North Atlantic right whale: critical habitat protection statement

This is a statement explaining how the critical habitat of the North Atlantic Right whale (Eubalaena glacialis) is legally protected. This statement is pursuant to, and in compliance with, Section 58 (5) of the Species at Risk Act (SARA), S. C. 2002, c. 29. Critical habitat for the North Atlantic Right whale was identified in the Final Recovery Strategy for this species, posted in June 2009 on the SARA Public Registry. Please refer to the Recovery Strategy for details about the identified critical habitat.

Human activities which are likely to result in the destruction of critical habitat for this species, as identified in the Final Recovery Strategy, and the federal legislation which would be used to provide protection against such destruction, are listed below:

Threats to Critical Habitat

• 1.0 Large scale industrial development such as oil and gas development;
• 2.0 Energy development using tidal or current sources;
• 3.0 Ocean Dumping and release of pollutants into the marine environment; and
• 4.0 Invasive Species

1.0 Large scale industrial development such as oil and gas development

Large scale industrial development such as oil and gas development can result in the production of intense noise and/or contamination and/or persistent alteration of oceanographic and bathymetric features of habitat that lead to prey aggregation or persistent exclusion of whales from access to critical habitat.

Legal Protection against these threats is provided by the following Acts of Parliament:

• Section 35 of the Fisheries Act prohibits the carrying on of any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat; authorizations may be issued by the Minister of Fisheries and Oceans Canada specifying authorized means or conditions by or under which an alteration, disruption or destruction of fish habitat may occur, but are contingent upon the conduct of an environmental assessment;
  
• Section 36(3) of the Fisheries Act prohibits the deposition of deleterious substances in water frequented by fish and thus offers protection against water contamination;
  
• Section 32 of the Species at Risk Act offers additional protection to critical habitat. It prohibits the killing, harming or harassing individuals of listed species. Threats such as persistent noise or contamination can affect both individuals and their critical habitat. Thus critical habitat can be protected through the prohibitions set out in s. 32;
  
• The Canada-Nova Scotia Offshore Accord Implementation Act prohibits the carrying on of a work or activity related to the exploration or drilling for the production, conservation, processing or transportation of petroleum in the offshore area unless the person is the holder of an authorization issued under paragraph 142(1)(b), which is contingent upon the conduct of an environmental assessment; and
  
• Section 31 of the National Energy Board Act prohibits the construction of a pipeline by a company unless a certificate is issued under s. 52 or the project is exempted from this requirement by order under s. 58, both of which are subject to the conduct of an environmental assessment.

2.0 Energy development using tidal or current sources

Energy Development using tidal or current sources could result in the installation of fixed structures that could cause persistent alteration of oceanographic and bathymetric features of habitat that lead to prey aggregation or persistent exclusion of whales from access to critical habitat.

Legal Protection against this threat is provided by the following Acts of Parliament:

• Section 35 of the Fisheries Act prohibits the carrying on of any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat; authorizations may be issued by the Minister of Fisheries and Oceans specifying authorized means or conditions by or under which an alteration, disruption or destruction of fish habitat may occur but are contingent upon the conduct of an environmental assessment.

3.0 Ocean Dumping and release of pollutants into the marine environment

Ocean dumping and vessel discharge can result in the release of pollutants/deleterious substances into the marine environment and consequent contamination of critical habitat.

Legal Protection against this threat is provided by the following Acts of Parliament:

• Contamination from vessel discharges is controlled through regulations passed pursuant to the Canada Shipping Act. The Ballast Water Control and Management Regulations (SOR/2006-129) and the Regulations for the Prevention of Pollution from Ships and for Dangerous Chemicals (SOR/2007-86) both prohibit discharges that could result in the contamination of critical habitat;
  
• Section 36(3) of the Fisheries Act prohibits the deposition of deleterious substances in water frequented by fish and thus offers protection against water contamination; and
  
• Contamination from ocean dumping is controlled by Division 3 of Part 7 of the Canadian Environmental Protection Act. Permits issued by the Minister of the Environment are required for all disposal at sea activities, but these permits are contingent upon the conduct of an environmental assessment. The permits must contain any conditions that the Minister considers necessary for the protection of marine life or for any legitimate uses of the sea, including the timing, location, materials and methods to be employed for the activity.

4.0 Aquatic invasive species

Aquatic invasive species are identified as potential threats to critical habitat. Invasive species can impact individuals or populations through consuming or displacing their food supply, reducing their fitness. It is important that the legislation regarding invasive species is complemented by education and awareness programs such as those outlined in the 2004 Invasive Alien Species Strategy for Canada to further prevent the introduction and spread of invasive aquatic species.

Legal Protection against this threat is provided by the following regulations:

• The Ballast Water Control and Management Regulations (SOR/2006-129), made under the Canada Shipping Act, provide legal protection against the threat of aquatic invasive species destroying right whale critical habitat; and
  
• Section 55 (1) of the Fisheries (General) Regulations (Release live fish into fish habitat or to transfer live fish to a fish rearing facility), made under the Fisheries Act, provides legal protection against the threat of aquatic invasive species destroying right whale critical habitat.

Fisheries and Oceans Canada will continue to support and implement activities directed towards informing and sensitising Canadians on the threats to North Atlantic Right whale critical habitat, and to individuals and populations to aid in the protection and recovery of the species. As additional knowledge is gained regarding potential threats and effectiveness of protection measures, additional management and mitigation measures will be developed and implemented as appropriate.

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