The ancient Goddess of Justice, Themis, stands with her scales; an avenger in her earliest portrayals, but evolved to wear a blindfold in more recent times to represent the principles of modern law. For me, today’s goddess of justice is standing in the middle of a federal courtroom in downtown Vancouver, conveying the facts and points of law in a lawsuit that she (and her team) have spent many months preparing.
Margot Venton is leading the Ecojustice legal team that is representing Raincoast and 8 other conservation groups in a case that could determine the future of BC’s resident killer whales. Margot has been speaking for several hours now with volumes of submitted materials stacked beside her. She has carefully outlined the history of the Resident Killer Whale Recovery Strategy, is presenting the sections of law that define the legal obligation that Fisheries and Oceans has to protect Canada’s endangered and threatened species, and – the lynch pin in the whole case – explaining the emphasis that killer whale scientists have put on ‘critical habitat’.
Critical habitat is a legal term that denotes the physical and biological features of habitat that a species or population –often endangered – needs to survive. For resident killer whales, the presence of salmon at locations and times where they can be accessed by killer whales defines habitat that is critical to their growth and survival.
In the summer and fall, resident killer whales come to BC’s inside waters primarily in pursuit of their favourite food, chinook salmon. Chinook comprise nearly 90 percent of their diet at this time and are linked to killer whale birth rates and survival. The funnelling nature of islands and land masses at the entrance of large rivers like the Fraser concentrate migrating salmon making it prime real estate for killer whales.
Unfortunately for the whales, it’s prime real estate for British Columbians as well; a large factor in the declining abundance of salmon, the contamination of marine waters, and increasing noise in the waters where whales are trying to communicate and hunt. These appear to be the factors preventing the recovery of killer whales and keeping their numbers at precariously low levels. Which leads us back to the courtroom.
We are arguing – as did the scientists who made the recommendations to government – that these threats to habitat need to be addressed if we are to put the whales on the road to recovery. We argue that the federal Species at Risk Act obliges the Minister of Fisheries and Oceans to do this.
The federal government however, doesn’t see it quite the same way. They first attempted to remove and dismiss the key elements of critical habitat in the recovery strategy. When that ultimately failed, they then interpreted their legal responsibility to protect habitat by stating that voluntary guidelines and non-binding or discretionary laws and policies were good enough. When that too was challenged, they issued an “order” to protect habitat. But the order fails to address the declining food supply, the water quality, and the noise pollution that are causing the problem. Ultimately we allege that the government has unlawfully interpreted its own law and breached the terms of the Species at Risk Act.
Day 2 has begun, with several more to follow. Lets hope the weight of the law starts to tip in favour of the whales.