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Court ruling compels Ottawa to protect killer-whale habitat

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.

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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.

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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.

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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.

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