Category Archives: Fed Govt. work

Race Rocks: Legislative Gaps in Protecting Inshore Marine Protected Areas : Ken Dunham

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Ken Dunham, a graduate of Pearson College UWC,  now enrolled in a Law program at the University of Ottawa has submitted the following as a class assignment in Natural Resources Law, CML 1105H for Professor Stewart Elgie.

See the complete paper in this PDF: Race Rocks Legal Analysis-1

Introduction

Canada is a country of incredible natural beauty and ecological diversity, a significant portion of which has been protected under a system of national and provincial parks and other reserves. One might think that it would be a straightforward matter to similarly protect another unique ecological zone. Especially if it was small, located in a relatively remote location, and there was no suggestion that it should be used for anything else.

This paper explores why this is not so simple in the context of inshore marine areas. Canada’s constitutional / legal framework creates several gaps and overlaps with respect to the environment. The broader issue is not with any particular piece of legislation, but rather the sometimes-narrow context in which each was devised. This is further complicated by how the various statutory pieces fit together (or not) under the division of powers outlined in Canada’s constitution.

These issues can frustrate even the most straightforward project that attempts to carve out a little bit of nature for the benefit of future generations, as exemplified by Race Rocks.

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Conclusion

From a legal and constitutional perspective, the most comprehensive protection for Race Rocks would involve the Province of British Columbia transferring the islets and neighboring seabed to the federal government, followed by designation of Race Rocks as a Marine Conservation area under the CNMCAA.93 This would place stewardship of Race Rocks under one government and one minister.

The alternate approaches all involve significant legislative, constitutional, and ministerial gaps that leave major eco-systems at Race Rocks without complete protection.

An outright fishing ban within the boundaries of the Race Rocks reserve would greatly simplify enforcement and prosecution.

Regardless of the approach taken, continued involvement of the local First Nations is essential, given their Douglas Treaty fishing rights and various Aboriginal claims currently being negotiated. The First Nations perspective is that they should be one of three governments sharing decision-making authority as equals, and not merely labelled as just another stakeholder to be “consulted” (i.e. possibly ignored).

See the complete paper in this PDF: Race Rocks Legal Analysis-1

 

Visitors to the Reserve

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Yesterday the Coast Guard helicopter crew stopped in on their way back from the Carmanah lighthouse station to complete some maintenance work that they were unable to do the day before.

During the night, Squall had climbed up to the base of the lighthouse to get away from Misery.  When the chopper landed it was only about 20 ft away but she didn’t seem too bothered.

Squall is elongating well and visibly moulting around her face.

 

This morning Chris came out in Second Nature with two architects who are working with the college, a member of the College’s Board of Trustees with his wife and 3 kids.

Also  Maxim ( IT) worked on installing the new camera 5.   We should have Cam 5 running sometime next week.

Coast Guard Visit

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Around noon today  a Coast Guard helicopter landed on the West side of the light tower. The pilot and two technicians stayed for about an hour to do a maintenance check on the fog signal and signal light.

 

 

 

 

 

Squall has been around the flagpole, she got more attention today than usual but didn’t seem bothered by the commotion.  Misery was on the island in the morning  and went into the water in the afternoon.

Sunny and warm this afternoon.

Sea lion juvenile

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As Ecological Reserve Warden,  I was concerned with the report of continued blasting by the DND given the recent noting of a nursing northern sea lion at Race Rocks. The following is an account of the concern, starting with an e-mail and pictures from the Ecoguardian, Ryan Murphy

Subject “New Development”
Sept 27,2011

“I’m not sure if the LGL guys noticed this or not… but we have a nursing Steller sea lion pup on Great Race.  You’ll see in the photos that the mother is definitely lactating and the pup is nursing on the rock above the jetty (West side).  Since Eumetopias jubatus is listed under SARA as Special Concern, I believe this is very significant.  DND’s activity at Bentinck Island has not included intervals between blasts to reduce sea lion stampedes, and this pup is definitely at risk of trampling if DND continues their activities as they have for the past 2 days.-
Subject: continued blasting
Date:   September 28, 2011 8:30:18 AM PDT

“No need to worry about DND blasting, the landing of LGL personnel and subsequent standing around at the jetty caused a mass stampede with about 50 animals taking to the water including the pup.”

Subject Update
Date:   September 28, 2011 9:26:18 AM PDT
“Just so you know, the larger blasts are still coming back to back.  I don’t know if LGL communicated the need for increased intervals, but regardless there is no change.  The sea lions continued to be disturbed and take to the water with the rapid succession blasts.”

Subject: update
Date:   September 28, 2011 4:57:03 PM PDT
“The pup has been back since at least 14:30.  I have not seen its mother and it is sporting a fresh 2″ cut on its shoulder.  Otherwise looks to be ok, it has been sitting upright trying to stay awake and nodding off as babies will.”
Subject:    Re: New development
Date:   September 29, 2011 7:04:02 AM PDT

“The pup is still here this morning, the mother is not with it.”

Subject: DND report
Date:   September 29, 2011 9:21:24 AM PDT

“As per the log at 9:21 this morning:
Two absolutely massive explosions that shook the house occurred only 10 seconds apart.  The glass panes in the windows rattled against their metallic frames.  At least 70 sea lions stampeded into the water, completely clearing out entire haul out areas.  About 20 sea lions stampeded through the area where the Steller pup was resting.”

As a result of this account of events, I sent an e-mail to BC Parks and DND administration stating the following:

From: Garry Fletcher
Sent: Thursday, September 29, 2011 10:20 AM
Subject: Fwd: New development

I was very concerned to receive the following  reports and images  from Ryan Murphy our Guardian at  Race Rocks. I think it warrants a followup considering the concerns we have for marine mammals being disturbed by human activities, especially those which are SARA listed.
Surely they have enough data by now to show that the window for doing this blasting program might perhaps be reconsidered.  We would appreciate hearing of any followup .

FOLLOWUP:  So far ( November, 2011) there has been none. The juvenile and mother were not seen again, research by LGL  (LGL who are referred to are the DND contracted research group who is at the island again this year to make observations on the effects of detonations at Bentinck Island.) The disturbance to animals by DND blasting continued unabated over the next few days.  Their previous reports up to 2010 are included here. The report for this year will be added here when it is available.

Heavy traffic in the reserve

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California Sea Lion: 14
Human Interaction
At ~1935hrs PDT a vessel was spotted fishing within the limits of the RCA in close proximity to the E. side of Rosedale Reef. The vessel eventually made its way out.

At 1245hrs PDT a vessel was spotted speeding into the Reserve from the E side. The station vessel was already on the water and advised the mariners to slow down.

At least 4 OBMG vessels were spotted this afternoon approaching close to mammals on Middle Rock and on Great Race and proceeding at a speed in excess of 7 knots.

Ocean Magic II produced a very large wake this afternoon while transiting the Middle-North Race channel against the current. This is the largest eco-tour vessel seen so far within the reserve

At 1945hrs PDT a CCG or CCGA rescue RHIB transited the South Passage E to W, then the main passage W to E. Once near the jetty end of the passage, the vessel throttled up and proceeded to power through the Middle-North Race Passage at high speed before exiting into Race Passage heading westbound.

At 2010hrs PDT a floatplane flew exceptionally low over the N side of the Reserve, E to W. No license/company name obtained.

Overall, yesterday and today were very traffic-heavy days due to whales in the area. At times 8 or more boats were in the Reserve at any single time.

Two techs arrived from Environment Canada to finish servicing the EC weather equipment at the top of the tower.
There were 2 visitors to the island today.
Vessels:

Pleasure: 7 Eco-Tour: 30 Total: 37

maintenance work

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At 1111hrs PDT a Prince of Whales vessel was spotted entering the Reserve at high speed in close proximity to West Race.
A CCG helicopter did a reconnaissance flight around the tower this morning.
Erik and Evgeny arrived to install the cable for the new underwater camera. Two techs from Environment Canada arrived to work on their weather equipment.
There were 4 visitors to the island today
California Sea Lion: 8

Race Rocks (XwaYeN) Proposed Marine Protected Area Ecosystem Overview and Assessment Report

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Correct citation for this publication: Backe, N., S. Davies, K. Conley, G. Kosmider, G. Rasmussen, H. Ibey and K. Ladell.2011. Race rocks (XwaYeN) proposed marine protected area ecosystem overview and assessment report. Can. Manuscr. Rep. Fish. Aquat. Sci. 2949: ii + 30
Executive Summary
Background
Race Rocks (XwaYeN), located 17 km southwest of Victoria in the Strait of Juan de Fuca, consists of nine islets, including the large main island, Great Race. Named for its strong tidal currents and rocky reefs, the waters surrounding Race Rocks (XwaYeN) are a showcase for Pacific marine life. This marine life is the result of oceanographic conditions supplying the Race Rocks (XwaYeN) area with a generous stream of nutrients and high levels of dissolved oxygen. These factors contribute to the creation of an ecosystem of high biodiversity and biological productivity.In 1980, the province of British Columbia, under the authority of the provincial Ecological Reserves Act , established the Race Rocks Ecological Reserve. This provided protection of the terrestrial natural and cultural heritage values (nine islets) and of the ocean seabed (to the 20 fathoms/36.6 meter contour line). Ocean dumping, dredging and the extraction of non-renewable resources are not permitted within the boundaries of the Ecological Reserve. However, the Ecological Reserve cannot provide for the conservation and protection of the water column or for the living resources inhabiting the coastal waters surrounding Race Rocks (Xwa YeN) as these resources are under the jurisdiction of Fisheries and Oceans Canada (DFO). The federal government, through the authority of theOceans Act (1997), has established an Oceans Strategy, based on the principles of sustainable development, integrated management and the precautionary approach. Part II of the Oceans Act also provides authority for the development of tools nece ssary to carry out the Oceans Strategy, tools such as the establishment of Marine Protecte d Areas (MPA). This federal authority will complement the previously established protection to the area as an Ecological Reserve, by affording protection and conservation measures to the living marine resources. Under Section 35 of the Oceans Act, the Governor in Council is authorized to designate, by regulation, Marine Protected Areas (MPA) for any of the following reasons:

  • (a) the conservation and protection of commercial and non-commercial fishery resources, including marine mammals and their habitats;
  • (b) the conservation and protection of endangered or threatened species and their habitats;
  • (c) the conservation and protection of unique habitats;
  • (d) the conservation and protection of marine areas of high biodiversity or biological productivity; and
  • (e) the conservation and protection of any other marine resource or habitat as is necessary to fulfill the mandate of the Minister of Fisheries and Oceans.

In 1998, the Minister of Fisheries and Oceans announced Race Rocks (XwaYeN) as one of four pilot Marine Protected Area (MPA) initiatives on Canada’s Pacific Coast. Race Rocks (XwaYeN) meets the criteria set out in paragraphs 35(1) (a), (b) and (d) above. Establishing a MPA within the Race Rocks (XwaYeN) area will provide for a more comprehensive level of conservation and protection for the ecosystem than can be achieved by an Ecological Reserve on its own. Designating a MPA within the area encompassing the Ecological Reserve will facilitate the integration of conservation, protection and management initiatives under the respective authorities of the two governments.

physical and biological systems of Race Rocks (XwaYeN) was completed by Wright and Pringle (2001). The 2001 report provides an extensive ecological overview describing the geological, physical oceanographic and biological components of
Race Rocks (XwaYeN) and the surrounding waters of the Strait of Juan de Fuca at the time. Natural history observations and some traditional knowledge were also included. The following report is a brief update to summarize new information that has been collected in the Race Rocks (XwaYeN) area since that time and describe any changes
to trends in species distributions and oceanographic conditions. This work is meant to supplement the existing ecological overview (Wright and Pringle 2001).

See the full 32 page PDF  Ecosystem overview2011

DND blasting

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–At 0945hrs PDT a recreational vessel with a man and a woman on board entered from the NE near North Rock at high speed and approached Great Race where they slowed down to transit the Reserve.
–DND has been blasting since 0900hrs this morning.
–A Pearson alumni arrived today to help with some projects over the next few days.

There was 1 visitor to the island today.

visitors

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David and friends arrived for an overnight stay.
At 1950hrs PDT a Canadian Coast Guard chopper flew in from the west over the strait and circled the tower once before heading east in the direction of the CCG Victoria base. Suspect they were performing a quick visual inspection of their equipment while on a return trip from servicing stations up the coast.

There were 3 visitors to the island today.