Judge: Ottawa isn’t protecting whales

Eco-activists hail it as landmark ruling; DFO changes expected

By Judith Lavoie, Times Colonist, December 8, 2010

The federal government has failed to adequately protect the habitat of endangered and threatened resident killer whales, a Federal Court judge ruled Tuesday.

Nine environmental groups, which took the Department of Fisheries and Oceans to court over habitat protection, celebrated the ruling as a landmark decision and predicted it will mean changes to fishing plans and ocean noise regulations.

Habitat for the whales includes the water around Vancouver Island and, as lack of salmon, pollution and noise have been identified as the main threats to killer whales, protection could affect fishing, whale watching, disposal of toxins and sewage, military sonar and seismic testing.

It will also affect how government deals with other species at risk, said Margot Venton, Ecojustice staff lawyer, who acted for the coalition of conservation groups.

“The court made a whole bunch of important decisions that, I think, are going to be important in shaping how DFO conducts itself with all sorts of other species,” Venton said.

“This is a victory not just for the resident killer whales, but for the more than 90 other marine species listed under the federal Species at Risk Act,” she said.

DFO needs to act quickly on protecting critical habitat because resident killer whales are in urgent need of help, Venton said.

Southern resident killer whales, of which there are 87 in three pods, are listed as endangered. The northern residents, with about 220 members, are listed as threatened.

DFO offered no specifics Tuesday on how it will comply with the ruling.

“The government is reviewing the decision of the Federal Court and determining its next steps,” DFO spokeswoman Kirsten Ruecker said in an emailed statement.

Misty MacDuffee of Raincoast Conservation said considering whales in fishing plans is a first step.

“We have to start thinking of wildlife in our salmon-management plans, whether it’s bears, wolves or killer whales,” she said.

That would mean in years of low chinook salmon numbers the killer whales would have priority, MacDuffee said.

“This is where the rubber is going to hit the road because DFO doesn’t actually want to give up fish to wildlife,” she said.

The decision could also affect plans for oil supertankers in northern B.C. waters, said Stephanie Goodwin of Greenpeace.

Venton said there are policies dealing with ocean noise, but this could be a catalyst for stronger regulations, which might affect the whale watching industry.

Research from the University of Victoria’s VENUS — Victoria Experimental Network Under the Sea — project released last week showed whales are having to yell over increasing noise from marine traffic.

The lawsuit was launched after the DFO decided in 2008 to legally protect critical habitat using voluntary guidelines and non-binding laws and policies.

Last year, the DFO issued a protection order for killer whale habitat that did not address water quality, food supply or noise pollution.

Federal Court Judge James Russell ruled that “the minister of fisheries and oceans erred in law in determining that the critical habitat of the resident killer whales was already legally protected by existing laws of Canada.”

The judgment says voluntary protocols and guidelines do not legally protect critical habit.

Also, it was unlawful for government to exclude ecosystem features, such as availability of prey and acoustic and environmental factors, from the scope of the protection order, Russell ruled.

For the full 127 page ruling by Justice James Russell click here  Killer Whale Judgement Dec 2010

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