Court ruling on killer whale protection stands

NANAIMO – Federal lawyers don't appeal ruling, environmentalists remain wary of potential weakening of environmental protection.

Ottawa is officially bound to protect killer whales and marine habitat after federal lawyers chose not to appeal a recent court decision.

In February, the Court of Appeals ruled in favour of Ecojustice, an organization representing nine environmental agencies including the Georgia Strait Alliance and David Suzuki Foundation, which challenged the federal government that it was not living up to its obligation to protect the endangered species.

During the case, which took several years, Ecojustice argued killer whales needed to be protected under the Species at Risk Act, which requires habitat protection for the marine mammals that includes providing adequate food stocks, and not the Fisheries Act, which opened the door for political discretion regarding marine environment.

On Tuesday, the window of opportunity for federal lawyers to appeal to the Supreme Court of Canada closed without any action.

“We were prepared to continue to defend the decision that interpreted the Species at Risk Act in a way that we thought was appropriate and necessary for the well-being of the killer whales,” said Margot Venton, a lawyer for Ecojustice. “There was no merit in continuing this dispute.”

The issue now moves to the action-planning process under the Species at Risk Act, which will take a broad approach to what has to happen to ensure the survival and recovery of killer whales and other threatened marine mammals.

Ensuring the whales’ food source, mainly chinook salmon, is adequate, and addressing water and noise pollution will be part of the process.

Christianne Wilhelmson, executive director of the Georgia Strait Alliance, said the government’s next steps will be vital in determining how the it goes about protecting the habitat of killer whales, wary that the recent federal budget “puts the environment last and weakens environmental protection”.

“We want to get down to the brass tacks of all the issues that are threatening killer whales. This is where the rubber hits the road when it comes to changes that will improve the habitat of the whales,” she said. “We’ve identified a lot of the risks but we haven’t done much to mitigate them. Killer whales are really no better off now than when this issue came up eight or so years ago.”

There are indications the fisheries ministry wants to depart from dealing with protecting fish habitat under the Fisheries Act, a move that could negatively affect salmon stocks in particular, and thus affect food sources for killer whales.

Destruction of salmon spawning habitat was the key motivation for originally including habitat protection in the law.

“Everybody who is concerned about salmon in B.C. should be concerned because this indicates a huge shift in policy,” said Venton.

There are also indications the government could make amendments to the Species at Risk Act, further weakening protection for species that need it the most, in favour of jobs and economic stimulation.

Wilhelmson points to the death of L112, a three-year-old female from the south coast’s resident L-pod as a solemn reminder that human activity is a threat to the whales’ existence.

L112 washed ashore in Washington State in February with massive blunt trauma that could have been caused by Canadian military activity. L112 was a key reproductive member of L-pod, which has less than 90 members.

“It’s a red flag and why we need to take action now,” she said. “When government agencies are potentially impacting whales directly, it’s an indication that we need to get down to the business of protecting these whales and their habitats more quickly.”

Venton said they can only take a wait-and-see approach to see what the government does.

“You don’t want to be regulating through the Species at Risk Act because when you’re doing that you’re intervening at the 11th hour,” said Venton. “If you’re an endangered species at that point you already have a big old problem.”

Ecojustice is a national charitable organization of scientists and lawyers dedicated to defending Canadians’ rights to a healthy environment, providing legal services free of charge to charities and citizens on the front lines of the environmental movement.