What we heard report: Marine Mammal Regulations Amendments
© His Majesty the King in Right of Canada, as represented by the Minister of the Department of Fisheries and Oceans, 2024
Disclaimer
The summaries herein contain the opinions expressed by those who attended the meetings, completed the online questionnaire, or provided email submissions directly to Fisheries and Oceans Canada (DFO) and do not necessarily reflect the views of DFO.
Throughout this report Indigenous and stakeholder views are represented as received by DFO; however, in some instances there are discrepancies between Indigenous or stakeholder interpretations and what is authorized by DFO. As such, Indigenous and stakeholder comments may not correspond to the statutory, regulatory, and policy framework as understood by DFO. In addition, Indigenous and stakeholder recommendations noted below reflect specific perspectives or personal opinions and in some cases may have general consensus from an organization or group but should not be interpreted as having received unanimous consent. Lastly, as the report covers comments from all regions across all presentation topics, some comments may be region-specific and therefore not applicable to all regions.
Minister's message
From coast to coast to coast, marine mammals are essential to the cultural fabric of Canada. They hold significant importance to Indigenous Peoples, are critical to the health of our oceans, and are often popular for tourism.
In British Columbia, Southern Resident Killer Whales are an iconic species that need our help. They face serious threats such as the decreasing quality and availability of the fish they feed on to survive, environmental contaminants, and physical and acoustic disturbances that make foraging, navigating and communication difficult.
The Government of Canada has been working hard to address these threats to Southern Resident Killer Whales and is looking to increase long-term protections through the amendment of the Marine Mammal Regulations under the Fisheries Act.
On behalf of Fisheries and Oceans Canada (DFO), I want to thank everyone who took part in this consultation. DFO heard from partners in Indigenous governments and groups, industry, academia, environmental non-governmental groups and members of the general public. These responses show how much people value these incredible species and want to see them flourish for generations to come. This report is a reflection of your feedback, which is essential for the future of Marine Mammal Regulations.
Background and rationale
Southern Resident Killer Whales were listed as Endangered under the Species at Risk Act (SARA) in 2003. They are an iconic species and supporting their recovery is a key priority for the Government of Canada. In 2018, it was determined that Southern Resident Killer Whales are facing imminent threats to their survival and recovery. Principal among these anthropogenic threats are reduced prey availability and quality of prey, environmental contaminants and acoustic and physical disturbance.
Vessels navigating on or through specific waters in Southern British Columbia, some of which are key foraging sites for Southern Resident Killer Whales, present risks to South Resident Killer Whales through underwater noise and physical disturbance, which can impact the ability for killer whales to perform critical life processes such as foraging and communication.
Canada has laws and regulations in place to address these threats and support the survival of this species, including the Marine Mammal Regulations (MMR) under the Fisheries Act. In 2018, the MMRs were amended to define disturbance and include approach distances for marine mammals, with a specified 200m approach distance for killer whales in Pacific waters.
In support of Southern Resident Killer Whale population recovery, the Minister of Transport has issued an Interim Order for the Protection of the Killer Whale (Orcinus orca) in the Waters of Southern British Columbia since 2019Footnote 1. The measures listed within this Interim Order were developed to mitigate impacts of vessel noise and other disturbances to killer whales, including an interim increased approach distance from 200m (as under the MMRs) to 400m for Pacific Killer Whales between Campbell River and Ucluelet, as well as an Authorization to enable commercial whale watching or ecotourism companies to view non-Southern Resident Killer Whales up to 200m while prohibiting the authorized companies from offering, planning or promoting of excursions based on the viewing of the endangered Southern Resident Killer Whale.
In spring 2023, Fisheries and Oceans Canada (DFO) announced their intention to transition away from an Interim Order and towards a long-term, permanent approach distance for Pacific killer whales under the MMRs (Figure 1). The MMR amendment consultation process was an opportunity to strengthen the MMRs, including clarification that drones, or remotely piloted aircraft, are considered an aircraft and are subject to the same prohibitions around marine mammals, as well as updating outdated references to Indigenous peoples and geographic areas to incorporate additional administrative changes.
Figure 1: Marine Mammal Regulation Amendment Process Targeted Timeline.
Consultation process
Beginning in the fall of 2023, Fisheries and Oceans Canada (DFO) worked with Indigenous Governments and Organizations (including Treaty Nations and through the Southern Resident Killer Whale Multi-Nation Group), the Southern Resident Killer Whale Indigenous and Multi-Stakeholder Advisory Group (IMAG), the Technical Working Groups (TWGs), stakeholders, and the public to inform the amendment of the Marine Mammal Regulations under the Fisheries Act to increase protections for the Southern Resident Killer Whale.
Feedback on all the proposed amendments was received through a variety of forums including bilateral and multilateral meetings; correspondence from Indigenous groups, local communities, sectors, and other stakeholders; an online public survey; and a dedicated email inbox to receive feedback on the proposed amendments.
This report presents the results of the consultation process to date and the National Consultation Survey which was launched from June 3 to September 3, 2024, for a 90-day consultation period and email feedback received during that same timeframe.
Consultation topics
The current consultation process on the proposed amendments to the Marine Mammal Regulations was focused primarily on Pacific killer whale approach distances to support the transition to longer term protection under the MMRs but also allowed for broader feedback related to administrative aspects of the MMR and marine mammal conservation efforts in general. With respect to administrative amendments, the engagement process addressed the following topics: modernizing definitions, renumbering sections, correcting cross-references, and addressing discrepancies between English and French versions of the regulations.
National public survey
The National consultation website was available from June 3 to September 3, 2024, and included an online survey to provide written feedback on the proposed Marine Mammal Regulations amendments as well as a dedicated MMR inbox for email responses. The Department received over 400 responses via survey responses and 36 email responses. Responses were received from across Canada, with most of the feedback from residents in the Pacific region and from coastal communities.
In addition to the national survey, the Department held 24 meetings in the Pacific region to gather input on the MMR amendments. These meetings included pre-existing Southern Resident Killer Whale meetings and targeted MMR amendment meetings as requested. Additionally, 5 MMR related letters were submitted to the Minister of Fisheries and Oceans Canada directly.
Analysis methodology
To gather comparable results, all participants were presented with the same background material, and survey questions were based on feedback from initial bilateral and multilateral engagement sessions.
The survey questions included:
- Do you have comments or considerations regarding the proposal to amend the current approach distance (200 m) for Pacific killer whales?
- As part of the amendment process, the Government of Canada is seeking input on the use of the term ‘approach distances' under the Marine Mammal Regulations. Do you have comments or considerations regarding the language used for this prohibition?
- Through the current Interim Order, Transport Canada prohibits vessels from positioning themselves in the path of a killer whale in southern B.C. coastal waters. Do you have comments or considerations regarding this prohibition?
- As part of the transition to longer-term regulatory amendments to the Marine Mammal Regulations, the Government of Canada is seeking comments or considerations on the continuation of specified conditions for different Pacific killer whales (Southern Residents vs non-Southern Resident Killer Whales) and/or ocean users (e.g., commercial whale watchers/ecotourism companies) under the Marine Mammal Regulations. Do you have comments or considerations concerning this?
- At present, there is uncertainty among the public and resource users about whether the Marine Mammal Regulations apply to the use of drones. Therefore, DFO is exploring the inclusion of updated terminology to clarify and confirm that the term “aircraft” is inclusive of drones, or remotely piloted aircraft systems. Do you have comments or considerations regarding the proposed clarification in relation to the use of aircraft, including drones, within proximity of marine mammals?
- Do you have any other comments or considerations you would like to share with the Government of Canada regarding potential amendments to the Marine Mammal Regulations?
What we heard
Executive summary
The majority of respondents expressed support for increasing the approach distance for Pacific killer whales, particularly for the endangered Southern Resident Killer Whale. All groups shared their support for the continued protection of the species and encouraged longer-term and more permanent actions. While there was majority support to increase the approach distance to 1000m for Southern Resident Killer Whales, there were mixed opinions regarding approach distances for other types of Pacific killer whales, which varied from 200m or 400m. Respondents expressed mixed opinions in regards to the continuation and conditions for whale-watching activities around Pacific killer whales, both commercial and recreational, and supported the need for enhanced enforcement and public outreach to ensure effective protection of these species. Respondents expressed strong support for clarifying drones as aircraft and expressed the need for future guidance on drone usage around marine mammals.
Key themes
Approach distances
Indigenous Governments and Organizations
Indigenous feedback focused heavily on the need for stronger protection for the Southern Resident Killer Whale, with many supporting the alignment of regulations with Washington State's upcoming 1,000-yard rule coming into force 2025. For other Pacific killer whale ecotypes, feedback from Indigenous respondents was mixed. While some Indigenous respondents agreed there should be no further increase in approach distance for non-Southern Resident Killer Whales, some Indigenous respondents urged further protection and an increased approach distance of 400m for the other Pacific killer whale ecotypes and other cetaceans as well. Many Indigenous comments supported increased approach distances for all Pacific killer whale ecotypes and not having different approach distances per ecotype, as well as having consistent protections for all whales. Comments were also received with regards to increasing compliance efforts and the evaluation of effectiveness of these added measures.
While many Indigenous respondents believed “avoidance distance” would enhance the effectiveness of the regulations and be more in line with the measures intent of avoiding whales, other Indigenous respondents believed “approach distance” was clear enough and that effort should be made to ensure the definition is clear and publicly available.
There were concerns expressed regarding the northern boundary of the approach distance measure near Campbell River under the Interim Order of the Canada Shipping Act, and an interest to adjust the boundary to align with the latest science regarding Southern Resident Killer Whale habitat use, to benefit other cetaceans, encourage compliance considering the tides in that area, and align with other boundaries (such as the Pacific Fisheries Management Areas).
Indigenous respondents from the Central Coast and Northern Coast regions support enhanced approach distances in the Southern area, where there is higher vessel traffic and more Southern Resident Killer Whale presence. However, there was concern expressed in expanding the spatial boundary north into Central and Northern Coast.
Indigenous comments also emphasized that any proposed changes to the Marine Mammal Regulations must not infringe on section 35 rights or Indigenous rights to harvest marine mammals.
Stakeholders
There was strong support for aligning regulations with Washington State's upcoming 1,000-yard approach distance for Southern Resident Killer Whales to ensure transboundary consistency and simplified enforcement and outreach and education messaging to the public. Although mostly supportive of an increased approach distance, some respondents expressed continued concern about the potential socio-economic impacts of an increased approach distance for all Pacific killer whales and the level of enforcement needed to ensure compliance and effectiveness.
For other Pacific killer whales, not including Southern Resident Killer Whales, respondents had mixed responses for increasing the approach distance. While Industry and tourism respondents agreed that there should be no further increase in approach distances for non-Southern Resident Killer Whales, respondents from academia and non-profit organizations urged for an increased approach distance of 400m for other Pacific killer whale ecotypes as well.
Respondents raised concerns with an increased approach distance for boaters, as there is difficulty spotting and differentiating Southern Resident Killer Whales from other ecotypes at 1000m. Respondents also urged further clarity on conditions for vessels in transit and considerations for boating safety (e.g. navigation in and around narrow channels). Additionally, many respondents strongly supported the alteration of the existing spatial boundaries for the approach distance, including year-round application, to ensure efficiency in the measure and protection of Pacific killer whales.
There was mixed support for changing "approach distance" to "avoidance distance" under the amended MMRs. While some respondents, including marine conservation and education groups and recreational fishing associations, thought ‘avoidance distance' provided more clarity to the public and strongly supported the amendment, others expressed concern on vessels that cannot control their “avoidance distance” due to the unpredictable behaviour of whales.
There was further concern from some respondents that this may lead to boaters attempting to maneuver away from whales to avoid approaching whales, putting themselves and the whales at greater risk. Many agreed further definitions and clarity should be provided in the amended regulations as well as incorporated with existing licensing systems (such as pleasure craft operator courses) to improve public education and compliance.
Public
Respondents from the public expressed concern for Pacific killer whales and urged continued protection for Southern Resident Killer Whales. While some respondents proposed a 1000m approach distance for Southern Resident Killer Whales, public feedback was divided on keeping the 200m approach distance or increasing it to 400m for other Pacific killer whales.
The majority of respondents supported the change of terminology from “approach distance” to “avoidance distance” to ensure clarity with recreational boaters and ocean users. Additionally, there was strong support for increased public outreach and engagement to ensure compliance.
Sustainable Whale Watching Authorization
Indigenous governments and organizations
Indigenous Governments and Organization feedback expressed mixed opinions regarding the continuation of the Sustainable Whale Watching Authorization (to view non-Southern Resident Killer Whales at a closer distance while avoiding the viewing of Southern Resident), as per Transport Canada's Interim Order. While some respondents expressed support in the continuation of the Authorization, many Indigenous Communities and Organizations do not agree with the Authorization as they believe it increases disturbance to other Pacific killer whale ecotypes and causes confusion for recreational boaters and ocean users. Many Indigenous respondents supported a formalized licensing system for commercial whale-watching, urging the need for stricter requirements for whale-watchers such as restricting the number of vessels on the water, implementing viewing time restrictions and increasing fines associated with non-compliance.
Additional considerations included the need for increased and effective compliance and enforcement of this Authorization, including confidence in industry and enforcement agencies in accurately identifying Southern Resident Killer Whale versus non-Southern Resident Killer Whales.
Indigenous respondents expressed the importance of proper engagement to ensure conservation measures do not infringe on section 35 Indigenous rights and traditional practices, including the right to fish for food, social and ceremonial purposes.
Stakeholders
Academia and non-profit organization respondents recommended consistency in approach distances for all Pacific killer whales across vessel type, to minimize confusion on the water and improve enforcement. Industry and small business group respondents expressed great concern about the impact on their business and the economy of British Columbia if they were unable to approach other Pacific killer whales up to the current 200m. Industry member respondents supported the discontinuation of the whale-watching Authorization if the MMRs had a separate approach distance of 1,000m for Southern Resident Killer Whales and a continued 200m approach distance for non-Southern Resident Killer Whales. Respondents noted this would ensure consistency across ocean users and would allow for improved public messaging and enforcement. Industry respondents expressed the importance of commercial whale-watching companies as they provide a sentinel function on the water and contribute to research and conservation of Pacific killer whales.
Although there were mixed responses submitted on the proposed continuation of the sustainable whale-watching authorization, many respondents support prohibiting vessels from positioning themselves in the path of marine mammals, including Pacific killer whales. Respondents expressed the need for enhanced enforcement to avoid marine mammal harassment on the water, and some suggested increasing monetary fines for those found non-compliant.
Respondents also recommended the need for a formalized licensing system for commercial whale-watching operators, as done in Washington State. Academia and non-profit organizations expressed concerns about increased pressure from whale watching and ecotourism companies on non-Southern Resident Killer Whales and other cetacean species and the need for regulation of the industry. Some industry members expressed this concern as well, noting they would be supportive of a long-term strategy for licensing commercial whale-watching in the future, while other industry members indicated they do not believe there is increased pressure on non-Southern Resident Killer Whales. Some respondents also recommended additional approach distance prohibitions for whale-watching of all cetaceans, and implementing licencing requirements such as regulating the number of boats permitted at a time, the number of days or hours for commercial operation, limiting the viewing duration of Pacific killer whales and other whales, and identifying areas that restrict vessel disturbance and whale-watching activities.
Public
There was strong support from the public to discontinue the current Interim Order's sustainable whale-watching Authorization, along with support to invest in a formalized licensing system for commercial whale-watching operators. The main reasoning for this included confusion on the water from recreational boaters, who use commercial whale-watching vessels as guidelines for how close they can approach killer whales. As such, respondents recommended the same approach distance across all ocean users, to ensure consistency on the water, reduce disturbances and improve compliance amongst recreational boaters. Additionally, respondents recommended more guidelines and education for boaters operating around marine mammals, such as when they unintentionally find themselves in the path of a whale (i.e., the whale approached their vessel).
Respondents from the public also echoed concerns from academia and non-government organizations about the increased pressure from whale-watching and ecotourism companies on non-Southern Resident Killer Whales. The majority of respondents supported a formalized licensing system that would regulate commercial whale-watching operators and that would protect all Pacific killer whales, not just Southern Resident Killer Whales.
Drones
Indigenous governments and organizations
Respondents from Indigenous Governments and Organizations expressed support for clearly defining drones as “aircraft” in the Marine Mammal Regulations to improve compliance and reduce disturbance to marine mammals. Respondents also recommended this be coupled with enhanced outreach and education efforts, including signage in different languages, to ensure public awareness.
Stakeholders
Most respondents supported the inclusion of drones in the “aircraft” definition to ensure clarity and reduce disturbance to marine mammals. Many stakeholder respondents recommended further national guidance for drone operations near marine mammals, outside the proposed amendment. Respondents noted that U.S counterparts from the National Oceanic and Atmospheric Association (NOAA) are considering future marine mammal guidelines for drones and recommended consistency and collaboration between the two countries. Many stakeholders expressed the importance of drone work under a scientific licence, as this allows for a less invasive research method to better document and study marine mammals and inform the development of improved recovery measures in the future.
Public
Respondents from the public expressed strong support for clearly defining drones as “aircraft” under the Marine Mammal Regulations and expressed the need for enhanced public outreach and engagement, such as signage around harbours and coastal paths to ensure compliance from the public and tourists.
Additional considerations
In addition to providing feedback for the proposed Marine Mammal Regulation amendments, many respondents recommended increasing public education and enforcement to ensure ongoing protection for Pacific Killer whales. Input for public outreach and education included recommendations for incorporating clear guidelines into mandatory boating courses and increased outreach campaigns to improve awareness and compliance, particularly among recreational boaters and for local coastal communities.
For enhanced enforcement, respondents identified the need for increased enforcement presence, either on the water or aerial, and higher penalties for non-compliance, making violations ticketable offenses similar to fisheries regulations. Additional interest was expressed to establish a comprehensive policy for monitoring and reporting violations to aid in enforcement efforts.
Additional suggestions included interest to regulate and reduce vessel speed to 7 knots within 1 km of a whale and to address impacts from seismic operations under the Marine Mammal Regulations.
Conclusions & next steps
Engagement and consultation on Marine Mammal Regulations amendments related to Southern Resident Killer Whale recovery began in the fall of 2023. The first phase of engagement and consultations involved sharing the process on the potential Marine Mammal Regulations process and receiving feedback from First Nations, Indigenous groups and stakeholders. The second phase was national in scope to seek feedback on amending the Marine Mammal Regulations to increase Pacific killer whale approach distances and proposed administrative amendments. This included a National Consultation Survey (June 3 – September 3, 2024) that sought Canada-wide input and feedback from First Nations, stakeholders and the public to help inform the proposed amendment which encompassed proposed administrative amendments and proposed amendments related to Pacific Killer Whales. During the second phase, DFO met with First Nations and stakeholders to listen to feedback on the amendment process, as well as consider additional written feedback received during the consultation period. The results of all the above-mentioned engagements and consultations will be used to develop a proposed amendment package that will be published in Canada Gazette I for further feedback from Canadians. Following Canada Gazette I, the Department will review feedback and revise as necessary before publication in Canada Gazette II. Once published in Canada Gazette II, the regulation becomes official.
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