Killer whales and court rooms

Several killer whales and one juvenile orca whale swimming very close to its parent throw up spray and foam in the blue green ocean.

Photograph by K. Cullen taken from land.

We have to go back to the last century (1999) to begin our story of killer whales and court rooms. It was then that both Northern and Southern Resident killer whales were recommended for listing, respectively as threatened and endangered. Their listing under Canada’s Species at Risk Act came in 2003.

In September 2008, without consulting the Recovery Team, Fisheries and Oceans Canada issued a Protection Statement purporting that Resident killer whale critical habitat was protected by existing laws and policies. Raincoast and other NGOs disagreed. In the fall of 2008, our first lawsuit for the Southern Residents was filed, argued and later won, with Ecojustice. It was largely based on the Protection Statement’s failure to protect all aspects of critical habitat – biological (food), chemical (water and food quality), and acoustic qualities. Following challenges by the federal government, the appeal court upheld the lower court decision in 2012, again ruling in favour of the whales.

The Species at Risk Act has a clear purpose – to prevent Canadian wildlife species from going extinct and to recover those that are extirpated, endangered, or threatened. It’s still this tool we are using today in the context of the threats posed by the Trans Mountain expansion’s tanker traffic. These threats are due largely from more vessel traffic noise that interferes with the feeding of hungry killer whales. 

While the government says increased tanker traffic is a small percent of total vessel traffic, an extra tanker per day will mean the whales will spend more time in the presence of ships and less time successfully feeding. This makes their recovery all but impossible. 

After the Trans Mountain project was first approved by the federal cabinet in 2016, we filed a lawsuit to prevent the seven-fold increase in oil tanker traffic through critical habitat. The case was heard before the Federal Court of Appeal in October 2017 and in a landmark decision for the Southern Residents, we won this lawsuit in 2018. However, the project was again approved by the federal cabinet in June 2019 after “reconsideration.” We appealed this decision and in October, the Federal Court of Appeal declined to hear our case. This brings us to our current appeal to the Supreme Court of Canada that we filed in November 2019. 

The legal dispute is not about whether the project will negatively affect the Southern Residents. The National Energy Board was clear in its reconsideration decision that more oil tankers would accelerate their decline. Our case argues that cabinet can’t just ignore the federal laws designed to prevent extinction and justify the loss of these killer whales as a trade-off for economic pursuits. The Act is in place to protect endangered wildlife from going extinct.

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