Appeal court affirms protection for killer whales

Environmental groups celebrate victory after federal government ordered to pay costs of failed appeal

Feb. 9, 2012

VANCOUVER – The federal Court of Appeal has upheld a precedent-setting ruling that confirmed the federal government is legally bound to protect killer whale habitat, according to a judgment released today.In its judgment, the Court of Appeal unanimously dismissed nearly all aspects of the federal government’s appeal and ordered the government to pay the associated costs. This means that essentially all of the original ruling, which found that the Department of Fisheries and Oceans (DFO) had failed to legally protect killer whale critical habitat, has been upheld.

“Ecojustice and our clients are very pleased with the Court of Appeal’s decision,” said Margot Venton, staff lawyer at Ecojustice. “In upholding the original ruling, the Court of Appeal has confirmed that it’s time to get on with the business of actually protecting these killer whales.”

Ecojustice, representing a coalition of nine environmental groups, successfully argued in Federal Court last year that DFO had not met its legal obligation to protect killer whales. The court ruled that the Minister of Fisheries and Oceans must legally protect all aspects of killer whale critical habitat — including their food supply and the quality of their marine environment.

DFO appealed that decision, claiming that discretionary provisions in the Fisheries Act adequately protect the critical habitat of aquatic species such as the killer whale. The Act however, does not make critical habitat protection mandatory, as is the case under the Species at Risk Act. Instead, the Fisheries Act gives Minister Keith Ashfield broad discretion to authorize activities that destroy habitat.

“The original ruling, and now the Court of Appeal’s judgment, have confirmed that the fate of killer whales should not be left to the discretion of politicians,” Venton said. “These whales must be protected by law. They need spaces to feed, breed and raise their young if their populations are going to survive and recover.”

Central to the case are two distinct populations of killer whales that traverse British Columbia’s coastal waters, the northern and southern residents. At last count there were 264 threatened northern residents and just 87 endangered southern residents. Both species are listed under SARA.

Killer whales are considered a “sentinel species,” which means their health is a bellwether for the overall health of the ocean environment in which they live.

In his decision last year, Federal Court Justice James Russell held that DFO had failed to legally protect killer whale critical habitat and made 13 declarations that included:

  • DFO unlawfully relied on non-binding policies and guidelines, as well as government discretion, to protect habitat.
  • DFO unlawfully limited the scope of legal protection to exclude biological elements of critical habitat.
  • DFO has a legal obligation to protect the biological aspects of critical habitat, such as prey (food) availability and marine environment quality, through law.

The victory was precedent-setting for the more than 90 endangered and threatened marine species listed under the Species at Risk Act, all of which depend on healthy habitats to survive.

For more information on the killer whales, please see our backgrounder.

Ecojustice is representing the David Suzuki Foundation, Dogwood Initiative, Environmental Defence, Greenpeace, Georgia Strait Alliance, International Fund for Animal Welfare, Raincoast Conservation Foundation, Sierra Club of BC and the Wilderness Committee.


For more information, please contact:

Margot Venton, staff lawyer | Ecojustice

Tim Leadem, staff lawyer | Ecojustice


Jeffery Young, aquatic biologist | David Suzuki Foundation
604.764.6142 (c) | 604.732.422 x1225

Sarah King, oceans coordinator | Greenpeace


Gwen Barlee, policy director | Wilderness Committee
604.202.0322 (c) | 604.683.8220 (w)

Christianne Wilhelmson, executive director | Georgia Strait Alliance
604.862.7579 (c) | 604.633.0530 (w)

Misty MacDufee, biologist | Raincoast Conservation Foundation
250.818.2136 (c)

Colin Campbell, marine campaign coordinator | Sierra Club BC
250.386.5255 x236 | 250.361.6476 (c)

Will Horter, executive director | Dogwood Initiative
250.418.1672 (c)