Southern Resident Killer Whale: conservation agreement, 2019

Official title: A Species at Risk Act section 11 conservation agreement to support the recovery of the Southern Resident Killer Whale

This Species at Risk Act (SARA) Section 11 Conservation Agreement (the “Agreement”) to support the recovery of the Southern Resident Killer Whale is made as of this day of May 10, 2019.

Between the Minister of Fisheries, Oceans and the Canadian Coast Guard, who is responsible for the Department of Fisheries and Oceans (“DFO”) and the Minister of Transport, who is responsible for the Department of Transport (“TC”) and the Vancouver Fraser Port Authority (“VFPA”) and the Pacific Pilotage Authority (“PPA”) and the Chamber of Shipping of British Columbia (“CSBC”) and the Shipping Federation of Canada (“SFC”) and Cruise Lines International Association (“CLIA”) and the Council of Marine Carriers (“CMC”) and the International Ship Owners Alliance of Canada (“ISAC” together with CSBC, SFC, CLIA and CMC the “Associations”)
(Collectively, the “Parties” and each a “Party”)

Preamble

Whereas the Southern Resident Killer Whale (SRKW) is a species listed as endangered under part 2 of Schedule 1 of SARA;

And whereas the purposes of SARA are to prevent wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity and to manage species of special concern to prevent them from becoming endangered or threatened;

And whereas the Minister of Fisheries, Oceans and the Canadian Coast Guard is the competent minister under SARA for aquatic species, except with respect to individuals in or on federal lands administered by the Parks Canada Agency;

And whereas Canada is committed to the long-term conservation, survival and recovery of aquatic species at risk to ensure the long-term viability of species and to enhance their survival in the wild;

And whereas the recovery strategy and the action plan identify three major anthropogenic threats to the recovery of the SRKW population including reduced prey availability, environmental contaminants and acoustic and physical disturbance;

And whereas on May 24, 2018 the Minister of Fisheries, Oceans and the Canadian Coast Guard and the Minister of Environment and Climate Change Canada, as the Minister responsible for Parks Canada Agency, as competent ministers for the SRKW announced that they were of the opinion that the SRKW population faced imminent threats to its survival and recovery;

And whereas TC has jurisdiction over maritime traffic, has a mandate to promote  efficient, environmentally responsible and safe transportation, and has a responsibility to address the environmental impacts of maritime transportation and to mitigate the effects of acoustic and physical disturbance and ship strikes on endangered marine mammals;

And whereas DFO collaborates to create the conditions necessary to enable responsible management and recovery of aquatic species at risk;

And whereas the VFPA has a mandate to facilitate Canada’s trade objectives, ensuring goods are moved safely, while protecting the environment and considering local communities;

And whereas in 2014 the VFPA initiated the Enhancing Cetacean Habitat and Observation (ECHO) Program with the aim of better understanding and managing the impact of large commercial vessels activities on at-risk whales throughout the southern coast of British Columbia and with a long-term goal of developing mitigation measures that lead to a quantifiable reduction in threats to whales as a result of shipping activities;

And whereas DFO is acting in its role to support implementation of the recovery strategy and the action plan as it pertains to recovery objective 3 for SRKW to ensure that disturbance from human activities does not prevent recovery;

And whereas TC is acting in its role of managing the impact of large commercial vessels on SRKW;

And whereas the other Parties are acting in their capacity as participants in the ECHO program;

And whereas since 2014 the ECHO Program has benefited from ongoing input, advice and collaboration from the VFPA, PPA, the Associations and other members including Government of Canada representatives, scientists, Indigenous individuals and conservation and environmental groups, which assist the ECHO Program in its focus of research efforts, set goals and objectives and implement voluntary measures;

And whereas much of the ECHO Program’s focus to date has been on better understanding and reducing acoustic impacts of large commercial vessels on SRKW,  and in 2017 and 2018, the ECHO Program developed, implemented and monitored voluntary measures focused on reducing underwater noise from large commercial vessels within key foraging areas of SRKW critical habitat;

And whereas the PPA has a mandate to provide safe, reliable and efficient marine pilotage and related services in the coastal waters of British Columbia;

And whereas the Associations represent large commercial vessels and commit to continue working to ensure their respective members are contributing to efforts to reduce acoustic and physical threats to the SRKW from their operations;

And whereas the Parties recognize the value of the stewardship approach to species conservation, and have demonstrated commitment to the collaborative process in the conservation, survival and recovery of SRKW as facilitated by the ECHO Program;

And whereas the Parties wish to cooperate in the taking of measures to support survival and recovery of the SRKW as aligned with the recovery goal and objectives in the recovery strategy and recovery measures in the action plan, as well as in any future recovery documents prepared in accordance with SARA legislative requirements;

And whereas the critical habitat of SRKW is currently defined to include coastal waters off British Columbia and overlaps with the shipping lane used by large commercial vessels that call at the Port of Vancouver;

And whereas Section 11 of SARA provides that the competent minister may, after consultation with every other competent minister, and with the Canadian Endangered Species Conservation Council or any of its members if he or she considers it appropriate to do so, enter into a conservation agreement with any government in Canada, organization or person to benefit a species at risk or enhance its survival in the wild.  

And whereas such a conservation agreement must provide for the taking of conservation measures and any other measures consistent with the purposes of SARA, and may include measures with respect to monitoring the status of the SRKW population; developing and implementing education and public awareness programs; developing and implementing recovery strategies, action plans and management plans; protecting the SRKW populations’ habitat, including its critical habitat; or undertaking research projects in support of recovery efforts for the SRKW population.

And whereas the Parties recognize the need for an adaptive approach to guide and adjust over time those conservation measures taken pursuant to this agreement, as more information becomes available.

And whereas there are no current regulations that relate to reducing threats specifically from large commercial vessels in SRKW critical habitat;

Now therefore, the Parties commit to the following:

1 Definitions

• 1.1. the following terms defined hereunder and used in this agreement, when capitalized, will have the following meaning:
  • 1.1.1 “action plan” means the SARA Action Plan for the Northern and Southern Resident Killer Whale (Orcinus orca) in Canada, 2017
  • 1.1.2 “acoustic disturbance” means anthropogenic noise that interferes with SRKW life functions including feeding and foraging, reproduction, socializing, and resting such that the marine environment cannot support effective acoustic social signalling and echolocation and results in loss of habitat availability and/or function
  • 1.1.3 “annual report” means an annual public report describing the implementation of measures undertaken as part of this agreement which will address:
    • 1.1.3.1 progress against annual and five-year term commitments made by the Parties under this agreement
    • 1.1.3.2 a summary of annual research findings
  • 1.1.4 “best available information” includes relevant scientific, technical, navigational safety, operational, commercial and economic data, community and Indigenous traditional knowledge
  • 1.1.5 “committee” means a committee entitled the Conservation Agreement Management Committee, created by the Parties under the ECHO Program, to oversee the implementation and the effectiveness of this agreement
  • 1.1.6 “ECHO program” means the VFPA-led Enhancing Cetacean Habitat and Observation Program which is aimed at better understanding and managing the impact of shipping activities on at-risk whales throughout the southern coast of British Columbia
  • 1.1.7 “effective Date” means the date of the last signature affixed to this agreement
  • 1.1.8 “large commercial vessels” means vessels such as bulk carriers, tankers, container or cruise vessels to which the International Convention for the Safety of Life at Sea applies and to tugs which are engaged in towing other vessels or objects or assisting in the manoeuvring of ocean going vessels
  • 1.1.9 “physical disturbance” the physical presence and proximity of large commercial vessels to individual SRKW that impedes functions such as feeding, foraging, reproduction, socializing or resting , which may affect SRKW at both the individual and population level;
  • 1.1.10 “recovery strategy” means SARA Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada (2008, amended in 2011, and 2018)
  • 1.1.11 “SARA” means the Species at Risk Act
  • 1.1.12 “SRKW” means Southern Resident Killer Whale
• 1.2 for those terms that are defined in SARA, the terms in SARA apply to this agreement, unless defined in section 1 of this agreement

2 Goal and purpose

• 2.1 the goal of this agreement is to reduce the acoustic and physical disturbance to SRKW by large commercial vessels in Pacific Canadian waters, in particular those vessels that call at the Port of Vancouver, or otherwise operate in SRKW critical habitat, through the continuation of existing voluntary efforts and the commitment to develop and implement new voluntary threat reduction measures to support the recovery of the SRKW
• 2.2 the purposes of this agreement are to:
  • 2.2.2 formalize the participation of the Parties in the ECHO Program, through which participation the Parties will work collaboratively towards the development, implementation, monitoring, assessment and adaptation of voluntary measures to reduce the contribution of large commercial vessels to threats to SRKW
  • 2.2.2 formalize the role of the ECHO Program in advancing research and educational outreach to better understand how large commercial vessels contribute to threats to SRKW and their critical habitats

3 Principles

• 3.1 The following principles will guide interpretation and implementation of this agreement:
  • 3.1.1 collaboration – the Parties will cooperate in the development, delivery, testing, monitoring and evaluation of measures that may better inform and reduce the contribution of large commercial vessels to the threats to SRKW
  • 3.1.2 threat reduction – the efforts of the Parties will be designed to work toward achieving quantifiable reductions to the contribution of large commercial vessels to the threats to SRKW
  • 3.1.3 safety – navigational safety will be a primary consideration in the development and delivery of measures to reduce the contribution of large commercial vessels to the threats to SRKW
  • 3.1.4 commercial and operational realities – the Parties will take commercial and operational realities of ship owners, operators and ship agents into consideration in the development and delivery of measures to reduce the contribution of large commercial vessels to the threats to SRKW
  • 3.1.5 adaptation  – the Parties recognize that monitoring the effectiveness of existing and future threat reduction measures to abate threats from large commercial vessels and adjusting approaches as necessary will be critical to success
  • 3.1.6 co-benefits – the Parties will seek opportunities to implement threat reduction measures for SRKW that may also offer co-benefits to other species at risk
  • 3.1.7 transparency – the Parties will make non-confidential information related to the development, implementation and monitoring of research and threat reduction measures publicly available subject to section 8.2 of this agreement, any applicable data sharing agreements and any legislative provisions that would prevent them from doing so
  • 3.1.8 engagement – the Parties will seek opportunities for engagement with Indigenous groups and other key stakeholders as collaborators or partners

4 Interpretation

• 4.1 the preamble hereof and any appendices hereto form an integral part of this agreement
• 4.2 this agreement is not intended to create any legally binding obligations, duties, commitments or liabilities (contractual or otherwise) on any of the parties. Nor does it create any new legal powers on the part of the Parties or affect in any way the powers, duties and functions of the Minister of Fisheries and Oceans under the SARA, the Fisheries Act or any other federal legislation, or the Minister of Transport under the Canada Shipping Act, 2001, the Canada Marine Act, or any other federal legislation
• 4.3 the Minister of Fisheries, Oceans and the Canadian Coast Guard enters into this agreement under the authority of Section 11 of SARA

5 Actions to support the recovery of Southern Resident Killer Whale (SRKW)

• 5.1 the Parties acknowledge that:
  • 5.1.1 recovery of the SRKW population will require an ecosystem approach applied on a long-term basis that takes into consideration all three main threats to SRKW and will require additional measures to those undertaken by the Parties pursuant to this agreement
  • 5.1.2 effective implementation of recovery measures is a multifaceted and complex undertaking that depends on the commitment and cooperation of many different constituencies that will be involved in implementing the directions set out in the recovery strategy and action plan and is subject to appropriations, priorities, and budgetary constraints of the participating jurisdictions and organizations
  • 5.1.3 other limiting factors that may affect SRKW survival and recovery are beyond the influence of the Parties, including but not limited to events occurring in SRKW critical habitat in US waters
  • 5.1.4 with the best available information from the voluntary measures focused on reducing underwater noise from large commercial vessels within key foraging areas of SRKW critical habitat which have been implemented to date and show positive benefits in terms of underwater noise reduction, the Parties commit to ongoing implementation of similar voluntary efforts in support of SRKW survival and recovery
• 5.2 in support of the goal set out in section 2.1 and subject to section 9.1, the Parties commit to the relevant measures below, which are further detailed in Appendix A
  • 5.2.1 VFPA commits to the following:
    • continuing to manage the ECHO Program, including the following measures:
      • provide an ongoing framework for engagement, trust building, collaboration and information sharing for the Parties and other ECHO Program participants
      • coordinate with the Parties and other ECHO Program participants to develop and implement annual work plans that support the goal of the agreement
      • coordinate with the Parties the advancement of selected research projects to fill priority knowledge gaps and inform the development of SRKW threat reduction targets and measures for large commercial vessels
      • coordinate with the Parties and other ECHO Program participants to identify appropriate, biologically relevant SRKW threat reduction targets for large commercial vessels using best available information
      • coordinate with the Parties and other ECHO Program participants to develop and implement measures that have the potential to reduce threats to SRKW from large commercial vessels
      • coordinate with the Parties and other ECHO Program participants to monitor, evaluate and report on the efficacy of those threat reduction measures
      • coordinate with the Parties and other ECHO Program participants to integrate new information, as appropriate, into an adaptive framework for planning and implementation of future measures
      • maintain educational outreach efforts to raise awareness of new and emerging research and measures relating to large commercial vessels
    • working with TC to develop a strategy to encourage underwater noise reduction incentives in other ports in Canada and internationally
  • 5.2.2 the PPA commits to the following:
    • continuing to actively participate in the ECHO Program to advance the development and implementation of SRKW threat reduction targets and measures addressing impacts from large commercial vessels
    • continuing to support evaluation, and provide input on the navigational safety aspects of relevant research projects and voluntary measures being implemented through the ECHO Program
    • continuing to support the ECHO Program with the provision of data from PPA vessel transit records
    • continuing to make all efforts to encourage a high level of participation from the BC Coast Pilots in the voluntary measures being implemented through the ECHO Program
    • exploring opportunities to improve efficiencies in the pilotage system to reduce barriers to participation in the voluntary initiatives
  • 5.2.3 the Associations commit to the following:
    • Continuing to actively participate in the ECHO Program to advance the development and implementation of SRKW threat reduction targets and measures addressing impacts from large commercial vessels
    • continuing to support evaluation, and provide input on the navigational safety aspects of relevant research projects and voluntary measures being implemented through the ECHO Program
    • continuing to support research efforts to identify and implement technical solutions such as, for instance, vessel design or retrofit options, to reduce underwater noise from large commercial vessels
    • continuing to make all efforts to encourage a high level of participation from their members in the voluntary measures being implemented through the ECHO Program
  • 5.2.4 TC commits to the following:
    • continuing to actively participate in the ECHO Program and providing timely advice on key government priorities
    • sharing data and outcomes of TC research projects with the ECHO Program participants
    • continuing to lead discussions and collaborations with the United States Coast Guard, the Canadian Coast Guard, Indigenous groups and other relevant stakeholders as it relates to the development and implementation of voluntary SRKW threat reduction measures referred to in this agreement, in or near trans-boundary waters
    • continuing efforts to develop an underwater hydrophone network in SRKW critical habitat to better assess the underwater noise contributions of vessels and measure the noise profile of individual vessels
    • providing international leadership on the issue of quiet ship design, and engaging with the other Parties to ensure ongoing input and involvement in international discussions on technical solutions to underwater noise mitigation
    • continuing to discuss with the Parties the challenges that ship owners may face as a result of the implementation of voluntary measures under this agreement, and work to identify ways to potentially mitigate those impacts, if possible
    • working with VFPA to develop a strategy to encourage underwater noise incentives in other ports in Canada and internationally
  • 5.2.5 DFO commits to the following:
    • continuing to actively participate in the ECHO Program and providing timely advice on key government priorities and on the development of programs and projects to ensure they support the survival and recovery needs of the SRKW, as well as sharing data and outcomes of DFO-led SRKW research projects
    • continuing efforts to develop an underwater hydrophone network in key areas in support of the implementation of the agreement
    • cooperating and consulting with the other Parties on the amendment, if any, of the recovery strategy and action plan and insofar as it is able, provide the other Parties with an advanced opportunity to comment and provide feedback on the proposed measures for survival, recovery and protection of SRKW
• 5.3 the Parties will work together to identify and consider the application of technological, design and operational methods of reducing threats to SRKW from large commercial vessels
• 5.4 the Parties will work together to identify needs, priorities and funding opportunities to implement the engagement, research, outreach and threat reduction measures identified in this agreement
• 5.5 through the ECHO Program, the Parties will work together to identify possible geographic areas within SRKW critical habitat to trial and implement voluntary measures that operationally mitigate underwater noise from large commercial vessels

6 Governance

• 6.1 the Parties will establish the Committee to oversee the implementation and the effectiveness of this agreement
• 6.2 the Committee will have representation from one member of each of the Parties, and be governed by a terms of reference developed and agreed to by the Committee
• 6.3 the Committee will meet a minimum of once per year

7 Monitoring and reporting

• 7.1 as part of the ECHO Program’s annual work planning and evaluation process, the Committee will ensure that a monitoring and assessment framework is developed and implemented to facilitate measurement of progress on actions identified within this agreement
• 7.2 the Committee will ensure that goals, milestones and timelines are included in the monitoring and assessment framework and that, employing an adaptive approach, these goals, milestones and timelines are revisited and updated annually
• 7.3 the Committee will review the status of this agreement against the agreed upon monitoring and assessment framework and working with the ECHO Program prepare and issue the annual report
• 7.4 based on the annual report, the Parties will evaluate the actions annually and propose any additional commitments to increase the likelihood of achieving reductions to any acoustic and physical disturbance from large commercial vessels to support the recovery of SRKW
• 7.5 prior to the end of year five of this agreement, the Committee, working with the ECHO Program, will prepare a report on outputs, outcomes and deliverables of the agreement in relation to reducing threats to SRKW from large commercial vessels. This report will be used to inform discussions on possible renewal of this agreement

8 Information sharing

• 8.1. each Party agrees, subject to section 8.2 and to any applicable data sharing agreements, policies and legislative provisions that would prevent them from doing so, to provide the other Parties access at no charge to available data and information relevant to the implementation of this agreement
• 8.2. some data and information, such as vessel specific data, may be considered commercially sensitive and require confidentiality or may have been obtained with an understanding of confidentiality. Data and information so identified by a Party, or a collaborator in programs and activities related to this agreement, will be held confidential by the VFPA, as manager of the ECHO Program, and shall not be distributed to any other Parties or beyond at any time or in any manner, without the explicit agreement of the affected Party or collaborator in programs
• 8.3. DFO shall share information with, and provide notification to, the other Parties of upcoming recovery and planning initiatives and implementation in as timely a manner as feasible
• 8.4. TC shall share information and provide notification to the other Parties of activities, events or projects in the area covered by this agreement that could reasonably affect measures outlined to be taken in this agreement in as timely a manner as feasible
• 8.5. the VFPA, PPA and Associations shall share information and provide notification to the other Parties, in so far as they are able to and in as timely a manner as feasible, of activities, events or projects in the area covered by this agreement that could reasonably affect measures outlined to be taken in this agreement

9 Financial consideration

• 9.1 the Parties acknowledge and agree that implementation of this agreement and the commitments of the Parties contained herein are subject to their respective appropriations, priorities, funding and budgetary constraints

10 Term, modification and renewal

• this agreement commences on the effective date and will remain in force for a term of five years from the effective date
• this agreement can only be amended or extended with the written consent of all of the Parties
• any Party may withdraw from this agreement by giving not less than three months written notice to the other Parties
• each Party acknowledges that should it fail to implement the commitments it has made in this agreement, the remaining Parties, acting jointly, have the discretion to require that Party to withdraw from the agreement
• the Parties may include additional non-governmental conservation organizations, government agencies, industry and other sectors to this agreement, with the mutual written consent of all the Parties

11 Dispute resolution

• 11.1 the Parties will endeavour to resolve issues regarding the interpretation and implementation of the agreement in a timely manner using mechanisms available at the Committee level and agree to share all relevant information, negotiate in good faith, and use an interest-based approach to produce a fair resolution. Where a dispute arises under this agreement that cannot be resolved through this approach or, if necessary, by consultations between the representatives of the Parties, it shall be processed as follows:
  • 11.1.1 the complaining Party shall prepare a written statement summarizing the issues, and shall deliver the statement to the Committee
  • 11.1.2 within 30 days from the submission of the statement, the Committee shall convene a meeting between a senior executive of Environmental Policy for TC and/or DFO and a chosen representative from each of the other Parties, but not the complaining Party, to resolve the dispute. Delegates of these Parties will be allowed only if the delegates have full decision-making authority to attempt to resolve the dispute
  • 11.1.3 if the parties are unable to resolve the dispute, then the complaining Party may give notice to withdraw from the agreement in accordance with section 10.3

12 Enhancing Cetacean Habitat and Observation (ECHO) program not fettered

• 12.1 nothing in this agreement shall alter the governance structure, goal or mission of the ECHO Program. Furthermore, nothing in this agreement shall derogate or otherwise fetter the ability of the VFPA to alter, modify or discontinue the ECHO Program at any time or from time to time

13 Association not fettered

• 13.1 nothing in this agreement shall alter the mandate and the activities of the Associations

14 Parliament not fettered

• 14.1. nothing in this agreement shall in any way affect the powers, duties or functions of the Parliament of Canada or the executive

15 Minister not fettered

• 15.1. nothing in this agreement shall in any way affect the powers, duties or functions of the Minister of Fisheries, Oceans and the Canadian Coast Guard, the Minister of TC or any other Minister

16 Signatures

In witness whereof, the Parties have executed this Conservation agreement as of the dates set out below:

Jonathan Wilkinson
Minister of Fisheries, Oceans and the Canadian Coast Guard
Signed on the 10 day of May 2019.

Terry Beech
Parliamentary Secretary to the Minister of Transport
Signed on the 10 day of May 2019.

And

On behalf of the Vancouver Fraser Port Authority, as represented by its President and Chief Executive Officer and Corporate Secretary:

Robin Silvester, President and Chief Executive Officer
Signed on the 10 day of May 2019.

Mark Gustafson, Corporate Secretary
Signed on the 10 day of May 2019.

On behalf of the Pacific Pilotage Authority, as represented by its Chief Executive Officer:

Kevin Obermeyer, Chief Executive Officer
Signed on the 10 day of May 2019.

On behalf of the Chamber of Shipping of British Columbia, as represented by its President:

Robert Lewis-Manning, President
Signed on the 10 day of May 2019.

On behalf of the Shipping Federation of Canada, as represented by its President:

Michael Broad, President
Signed on the 10 day of May 2019.

On behalf of the Cruise Lines International Association, as represented by its Senior Vice President, Maritime Policy:

Brian Salerno, Senior Vice President, Maritime Policy
Signed on the 10 day of May 2019.

On behalf of the Council of Marine Carriers, as represented by its President:

Phil Nelson, President
Signed on the 10 day of May 2019.

On behalf of the International Ship-owners Alliance of Canada, as represented by its Secretary General:

Lanna Hodgson, Secretary General  
Signed on the 10 day of May 2019.

Conservation agreement

Appendix A: Southern Resident Killer Whales recovery measures table

Party leading activity:

$ Vancouver Fraser Port Authority
# Government of Canada (GoC: TC and/or DFO)
* All Parties

A. Regional engagement and collaborative efforts

B. International engagement and collaborative efforts

C. Data Collection and research

D. Initiatives to reduce underwater noise from large commercial vessels (LCVs)

E. Initiatives to reduce physical disturbance from large commercial vessels