Harbour porpoise (Pacific Ocean population) COSEWIC assessment and status report: chapter 10

Existing Protection or Other Status

Existing Legal Protection

Two factors are important in the legal protection of a species, the system that is in place to prohibit or regulate hunts or other threats (e.g., mortality in fishing operations), and how effective this system is, i.e., how much monitoring of impacts and enforcement of regulations exists. Where information is available, each of these is discussed below.

International

One international agreement that is relevant to the protection of harbour porpoises in Canadian waters is CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973). All species of cetaceans are listed by CITES under one of two appendices. Appendix I includes species threatened with extinction (and which may be affected by trade), while Appendix II includes species which may become threatened with extinction unless trade is regulated, as well as species which must be subject to regulation in order that trade in threatened species of similar appearance may be controlled (Klinowska 1991). Harbour porpoises are listed under Appendix II for the latter of the above reasons. As such, international trade of harbour porpoise or parts thereof by any countries which are Parties to CITES requires export permits from the country of origin. According to Klinowska (1991) the European Community treats all cetaceans as if they were listed in CITES Appendix I - thus trade requires permits from both exporting and importing countries and such trade must not be primarily for commercial purposes. Some other countries (e.g., USA) also have similar domestic rules, requiring both export and import permits for Appendix II species. As of October 1998 there were 144 Parties to CITES, leaving approximately 90 countries world-wide which were not members (CITES Secretariat statistics). Listing on CITES Appendix II does not provide protection per se, though it does mandate recording of international trade.

Harbour porpoises are considered "small cetaceans" by the International Whaling Commission (IWC), and there is currently considerable disagreement within the Commission as to whether small cetaceans are covered by the IWC. Thus no international protection for harbour porpoises is provided by this agency.

The harbour porpoise is also listed as “Vulnerable” by the World Conservation Union (IUCN 1996).

National

Within Canada, management of harbour porpoises is a federal responsibility. From 1982 to 1993 harbour porpoises were covered under the Cetacean Protection Regulations (under the Fisheries Act of Canada of 1867). These regulations prohibited "hunting" without a licence. "Hunting" was defined as "to chase, shoot at, harpoon, take, kill, attempt to take or kill, or to harass cetaceans in any manner". No scheme, however, was in place to enforce such regulations, and Aboriginal hunting could be undertaken without a licence. In 1993, the federal government consolidated various marine mammal regulations, including the Cetacean Protection Regulations, under the new Marine Mammal Regulations. These regulations stated that "no person should disturb a marine mammal except when under.... the authority of these regulations", with "marine mammal" defined as all species listed under a particular appendix. However, many species of cetaceans, including harbour porpoises, were not listed under that appendix, and thus no legal protection appears to have been in place. The definition of "marine mammal" was revoked in 1994, thus extending coverage to all species of marine mammals. Currently, hunting of harbour porpoises can occur if a "Fishing Licence" is obtained (except for Aboriginals who can hunt without a licence).  However, no such licences have been issued, and issuance is at the discretion of the federal Minister of Fisheries and Oceans. As with the Cetacean Protection Regulations, little monitoring of entanglements in fishing gear or disturbance by vessel traffic takes place, thus the effectiveness of these regulations is unclear. The 1997 Oceans Act provides for the establishment of marine protected areas (MPAs) in federal waters, including those specifically to conserve and protect marine mammals and their habitats. However, as with other federal legislation regarding marine mammals, establishment of marine protected areas and exclusion of activities which might jeopardize harbour porpoise or other marine mammals are up to the discretion of the Minister of Fisheries and Oceans, rather than mandated. Regardless, there are general concerns about the efficacy of using MPAs to “protect” cetaceans (Duffus and Dearden 1992; Phillips 1996; Whitehead et al. 2000), due primarily to the large range of most species and the lack of boundaries in the marine environment. Whitehead et al. (2000) note that most marine protected areas have provided little or no change in the level of threats faced by cetaceans in an area. However, given the limited movements of harbour porpoise compared to many other species of cetaceans, areas which exclude vessel traffic or fishing activity could be an effective protective measure under the Oceans Act.

In the United States, all cetaceans are protected through the Marine Mammal Protection Act of 1972, as well as through other legislative instruments.

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