Canadian government faces suit over killer whales

VANCOUVER, B.C. — Environmentalists are taking the Canadian federal government to court, demanding it use Canada's Species at Risk Act to protect threatened and endangered pods of resident killer whales off British Columbia.

Ecojustice, on behalf of eight environmental organizations, filed a notice of application for a lawsuit in Federal Court today against the Department of Fisheries and Oceans.

It aims to force the federal fisheries minister to use the legislation to safeguard the orcas' habitat.

The lawsuit is in reaction to a notice posted by the department on the Species at Risk Act registry last month contending that killer whales are already protected by other laws, regulations and guidelines.

The environmentalists want the government to take specific steps to protect killer whales, including making some areas off limits to vessel traffic and closing some salmon fisheries to preserve stocks that the whales eat.

No one from the department was immediately available to comment on the suit, which lawyer Lara Tessaro of Ecojustice, formerly the Sierra Legal Defense Fund, called unprecedented.

"There's never been a lawsuit of this kind in this country," Tessaro told a news conference. "Resident killer whales are among B.C.'s most iconic and treasured marine species."

Resident killer whales don't migrate long distances but range over specific areas off the Pacific Coast and Vancouver Island, feeding on local fish. The pods have distinct cultural and genetic identities.

Southern resident orcas suffered a 20 percent decline between 1993 and 2003 before recovering slightly. They are listed as endangered, with something over 80 whales remaining.

Northern resident whales — totaling about 205 — are considered threatened after dropping by 7 percent in recent years.

Tessaro said the declines are due to threats to the whales' habitat, including dredging, pollution, trawling, tanker traffic, military sonar tests, seismic testing and a decline in salmon stocks.

Interest groups have been talking to the fisheries department but Tessaro said its Sept. 10 posting on the various laws protecting whale habitat — based on a March 2008 document outlining a recovery strategy — amounted to a rejection of environmentalists' concerns.

"DFO pointed to a number of old, tired laws and old, tired policies," she said.

Some of the measures are voluntary, she said, such as guidelines covering whale-watching excursions.

Bill Wareham, director of marine conservation at the David Suzuki Foundation, compared the department's argument to reassurances given by U.S. financial regulators just before the country's credit system collapsed.

"That has been a great, tragic disaster," he said. "And it's similar to what we're hearing today from our government about what it takes to protect killer whale habitat.

"They say we have regulations; we have the tools to protect the habitat. But the fact is, it's not happening."

Wareham said the minister has the power to designate areas as protected habitat and to restrict fishing of stocks orcas depend on — things other countries have done.

Tessaro said critical habitat has already been identified by independent scientists and set out in a recovery plan issued last spring.

Wareham warned the resident populations are poised to crash, pointing to increased levels of toxins in their bodies and lower fat content due to inadequate food supplies.

"It's a situation where you could reach a tipping point where the whale population could collapse because the productive capacity of that population is diminished," he said.