Draft: Policies on Fisheries Act Authorizations related to Cetaceans in Captivity and Reproductive Materials of Cetaceans

August 2020 – for public consultation.

Table of contents

Introduction

In June 2019, provisions were introduced in the Fisheries Act and the Criminal Code aimed at ending the captivity of cetaceans.

As a result of these provisions, the following activities are prohibited, except where an authorization or a permit to conduct these activities is issued by the Minister of Fisheries, Oceans, and the Canadian Coast Guard pursuant to s. 23.1 to 23.4 of the Fisheries Act:

The following activities also need to be authorized through a licence from the Minister of Fisheries, Oceans, and the Canadian Coast Guard pursuant to s. 23.1 to 23.4 of the Fisheries Act, or a licence issued by the relevant province, pursuant to s. 445.2 of the Criminal Code:

This document contains the policies established by Fisheries and Oceans Canada (DFO) to process applications aimed at obtaining authorizations, permits or licences from the Minister of Fisheries, Oceans, and the Canadian Coast Guard to conduct one or more of the activities described above.

Of note:

General policy guidelines and principles

The text below establishes detailed policy principles to guide the Minister of Fisheries, Oceans, and the Canadian Coast Guard in the exercise of his or her discretion in issuing authorizations, licences or permits under s. 23.1 to 23.4 of the Fisheries Act.

In all cases, the Minister retains absolute discretion to make exceptions to these principles. The Minister may also impose any conditions that he or she considers appropriate in the authorizations, permits or licences issued under s. 23.1 to 23.4 of the Fisheries Act.

The new amendments to s.23.1 to 23.4 of the Fisheries Act and s. 445.2 of the Criminal Code aimed at ending the captivity of cetaceans, as well as the policies included in this document, do not change protections provided for under existing Indigenous or treaty rights related to the harvest of wild cetaceans.

The main intent of s. 23.1 to 23.4 of the Fisheries Act, as well as s. 445.2 of the Criminal Code, is to phase out the captivity of cetaceans in Canada. With regard to the addition of new cetaceans in captivity in Canada, decisions will be informed by the following principles:

Additionally, with regard to potential exports of living cetaceans or reproductive materials of cetaceans from Canada, the Minister of Fisheries, Oceans, and the Canadian Coast Guard, in making licensing or permitting decisions, will be guided by the following principles:

1 - Policy for obtaining a Ministerial authorization to fish for a cetacean with the intent to take it into captivity

Introduction

No person shall fish for a wild cetacean with the intent to take it into captivityFootnote 1, except in accordance with an authorization issued by the Minister of Fisheries, Oceans, and the Canadian Coast Guard. Pursuant to s. 23.1 (2) of the Fisheries Act, the Minister may authorize a person to fish for a cetacean with the intent to take it into captivity if the Minister is of the opinion that the circumstances so require. This may include situations where the animal is injured, in distress or in need of care, which are considerations that focus on protecting the animal’s health and welfare. Additionally, the Minister may consider benefits associated with scientific research in support of conservation efforts in deciding whether or not to authorize the capture of a wild cetacean.

DFO has not issued a permit to capture a cetacean from the wild for the purposes of public display since the early 1990s, and the conditions below formalize this department’s longstanding practice.

Conditions for obtaining an authorization to fish for a cetacean with the intent to take it into captivity

The Minister may authorize a person to fish for a cetacean with the intent to take it into captivity if it is established that this action:

  1. could improve the cetacean’s immediate chance of survival, without jeopardizing the survival of the species in the wild;
  2. could ease the pain and suffering of an individual cetacean that is injured or in distress or in need of care;
  3. would contribute to the conservation and protection of wild cetacean species (including by enabling scientific research aimed at supporting conservation efforts); and/or,
  4. would allow for returning to a seaside pen a cetacean that has escaped from it.

In most cases, it is expected that any action related to fishing for a cetacean in Canadian fishing waters will be coordinated by members of the DFO Marine Mammal Response Program. This program works with the DFO Conservation and Protection Program, the DFO Science Sector, and external partners to help marine mammals and sea turtles in distress. In case of emergency, a person can contact a regional Marine Mammal Coordinator to discuss available options, including the possibility of obtaining an authorization to fish for a cetacean with the intent to take it into captivity.

[An updated list of regional Marine Mammal Coordinators will be provided on the DFO website.]

2 - Policy for obtaining a Ministerial permit authorizing the import or export of a living cetacean

Introduction

No person shall import into Canada or export from Canada a living cetacean, except in accordance with a permit issued by the Minister of Fisheries, Oceans, and the Canadian Coast Guard. Pursuant to s. 23.2 (2) of the Fisheries Act, the Minister may issue an import or export permit for a living cetacean if it is for the purpose of (a) conducting scientific research; or (b) keeping the cetacean in captivity if it is in the best interests of the cetacean’s welfare to do so.

It is understood that the legislators granted this authority to the Minister with the expectation that he or she would use it to authorize the import or export of a cetacean as long as the proposed transfers are based on relevant considerations related to scientific research or the cetacean’s welfare.

Given that importing or exporting cetaceans may involve risks and challenges for the animals, each request for transfer will be given due consideration through an assessment of the individual animals and their special circumstances. In the case of a transfer request to conduct scientific research, particular attention will be given to the value and validity of the proposed research, as well as to the adequacy of the Animal Care and Use Protocols associated with the proposed scientific studies. In the case of a transfer request made in the best interests of the cetacean’s welfare, particular attention will be given to whether or not the transfer will be prejudicial to the cetacean’s captivity conditions and will support the quality of life of the animal.Footnote 2

Conditions for obtaining an import or an export permit to conduct scientific research on a cetacean

Conditions for both import and export:

  1. The applicant must provide details (i.e., specific hypothesis, objectives, methods and protocols, publication intention) for each scientific study that is being planned relevant to the transfer request.
    1. The Animal Care and Use Protocols associated with the proposed scientific studies must be consistent with, or similar to, relevant guidelines published by the Canadian Council of Animal Care (CCAC);Footnote 3
  2. The applicant must submit a list of scientific publications that demonstrate that the researchers involved in the proposed research activities have published work that is relevant to the broader marine mammal science community; and,
  3. If a wild cetacean is to be transferred from a rescue center to a permanent facility, the applicant must submit an assessment explaining why the cetacean cannot be released into the wild, which must be consistent with DFO scientific advice. (e.g. DFO. 2018. Advice on Criteria for the Release of Rehabilitated Marine Mammals. 11pp.).

Additional condition for import only:

  1. The broad research program, priorities and methodologies at the destination facility must show potential for incremental increase of knowledge that is considered essential by DFOFootnote 4 (i.e. a priority) to support conservation efforts of wild stocks of cetaceans found in Canadian fisheries waters.

Additional conditions for export only:

  1. The broad research program, priorities and methodologies at the destination facility must show potential for incremental increase of knowledge that could be useful to Canadian research priorities and/or the conservation of wild stocks of cetaceans in their natural habitat inside or outside Canadian fisheries waters;
  2. The destination facility must be accredited by one or more of the listed accrediting organizations: Humane Certifiedtm zoo/aquarium; the United States Association of Zoos and Aquariums (AZA) and the Alliance of Marine Mammal Parks and Aquariums (Alliance); and/or, the European Association for Aquatic Mammals (EAAM); and,
  3. The application must be supported by commitments from the destination facility to uphold animal welfare practices and research priorities that are consistent with Canada’s values and interestsFootnote 5 such as:
    1. the destination facility will not breed or impregnate the cetacean being exported from Canada;
    2. on an ongoing basis, the destination facility will minimize any potential for pain and distress to be experienced by the animal and protect the animal’s welfare;
    3. unless extenuating circumstances arise, the destination facility will not re-transfer the cetacean to another facility.

Conditions for obtaining an import or export permit of a living cetacean for reasons related to the cetacean’s welfare

Conditions for import only:

Permits to import a living cetacean for welfare purposes will be issued only in exceptional circumstances, where it is demonstrated that it is the best option available for the cetacean’s welfare.

  1. The applicant must submit a written justification explaining why importing the cetacean into the proposed Canadian facility is in the best interests of the cetacean’s welfare.
    1. This justification must include information on the other options that have been considered and why they should not be preferred;
    2. As relevant, the applicant must provide a comparative review of the current foreign facility and proposed Canadian facility with regard to the standards of care, public display or useFootnote 6 of the cetacean, and quality of life of the cetacean (which includes a description of the environmental and social conditions provided to the captive cetacean);
  2. The applicant must submit a document describing the mitigation strategies that will be used to minimize risks related to the integration of the cetacean into its new environment (these risks include the potential impacts on the other captive cetaceans); and,
  3. The standards of care at the Canadian destination facility must be consistent with the “CCAC guidelines on: the care and use of marine mammals”.

Conditions for export only:

Permits to export a cetacean for welfare purposes may be issued for reasons such as: if the cetacean does not have an appropriate captivity companion in the Canadian facility in which it is kept; if a rescued cetacean cannot be released into the wild; or, if a Canadian aquarium encounters significant operational difficulties and seeks to export one or more cetaceans to a foreign aquarium.

  1. The applicant must provide information on any other options that may have been considered before seeking the export permit;
  2. The applicant must submit a document describing what types of physical, social and environmental stimulations the cetacean will encounter at the destination facility.
    1. The destination facility should offer appropriate companionship for the cetacean; appropriate training of the cetacean (e.g. the training cannot be based on punishment or food deprivation); and public display or use of the cetacean that does not involve significant risks to the cetacean’s health and safety;
  3. The applicant must submit a document describing the mitigation strategies that will be used to minimize risks related to the integration of the cetacean into its new environment (these risks include the potential impacts on the other captive cetaceans);
  4. The destination facility must be accredited by one or more of the listed accrediting organizations: Humane Certifiedtm zoo/aquarium; the United States Association of Zoos and Aquariums (AZA) and the Alliance of Marine Mammal Parks and Aquariums (Alliance); and/or, the European Association for Aquatic Mammals (EAAM);
  5. The application must be supported by commitments from the destination facility to uphold animal welfare practices and research priorities that are consistent with Canada’s values and interestsFootnote 7 such as:
    1. the destination facility will not breed or impregnate the cetacean being exported from Canada;
    2. on an ongoing basis, the destination facility will minimize any potential for pain and distress to be experienced by the animal and protect the animal’s welfare;
    3. unless extenuating circumstances arise, the destination facility will not re-transfer the cetacean to another facility; and,
  6. If a wild cetacean is to be transferred from a rescue center to a permanent facility, the applicant must submit an assessment explaining why the cetacean cannot be released into the wild, which must be consistent with DFO scientific advice (e.g. DFO. 2018. Advice on Criteria for the Release of Rehabilitated Marine Mammals. 11pp.).

3 - Policy for obtaining a Ministerial permit authorizing the import or export of sperm, an egg or an embryo of a cetacean

Introduction

No person shall import into Canada or export from Canada sperm, an egg or an embryo of a cetacean, except in accordance with a permit issued by the Minister of Fisheries, Oceans, and the Canadian Coast Guard. Pursuant to s. 23.2 (2) (a) of the Fisheries Act, the Minister may issue an import or export permit for sperm, an egg or an embryo of a cetacean if it is for the purpose of conducting scientific research. This research should however be strictly aimed at supporting the conservation of wild stocks of cetaceans and should not contribute to the replenishment of captive stocks of cetaceans.

Conditions for obtaining an import or an export permit for sperm, an egg or an embryo of a cetacean to conduct scientific research

Conditions for import only:

  1. The applicant must provide details (i.e., specific hypothesis, objectives, methods and protocols, publication intention) for each scientific study that is being planned relevant to the import request;
    1. Except under exceptional circumstances, the broad research program, priorities and methodologies should not involve impregnating a cetacean and/or attempts at artificially developing a fetus of a cetacean, and must show potential for incremental increase of knowledge that could be useful to the conservation of wild stocks of cetaceans in their natural habitat inside or outside Canadian fisheries waters.
    2. If exceptional circumstances are invoked for impregnating a cetacean and/or trying to artificially develop a fetus of a cetacean, the broad research program, priorities and methodologies must show potential for incremental increase of knowledge that is considered essential by DFO (i.e. a priority) to support conservation efforts of wild stocks of cetaceans found in Canadian fisheries waters.Footnote 8
      1. In case of impregnation of a cetacean in captivity, the Animal Care and Use Protocols associated with the proposed scientific studies must be consistent with, or similar to, relevant guidelines published by the Canadian Council of Animal Care (CCAC);Footnote 9
  2. The applicant must submit a document explaining how the reproductive materials relevant to the import request will be securely kept and/or disposed of to ensure that it will not be used for purposes other than the described scientific research; and,
  3. The applicant must submit a list of scientific publications that demonstrate that the researchers involved in the proposed research activities have published work that is relevant to the broader marine mammal science community.

Conditions for export only:

  1. A request to export sperm, an egg or an embryo of a cetacean from Canada to another country should be submitted or endorsed by a relevant foreign government agency that has a similar conservation mandate as DFO with regard to wild cetaceans; and,
  2. The applicant must provide details (i.e., specific hypothesis, objectives, methods and protocols, publication intention) for each scientific study that is being planned relevant to the export request.
    1. The proposed scientific research in which the reproductive materials will be used by a foreign country should be aimed at conserving a stock of wild cetaceans in its natural habitat.

4 - Policy for obtaining a Ministerial licence to keep a cetacean in captivity, or to breed or impregnate a cetacean, or to obtain or seek to obtain reproductive materials of cetaceans, for the purpose of conducting scientific research

Introduction

In Canada, no person shall keep a cetacean in captivity, or shall breed or impregnate a cetacean, or shall obtain or seek to obtain reproductive materials of cetaceans, except where authorized by a relevant authority. A person who wants to conduct scientific research involving the above activities must obtain a licence issued by the relevant province pursuant to subsection 445.2 (3.1) of the Criminal Code, or a licence issued by the Minister of Fisheries, Oceans, and the Canadian Coast Guard pursuant to s. 23.3 (2) of the Fisheries Act.

Under s. 23.3 (2) of the Fisheries Act, the Minister may issue a licence to conduct scientific research with respect to cetaceans, and impose any conditions that he or she considers appropriate, if the proposed research activities are related to one or more of the following activities: a) owning, having the custody of or controlling a cetacean that is kept in captivity; b) breeding or impregnating a cetacean; or, c) possessing or seeking to obtain reproductive materials of cetaceans, including sperm or an embryo.

It is understood that the legislators granted this authority to the Minister with the expectation that scientific research on captive cetaceans or wild cetaceans in their natural habitat may occur in Canada, and that this research could include studies on cetacean reproduction or reproductive materials of cetaceans. However, for ethical reasons that are consistent with the legislative intent of ending the captivity of cetaceans, it is also understood that conditions should be established to ensure that the cetaceans kept in captivity to conduct scientific research will be subject to appropriate care and use protocols, and that no cetacean will be bred or artificially reproduced for the purpose of replenishing captive stocks of cetaceans.

Of note:

Conditions for obtaining a licence to keep a cetacean in captivity to conduct scientific research, or to breed or impregnate a cetacean to conduct scientific research, or to possess or seek to obtain reproductive materials of a cetaceans to conduct scientific research

  1. Conditions for obtaining the authorization to own, have the custody of or control a cetacean that is kept in captivity to conduct scientific research
    1. In the case where the cetacean is already in Canada:
      1. The applicant must provide details (i.e., specific hypothesis, objectives, methods and protocols, publication intention) for each scientific study that is being planned relevant to the licence request.
        1. The broad research program, priorities and methodologies must show potential for incremental increase of knowledge that could be useful to Canadian research priorities and/or the conservation of wild stocks of cetaceans in their natural habitat inside or outside Canadian fisheries waters.
        2. The Animal Care and Use Protocols associated with the proposed scientific studies must be consistent with, or similar to, relevant guidelines published by the Canadian Council of Animal Care (CCAC);Footnote 12
      2. The applicant must submit a list of scientific publications that demonstrate that the researchers involved in the proposed research activities have published work that is relevant to the broader marine mammal science community; and,
      3. If a wild cetacean is to be kept in captivity to conduct scientific research, the applicant must submit an assessment explaining whether the cetacean would be releasable after the research experiment is completed, which must be consistent with DFO scientific advice (e.g. DFO. 2018. Advice on Criteria for the Release of Rehabilitated Marine Mammals. 11pp.).
    2. In the case where the cetacean is being imported into Canada:
      1. If the applicant meets the conditions for obtaining a permit to import a cetacean to conduct scientific research under s. 23.2 (2) (a) of the Fisheries Act, the applicant should also apply for a licence under s. 23.3 (2) of the Fisheries Act, which will most likely also be issued if the applicant so requests. It would be advisable to apply for both the permit under s. 23.2 (2) (a) and the licence under s. 23.3 (2) in advance of the arrival of the cetacean in Canada. [The applicant also has the option to request a licence from the relevant province pursuant to subsection 445.2 (3.1) of the Criminal Code].
  2. Conditions for obtaining the authorization to breed or impregnate a cetacean, held in captivity in a facility or living in its natural habitat, to conduct scientific research
    Note: Except under exceptional circumstances, breeding or impregnating a cetacean is not permitted in Canada.
    1. The applicant must provide details (i.e., specific hypothesis, objectives, methods and protocols, publication intention) for each scientific study that is being planned relevant to the licence request.
      1. The broad research program, priorities and methodologies must show potential for incremental increase of knowledge that is considered essential by DFO (i.e. a priority) to support conservation efforts of wild stocks of cetaceans found in Canadian fisheries waters.Footnote 13
      2. As applicable, the Animal Care and Use Protocols associated with the proposed scientific studies must be consistent with, or similar to, relevant guidelines published by the Canadian Council of Animal Care (CCAC);Footnote 14 and,
    2. The applicant must submit a list of scientific publications that demonstrate that the researchers involved in the proposed research activities have published work that is relevant to the broader marine mammal science community.
  3. Conditions for obtaining the authorization to possess or seek to obtain reproductive materials of cetaceans, including sperm or an embryo, to conduct scientific research
    1. In the case where the reproductive materials of cetaceans is already in Canada:
      1. The applicant must provide details (i.e., specific hypothesis, objectives, methods and protocols, publication intention) for each scientific study that is being planned relevant to the request;
        1. Except under exceptional circumstances, the broad research program, priorities and methodologies should not involve attempts at artificially developing a fetus of a cetacean, and must show potential for incremental increase of knowledge that could be useful to the conservation of wild stocks of cetaceans in their natural habitat inside or outside Canadian fisheries waters.
        2. If exceptional circumstances are invoked for trying to artificially develop a fetus of a cetacean, the broad research program, priorities and methodologies must show potential for incremental increase of knowledge that is considered essential by DFO (i.e. a priority) to support conservation efforts of wild stocks of cetaceans found in Canadian fisheries waters.Footnote 15
      2. The applicant must submit a document explaining how the reproductive materials relevant to the request will be securely kept and/or disposed of to ensure that they will not be used for purposes other than the described scientific research; and,
      3. The applicant must submit a list of scientific publications that demonstrate that the researchers involved in the proposed research activities have published work that is relevant to the broader marine mammal science community.
    2. In the case where the reproductive materials of cetaceans is being imported into Canada:
      1. If the applicant meets the conditions for obtaining a permit to import reproductive materials of cetaceans to conduct scientific research under s. 23.2 (2) (a) of the Fisheries Act, the applicant should also apply for a licence under s. 23.3 (2) of the Fisheries Act, which will most likely also be issued if the applicant so requests. It would be advisable to apply for both the permit under s. 23.2 (2) (a) and the licence under s. 23.3 (2) in advance of the arrival of the reproductive materials in Canada. [The applicant also has the option to request a licence from the relevant province pursuant to subsection 445.2 (3.1) of the Criminal Code].

5 - Policy for obtaining a Ministerial licence to keep a cetacean in captivity in the best interests of the cetacean’s welfare

Introduction

In Canada, no person shall keep a cetacean in captivity for reasons related to the cetacean’s welfare, except where authorized by a relevant authority. A person who wants to keep a cetacean in captivity in the best interests of the cetacean’s welfare must obtain a licence issued by the relevant province pursuant to paragraph 445.2 (3) (c) of the Criminal Code, or a licence issued by the Minister of Fisheries, Oceans, and the Canadian Coast Guard pursuant to s. 23.4 (2) of the Fisheries Act.

Under s. 23.4 (2) of the Fisheries Act, the Minister may issue a licence authorizing any person to keep a cetacean in captivity in the best interests of the cetacean’s welfare and impose any conditions that the Minister considers appropriate in the licence.

It is understood that the legislators granted this authority to the Minister with the expectation that keeping a new cetacean in captivity in Canada may be required in the future, if it is in the best interests of the cetacean’s welfare. This would be applicable, for example, when a rescued wild cetacean cannot be released following rehabilitation attempts.

Of note:

Conditions for obtaining a licence to keep a cetacean in captivity in the best interests of the cetacean’s welfare

  1. In the case where the cetacean is already in Canada:
    1. The applicant must submit a written justification explaining why keeping the cetacean in captivity is in the best interests of the cetacean’s welfare;
    2. If a transfer of ownership, custody or control of the cetacean is involved:
      1. The justification in paragraph i.1 must also explain how the cetacean will benefit from the transfer (the rationale can be based on operational constraints, or the availability of care or appropriate captivity companion(s), or other considerations related to the quality of life of the cetacean).
      2. The applicant must submit a document describing the mitigation strategies that will be taken to minimize risks related to the integration of the cetacean into its new environment (these risks include the potential impacts on the other captive cetaceans);
    3. The standards of care at the Canadian facility in which the cetacean will be kept must be consistent with the “CCAC guidelines on: the care and use of marine mammals”; and,
    4. If a wild cetacean is to be transferred from a rescue center to a permanent facility, or is to be kept on a permanent basis within a rescue center where it was first placed for rehabilitation, the applicant must submit an assessment explaining why the cetacean cannot be released into the wild, which must be consistent with DFO scientific advice (e.g. DFO. 2018. Advice on Criteria for the Release of Rehabilitated Marine Mammals. 11pp.).
  2. In the case where the cetacean is being imported into Canada:
    1. If the applicant meets the conditions for obtaining a permit to import a cetacean for reasons related to the cetacean’s welfare under s. 23.2 (2) (b) of the Fisheries Act, the applicant should also apply for a licence under s. 23.4 (2) of the Fisheries Act, which will most likely also be issued if the applicant so requests. It would be advisable to apply for both the permit under s. 23.2 (2) (b) and the licence under s. 23.4 (2) in advance of the arrival of the cetacean in Canada. [The applicant also has the option to request a licence from the relevant province pursuant to paragraph 445.2 (3) (c) of the Criminal Code.]
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