Northern bottlenose whale (Hyperoodon ampullatus) at Scotian shelf: critical habitat protection statement

This is a statement explaining how the critical habitat of the Northern bottlenose whale (Hyperoodon ampullatus) located in Shortland and Haldimand canyons on the Scotian shelf 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 Northern bottlenose whale was identified in the Final Recovery Strategy for this species, and posted on the SARA Public Registry in May 2010. Please refer to the Recovery Strategy for details about the identified critical habitat, and note that the portion of the Northern bottlenose whale critical habitat located in the Gully Marine Protected Area (MPA) Zone 1 was described in the Canada Gazette 1 on August 14, 2010. The prohibition in section 58(1) of SARA will apply within the Gully MPA Zone 1 area on November 11, 2010.

Human activities which are likely to result in the destruction of critical habitat for this species, as well as the threats that arise from these activities, have been identified in the Final Recovery Strategy. They are listed below, together with the federal legislation which will be used to provide protection against such destruction.

Examples of such human activities include large scale industrial development, such as oil and gas extraction, that could result in the following threats:

1. The alteration of habitat resulting from physical changes to bathymetry or oceanography, and/or the development of fixed structures;
2. Acoustic disturbance resulting from the production of persistent intense noise (e.g. machinery, ship, aircraft, seismic, or sonar);
3. Contamination resulting from ocean dumping and/or release of chemical or physical pollutants into the marine environment.

1.0 The alteration of habitat resulting from physical changes to bathymetry or oceanography, and/or the development of fixed structures.

Depending on the specific nature of the project and the works/undertakings or associated activities, large scale industrial development, such as oil and gas extraction, can result in the destruction of critical habitat. Specifically, activities that cause physical changes to bathymetry or oceanography and/or involve the development of fixed structures can alter habitat and/or impede access to foraging habitat to an extent that would be considered the destruction of critical habitat.
Legal Protection against these threats is provided by the following Acts of Parliament:

1. 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 unless authorized by the Minister of Fisheries and Oceans;
   
2. Section 140 of the Canada-Nova Scotia Offshore Accord Implementation Act prohibits the carrying on of a work or activity related to the exploration or drilling for or 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).

2.0 Accoustic disturbance resulting from the production of persistent intense noise (e.g. machinery, ship, aircraft, seismic, sonar).

Noise that is persistent and intense enough to exclude whales from feeding areas for an extended period of time could destroy critical habitat.
Legal protection against this threat is provided by the following Acts of Parliament:

1. Section 32 of the Species at Risk Act offers protection to critical habitat. It prohibits the killing, harming or harassing of individuals of a listed species. Threats such as persistent noise can affect both individuals and their critical habitat, thus critical habitat can be protected through the prohibitions set out in s. 32;
   
2. Section 7 of the Marine Mammal Regulations prohibits the disturbance of a marine mammal except when fishing for marine mammals under the authority of these regulations. Any activity producing a level of acoustic disturbance sufficiently persistent and intense enough to destroy critical habitat is also likely to disturb individuals within the manner contemplated by section 7. Therefore, critical habitat can be protected through the prohibition set out in section 7.

3.0 Contamination resulting from ocean dumping and/or the release of pollutants (chemical and physical) into the marine environment.

Releasing toxic substances into critical habitat could result in its destruction by reducing the habitat quality to a level unsuitable for northern bottlenose whales or their prey.

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

1. Section 36(3) of the FA prohibits the deposit of deleterious substances into fish habitat except where the activity has been prescribed through regulation pursuant to section 36 (5);
   
2. Ocean dumping is controlled by Division 3 of Part 7 of the Canadian Environmental Protection Act (CEPA). Section 125 of the CEPA prohibits the disposal of waste substances at sea;
   
3. Vessel discharge is controlled through regulations passed pursuant to the Canada Shipping Act, 2001. 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;
   
4. Section 32 of the Species at Risk Act offers additional protection to critical habitat. It prohibits the killing, harming or harassing of individuals of a listed species. Threats such as persistent contamination can affect both individuals and their critical habitat, thus critical habitat can be protected through the prohibitions set out in section 32.

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