‘The whales are in crisis’: two federal ministers sued over delay in protecting B.C.’s orcas

Conservation groups in B.C. are suing two federal cabinet ministers over their failure to recommend an emergency order to protect highly endangered orcas.

The legal action filed this week comes two months after Fisheries and Oceans Canada Minister Diane Lebouthillier and Environment and Climate Change Canada Minister Steven Guilbeault determined the waning population of southern resident killer whales faces imminent threats to its survival. There were just 73 orcas left in the population as of the latest census, in July 2024. 

The conservation groups are now asking the Federal Court to order the ministers to recommend cabinet issue an emergency order under the Species At Risk Act or declare the ministers’ delay to be “unlawful.”

“The whales are in crisis,” Imalka Nilmalgoda, a lawyer with the environmental law charity Ecojustice, which is representing the conservation groups, said in an interview.

“The urgency of their situation only increases with each day as the Salish Sea gets noisier and cumulative impacts of development grow and as the population declines rapidly,” she said. “So, we’re hoping that this litigation will force the ministers to make that recommendation in a timely manner.”

The orcas spend much of their time in the coastal waters of southern B.C. and Washington state. They have been listed as endangered under the federal Species At Risk Act since 2003. Since then, the southern resident population has continued to struggle in the face of widespread contamination of their home waters, noise pollution and declining salmon stocks. 

Their plight was once again brought into stark relief by the recent death of a newborn calf. Her mother, Tahlequah, carried her body for days this January in a heartbreaking display that drew widespread attention to the whales’ challenging circumstances. 

Southern residents face imminent threats to their survival

In June, Ecojustice — acting on behalf of Raincoast Conservation Foundation, World Wildlife Fund and four other conservation organizations — submitted a petition to Lebouthillier and Guilbeault for an emergency order to protect the whales.

The petition called for the federal government to implement additional actions to protect the whales. The groups recommended increasing the distance smaller vessels must keep from the whales from 200 metres to one kilometre, implementing a strategy to rebuild wild Chinook stocks and prohibiting further increases in marine shipping in the Salish Sea until a cumulative-effects management plan that includes underwater noise is in place.

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Prompted by the petition, Fisheries and Oceans Canada and Parks Canada revisited their threat assessment from 2018, which had been triggered by a previous petition for an emergency order. In late November, the agencies determined — as they had in 2018 —  that the whales continue to face imminent threats to their survival.

That determination means the ministers are now required under the Species At Risk Act to recommend cabinet issue an emergency order. The legislation doesn’t prescribe a timeline, but Nilmalgoda said the courts have been clear that the ministers should move with urgency to recommend an emergency order once it’s been determined a species faces imminent threats.

Last year, the courts found Guilbeault’s eight-month delay in recommending cabinet issue an emergency order to protect northern spotted owls was “unreasonable” under the Species At Risk Act.

A spokesperson for Fisheries and Oceans Canada previously told The Narwhal the department was consulting with First Nations and the ministers would be engaging cabinet regarding the emergency order for the orcas. The department’s communications team did not respond to The Narwhal’s request for comment on the legal challenge by publication time.

In a statement to The Narwhal on Tuesday, Andrew Richardson, a spokesperson for Lebouthillier, said the minister “does not comment on the timelines or substance of cabinet business, nor does she comment on cases before the courts.”

Lack of food, underwater noise among key threats to orcas

Misty MacDuffee, the wild salmon program director at Raincoast Conservation Foundation, said the conservation groups are ultimately looking for the federal government to take meaningful — and urgent — action to protect southern resident killer whales.

“We now have more whales in poor body condition than we have ever had,” she told The Narwhal.

MacDuffee said additional fishing restrictions are needed to ensure the whales have access to Chinook salmon.

At one time, southern residents would have had access to the fish from B.C. to California almost all year round, MacDuffee said.

But major salmon declines have made it harder for the whales to find their preferred prey.

From the Fraser River alone, the whales could historically feed from spring through to fall. But today, the only abundant Chinook runs are in the fall, a popular time for recreational fishers.

“So you have these confounding problems where it’s not just limited prey, but then when the prey does show up, their ability to catch it is disrupted by the noise and the physical disturbance of the sport vessels that are trying to catch those fish,” MacDuffee explained.

Hussein Alidina, the lead specialist for marine conservation at World Wildlife Fund -Canada, said the level of underwater noise in the Salish Sea remains “excessive” despite measures to address it.

Research has found that underwater noise from shipping traffic, ferries and recreational boats interferes with the whales’ ability to communicate and find food through echolocation.

Requiring smaller vessels to keep at least one kilometre from the whales, in line with U.S. rules, would create a larger buffer zone to protect feeding whales, Alidina said.

While voluntary slow-downs have helped to reduce noise levels from shipping traffic, Alidina said he’d like the federal government to establish targets for further noise reduction and take action to get particularly noisy ships out of the water.

“Requiring ships to have certain noise emission levels or standards is really important.” 

“Although the southern residents are in crisis right now, this is really an opportunity to do something,” he said. “That window of opportunity is closing, it’s closing for the orcas, and it’s closing for the government.”

He noted that cabinet declined to issue an emergency order in 2018 when petitioned by conservation groups, citing new measures that were coming into place to help the orcas.

In its latest imminent threat assessment, the federal government found there have been “no significant changes” to the threats facing southern resident killer whales, despite the measures introduced since 2018.

While the government said it could be too soon to observe the impact of the measures since the orcas are such a long-lived species, the conservation groups are urging stronger measures before it’s too late.

“We need to stop dragging our feet and we need to start getting things done if we’re going to have any chance of recovering these orcas,” Alidina said.