The groups filed a legal challenge on Monday against the Department of Fisheries and Oceans (DFO) and Environment and Climate Change Canada (ECCC), putting pressure on the federal ministers to recommend to cabinet an emergency protection order for Southern Resident killer whales (SRKW). 

An assessment last fall from the ministries determined that SRKW face imminent threats for survival—a determination that would direct the ministers to recommend an emergency order to increase legal protections for the whales immediately. 

The conservation groups—including The David Suzuki Foundation, Georgia Strait Alliance, Living Oceans Society, Natural Resources Defense Council, Raincoast Conservation Foundation, and World Wildlife Fund Canada—argue that an emergency order recommendation is legally required under the Species at Risk Act, after the ministries determine such a threat.

Precedent for this came from a similar case last summer, concerning spotted owls in BC, when a judge found ECCC Minister Steven Guilbeault’s delay in recommending an emergency order to cabinet to be unlawful. Guilbeault waited eight months after ECCC determined the owl species faced imminent threats. 

It’s now been two months since the Nov. 29 assessment, and Imalka Nilmalgoda, an EcoJustice lawyer representing the conservation groups, says that’s too long.

“We know that the whales are facing pretty urgent threats to their survival, and that action is really needed now to give them that fighting chance,” Nilmalgoda told Capital Daily. “The window of opportunity is really closing.” 

Similar to the spotted owl case, she said,“the action must reflect the urgency of the situation.” 

Nilmalgoda says the ministers and cabinet have the ability—and duty—to move ahead with a recommendation and emergency order, despite Parliament being prorogrued while a new Liberal Party leader, and prime minister, is selected. 

An emergency order would bolster conservation protections for SRKW, which could affect ship speeds, pollution, and salmon conservation—all factors that play a role in the population’s decline.

Cabinet could decline the recommendation—again

If the ministers recommend the emergency order, the cabinet could still decline with the argument that current protection measures are sufficient—this was the case in 2018, the last time cabinet was urged to make an emergency protection order for SRKW.

If cabinet declines, Nilmalgoda said it would be “quite hard to challenge” that decision in court. 

Jeffery Young, policy analyst at the David Suzuki Foundation (DSF) said the federal government’s recent history on this file has not been good enough. The whales have been listed as endangered for “decades at this point” and, in the seven years since the last emergency order request, actions “haven't been sufficient,” he said.

“There's still a lot of missing pieces in terms of ensuring these whales are protected and recovered,” Young said. “The emergency is as dire as it's ever been and the actions we know we need to take are clearer than ever.”

Young says the legal challenge filed against the ministers would “essentially go away” once they make the recommendation to cabinet.

“All we're asking the government to do is do what they're obligated to do under law to protect these species, and they have the power to do it,” Young said. 

Actions that could be included in an emergency protection order

Misty MacDuffee, salmon program director at Raincoast, says the emergency order would help meet the realistic needs of recovering the SRKW population. Actions she says Raincoast would like to see included in an order: 

• Increasing the minimum distance between vessels and SRKW to 1K metres—up from 400 metres—to align with laws in the US.
• Create a framework for when the health of the population is poor and a forecast for when Chinook salmon numbers are low—“if those two things collide, there are a series of actions that will be put in place, things like fisheries closures.” 
• Noise reduction targets and regional noise targets for the Salish Sea. This would include a maximum speed in the area, which has been shown to reduce underwater noise levels. Slower speeds are currently voluntary, but MacDuffee hopes an emergency order would make them mandatory.
• Prohibiting the release of scrubber wastewater from ships in and around the critical habitat of SRKW.

These actions align with what multiple scientists have called for over recent years. Last September, a study found that noise levels were one of the biggest threats to the whales. Despite abundant Chinook salmon levels, SRKW were unable to pursue the fish properly.

One researcher told Capital Daily that—in addition to the actions laid out by MacDuffee—offering veterinary care, such as antibiotics for a whale battling an infection, could play a significant role in maintaining and growing the population. 

“We are really at a fork in the road, at the 11th hour, for turning this situation around, and that's why we are asking for emergency measures,” MacDuffee said.