Protecting BC’s Resident Killer Whales
In the fall of 2008 Raincoast and several other conservation groups, filed a lawsuit to protect Canada’s two populations of resident (salmon-eating) killer whales. Represented by Ecojustice, the case was filed on the basis that Fisheries & Oceans Canada (DFO), is obligated to protect the critical habitat of threatened and endangered whales.
Resident Killer Whale Federal Recovery Planning Timeline
- In 1999, northern and southern resident killer whales were listed respectively as threatened and endangered under COSEWIC.
- In 2003, southern and northern resident killer whales were listed under SARA, Canada’s Species at Risk Act.
- In 2004, a scientific recovery team was established that consisted of independent and government killer whale experts.
- In 2006, the Recovery Team completed a Draft Recovery Strategy. The draft identified key biological and geophysical aspects of critical habitat. It also identified three key threats to habitat: reduction in prey availability, pollution and acoustic disturbance
- In June 2007, the Proposed Recovery Strategy was posted to the SARA Registry, a year past its due date.
- In March 2008, the Final Resident Killer Whale Recovery Strategy (PDF) was released. Under SARA, DFO was legally required to release the Final Recovery Strategy by September 2007.
- In both cases, the delay was attributed to attempts by federal government departments to remove references and threats to critical habitat.
- In September 2008, without consulting the Recovery Team, DFO issued a Protection Statement purporting that Resident Killer Whale Critical Habitat was protected by existing laws and policies. Raincoast and other NGOs disagreed.
- In the fall of 2008, Ecojustice, on behalf of Raincoast and others, filed the first lawsuit. It was largely based on the Protection Statement’s failure to protect all aspects of critical habitat. It failed to specify biological (food), chemical (water & food quality), and acoustic qualities of critical habitat.
- In April 2009, the federal minister for DFO tried to have the case dismissed.
- In June 2010, the case was heard in federal court.
- In December 2010, the judge ruled in favour of the whales, citing DFO’s failure to protect critical habitat.
- In January 2011, DFO filed to appeal a key part of the decision.
- In December 2011, the appeal case was heard in the federal Court of Appeal.
- In February 2012, the appeal court upheld the lower court decision, again ruling in favour of the whales.
- In March, 2014 the federal government released a long overdue Draft Action Plan (PDF).
- In April 2014, Raincoast and others critiqued the Action Plan (PDF).
- By April 2015 , no final action plan has been released. Tired of waiting, Raincoast and others decide to draft their own recovery plan for southern resident killer whales.
In the fall of 2008, Ecojustice filled a lawsuit on the behalf of a group of NGO’s including Raincoast. In April 2009, the minister at DFO sought to have the case thrown out of court, claiming that his Protection Statement would protect the whales’ critical habitat. Ecojustice argued that while welcomed, this measure was limited in scope and not adequate to protect the key aspects of their habitat.
DFO’s Protection Statement focused on protecting geophysical aspects of killer whale habitat only, and not protecting the more important features that comprise their critical habitat – the biological, acoustic or water quality components. Such a focus was a way to avoid addressing chinook abundance, (their primary food source), chemical pollutants, underwater noise or vessel disturbance. These are the identified contributors to the status of killer whales and factors for the decline in the southern resident population.
Despite requests, the Minister’s office refused to clarify what aspect of critical habitat they intended to protect, stating instead that the nature and scope of critical habitat would be determined over time through trial and error. Raincoast held that endangered southern residents did not have time for a ‘trial and error’ approach to protection.
The trial occurred in June 2010. During the proceedings, DFO acknowledged that the law requires the legal protection of killer whale critical habitat, including its biological, acoustic and water quality elements. They agreed that prey abundance (ie salmon) is an integral component of critical habitat.
In December 2010, Justice Russell released his 127 page decision, in the Killer Whale Legal Judgement (PDF). He confirmed that DFO had failed to adequately protect the critical habitat of B.C.’s resident killer whales and they have a legal obligation to do so. This meant all aspects of critical habitat- chemical, biological, acoustic and physical – must be protected from destruction.
In April 2011, Justice Russell released a decision on costs. He ordered DFO to pay the plaintiffs $80,000 stating that they [minister’s office] “displayed reprehensible, scandalous or improper conduct that is deserving of reproof or rebuke.” The award covered the legal costs of the trial.
In January 2011, DFO filed to appeal one of the nine aspects of the ruling -that the federal fisheries minister has discretionary power to make decisions under the Fisheries Act and could protect critical habitat in this manner. The case was heard in December 2011. In February 2012, the Court of Appeal released their 60 page appeal decision (PDF), upholding the earlier decision by Justice Russell.
Raincoast and Recovery Planning
In 2012, the US (NOAA) and Canadian (DFO) federal governments began a series of workshops examining the effect of salmon fisheries on southern resident killer whales. Their final report can be viewed here (PDF).
In June 2013, Raincoast submitted comments to the US (NOAA) and Canadian (DFO) governments on their salmon food supply SRKW Science Panel (PDF).
In 2014, DFO released a Draft Action Plan (PDF) for resident killer whales in British Columbia. With Ecojustice, and a group of NGO’s, Raincoast provided a critique and comments on the draft action plan (PDF). Our primary criticisms are the lack of separate actions plans for endangered (southern) versus threatened (northern) whales, and the lack of actions needed on food supply, physical and acoustic disturbance and pollutant exposure for critically endangered southern resident killer whales.
Killer Whale Media and Documents
Action Plan Fails to protect Southern Resident Killer Whales (letter April 2014)
Raincoast and others call on military to stop training in critical habitat
Read the Press Release (Feb 2012): Court of Appeal upholds decision
Judge orders DFO to pay costs (April 2011): Justice Russell DFO vs ENGOs Costs
Press Release (Dec 2010): Legal victory for killer whales
Valuable Summary Documents
SRKW NOAA 2014 10 years of Science and Conservation on Southern Resident Killer Whales produced by NOAA in 2014
What killed L112 ? Raincoast calls on the military to stop training exercises in critical habitat
CBC and CFAX speak with Raincoast’s Misty MacDuffee on the Anniversary of the Exxon Valdez Oil Spill.
CFAX speaks with Raincoast’s Misty MacDuffee about the US plan to tag the southern resident killer whales. January 2012 Click here to listen
CFAX’s Murray Langdon speaks with Raincoast’s Misty MacDuffee about the legal victory in Dec 2010. Click here to listen.
CFAX’s Murray Langdon speaks with Raincoast’s Misty MacDuffee about the legal case for killer whales June 2010 Click here to listen.
CFAX speaks with Raincoast’s Kathy Heise about the filing of the lawsuit in 2008 Click here to listen.
The Halls of Justice by Misty MacDuffee June 16, 2010
Defending our Killer Whale Legal Victory by Misty MacDuffee February 2011