The whales, the minister, and MacDuffee

FOCUS online     Victoria’s magazine of people, ideas and culture

By Briony Penn

With feds like these, who needs enemies?

Southern resident orcas are set to swim back into Canadian and US courts this spring with the hopes of jumping two major legal hoops that could finally protect the marinescape for these endangered species.

The Canadian courts are reconvening after the federal fisheries minister launched an appeal against Justice James Russell’s historic ruling in December 2010. That ruling said it was unlawful for the minister to exercise discretionary powers regarding the protection of critical habitat under the Species At Risk Act (SARA).

Meanwhile, across the border, the US Occupational Safety and Health Administration (OSHA) has begun holding hearings into safety precautions around captive orcas, following last year’s death of trainer Dawn Brancheau. Brancheau was dragged into the water by Tilikum, the same whale who killed Kelsie Burns at Sealand here in Victoria in 1992. An October 2010 investigation found the marine park of SeaWorld Orlando had wilfully exposed employees to life-threatening hazards when interacting with orcas. The spring hearings may well impact the future viability of orcas in aquariums, and thereby have consequences for the multi-billion dollar industry that keeps them there. They may also improve Orca Lab’s bid to retire L Pod’s “Lolita” back to her home in the Salish Sea, after 40 years of jumping hoops in small tanks.

Two Victoria women are helping to lead the charge and raise awareness around each of these historic appeals.

Taking on the federal fisheries minister in the Canadian courts with Ecojustice lawyer Margaret Venton, and backed by eight other ENGOs, is applicant Misty MacDuffee of Raincoast Conservation Foundation (

MacDuffee, a long-time campaigner and researcher on salmon, bears and whales, has been blogging about the case from the original court hearings last summer to the appeal this spring. MacDuffee states: “We were arguing—as did the scientists who made the recommendations to government—that the threats to habitat need to be addressed if we are to put the whales on the road to recovery. We also argued that the federal Species at Risk Act obliged the Minister of Fisheries and Oceans to do this.”

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