BC’s Killer Whales Get Their Day in Court

As British Columbia’s southern resident killer whales are welcomed back to local waters, many scientists and citizens are growing increasing concerned for their future.   Even with new arrivals to our local pods, the population still needs to show clear signs of recovery.   One action we hope will help is a legal challenge launched against the Canadian federal government.  How, you might ask, will a lawsuit help whales?   As with science and law, it can get murky, but the case hinges on a key point – critical habitat.

It has been two years since the Killer Whale Recovery Strategy -prepared by BC’s top killer whale experts- was presented to the federal government. This document was produced to meet the legal requirements under Canada’s endangered species legislation (SARA).  As endangered and threatened species, BC’s resident killer whales legally require a plan to improve their status.

So what is the problem facing resident killer whales?

Over the last century, southern resident killer whales have not had any easy ride. Naturally, these animals have low reproductive rates so the population grows slowly.  Females give birth only about once every 5 years and the calves themselves have high mortality rates.  Between 1962 and 1974, 47 whales were removed from the southern resident population and sold to aquariums around the world.   With low numbers and slow growth, such removal can have far reaching effects, but most importantly, it reduced the number of whales to precariously low levels.

Since the 1970’s, our region has seen rapid growth, both on the land and water. This has impacted the one thing that brings killer whales to these waters – salmon.   It has affected killer whales through three ways; it has reduced the abundance of salmon, it’s impacted the quality of the salmon and it’s impacted the ability to effectively find and capture salmon.

Resident killer whales come to our inside waters primarily in pursuit of chinook, their favorite food.  Chinook represents about 90 percent of their summer and fall diet and is linked to their birth rates and survival.  The presence of chinook at locations and times where they can be accessed by killer whales defines habitat that is critical to their growth and survival.

The decline in chinook abundance is a big factor in the endangered status of southern residents.  But salmon have also become a source of toxins to the whales, as chemicals from our homes and industries make their way to the ocean food web.  Finally, growing boat traffic – usually equipped with commercial or military sonar – makes it increasingly difficult for whales to communicate and hunt (using sound) amidst all the noise.

While addressing the issues that are impacting killer whales is not simple, the federal government’s course of action both prior to and since the release of the Killer Whale Recovery Strategy has been to delay and weaken the scientists’ recommendations, and in the end, to pick and choose the part it will implement.   Which leads us to the court case.

Ecojustice is representing Raincoast, along with eight other conservation groups, in two lawsuits regarding killer whales and Canada’s Species at Risk Act (SARA). The lawsuits, consolidated by the court, concern federal government decisions about the legal protection of ‘critical habitat’.

Critical habitat is defined under SARA as habitat that is necessary for the survival or recovery of a listed wildlife species.  In the case of killer whales, this means ensuring the conditions that allow whales to locate and consume food in adequate quality and quantity.

Our court case argues that the federal government has unlawfully narrowed its legal responsibility to protect critical habitat, as it is refusing to protect food availability, food quality and acoustic conditions – the three elements hindering the recovery of the whales. Instead, the government has stated it will protect the whales’ ‘physical habitat’ – a place on the map, sidestepping the aspects that comprise their ‘critical habitat’.

Our lawyers at Ecojustice are asking the federal court to confirm that the government’s interpretation of critical habitat is unlawful and to reconfirm the requirements of the law to fully protect all the parts.

The court hearing is set for five days starting Tuesday June 15th in Vancouver and will likely have a major bearing on the future of BC’s killer whales.

Misty MacDuffee is a biologist with the Raincoast Conservation Foundation’s
wild salmon program.

Chris Genovali is Raincoast’s executive director.