The federal government has announced over $12 million to enhance protections for endangered whales on the West Coast, especially the endangered Southern resident killer whale.

That population, at 76 animals, is at its lowest point since live capture for aquariums was banned in 1975, prompting urgent calls for federal intervention.

As part of the $1.5 billion federal Oceans Protection Plan, $9 million of the newly announced funds will go towards reducing collisions between ships and whales.

Another $3.1 million is set aside for research into threats to whales, underwater listening stations and research into the health of chinook salmon populations, the prefered food source for Southern resident killer whales.

David Hannay, chief science officer of JASCO Applied Sciences, which operates a listening station in the Strait of Georgia, welcomed the news.

“I think it’s a very good thing. I believe that noise has been overlooked,” he told DeSmog Canada. “These animals use sound the way humans use vision.”

Hannay says traffic noise has been steady over the two-and-a-half years the company has been monitoring the area.

Andrew Trites, director of the UBC Marine Mammal Research Unit which will receive $1.1 of the new funding, said he welcomes a federal government friendly to research and science.

“We only have to think back to the previous federal government when so many scientific programs were cut. I’m quite excited for what lies ahead.”

“The population is small and declining, and the decline is expected to continue.” https://t.co/QTdLKFvctr

— DeSmog Canada (@DeSmogCanada) March 16, 2018

More action to protect killer whales urgently needed

While some are celebrating government’s commitment to further research, some scientists say what’s urgently needed is action, not more study.

“We could study them literally to death at this point,” says Paul Paquet, adjunct professor at the University of Victoria and senior scientist with the Raincoast Conservation Foundation.* 

“What we’re really looking for from the federal government right now is threat reductions,” says Misty MacDuffee, a biologist at Raincoast.

In February, Raincoast, along with a number of other prominent NGOs including Ecojustice, David Suzuki Foundation, and the World Wildlife Fund, asked the government to immediately issue an emergency order under the Species At Risk Act to protect salmon stocks and habitat for the whales by the beginning of March.

The groups pointed out killer whales’ feeding grounds and the salmon populations they depend on have been deteriorating at the hands of noisy and dangerous ship traffic, chemical pollutants, commercial and recreational fisheries, warmer water temperatures and other industrial activity for decades.

The federal government did not impose emergency orders to protect the whales by March 1, as the groups requested, but fisheries minister Dominic LeBlanc told the Canadian Press Thursday that there could be action coming soon.

“We’re going to be making a series of decisions in the coming weeks that may necessarily represent some disruption for certain sectors but will be guided by scientific advice and our solemn responsibility to ensure the protection and recovery of southern resident killer whales,” LeBlanc told the news service.

According to the scientists, some follow-through is long overdue.

“Our major concern is that most of this has been well known since the early 2000s,” Paquet said.

In 2008, the federal government released a recovery strategy for Southern resident killer whales, which at times took on a gloomy tone.

“The population is small and declining, and the decline is expected to continue,” it read.

“Southern residents are limited by the availability of their principal prey, Chinook salmon. There are forecasts of continued low abundance of Chinook salmon. Southern residents are also threatened by increasing physical and acoustical disturbance, oil spills and contaminants.”

“It was clearly acknowledged by our federal government in 2008,” Paquet said. “We’ve been waiting and waiting for the government to take some sort of action that would at least contribute to the protection of killer whales, but none has been taken to date.”

But Trites welcomed the opportunity to do more research, saying the vast majority of studies done on B.C.’s killer whales is focused on the Northern resident population.

“The Southern resident population — they’re the outlier. Other killer whales are doing extremely well. On top of that other marine mammals off the coast of B.C. are doing well,” Tites told DeSmog Canada.

The Southern resident population resides in waters near Vancouver Island and travel as far south as California, some of the busiest waterways for the species, Tites said. He added there are other species putting pressure on the whales, like an increasing population of sea lions that compete for chinook.

“There are lots of things at play here. I think we know enough to take some initial steps to lesson stressors on these whales. But we need more research to be effective.”

“I can tell you I’ve spent my entire career studying ecosystems and changes and usually what you think is the most obvious cause it not the cause at all,” Tites said.

Trans Mountain pipeline clashes with species at risk

MacDuffee said announcements like today’s obscure the federal government’s lack of concrete steps like habitat restoration, creation of protected areas, noise restrictions, fisheries closures and quota reductions — actions she says are less politically palatable than research funding.

Southern resident killer whales were listed as endangered in 2003, the same year Northern resident killer whales were listed as threatened. It look the federal government five years to release a recovery plan.

Despite the listing, the federal government has failed to introduce key measures to protect critical habitat.

In 2012 the environmental legal firm Ecojustice took Canada to court for failing to protect critical habitat for Northern and Southern resident orcas within the 180-day window mandated by the Species At Risk Act.

“The government has produced a recovery strategy and it’s produced an action plan, but so far these documents are just plans to make plans,” Dyna Tuytel, a lawyer for Ecojustice told DeSmog in February.

“What’s needed is to actually implement what we’ve learned about the species and what needs to be done.”

In October 2017 Raincoast and the Living Oceans Society took the federal government to court for approving the Kinder Morgan’s Trans Mountain pipeline without assessing how the project’s seven-fold increase in oil tanker traffic would affect Southern Resident killer whales.

According to the two groups, the Trans Mountain project represents an existential threat to the population.

The project’s approval has led some experts to criticize Canada’s soft approach to species at risk legislation.

Ship noise is already harming the whales, according to a recent study. It found noise from up to 1,600 ships over the two-year study period was blocking their ability to find their prey.

The Port of Vancouver’s ECHO program has received international recognition for its trial of a slowdown zone in Haro Strait, which concluded that slowing down had a measurable effect on ambient noise in nearby critical killer whale habitat.

The goal of the EcoAction Incentive Program, developed as a result of research conducted by ECHO, is eventually to develop a fee system for ships that would depend on the noise they generate, incentivizing companies to invest in quieter, but more expensive ships.*

MacDuffee and Paquet say that such reductions in speed and the associated noise are essential — but that they need to be implemented now, rather than waiting for the results of further study.

* Update: March 19, 11:38 am PST. This story was updated to note the fact that Paul Paquet is a senior scientists with the Raincoast Conservation Program and to clarify the goal of the EcoAction Incentive Program.

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Canada’s fishery laws are back — well, on the first step to being back, at least. On Tuesday morning, Minister of Fisheries and Oceans Dominic LeBlanc officially announced the introduction of an heavily amended Fisheries Act, the key piece of legislation that was gutted in 2012 by the federal Conservatives. And fishery law experts are thrilled.

“The government’s made good on its promises,” said Linda Nowlan, staff lawyer and head of the West Coast Environmental Law’s marine program. “They’ve not only restored lost protections, especially for fish habitat, but they’ve also introduced a number of modernizations that were long overdue.”

It’s also being hailed on the East Coast.

“This is like Christmas Day for fishery policy nerds,” said Brett Favaro, research scientist at the Fisheries and Marine Institute of Memorial University.

‘You can’t protect fish without protecting fish habitat’

The most significant change is restoring the “HADD prohibition” — which stands for the “harmful alteration, disruption or destruction” of fish habitat. That meant the minister had to specifically authorize any activities that would result in impacts of fish habitats.

That key provision was removed in 2012 and replaced by a prohibition against “the carrying on of a work, undertaking or activity that results in serious harm to fish that are part of or support a commercial recreational or Aboriginal fishery.”

In other words, it seriously limited the scope of the legislation.

In March 2012, a letter signed by over 600 scientists was submitted to then-prime minister Stephen Harper that argued the change would be a “most unwise action, which would jeopardize many important fish stocks and the lakes, estuaries and rivers that support them.”

The new approach was considered impossible to enforce. Nowlan said there were zero prosecutions for fish habitat damage between 2012 and 2016.

“You can’t protect fish without protecting fish habitat,” said Nikki Skuce, director of Northern Confluence, which works to protect wild salmon watersheds in northwestern B.C. “It’s really great to see habitat protections restored in the new Fisheries Act and measures in place to address cumulative effects to rivers such as the Fraser and Skeena.”

The return to the “HADD” provision removes any ambiguity in what constitutes protected fish habitat.

“If there’s fish there and they live there, it’s fish habitat,” Favaro said. “And you’re not supposed to destroy it unless you get permission to do so by the minister.”

New provisions include public registry, management agreements with Indigenous bodies

But the amended Fisheries Act doesn’t just revert the legislation back to how it was before the changes in 2012 — after all, that version hadn’t been updated since 1977 when it was introduced by Minister LeBlanc’s father.

Tuesday’s announcement included a series of significant modernizations.

Those include granting the ability to implement short-term restrictions on fisheries in the case of emergencies, like the recent right whale die-off; prohibiting the capturing of whales for keeping in captivity; requiring the minister to consider the rebuilding of fish stocks; making explicit acknowledgments and requirements to include Indigenous peoples and knowledge systems; allowing for Canada to enter into management agreements with Indigenous governing bodies; and granting the use of alternative compliance mechanisms.

There’s also a new online public registry meant to increase transparency. Nowlan explained that this will help prevent cumulative impacts to fish habitat, as it’s often small projects that build up to damage ecosystems (as opposed to one larger, more visible project). Favaro said such a registry will help keep track of the small cumulative impacts and allow people to decide if we’re achieving the goal of no net loss of fish habitat.

“Right now, we don’t even know all the activities that are happening and impacting fish habitat,” Skuce said. “That’s a strength of the new Act.”

The government also pledged $284 million over five years to improve enforcement of the new laws.

Minister still has a considerable amount of discretionary power

It’s not all perfect though.

Martin Olszynski, assistant professor in law at University of Calgary and expert in fishery law, said there’s an unfortunate use of “discretionary language,” meaning that many components of the proposed legislation are basically up to the opinion of the minister — and requiring no specific evidence.

While he noted that some issues are very complex and that flexibility can be required, the “old-school language” of ministerial discretion does leave a lot of doors open.

“There are some mandatory provisions, but definitely there is still a lot of that discretionary language,” he said. “The question is just whether or not in after spending some time on those issues, are there some objective criteria or benchmarks that could be included that would help frame that discretion?”

For example, there’s a section about implementing measures to manage the decline of fish stocks. The newly amended legislation includes the phrase “if the Minister is of the opinion that a fish stock that has declined to its limit reference point or that is below that point would be impacted.” That’s not satisfactory for some.

“I was hoping for a line that was not ‘if the minister is of the opinion that a fish stock has declined,’ but ‘if the fish stock has declined as determined by the best available evidence then there should be measures in place aimed at rebuilding the stock,’” Favaro said.

As he noted, the current wording could feasibly mean that a minister can simply “not believe” that fish stocks have declined, or take it into account and decide not to act.

Missing provisions

Observers have also found a number of omissions from the new Act.

Olszynski noted there’s no reference to an annual or biannual report on fish habitat in Canada. He says there is also a lack of clarity about how the new Fisheries Act will relate to the upcoming impact assessment legislation that will replace the current Canadian Environmental Assessment Act).

Skuce, the World Wildlife Fund Canada and Green Party leader Elizabeth May all criticized a lack of provisions on harvesting fish via fish farms.

Kris Statnyk, a Gwich’in lawyer with Mandell Pinder, tweeted: “Among the mandatory considerations BC First Nations sought that do not appear in the discretionary list in the Bill: compliance with UNDRIP, consistency with international standards and commitments, climate change, First Nation fishing and management plans.”

Bill expected to become law in 2019

It will take some time for Bill C-68 to wind its way through parliamentary committee, and it’s not expected to become law until mid-2019.

Olszynski said he’s looking forward to seeing how the committee studies the bill and which witnesses they bring in. Along the way, he said that the Department of Fisheries and Oceans could  be clearer on some of the more ambiguous provisions in the new legislation.

But on the whole, Tuesday was a huge win for advocates of stronger environmental laws.

“I hope we’ve learned from our mistakes,” Nowlan concluded. “More than 25 years ago, we had the Atlantic cod collapse. Now, we’re seeing more and more salmon populations being proposed as species at risk. Canada’s fisheries law really needs to do a better job of protecting fish and their habitat, and these amendments look like they’re going to take a big step in that direction.”

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Time is running out for the remaining 76 orcas that make up B.C.’s Southern Resident killer whale population and the federal government should take action to intervene, say a coalition of environmental groups petitioning Ottawa for an emergency order under the Species At Risk Act.

The groups say the petition is coming now because they believe the endangered population is at a critical juncture.

“There isn’t time to wait around,” said Dyna Tuytel, a lawyer for Ecojustice, which filed the petition on behalf of the David Suzuki Foundation, World Wildlife Fund, Georgia Strait Alliance, Raincoast Conservation Foundation and the U.S.-based Natural Resources Defense Council.

The Southern Resident population lives around southern Vancouver Island and down into Washington’s Puget Sound. The three pods comprising the population haven’t produced a calf that’s survived since 2015.

Overall, the population is at its lowest point since before a ban on live-capture for aquariums took effect in 1975.

According to Raincoast biologist Misty MacDuffee, the population is suffering from a lack of food, stress from disturbance and the cumulative effects of pollution in their environment.

“It’s gotten to the point where we’re losing healthy reproductive animals,” MacDuffee told DeSmog Canada. She says a loss like that can affect the health of the entire population.

The petition asks the Minister of Environment and Climate Change Catherine McKenna, as well as the Fisheries Minister Dominic LeBlanc, to intervene.

The groups want more protected habitat, measures to help Chinook salmon recover, protection from whale watching boats and speed limits and noise reduction for vessels in the area, among other measures.

The ministers have been asked to impose the emergency orders by March 1.

Pressure from ships, fisheries, pollution

Chinook salmon are the preferred meal of the Southern Resident orcas. But the fish in the whales’ range have been suffering in recent decades, with 11 of the 15 populations the Department of Fisheries and Oceans adequately studied (there are 35 total) found to be in the “red zone,” indicating an unhealthy population.

Fifty-five thousand recreational fishing trips take place in the Southern Residents’ range each year, both removing fish and disturbing the whales while they forage.

Meanwhile, hunting has become increasingly difficult for the whales as noise from passing ships and boats hampers their communication and scrambles their echolocation, the primary tool the whales use to find their prey.

Finally, accumulation of pollutants such as PCBs in the environment, which mimics hormones in mammals, could be affecting the whales’ ability to reproduce.

“These things act synergistically,” says MacDuffee.

But the groups say there’s an even bigger threat.

Government dragging heels on endangered species responsibilities

“The biggest problem this species faces is a lethargy on behalf of the government, and an inability to take decisive action,” says Christianne Wilhelmson, executive director of the Georgia Strait Alliance.

“I’m at a loss for saying why this government won’t act, except a lack of courage, and a lack of will .… Choosing not to decide is still making a choice.”

The Species At Risk Act fully took effect in 2004, and lays out the government’s responsibility to protect endangered species, such as the Southern Resident killer whales.

But so far, the groups say planning and bureaucracy have dominated while tangible action, such as protecting critical habitat, has been lacking. That criticism have also been levelled at the government with regard to other species, such as woodland caribou.

In 2012, the government lost a lawsuit to Ecojustice, which said Canada had failed to protect critical habitat for Northern and Southern Resident orcas within the 180-day window mandated by the Species At Risk Act.

“The government has produced a recovery strategy and it’s produced an action plan, but so far these documents are just plans to make plans,” says Tuytel of Ecojustice. “What’s needed is to actually implement what we’ve learned about the species and what needs to be done.”

Jeffery Young, senior science and policy analyst at the David Suzuki Foundation, agrees.

“It’s been over a decade that the government has known that these species are endangered,” says Young. “The process under the Species At Risk Act requires them to make certain steps toward recovery; however, they’ve found places within that process where they can delay. And they’ve constantly delayed.”

Since the courts found the federal government had failed to follow its own laws to protect critical habitat for the whales, the feds have approved the Kinder Morgan Trans Mountain oil pipeline and tanker project, which will create a seven-fold increase in the number of oil tankers travelling through critical habitat for endangered orca.  

Fisheries and Oceans Minister Dominic LeBlanc declined to comment for this story. Catherine McKenna’s office did not respond to a request for comment from DeSmog Canada.

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As federal Fisheries and Oceans Minister Dominic LeBlanc was in West Vancouver Tuesday, promising that his government would act on all 75 recommendations from the 2012 Cohen Commission into the decline of Fraser River sockeye salmon, independent biologist Alexandra Morton was sailing into friendly waters on northern Vancouver Island and casting doubt on the government’s intentions.

“There is no substance to it,” said Morton, pointing out that LeBlanc has avoided any commitment to act on the Cohen recommendation to separate promotion of aquaculture from its duty to protect wild salmon or to put the brakes on the salmon farming industry.

The progress report, delivered by LeBlanc, noted that Fisheries and Oceans  oversight of salmon farming meshes with the department’s mandate and LeBlanc said at the news conference that DFO has a responsibility to promote the sustainable use of “fish resources in a way that is good for the local economy.”

That does not go down well with Morton, a thorn in the side of the salmon farming industry and the Department of Fisheries and Oceans for decades.

In addition to the federal Liberal’s apparent reluctance to rein in the salmon farming industry, Morton is discouraged by government’s earlier decision to extend fish farm licences from one to six years, running counter to Cohen’s recommendations.

That is a decision that disrespects First Nations, said Morton in an interview from the Sea Shepherd Conservation Society’s research vessel Martin Sheen as she sailed into Musgamagw Dzawada’enuxw territory, where one-third of B.C.’s salmon farms are located.

“I don’t understand how they can give the industry long-term licences and now (LeBlanc) says he is going to enact the Cohen recommendations,” said Morton, who is conducting sampling around fish farms to establish whether piscine reovirus (PRV) — a virus found in farmed fish — is present in wild salmon and whether there are hotspots of the virus around the farms. PRV has been linked to Heart and Skeletal Muscle Inflammation in fish.

Instead of making vague promises to talk to aboriginal groups, LeBlanc should be meeting with the hereditary leaders to find out what is happening to wild salmon runs around salmon farms, Morton said.

“The salmon farming industry has been in Musgamagw Dzawada’enuxw territory since the 1990s and they have never given them permission, but no one is compensating them and they are suffering,” she said.

Her words were echoed by Dzawada’enuxw councillor and fisheries coordinator Melissa Willie, who is also on board the Martin Sheen.

“There are 27 farms in our territory and we have never given them permission to be there. We just continue to write letters opposing them,” she said.

Damage from the farms is evident not only in declining salmon runs and the number of sea lice, but also in clam beds, Willie said.

“All that shit is going into the water. I don’t believe it’s being flushed out and the beaches are becoming muck. It’s our whole food chain. We want them totally out of our territory and I just hope someone is listening,” she said.

The Cohen Commission report languished on governmental back shelves for four years while the Conservatives were in power, but hopes were high that it would see the light of day under the Liberals and some, such as Willie, remain optimistic that there will be help, not only for the Fraser River sockeye, but for all B.C.’s salmon.

Willie is hoping that the secret weapon might be Justice Minister Jody Wilson-Raybould, a member of the We Wai Kai Nation.

“Her grandmother was one of ours. We hope to get her involved,” Willie said.

However, salmon farming companies have economic agreements with many First Nations and at least two have denied the Martin Sheen permission to come into their territory.

That is a choice that is up to them, said Morton, who hopes they will not find they are importing diseases from the farmed Atlantic salmon into their traditional fishing grounds.

Bob Chamberlin, chairman of the First Nations Wild Salmon Alliance, found some encouraging aspects in LeBlanc’s progress report, although he said it lacked detail

“I found it positive that the minister spoke about looking after all species of salmon in B.C. and it was not just the restricted view of Fraser River sockeye and the Discovery Channel fish farms,” he said.

The emphasis on science and research, backed by an additional $197 million in funding announced last March, is good news, but the government should now be adhering to the precautionary principle until those science gaps are filled, Chamberlin said.

“That means stop expanding fish farms, stop creating new licences and stop setting the table for this industry. Science needs to be at the table,” he said.

What's Fishy About the Feds' Salmon Promises? https://t.co/eNULDlE8Rj #cdnpoli #bcpoli

— DeSmog Canada (@DeSmogCanada) August 11, 2016

Innovative programs such as tagging salmon smolts and genome science should be able to determine the major salmon stressors and pinpoint those industries causing grief to wild salmon, Chamberlin said.

But, until those scientific holes are filled, salmon farming industry expansion must be stopped, he said.

Jeremy Dunn, executive director of the B.C. Salmon Farmers Association, applauds the renewed emphasis on science and said LeBlanc has reinforced his government’s commitment to making science-based decisions for all Canadian fisheries.

But that does not mean curtailing the salmon farming industry and longer licence terms are necessary to provide security for the companies, he said.

“These licences could be revoked at any time if the farmers are not living up to their licence conditions,” he said, emphasizing that members of the Salmon Farmers Association work closely with government, scientists and academics and are concerned about the health of their own fish while being acutely aware of the importance of wild salmon.

Alexandra Morton’s virus-hunting patrols have added additional stress to salmon farmers and it is “important to distinguish between advocacy and science,” Dunn said.

Morton shows no sign of contrition and believes she is providing a voice to counteract the powerful lobby of Japanese and Norwegian-owned salmon farming companies.

“The industry is entrenched and everyone is afraid to say ‘this is not working,’ ” she said.

Instead of protecting those interests, government should be looking at rearing salmon in closed containment pens on land, which is being done by Namgis First Nation on northern Vancouver Island, Morton said.

Photo by Amanda Carroll, UNR Department of Art/Photography

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