FOPO Committee Report

A significant portion of the Committee’s study was devoted to Marine Protected Areas. Section 35 of the Act gives the Minister of Fisheries and Oceans the authority to create Marine Protected Areas. MPAs are intended to be a tool for the protection and conservation of the marine environment in areas of the ocean that are considered to require special attention. An area can be designated as an MPA for a variety of reasons that may include the conservation and protection of:

• commercial and non-commercial fisheries resources;
• endangered or threatened marine species and their habitat;
• unique marine habitats; and
• marine areas of high biodiversity or biological reproductivity.

Although witnesses supported the concept of MPAs, they also raised a number of concerns relating to slow progress in creating MPAs, process, zoning, and clarification of terms.

At the time the Committee’s hearings began, five pilot MPA projects had been initiated: Race Rocks, located close to Victoria, British Columbia; Gabriola Passage, located in the Gulf Islands of British Columbia; Bowie Seamount, situated approximately 180 kilometres west of the Queen Charlotte Islands; the Endeavour Hot Vents, about 250 kilometres southwest of Vancouver; and Sable Gully, located about 200 kilometres off the eastern shore of Nova Scotia. Several additional locations have now been designated "areas of interest" (AOI). At the time of the Committee’s hearings, however, no site had reached full status as a Marine Protected Area.

A number of witnesses expressed concern over the apparent slow progress in the creation of MPAs. A typical comment was that if the designation of MPAs continued to proceed at the current pace, the program would do little to protect threatened and endangered species and their habitats.

The B.C. Chapter of the Canadian Parks and Wilderness Society (CPAWS), for example, commented that momentum had slowed over the previous year. They pointed
to the fact that in August 1998, federal and provincial agencies had released a joint Marine Protected Area Strategy, outlining a common vision and objectives for MPAs on the B.C. coast; however, a revised strategy that considered extensive public input had still not emerged. They also complained that the strategy lacked clear action plans and timelines for implementing a representative system of Marine Protected Areas by the year 2010, which had been the stated goal. Other witnesses also supported the need for a timeframe for the designation of MPAs.

The CPAWS also commented that although the public process on the Race Rocks pilot MPA site appeared to be working well, progress on the other B.C. sites had been lagging. They felt that DFO needed to increase the effort to demonstrate its commitment to the program and to ensure public confidence that the program would be maintained.

There are three complementary federal programs, each with different objectives, whose purpose is to establish protected areas in Canadian waters:

• Marine Protected Areas (see above).
• Canada’s National Marine Conservation Area program ― which is under Parks Canada ― that still requires the passage of Bill C-10, the Canada National Marine Conservation Areas Act. This Act will establish a system of large, multiple-use marine conservation areas which, when completed, will be representative of Canada’s 29 marine regions.
• The Canadian Wildlife Service, under the Canada Wildlife Act and the Migratory Birds Convention Act conserves Canada’s major marine and nearshore areas for wildlife, research, conservation and public education by setting up migratory bird sanctuaries, national wildlife areas and marine wildlife areas (protected areas that extend beyond 12 miles offshore). (To date, no separate marine wildlife areas have been established.)

The Committee heard differing views on the multiplicity of types of protected marine areas. The CPAWS, on the one hand, emphasized the need for a collection of federal protected marine area designations, each with complementary functions and purposes. The CPAWS contended that the three distinct programs could contribute significantly to the protection of marine ecosystems in Canada without unnecessary duplication or waste of scarce public resources. According to the CPAWS, not only had federal departments been working well together to achieve the common objective of establishing a network of protected marine areas while striving to avoid overlap and duplication, there had also been an unparalleled level of cooperation between federal and provincial governments. The CPAWS urged the Committee to support the passage of Bill C-10, the Canada National Marine Conservation Areas Act.

Other witnesses felt, however, that the variety of protected marine area designations caused confusion over the responsibilities of the various agencies and their planning processes for the marine environment, resulting in overlap and duplication of effort. The Committee was also told that, under Bill C-5, the Species at Risk Act, the prospect of "residences" of threatened species being set aside by Environment Canada could potentially add yet another category of protected area, adding further confusion. As a result, some witnesses recommended that the stewardship and sustainable management of the marine environment in Canada should be the responsibility of a single agency.

The Committee agrees; it finds any derogation of the authority of the Minister of Fisheries and Oceans a matter of concern. It therefore recommends:

Although reports of intergovernmental and interagency cooperation on the West Coast were generally positive, witnesses in Nova Scotia complained that there had been little cooperation and collaboration amongst government agencies on the East Coast to further MPA development and that DFO had yet to recognize the potential for non-governmental organization (NGO) and community involvement in MPA development. It was suggested that DFO should develop an MPA strategy and an Integrated Management plan for MPAs in the Atlantic Region.

The Committee was also informed that the processes required for the legal protection of sites under the Oceans Act had been a source of frustration for academics and NGOs. It was suggested that DFO should develop a guide to MPA designation for NGOs and stakeholders interested in the MPA process. However, the Committee notes that the Department of Fisheries and Oceans published two documents, in March 1999, that seem to largely fulfil this role: the Marine Protected Areas Policy, and the National Framework for Establishing and Managing Marine Protected Areas. The Framework also indicates that the MPA program provides an opportunity for coastal communities as well as non-government conservation organizations to be intimately involved in the MPA process from nomination and co-management of sites to consultation activities and public awareness programs.

Another recommendation to the Committee was that DFO should assemble a list of suggested MPA sites to be made available to the public so that groups could help assemble information and facilitate the development of MPAs. The Committee agrees that this would be a valuable tool that could be readily provided through DFO’s Oceans Program Activity Tracking System (OPAT) Web site, which provides detailed information about Integrated Management projects, Marine Protected Areas, and Marine Environmental Quality Projects. The Committee recommends:

Some witnesses also indicated a need for more collaboration in research between DFO and industry, NGOs, academics, Aboriginal groups, communities and the fishing groups addressed in subsection 33(2) and recommended that the Minister be required to consult with these specified groups to obtain additional information on ocean environments.

Some of the Committee’s witnesses advocated MPAs as strictly "no-take zones," and recommended additional measures such as protection of the benthos, and the surrounding of MPAs with buffer zones in order to ensure their full effectiveness. The CPAWS advocated minimum protection standards for all Marine Protected Areas. They noted that a federal-provincial initiative in B.C. had identified the need for minimum protections standards, including a prohibition on non-renewable resource exploration and development, and dredging and dumping in Marine Protected Areas. In the CPAWS view, bottom trawling and fin-fish aquaculture were also incompatible with the conservation objectives of Marine Protected Areas and should be excluded from MPAs.

The CPAWS recommended that DFO policies, both regionally and nationally, explicitly acknowledge and implement harvest refuge, or no-take areas, as part of the overall network of marine protected areas to be established in Canada’s oceans. They pointed to the fact that marine protected areas are increasingly being used around the world as a tool to conserve marine biodiversity and that marine scientists have been stressing the importance of including areas closed to all harvesting in a network of marine protected areas.

The British Columbia Seafood Alliance (BCSA), on the other hand, advocated explicit recognition of the importance of promoting and enhancing seafood production in the development of MPAs. In this approach, MPAs would not only be part of an overall strategy to conserve marine ecosystems but would also be part of a strategy to promote sustainable seafood harvesting and farming opportunities. Consequently, in the view of the BCSA, MPAs (and marine conservation areas) should provide for a wide diversity of uses and zoning designations and should not necessarily be "no-take zones," which ought to be justified with scientifically defensible criteria over and above DFO’s regular management measures.

The Committee notes that the National Framework for Establishing and Managing Marine Protected Areas already addresses many of these issues. The Framework recognizes that the Oceans Act allows for zones defining different levels of protection to be established within MPAs such that an MPA management plan may specify which activities will be permitted or prohibited within each zone. These may include strict "no take," or even "no activity" areas. The Framework also describes the use of buffer zones around MPAs to protect them from unnecessary encroachment of human activities in order to conserve and protect the marine resources and habitats within the MPA.

The BCSA also stressed that, even though marine resources are considered public property, the seafood industry should be compensated for any economic losses stemming from exclusion of licensed harvesting or tenured seafood production from no-take zones, in the same way that private landowners or crown tenure holders are compensated in the case of the creation of a terrestrial park. The Area 19 Snow Crab Fishermen’s Association, in a similar vein, recommended amending subsection 35(3) of the Act Regulations regarding MPAs, to recognize the effects of potential dislocation of fishermen on designating an area as a Marine Protected Area and to provide for solicitation of input from fishermen who might be affected.

The Area 19 Snow Crab Fishermen’s Association recommended adding a new subsection 35(3) to read:

Subsection 35(3) would become 35(4) and would be amended to read:

The Framework recognizes that existing or proposed activities may conflict with the conservation objectives of an MPA. When this occurs, the management plan may allow for the activity to be phased out or, in cases where users have rights or tenures permitting them to use the resources of the area, agreements can be sought with the operator and responsible authority for protection of the area’s resources. The Framework states that MPA management plans can provide latitude for applying tools according to local conditions, in cooperation with resource users.

Subsection 36(1) of the Oceans Act allows the Governor in Council, on the Minister’s recommendation, to create an interim Marine Protected Area in an emergency situation. However, orders issued under this section are limited to the extent that they are consistent with existing land claims agreements. The Area 19 Snow Crab Fishermen’s Association argued that land claim agreements should not preclude the Minister from doing whatever is necessary to protect the marine environment and recommended amending section 36 by deleting the phrase "to the extent that such orders are not inconsistent with a land claims agreement that has been given effect and has been ratified or approved by an Act of Parliament."

It should be noted, however, that subsection 36(1) is worded as it is as a result of concerns raised by the Nunavut Wildlife Management Board, Nunavut Tunngavik Incorporated and the Inuit Tapirisat of Canada when Bill C-98 was before the Fisheries and Oceans Committee. The wording was added to provide consistency with subsections 6(1) and 6(2) of the Nunavut Land Claims Agreement Act.

In view of the long timeframe needed to establish MPAs, some witnesses advocated the use of interim protection measures for areas of interest (AOI). The Committee notes that the National Framework for Establishing and Managing Marine Protected Areas acknowledges that designation of a site as an AOI does not confer immediate protection. The Committee believes that such an amendment is unnecessary as the Framework acknowledges that governments already have at their disposal various measures for protecting marine resources and habitats on an interim or longer-term basis.

Some witnesses commented that the Oceans Act uses terminology that sounds good in theory but that needs to be clearly defined and applied in practice to be effective. They recommended clarifying the terms used in subsection 35(1), which lists the reasons for designating MPAs, including: "endangered or threatened marine species and their habitats," "unique habitats," and "high biodiversity" or "biological productivity." They also recommended that the term "precautionary approach" be more clearly defined in the Oceans Act and that the Department of Fisheries and Oceans determine how and when the precautionary approach should be applied. Finally, they suggested that the term "ecosystem approach," used in the preamble of the Oceans Act, be defined in order to clarify how the Minister intends to protect ecosystems under the Oceans Act. The Committee agrees and recommends:

It is assumed in sections 31 and 32 of the Oceans Act, that the Minister of Fisheries and Oceans will collaborate with provincial and territorial governments, Aboriginal organizations and coastal communities to lead and facilitate Integrated Management. As one of the underlying principles of the Oceans Management Strategy, Integrated Management is seen as a decision-making process through which stakeholders and authorities can work together toward common goals, plans and policies affecting a specific issue or geographic area. Integrated Management is based on the precepts that stakeholders, including federal departments, should not implement plans related to oceans without seeking the collaboration of other interested parties, that conflicts should be addressed at the planning stage, and that long-term management plans will be based on regional and national goals.

Currently, 18 Integrated Management pilot initiatives are taking place in all three of Canada’s ocean regions, including: the Eastern Scotian Shelf Integrated Management Project; the St. Lawrence Upper North Shore Integrated Coastal Zone Management Project; the Southern Beaufort Marine Coastline project; and the Georgia Basin Ecosystem Initiative. The Committee was informed that regionally based programs are being used to implement the Oceans Act and to gain experience under the "umbrella" of a national Integrated Management framework. The philosophy is that the concurrent development of a national policy framework with regional, sub-regional and local programs and initiatives by DFO regions reinforces the pragmatic approach of "learning by doing" under the Oceans Act.

The Sierra Club of B.C. pointed out that section 31, Integrated Management Plans, makes no references to plans to address: destruction, alteration or degradation of estuarine, coastal or marine habitat; declines or changes in populations of ocean fish, shellfish, invertebrates, marine mammals or plants; introduction of exotic species; impact of population growth; freshwater diversions and alteration; toxic contamination; oil and chemical spills; or land-based pollution. The Committee agrees that these are worthwhile objectives for Integrated Management; however, it notes that, rather than addressing specific activities, this section of the Act authorizes the Minister to lead and facilitate the implementation of plans for Integrated Management.

The Sierra Club of B.C. also recommended: strengthening subsection 32(d) to allow monitoring and collection of data to help understand the oceans and their living resources and ecosystems; and making marine quality guidelines, objectives and criteria respecting estuaries, coastal waters and marine waters mandatory. The Committee notes that paragraph 33(1)(c) already requires the Minister to gather, compile, analyze, coordinate and disseminate information. In addition, subsection 42(a) authorizes the Minister, in exercising the powers and performing the duties and functions assigned by paragraph 4(1)(c) of the Department of Fisheries and Oceans Act, to collect data for the purpose of understanding oceans and their living resources and ecosystems.

The Sierra Club of B.C. further recommended to the Committee that subsection 33(1), Cooperation and Agreements, be amended to provide for public consultation. However, subsection 33(2), Consultation, provides that the Minister, in exercising the powers and performing the duties and functions mentioned in Part II, may consult with other ministers, boards and agencies of the Government of Canada, with provincial and territorial governments and with affected Aboriginal organizations, coastal communities and other persons and bodies, including those bodies established under land claims agreements. The Committee, however, recommends:

In the Committee’s view, one of the most serious issues that came to light during the review of the Oceans Act concerns the way in which oil and gas exploration licences have been granted off the coast of Cape Breton by the Canada-Nova Scotia Offshore Petroleum Board (CNSOPB). The granting of these licences suggests that there may be a lack of strategic direction with respect to the Oceans Management Strategy.

In December 1998, the Board issued Call For Bids, No. NS98-2, for new exploration licences for 20 "parcels" in the Nova Scotia offshore area. Bids were received for 19 of the parcels. One of the successful bids was on "Land Parcel No. 1," which comprises a substantial area of the southern Gulf of St. Lawrence off the west coast of Cape Breton.

The news that this region of the southern Gulf was to be opened up for oil and gas exploration raised alarm among fishing organizations and communities in the region. The southern Gulf of St. Lawrence is one of the most productive fishing areas in Canadian waters and the area on which Parcel 1 lies includes important spawning habitat for many of the species that are found in the southern Gulf, and lies along the migratory routes of many of the southern Gulf species. The southern Gulf is also one of the most productive areas in the world for lobster, the mainstay of the Gulf fishery.

In response to growing public concern, two ministers ― the Minister of Natural Resources Canada, Ralph Goodale, and the Minister Responsible for the Petroleum Directorate and the Accord Implementation Act, Government of Nova Scotia, Gordon Balser ― issued a joint directive on 20 October 2000. The directive ordered the Canada-Nova Scotia Offshore Petroleum Board to conduct a public review of potential oil and gas exploration and drilling activities within Exploration Licences 2364, 2365 and 2368. Exploration Licence 2368 corresponds to NS98-2 Parcel 1. The other two parcels are located in the Sidney Bight area. Unlike previous exploration licences, which had all been issued for offshore parcels, the three exploration licences slated for public review border on the coastline of Cape Breton. Parcel 1 is also adjacent to the waters off Prince Edward Island.

Although the Committee supports the public review commission, it has some misgivings over limitations in both its mandate and in the composition of its staff. The Committee notes that the Commissioner is empowered to conduct a public review on the effects of potential oil and gas exploration and drilling activities within the licence areas with regard to:

• socio-economic impacts;
• effects on the ecosystem; and
• mitigation of impacts.

The Committee believes that the Commissioner’s terms of reference should have been broader to include an explicit mandate to make recommendations as to whether the areas under consideration should be placed under a moratorium. Because the protection of the biodiversity and productivity of this region of the southern Gulf is at the core of the Commission’s raison d’être, the Committee feels that it would have been preferable if the Commission staff had included someone representative of the fishing community in the area.

The Committee has no disagreement with the Canada-Nova Scotia Offshore Petroleum Board, which has been acting according to its mandate. However, according to the Oceans Act, the Minister of Fisheries and Oceans is expected to assume the lead role in Integrated Management; yet, in this case, the Department of Fisheries and Oceans appears to have been relegated to a mere advisory role.

The underlying concept of Integrated Management is that stakeholders, including federal departments, should not implement plans related to oceans without seeking the collaboration of other interested parties and that conflicts should be addressed at the planning stage, neither of which appears to have happened in this case. The Committee agrees with witnesses who were highly critical of a process that did not consult with coastal communities and fishermen in order to identify sensitive marine areas before putting them up for bid. Members of the Committee have concluded that the fishing community has little confidence that their interests and the environment on which they depend for their livelihood will be sufficiently protected by this process.

The Department of Fisheries and Oceans has a mandate to protect fish and their habitat under the Fisheries Act. Integrated Management is one of the three key principles on which the Oceans Management Strategy is built, the other two being the precautionary approach and sustainable development. It is not evident in this case that these principles are guiding the decisions being made.

The Committee shares the concerns of many of our witnesses that the effects of seismic testing, particularly on the larval stages and juveniles of many species, is not sufficiently well documented to provide assurance that damage to important stocks will not occur as a result of oil and gas exploration. The Committee is also concerned about the impacts from long-term discharge of effluent from possible oil and gas exploitation, should economic reserves be found in this area. The shallow waters of the Gulf are virtually landlocked; they are icebound in winter and they have limited tidal currents, making them especially vulnerable to contamination.

Fishermen have been fishing this region of the Gulf for hundreds of years and, with good management, fishing can be sustainable indefinitely into the future. Oil and gas development would undoubtedly provide valuable economic benefits, but at best only for a few decades. The Committee feels that it may be prudent to consider placing this region under an oil and gas exploration moratorium similar to that on the Georges Bank until the fishermen and their communities can be assured that the risks of exploration and development are minimal. The Committee believes that, in the long term, no great harm would result from a moratorium as any oil and gas reserves are only likely to increase in value.

The Committee notes that the Fisheries Resource Conservation Council (FRCC) has also registered its concern over oil and gas exploration in the Gulf of St. Lawrence and has recommended:

Mr. Jim Dickey, Chief Executive Officer of the Canada-Nova Scotia Offshore Petroleum Board, had this to say:

The Committee agrees.

The Committee shares the concerns of witnesses and the FRCC, and questions whether this area of the Gulf of St. Lawrence should have been opened up to oil and gas exploration without a prior full environmental assessment under the Canadian Environmental Assessment Act (CEAA).

The Committee recommends:

It is the Committee’s understanding that a vacancy currently exists on the Board of the Canada-Nova Scotia Offshore Petroleum Board for an appointee from the Government of Canada. The Committee therefore recommends:

The Oceans Act clearly states that the Minister of Fisheries and Oceans is expected to lead and facilitate the development of an integrated oceans management strategy. However, it is also apparent that responsibility for the management of Canada’s oceans is becoming increasingly fragmented between different ministers. The Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, for example, designates the Minister of Natural Resources as the responsible federal minister and the proposed Canada National Marine Conservation Areas Act would establish the Minister of Canadian Heritage as the minister responsible for that Act. The Committee is disturbed that such divisions of responsibility represent an erosion of the authority of the Minister of Fisheries and Oceans, which in turn undermines the Minister’s ability to lead a coordinated and comprehensive oceans management strategy.

The Committee therefore recommends: