Interim Order for the Protection of Killer Whales (Orcinus orca) in the Waters of Southern British Columbia

Whereas the Minister of Transport is of the opinion that the annexed Interim Order for the Protection of Killer Whales (Orcinus orca) in the Waters of Southern British Columbia is required to deal with a direct or indirect risk to marine safety or to the marine environment;

And whereas the provisions of the annexed Order may be contained in a regulation made pursuant to paragraphs 35.1‍(1)(k)Footnote a and 136‍(1)‍(f)Footnote b and (h)Footnote b of the Canada Shipping Act, 2001Footnote c.

Therefore, the Minister of Transport, pursuant to subsection 10.1(1)Footnote d of the Canada Shipping Act, 2001Footnote c, makes the annexed Interim Order for the Protection of Killer Whales (Orcinus orca) in the Waters of Southern British Columbia.

Ottawa, May 27, 2019

Marc Garneau
Minister of Transport

Interpretation

Definitions

1 The following definitions apply in this Interim Order.

Minister means the Minister of Transport. (ministre)

Southern Resident killer whale means any member of the Killer Whale (Orcinus orca) Northeast Pacific southern resident population. (épaulard résident du sud)

Approach Distance Prohibition

Prohibition — vessels

2 As of June 1, 2019, a vessel, other than the following vessels, must not approach within 400 m of a killer whale in the waters described in Schedule 1:

  • (a) vessels in transit;
  • (b) vessels in distress or providing assistance to a vessel or person in distress
  • (c) vessels involved in pollution response operations;
  • (d) vessels avoiding immediate or unforeseen danger; and
  • (e) vessels carrying any person referred to in paragraphs 3(2)(a) to (d).

Prohibition — persons

3 (1) As of June 1, 2019, a person operating or navigating a vessel, other than a vessel referred to in paragraphs 2(a) to (e), must not approach within 400 m of a killer whale in the waters described in Schedule 1.

Exception

(2) Subsection (1) does not apply to the following persons:

  • (a) employees of the government of Canada and peace officers who are performing their duties or functions, or persons who are assisting them or who are otherwise present at the request of the government of Canada;
  • (b) persons acting in a manner authorized under the Species at Risk Act;
  • (c) persons authorized under subsection 38(1) of the Marine Mammal Regulations to disturb a killer whale; and
  • (d) persons fishing for marine mammals for experimental, scientific, educational or public display purposes in the manner set out in a licence issued under the Fishery (General) Regulations.

Exception — participant in a whale-watching activity

(3) Despite subsection (1), persons participating in a commercial whale-watching activity organized by a person to whom an authorization was issued under subsection 4(1) may approach a killer whale, other than a Southern Resident killer whale, at a distance of between 200 m and 400 m in the waters described in Schedule 1 if an authorization under subsection 4(1) has been issued to the vessel being operated or navigated.

Authorization to approach between 200 m and 400 m

4 (1) Despite sections 2 and 3, the Minister may, in writing, authorize a vessel, or a person operating or navigating a vessel, to approach a killer whale, other than a Southern Resident killer whale, at a distance of between 200 m and 400 m for commercial whale-watching purposes in the waters described in Schedule 1 if the person or the vessel is subject to an agreement with the Minister related to whale watching that is intended to reduce the risk of physical and acoustic disturbance to Southern Resident killer whales.

Application

(2) Any person who owns or operates a business for commercial whale-watching or ecotourism purposes, or any person or organization acting on their behalf, may submit a request for an authorization under subsection (1) in respect of themselves, and a vessel that they own or operate.

Conditions of authorization

(3) (1) An authorization issued under subsection (1) is subject to the condition that the authorization holder complies with measures respecting the protection of killer whales or a reduction of risk of disturbance to killer whales set out in the agreement with the Minister referred to in subsection (1) and to which the authorization holder is subject.

Amending conditions

(4) The Minister may add, amend or remove conditions, if the Minister considers it necessary to contribute to the protection of killer whales or the marine environment or to marine safety.

Obligation to have authorization on vessel

(5) An authorization issued under subsection (1) must be kept on board the vessel.

Suspension or revocation

(6) The Minister may suspend or revoke an authorization, and inform the authorization holder in writing, if

  • (a) the person who submitted the application for the authorization knowingly provided false or misleading information to obtain the authorization;
  • (b) the authorization holder fails to comply with any condition referred to in subsection (3) or (4), and the non-compliance constitutes a risk to killer whales or the marine environment or to marine safety;
  • (c) the authorization holder fails to comply with all applicable requirements of the Canada Shipping Act, 2001, the Oceans Act and the Fisheries Act, and any regulations made under those Acts; or
  • (d) the Minister considers it necessary to protect killer whales or the marine environment or for marine safety.

Interim Sanctuary Zones

Prohibition — vessels

5 As of June 1, 2019, a vessel, other than the following vessels, must not operate or navigate in the waters described in Schedule 2:

  • (a) vessels travelling directly between the following locations, if being used to access a local residence or business and if travel in waters described in Schedule 2 is the only practical means of doing so:
    • (i) locations on Pender Island or Saturna Island,
    • (ii) a location on Pender Island or Saturna Island and a location beyond the waters described in Schedule 2,
    • (iii) a location on Pender Island or Saturna Island and a mooring buoy located in the waters described in Schedule 2, or
    • (iv) a mooring buoy located in the waters described in Schedule 2 and a location beyond the waters described in Schedule 2;
  • (b) vessels in distress or providing assistance to a person or vessel in distress;
  • (c) vessels involved in pollution response operations;
  • (d) vessels avoiding immediate or unforeseen danger;
  • (e) vessels being used to fish for food, social or ceremonial purposes, or for domestic purposes pursuant to a treaty within the meaning of section 35 of the Constitution Act, 1982, under a licence issued under the Aboriginal Communal Fishing Licence Regulations; and
  • (f) vessels carrying any person referred to in paragraphs 6(2)(a) to (g).

Prohibition — persons

6 (1) As of June 1, 2019, a person must not operate or navigate a vessel, other than a vessel referred to in paragraphs 5(a) to (f), in any waters described in Schedule 2.

Exceptions

(2) Subsection (1) does not apply to the following persons:

  • (a) employees of the government of Canada and peace officers who are performing their duties or functions, or persons who are assisting them or who are otherwise present at the request of the government of Canada;
  • (b) persons acting in a manner authorized under the Species at Risk Act;
  • (c) persons authorized under subsection 38(1) of the Marine Mammal Regulations to disturb a killer whale;
  • (d) persons fishing for marine mammals under the authority of the Marine Mammal Regulations;
  • (e) persons fishing for marine mammals for experimental, scientific, educational or public display purposes in the manner set out in a licence issued under the Fishery (General) Regulations;
  • (f) persons fishing for food, social or ceremonial purposes, or for domestic purposes pursuant to a treaty within the meaning of section 35 of the Constitution Act, 1982, under a licence issued under the Aboriginal Communal Fishing Licence Regulations; and
  • (g) Indigenous persons exercising an existing right, other than for fishing, for non-commercial purposes under section 35 of the Constitution Act, 1982.

Enforcement

Powers and duties

7 A marine safety inspector referred to in section 11 of the Canada Shipping Act, 2001 or a person or organization authorized to carry out inspections under section 12 of that Act may

  • (a) prohibit the movement of any vessel or direct it to move ; and
  • (b) stop and board any vessel at any reasonable time and,
    • (i) direct any person to put into operation or cease operating any equipment on board the vessel,
    • (ii) direct any person to answer reasonable questions and provide reasonable assistance, and
    • (iii) require that any person provide, for examination, any document or information that is in the person’s possession.

Obligation to comply

8 A person or vessel must comply with a direction, a requirement or a prohibition referred to in section 7.

Cessation of Effect

October 31, 2019

9 This Interim Order ceases to have effect on October 31, 2019.

Schedule 1

(Section 2 and subsections 3(1) and (3) and 4(1))

Waters Subject to Approach Distance Prohibition

(Southern Resident killer whale critical habitat)

1. Southern Georgia, Haro and Juan de Fuca Straits
The transboundary waters of Southern Georgia, Haro and Juan de Fuca Straits, described clockwise from the western boundary:
Western Boundary 48°29.68’N
48°40.02’N
124°44.31’W
124°50.68’W;
excluding waters north of the line joining (Sooke Inlet) 48°21.30’N
48°20.33’N
123°44.32’W
123°42.90’W;
excluding waters north of the line joining (Royal Roads, Esquimault Harbour, Victoria Harbour) 48°24.25’N
48°24.57’N
123°28.97’W
123°22.61’W;
excluding waters west of the line joining (Cordova Channel and Sidney Channel) 48°29.69’N
48°36.12’N
123°18.61’W
123°18.51’W;
excluding waters west of the line joining (western half of Miners Channel and the waters west of Gooch Island) 48°37.04’N
48°39.70’N
123°18.49’W
123°17.72’W;
excluding waters west of the line joining (western half of Prevost Channel and Moresby Passage) 48°39.88’N
48°42.96’N
123°17.68’W
123°19.63’W;
excluding waters west of the line joining (western portion of Swanson Channel between Moresby Island and Prevost Island) 48°43.34’N
48°48.86’N
123°19.88’W
123°22.70’W;
excluding waters west of the line joining (western portion of Trincomali Channel between Prevost Island and Parker Island) 48°50.66’N
48°52.61’N
123°23.33’W
123°23.92’W;
excluding waters west of the line joining (western portion of Trincomali Channel between Parker Island and Galiano Island) 48°52.85’N
48°53.08’N
123°23.92’W
123°23.76’W;
excluding waters west of the line joining (western portion of southern Strait of Georgia) 48°54.28’N
48°55.39’N
49°00.00’N
49°10.39’N
49°13.58’N
123°20.67’W
123°21.98’W
123°18.88’W
123°22.82’W
123°21.97’W;
excluding waters north of the line joining (portion of southern Strait of Georgia) 49°13.58’N
49°14.00’N
49°14.18’N
49°13.79’N
123°21.97’W
123°21.09’W
123°19.22’W
123°17.21’W;
excluding waters north and east of the line joining (portion of southern Strait of Georgia) 49°13.79’N
49°12.87’N
49°09.01’N
49°03.39’N
49°03.47’N
123°17.21’W
123°15.75’W
123°16.48’W
123°09.24’W
123°08.48’W;
and bounded in the east and south by Point Roberts and the United States Border.
2. Southwestern Vancouver Island
The waters off Southwestern Vancouver Island, described counter-clockwise from the northern boundary:
Northern Boundary (Vancouver Island running southwest offshore) 48°59.70’N
48°41.72’N
125°40.15’W
126°17.88’W;
offshore Boundary 48°13.95’N 125°44.61’W;
waters adjacent to the United States Border 48°29.72’N 124°44.32’W;
waters adjacent to Southern Resident Killer Whale critical habitat in transboundary waters of southern Georgia, Haro and Juan de Fuca Straits 48°40.04’N 124°50.66’W;
and bounded by Vancouver Island to the Northwest boundary;
excluding waters north of the line joining (Nitinat Inlet) 48°40.05’N
48°40.13’N
124°50.99’W
124°51.30’W;
excluding waters northeast of the line joining Cape Beale and Amphitrite Point (Barkley Sound) 48°55.22’N
48°47.174’N
125°32.391’W
125°13.039’W.

Schedule 2

(Section 5 and subsection 6(1))

1. Saturna Island
The waters off Saturna Island bounded by a line:
commencing at 48°47.033’N 123°03.550’W [North Boundary of East Point (shoreline)];
then to 48°47.300’N 123°03.000’W [Tumbo Channel];
then to 48°47.666’N 123°02.416’W [Northwest Corner (Boiling Reef)];
then to 48°47.550’N 123°02.000’W [Northeast Corner (Boiling Reef)];
then to 48°46.933’N 123°02.666’W [Boundary Pass];
then to 48°46.600’N 123°03.166’W [Narvaez Bay Boundary Following the Traffic Separation Scheme (TSS)];
then to 48°46.450’N 123°03.650’W [Narvaez Bay Boundary Following the TSS];
then to 48°46.300’N 123°04.200’W [Southeast Corner (Narvaez Bay)];
then to 48°46.416’N 123°04.533’W [Southwest Corner (Narvaez Bay)];
then to 48°46.766’N 123°03.916’W [South Boundary of East Point (shoreline)].
2. Swiftsure Bank
The waters of Swiftsure Bank bounded by a line:
commencing at 48°34.000’N 125°06.000’W [Northwest Boundary];
then to 48°34.000’N 124°54.200’W [Northwest Boundary];
then to 48°32.100’N 124°49.518’W [Southeast Boundary];
then to 48°32.100’N 125°01.843’W [Southeast Boundary];
3. Pender Island
The waters off Pender Island bounded by a line:
commencing at 48°44.166’N 123°13.900’W [Southeast Boundary (Wallace Point)];
then to 48°44.166’N 123°15.550’W [Southwest Boundary (Swanson Channel)];
then to 48°46.050’N 123°19.516’W [Northwest Boundary (Swanson Channel)];
then to 48°46.050’N 123°18.383’W [Northeast Boundary (South of Thieves Bay)].
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