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Law and Disorder: A Killer for Whales

The Gulf disaster is stirring memories of the Exxon Valdez oil spill. 21 years later, Prince William Sound may resemble a "paradise," but the legacy for killer whales has been anything but idyllic.
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June 8 marks World Oceans Day, and the North American continent's coasts are under, or in the process of, imminent threat from, being assaulted by the oil and gas industry, all with various levels of government complicity.

The Calgary Herald recently published an article examining how the Gulf of Mexico disaster is stirring memories of the 1989 Exxon Valdez oil spill in Alaska. 21 years later, Prince William Sound's postcard landscape may outwardly resemble a "paradise," as the article suggested, but the legacy for wildlife, such as killer whales, has been anything but idyllic.

Two different populations of Alaskan killer whales, both in Prince William Sound at the time of the Exxon Valdez spill, experienced dramatic declines. The fish-eating AB resident pod of killer whales lost 14 of its 36 members following the spill. A second population, the AT1 mammal-eating transients, who were surfacing in the oil near the Exxon Valdez, lost nine of its 22 members after the spill. The group has not successfully reproduced since 1989. Most likely, this unique killer whale population will go extinct.

The Vancouver Sun reported earlier this year that "British Columbia killer whales could become extinct in the long term if an oil spill similar in scope to that from the Exxon Valdez occurred off the coast of BC..."

Enbridge Inc.'s proposal to build a twin pipeline from Alberta's tar sands to Kitimat, BC, means we could see supertankers the size of the Exxon Valdez or larger plying our rocky north coast, risking a catastrophic oil spill; this presents a very significant danger to coastal marine and terrestrial ecosystems and species, including our province's iconic killer whales.

Raincoast Conservation Foundation senior scientist Dr. Paul Paquet says the health of BC's killer whales is already so fragile as a result of persistent organic pollutant contamination, declining food supply and increased acoustic disturbance that an event such as a major oil spill could devastate them. Paquet further explains that these populations are small in number and functionally isolated genetically, which means their survival is tenuous in the long term.

Killer whales are found in BC's coastal waters during the summer and fall primarily because of chinook salmon, their preferred prey species. This food source represents about 90 percent of their summer and fall diet and is linked to killer whale birth rates and survival. The presence of chinook at locations and times where they can be accessed by killer whales defines habitat that is critical for the whales' growth and survival.

Historically, BC's coastal waters hosted hundreds of thousands of chinook salmon that fed these whales. The decline in the abundance of chinook is a factor in the current status of killer whales; southern residents are endangered and northern residents are threatened. Depressed chinook numbers are attributable to a variety of factors including fishing pressure, habitat destruction and, more recently, reduced marine survival associated with climate change.

Ecojustice is representing nine conservation groups, including Raincoast, in two lawsuits regarding killer whales and Canada's Species at Risk Act (SARA). The lawsuits, consolidated together by order of the court, concern federal government decisions about the legal protection of critical habitat for resident killer whales.

Critical habitat is defined under SARA as the habitat that is necessary for the survival or recovery of a listed wildlife species. In the case of killer whales, this means ensuring the conditions that allow whales to locate and consume food in adequate quality and quantity.

Our court case argues that the federal government has dodged its responsibility to protect critical habitat, as it is refusing to include food availability, food quality and acoustic conditions in the definition of critical habitat -- the three primary elements that are hindering the recovery of killer whales. Instead, the government issued an order to protect the whales' marine environment, sidestepping the aspects that comprise their critical habitat. Our lawyers at Ecojustice are asking the federal court to confirm that the government's interpretation of critical habitat is unlawful and to reconfirm the requirements of the law to fully protect their habitat.

While addressing the issues that are impacting killer whales is not a simple task, the federal government's course of action both prior to and since the release of the Killer Whale Recovery Strategy has been to delay and weaken the scientists' recommendations.

The court hearing is set for five days starting Tuesday June 15th in Vancouver and will likely have a major bearing on the future of BC's killer whales.

This article was co-authored with Raincoast Conservation Foundation biologist Misty MacDuffee.

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