Ecojustice Case – Nature Case Status: Closed

Fighting for emergency protections for Southern Resident killer whales

Dyna TuytelLawyer
Margot VentonLawyer
Southern Resident killer whale surfacing
Photo by Miles Ritter via Flickr

In an effort to protect endangered Southern Resident killer whales, Ecojustice launched a lawsuit against the Minister of Environment and Climate Change and Minister of Fisheries and Oceans in September 2018.

On behalf of David Suzuki Foundation, Georgia Strait Alliance, Natural Resources Defense Council, Raincoast Conservation Foundation and World Wildlife Fund Canada, Ecojustice filed a case asking the Federal Court to force the ministers to recommend that cabinet issue an emergency order to protect the whales under the Species at Risk Act.

The filing came at a time when the Southern Residents’ crisis was on full display — in the immediate aftermath of J35’s famous “tour of grief,” during which the whale carried her dead calf for 17 days, and a mere week and a half before authorities declared J50, a four-year-old Southern Resident, presumed dead.

The case launch also followed more than seven months’ worth of concerted efforts to convince pressure the ministers into recommending the emergency protections, including a petition from Ecojustice and its clients, more than ten thousand letters from Ecojustice supporters to the Ministers, and local and national media coverage.

On Nov. 2, 2018, faced with pressure from both the lawsuit and the public, the federal government quietly released a decision not to issue an emergency order for the Southern Residents.

According to the announcement, the ministers had indeed recommended cabinet make the order — the outcome Ecojustice sought through litigation — but cabinet refused to issue the emergency protections.

With the recommendation already-made, Ecojustice discontinued the case (Raincoast Conservation Foundation et al. v. Minister of Fisheries, Oceans and the Canadian Coast Guard et al.).

Why did Ecojustice get involved?

As Canada’s largest environmental law charity, Ecojustice uses the power of the law to defend nature by going to court to protect and restore ecosystems and species at risk.

Southern Resident killer whales are a vital part of the Salish Sea ecosystem and an invaluable part of our cultures. They are also in crisis.

Genetically and culturally distinct from other orcas, the Southern Residents face three main threats to their survival:

  • Lack of Chinook salmon, the whales’ preferred prey
  • Acoustic and physical disturbance from noise
  • And contamination of the ecosystems where they live

Scientists agree that salmon shortages are the most urgent threat to the whales, leaving them at risk of malnutrition and even starvation.

Disturbance from vessels — including by recreational boaters, fishing boats, commercial whale watchers, ferries and shipping — also heightens this risk by interfering with the whales’ natural ability to hunt.

What does this outcome mean?

While we are pleased the ministers finally recommended issuing an emergency order, it is deeply disappointing that cabinet rejected what we believe to be the best tool to protect these whales.

Looking ahead, we stress that the government remains legally responsible for protecting federal species at risk, including the Southern Resident killer whales.

In the absence of an emergency order, this will mean drawing from a patchwork of legal tools to make sure the Southern Residents have legal, enforceable protections they need in order to survive and recover —  and doing so on an urgent timeline.

Together with its clients, Ecojustice remains committed to holding the government accountable and making sure it meets its responsibility to protect these endangered orcas.

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