Government must protect orca habitat: Court Ruling

[IronNoggin]

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
© Copyright (c) The Victoria Times Colonist


http://www.timescolonist.com/technology/Government+must+protect+orca+habitat+court/6130598/story.html

[IronNoggin]

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/britishcolumbia/bc-killer-whale-habitat-protection-ruled-a-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,

[IronNoggin]

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/national/british-columbia/court-ruling-compels-ottawa-to-protect-killer-whale-habitat/article2335762/

[Downwind]

So maybe this might put some pressure on the government to deal with the real problem facing salmon stocks; the salmon farms. But then again that would make sense when, instead they screw the recreational fishermen even more.

[lovemywinchester]

How about not having a potential oil spill disaster. Like a pipeline and the tanker traffic to go with it.

[WesHarm]

Why do i feel like this is going to turn into a "Noone is allowed in a boat on the West Coast until killer whale populations reach x amount." >.<

[Spy]

Why do i feel like this is going to turn into a "Noone is allowed in a boat on the West Coast until killer whale populations reach x amount." >.<Bang -on!No more chinhook fishing combined with the halibut debaukle!Get out your fresh water gear Because thats the only fishing we will be doing!This ruling will be good for fish stocks, orcas, rivers ect!I think its great,puts a big smile on my face:)!As much as I love fishing for Salmon,a closure would not kill me!:-D

[Sasquatch]

How times change - didn't we have gun nests set up to shoot them at Seymour Narrows at one point?

I think marine noise is probably one of the biggest issues concerning these creatures - that is going to be a tough one to deal with.

[Peter Pepper]

they could eat the seals....hell i'll even help them

[IronNoggin]

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.

[Spy]

This could be very good for the fishery!Now they will have to spend big $$$ on chinhook habitat & maybe just Maybe the chinhooks will rebound to never before seen runs!A win win for all!
Time will tell! I saw on the news last night that a baby Orca washed up in Washington!I will try & find the story & provide a link!

[Spy]

Here the link,very sad!:cry:

http://blog.seattlepi.com/candacewhiting/2012/02/13/dead-orca-calf-is-three-year-old-victoria-one-of-the-endangered-southern-resident-orcas/

[tinhorse]

The Russian, Japanese and american fishing fleets are going to love this.

[dryflyguy57]

The Russian, Japanese and american fishing fleets are going to love this.

No sh#*t !

[chinooker]

The courts also ruled that halibut are a community resource, but it seems the goverment is above the law!

[ratherbefishin]

rebuild fish habitat-and while our government has $50,000 to give to a ''parrot'' refuge-they are going to blow the dam at Demanuel creek-built with volunteer labour and paying of in INCREASED salmon returns because they ''can't afford it''

I strongly suspect this ''save the chinook for the starving orcas'' is an idiological view coming from so called animal rights people that any form of recreational fishing is ''immoral''

[CanuckShooter]

This could be very good for the fishery!Now they will have to spend big $$$ on chinhook habitat & maybe just Maybe the chinhooks will rebound to never before seen runs!A win win for all!
Time will tell! I saw on the news last night that a baby Orca washed up in Washington!I will try & find the story & provide a link!

Here is an idea...tax the environmental groups and their supporters to pay for it ALL.....see how much they stand behind the process. ;-)

[The Dude]

The Russian, Japanese and american fishing fleets are going to love this.

Explain that please.

[sky-gunner]

Explain that please.

Yea, i was wondering the same, thought I was missing something.....

[coach]

rebuild fish habitat-and while our government has $50,000 to give to a ''parrot'' refuge-they are going to blow the dam at Demanuel creek-built with volunteer labour and paying of in INCREASED salmon returns because they ''can't afford it''

I strongly suspect this ''save the chinook for the starving orcas'' is an idiological view coming from so called animal rights people that any form of recreational fishing is ''immoral''

I have the same suspicion. These are the same people that will take this "victory" and turn it into saving deer from hunting to protect the starving wolves and grizzly bears. I hope I'm wrong.

[ratherbefishin]

suspicion confirmed-they get one court ruling-then use that as a precident.I am highly suspicious of this ''scientific'' finding that the orcas only eat Chinook and would starve if they couldn't get them.First of all-orcas are widely ranging,whereas Chinook typically are closer to shore.Then there is the fact that salmon species are cyclic-and sometimes populations implode-as they have done way back before mining and logging were factors[old records by early settlers in fort simpson who said''occasionally the salmon would fail to return and the indians would starve]Its only common sense that a hungry orca-[or any preditor] will take what he can get-and if chinooks arent there-he sure isn;t going to go hungry if there is a large school of pinks-or a seal within reach.Orcas are intelligent creatures-and quite capable of changing diet.If they weren't-then why do some pods favour salmon and others target marine mammals?

Nope-I don't buy it-this smells of ''Political Agenda''If they were truely concerned-the would concentrate on rebuilding chinook stocks by stream enhancement or hatchery fish[next they will say ''orcas won;t eat hatchery salmon....]

[Islandeer]

Here is an idea...tax the environmental groups and their supporters to pay for it ALL.....see how much they stand behind the process. ;-)
Good one, while this enviornmental group does pose critical questions they are always pointing with their fingers and never dipping into their pockets to help out. they are about making money ... and protecting certain glamorous and media friendly causes.

[Islandeer]

I think quite clearly this means that a reduction or harvest moratorium for BC commercial and recreational harvesters will translate into increased opportunity for Russian,American and Japanese fisherman who can still target them in their waters.
Explain that please.

[The Dude]

I think quite clearly this means that a reduction or harvest moratorium for BC commercial and recreational harvesters will translate into increased opportunity for Russian,American and Japanese fisherman who can still target them in their waters.

Pretty sure we have a 200 Mile Limit in effect. Pretty sure that won't change. If this translates into better fish habitat funding, and protection of stocks, so be it.
If it's a bigger pie, then we get a bigger piece.

[tightgrouper]

I think this story is very interesting to watch unfold. Over the years there has been much support to various environmental groups from sport fishers, commercial fishers and whale watching companies on many issues specifically salmon farms. These environmental groups while at one time may present one agenda often have backroom agendas is this situation is a good example of that.
I am a strong supporter of salmon farms and follow the politics closely on this and have seen this coming for some while. There is a large amount of miss information put out there by enviro groups and their funding is highly suspicious. I can only say this: If you support any environmental groups do so with the intent of researching the issues and the charitable group yourself instead of letting one side or the other do the work for you.
Having said that I'll take watching orca over salmon fishing any day. May as well since when those big dolpins show up the bit is off, it's a grantee. I never complained about it.

[835]

Well i think not too far and all of us will be "Poachers"
what we do now will all be gone. Because of bullshit like this. SAVE THE ORCAS? and in the same breath BLOW DEMAMIEL DAM OVER 50 GRAND.
DFO it the DESTROY FISHERIES ORGANIZEATION. They dont want to spend 50,000 dollars to repair a dam that controles the water flow in a creek that supports a run of fish that has been created by a community of people andis 5,000 fish stong. So they then will take that 5,000 fish out of my, and my fellow sport fishermens pockets.

Tell me why is it sport fishermen have to pay? when we kill a fish there is way more money invested in the dead weight. Why is it big business doesnt pay?
Why arent fish farms paying? why isnt stream side logging paying? Why are there nets crossing our rivers?

It will be the Sport fishery that pays. Dont get clouded by the thought that it sounds great and this action plan will be good...... They will Get the Sporty first.
Yea this might sound like a rant because it is, There are hundreds of issues with Salmon stocks on our coast that knowbody addresses, its simple to just throw up more regulations on me.

[Bushman]

I firmly believe that 835 has hit the orca nail on the head with his post above.
As long as the almighty DFO remains at the helm of studying, protecting, enhancing and conserving our fish stocks here on the west coast they will soon be in the same shape as east coast fisheries.
I tend to think that in the not too distant future what we have come to enjoy as sportfishermen here in British Columbia will simply be gone like dust in the wind.
Not so long ago we also had a viable commercial salmon fishery here in British Columbia that supported thousands of families instead of just a few of the wealthy like it does today.
My guess is that once the majority of wild stocks are gone we will all be buying farmed salmon from a world food monopoly if we want to eat them at all.

[ratherbefishin]

we have a serious problem-this is fait accompli-a done deal.The precident has been set-orcas have priority rights to Chinook salmon.Now the animal rights people with their anti hunting /fishing agenda can use this precident to ''protect'' any preditor they want and effectively shut down any harvest of fish or game.This could include grizzlies and wolves[no moose hunting] Cougars[no deer hunting] -ANY preditor that feeds on elk,moose,deer can now be deemed to have ''priority''over human harvesting.They always get their foot in the door-get a ruling-and then go after everything else.Remember the Ontario spring bear season?

I fully expect armed with this precident setting court ruling the anti's will try and say there are ''no accurate numbers'' of preditors and their prey so the season for deer,moose and elk will have to be ''temporarily'' closed while they conduct ''studies''

[Bushman]

we have a serious problem-this is fait accompli-a done deal.The precident has been set-orcas have priority rights to Chinook salmon.Now the animal rights people with their anti hunting /fishing agenda can use this precident to ''protect'' any preditor they want and effectively shut down any harvest of fish or game.This could include grizzlies and wolves[no moose hunting] Cougars[no deer hunting] -ANY preditor that feeds on elk,moose,deer can now be deemed to have ''priority''over human harvesting.They always get their foot in the door-get a ruling-and then go after everything else.Remember the Ontario spring bear season?

I fully expect armed with this precident setting court ruling the anti's will try and say there are ''no accurate numbers'' of preditors and their prey so the season for deer,moose and elk will have to be ''temporarily'' closed while they conduct ''studies''

EXACTLY, ratherbefishin!
For some strange reason BC's sportfishermen and hunters can't see (or don't care to see) that this entire scenario is being fueled by the anti-fishing and hunting organizations.
The killer whales' food source might simply be used as a tool or wedge to destroy our privilege and rights as Canadian citizens to fish for chinook salmon.
Seems funny that BC's fishermen and hunters can't join as one united front with a voice that would be heard by governments.

[835]

It will turn into a case where we as hunters/fisherman cant seem to stand togeather. And the outcome in this case a freaking LAW. A law that will then set presidance to screw us.

but its ok, people think this is good......... so making law must be good.


This LAW will be one more nail in our coffin, i bet in my life time i will be turned into a poacher.

[ratherbefishin]

the reason we're in trouble is the majority of voters don't fish or hunt-and if the orcas get priority over chinook salmon,and a precident is set,so what?They don't care.No skin off their back.They don't care if hunting was shut down completely in the province.I see this legal ruling as an astute tactic by the anti's who believe killing any animal for food is ''immoral'' to achieve their goal of shutting down all hunting.And since we're in the minority-the government is going to listen to whoever has the most votes.