We won! After a long, drawn-out legal challenge by Ecojustice representing the David Suzuki Foundation and eight other leading conservation organizations, the courts have confirmed that killer whale habitat is not already protected, as DFO tried to argue. The court's full ruling is that this habitat includes more than just the geophysical surroundings, but also the whale's acoustic and foraging environment.
If ever there was an iconic species that our government would want to protect on behalf of Canadians, British Columbia's resident killer whales are obvious candidates. However, that has not been our experience. The journey to protect B.C.'s killer whales under the Species at Risk Act (SARA), until yesterday, has been a discouraging reality check for how the government of Canada intended to deal with species at risk of extinction.
At each step in the process, our government deliberately attempted to undermine the legal powers of the SARA to protect killer whales and consequently any other marine species being considered under the Act. The Federal Court judgment issued on December 7, 2010, explicitly calls out DFO's "evasive conduct" on this case and also states that DFO acted "unlawfully" in its attempt to limit the application of the SARA.
This is a huge victory for species at risk in Canada. For me, it is also a rewarding conclusion to a drawn-out process. I have been directly involved in the process, including being part of the killer whale recovery team, submitting an affidavit, and being cross-examined by DFO lawyers on my written testimony.
I first read the DFO-issued Protection Statement (PDF) on September 10, 2008, the day it was released. I was appalled that the government had issued a statement saying that killer whale habitat is already legally protected, citing a laundry list of voluntary programs, policies and non-implemented laws available to protect habitat.
The courts have confirmed what we believed all along, that killer whales and their habitat are not being protected by our existing legislation. This ruling will have a tremendous impact on how the federal government implements the Act in the future.
There are still several challenges ahead to implement the court's decision, but having the legal mandate will certainly facilitate the resources to ensure it happens.
This is a great outcome to a long process and would not have been possible without the skilled legal counsel of Ecojustice.