We’re closing our emergency order case, but the fight to protect Southern Resident killer whales is far from over.
It was a bright September day when Ecojustice and our clients launched a lawsuit that, we hoped, would help secure an emergency order to protect Southern Resident killer whales.
Then, less than two months later, the federal government made a quiet announcement: Minister of Environment and Climate Change Catherine McKenna and Minister of Fisheries and Oceans Jonathan Wilkinson, it said, had finally met our demands and recommended an order. Cabinet, however, refused to issue one.
What this means for Ecojustice’s case
In effect, cabinet’s decision made the lawsuit moot.
Ecojustice’s case was aimed at forcing the ministers to recommend cabinet issue an order. That meant that once the ministers made their recommendation, our case became moot and we were forced to discontinue it.
In one sense, it is a small win. Without the pressure of a lawsuit and an engaged public, the ministers may never have made the recommendation in the first place. Nor would they have been forced to commit to a list of protections they’ve promised to implement before next spring.
But while we are pleased the ministers finally recommended issuing an emergency order, it is deeply disappointing that cabinet rejected what we believe to be the best tool to protect these whales.
Holding the federal government to its promises
Despite cabinet’s decision not to issue an order, the government remains legally responsible for protecting federal species at risk, including the Southern Resident killer whales.
In the absence of an emergency order, this will mean drawing from a patchwork of legal tools to make sure the Southern Residents have legal, enforceable protections they need in order to survive and recover — and doing so on an urgent timeline.
The federal government has already announced funding and steps intended to protect the Southern Resident killer whales. These include designating new areas of critical habitat for the whales, work related to vessel noise, taking steps to reduce underwater noise and regulating chemicals that could harm the whales.
Together with our clients, Ecojustice is committed to making sure that the government follows through on these promises before the whales return to the Salish Sea in the spring of 2019.
Calling for enforceable measures
One of the key strengths of an emergency order is that it enables the government to create protection measures that can be enforced under the law, rather than voluntary ones. In addition to holding the government to account for the commitments above, Ecojustice will continue to call for strong, enforceable measures to protect the Southern Resident killer whales. We are also encouraged that Bill C-68, which would amend the Canada Shipping Act and the Marine Liability Act, could offer opportunities to do so.
And while we hope the government will keep its promises to implement protections for the Southern Residents before the spring of 2019, we also won’t rule out revisiting our legal options if it fails to do so.
Addressing threats from the Trans Mountain pipeline
Ecojustice is also committed to fighting the potential threats an increase in tanker traffic from the Trans Mountain project would pose to the Southern Resident killer whales.
According to a report from our friends at Raincoast Conservation Foundation, the pipeline project would lead to a more than 50 per cent chance of the Southern Residents becoming effectively extinct within the century if it proceeds without efforts to address vessel noise, pollution, and shortages of prey for the whales.
Earlier this month, we asked supporters to meet a tight deadline to submit their comments to the NEB and tell it to say no the Trans Mountain pipeline project. And they rose to the challenge.
In less than two weeks, nearly 1,500 people sent faxes through our online advocacy tool, sending the strong message that they expect the NEB to pay attention to how this project will impact the whales.
Ecojustice and its clients have spent more than a decade working together to protect the Southern Resident killer whales. Together, we’ve launched multiple lawsuits, scored shared victories, and worked with supporters who are equally dedicated to protecting this iconic population. Looking ahead, we remain determined to work together to ensure the Southern Resident killer whales have the best-possible shot at survival and recovery.
Photo of K40 breaching by Miles Ritter, via Flickr. Image obtained under Creative Commons.