Defending our killer whale legal victory

Notes from the Field - A conservation update from the Great Bear Rainforest


by Misty MacDuffee
Wild Salmon Program biologist and killer whale advocate
January 2011

Raincoast and our conservation partners recently won a major legal victory for British Columbia’s endangered and threatened resident killer whales. Led by lawyer Margot Venton at Ecojustice, we challenged the federal government’s lack of action to protect the habitat of these marine animals – something the government is legally mandated to do.

The key argument we put forward in our court case was that the federal fisheries minister does not have a choice whether or not to protect critical habitat for threatened and endangered aquatic species such as the killer whales. Rather, section 58(5) of the Species At Risk Act (SARA) states that legal protection of critical habitat for aquatic species is mandatory. Justice Russell confirmed this in his ruling in December 2010, stating it was unlawful for the Minister of Fisheries to rely on discretionary provisions under the Fisheries Act because habitat protection under SARA was non discretionary.

Unfortunately, the federal fisheries minister doesn’t agree and has decided to appeal this key element of the ruling. The minister wants to be able to use discretionary powers under the Fisheries Act to choose when or if they will protect threatened and endangered species.

Raincoast and our conservation partners have no choice but to fight DFO’s appeal. It is unfortunate that the minister has chosen to go back to court instead of supporting the recommendations of their own killer whale recovery team and the scientists’ call for habitat protection.

We have put time and resources into our killer whale protection efforts without any dedicated funding to do so. Yet because we felt this issue was so very important, we persevered regardless.

Now, to preserve the entirety of our legal victory we need your financial help. As always, it is your support of these initiatives that allow us to undertake them using legal, scientific and ethical arguments to defend coastal species.

To support this law suit please visit Defending Our Killer Whale Lawsuit Victory Giving Page, or contact me at

Thank you for your support.


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Chelsea Greer hanging a wildlife camera.