NRDC Files Lawsuit in Canada for Southern Resident Whales

Today NRDC, together with our Canadian partners, filed suit against the Trudeau government to protect the southern resident orcas.  

Few wildlife species are as iconic as these coastal whales, which inhabit the Salish Sea off Washington State and British Columbia. They are revered in the culture of the region’s First Nations, and beloved throughout the Pacific Northwest by people who know them less as anonymous wildlife than as individuals. They are also critically endangered. As my colleague Giulia and I have written before, a lack of food caused by our damming of rivers and depletion of salmon stocks has compromised the whales’ ability to produce new calves, and we’ve made their foraging still more difficult by flooding their waters with noise.

Under the Species at Risk Act, its endangered species law, the Canadian federal government has remarkably broad authority to save endangered animals that face “an imminent threat to [their] survival or recovery.” The Act’s section 80 empowers the government to issue an emergency order, “requiring the doing of things” that protect the species and its critical habitat and “prohibiting activities” that may harm them. Given the condition of the southern residents, our groups petitioned in January for that emergency order—which would be the first ever issued for an ocean population. But despite worsening conditions, the Trudeau government has not used the authority the law grants it to meet that “imminent threat.”

To us, at NRDC’s Marine Mammal Project, the plight of the southern residents is not far off that of the vaquita, the small porpoise species that has nearly been extirpated by gillnets in the Sea of Cortez, Mexico. At first glance, the orca population seems in much better shape as endangered species go, with 75 individuals left (as opposed to an estimated 18 vaquita) and three distinct pods through which to preserve genetic diversity. But when you look more closely at the demographics, optimism fades. Of the 75 remaining orcas, only thirteen or fourteen females and one or two males are reproductively active, and in three years, weakened by inanition, they have not been able to produce and sustain a single calf. The whales are quickly running out of time.

The Canadian government would not disagree with that assessment. Earlier this year, the Department of Fisheries and Oceans and Environment Canada, responding to our petition for an emergency order, concluded that the survival and recovery of the southern resident orcas are indeed under “imminent threat.” The population, they found, is “small, not stable, and declining,” and will not increase unless the body condition of the whales improves. Moreover, they acknowledged that current efforts to provide food for the whales, quiet their habitat, and reduce their contaminant load fall short of what is needed to save them. “Despite ongoing and planned mitigation measures,” the report observed, “the key threats affecting the [whales] are, to date, not being fully abated.”

Take the problem of disturbance from whale-watching. In June, after years of inaction, the Canadian government established a 200-meter exclusion zone around the orcas, requiring commercial and recreational vessels to do their whale-watching at a little distance. Progress, maybe. Yet this was the same exclusion policy that the United States had adopted eight years ago and had recently concluded was inadequate, failing to provide the degree of conservation benefit that was intended. In any given hour, on any summer’s day on their feeding grounds in the Salish Sea, the southern residents remain surrounded by vessels—two dozen, three dozen—hemming them in and stifling them with noise that masks their echolocation signals and makes foraging all but futile. It is like being starved by paparazzi. 

The Trudeau government, having found that the whales face an “imminent threat” to their survival and recovery, must recommend an emergency order unless “equivalent measures” to protect the species have been taken under another act of Parliament. By its own admission, the measures necessary to address that threat have not been taken.

The case that we and our partners have filed today would compel the government to comply with the law and protect a species that is facing starvation.

“When I was nine,” wrote the late poet (and orca researcher) Eva Saulitis, “I knew extinction not with my mind but with my heart.” And so it was this summer when, amid the constant stream of defilements from Washington, the world was moved by the plight of the whale called Tahlequah, or “J35” as she is known in the official catalog kept by the Center for Whale Research. Tahlequah was the orca mother who, having lost her newborn calf within thirty minutes of its birth, floated its body for seventeen days as she swam with her small pod around the Salish Sea. It seemed an expression of the most profound grief, but also of the suffering that is overtaking the population.

The Trudeau government must use the responsibility the law provides and recommend an emergency order for the southern residents.

The lawsuit was filed by NRDC along with the David Suzuki Foundation, Georgia Strait Alliance, Raincoast Conservation Foundation, and WWF Canada.