By Rochelle Baker, Local Journalism Initiative Reporter CANADA’S NATIONAL OBSERVER
For a second time, the world watched as Tahlequah, an endangered southern resident killer whale, struggled to keep her dead newborn calf afloat in the Salish Sea.
But with Ottawa failing to take urgent action to protect the 73 remaining orcas, a coalition of environmental groups is suing two federal ministers to push them to assume their legal responsibility and recommend an emergency order to save the West Coast icons.
Three of four whales born to the southern residents since September have not survived, highlighting the need for Ottawa to take extraordinary measures to protect them, said Hussein Alidina, WWF-Canada’s lead specialist for marine conservation.
Tahlequah, or J35, is the same whale that attracted international attention in 2018 for shoring up her lifeless calf for 17 days. She was spotted doing the same with her most recent newborn on Dec. 31, and was last seen still carrying its corpse 11 days later.
Tahlequah, now 27, has lost two of her four calves. The death of her offspring dramatically underscores the failure of current efforts to protect the whales, and the need for more immediate and expansive action, Alidina said.
“It’s heartbreaking. It’s devastating to see. It’s almost like a call out for attention,” he said.
“We’re not doing a good job of reducing the threats to an extent that can promote their recovery.”
The southern residents are already listed as endangered under the Species at Risk Act (SARA), and the federal government’s imminent threat assessment in November re-confirms the whales are still in peril, he noted. But the responsible ministers still haven’t recommended an emergency order be considered by Cabinet.
On Monday, a legal challenge was filed in federal court on behalf of six conservation groups who allege the federal environment and fisheries ministers have failed to make a timely recommendation for an emergency order.
It’s a step Fisheries and Oceans Minister Diane Lebouthillier and Environment Minister Steven Guilbeault are legally obliged to take under SARA once species are confirmed to be facing “imminent threat,” said Imalka Nilmalgoda, a lawyer with Ecojustice, the legal charity representing the conservation groups.
There is legal precedent that suggests the ministers must act speedily, said Nilmalgoda.
In June, a federal court judge sided with an environmental group that argued Guilbeault took too long to make a similar recommendation to cabinet to protect B.C.’s last wild spotted owl, she said.
In that case, the minister waited eight months to make his recommendation, but there is no legal deadline for action — and the whales don’t have time to wait, Nilmalgoda said.
“They’re really in a fight for their survival and every day there’s a delay, their situation gets worse,” she said.
“The court has said when species face imminent threats to their survival and recovery, the ministers have to act expeditiously.”
The court case follows a petition in June filed by Ecojustice for The David Suzuki Foundation, Georgia Strait Alliance, Living Oceans Society, NRDC (Natural Resources Defense Council), Raincoast Conservation Foundation, and World Wildlife Fund Canada requesting the federal government enact an emergency order.
The federal measures put in place to protect the endangered orcas since the last ministerial assessment in 2018 have proven inadequate in reducing their top threats: underwater noise, dwindling Chinook salmon stocks, and toxic contaminants, said Misty MacDuffee, wild salmon program director at Raincoast Conservation Foundation.
Over the past six years, the federal government and the Port of Vancouver have implemented a mix of voluntary and mandatory guidelines to better protect the endangered whales, which include some fishing area closures, and seasonal vessel slow-down zones and sanctuary areas for the whales.
But there’s been no improvement to the whales’ health and well-being, said MacDuffee.
The last population assessment running to last spring showed 14 whales were emaciated, eight of them females able to bear young or currently caring for calves.
The environmental groups don’t want to strictly prescribe what they’d like an emergency order to include, MacDuffee said.
However, some immediate and significant steps would include a 1000-metre no-go zone for recreational and whale-watching vessels that mirror new rules in the U.S., MacDuffee said.
Setting effective noise targets for shipping in the Salish Sea and banning vessels and cruise ships from dumping toxic washwater, or scrubber discharge, into the whales’ critical habitat would also be beneficial.
More stringent directives to protect Chinook stocks from fishing pressures when there are poor returns would give the orcas a better chance of capturing their primary food.
The federal ministers can choose to act before the legal case is finished, ideally before the summer when seasonal protective regulations are typically put in place, she said.
“Mind you, .125the whales.375 are spending so much time here in the winter now, we need these measures year-round,” she said.
“But this year, when they roll out those measures, we want them to be more meaningful than they have been in the past.”
