CONSOLIDATION

List of Wildlife Species at Risk (Decisions Not to Add Certain Species) Order

SI/2013-27

Current to June 20, 2022



OFFICIAL STATUS OF CONSOLIDATIONS Subsections 31(1) and (3) of the Legislation Revision and Consolidation Act, in force on June 1, 2009, provide as follows: Published consolidation is evidence

31 (1) Every copy of a consolidated statute or consolidated regulation published by the Minister under this Act in either print or electronic form is evidence of that statute or regulation and of its contents and every copy purporting to be published by the Minister is deemed to be so published, unless the contrary is shown. ... Inconsistencies in regulations

(3) In the event of an inconsistency between a consolidated regulation published by the Minister under this Act and the original regulation or a subsequent amendment as registered by the Clerk of the Privy Council under the Statutory Instruments Act, the original regulation or amendment prevails to the extent of the inconsistency.

LAYOUT The notes that appeared in the left or right margins are now in boldface text directly above the provisions to which they relate. They form no part of the enactment, but are inserted for convenience of reference only.

NOTE This consolidation is current to June 20, 2022. Any amendments that were not in force as of June 20, 2022 are set out at the end of this document under the heading “Amendments Not in Force”.

Current to June 20, 2022

TABLE OF PROVISIONS List of Wildlife Species at Risk (Decisions Not to Add Certain Species) Order

ANNEX

Statement Setting Out the Reasons for the Decisions Not To Add the Beluga Whale (Eastern High Arctic and Baffin Bay Population), Striped Bass (Southern Gulf of St. Lawrence Population) and Cusk to the List of Wildlife Species at Risk

Current to June 20, 2022

ii

Registration SI/2013-27 March 27, 2013

SPECIES AT RISK ACT List of Wildlife Species at Risk (Decisions Not to Add Certain Species) Order P.C. 2013-276

March 7, 2013

His Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to subsections 27(1.1) and (1.2) of the Species at Risk Acta, (a) decides not to add the Beluga Whale (Delphinapterus leucas) (Eastern High Arctic and Baffin Bay population), the Striped Bass (Morone saxatilis) (Southern Gulf of St. Lawrence population) and Cusk (Brosme brosme) to the List of Wildlife Species at Risk set out in Schedule 1 to that Act; and (b) approves that the Minister of the Environment include in the public registry established under section 120 of that Act the statement that is attached as the annex to this Order and that sets out the reasons for the decisions not to add those species to the List of Wildlife Species at Risk set out in Schedule 1 to that Act.

a

S.C. 2002, c. 29

Current to June 20, 2022

List of Wildlife Species at Risk (Decisions Not to Add Certain Species) Order ANNEX Statement Setting Out the Reasons for the Decisions Not To Add the Beluga Whale (Eastern High Arctic and Baffin Bay Population), Striped Bass (Southern Gulf of St. Lawrence Population) and Cusk to the List of Wildlife Species at Risk

ANNEX

Statement Setting Out the Reasons for the Decisions Not To Add the Beluga Whale (Eastern High Arctic and Baffin Bay Population), Striped Bass (Southern Gulf of St. Lawrence Population) and Cusk to the List of Wildlife Species at Risk Beluga Whale (Delphinapterus leucas) (Eastern High Arctic and Baffin Bay population) The Minister of the Environment has recommended, on the advice of the Minister of Fisheries and Oceans, that the Beluga Whale (Eastern High Arctic and Baffin Bay population) not be added to the List of Wildlife Species at Risk (the “List”) set out in Schedule 1 to the Species at Risk Act (“SARA”). The Eastern High Arctic and Baffin Bay population of Beluga Whale, which spends its winter in the Jones Sound – North Water polynya area, does not appear to be adversely affected by exploitation or subject to any other negative anthropogenic impacts. Possible overexploitation outside of Canadian waters is viewed as a concern for this population which winter in this area. Although commercial fisheries for Greenland halibut (Reinhardtius hippoglossoides) and pink shrimp (Pandalus borealis) take place in the area occupied by this population in the winter, potentially harmful effects of competition between fisheries for resources have not yet been studied. In May 2004, the Committee on the Status of Endangered Wildlife in Canada (“COSEWIC”) assessed this Beluga Whale (Eastern High Arctic and Baffin Bay population) and classified it as a species of special concern.

The benefits of listing the species would be limited. Listing the Beluga Whale (Eastern High Arctic and Baffin Bay population) as special concern would require the preparation of a SARA management plan. As there are no known threats in Canadian waters, this management plan would have a limited impact on the population and would be unable to address harvesting issues outside Canada. Furthermore, the management plan would not change the level of harvest in Canadian waters (approximately 100 belugas of this population per year). By not listing the species, no impacts are anticipated for the Inuit populations, general population in Canada, industry or government. There is limited evidence to support listing the Beluga Whale (Eastern High Arctic and Baffin Bay population) as a species of special concern since the population is only lightly harvested in Canada and there is no evidence of any anthropogenic threats on the Eastern High Arctic and Baffin Bay population of Beluga Whale or its habitat in Canadian waters. Listing the Beluga Whale (Eastern High Arctic and Baffin Bay

Current to June 20, 2022

List of Wildlife Species at Risk (Decisions Not to Add Certain Species) Order ANNEX Statement Setting Out the Reasons for the Decisions Not To Add the Beluga Whale (Eastern High Arctic and Baffin Bay Population), Striped Bass (Southern Gulf of St. Lawrence Population) and Cusk to the List of Wildlife Species at Risk

population) would not address hunting outside Canadian waters. As well, the Canada/Greenland Joint Commission on the Conservation and Management of Narwhal and Beluga concluded in 2009 that the Canadian population is healthy, and that population modeling of the Greenland portion of the beluga stock (following the reduction in quotas after 2004) suggests a reversal of the previous stock decline. Management and harvesting of the Eastern High Arctic and Baffin Bay population of Beluga Whale will continue to be regulated by the Marine Mammal Regulations enacted under the Fisheries Act. Further, the day-to-day management and conservation of this population falls under the scope of the Nunavut Land Claims Agreement and the Nunavut Wildlife Management Board established under that Agreement. The joint wildlife management system is governed by and implements principles of conservation. Fisheries and Oceans Canada (“DFO”) will continue to discuss with its international partners issues related to sustainable hunt management and scientific information needed for stock assessment of marine mammal populations that are found inside and outside Canadian waters. Under SARA, COSEWIC reviews the status of a species at risk as new information becomes available which might cause it to adjust its assessment of the species. DFO will consider any new information that will be reviewed by COSEWIC as part of its next assessment of the Beluga Whale (Eastern High Arctic and Baffin Bay population). Striped Bass (Morone saxatilis) (Southern Gulf of St. Lawrence population) The Minister of the Environment has recommended, on the advice of the Minister of Fisheries and Oceans, that the Striped Bass (Southern Gulf of St. Lawrence population) not be added to the List set out in Schedule 1 to SARA. In November 2004, COSEWIC assessed the Striped Bass (Southern Gulf of St. Lawrence population) and classified it as threatened. Although this population spawns at a single location, meeting COSEWIC’s criteria for classifying a species as endangered because of its small distribution area it was classified as threatened “because of the high degree of resilience evident from recent spawner abundance estimates”. COSEWIC identified threats that included bycatch in commercial Gaspereau and Rainbow Smelt fisheries as well as illegal fishing. The Southern Gulf of St. Lawrence population of Striped Bass was historically an important commercial and recreational species. Climatic constraints, past overfishing, illegal fishing, incidental catch in commercial fisheries, habitat alteration and the presence of contaminants have all been identified as probable causes of this population’s decline. All commercial fisheries for this population have been closed since 1996. In addition, all recreational and Aboriginal food, social and ceremonial fisheries have also been closed since 2000. Live release of incidentally caught Striped Bass of this population is also mandatory.

Current to June 20, 2022

List of Wildlife Species at Risk (Decisions Not to Add Certain Species) Order ANNEX Statement Setting Out the Reasons for the Decisions Not To Add the Beluga Whale (Eastern High Arctic and Baffin Bay Population), Striped Bass (Southern Gulf of St. Lawrence Population) and Cusk to the List of Wildlife Species at Risk

Listing the Striped Bass (Southern Gulf of St. Lawrence population) as threatened would trigger automatic prohibitions under sections 32 and 33 of SARA, which would result in significant socio-economic impacts on communities. The closure of some coastal fisheries would create a loss of profits for fish harvesters, the fish processing sectors and recreational fisheries. It is anticipated that such impacts on the Rainbow Smelt, Gaspereau and American Eel fisheries could result in an annual loss of profits for the industry that is estimated to range from $134,000 to $671,000. Listing the Striped Bass (Southern Gulf of St. Lawrence population) as threatened with a more flexible harm threshold would mitigate some of these impacts. However, this approach would result in additional costs related to the development and implementation of a recovery strategy and action plan required under SARA and would not result in a substantially different biological outcome in terms of the long-term recovery of this population. The scientific assessment of the potential for recovery of the Southern Gulf of St. Lawrence population of Striped Bass concluded that recovery is feasible so long as no additional activities cause mortality beyond current levels. The directed fishery for Striped Bass in the Southern Gulf of St. Lawrence continues to be closed. Recent studies confirm that the Southern Gulf of St. Lawrence population of Striped Bass is recovering under the current prohibition. Since the last COSEWIC assessment, a number of management measures have been implemented under the Fisheries Act to ensure this population’s recovery. The recovery is underway as a result of the use of existing legislation and tools.

The scientific assessment of the potential for recovery of the Southern Gulf of St. Lawrence population of Striped Bass has identified additional management measures that can be implemented to further reduce bycatch in certain fisheries. The implementation of these mitigation measures should improve the potential to achieve the recovery targets for this population. DFO will implement these measures to enhance this population’s recent gains and to achieve reference levels indicative of long-term recovery. Furthermore, this assessment has identified the following measures that can sufficiently address the activities that result in the highest mortality level: •

Increased enforcement patrols throughout the fishing seasons along the rivers in the Southern Gulf of St. Lawrence to reduce illegal fishing;

•

Yearly area closure for angling activities on the staging and spawning grounds of the Northwest Miramichi River from May 1 to June 30;

•

Delaying of the opening of the open water Rainbow Smelt fishery in the Southern Gulf of St. Lawrence until November 1;

•

Changing of rules dealing with gear, time or location to reduce the levels of mortality resulting from Aboriginal gillnet activities on the Miramichi River;

•

Additional scientific research activities to provide a better understanding of the Southern Gulf of St. Lawrence

Current to June 20, 2022

List of Wildlife Species at Risk (Decisions Not to Add Certain Species) Order ANNEX Statement Setting Out the Reasons for the Decisions Not To Add the Beluga Whale (Eastern High Arctic and Baffin Bay Population), Striped Bass (Southern Gulf of St. Lawrence Population) and Cusk to the List of Wildlife Species at Risk

population of Striped Bass spatial and temporal distributions and of the Southern Gulf of St. Lawrence population of Striped Bass by catch level in various fisheries; and •

Training of harvesters in fisheries with potential bycatch of the Southern Gulf of St. Lawrence population of Striped Bass on how to effectively handle and release them.

These measures will limit access to the staging and spawning grounds during critical times, reduce interactions of the Southern Gulf of St. Lawrence population of Striped Bass with fishing gear, improve release practices, enhance conservation and protection efforts and allow for further research to better understand the population’s distribution. These measures will be legally enforceable to ensure the population’s protection and to enhance its recovery.

DFO will create new management measures under the Fisheries Act in a manner proportionate to the degree and type of risks affecting the population — mainly illegal fishing and bycatch in other fisheries. These measures are expected to prevent this population from becoming extirpated or extinct and to provide for its recovery and will not unduly impact Aboriginal communities, provincial authorities and affected stakeholders. Cusk (Brosme brosme) The Minister of the Environment has recommended, on the advice of the Minister of Fisheries and Oceans, that Cusk not be added to the List set out in Schedule 1 to SARA. In May 2003, COSEWIC assessed Cusk and classified it as threatened. The same assessment was resubmitted in 2006, following the referral of the matter back to COSEWIC by the Governor in Council. COSEWIC identified mortality from fishing, both direct and incidental, as the principle threat to Cusk. Cusk is primarily caught as bycatch in the Atlantic Cod, Haddock, Pollock and Atlantic Halibut longline fisheries, although it is also caught as bycatch in lobster and other trap or pot fisheries. There is currently no known way to exclude Cusk from trawls, longlines, traps or pots. Under the Groundfish Integrated Fishery Management Plan (“Plan”), a directed fishery for Cusk is prohibited and Cusk can only be landed as bycatch within established caps set out in the Plan for each fleet and area in the groundfish fishery. At the time of the 2007 Recovery Potential Assessment (“RPA”), Cusk bycatch was estimated at 900 tonnes per year. Since 2007, DFO has lowered the bycatch cap for Cusk to approximately 650 tonnes per year and implemented a number of other measures to manage Cusk. No other fisheries are authorized to retain Cusk. Cusk is also harvested under the Native Council of Nova Scotia’s food, social and ceremonial license and as a bycatch in food, social and ceremonial and Aboriginal commercial fisheries.

Current to June 20, 2022

List of Wildlife Species at Risk (Decisions Not to Add Certain Species) Order ANNEX Statement Setting Out the Reasons for the Decisions Not To Add the Beluga Whale (Eastern High Arctic and Baffin Bay Population), Striped Bass (Southern Gulf of St. Lawrence Population) and Cusk to the List of Wildlife Species at Risk

There are no estimates of absolute Cusk abundance in Canadian waters. There is consensus that Cusk abundance has declined in the 1970’s and 1980’s. However, there is conflicting evidence as to whether Cusk abundance has continued to decline since the 1990’s. The COSEWIC status report relied mainly on trawl survey data (designed to catch haddock) that showed declines ranging from 60% to 95.5% in Canadian waters, with the largest declines seen in the Scotian Shelf region. However, there is evidence that the trawl surveys grossly underestimate actual Cusk abundance, as there are issues with the ability to catch Cusk in otter trawls and the fact that the trawl surveys do not sample the Cusk in its preferred habitat or depth. Analyses of the Halibut Longline Survey and commercial landings data in the 2007 Cusk RPA suggests that Cusk are still common and widespread and that abundance has fluctuated without trend since the mid-1990s.

If the species were listed with a bycatch cap in the vicinity of 370 tonnes per year, additional costs would be expected to total $10.4 million per year in loss of profits for producers (i.e. fishing industry). These estimated additional costs were compared to a baseline scenario with a bycatch cap of 900 tonnes per year. Using a long-term period of 15 years and discount rates of 3% and 8% of the incremental costs, the total present value of additional costs for this option is estimated to be $123.9 million (at 3%) and $88.8 million (at 8%).

DFO is committed to managing Cusk and has put in place a number of new management measures since 2007, such as the reduction in the bycatch cap to 650 tonnes per year. In addition, DFO will be implementing additional measures outlined below as part of the Plan to manage Cusk going forward. These measures include •

Analyzing bycatch data to assess the conservation risks associated with levels of Cusk discards and implementing strategies to account for all bycatch and discards through the Plan, which will include the development of improved data collection and monitoring systems to support reporting for landed and discarded Cusk;

•

Amending groundfish logbooks to include a column for discards, to improve reporting of the quantity of discarded Cusk;

•

Developing an abundance index for Cusk, against which a quantitative evaluation of stock status can occur; and

•

Depending on the outcome of the abundance index, undertaking an assessment to determine the conservation benefits to Cusk of the closing of different areas.

Current to June 20, 2022

List of Wildlife Species at Risk (Decisions Not to Add Certain Species) Order ANNEX Statement Setting Out the Reasons for the Decisions Not To Add the Beluga Whale (Eastern High Arctic and Baffin Bay Population), Striped Bass (Southern Gulf of St. Lawrence Population) and Cusk to the List of Wildlife Species at Risk

As a consequence of these new management measures, the probability of the biomass of Cusk increasing would be higher as compared to that estimated under the baseline scenario and, therefore, the additional benefits of listing Cusk on Schedule 1 of SARA would be less important. In light of the new management measures implemented and those to be implemented — which will all result in a higher probability of an increase in Cusk biomass — the lack of scientific certainty regarding the decline of the species, the socio-economic impacts and the concerns of stakeholders, DFO will continue to manage Cusk under the Plan.

Current to June 20, 2022

