Ecojustice was before the federal Court of Appeal Wednesday morning to defend a precedent setting ruling that confirmed the federal government is legally bound to protect killer whale habitat.
Ecojustice, a group of nine environmental organizations, successfully argued in federal court about a year ago that the Department of Fisheries and Oceans did not meet its legal obligation to protect killer whales.
The court ruled that the Minister of Fisheries and Oceans must legally protect all aspects of killer whale critical habitat, including their food supply and the quality of the marine environment.
There were 11 ruling in last December’s decision and DFO has appealed one of them, claiming that provisions in the Fisheries Act does protect the marine environment for the killer whale and other marine animals.
It was determined the Fisheries Act, however, does not make critical habitat protection mandatory, as is the case under the Species at Risk Act.
“We’re arguing that the protection of critical habitat is not something that the whim of a minister should be able to influence,” said Christianne Wilhelmson, executive director of the Georgia Strait Alliance. “The DFO’s arguments were very weak and very dangerous, in my opinion. In the long term if we’re serious about ensuring that whales and other species don’t go extinct, we can’t have the minister of the day influencing the protection of critical habitat.”
At the centre of the issue are two distinct populations of killer whales that travel British Columbia’s coastal waters — the northern and southern killer whale pods. At last count there were 264 threatened northern residents and just 87 southern resident killer whales. Both species are listed under the Species at Risk Act.
“Protecting these species can’t be political,” said Wilhelmson.
Killer whales are considered a sentinel species, which means their health is a bellwether for the overall health of the ocean environment.
Gwen Barlee, policy director with the wilderness committee, was more blunt.
“DFO needs to quit wasting time and money and get on with the business of actually protecting these killer whales,” she said.
Earlier this year, Judge James Russell ripped the DFO’s behaviour in the initial trial for being “unjustifiably evasive and obstructive” in its approach to the proceedings.
Russell ruled DFO had to pay Ecojustice $80,000 in court costs.
A decision on the appeal likely won’t be made until February.
Ecojustice is representing the David Suzuki Foundation, Dogwood Initiative, Environmental Defence, Greenpeace, Georgia Strait Alliance, International Fund for Animal Welfare, Raincoast Conservation, Sierra Club of BC and Wilderness Committee.