The whales, the minister, and MacDuffee

By Briony Penn, March 2011

With feds like these, who needs enemies?

Southern resident orcas are set to swim back into Canadian and US courts this spring with the hopes of jumping two major legal hoops that could finally protect the marinescape for these endangered species. 

The Canadian courts are reconvening after the federal fisheries minister launched an appeal against Justice James Russell’s historic ruling in December 2010. That ruling said it was unlawful for the minister to exercise discretionary powers regarding the protection of critical habitat under the Species At Risk Act (SARA). 

Meanwhile, across the border, the US Occupational Safety and Health Administration (OSHA) has begun holding hearings into safety precautions around captive orcas, following last year’s death of trainer Dawn Brancheau. Brancheau was dragged into the water by Tilikum, the same whale who killed Kelsie Burns at Sealand here in Victoria in 1992. An October 2010 investigation found the marine park of SeaWorld Orlando had wilfully exposed employees to life-threatening hazards when interacting with orcas. The spring hearings may well impact the future viability of orcas in aquariums, and thereby have consequences for the multi-billion dollar industry that keeps them there. They may also improve Orca Lab’s bid to retire L Pod’s “Lolita” back to her home in the Salish Sea, after 40 years of jumping hoops in small tanks. 

Two Victoria women are helping to lead the charge and raise awareness around each of these historic appeals. 

Taking on the federal fisheries minister in the Canadian courts with Ecojustice lawyer Margaret Venton, and backed by eight other ENGOs, is applicant Misty MacDuffee of Raincoast Conservation Foundation (www.raincoast.org).

MacDuffee, a long-time campaigner and researcher on salmon, bears and whales, has been blogging about the case from the original court hearings last summer to the appeal this spring. MacDuffee states: “We were arguing—as did the scientists who made the recommendations to government—that the threats to habitat need to be addressed if we are to put the whales on the road to recovery. We also argued that the federal Species at Risk Act obliged the Minister of Fisheries and Oceans to do this.” 

When Justice Russell ruled in their favour, MacDuffee says that they felt vindicated in their persistence to get the minister to follow the letter of his own law. The December ruling stated that “the minister of fisheries and oceans erred in law in determining that the critical habitat of the resident killer whales was already legally protected by existing laws of Canada.” He also ruled that it was unlawful of the minister to have excluded other elements of the definition of “critical habitat” from the scope of the Protection Order. “Critical habitat” had been defined by the minister’s own scientists as not only the geographical location, but the availability and quality of their food and acoustic environment, yet the minister had not encouraged his staff to implement the act correctly. 

As MacDuffee wrote in her blog, “They [the minister and his office] first attempted to remove and dismiss the key elements of critical habitat in the recovery strategy. When that ultimately failed, they then interpreted their legal responsibility to protect habitat by stating that voluntary guidelines and non-binding or discretionary laws and policies were good enough. When that too was challenged, they issued an ‘order’ to protect habitat. But the order fails to address the declining food supply, the water quality, and the noise pollution that are causing the problem.”

As soon as Justice Russell’s ruling was out on these two counts, the minister appealed the first decision, i.e., that it is unlawful to use discretion in implementing the Species at Risk Act. 

MacDuffee points out two potential implications should the minister win the appeal. “First…it will set a dangerous precedent of a political appointee being able to decide whether or not they want to protect not just the orcas, but any endangered species.” The second worrying element, she says, is the degree of ongoing political interference in all aspects of enforcing this act. MacDuffee notes, “As the key arguments were put forward, we all wondered, including the judge as indicated in his comments, what on Earth we were all doing here? The law is very clear. In Section 58(5) of the Species At Risk Act it states that legal protection of critical habitat for aquatic species is mandatory. Why did we have to bring the minister to a courtroom to get him to do his job?”

Justice Russell’s 127-page ruling bears reading in full for its critique of the minister for ostensibly wasting court time and public resources. “[161] Given the level of agreement on the merits of the Protection Order Application, the Court cannot help but wonder, why it has been resisted on technical grounds, and why the Respondents do not think the courts should deal with it. Had the Respondents clarified their agreement on the definition of critical habitat and corrected the relevant public documentation, where a different interpretation is evident, or at least possible, the Protection Order Application need never have come before the court.”

The Department of Fisheries and Oceans were contacted with two simple questions: Why is the Minister appealing? And what is his response to the comment made by Justice Russell that the case need never have come before the court? Finally, after a week, a statement was released that since the appeal is before the courts, it would be inappropriate to comment. 

The whales are evidently up against meddling at the highest political level, with politicians who ignore their own scientists’ definitions and recommendations. 

In an upcoming month, I’ll report on the results of the minister’s appeal, the US hearings around captive whales and the Victoria woman who is an advocate in that campaign. 

Writer and artist Briony Penn is working with the nonprofit sector on making a carbon economy work for the conservation of nature.