Critical Habitat of the Gattinger’s Agalinis (Agalinis gattingeri) Order: SOR/2022-4
Canada Gazette, Part II, Volume 156, Number 3
SOR/2022-4 January 18, 2022
SPECIES AT RISK ACT
Whereas the Gattinger’s Agalinis (Agalinis gattingeri) is a wildlife species that is listed as an endangered species in Part 2 of Schedule 1 to the Species at Risk Act footnote a;
Whereas the recovery strategy that identified the critical habitat of that species has been included in the Species at Risk Public Registry;
Whereas no portion of the critical habitat of that species that is specified in the annexed Order is in a place referred to in subsection 58(2) footnote b of that Act;
And whereas the Minister of the Environment is of the opinion that the annexed Order would affect land that is under the authority of the Minister of Fisheries and Oceans and, pursuant to subsection 58(9) of that Act, has consulted with that Minister with respect to the Order;
Therefore, the Minister of the Environment, pursuant to subsections 58(4) and (5) of the Species at Risk Act footnote a, makes the annexed Critical Habitat of the Gattinger’s Agalinis (Agalinis gattingeri) Order.
Gatineau, January 14, 2022
Minister of the Environment
Critical Habitat of the Gattinger’s Agalinis (Agalinis gattingeri) Order
1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Gattinger’s Agalinis (Agalinis gattingeri), which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry.
Coming into force
2 This Order comes into force on the day on which it is registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
Loss of habitat is one of the greatest threats to biodiversity and species’ persistence in the world today. footnote 1 Protecting the habitat of species at risk is therefore key to their conservation, and to the preservation of biodiversity.
Plants are essential components of terrestrial ecosystems. They serve as the foundation of a food web, providing non-plant species with oxygen and vital nutrients needed for survival. footnote 2 Additionally, plants benefit humans through a wide range of ecosystem services, including the protection against flooding and other natural disasters, providing recreational areas, and regulating water supply. footnote 3
Gattinger’s Agalinis (Agalinis gattingeri) is a plant listed under the Species at Risk Act (SARA) as endangered since 2003. It is an annual herb of the broomrape family. In Ontario, the species is found on the Bruce Peninsula and the Manitoulin Island region and on Walpole Island, while in Manitoba, it is found in the Interlake region. The final recovery strategy was posted on the Species at Risk Public Registry (SAR Public Registry) in February 2019. The recovery strategy only includes a partial identification of critical habitat, some of which occurs on federal land in Ontario.
When, in a final posted recovery strategy or action plan, all of a species’ critical habitat or portions of that critical habitat have been identified on federal lands, footnote 4 SARA requires that it be protected within 180 days. The Department of the Environment (the Department) has determined that portions of the critical habitat of Gattinger’s Agalinis located on federal land are not protected under SARA or another Act of Parliament, and that a ministerial order pursuant to section 58 of SARA is required.
Canada’s natural heritage is an integral part of its identity and history. In 1992, Canada signed and ratified the Convention on Biological Diversity (the Convention). The Convention is an international legal agreement between governments that was established to help ensure that biological diversity is conserved and used sustainably. The text of the Convention (PDF) notes that the conservation of ecosystems and habitats is a “fundamental requirement for the conservation of biological diversity.”
As a party to this Convention, Canada has developed a national strategy for the conservation of biological diversity and federal legislation to protect species at risk, Canada’s Species at Risk Act. The purposes of SARA are to prevent wildlife species from being extirpated from Canada or becoming extinct; to provide for recovery of wildlife species that are listed as 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. footnote 5 Consistent with the Convention, SARA recognizes that the habitat of species at risk is key to their conservation, and includes provisions that enable the protection of this habitat.
Critical habitat protection under SARA
Once a species has been listed under SARA as endangered, threatened or extirpated, the competent minister(s) footnote 6 must prepare a recovery strategy. Recovery strategies must contain information such as a description of the species, threats to the species’ survival and, to the extent possible, the identification of the species’ critical habitat (i.e. the habitat necessary for a listed wildlife species’ recovery or survival). Recovery strategies are posted on the SAR Public Registry.
Following the development of a recovery strategy, the Act requires the development of one or more action plans for the species. Action plans summarize the projects and activities required to meet recovery strategy objectives and goals. They include information on critical habitat, details of protection measures, and evaluation of socio-economic costs and benefits.
When, in a final posted recovery strategy or action plan, critical habitat or portions of critical habitat have been identified on federal lands, in the exclusive economic zone of Canada or on the continental shelf of Canada, SARA requires that it be protected within 180 days of the date of posting on the SAR Public Registry.
If a critical habitat is located in a migratory bird sanctuary under the Migratory Birds Convention Act, 1994, in a national park described in Schedule 1 of the Canada National Parks Act, in the Rouge National Urban Park established by the Rouge National Urban Park Act, in a marine protected area under the Oceans Act or in a national wildlife area under the Canada Wildlife Act, the competent minister must publish a description of that critical habitat in the Canada Gazette within 90 days of the date that the critical habitat was identified in a final recovery strategy or an action plan. Ninety days after the description of the critical habitat is published in the Canada Gazette, the critical habitat protection under subsection 58(1) of SARA (i.e. prohibiting the destruction of critical habitat) comes into effect automatically, and critical habitat located in the federal protected area is legally protected under SARA.
If the critical habitat or any portion of that habitat is found on federal lands other than a federal protected area listed in the previous paragraph, the competent minister must, under subsection 58(5) of SARA, either make a ministerial order to apply subsection 58(1) of SARA, prohibiting the destruction of this critical habitat, within 180 days following the identification of this habitat in a final posted recovery strategy or action plan, or publish on the SAR Public Registry a statement explaining how the critical habitat or portions of it are legally protected under SARA or another Act of Parliament.
Permits issued under SARA
A person intending to engage in an activity affecting a listed species, any part of its critical habitat or the residences of its individuals that is prohibited under SARA may apply to the competent minister for a permit under section 73 of the Act. A permit may be issued if the competent minister is of the opinion that the activity meets one of the following three purposes:
- (a) the activity is a scientific research relating to the conservation of the species and conducted by qualified persons;
- (b) the activity benefits the species or is required to enhance its chance of survival in the wild; or
- (c) the activity affecting the species is incidental to the carrying out of the activity.
The permit may only be issued if the competent minister is of the opinion that the following three preconditions are met:
- (a) all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted;
- (b) all feasible measures will be taken to minimize the impact of the activity on the species or its critical habitat or the residences of its individuals; and
- (c) the activity will not jeopardize the survival or recovery of the species.
Section 74 of SARA allows for a competent minister to issue permits under another Act of Parliament (e.g. the Canada National Parks Act) to engage in an activity that affects a listed wildlife species, any part of its critical habitat or the residences of its individuals, and have the same effect as those issued under subsection 73(1) of SARA, if certain conditions are met. This section is meant to reduce the need for multiple authorizations.
The Gattinger’s Agalinis (Agalinis gattingeri) was listed under SARA in 2003 as endangered. The final recovery strategy was posted on the Species at Risk Public Registry in February 2019. The recovery strategy only includes a partial identification of critical habitat. In Canada, the species is only found in Ontario and in Manitoba.
The Minister of the Environment is the competent minister under SARA for the Gattinger’s Agalinis. The Gattinger’s Agalinis is also listed as endangered under both Ontario’s Endangered Species Act, 2007 and Manitoba’s The Endangered Species and Ecosystems Act and benefits from protections under these pieces of legislation.
The general prohibitions under section 32 (for individuals) apply automatically on federal lands in the provinces for terrestrial species listed as extirpated, endangered or threatened. As a result, it is prohibited to kill, harm, harass, capture or take an individual of these plants, and to possess, collect, buy, sell or trade an individual, or any part or derivative of the plant.
Through the development and posting of the recovery documents, the competent minister consulted and cooperated with numerous groups, including other federal departments, provincial governments, Indigenous organizations and stakeholders.
Critical habitat on federal land
The Gattinger’s Agalinis has a wide distribution, and can be found in the provinces of Ontario and Manitoba. The bulk of populations and species abundance is found in Ontario, with populations on the Bruce Peninsula and the Manitoulin Island region, and one population in tall-grass prairie on the Walpole Island First Nation. Also, there are a few populations in the Interlake region of Manitoba. Critical habitat was identified for 20 populations, of which 3 are located on federal properties administered by the Department of Fisheries and Oceans (DFO): Strawberry Island, Cartwright Point (on Clapperton Island), and Goat Island Range. These properties are used mainly to support marine navigation.
The Department of the Environment has determined that the portions of critical habitat on these three properties are not protected under SARA or another Act of Parliament. As a result, a ministerial order pursuant to section 58 of SARA is required.
The objective of the Critical Habitat of the Gattinger’s Agalinis (Agalinis gattingeri) Order (the Order) is to support the survival and recovery of the species through the legal protection of its critical habitat on federal land.
The Order will apply the prohibition against the destruction of critical habitat set out in subsection 58(1) of SARA to the critical habitat of the species on federal land.
The Order will apply on the following three DFO properties: Strawberry Island, Cartwright Point (on Clapperton Island), and Goat Island Range.
Activities likely to destroy critical habitat
The Recovery Strategy for the Gattinger’s Agalinis (Agalinis gattingeri) in Canada 2019 describes the types of activities that would be likely to result in the destruction of critical habitat. Examples of these activities include, but are not limited to, activities that involve the following:
- covering of soils;
- inversion/excavation/extraction of soils;
- compression or erosion of soils;
- introduction or promotion of invasive non-native species and woody vegetation;
- application of herbicides, fertilizers or pesticides; and
- alteration to hydrological regimes.
The Department conducted consultations during the development of both the recovery strategy and the critical habitat protection Order.
As part of the proposed recovery strategy, three comments were received in the spring of 2017. No changes were made to the document as a result of the comments, as these provided suggestions for future work or keeping informed of updates. The final recovery strategy was published in February 2019.
In April 2020, the Department initiated consultations with the Department of Fisheries and Oceans and validated some key information about the lands and future plans. Following that, letters were sent to Indigenous groups located in the vicinity of the lands where the Order applies. To that end, letters were sent to 11 Indigenous groups for which traditional territories overlap or are near properties that would be affected by the Order. While recipients were invited to provide comments, and follow-ups were done, no responses were received.
Modern treaty obligations and Indigenous engagement and consultation
Section 35 of the Constitution Act, 1982 recognizes and affirms aboriginal and treaty rights of Indigenous peoples of Canada, including rights related to activities, practices, and traditions of Indigenous peoples that are integral to their distinctive culture. As required by the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment of modern treaty implications was conducted. The assessment found no modern treaty implications given the location of the species and no Indigenous groups with modern treaties in the area.
Benefits and costs
This Order will support the overall recovery objective identified in the recovery strategy for the Gattinger’s Agalinis by protecting the species’ critical habitat from destruction on federal land. The continued existence of Gattinger’s Agalinis and its unique habitat provides various benefits to society, including recreational benefits and co-benefits for other species. However, these benefits cannot be attributed to the Order alone, but are associated with the successful recovery of the species, which could result from a combination of the Order and additional protection and recovery measures undertaken by various levels of government, Indigenous peoples, and stakeholders.
Overall, this analysis did not reveal any incremental impacts on stakeholders and Indigenous peoples. The Government of Canada will incur minor costs related to compliance promotion and enforcement.
This cost-benefit analysis considers the incremental impacts of the Order. Incremental impacts are defined as the difference between the baseline scenario and the scenario in which the Order is implemented over the same period. The baseline scenario for the cost analysis includes ongoing activities on federally administered lands where critical habitat of the species may be found, and incorporates any likely changes over the next 10 years (2022–2031) without the Order in place.
An analytical period of 10 years was selected because section 24 of SARA states that the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) must reassess the status of the species every 10 years. Costs provided in present value terms are discounted at 3% over the period of 2022–2031. Unless otherwise noted, all monetary values reported in this analysis are in 2021 constant dollars. As noted, described benefits are not incremental to the Order, but are provided for context.
The total economic value framework is often used to assess how environmental assets, such as species at risk, contribute to the well-being of society. Using this framework, the analysis found that the protection of the Gattinger’s Agalinis and its critical habitat is associated with maintaining and enhancing a variety of benefits for Canadians including recreational and aesthetic value as well as co-benefits for other species of conservation interest. These benefits are presented below.
Recreational and ecotourism activity
Ecotourism and educational tours are becoming increasingly popular. People may derive recreational and aesthetic benefits from observing Gattinger’s Agalinis in its natural habitat. Gattinger’s Agalinis occurs in alvars, which are increasingly becoming important for recreation and education. Alvar locations around Canada attract thousands of people every year for recreational activities including bird-watching and wildlife photography, while local communities use these globally rare ecosystems to educate visitors about conservation and biodiversity issues. footnote 7 Maintaining biodiversity will provide additional benefits to recreational users and wildlife enthusiasts that value ecosystem health and environmental well-being.
The Canadian public and firms may value the preservation of genetic information that could be used in the future for biological, genetic and other applications. footnote 8 The Gattinger’s Agalinis’ critical habitat may be associated with these option values. For example, alvar ecosystems are important in the study of vegetation response to climate change. footnote 9
Co-benefits from high biodiversity value
Critical habitat for Gattinger’s Agalinis is found within a habitat called an alvar. An alvar is a type of habitat that occurs on exposed rock with little to no soil and demonstrates unique ecological characteristics. These areas are used as primary habitat by a range of rare species, most of which are designated at risk within Canada. footnote 10 Alvars are of special interest to scientists and researchers since many of the species supported by this habitat may be relicts from ancient times and found nowhere else in the world. Protecting critical habitat for Gattinger’s Agalinis within the areas of interest may therefore benefit the larger ecological community as well as help protect additional species.
There are three federal properties with unprotected portions of critical habitat for Gattinger’s Agalinis located on Goat Island, Cartwright Point and Strawberry Island, all within the Manitoulin Islands in Ontario. These properties contain aid to navigation lights operated and maintained by DFO. The property on Strawberry Island contains a lighthouse, the Goat Island property contains two range lights and Cartwright Point has a daymark.
The properties on Goat Island and Cartwright Point are remote locations consisting of mostly open grasslands, other than the aid to navigation lights that are operated and maintained by DFO. These properties have limited use, and routine maintenance like brushing and painting occurs on a cyclical basis. These activities can be adjusted with minimal impacts to protect the Gattinger’s Agalinis and its critical habitat.
The property on Strawberry Island is home to the historic Strawberry Island Lighthouse, a tourist attraction and designated federal heritage building. Tourism activities are limited to marine tours where tourists can view the lighthouse from a distance but boats are not allowed to land on the property and the site is closed to visitors. There are no incremental costs to stakeholders related to these tourism activities since they are not expected to be affected by the Order.
The main activities on the Strawberry Island property involve the administration and maintenance of the lighthouse. The property is partially operational as a lighthouse, with limited use. However, the site is not easily accessible and is considered surplus to DFO’s needs under the Aids to Navigation Program. Any operational or maintenance activities could be adjusted, and mitigation measures can be put in place to protect the Gattinger’s Agalinis and its critical habitat. Therefore, the incremental impacts to DFO as a result of this Order are expected to be very minimal.
This property also contains a few derelict structures including a workshop and a boathouse. DFO is currently reassessing the strategy for these structures that are not required for lighthouse operations on the property. While there are currently no plans in place, these structures may need to be demolished in the future as a part of efforts to restore the property to a more natural state. It is unclear at this time how the demolition would affect the critical habitat for Gattinger’s Agalinis. However, a SARA permit is already required for activities that could affect the species and mitigation measures would have to be put in place during the demolition phase regardless of this Order. Therefore, the overall incremental impacts to DFO as a result of this Order are expected to be minimal.
There are no known traditional uses of Gattinger’s Agalinis, or any traditional significance of this species to Indigenous peoples. Therefore, the incremental impacts of the Order on Indigenous communities in the areas affected by the Order are expected to be minimal.
This analysis also considers the potential for issuance of permits under subsection 73(1) of SARA. Such permits could allow for habitat destruction under certain conditions. Permits are assessed on a case-by-case basis at the time of application and would be granted only where all reasonable alternatives were considered and the best solution is adopted; all feasible measures are taken to minimize the negative impact of the activity; and the activity will not jeopardize the survival or recovery of the species. Although no conclusions can be made on whether a permit could be issued prior to the submission of an application, this analysis takes into account the potential labour cost implications of permit application and review as a result of this Order.
Since its listing on SARA’s Schedule 1 in 2003, there has only been one permit issued for Gattinger’s Agalinis. However, due to the location of critical habitat and the activities taking place on the federal properties implicated that are discussed above, it is possible that there could be a total of three incremental permit applications during the analytical period. The total cost associated with these applications would be $9,600 to the Government of Canada and $5,400 to applicants.
Compliance promotion and enforcement
The federal government will incur incremental costs related to compliance and promotion activities as well as inspections, investigations, and measures to deal with any alleged offences under the Order. Pre-operational enforcement efforts (i.e. intelligence analysis and engagement with partner agencies) are estimated to cost about $1,000.
The enforcement costs during the first year of operation are estimated at about $22,500. These include $500 for analysis and engagement with partners, $12,000 for inspections (including operations and transportation costs), $1,000 for measures to deal with alleged violations (including warnings), $1,000 for investigations, and $8,000 for proceeding with prosecutions. The estimated total for each subsequent year of operation is about $12,000.
Overall, the Order is expected to contribute to the recovery of Gattinger’s Agalinis, and is likely to provide some co-benefits for other species that share currently unprotected portions of the critical habitat.
The Order is not expected to result in significant costs. The present value of all costs described above is estimated at about $131,000 over the analytical period of 10 years (discounted at 3%), most of which is attributed to enforcement costs. No incremental costs to non-government stakeholders and Indigenous peoples have been identified.
Small business lens
The small business lens does not apply, as the Order will not impose any compliance or administrative costs on small businesses.
Section 5 of the Red Tape Reduction Act (the one-for-one rule) does not apply, as the Order will not impose any new administrative burden on business.
Strategic environmental assessment
A strategic environmental assessment (SEA) was conducted for the Order. The SEA concluded that, although the benefits associated with the continued existence of the species cannot be attributed to the Order alone, the legal protection of the critical habitat for the species on federal land would benefit the species. The Order will also benefit other species that inhabit or visit the federal land and protect the habitat of its various locations.
The objective of the Order directly supports the following goal of the 2019–2022 Federal Sustainable Development Strategy (FSDS): “Healthy Wildlife Populations — All species have healthy and viable populations.” The Order support the goal’s medium-term target: “By 2020, species that are secure remain secure and populations of species at risk listed under federal law exhibit trends that are consistent with recovery strategies and management plans.” The objective of the Order supports the Canadian Biodiversity Strategy, which recognizes the importance of protecting the habitats of species at risk as a key component of conserving biological diversity. The protection of critical habitat by the Order will also contribute to the 2030 Agenda, particularly Sustainable Development, Goal 15 — “Life on Land.”
In summary, the Order will contribute to the recovery of Gattinger’s Agalinis, although the contributions are likely to be limited given that the portions of critical habitat found on federal land are a small proportion of the critical habitat of the species.
Gender-based analysis plus
A gender-based analysis plus (GBA+) was performed for this Order, looking at characteristics such as sex, gender, age, race, sexual orientation, income, education, employment status, language, visible minority status, disability or religion could influence how a person is impacted by the Order. The analysis found that, in general, Canadians benefit positively from the protection of species at risk and from maintaining biodiversity. No GBA+ impacts have been identified.
Gattinger’s Agalinis is listed as an endangered species under SARA. Portions of the species’ critical habitat on three federal properties were unprotected. SARA’s section 58 obliges the competent minister to put in place protection for critical habitat of endangered and threatened species on federal lands where protection is not in place. The Order supports the survival and recovery of the species through the protection of the critical habitat on federal land, consistent with the overall objectives of SARA and Canada’s biodiversity commitments under the Convention on Biological Diversity.
Implementation, compliance and enforcement, and service standards
The implementation of the Order provides protection and recourse against the destruction of the Gattinger’s Agalinis’ critical habitat on federal land to which the Order applies.
The Department of the Environment is responsible for issuing permits, compliance promotion and enforcement of the Order on the three properties administered by DFO. The Department has developed a compliance promotion strategy outlining activities focused towards federal land managers. The Department will continue to work with DFO and Parks Canada Agency to contribute to the conservation and protection of the species and its critical habitat. Development of an action plan will provide information on other ongoing and future recovery measures to help achieve recovery for the species.
SARA provides for penalties for contraventions to the Act, including fines or imprisonment and seizure and forfeiture of things seized or of the proceeds of their disposition. Alternative measures agreements may also be used to deal with an alleged offender under certain conditions. SARA also provides for inspections and search and seizure operations by enforcement officers designated under the Act. Under the penalty provisions of the Act, a corporation other than a non-profit corporation found guilty of an offence punishable on summary conviction is liable to a fine of not more than $300,000, a non-profit corporation is liable to a fine of not more than $50,000 and any other person is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. A corporation other than a non-profit corporation found guilty of an indictable offence is liable to a fine of not more than $1,000,000, a non-profit corporation to a fine of not more than $250,000, and any other person to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both.
The Permits Authorizing an Activity Affecting Listed Wildlife Species Regulations, which came into effect on June 19, 2013, impose a 90-day timeline on the Government of Canada to either issue or refuse permits under section 73 of SARA to authorize activities that may affect listed wildlife species. The 90-day timeline may be suspended in certain situations and may not apply in certain circumstances, such as a permit issued under another Act of Parliament (e.g. the Canada National Parks Act) as per section 74 of SARA. These Regulations contribute to consistency, predictability and transparency in the SARA permitting process by providing applicants with clear and measurable service standards. The Department measures its service performance annually and performance information is posted on the Department’s website no later than June 1 for the preceding fiscal year.
Canadian Wildlife Service
Environment and Climate Change Canada
Annex — Description of the species
Gattinger’s Agalinis (Agalinis gattingeri) is an annual herb, which measures between 10.5 cm and 60.5 cm in height. There are a few or many branches on the slender stem. The leaves are very narrow and measure 10 mm to 34 mm in length by 0.4 mm to 1 mm in width. There is often only one flower per node, but a plant can have many nodes. The flower is bell-shaped, with a pink corolla with two yellow lines and many red spots. The capsules are rounded; the yellow to tan seeds measure 0.5 mm to 1.2 mm in length. In Ontario, the species is found on the Bruce Peninsula and the Manitoulin Island region and on Walpole Island, while in Manitoba, they are found in the Interlake region.