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Appeal court upholds ruling on protection of orca habitat

A federal appeal court ruled yesterday that the Department of Fisheries and Oceans failed in its legal responsibility to protect habitat for orcas, the sleek, black and white killer whales that swim off the coast of B.C.

"Ecojustice and our clients are very pleased with the Court of Appeal's decision," said Margot Venton, staff lawyer at Ecojustice, a group that, along with eight other environmental groups including the David Suzuki Foundation and the Sierra Club of B.C., appeared before court to oppose a government attempt to reverse a ruling won last fall.

"In upholding the original ruling, the Court of Appeal has confirmed that it's time to get on with the business of actually protecting these killer whales," Venton said.

The court ruled that the minister of fisheries and oceans must legally protect all aspects of killer whale critical habitat -- including their food supply and the quality of their marine environment.

"The original ruling, and now the Court of Appeal's judgment, have confirmed that the fate of killer whales should not be left to the discretion of politicians," Venton said. "These whales must be protected by law. They need spaces to feed, breed and raise their young if their populations are going to survive and recover."

In his decision last year, Federal Court Justice James Russell held that DFO had failed to legally protect killer whale critical habitat and made 13 declarations that included:

- DFO unlawfully relied on non-binding policies and guidelines, as well as government discretion, to protect habitat.

- DFO unlawfully limited the scope of legal protection to exclude biological elements of critical habitat.

- DFO has a legal obligation to protect the biological aspects of critical habitat, such as prey (food) availability and marine environment quality, through law.

According to Ecojustice, the win on appeal is an important precedent that will assure better protection for the more than 90 marine species covered by the federal Species at Risk Act.

Tom Sandborn covers labour and health policy beats for the Tyee. He welcomes feedback and story tips at

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