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, 2023 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)(e)Footnote a, 35.1(1)(k)Footnote b and 136(1)(f)Footnote c and subsection 190(1)Footnote d of the Canada Shipping Act, 2001Footnote e;
Therefore, the Minister of Transport makes the annexed makes the annexed Interim Order for the Protection of the Killer Whale (Orcinus orca) in the Waters of Southern British Columbia, 2023 under subsection 10.1(1)Footnote f of the Canada Shipping Act, 2001Footnote e.
Ottawa, May 31, 2023
Omar Alghabra
Minister of Transport
Definitions
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)
Non-Application
Vessels
2 (1) This Interim Order does not apply to
- (a) a vessel that is in distress or providing assistance to a vessel or person in distress;
- (b) a vessel that is involved in pollution response operations;
- (c) a vessel that is avoiding an immediate or unforeseen danger; or
- (d) a vessel that is carrying a person referred to in paragraph (2)(a).
Persons
(2) This Interim Order does not apply to
- (a) an employee of the Government of Canada or a 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; or
- (b) a person who is operating a vessel referred to in any of paragraphs (1)(a) to (d).
Approach Distance Prohibition
Vessels
3 (1) Beginning on June 1, 2023, a vessel must not approach within 400 m of a killer whale in the waters indicated in Schedule 1.
Exceptions
(2) Subsection (1) does not apply to
- (a) a vessel in transit; or
- (b) a vessel carrying a person referred to in any of paragraphs 4(2)(a) to (c).
Persons
4 (1) Beginning on June 1, 2023, a person operating a vessel must not approach within 400 m of a killer whale in the waters indicated in Schedule 1.
Exceptions
(2) Subsection (1) does not apply to
- (a) a person acting in a manner authorized under the Species at Risk Act;
- (b) a person authorized under subsection 38(1) of the Marine Mammal Regulations to disturb a killer whale;
- (c) 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
- (d) a person operating a vessel referred to in paragraph 3(2)(a) or (b).
Prohibition Against Positioning Vessel in Path
Vessels
5 (1) Beginning on June 1, 2023, a vessel must not position itself such that the vessel is in the path of a killer whale in the waters indicated in Schedule 1.
Exceptions
(2) Subsection (1) does not apply to
- (a) a vessel that is at anchor or aground;
- (b) a vessel not under command as defined in Rule 3(f) of Schedule 1 to the Collision Regulations;
- (c) a vessel restricted in her ability to manoeuvre as defined in Rule 3(g) of that Schedule;
- (d) a vessel constrained by her draught as defined in Rule 3(h) of that Schedule; or
- (e) a vessel that is carrying a person referred to in any of paragraphs 6(2)(a) to (c).
Persons
6 (1) Beginning on June 1, 2023, a person operating a vessel must not position the vessel such that it is in the path of a killer whale in the waters indicated in Schedule 1.
Exceptions
(2) Subsection (1) does not apply to
- (a) a person acting in a manner authorized under the Species at Risk Act;
- (b) a person authorized under subsection 38(1) of the Marine Mammal Regulations to disturb a killer whale;
- (c) 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
- (d) a person operating a vessel referred to in any of paragraphs 5(2)(a) to (e).
Interim Sanctuary Zones
Vessels
7 (1) During the period beginning on June 1, 2023 and ending on November 30, 2023, a vessel must not navigate in the waters indicated 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 indicated 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 another location beyond the waters indicated in Schedule 2,
- (iii) a location on Pender Island or Saturna Island and a mooring buoy located in the waters indicated in Schedule 2, or
- (iv) a mooring buoy located in the waters indicated 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 indicated in items 1 and 2 of Schedule 2;
- (c) a vessel being used to fish under a licence issued under the Aboriginal Communal Fishing Licences Regulations
- (i) for food, social or ceremonial purposes, or
- (ii) for domestic purposes under a treaty within the meaning of section 35 of the Constitution Act, 1982; or
- (d) a vessel carrying a person referred to in any of paragraphs 7(2)(a) to (f).
Persons
8 (1) During the period beginning on June 1, 2023 and ending on November 30, 2023, a person must not operate a vessel in the waters indicated in Schedule 2.
Exceptions
(2) Subsection (1) does not apply to
- (a) a person acting in a manner authorized under the Species at Risk Act;
- (b) a person authorized under subsection 38(1) of the Marine Mammal Regulations to disturb a killer whale;
- (c) a person fishing for marine mammals under the authority of the Marine Mammal Regulations;
- (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;
- (e) a person fishing under a licence issued under the Aboriginal Communal Fishing Licences Regulations
- (i) for food, social or ceremonial purposes, or
- (ii) for domestic purposes under a treaty within the meaning of section 35 of the Constitution Act, 1982;
- (f) an Indigenous person exercising an existing right, other than for fishing, for non-commercial purposes under section 35 of the Constitution Act, 1982, other than the right to fish; or
- (g) a person operating a vessel referred to in any of paragraphs 7(2)(a) to (d).
Speed-Restricted Zones
Vessels
9 (1) During the period beginning on June 1, 2023 and ending on November 30, 2023, a vessel must not proceed at a speed in excess of 10 knots over ground in the waters indicated in Schedule 3.
Exceptions
(2) Subsection (1) does not apply to a vessel that is operating without a motor.
Persons
10 (1) During the period beginning on June 1, 2023 and ending on November 30, 2023, a person must not operate a vessel at a speed in excess of 10 knots over ground in the waters indicated in Schedule 3.
Exceptions
(2) Subsection (1) does not apply to a person operating a vessel referred to in subsection 9(2).
Authorizations
Whale-watching and ecotourism
11 (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 or ecotourism at a distance of between 200 m and 400 m in the waters indicated in Schedule 1 if the authorization does not compromise the protection of killer whales and the marine environment or compromise marine safety.
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, in respect of a non-commercial activity that promotes compliance with and monitoring of measures taken to protect killer whales if the authorization does not compromise the protection of killer whales and the marine environment or compromise marine safety:
- (a) an authorization to approach a killer whale at a distance of between 200 m and 400 m in the waters indicated in Schedule 1; or
- (b) an authorization to navigate or operate a vessel in the waters indicated 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 commercial whale-watching or an ecotourism business, 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)
- (i) 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, or
- (ii) a government, council or other entity authorized to act on behalf of an Indigenous group.
Conditions
(4) An authorization is subject to conditions respecting the protection of killer whales, including those respecting the reduction of the risk of physical and acoustic disturbances to Southern Resident killer whales. An authorization may also be subject to conditions respecting the protection of the marine environment or marine safety.
Authorization on board vessels
(5) An authorization must be kept on board the vessel.
Modification
(6) The Minister may modify an authorization, and must inform the holder of the authorization in writing, if the Minister considers it necessary for the protection of killer whales, the protection of the marine environment or marine safety.
Suspension
(7) The Minister may suspend an authorization, and must inform the holder of the authorization in writing, if
- (a) the Minister has reasonable grounds to believe that the holder of the authorization is not in compliance with the authorization;
- (b) the Minister has reasonable grounds to believe the holder of the authorization is not in compliance with one or more requirements under
- (i) the Canada Shipping Act, 2001,
- (ii) the Oceans Act,
- (iii) the Fisheries Act, or
- (iv) the Species at Risk Act; or
- (c) the Minister considers it necessary for the protection of killer whales, the protection of the marine environment or marine safety.
Reinstatement
(8) The Minister may reinstate a suspended authorization, and inform the holder of the authorization in writing, if the matter that gave rise to the suspension has been resolved.
Revocation
(9) The Minister may revoke an authorization, and must inform the holder of the authorization in writing, if
- (a) the holder of the authorization is found guilty of an offence under
- (i) the Canada Shipping Act, 2001,
- (ii) the Oceans Act,
- (iii) the Fisheries Act, or
- (iv) the Species at Risk Act;
- (b) the holder of the authorization has committed a violation as defined in section 228 of the Canada Shipping Act, 2001;
- (c) the authorization has been suspended three times; or
- (d) the Minister considers it necessary for the protection of killer whales, the protection of the marine environment or marine safety.
Additional requirements of authorization
12 (1) A person who is operating a vessel to which an authorization was issued must
- (a) as soon as feasible, report the following information to the Minister each time that the vessel is within 400 m of a Southern Resident killer whale in the waters in respect of which the authorization was issued:
- (i) the name of their vessel,
- (ii) the date and time of the occurrence,
- (iii) the geographic coordinates of the vessel at the time of the occurrence and a description of any incidents involving a Southern resident killer whale, and
- (iv) the number of Southern Resident killer whales that they observed at the time of the occurrence;
- (b) as soon as feasible, use the WhaleReport application to record each observation of a Southern Resident killer whale that they make; and
- (c) ensure that the authorization flag provided by the Minister is visible on the vessel at all times when the vessel is in the waters in respect of which the authorization was issued.
Prohibition on advertising
(2) After an authorization is issued under subsection 11(1), the person or organization that submitted the request for the authorization must not refer to sightings of Southern Resident killer whales when offering or promoting commercial whale-watching excursions or commercial ecotourism excursions.
Schedule 1
(Subsections 3(1), 4(1), 5(1), 6(1) and 11(1) and paragraph 11(2)(a))
Waters Subject to Certain Prohibitions
| The waters subject to the prohibitions referred to in sections 3 to 6 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°19.301'N | 123°08.888'W | [north Burrard Inlet]; |
| then to | 49°18.775'N | 123°08.882'W | [south Burrard Inlet]; |
| then to | 49°15.608'N | 123°15.755'W | [Cowards Cove]; |
| then to | 49°15.173'N | 123°16.247'W | [east Sea Island]; |
| then to | 49°15.455'N | 123°16.795'W | [north Sea Island]; |
| then to | 49°12.853'N | 123°13.338'W | [south Sea Island]; |
| then to | 49°11.205'N | 123°12.225'W | [north Swishwash Island]; |
| then to | 49°10.425'N | 123°12.023'W | [south Swishwash Island]; |
| then to | 49°07.853'N | 123°12.037'W | [Steveston]; |
| then to | 49°06.128'N | 123°19.335'W | [north Strait of Georgia]; |
| then to | 49°05.368'N | 123°19.342'W | [south Strait of Georgia]; |
| then to | 49°07.058'N | 123°11.647'W | [Fraser River]; |
| then to | 49°06.532'N | 123°11.232'W | [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°56.076'N | 125°31.372'W | [Stuart Bay]; |
| then to | 49°01.238'N | 125°02.383'W | [Hi'tatis]; |
| then to | 48°46.985'N | 125°12.587'W | [Cape Beale]; |
| 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 7(1), paragraphs 7(2)(a) and (b), subsection 8(1) and paragraph 11(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. 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]. |
Schedule 3
(Subsections 9(1) and 10(1))
Speed-Restricted Zones
| 1. Mouth of the Nitinat River | |||
|---|---|---|---|
| The waters of the mouth of the Nitinat River bounded by a line | |||
| beginning at | 48°42.377'N | 125°00.000'W | [northwest boundary]; |
| then to | 48°36.683'N | 125°00.000'W | [northwest boundary (Swiftsure Bank)]; |
| then to | 48°36.683'N | 124°45.083'W | [southeast boundary (Carmanah Point)]; |
| then along the coastline to | 48°42.377'N | 125°00.000'W | [northeast boundary]. |
| 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°32.100'N | 125°01.760'W | [southwest boundary]; |
| then to | 48°32.100'N | 124°49.545'W | [southern boundary (traffic separation scheme lane)]; |
| then to | 48°32.017'N | 124°46.593'W | [southern boundary (traffic separation scheme lane)]; |
| then to | 48°31.150'N | 124°43.483'W | [southeast boundary]; |
| then to | 48°35.717'N | 124°43.067'W | [northeast boundary]; |
| then to | 48°34.000'N | 124°54.190'W | [northern boundary]; |
| then to | 48°34.000'N | 125°06.000'W | [northwest boundary]. |