Interim Order for the Protection of the Killer Whale (Orcinus orca) in the Waters of Southern British Columbia, 2020

From: Transport Canada

Whereas the Minister of Transport is of the opinion that the annexed Interim Order for the Protection of the Killer Whale (Orcinus orca) in the Waters of Southern British Columbia, 2020 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 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 the Killer Whale (Orcinus orca) in the Waters of Southern British Columbia, 2020.

Ottawa, May 31, 2020

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 (1) Beginning on June 1, 2020, a vessel must not approach within 400 m of a killer whale in the waters described in Schedule 1.

Exceptions

(2) Subsection (1) does not apply to:

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

Prohibition — persons

3 (1) Beginning on June 1, 2020, a person operating a vessel must not approach within 400 m of a killer whale in the waters described in Schedule 1.

Exceptions

(2) Subsection (1) does not apply to:

  • (a) an employee of the Government of Canada or peace officer who is performing their duties, or a person who is assisting them or who is otherwise present at the request of the Government of Canada;
  • (b) a person acting in a manner authorized under the Species at Risk Act;
  • (c) a person authorized under subsection 38(1) of the Marine Mammal Regulations to disturb a killer whale;
  • (d) a person 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; or
  • (e) a person operating a vessel referred to in paragraphs 2(2)(a) to (e).

Interim Sanctuary Zones

Prohibition — vessels

4 (1) During the period beginning on June 1, 2020 and ending on November 30, 2020, a vessel must not navigate in the waters described in Schedule 2.

Exceptions

  • (2) Subsection (1) does not apply to:
    • (a) a vessel being used to access a private residence, a commercial establishment or any other establishment providing a service, if travel in the waters described in Schedule 2 is the only practical means of doing so and the vessel is navigating directly between:
    • (i) a location on Pender Island or Saturna Island and another location on one of those islands,
    • (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 those waters;
  • (b) a human-powered vessel navigating at a distance of 20 m or less from the shoreline — meaning the line where the water surface touches the land — in the waters described in items 1 and 3 of Schedule 2;
  • (c) a vessel in distress or providing assistance to a person or vessel in distress;
  • (d) a vessel involved in pollution response operations;
  • (e) a vessel avoiding immediate or unforeseen danger;
  • (f) a vessel being used to fish for food, social or ceremonial purposes, or for domestic purposes, under a treaty within the meaning of section 35 of the Constitution Act, 1982 or a licence issued under the Aboriginal Communal Fishing Licences Regulations; or
  • (g) a vessel carrying any person referred to in paragraphs 5(2)(a) to (h).

Prohibition — persons

5 (1) During the period beginning on June 1, 2020 and ending on November 30, 2020, a person must not operate a vessel in the waters described in Schedule 2.

Exceptions

(2) Subsection (1) does not apply to:

  • (a) an employee of the Government of Canada or peace officer who is performing their duties, or a person who is assisting them or who is otherwise present at the request of the Government of Canada;
  • (b) a person acting in a manner authorized under the Species at Risk Act;
  • (c) a person authorized under subsection 38-(1) of the Marine Mammal Regulations to disturb a killer whale;
  • (d) a person fishing for marine mammals under the authority of the Marine Mammal Regulations;
  • (e) a person 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) a person fishing for food, social or ceremonial purposes, or for domestic purposes, under a treaty within the meaning of section 35 of the Constitution Act, 1982 or a licence issued under the Aboriginal Communal Fishing Licences Regulations;
  • (g) an Indigenous person exercising an existing right, other than for fishing, for non-commercial purposes under section 35 of the Constitution Act, 1982; or
  • (h) a person operating a vessel referred to in paragraphs 4(2)(a) to (g).

Authorizations

Authorization — whale-watching

6 (1) The Minister may, in writing, issue an authorization to a vessel and to persons operating that vessel to approach a killer whale, other than a Southern Resident killer whale, for the purpose of commercial whale-watching at a distance of between 200 m and 400 m in the waters described in Schedule 1 if the vessel is owned or operated by a person or organization that has entered into an agreement with the Minister that is intended to reduce the risk of physical and acoustic disturbances to Southern Resident killer whales.

Authorization — promotion of protection of killer whales

(2) The Minister may, in writing, issue one of the following authorizations to a vessel and to persons operating that vessel for the purpose of a non-commercial activity that promotes compliance with and monitoring of measures taken to protect killer whales if the vessel is owned or operated by a person or organization that has entered into an agreement with the Minister that is intended to reduce the risk of physical and acoustic disturbances to Southern Resident killer whales:

  • (a) an authorization to approach a killer whale at a distance of between 200 m and 400 m in the waters described in Schedule 1; or
  • (b) an authorization to navigate or operate a vessel in the waters described in Schedule 2.

Application for authorization

(3) The following persons or organizations may submit a request for an authorization in respect of a vessel that they own or operate and persons operating that vessel:

  • (a) in the case of an authorization referred to in subsection (1), a person who owns or operates a business for the purposes of commercial whale-watching or ecotourism, or any person or organization acting on behalf of such a business; or
  • (b) in the case of the authorizations referred to in subsection (2), an incorporated non-profit organization with a mandate to promote the protection of killer whales, or any person or organization acting on behalf of such an organization.

Condition of authorization

(4) An authorization is subject to the condition that the authorization holder complies with measures respecting the protection of killer whales, including those respecting the reduction of the risk of physical and acoustic disturbances to Southern Resident killer whales, set out in the agreement entered into with the Minister.

Amending conditions

(5) 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.

Authorization on board vessel

(6) An authorization must be kept on board the vessel.

Suspension or revocation

(7) 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 (4) or (5), and the non-compliance constitutes a risk to killer whales, the marine environment or 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.

Schedule 1

(Subsections 2(1), 3(1) and 6(1) and paragraph 6(2)(a))

Waters subject to approach distance prohibition

The waters subject to the approach distance prohibition are bounded by a line
beginning at 50°03.807’N 124°50.610’W [Sarah Point];
then to 49°52.486’N 124°33.903’W [north Powell River];
then to 49°52.426’N 124°33.912’W [south Powell River];
then to 49°46.436’N 124°16.815’W [north Jervis Inlet/ Thunder Bay];
then to 49°44.262’N 124°13.260’W [south Jervis Inlet];
then to 49°43.838’N 124°12.572’W [north Blind Bay];
then to 49°43.018’N 124°11.228’W [south Ballet Bay];
then to 49°39.450’N 124°05.148’W [west Agamemnon Channel];
then to 49°39.313’N 124°04.355’W [east Agamemnon Channel];
then to 49°23.063’N 123°31.823’W [Gower Point];
then to 49°22.227’N 123°25.630’W [King Edward Bay];
then to 49°21.475’N 123°20.083’W [Apodaca Cove];
then to 49°20.933’N 123°16.172’W [south Eagle Harbour];
then to 49°18.820’N 123°07.712’W [north First Narrows];
then to 49°18.323’N 123°07.928’W [south First Narrows];
then to 49°16.930’N 123°08.525’W [Sunset Beach];
then to 49°16.725’N 123°08.610’W [Kitsilano Beach];
then to 49°13.860’N 123°12.583’W [north North Arm];
then to 49°13.526’N 123°13.303’W [south North Arm];
then to 49°13.440’N 123°13.468’W [south Iona Island];
then to 49°05.060’N 123°10.770’W [west Westham Island];
then to 49°04.062’N 123°09.410’W [south Canoe Passage];
then to 49°03.487’N 123°08.493’W [Roberts Bank];
then to 49°00.132’N 123°05.460’W [Boundary Bluff];
then adjacent to the United States border until 48°14.200’N 125°44.500’W [southern boundary of the critical habitat of the Southern Resident killer whale];
then to 48°41.700’N 126°17.783’W [northwest boundary of the critical habitat of the Southern Resident killer whale];
then to 48°59.685’N 125°40.152’W [Quisitis Point];
then to 48°55.253’N 125°32.517’W [Amphitrite Point];
then to 48°46.985’N 125°12.587’W [Cape Beale];
then to 48°45.433’N 125°07.733’W [Mabens Beach];
then to 48°40.605’N 124°52.768’W; -
then to 48°40.048’N 124°50.997’W; -
then to 48°39.645’N 124°49.205’W [west Clo-oose Bay];
then to 48°39.485’N 124°48.648’W [east Clo-oose Bay];
then to 48°33.703’N 124°27.812’W [west Port San Juan];
then to 48°33.110’N 124°25.742’W [east Port San Juan];
then to 49°59.092’N 125°13.390’W [Campbell River];
then to 50°03.807’N 124°50.610’W [Sarah Point].

Schedule 2

(Subsection 4(1), paragraphs 4(2)(a) and (b), subsection 5(1) and paragraph 6(2)(b))

Interim sanctuary zones

1. Saturna Island
The waters off Saturna Island bounded by a line
beginning at 48°47.150’N 123°02.733’W [northern boundary of East Point (shoreline)];
then to 48°47.367’N 123°02.915’W [Tumbo Channel];
then to 48°47.617’N 123°02.483’W [northwest boundary (east of Tumbo Point)];
then to 48°47.473’N 123°01.975’W [northeast boundary (Boiling Reef)];
then to 48°46.558’N 123°03.147’W [Boundary Pass];
then to 48°46.333’N 123°03.805’W [southeast boundary];
then to 48°46.350’N 123°05.150’W [southwest boundary (Narvaez Bay)];
then to 48°46.683’N 123°05.150’W [Fiddlers Cove];
then to 48°47.150’N 123°02.733’W [Northern boundary of East Point (shoreline)].
2. Swiftsure Bank
The waters off Swiftsure Bank bounded by a line
beginning at 48°34.000’N 125°06.000’W [northwest boundary];
then to 48°34.000’N 124°54.200’W [northeast boundary];
then to 48°32.100’N 124°49.583’W [southeast boundary];
then to 48°32.100’N 125°01.760’W [southwest boundary];
then to 48°34.000’N 125°06.000’W [Northwest boundary].
3. Pender Island
The waters off Pender Island bounded by a line
beginning at 48°45.817’N 123°19.300’W [northwest boundary];
then to 48°46.217’N 123°18.867’W [northeast boundary];
then to 48°44.167’N 123°13.917’W [southeast boundary];
then to 48°44.153’N 123°15.517’W [southwest boundary];
then to 48°45.817’N 123°19.300’W [Northwest boundary].
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