the Roseate Tern

The Roseate Tern is a migratory bird afforded protection under the MBCA, the Nova Scotia Endangered Species Act, and Quebec’s An Act Respecting Threatened or Vulnerable Species.

As a migratory bird, the Roseate Tern benefits from protections afforded under both SARA and the MBCA, including its regulations, which prohibit the disturbance, destruction or taking of a migratory bird, its nest, eggs or nest shelter; and prohibit the possession, trade, or exchange of a migratory bird (alive or dead), its nest or eggs. Species included under the MBCA are protected on all federal and non-federal lands wherever the species occurs. For migratory birds, the MBCA applies to all activities by individuals, industries and organizations, and are applicable in all of Canada and its exclusive economic zone. Therefore, many protections are already in place for this species, with the exception of protections of critical habitat on some federal lands.

Roseate Tern terrestrial habitat on Sable Island, which is a migratory bird sanctuary, is already protected under the MBCA. A description of the critical habitat of the Roseate Tern, in the Sable Island Bird Sanctuary, was published in the Canada Gazette in January 2007, and legal protection under SARA came into effect 90 days later, on April 20, 2007. On December 1, 2013, the Sable Island National Park Reserve was established. The National Park Reserve includes the entire island, its shore and foreshore. In October 2014, the Parks Canada Agency published a Protection Statement on the SAR Public Registry that states that the CNPA and its regulations, including the National Parks General Regulations, provide legal protection against the destruction of critical habitat for the Roseate Tern on Sable Island through a number of provisions. (see footnote 14)

In order to assess the legal protection on the remaining federal lands on which critical habitat for the Roseate Tern has been identified, the Department of the Environment performed a detailed review of the MBCA; the Canada Shipping Act, 2001; the Oceans Act; the Federal Real Property and Federal Immovables Act; and the Fisheries Act. The Department of the Environment concluded that portions of Roseate Tern critical habitat on Country Island and its surrounding waters, as well as the surrounding waters of North Brother Island, South Brother Island, and Sable Island beyond its foreshore are not legally protected.

Provincial lands on North Brother Island and South Brother Island were designated under the Nova Scotia Wildlife Act as The Brothers Islands Wildlife Management Area (Management Area). (see footnote 15) In the Management Area, wildlife habitat alteration may not be authorized if it would have an adverse effect on Roseate Tern habitat. (see footnote 16) Consequently, the Province of Nova Scotia already provides protection for Roseate Tern habitat on the islands.

Objectives

The objective of the proposed Critical Habitat of the Roseate Tern (Sterna dougallii) Order (the proposed Order) is to support the survival and recovery of the Roseate Tern through the legal protection of its critical habitat on federal lands. The proposed Order will fulfill the Minister’s legal obligations under SARA for the protection of the species and serves as a necessary step in its recovery process.

Description

The proposed Order would apply the prohibition against the destruction of critical habitat set out in subsection 58(1) of SARA to the following Roseate Tern critical habitat on federal land:

  • Country Island, Nova Scotia -- the entire terrestrial habitat of the island, as well as aquatic habitat extending 200 m seaward from the mean high tide line of the island;
  • North Brother Island and South Brother Island, Nova Scotia -- the aquatic habitat extending 200 m seaward from the mean high tide line of each island; and
  • Sable Island, Nova Scotia -- any area within a 200 m perimeter of each polygon encompassing each individual nesting colony of any species of tern on that island, excluding the area that is within the Sable Island National Park Reserve of Canada, as described in Schedule 2 of the Canada National Parks Act.

This would ensure the protection of Roseate Tern critical habitat on federal land. The final recovery strategy provides additional clarity on what types of activities would be likely to result in the destruction of critical habitat. Examples of these activities include, but are not limited to,

  • modification of the surface of Country Island, such as the addition of material like sand or gravel or the installation of anthropogenic structures;
  • modification of the vegetation cover, such as the removal of vegetation used by Roseate Terns or other terns or the addition of vegetation; and
  • modification of hydrological characteristics, such as activities that would increase turbidity or change the chemical composition of surface waters.

Benefits and costs

Analytical framework

A cost-benefit analysis usually portrays the impacts of a decision to implement a policy, by comparing the incremental differences in costs and benefits between a scenario in which a potential policy is put in place versus a baseline scenario. However, in this case, since the determination has been made that critical habitat is not protected by other provisions under SARA or by another Act of Parliament, the Minister must issue an order to protect critical habitat on federal land; it is therefore not simply a policy decision. This analysis examines the difference between the two scenarios. The “without an order” scenario refers to the current situation, i.e. the current and planned activities within the area of interest, as well as existing federal and provincial or territorial regulations that may already offer protections for the species, where applicable. The “with an order” scenario refers to the situation in which the proposed Order is implemented. The benefits and costs below are based on the difference between these two scenarios.

Benefits of the proposed Order

Preventing the extirpation of a given species, like the Roseate Tern, contributes to overall biodiversity, the maintenance of which is essential for healthy ecosystems, human health, prosperity, and well-being. More diverse ecosystems are generally more stable and better able to withstand change, and thus the goods and services they provide to society are also more stable over time.

Although the benefits associated with the continued existence of the species cannot be attributed to the proposed Order alone, the proposed Order would contribute to the recovery of the Roseate Tern by protecting the species’ critical habitat on federal land from human activities that would be destructive to this habitat. In this way, the proposed Order also provides regulatory certainty in regard to any development or activities in the area that may arise in the future. The proposed Order may also help protect additional species, including a variety of migratory birds. Since Roseate Terns require the presence of other nesting terns to breed, protection of this critical habitat would directly benefit other tern species with whom Roseate Terns co-nest -- the Common Tern (Sterna hirundo) and the Arctic Tern (Sterna paradisaea) -- as well as other species of seabirds and waterfowl that nest on Country Island, such as Leach’s Storm-petrel (Oceanodroma leucorhoa), the Black Guillemot (Cepphus grylle), and the Common Eider (Somateria mollissima).

Canadians place value on Canada’s natural assets, including species at risk. The total economic value (TEV) framework is often adopted for assessing economic values in society derived from an environmental asset such as a species at risk. The concept includes benefits that can be observed in terms of market and non-market values that contribute to the well-being of society.

People derive recreational and aesthetic benefits from observing the Roseate Tern (i.e. non-consumptive use value). Bird watching is an activity pursued by tourists visiting Sable Island. In addition, a Tern Festival (see footnote 17) takes place each year in Pubnico (the closest town to the North and South Brother Islands) and features birdwatching activities related to the Roseate Tern. Given that the Roseate Tern is a migratory bird, people elsewhere in North and South America may also benefit from watching the species.

Society often places a value on retaining the option of possible future uses associated with a species. The option value of the Roseate Tern to Canadians could stem from the preservation of its genetic information that may be used in the future for biological or medicinal applications. As well, it may serve as an indicator species with regard to future research on changes in landscape and climate patterns.

People also derive an altruistic value from simply knowing that a species exists now and for future generations. Quantitative information is limited regarding the value Canadians place on the preservation of the Roseate Tern specifically. However, studies on other at-risk species indicate that society does place substantial value on these species. (see footnote 18)

Costs of the proposed Order

Key activities that occur near the Roseate Tern’s critical habitat in Nova Scotia include fishing and aquaculture, recreation, oil and gas, food processing, and shipping. As discussed below, it is unlikely that there would be any impacts on these sectors from the protection of Roseate Tern critical habitat within the area of interest. The costs of the proposed Order are therefore limited to compliance promotion and enforcement incurred by the Department of the Environment.

Fishing and aquaculture

No cost to fishing and aquaculture industries is expected to result from the proposed Order. Most fishing practices and all aquaculture activities occur outside the aquatic critical habitat subject to the proposed Order. The only fishing activity within the area of interest is lobster fishing (with fewer than eight boats) near Country Island, and the Department of the Environment does not consider such activity to have the potential to destroy Roseate Tern critical habitat. An aquaculture site used to be located approximately 200 m from North Brother Island and South Brother Island (and was operated between 1995 and 1999). The colony did not appear to be affected and there were no adverse impacts to the critical habitat of the Roseate Tern. There is no evidence that any new fishing or aquaculture activities would occur within the area of interest in the future; however, if any new lobster fishing or aquaculture facilities were to be introduced, and require undertaking activities that could result in a contravention of the prohibition, a permit could be requested from the Minister of the Environment. The issuance of such a permit would be on a case-by-case basis and contingent on meeting the requirements of section 73 of SARA.

Recreational activities

The Department of the Environment did not identify any recreational activities that could be impacted by the proposed Order, since such activities would not pose any threat to the Roseate Tern critical habitat.

  • Sable Island is remote, located approximately 161 km offshore of the Nova Scotia coast. Although there is some ecotourism activity on and around the island, tours are very infrequent (one or two per year). Although there may be an increase in boat traffic associated with increased ecotourism activity, the only boating activity within the Roseate Tern critical habitat would be limited to taking passengers and cargo from offshore ships to the island, which is unlikely to destroy the habitat.
  • The aquatic habitat surrounding North Brother Island and South Brother Island has been designated as part of the wildlife management area designated by the Government of Nova Scotia. Under the relevant provincial regulation, access to the islands is not permitted without written authorization during the breeding season of birds (between March 31 and September 1) and camping is not allowed any time of the year. (see footnote 19) Therefore, no recreational activities are expected to affect this critical habitat.
  • Country Island is difficult to visit given its remote location and distance from the mainland. Since 1996, recreational boaters have been observed on the island only three times. As Country Island is under the administration of DFO, access to and use of the island are subject to the Crown’s rights and obligations in this area. Therefore, the critical habitat on the island is unlikely to be affected by any recreational activities.

Although recreational activity is not anticipated, a permit could be requested if undertaking any recreational activity that could result in a contravention of the prohibition. The issuance of such a permit would be on a case-by-case basis and contingent on meeting the requirements of section 73 of SARA.

Oil and gas

The proposed Order is unlikely to affect the oil and gas sector. According to geospatial analysis and on-site investigation conducted by the Department of the Environment, six existing offshore oil and gas fields are located several kilometres seaward from Sable Island, (see footnote 20) and one undersea natural gas pipeline is located 3 km away from Country Island. No other oil and gas activities are identified within close proximity to the area of interest. The natural gas companies that operate these fields have established standard operating procedures stating that their usual activities will not approach within 2 km of the islands in question. In addition, the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act already prohibits drilling for petroleum in Sable Island National Park Reserve of Canada or within one nautical mile seaward of Sable Island’s low-water mark. Given the above-mentioned industry practice and legislation, as well as the fact that no existing or planned oil and gas operations are identified within the area of interest, the oil and gas sector is unlikely to impact the Roseate Tern’s critical habitat on federal lands. The Department of the Environment is not aware of any existing or planned oil and gas activities that could potentially be affected by the proposed Order.

Food processing

The proposed Order is not expected to impact the food processing industry. Two fish processing plants are located near the area of interest, and both are located approximately 3 km away from North Brother Island and South Brother Island. Neither of these operations has been found to adversely affect the critical habitat of Roseate Tern.

Shipping

Shipping is also unlikely to be affected by the proposed Order because large vessels have not been found to pass through the area of interest, and there is no evidence that any ships occasionally using the area of interest would destroy any Roseate Tern critical habitat (e.g. shrimp trawlers occasionally enter Country Harbour, but do not pose any threat to the critical habitat).

Other activities

The proposed Order would not affect any Department of the Environment or other Government of Canada employees or contractors visiting the Roseate Tern critical habitat, since none of the activities undertaken by these groups are likely to result in the destruction of Roseate Tern critical habitat. The Department of the Environment has managed a research crew on Country Island since 1998, and the research that it has conducted is for the benefit of the species. DFO operates an unmanned light station on Country Island, which requires at least one annual maintenance visit by helicopter. However, DFO avoids the island during the breeding season because of potential interactions with the tern colony.

Exceptions

Under emergency circumstances, section 83 of SARA provides for exceptions to a number of provisions under the Act, including the prohibition against the destruction of critical habitat in subsection 58(1). These exceptions include activities related to “public safety, health or national security… that are authorized by or under any other Act of Parliament…” Activities that meet these requirements would not need a permit to be undertaken.

Government of Canada

The Department of the Environment has developed a compliance strategy to communicate the requirements and prohibitions that would be in place once the proposed Order comes into force. Activities, including the development and dissemination of fact sheets, have been identified and the associated one-time cost to the Department of the Environment is estimated to be approximately $6,000. The direct enforcement cost to protect critical habitat within the area of interest is estimated to be approximately $28,000 per year, or $238,000 in present value terms. (see footnote 21) These costs include compliance verification and enforcement activities, including but not limited to the salary of enforcement officers and operational costs, and take into consideration the remote locations of the critical habitat.

Summary

The proposed Order is expected to result in no cost to existing and future economic, recreational, or research activities within the area of interest. The only associated costs would be related to compliance promotion and enforcement, to be incurred by the Government of Canada, which are anticipated to be low.

“One-for-One” Rule

Section 5 of the Red Tape Reduction Act (the “One-for-One” Rule) does not apply because the Order would not impose any new administrative burden on business.

Small business lens

The small business lens does not apply, as the proposed Order would not impose any compliance or administrative costs on small businesses.

Consultation

In 2006, prior to posting the proposed Roseate Tern Recovery Strategy on the SAR Public Registry, the Department of the Environment engaged in consultations with stakeholders. Of the 15 stakeholder groups and Aboriginal organizations consulted during this preposting consultation, a total of six responses were received, all in support of the recovery strategy, of recovery of the species and/or of critical habitat protection. Of these, the Government of Nova Scotia supported the recovery strategy and protection of critical habitat within the province, as did two industry associations (oil and gas, and aquaculture), as well as three environmental non-governmental organizations. No concerns were raised during these consultations.

The proposed recovery strategy was posted on the SAR Public Registry for public comment on July 27, 2006. One comment was received during the 60-day public consultation period regarding the Roseate Tern, from an Aboriginal stakeholder, expressing support for the recovery strategy and the recovery of the species, including the protection of its critical habitat. The final recovery strategy was posted on October 25, 2006.

A proposed amended recovery strategy was posted on the SAR Public Registry for public comment on June 9, 2010. One comment was received during the 60-day public comment period. This comment, from a private landowner, raised concerns about the identification of critical habitat on non-federal lands and the potential for protection of that habitat to adversely affect use of the property. The Department of the Environment confirms that the proposed Order would not protect critical habitat on non-federal land. The final amended recovery strategy was posted on September 8, 2010.

The proposed action plan was posted for public comment on December 23, 2014. The only comment received during the 60-day comment period was from the same private landowner, who again raised the same concerns about the identification of critical habitat on non-federal lands. The proposed Order would not protect critical habitat on non-federal land. The final action plan was posted on December 30, 2015, following public consultation.

The Department of the Environment has worked collaboratively with the Department of Fisheries and Oceans and the Nova Scotia Department of Natural Resources (NS DNR) throughout the process of developing the recovery strategy, action plan and proposed Order. In June 2015, formal letters were sent to inform the Regional Director General of the Maritimes Region of DFO and the Director of the Wildlife Division of NS DNR that the Minister would be moving forward with the proposed Order, and to invite DFO and the NS DNR to share any concerns. No concerns were received. Additionally, the province has implemented complementary habitat protection for the Roseate Tern at two sites under its jurisdiction.

The Department of the Environment also consulted First Nations via the Kwilmu’kw Maw-klusuaqn Negotiations Office (KMKNO), in accordance with the established process for Crown consultation with the Mi’kmaq (the Consultation Terms of Reference). In May 2015, letters were sent to 12 First Nations communities as well as the KMKNO. The KMKNO responded on behalf of the communities. Neither concern nor support was expressed in relation to the proposed Order; however, some concern was expressed with respect to the approach to the consultation letter and with the deadline for responses. The Indian Brook First Nation has opted not to participate in the KMKNO process; therefore, the Department of the Environment consulted with the Indian Brook First Nation directly through a letter also sent in May 2015. A response was received expressing neither concern nor support for the proposed Order; rather, it requested a meeting to discuss consultations on terrestrial species at risk broadly.

With regard to the proposed Order, the Department of the Environment consulted and collaborated with other federal departments and agencies between 2007 and 2015, including the Parks Canada Agency since 2013, given its responsibility for Sable Island. No concerns were raised.

As previously noted, it is not anticipated that there would be any impacts on the aquaculture, fishing, oil and gas, shipping or recreational sectors as a result of the proposed Order. Furthermore, the activities associated with these sectors would not be anticipated to result in a contravention of the proposed Order. No additional targeted consultation with these sectors has therefore been undertaken in regard to the proposed Order, beyond what was conducted in regard to the recovery strategy and action plan.

Rationale

The Roseate Tern is listed as an endangered species under SARA, with currently unprotected critical habitat on federal land on or in the vicinity of several islands off the coast of Nova Scotia. The proposed Order would support the survival and recovery of the Roseate Tern through the protection of this critical habitat, consistent with the overall objectives of SARA and Canada’s biodiversity commitments under the Convention. The incremental costs of the proposed Order are limited to government actions related to compliance promotion and enforcement.

The Government has consulted extensively on the recovery strategy, the amended recovery strategy, the action plan and the proposed Order for this species and has received support for this proposal. The only stakeholder likely to be affected by the protection of critical habitat on these federal lands is the Department of Fisheries and Oceans. The Department of the Environment has worked closely with the Department of Fisheries and Oceans on the development of this proposed Order, and the latter is supportive of its implementation. The Department of the Environment will continue to engage local stakeholders and First Nations on the proposed Order and more broadly on SARA.

The objective of this proposal also clearly aligns with the Government of Canada’s Federal Sustainable Development Strategy, where a main theme is the protection of nature and Canadians. Under this theme, the Government of Canada’s goal is to conserve and restore ecosystems, wildlife and habitat, and to protect Canadians. The objective of this proposal also aligns with Canada’s Biological Diversity Strategy, (see footnote 22) which recognizes the importance of protecting the habitat of species at risk as a key component of conserving biological diversity.

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a Strategic Environmental Assessment (SEA) was conducted for the proposed Order. The SEA concluded that the legal protection of the critical habitat of the Roseate Tern on federal lands would have important positive benefits for the Roseate Tern in Canada. The proposed Order would support Theme III of the Federal Sustainable Development Strategy for Canada (FSDS) [2013-2016], “Protecting Nature and Canadians,” and supports the Theme’s Goal 4, “Conserving and restoring ecosystems, wildlife and habitat, and protecting Canadians -- Resilient ecosystems with healthy wildlife populations so Canadians can enjoy benefits from natural spaces, resources and ecological services for generations to come.” In particular, the proposed Order would contribute to achieving Target 4.1, “Species at Risk: By 2020, populations of species at risk listed under federal law exhibit trends that are consistent with recovery strategies and management plans.”

Implementation, enforcement and service standards

The implementation of the proposed Order would provide protection and recourse against the destruction of Roseate Tern critical habitat as identified in the proposed Order. Although analysis has demonstrated that no current or anticipated activities are expected to result in a contravention of the proposed Order and that no permit applications are anticipated, the Department of the Environment would be responsible for issuing permits, compliance promotion and enforcement of the proposed Order.

A compliance strategy has been developed. Compliance promotion activities would have a targeted and local focus, and will include fact sheets on the SAR Public Registry that will also be distributed to stakeholders.

To support compliance with the prohibition against the destruction of critical habitat, which would be put into effect by the proposed Order, SARA provides for penalties for contraventions, including liability for costs, fines or imprisonment, alternative measures agreements, and seizure and forfeiture of things seized or of the proceeds of their disposition.

Contact

Caroline Ladanowski
Director
Wildlife Program Support Division
Canadian Wildlife Service
Department of the Environment
Gatineau, Quebec
Telephone: 819-938-4105
Fax: 819-938-4147
Email: caroline.ladanowski@canada.ca

Annex 1 -- Species description of the Roseate Tern

The Roseate Tern (Sterna dougallii) is a medium-sized, pale seabird, closely related to gulls, with a long and deeply forked tail. During breeding, adults are mostly white with a black cap, have long white tail streamers, and a white breast suffused with pale pink. The bill of the Roseate Tern is black with red appearing at the base later in the breeding season.

The Roseate Tern is found on coasts and islands along the Atlantic, Indian and Pacific oceans. Roseate Terns in Canada nest in colonies almost exclusively on small islands with low vegetation, but will occasionally nest on mainland spits. They generally select nest sites with vegetated cover but will also nest under beach debris and driftwood, and in tires and nest boxes if provided. The most important habitat feature in northeastern North America for breeding Roseate Terns appears to be the presence of breeding Common Terns, as they have not been known to nest at sites without them. Terns require colony sites that are relatively free from predators and will abandon a colony after a season of heavy predation. Roseate Terns breeding in North America are limited by the number of available predator-free (or predator-controlled) colony sites that are also in close proximity to good foraging sites. The primary factors limiting the population are predation of eggs, young and adults; low adult survival rates; and stochastic events (e.g. hurricanes).

Annex 2 -- Map

Map - Detailed information can be found in the surrounding text.

PROPOSED REGULATORY TEXT

Notice is given that the Minister of the Environment, pursuant to subsections 58(4) and (5) of the Species at Risk Act (see footnote a), proposes to make the annexed Critical Habitat of the Roseate Tern (Sterna dougallii) Order.

Interested persons may make representations concerning 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 Caroline Ladanowski, Director, Wildlife Program Support Division, Canadian Wildlife Service, Department of the Environment, Gatineau, Quebec K1A 0H3 (fax: 819-938-4147; email: caroline.ladanowski@canada.ca).

Gatineau, May 4, 2016

Catherine McKenna
Minister of the Environment

Critical Habitat of the Roseate Tern (Sterna dougallii) Order

Application

1 Subsection 58(1) of the Species at Risk Act applies to the portion of the critical habitat of the Roseate Tern (Sterna dougallii) -- which critical habitat is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry -- that is located within the following areas:

  • (a) Country Island in Nova Scotia and an area extending 200 m seaward from the mean high tide line;
  • (b) an area extending 200 m seaward from the mean high tide line of each of North Brother Island and South Brother Island in Nova Scotia; and
  • (c) any area that is within a 200 m perimeter of each polygon encompassing each individual nesting colony of any species of tern on Sable Island in Nova Scotia, excluding any area that is within the Sable Island National Park Reserve of Canada, as described in Schedule 2 of the Canada National Parks Act.

Coming Into Force

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

[22-1-o]

  • Footnote 1
    Paleczny, M., Hammill, E., Karpouzi, V., and D. Pauly. 2015. Population Trend of the World’s Monitored Seabirds, 1950-2010. PLoS ONE 10(6):e0129342. doi:10.1371/journal.pone.0129342.
  • Footnote 2
    Pimm, S. L., and P. Raven. 2000. Biodiversity: Extinction by numbers. Nature. 403:843-845.
  • Footnote 3
    A biological and physical description of the Roseate Tern is provided in Annex 1.
  • Footnote 4
    “Federal lands” are defined in SARA as follows: (a) land that belongs to Her Majesty in right of Canada, or that Her Majesty in right of Canada has the power to dispose of, and all waters on and airspace above that land; (b) the internal waters of Canada and the territorial sea of Canada; and (c) reserves and any other lands that are set apart for the use and benefit of a band under the Indian Act, and all waters on and airspace above those reserves and lands.
  • Footnote 5
    Convention on Biological Diversity. Strategic Plan 2011-2020. https://www.cbd.int/sp/ (accessed May 12, 2015).
  • Footnote 6
    Environment Canada. 1995. Canadian Biodiversity Strategy: Canada’s Response to the Convention on Biological Diversity. pp. 86. http://www.biodivcanada.ca/default.asp?lang=En&n= 560ED58E-1 (accessed May 22, 2015).
  • Footnote 7
    SARA defines an “extirpated species” as a wildlife species that no longer exists in the wild in Canada, but exists elsewhere in the wild.
  • Footnote 8
    An extinct species is a wildlife species that no longer exists.
  • Footnote 9
    SARA defines an “endangered species” as a wildlife species that is facing imminent extirpation or extinction.
  • Footnote 10
    SARA defines a “threatened species” as a wildlife species that is likely to become an endangered species if nothing is done to reverse the factors leading to its extirpation or extinction.
  • Footnote 11
    SARA defines a “species of special concern” as a wildlife species that may become a threatened or an endangered species because of a combination of biological characteristics and identified threats.
  • Footnote 12
    SARA defines the “competent minister” as follows: (a) the Minister responsible for the Parks Canada Agency with respect to individuals in or on federal lands administered by that Agency; (b) the Minister of Fisheries and Oceans with respect to aquatic species, other than individuals mentioned in paragraph (a); and (c) the Minister of the Environment with respect to all other individuals.
  • Footnote 13
    Migratory Birds Convention Act, 1994 (S.C. 1994, c. 22). http://laws-lois.justice.gc.ca/eng/acts/M-7.01/page-1.html.
  • Footnote 14
    October 21, 2014. http://www.registrelep.gc.ca/document/default_e.cfm?documentID=972 (accessed May 12, 2015).
  • Footnote 15
    Wildlife Act, R.S.N.S. 1989, Chapter 504.
  • Footnote 16
    Ibid., s. 4: 4 (1) A person must not alter a wildlife habitat in the Management Area, or any live or dead vegetation or structures in the wildlife habitat that provide food or cover for wildlife, without the written authorization of the Director. (2) The Director must not authorize a person under subsection (1) if the alteration would have an adverse effect on Roseate Tern habitat.
  • Footnote 17
    Burley, J., Fougere, L., and M. Milloy. 2007. Roseate Tern (Sterna dougallii): A Socio-Economic Evaluation of the SARA Recovery Action Plan. Environment Canada. 35 pp.
  • Footnote 18
    See for example: Jacobsen, J. B., Boiesen, J. H., Thorsen, B. J., and N. Strange. 2008. What’s in a Name? The Use of Quantitative Measures vs. ‘Iconized’ Species When Valuing Biodiversity. Environmental Resource Economics. 39:247-263; Richardson, L., and J. Loomis. 2009. The Total Economic Value of Threatened, Endangered and Rare Species: An Updated Meta-Analysis. Ecological Economics. 68:1536-1538.
  • Footnote 19
    The Brothers Islands Wildlife Management Area Regulations, N.S. Reg. 205/2007.
  • Footnote 20
    Based on Geographic Information Analysis (GIS) and the Principal Mines dataset (900A, 63rd Ed.) provided by Natural Resources Canada.
  • Footnote 21
    All monetary values reported in the analysis are in 2015 Canadian dollars. The present value is derived using a discount rate of 3% over a 10-year period of analysis, from 2017 to 2026.
  • Footnote 22
    Environment Canada. 1995. Canadian Biodiversity Strategy: Canada’s Response to the Convention on Biological Diversity. pp.86. http://www.biodivcanada.ca/default.asp?lang=En&n= 560ED58E-1 (accessed May 22, 2015).
  • Footnote a
    S.C. 2002, c. 29