Legal action for killer whales | Raincoast Conservation Foundation

Federal government sued for failure to protect the critical habitat of BC’s resident killer whales

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In the fall of 2008 Raincoast, along with 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 DFO, under te federal Species At Risk Act, is obligated to protect the critical habitat of threatened and endangered species.

In April 2009, Fisheries and Oceans Canada (DFO) sought to have the case thrown out of court, claiming that a decision they had recently made (an Order) would protect the whales’ critical habitat. Ecojustice argued that while welcomed, this measure was limited in scope and not adequate to protect key aspects of their habitat.

Raincoast is concerned that DFO has focused on protecting the geophysical aspects of their habitat only, and not the aspects that comprise critical habitat – the biological, acoustic or water quality features. This leaves the whales unprotected from threats of low Chinook abundance, (their primary food source), pollutants, and increasing noise from vessel traffic and underwater sound. These are the identified reasons for the current status of killer whales and the decline in the southern resident population.

Despite requests, the federal government has refused to clarify what aspect of critical habitat they intend to protect saying that the nature and scope of the critical habitat will be determined over time through trial and error. Raincoast believes that endangered southern residents do not have time for a ‘trial and error’ approach to protection.

The trial, overseen by Justice James Russell, began June 15, 2010 at the federal court building in Vancouver. While originally set for five days, the proceedings ended after three. One interesting outcome of the proceedings, was that the crown acknowledged that the law requires the legal protection of killer whale critical habitat, including the 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 decision. He confirmed that DFO has failed to adequately protect the critical habitat of B.C.’s resident killer whales and they have a legal obligation to do so. This means all aspects of critical habitat- chemical, biological, acoustic and physical – must be protected from destruction.

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.

In April 2011, Justice Russell released a decision on costs. He has ordered DFO to pay the plaintiffs $80,000 stating that they “displayed reprehensible, scandalous or improper conduct that is deserving of reproof or rebuke.” The award will cover the legal costs of the trial.

Read the Press Release (Dec 2010): Killer Whale Victory in Court

Read the Judges Decision (Dec 2010) : Justice Russell Killer Whale Judgement Dec 2010

Judge orders DFO to pay costs (April 2010): Justice Russell DFO vs ENGOs Costs