Government must protect orca habitat: court
By Judith Lavoie, timescolonist.com February 10, 2012

The federal government is legally bound to protect killer whale critical habitat, the federal Court of Appeal ruled Thursday.

The precedent-setting ruling, which follows a federal court decision last April, could affect fishing and vessel traffic in the Strait of Georgia and Juan de Fuca Strait — critical habitat for endangered southern resident killer whales — and the Queen Charlotte Strait and Johnstone Strait — critical habitat for threatened northern resident killer whales.

"I think it has to affect it," said Margot Venton, staff lawyer for Ecojustice, which acted for a coalition of conservation groups, including the David Suzuki Foundation, Greenpeace, Wilderness Committee, Georgia Strait Alliance, Raincoast Conservation Foundation, Sierra Club and Dogwood Initiative.

Details, such as how much salmon is needed by whales, are likely to be worked out in resident killer whale recovery planning workshops being led by Fisheries and Oceans Canada.

"This is good news for all the endangered species in Canada," Venton said.

"This decision will clarify how government can proceed with all their recovery plans." There are 90 endangered and threatened marine species listed under the Species at Risk Act and all depend on healthy habitats to survive, Venton said.

The Court of Appeal ordered the government to pay costs to Ecojustice.

Last year the federal court ruled in favour of Ecojustice and Judge James Russell criticized the behaviour of DFO saying the department behaved in an "evasive and obstructive way." He then awarded Ecojustice $80,000 in legal costs.

The court said all aspects of whale habitat must be protected, including food supply and quality of their marine environment.

However, DFO appealed the ruling and argued that there are discretionary provisions in the Fisheries Act for protecting critical habitat. Under the Species at Risk Act, critical habitat protection is mandatory.

"The original ruling and now the Court of Appeal's judgment have confirmed that the fate of killer whales should not be left to the discretion of politicians," Venton said. "These whales must be protected by law.

"They need spaces to feed, breed and raise their young if their populations are going to survive and recover."

Venton said she was surprised by DFO's decision to appeal the original decision, especially after the judge said DFO hid behind procedural arguments and wasted "the court's time and judicial resources."

DFO spokeswoman Lara Sloan said the department is reviewing the decision and determining the next steps.

"The government of Canada continues to be committed to meeting its obligations under SARA," she said.

No figures are currently available to show how much the court case and appeal have cost the federal government, Sloan said.

jlavoie@timescolonist.com
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B.C. killer whale habitat protection ruled a legal duty

The federal minister of fisheries has no discretion when it comes to protecting the critical habitat of B.C.'s southern resident killer whales, the Federal Court of Appeal has ruled.

The precedent-setting case relates to the Species at Risk Act (SARA).

"We are thrilled with the court's decision and we now look forward to the opportunity to get on with the work of actually protecting the whales," remarked Margot Venton, a lawyer with Ecojustice, an environmental law firm that fought the case on behalf of nine environmental groups.

In a statement issued Friday, the Department of Fisheries and Oceans said it would not comment until it had completed a review of the decision.

The case stems from the plight of southern B.C.'s iconic marine mammal. At last count, there were 87 animals left in the southern orca population that lives in and around Vancouver Island and the Southern Gulf Islands. The group was listed as endangered under the Species at Risk Act in 2003.

Fisheries and Oceans came up with a plan protect the whales and their critical habitat, but left certain elements up to the discretion of the minister.

The court said all elements of the plan must be enshrined in law. That would mean protecting chinook salmon, the whales' main food source, reducing underwater noise from boat, industrial and military activity and cleaning up toxic contamination in the whales' home ecosystem.

Species at Risk Act a 'blunt instrument'

The court ruling could cause problems for B.C.'s sport fishermen. A large part of the whale's diet is chinook salmon and some of those fish may have to be set aside for the whales.

"The need to ensure that killer whales have an adequate diet is a tricky issue," said Gerry Kristianson, chair of the Sport Fishing Advisory Board and a Pacific salmon commissioner. He argues that reducing the sport harvest of chinook doesn't mean that orcas will necessarily benefit.

But Kristianson said he wasn't surprised by the court's decision and he expressed sympathy for the federal department.

"SARA is a blunt instrument," he said, adding he believes Fisheries and Oceans was trying to live up to the spirit of SARA. The problem is that whoever drafted SARA wasn't thinking of the implications for marine animals, Kristianson said.

Kristianson cited the noise pollution example.

"Will this require them to stop ferry traffic between the mainland and Vancouver Island?"

On the other hand, commercial fishermen are happy with the decision.

"There are a lot of things that we would need to be doing to protect killer whales that would affect other areas of the sea," said David Lane, the environment director for the United Fishermen and Allied Workers Union.

Lane said dealing with pollution in the southern resident orcas' home would benefit all species in the area. Chinook salmon is not a commercial fish species.

Fisheries and Oceans can seek leave to appeal the decision to the Supreme Court of Canada.

http://news.ca.msn.com/local/britishcol ... legal-duty

And here's the letter I just sent to the United Fishermen and Allied Workers Union:

In today's CBC article: http://news.ca.msn.com/local/british...d-a-legal-duty David Lane noted "Chinook salmon is not a commercial fish species."

This comes at quite the surprise to all of us In Area G Troll who have been squeezed into a "Chinook Only" fishery for many many years now. I strongly suggest that Mr. Lane rectify this error as soon as he possibly can!

Would also appreciate hearing back on his efforts in this regard!

Sincerely,

Court ruling compels Ottawa to protect killer-whale habitat
MARK HUME | Columnist profile | E-mail
VANCOUVER— From Monday's Globe and Mail
Published Sunday, Feb. 12, 2012 7:14PM EST

It’s time for the federal government to respect the law – and get serious about saving killer whales.

That’s not the view of a bunch of woolly headed environmentalists, but of the Federal Court of Appeal, which has declared that the Minister of Fisheries acted illegally by ignoring provisions of the Species at Risk Act designed to protect critical habitat.

“Ministerial discretion does not legally protect critical habitat within the meaning … of the Species at Risk Act, and it was unlawful for the minister to have cited provisions of the Fisheries Act in the killer whales Protection Statement,” the court found.

Not just wrong-headed or short-sighted – but unlawful.

The ruling, issued on Feb. 9 means the government of Canada has got to start protecting habitat vital to the survival of killer whales on the West Coast. And that means a whole lot of ocean has to be managed differently – with everything from fish farms, to new docks, to tanker traffic seen through a different lens.

“We feel really good about this ruling,” says Gwen Barlee, policy director of the Wilderness Committee, which was one of nine environmental groups that pursued the case with the help of Ecojustice, a non-profit law organization.

“It’s a strong decision, a unanimous decision by three judges, and we are hoping the government will now stop dragging its feet and will start protecting killer whales and all the other endangered species in Canada,” she said.

Ecojustice has been working on the case for years, first winning a decision in the Federal Court of Canada in 2010, and then having that ruling reinforced when the government went to the Federal Court of Appeal.

When SARA was enacted in 2002, it required the government to issue plans to protect any species at risk of becoming extirpated or extinct.

In British Columbia, two populations of killer whales – 85 southern residents and 205 northern residents – fall into that category.

One section of SARA requires the government to identify the critical habitat of endangered species, and to set out how that habitat will be protected.

But Fisheries Minister Keith Ashfield sought to dodge that requirement, arguing that the Fisheries Act already provided him ways to protect marine species and that he had discretionary powers to use those regulations, rather than SARA.

However, the court said the government can’t do that – SARA is not an act that can simply be swept aside at a minister’s discretion.

“I do not accept the minister’s interpretation of the SARA. … Its intent was to provide for compulsory and non-discretionary legal protection from destruction for the identified critical habitat of listed endangered or threatened aquatic species,” stated Mr. Justice Robert Mainville of the Federal Court of Appeal.

Environmental groups argue Ottawa has been trying to avoid identifying critical habitat because once it has done that, it has to take steps to protect that habitat.

On the West Coast, that means among other things that the government will have to ensure that a proposed increase in oil-tanker traffic doesn’t damage critical killer-whale habitat.

The proposed Enbridge Northern Gateway Project, which would see a new twin pipeline running from near Edmonton to a port at Kitimat, would result in some 225 tankers a year plying B.C.’s North Coast. And yes, killer whales live there.

“What would it mean if we had an oil spill?” asks Ms. Barlee.

As uncomfortable as it is, that’s a question Ottawa must now answer. And it must have killer-whale experts provide that answer, not politicians.

After the Exxon Valdez ruptured its hull on a reef in Prince William Sound in 1989, killer whales were seen surfacing in the oil slick. Over the next year, 14 of 36 whales in that pod vanished.

Under the court ruling, the government must produce a plan to save killer whales on a coast where there are increasing development pressures. Protection from oil spills and acoustic disruption, particularly in key breeding and feeding areas, must be among the things assured.

In short, the government’s got its work cut out for it – and the courts say it is unlawful for Ottawa to shirk that responsibility.

http://www.theglobeandmail.com/news/nat ... le2335762/

Court ruling could impact local fishery

Regional director Mike Hicks is concerned for salmon fishery.

By Pirjo Raits - Sooke News Mirror
Published: February 15, 2012 5:00 AM


A ruling by the federal Court of Appeal could have mammoth ramifications for the Sooke and the Juan de Fuca says Mike Hicks, regional director for the Juan de Fuca Electoral Area.

On February 9, a precedent-setting ruling, stipulates that the federal government is legally bound to protect the killer whale habitat in both the southern straits as well as the northern straits.

“The environmental groups have been fighting with DFO (Dept. of Fisheries and Oceans) over protection of Southern Vancouver Island orcas and they won their case,” said a distressed Hicks. With the forced protection of the orcas’ habitat Hicks fears a loss of fishing for chinook salmon. The chinook are part of the orca’s diet.

“DFO might be looking at some scary regulations,” said Hicks. “They could shut down the chinook fishery on the Juan de Fuca Strait or whale watching boats.”

He said, here you have DFO pulling the plug on the dam on DeMamiel Creek knowingly sacrificing the habitat of the Juan de Fuca orcas’ food source.

“Sooke and Southern Vancouver Island residents are happy to help the orcas, but they are concerned they are shouldering 100 per cent of the pain,” said Hicks, in reference to the impact it would make on local recreation fishers and the work being done by salmon enhancement groups. He said that in Sooke from spring to mid-July chinook fishing is restricted to protect the early Fraser River chinook run.

He also wondered what the allocation would be for the recreational fishery.

“These are confusing times,” said Hicks. “Sooke people really need to monitor this. The court decision ito protect the habitat of the Southern Vancouver Island orca, their diet is chinook salmon. I’m happy for the orcas but concerned for the Average Joe in Sooke.”

Hicks said he wasn’t running around saying the “sky is falling” but if they come in with severe restrictions it will have an impact.
“I’m not trying to alarm residents but to make them aware of a major, major court decision. Be watchful,” said Hicks.

He reiterated that DFO should not be pulling the plug on the Bill James dam on DeMamiel Creek because now they have to protect the habitat of the salmon which are necessary for the orcas.

Adam Silverstein, South Coast Area Chief, Ecosystems Management Branch Fisheries and Oceans Canada, Pacific Region stated in an email to Glen Varney, who represents various stakeholders, that the Department (in regard to the dam) has offered to transfer the license and the associated maintenance responsibilities to any interested community partner.

The federal court action was brought about by a coalition of nine environmental groups under the banner of Ecojustice.

On the website, they state that their “victory” draws a legal line in the sand and has given them a powerful legal tool they are prepared to use if necessary.