Orca court case still alive!

Feature story - May 10, 2009
The orca court case lives on. A federal court judge has denied a request by the federal Department of Fisheries and Ocean’s (DFO) to kill the case that environmental groups have launched.

Orca Trial

This means there is still hope to clarify how the critical habitat of B.C.'s resident killer whales will be protected.

Legal issues

The judge's decision comes after lawyers from Ecojustice appeared at a hearing on behalf of Greenpeace and eight other environmental groups.

They argued that the case must continue and must be merged with a second lawsuit filed in early April. DFO now faces one mega-case to protect the whales' critical habitat.

Scope and nature of DFO Order still not clear

DFO argued in court that the case should be dropped because it issued an Order under the Species at Risk Act that it says would protect critical habitat.

But DFO has not clarified what aspects of critical habitat the Order is intended to protect. It says the nature and scope of the Order will be determined over time through "trial and error."

Greenpeace argues that trial and error is not an unacceptable approach to protecting endangered species in Canada.

DFO issued its Order after the environmental groups filed their lawsuit. The groups filed the second lawsuit to seek judicial clarification of the Order after DFO issued its Order and then asked the court to throw out the case.

Order not enough

Greenpeace and its partners believe the Order leaves the whales unprotected from pollution, threats to salmon populations-their primary food source-boat traffic and acoustic disturbances that will make or break their recovery.

The Order only points to the geophysical aspects of the orca's habitat.

Environmental Groups' position stands

It isn't clear yet if DFO will appeal the decision. Greenpeace and its partners are firm in their view that the case will not be resolved until it is clear what protection under the Order actually means for the killer whales.