Standing up for salmon eaters
Fisheries minister sued for failure to protect 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 DFO, under the federal Species At Risk Act, is obligated to protect the critical habitat of threatened and endangered species.
Timeline and background to the case
- Killer whales were SARA listed in 2004, and COSEWIC listed since 1999.
- The law suits challenged decisions about legal protection of critical habitat.
- Critical habitat for BC’s resident killer whales is identified in the Resident Killer Whales Recovery Strategy 2008.
- The Recovery Strategy was created by a team of independent and government scientific and conservation killer whale experts.
- The Recovery Team completed a Draft Recovery Strategy in May 2006. 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.
- SARA legally required that a Proposed Recovery Strategy for the Southern Resident Killer Whales be published by June 2006.
- The Proposed Recovery Strategy was posted to the SARA Registry in June 2007, a year past its legal deadline.
- Under SARA, DFO was legally required to release the Final Recovery Strategy by September 2007.
- In March 2008, the Final Recovery Strategy was posted.
- In both cases, the delay was attributed to attempts by DFO and other 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.
- In the fall of 2008, Ecojustice filled the lawsuit on the behalf of Raincoast and other NGOs.
The legal struggle
In April 2009, the minister at Fisheries and Oceans Canada (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 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, 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 127 page decision. 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 decision upholding the earlier decision by Justice Russell.
Read the Judges Decision (Dec 2010) : Killer Whale Legal Judgement
Read the Court of Appeal decision (Feb 2012) February 2012 Appeal Decision
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
Read the Press Release (Dec 2010): Legal victory for killer whales
All killer whale media including NOAA tagging plan and calls to stop military training in critical habitat
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