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CANADA: Cross-border Lawsuit Seeks to Protect Killer Whales |
| September 4, 2006 |
 | This orca, known as J28, is a member of the endangered southern resident killer whale population.
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A ruling by the U.S. Federal Court on August 19 has granted Canadian conservation groups the right to participate in a U.S. lawsuit and to defend federal protection of the southern resident orcas in U.S. waters.
Conservationists on both sides of the border are uniting to fight a lawsuit brought on by U.S. industry groups, who are challenging the American government’s listing of the southern residents as an endangered species.
The whales are protected under the Canadian Species at Risk Act (SARA) and the U.S. Endangered Species Act (ESA) because they are at grave risk of extinction throughout their range, which stretches from Washington’s Puget Sound to B.C.’s Georgia Strait. The dwindling orca population faces numerous environmental threats including changes in their key salmon prey, toxic contamination, vessel traffic and noise pollution.
“The southern resident orcas are a transboundary species,” says Lara Tessaro, a staff lawyer with Vancouver-based Sierra Legal, which is partnering with Western Canada Wilderness Committee and Georgia Strait Alliance to represent Canadian interests in the lawsuit. “Their survival depends on critical habitat on both sides of the Canada-U.S. border. Without strong legal protection from both countries, we will condemn these whales to extinction.”
In March 2006, the Washington State Farm Bureau and the Building Industry Association of Washington brought a lawsuit arguing that the U.S. endangered species listing is unlawful. The industry groups argue that the southern residents do not fit the U.S. Environmental Protection Agency’s definition of species as a “species, sub-species or distinct population segment of a species.”
The southern residents appear predictably in Puget Sound and the Strait of Georgia each summer, but do not interbreed with other orca populations such as the northern residents, which frequent B.C.’s Johnstone Strait off northern Vancouver Island. Genetic research by the Vancouver Aquarium’s senior marine mammal scientist, Dr. Lance Barrett-Lennard, confirms that while the northern and southern residents are of the same species, they have not interbred for some 10,000 years.
“Industry efforts to strip the Southern Residents of endangered species status in the U.S. would undermine Canadian efforts to recover these very same whales,” said Gwen Barlee, Wilderness Committee Policy Director. The groups are encouraging both countries to advance efforts to protect the whales by designating critical habitat and implementing joint recovery strategies.
The Canadian Government is currently finalizing its recovery strategy for southern residents. In June 2006, the U.S. National Marine Fisheries Service (NMFS) proposed a recovery plan and critical habitat designation for the Southern Resident population, both presently subject to comment at public hearings. The critical habitat designation proposed by NMFS for the southern residents includes most of Puget Sound and portions of the Strait of Juan de Fuca, but fails to include nearshore areas that provide habitat for salmon, the southern residents key food source.
On August 31 Sierra Legal filed a brief on behalf of Georgia Strait Alliance and Western Canada Wilderness Committee, explaining the broader factual context, including the listing of the southern residents in Canada as an endangered species under SARA.
Under international law, neighbouring states are obliged to prevent significant transboundary harm to wildlife. Sierra Legal will argue that SARA and ESA involve similar definitions and processes for listing, and that there must be a consistent approach to interpreting these Acts where a species is transboundary.
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