Ecojustice lawyers are suing the Minister of Environment and Climate Change and the Minister of Fisheries and Oceans in an effort to protect endangered Southern Resident killer whales.

These iconic orcas are in crisis. But despite devastating stories of loss among the population, including a mother’s 17-day display of mourning after losing a calf in the summer of 2018, and repeated calls for urgent action, the ministers have failed to recommend emergency protection.

This ecologically and culturally significant population faces three main threats:

  • Lack of Chinook salmon, the whales’ preferred prey
  • Acoustic and physical disturbance from noise
  • And contamination of the ecosystems where they live

Scientists agree that salmon shortages are the most urgent threat to the whales, leaving them at risk of malnutrition and even starvation.

Disturbance from vessels — including by recreational boaters, fishing boats, commercial whale watchers, ferries and shipping — heightens this risk by interfering with the whales’ natural ability to hunt.

The results of these combined threats have been devastating. In recent years, 69 per cent of Southern Resident pregnancies have failed and 11 members of the population have died, exceeding the number of new calves. No surviving calves have been born since 2015 and there is evidence of nutritional stress in the population.

Fortunately, the Species at Risk Act (SARA) contains a provision specifically designed to allow the government to cut through regulatory red tape and address emergency situations like this.

Section 80 of SARA authorizes Cabinet to issue an emergency order when a species faces “imminent threats to its survival or recovery.”

Minister of Environment and Climate Change Catherine McKenna and the previous Minister of Fisheries and Oceans, announced on May 24, 2018, that threats to the Southern Residents — including the three outlined above — are indeed imminent. This decision makes the ministers legally-obligated to recommend that Cabinet issue an emergency order, unless there are equivalent legal measures already in place.

By Sept. 5, 2018, when Ecojustice lawyers first launched a Federal Court case fighting to secure emergency protections for the Southern Residents, the ministers had taken only limited steps to protect the whales.

They implemented fisheries closures in some but not all key foraging areas. They also established rules that forbid boats from coming within 200-metres of the whales, but by the time they established those rules, data was already suggesting that it would be more appropriate to require a zone double that size.

In short, these measures are not equivalent to the comprehensive protections an emergency order could offer — yet the ministers continue to delay recommending Cabinet issue an order.

On behalf of David Suzuki Foundation, Georgia Straight Alliance, Natural Resources Defense Council, Raincoast Conservation Foundation and World Wildlife Fund Canada, we are asking the Federal Court to force the ministers to finish their job and make their recommendation to Cabinet

With only 75 Southern Resident killer whales remaining, further losses could result in extinction. We need the government to act quickly and decisively to address this crisis, and an emergency order would be the most clear and effective way of doing this.

Why is Ecojustice involved?

Ecojustice sent a petition to the ministers on behalf of our clients on Jan. 30, 2018. In the petition, we laid out the facts necessary to demonstrate that there are “imminent threats to the survival and recovery” of the Southern Residents, and urged the ministers to recommend an emergency order, as required under SARA.

In May, the Ministers acknowledged that the Southern Residents face imminent threats to their survival and recovery. Over the next two months, they announced only partial steps towards protecting the Southern Residents. We and our clients know that much more is needed, and urgently.

What would a win mean?

If successful, this case will force the ministers to recommend that Cabinet issue an emergency order.

An emergency order would set a precedent. Cabinet has only issued emergency orders twice before: to address threats to the Greater sage grouse and Western chorus frog. An order for the Southern Resident killer whale would strengthen this tradition and increase the likelihood of future orders.

Finally, an emergency order would protect the Southern Resident killer whales from critical threats to their immediate and long-term survival, in particular addressing shortages or Chinook salmon and acoustic and physical disturbance from vessels.

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