Vol. 140, No. 18 -- September 6, 2006

Registration
SOR/2006-190 August 15, 2006

SPECIES AT RISK ACT

Exemption Order for Certain Licences, Authorizations and Documents (White Sturgeon)

P.C. 2006-770 August 15, 2006

Her Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to section 76 of the Species at Risk Act (see footnote a), hereby makes the Exemption Order for Certain Licences, Authorizations and Documents (White Sturgeon).

EXEMPTION ORDER FOR CERTAIN LICENCES, AUTHORIZATIONS AND DOCUMENTS (WHITE STURGEON)

EXEMPTION

1. Sections 32, 33, 36, 58, 60 and 61 of the Species at Risk Act do not apply to the following licences, authorizations and documents, for a period of one year from the date white sturgeon is added to the List of Wildlife Species at Risk set out in Schedule 1 to that Act:

(a) with respect to the Upper Fraser River population of white sturgeon,

(i) the communal licences to fish salmon for food, social and ceremonial purposes issued under section 4 of the Aboriginal Communal Fishing Licences Regulations, and

(ii) the British Columbia Sport Fishing Regulations, 1996 and the Fishery (General) Regulations, to the extent that they authorize recreational angling activities;

(b) with respect to the Nechako River population of white sturgeon,

(i) the communal licences to fish salmon for food, social and ceremonial purposes issued under section 4 of the Aboriginal Communal Fishing Licences Regulations, and

(ii) the British Columbia Sport Fishing Regulations, 1996 and the Fishery (General) Regulations, to the extent that they authorize recreational angling activities;

(c) with respect to the Upper Columbia River population of white sturgeon,

(i) the British Columbia Sport Fishing Regulations, 1996 and the Fishery (General) Regulations, to the extent that they authorize recreational angling activities,

(ii) the authorizations to destroy fish by any means other than fishing issued by the Minister of Fisheries and Oceans under section 32 of the Fisheries Act, and

(iii) the authorizations to disrupt, destroy or harmfully alter fish habitat issued by the Minister of Fisheries and Oceans under subsection 35(2) of the Fisheries Act; and

(d) with respect to the Kootenay River population of white sturgeon, the British Columbia Sport Fishing Regulations, 1996 and the Fishery (General) Regulations, to the extent that they authorize recreational angling activities.

COMING INTO FORCE

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

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Description

The Governor in Council (GiC), on the recommendation of the Minister of Fisheries and Oceans as competent minister for aquatic species (other than individuals on federal lands administered by the Parks Canada Agency) under the Species at Risk Act (SARA), makes an Order under section 76 of SARA providing that prohibitions under SARA do not apply to existing licences, authorizations and documents issued or made under federal legislation that currently authorize activities affecting the Kootenay River, Nechako River, Upper Columbia River, and Upper Fraser River populations of white sturgeon for one year from the time of their addition to Schedule 1, the List of Wildlife Species at Risk under SARA. These four populations of white sturgeon are being added, by the GiC, to Schedule 1 based on the recommendation of the Minister of the Environment.

SARA received Royal Assent in December 2002, after extensive consultation with provincial and territorial governments, Aboriginal peoples, wildlife management boards, environmental organizations, industry and the general public. 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 (e.g. the Canada National Parks Act, the Canada Wildlife Act, the Fisheries Act, the Oceans Act, the Migratory Birds Convention Act, 1994 and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act).

The general prohibitions under SARA include killing, harming, harassing, capturing, or taking an individual of a wildlife species listed as extirpated, endangered or threatened; possessing, collecting, buying, selling or trading an individual of such wildlife species, or any part or derivative thereof (section 32); damaging or destroying the residence of one or more individuals of a wildlife species listed as endangered or threatened, or listed as extirpated if a recovery strategy has recommended the reintroduction of the species into the wild in Canada (section 33); destroying any part of the critical habitat of a species listed as endangered or threatened or listed as extirpated if a recovery strategy has recommended the reintroduction of the species into the wild in Canada where that habitat is on federal land, in the exclusive economic zone of Canada or on the continental shelf of Canada, or where the listed species is an aquatic species or a migratory bird species protected by the Migratory Birds Convention Act, 1994 (section 58 of SARA). These prohibitions apply to all aquatic species listed as extirpated, endangered or threatened wherever they are found in Canada.

The SARA authorizes the GiC to make an order exempting activities authorized under another Act of Parliament before a species was listed from the prohibitions under SARA for a period of up to one year from the date of listing a species. An order under section 76 will provide an opportunity to allow ongoing activities to become compliant with the provisions of SARA by, for example, using the exemption mechanism provided for in subsection 83(4) of SARA that consists of including the activities in an approved recovery strategy or action plan and authorizing them under an Act of Parliament, or by halting the activities. An order under section 76 may also eliminate the need for issuing SARA permits during, for example, an ongoing fishing season.

The GiC, on the recommendation of the Minister of Fisheries and Oceans, is making an order under section 76 of SARA to exempt activities authorized under the Fisheries Act from the prohibitions of SARA for one year from listing Kootenay River, Nechako River, Upper Columbia River, and Upper Fraser River populations of white sturgeon. White sturgeon is currently harvested as bycatch in aboriginal salmon food, social, and ceremonial fisheries, and a recreational walleye fishery. White sturgeon and habitat for white sturgeon may also be affected by hydro operations and other industrial activities such as pulp mills, saw mills, smelters, and other in-stream activities.

Alternatives

Once listed under SARA, the general prohibition provisions that prohibit activities that affect listed species apply unless mechanisms under SARA are used to provide an exemption from the provisions. A section 76 order under SARA is one mechanism that may be sought to delay the prohibitions from applying to existing authorized activities for a period of up to one year from the time the species is listed.

One alternative to the section 76 order would be to use other mechanisms under SARA to exempt activities from the provisions of SARA. For example, Aboriginal food, social, or ceremonial salmon fisheries, recreational fisheries for other species, and hydro or other water use activities may impact white sturgeon. Issuing permits under section 73 of SARA or authorizing activities within a SARA compliant recovery strategy and under an Act of Parliament could provide an exemption for those activities from SARA prohibitions.

However, there are difficulties with applying these mechanisms for these four white sturgeon populations. SARA permits can be issued to authorize activities that are scientific research, activities that benefit the species, or activities where affecting the listed species is incidental to carrying out the activity. However, issuing SARA permits for fishing activities or other industrial activities that impact one or more of the four populations of white sturgeon would incur an additional cost that is unnecessary given this measure would provide no additional benefit to the existing measures under the Fisheries Act. Using the subsection 83(4) exemption mechanism in SARA will not be possible in this case since the white sturgeon recovery strategy will not be completed prior to when the populations are listed.

A final alternative would have been to not list the four populations of white sturgeon under SARA. This would mean that no SARA mechanism to exempt activities, including the use of a section 76 order, would be necessary since the provisions of SARA would not apply. Although the four populations would still be protected and managed under the authority of the Fisheries Act and provincial legislation, they would not benefit from the protection and recovery measures afforded under SARA.

Benefits and Costs

The order under section 76 of SARA for the four populations of white sturgeon will provide a financial benefit. Without this order, additional SARA permits would need to be issued that would create significant administrative costs to government given the large number of existing recreational fishing licences, aboriginal food, social, and ceremonial licences, and current authorizations for other activities. The alternative to the SARA section 76 order or issuing SARA permits is unnecessarily halting ongoing fishing and other activities.

The order under section 76 of SARA will not create any new financial or environmental costs with respect to the management of white sturgeon. During the period of the exemption order, white sturgeon will continue to be managed under the Fisheries Act and provincial legislation in collaboration with the government of British Columbia, Aboriginal Organizations, industry, and conservation organizations. Once the section 76 order has expired, the four listed populations of white sturgeon will also benefit from the protection provisions under SARA.

Consultation

The intent to apply for this Order under section 76 of SARA was pre-published in the Canada Gazette, Part I, on June 10, 2006 as part of the proposed order to list 42 species under SARA. During the public comment period, BC Hydro supported the section 76 order delaying prohibitions for one year in order for recovery strategy development to be completed and permitting arrangements concluded. No other comments were received during the comment period with respect to the order under section 76 of SARA.

Strategic Environmental Assessment

A decision to list the Kootenay River, Nechako River, Upper Columbia River, and Upper Fraser River populations of white sturgeon assessed as endangered by COSEWIC will ensure that they receive the full benefits of the protection and recovery measures established in SARA. At the same time, applying the section 76 order to delay the SARA prohibitions for one year with respect to activities affecting one or more of these four populations will mean that the requirements under SARA will be implemented in an orderly fashion with limited disruption to ongoing management measures.

The decision to delay SARA prohibitions will not negatively impact the protection of the four white sturgeon populations, as they will continue to be conserved and protected under other federal legislation. Fishing activities that may impact white sturgeon and authorizations to harmfully alter, disrupt, or destroy fish habitat are authorized under the Fisheries Act. Aboriginal food, social, and ceremonial salmon fisheries are managed through the Aboriginal Fisheries Strategy, Integrated Fisheries Management Plans and communal licences issued under the Aboriginal Communal Fishing Licences Regulations. Recreational fisheries in non-tidal waters are managed through the British Columbia Sport Fishing Regulations, 1996 and the Fishery (General) Regulations made under the Fisheries Act and provincial legislation. The Department of Fisheries and Oceans and the Province will continue to work with Aboriginal, fishing, conservation and other organizations during the exemption period to ensure the continued protection and recovery of these species.

Under SARA, a recovery strategy must be developed within one year after a species is listed as endangered. The current section 76 order does not delay the requirements for developing a recovery strategy under SARA. For the four white sturgeon populations, which are being listed as endangered, a recovery strategy is currently being drafted and will be completed within the next year.

Compliance and Enforcement

While the SARA prohibitions will not apply to white sturgeon for the first year after listing, the species will remain protected under the authority of the Fisheries Act. The Fisheries Act prescribes penalties for contraventions, which include jail terms of up to 3 years and/or fines up to $1,000,000. In addition, the courts may order the forfeiture of fishing gear, catch, vehicles or other equipment used in the commission of an offence. The courts may also impose licence suspensions and cancellations.

With respect to current management measures for white sturgeon, all retention white sturgeon fisheries on the Kootenay, Upper Columbia, Nechako and Upper Fraser rivers have been closed. The protection of white sturgeon has also been a primary consideration in regulatory reviews of dam construction, upgrade and expansion projects in the Columbia River.

Following the expiry of the section 76 order, white sturgeon will also be protected under SARA. 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.

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 the required protection.

SARA provides for penalties for contraventions to the Act, including fines or imprisonment, for the use of alternative measures and for seizure and forfeiture of any thing by means of or in relation to which SARA provisions have been contravened. SARA also provides qualified officers designated under the Act with inspections and search and seizure powers. Under the penalty provisions of SARA, a corporation, other than a non-profit 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, other than a non-profit 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.

In addition to any requirements under federal and provincial legislation, certain activities affecting a listed species will require permits under SARA. Such permits can be considered only for scientific research relating to the conservation of a species that is conducted by qualified persons, for activities that benefit a listed species or are required to enhance its chances of survival in the wild, or when affecting the species is incidental to the carrying out of the activity affecting a listed species. These exceptions can be made only if the competent minister is of the opinion 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 on the species, and when the survival or recovery of the species will not be jeopardized by the activity.

Contact

Peter Ferguson
Regulatory Analyst
Legislative and Regulatory Affairs
Fisheries and Oceans Canada
Ottawa, Ontario
K1A 0E6
E-mail: sararegistry@ec.gc.ca

Footnote a

S.C. 2002, c. 29