Ecojustice Blog – Nature Posted on October 1, 2012 (updated: February 17, 2015)

Fate of B.C.’s killer whales lies in Court’s hands

Margot VentonLawyer

Although the question of whether the federal government should protect British Columbia’s killer whales has already been answered — with an emphatic ‘yes’ from the Federal Court — Ottawa has yet to move forward with the real work of protecting the whales through its actions, instead of its words.

An appeal from the federal government, seeking to reverse our 2010 win for the killer whales, forced us to return to the courtroom on Wednesday to battle for a better future for these iconic animals.

In 2010, the Federal Court ruled heavily in our favour, stating that the Department of Fisheries and Oceans (DFO) had not met its legal obligation to protect killer whales, as mandated by Species at Risk Act. The court’s ruling declared 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 their marine environment.

In January, Ottawa appealed the ruling, claiming that discretionary provisions in the Fisheries Act adequately protect the critical habitat of aquatic species such as the killer whale. The Fisheries Act gives Minister Keith Ashfield broad discretion to authorize activities that destroy habitat.

This interpretation basically leaves habitat protection to the choice of the Minister with the hope that he does the right thing. Given the current state of killer whales and other marine species in Canada, this seems like a false hope.

On Wednesday, we argued that protecting killer whale critical habitat is not a matter of choice, but required by law.

We think that SARA takes the choice of protecting critical habitat out of the hands of the Minister on purpose. In crafting SARA, the Parliament of the day recognized how hard it would be to make the right choice for endangered species all the time. This is why the Minister must rely on mandatory and enforceable provisions that clearly protect critical habitat by prohibiting activities that threaten it or encouraging activities that protect it.

The three-hour proceeding ended with the panel reserving judgement on the matter. It could be up to six months before a decision is handed down. The court has asked for further written submissions from legal counsel, which will be reviewed before a ruling is issued.

Meanwhile, we can only hope that B.C.’s resident killer whales are not left to wait much longer for the protection they need.

The northern and southern residents killer whales, who make their home in B.C.’s coastal waters, are listed under SARA. The 264 northern residents are listed as ‘threatened’ while there are just 87 ‘endangered’ southern residents left. In order for this iconic animal to not just survive, but thrive, it needs plenty of Chinook salmon to eat and a cleaner, quieter ocean in which to live — now.

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