UPDATE 04/10/2012: The federal government will not appeal the Court’s ruling, which means our victory for the killer whales and Canada’s other at-risk marine species stands!

Our huge win in the Federal Court of Appeal has me wishing I could talk to whales.  At Ecojustice, we’re steeped in the compelling and desperate plight of killer whales, whose daily life is a struggle – not enough food, constant boat traffic that interferes with their hunting and social communication, swimming in an ocean that is in places a toxic soup. The tale of the huge decline in their coastal family is one that would have anyone coming to their defence. With your help, we did.

Yesterday, the Federal Court of Appeal upheld a hard-fought 2010 legal victory that guaranteed the protection of killer whale habitat by law. The Court of Appeal’s judgment decisively rebutted the federal government’s position that the status quo for killer whales was good enough. And it affirmed our position that the federal government has a legal responsibility to protect their habitat, in order to save these magnificent mammals.

The appeal court’s ruling was an uncommonly strong judgment for what had become an uncharacteristically pitched battle. Formerly as a species-at-risk lawyer and more recently as executive director, I watched this case emerge in 2006 when we worked to thwart bureaucratic interference in recovery planning for killer whales.

More recently, we watched the Minister of Fisheries and Oceans obstruct our every attempt to find a solution both inside and outside the courts. So excessive was the Minister’s behavior that the federal court  that issued the original ruling took the exceptional step of awarding us solicitor-client costs because, in the words of the court, the Minister’s conduct was “worthy of rebuke.”

Now, the Court of Appeal has clearly and compellingly affirmed the lower court, spelling out in refreshingly clear language that the Species at Risk Act (SARA)means what it says: “SARA provides in no uncertain language that the purpose … is to ensure that all the critical habitat is protected.”

So, I wish I could tell the whales what this means.  I want to tell them that their habitat is now protected by law. That the government must manage salmon fisheries sustainably so that orcas have enough to eat. That the government must manage boat traffic so that these matrilineal families have the peace and quiet they need to eat, play, bear and raise children, and find their way in an increasingly crowded ocean. That the government must take meaningful steps to reduce poisonous flows into our coastal seas that have turned the flesh of orcas into living toxic waste.

Clear and decisive, our victory on behalf of nine stalwart members of the environmental community (David Suzuki Foundation, Dogwood Initiative, Environmental Defence, Greenpeace, Georgia Strait Alliance, International Fund for Animal Welfare, Raincoast Conservation, Sierra Club of BC and the Wilderness Committee) draws a legal line in the sand. Hopefully, it’s a line that the government won’t cross again, choosing instead to abide by the court’s ruling and the law to protect killer whales, their food and their ocean home. If the government does choose to cross the line, we’ve been granted a powerful legal tool and we’re prepared to use it.

So that even if we can’t tell killer whales what this decision means, they’ll know anyway.