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

Updated recovery plan a triumph for B.C.’s resident killer whales

Margot VentonLawyer

It’s October — a time on B.C.’s Gulf Islands when people are on the lookout for the “super pod,” the convergence of the entire population of the endangered Southern Resident Killer Whales (87 at last count) coming to feast on the tasty Chinook salmon that congregate in the Georgia Strait at this time of year. So far I haven’t seen them. But yesterday I did see that the Department of Fisheries and Oceans has publicly revised the Recovery Strategy for the Resident Killer Whales to reflect the Judgment of the Federal Court in our killer whale lawsuit.

The recovery strategy, written first in 2008, was crafted by a team of whale scientists. It explains in broad terms why the whales are in trouble and what we need to do to keep them from disappearing forever and to recovery to healthy population. A key part of the recovery strategy is the identification of critical habitat — the habitat necessary for the survival and recovery of killer whales. That habitat is identified as the area where Chinook salmon seasonally congregate: the Southern Strait of Georgia and Johnston Strait.

A dispute over the government’s legal duty to protect this critical habitat from destruction has had Ecojustice and our nine clients in Federal Court for the last three years. Throughout the case we have maintained that Canada’s Species at Risk Act requires the legal protection of all aspects of critical habitat. In December 2010, Justice Russell of the Court of Appeal agreed with us. Aspects of his decision were appealed by the Minister of Fisheries and Oceans, and will be heard by the Court of Appeal in November. Justice Russell’s finding that SARA requires legal protection for all aspects of critical habitat were not challenged, and are now the law of Canada. So yesterday I read with great excitement the Final Amended Recovery Strategy for the Northern and Southern Resident Killer Whales in Canada. The amendments are few, and my favourite is actually in a footnote which reads:

“In response to the December 7, 2010 Federal Court ruling regarding resident killer whales and critical habitat protection (David Suzuki Foundation et al. V. Canada (Fisheries and Oceans), 2010 FC 1233) minor amendments clarify that the attributes of critical habitat that were identified in the 2008 Recovery Strategy [including availability of the preferred prey and the lack of acoustic disturbance or chemical contamination] are in fact a part of critical habitat.”

These short lines, along with the “minor amendments” that follow may not seem like much, but the acknowledgement that the government must legally protect salmon and water quality for endangered killer whales is a huge step forward on their journey to recovery.

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