How Bad Can it Be?

January 2009

Lawsuit launched to force protection of a species whose outlook keeps getting worse

This is an article from WaveLength Magazine, available in print in North America and globally on the web.

To download a pdf copy of the magazine click here: > DOWNLOAD

By John Kimantas

Lummi’s passing marked the end of an era for the Northwest's southern resident killer whale population. And it may also herald the start of a new dark age for the endangered orcas.

On Saturday, Oct. 11 a vigil to celebrate the life of the elderly matriarch otherwise known as K7 was held at Lime Kiln Point State Park lighthouse on San Juan Island. Concern was first raised when Lummi failed to return with her pod this summer to the San Juans after last being seen Dec. 23, 2007. The matriarch was the oldest orca among the three pods that call the Georgia Basin home each summer. She was believed to be born in about 1910, making her an observer to all the harsh conditions that have befallen the creatures over the last century, from pollution to state-sanctioned hunts to decimation of their primary food source, chinook salmon.

Lummi was one of seven orcas that the Center for Whale Research believes died in 2008, dropping the population to 83, the lowest number since 2003 – a sobering trend given the slow but steady increase in numbers since the population reached an all-time low in the 1970s, before they became a protected species.

Worse yet, new behavior is pointing to a disturbing future for the remaining killer whales in the southern resident population. The Washington-based Orca Network is drawing an alert to the development of a “peanut head” – a dip behind the blow-hole, an indication blubber is being drawn away from that area as a defense mechanism against starvation.

In addition, the whales seem to be fanning out or trying new strategies to locate chinook salmon, including L and J pods teaming up and J pod splitting into two groups, beyond acoustic range. Puget Sound’s chinook run, meanwhile, is expected to be about 22,000 – down from a historic million or so.

While a protected species, environmental groups have decided the Canadian government hasn’t done enough. Ecojustice (formerly the Sierra Legal Defense Fund) is leading a lawsuit over the Department of Fisheries and Ocean’s failure to issue an order under the Species at Risk Act (SARA) to protect the orca’s critical habitat.

Other participants in the suit are the David Suzuki Foundation, Environmental Defence, Greenpeace Canada, the International Fund for Animal Welfare, the Raincoast Conservation Society and the Wilderness Committee.

The lawsuit came about after the DFO, instead of protecting habitat, issued a statement stating the orcas' habitat is already protected by existing legislation and guidelines.

Christianne Wilhelmson, the clean air and water program co-ordinator at the Georgia Strait Alliance, sees the list as a way for the federal government to duck out of the legislation that requires it to identify and protect critical habitat for species listed under SARA.

“You can’t protect a species if you don’t protect the habitat. It’s just not possible,” Wilhelmson said. “If these other guidelines and regulations were protecting the species, why is the species at risk?”

The GSA already has a similar lawsuit working its way through the court system to protect the habitat for the nooksack dace, an endangered freshwater fish. The hope is to get a judgment that recognizes the pattern that the DFO is neglecting habitat protection. A favorable ruling could force them to act for all other endangered species, Wilhelmson said.

“It’s the only thing we can do at this point. If the government doesn’t enforce the laws, the citizens and groups have to do this.”

The hope is Ecojustice’s case will move through the court system fairly quickly. Environmental groups have much at stake on the outcome.

“If they’re not going to protect habitat for killer whales they’re certainly not going to for lichen, algae or birds,” Wilhelmson said. As well as falling fish stocks, risks to the resident killer whales include increased boat traffic, toxic waste and acoustic pollution from activities such as seismic testing and military sonar (a right recently upheld in a court ruling in the military's favor). A new pollutant contaminating the species is the fire retardant PBDE, which may affect reproductive health and immune systems. Options for their recovery include fishing restrictions, protected zones around salmon streams and the removal of dams. But British Columbia appears headed in the opposite direction, opening the door to independent power projects (IPPs) with proposals now including damming a huge number of B.C.’s rivers.

For more information:

The Centre for Whale Research – www.whaleresearch.com

Ecojustice – www.ecojustice.ca

Georgia Strait Alliance – www.georgiastrait.org

Aquatic Species at Risk – http://www.dfo-mpo.gc.ca/species-especes/