Canada’s federal cabinet has declined a recommendation from two ministers to issue an emergency order that would protect endangered southern resident killer whales off the coast of British Columbia.
The decision comes after ministers of the environment and fisheries carried out a November 2024 risk assessment that found the whales face “imminent threats” to their survival and recovery.
The finding required the ministers to issue an emergency order recommendation to cabinet under the Species at Risk Act.
But in a written statement this week, the federal government said that it would forgo an emergency order after considering “social, economic, policy and other factors, and the broader public interest.”
“At this time, the Government of Canada has declined the making of an emergency order,” it stated. “Instead, incremental measures will be pursued under other legislation.”
Beatrice Frank, executive director of the whale-focused environmental group the Georgia Strait Alliance, said from Victoria that she and her colleagues hoped cabinet would approve the order as a “lifeline” to the species.
“We saw once again this is what the government doesn’t want to do,” she said. “We are really disappointed.”
Federal government favours 'collaborative approach' over Species at Risk Act
The emergency order recommendation to Cabinet said the whales faced threats from acoustic and physical disturbance, reduced prey availability and environmental contaminants.
Instead of using species at risk legislation, the government said it would take a “collaborative approach” to reduce threats to the whales.
Short of invoking the Species at Risk Act, the federal government said it would move to increase vessel approach distance to 1,000 metres. It also plans to “identify interim underwater noise objectives” that can be used as a benchmark to take further action.
When it comes to prey availability, Ottawa said it would adjust 2025 and 2026 fishing closures to increase seasonal protections in certain killer whale foraging areas. It would also introduce rolling fishing closures over both seasons for chinook salmon, the southern resident’s preferred prey.
The whales are also threatened by the toxic accumulation of contaminates across their territory, which spans both sides of the Canada-U.S. border. Ottawa said it would use the Canada Shipping Act to phase in prohibitions on the discharge of “wastewater” from exhaust gas cleaning systems used by large vessels.
All of the proposed alternative measures are subject to consultation with First Nations, industry and other affected parties, such as the Vancouver Fraser Port Authority, which currently operates a voluntary program to reduce underwater noise from large vessels.
Decision latest failed effort to invoke Species at Risk Act for whales
Cabinet’s decision comes a little over a month after six environmental groups sued Environment Minister Steven Guilbeault and Fisheries Minister Diane Lebouthillier over what they claimed was an unlawful delay in recommending an emergency order to cabinet.
In June 2024, several of those environmental groups took Ottawa and the Vancouver port authority to federal court over their decision to approve the Roberts Bank Terminal 2 expansion.
Built on a new man-made island adjacent to the current Deltaport container facility, the port authority project seeks to add a three-berth marine container terminal, a widened causeway that would expand road and rail lines, and an extended basin for tugboats.
The expansion is forecast to grow container capacity on Canada’s West Coast by a third. Without it, the federal government says $3 billion in added GDP would be put at risk by capacity shortages.
Lawyers for the environmental groups argued approving the expansion would threaten to push the southern resident killer whales to extinction.
The most recent analysis from Fisheries and Oceans Canada shows they face a 24 per cent chance of functional extinction as early as 75 years from now.
At the time, 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.”
As for Frank, she suspects part of the reason for Ottawa’s latest cabinet decision is due to a lack of alignment between federal and provincial legislations that protect species at risk — especially in the ocean where jurisdictions can sometimes overlap.
“This is a setback,” said Frank. “We’re already thinking what is next. We will not give up. This is not what we do.”
“We think hope is still alive when people care so much about these whales.”
