Six environmental groups are suing two federal ministers over a delay in issuing an emergency-order recommendation to protect 小蓝视频’s endangered killer whale population.
The legal action, filed Monday at a Vancouver federal court, said the failure of Environment Minister Steven Guilbeault and Fisheries Minister Diane Lebouthillier to recommend an emergency order to cabinet represents an “unlawful” delay.
The petition comes two months after a federal threat assessment concluded that despite interim protection measures, an “imminent threat still exists” to the survival of the southern resident killer whales.
Last year, a federal judge found the eight months Guilbeault waited to issue an emergency-order recommendation to cabinet on the Northern Spotted Owl — Canada’s most endangered bird — amounted to an “unreasonable” delay under the Species at Risk Act.
That legal precedent also applies to the killer whales, which are similarly protected as an endangered species. The legal clock started ticking Nov. 29, 2024, when the latest threat assessment was made.
Legislation does not spell out when the two ministers must recommend an emergency order, but court precedent suggests July 2025 would be too late.
Imalka Nilmalgoda, a staff lawyer with environmental law organization Ecojustice working on the case, said the case law is “pretty clear” that the emergency-order recommendation has to happen without delay.
“We’re in a space where it could happen at any time,” said Nilmalgoda.
A spokesperson for Lebouthillier said the minister “does not comment on the timelines or substance of cabinet business, nor does she comment on cases before the courts.”
A spokesperson for Lebouthillier said the minister “does not comment on the timelines or substance of cabinet business, nor does she comment on cases before the courts.”
The southern resident killer whale population faces multiple threats, from to , underwater noise and a .
Since June 2024, the population has dipped to 73 individuals, following the death of an adult male and two new calves. In one recent loss, the female orca known as Tahlequah carried the body of her dead calf through the waters off Vancouver Island for the second time in seven years.
Misty MacDuffee, the wild salmon program director at Raincoast Conservation Foundation — one of the six environmental groups that filed the latest legal challenge — said the situation has become desperate.
“We’re in the eleventh hour,” said MacDuffee. “If we start losing more reproductive females, we really are into a situation that is hard to turn around.”
Michael Jasny, director of marine mammal protection at the Natural Resources Defense Council, a U.S.-based environmental advocacy group, said in a statement the survival of the whales first hinges on the Canadian ministers fulfilling their legal duty to recommend an emergency order.
“The window is not just closing for the government to act, but for these orcas,” he said.
In 2018, federal cabinet declined an emergency-order recommendation to protect the whales in favour of interim protection measures, which include exclusion zones, voluntary ship slowdowns and seasonal fishing bans. The latest threat assessment found those interim efforts have led to “no significant” and observable changes in threats to the whales in the last seven years.
Nilmalgoda said Ecojustice’s six clients, which also include the David Suzuki Foundation, Georgia Strait Alliance, Living Oceans Society and World Wildlife Fund Canada, are concerned with a series of new industrial projects green-lighted or slated for approval in the Salish Sea.
She pointed to the Trans Mountain Pipeline, the expansion of the Port of Vancouver at Roberts Bank Terminal 2, and Fortis小蓝视频’s Tillbury Phase 2 liquefied natural gas expansion plans — projects she said increase underwater noise, risks of whale-ship collisions and the possibility industry will spill oil or some other contaminant into the ocean.
“The urgency of their situation is only increasing with each passing day,” said Nilmalgoda. “The whales are kind of in an urgent fight for their survival.”
What would an emergency order do?
Were cabinet to issue an emergency order under the Species at Risk Act, it could trigger a sweeping set of protections for the whales.
According to MacDuffee, one of the most important things cabinet could do to protect the whales would be to change the minimum-approach distance for small recreational vessels to 1,000 metres, to match U.S. laws passed last year.
That would apply to whale-watching boats, though they would still be free to get closer to Bigg’s killer whales, which are not endangered and are involved in most encounters.
For larger ships, MacDuffee said the Salish Sea needs a hard noise cap so whales can continue to echolocate food. There’s already a set of hydrophones in place that can pick up and identify particularly loud vessels.
The biologist said it’s likely 10 to 20 per cent of ships that arrive in the area are making 80 per cent of the noise.
One measure under an emergency order could require ships to quiet their engines before entering the area. Another would be to put a cap on the number of vessels allowed to transit into Vancouver ports, said MacDuffee.
An emergency order could also prohibit the release of scrubber wastewater from ships in and adjacent to critical habitat. That would include cruise ships, MacDuffee said.
And when it comes to food, the conservation biologist said an emergency order could establish an early-warning system to protect chinook salmon, the whales’ preferred prey.
The idea is that when the whales’ poor health aligns with low prey levels, authorities would close fisheries so chinook salmon could reach their critical habitat.
“We do this dance trying not to be too prescriptive,” MacDuffee said. “But [protection measures] have to be meaningful. They have to be meaningful for the whales.”
'Too early to speculate' economic impacts of emergency order, says port
In an email, Vancouver Fraser Port Authority spokesperson Arpen Rana said “it’s too early to speculate” on what impact an emergency order would have on the port and its operations.
Rana pointed to a number of measures the port is carrying out to protect the whales, including programs that encourage ships to slow down and reduce noise when passing through the southern residents’ territory.
The port is moving ahead with its Roberts Bank Terminal 2 expansion despite concerns raised by environmental groups and an expert panel that it would threaten the orcas.
In June 2024, Geoff Cowper, a lawyer for the Vancouver Fraser Port Authority, argued before a federal judge that the expansion project was needed to avoid breaching port capacity and losing business to other North American ports.
Cowper said federal laws recognize big infrastructure projects cannot be completed without adverse environmental effects, and that they need to be balanced with “all the virtues and benefits of the project” on behalf of national interest.
“That’s why it’s a cabinet decision,” he said at the hearing. “That’s why it’s pointed up to the senior political executive of the country to evaluate the country’s interests.”
For MacDuffee, that economic argument is less convincing when you consider that any threat to southern resident killer whales extends to fisheries and tourism.
“We’re really just trading one industry over others,” she said. “All of the tourism and all of the other reasons why this part of British Columbia is held to be a jewel, special, beautiful, rich, all of these things that bring hundreds of millions of dollars into British Columbia.”
Legal challenge comes amid political turmoil
When Prime Minister Justin Trudeau prorogued Parliament on Jan. 6, it froze all political work to pass new laws. But that doesn’t extend to existing laws — Guilbeault and Lebouthillier both still have the ability to carry out emergency-order recommendations, according to Nilmalgoda.
“It’s a bit tumultuous, obviously, what’s happening at the federal political situation,” she said. “[But] the ministers still have the power to recommend an emergency order, and theoretically, cabinet still has the power to issue an emergency order, should they choose to do so.”
With polls showing the Liberal Party of Canada will likely fall in the coming election, MacDuffee said they have an opportunity to leave behind a legacy.
“Their cabinet, their governing, is coming to an end if we believe the polls,” she said. “Do they want their legacy to be continuing these extinction trajectories for southern residents?
“Or do they want to go down in history as the government who put in place the meaningful measures that enable the recovery of this population?”
— With files from The Canadian Press
Updated Jan. 29, 2025, with response from Environment and Climate Change Canada
