Harper and the humpbacks

By Briony Penn, June 2014

Is this threatened whale just too big a threat to Alberta’s oil-fuelled prosperity?

Just when humpback whales are starting to reestablish up and down the coast, including in the Salish Sea, the federal government is removing their legal protection. With the cynical Earth Day announcement of the delisting of the whale, many people are questioning how Prime Minister Stephen Harper managed to remove the obstacle to shipping bitumen from BC ports posed by a threatened whale in a threatened ocean. The downgrading of the official level of risk faced by BC’s humpback whale population cries out for an examination of how political interference is able to exert itself in the Byzantine process of designating species at risk, a process that is supposed to be non-political.

For a species to get protection under the federal Species At Risk Act (SARA), it has to be on a list created by a body of experts called the Committee on the Status of Endangered Wildlife in Canada (COSEWIC). COSEWIC started in 1977 to provide an independent, scientifically sound classification of wildlife species at risk. In 2003 when SARA was finally implemented (after decades of lobbying) to give legal protection to species at risk, COSEWIC was the natural, arms-length-from-government advisory body. Government can implement or ignore its recommendations.

Every year a specialist sub-committee of COSEWIC prepares a list of wildlife species to consider for detailed assessment. Eligible candidates are prioritized and join the growing line-up for a “Status Report.” These reports require a long list of criteria to be reviewed, such as the decline in total number of mature individuals and the declining range of the species. If the Status Report concludes they are “endangered” or “threatened,” then they are eligible for federal legal protection. If they are just deemed of “special concern” then there is no protection, but they are watched for identified threats. 

COSEWIC’s job ends at the Status Reports, except for reviewing them every 10 years. The rest is the government’s responsibility. That starts with the preparation of a “Recovery Strategy,” a task delegated to scientists with Environment Canada, Parks Canada, and Fisheries and Oceans Canada. In a perfect world, government scientists with budgets write Recovery Strategies for species. This includes defining their critical habitat. The government is also legally obliged to provide the final “Action Plan.” 

That’s how the process is supposed to work. We know, generally, what a failure the system is by the statistics. First of all, over 100 Status Reports for candidate species are backlogged, with many stalled. Anticipated end dates extend long into the future. The rule seems to be: If you want to get a species on a list, expect a long wait; if you want to get one off, Bob’s your uncle. 

The state of Recovery Strategies present another problem. There are currently 471 Endangered and Threatened species on the list (518 if you include extinct and extirpated, plus 200 more of special concern). A Recovery Strategy has been developed for only 241 of the listed species. An Action Plan has been started for only half of those. In fact, only seven species actually have a completed Action Plan, where budgets have been allocated and money is being spent. Fisheries and Oceans, which are responsible for whales and marine species, have only finalized one in over a decade. This glacial slowness was identified by the Auditor General’s report in 2013, which stated the government bodies “had not met their legal requirements” under SARA.

Such ineffectiveness raises concerns about the Harper government’s commitment to species protection, but the timing of the recent downgrading of the humpback’s status strongly suggests Harper’s real motivation is to satisfy Alberta’s desire to export vast quantities of tar sands bitumen from BC ports. To see that more clearly, you must understand the context in which that downgrading has occurred.

The existing evidence of humback populations suggests they are still well below historic numbers. Around the time the Coal Harbour whaling station finally shut down in 1967—the last in North America to do so—and the whales received protection through international whaling treaties, numbers were estimated at between 1200-2000 in the whole of the North Pacific. Since BC typically harbours ten percent of the North Pacific population in the summer, numbers here were likely down to a couple of hundred. 

Conservationists and marine mammal scientists began calling for humpbacks to be listed “at risk,” and in 1982 a COSEWIC Status Report declared the animals endangered. The whales were reassessed when SARA was implemented in 2003, then listed as “threatened” in 2005. This gave them much-needed legal protection. In 2006, a census estimated 1800 mature individuals in BC with an annual population growth rate of 4.1 percent—indicating a growing recovery but still only half that of pre-1905 levels.

Technically, under SARA, Recovery Strategies have to be drafted within four years of listing and the strategy must include protection of critical habitat. Neither was ever done for the humpbacks and British Columbians were growing restless at governmental inactivity.

A series of citizen-initiated court challenges to his inactivity put the fear of God in Harper that the whales might foil his Imperial Oil Kingdom of Canada. In 2007, an alliance of environmental organizations filed a legal challenge of the government’s failure to identify critical habitat in its Recovery Strategies. The challenge succeeded. Then in 2010 conservation groups won another landmark case when the courts determined that, by definition, “critical habitat” also included protection of the food of the species at risk and the quality of their environment. It now appeared that a listed species like the humpback could shut down tanker traffic by virtue of the legal requirement to protect their habitat.

In 2011, a review of the 2005 Status Report on the humpbacks was fast-tracked. Over a hundred species were waiting to get a report, but somehow the humpback jumped the queue, receiving a review four years before it was due. The scientists looking at the census recommended downgrading the humpback’s status from “threatened” to “special concern.” The decision was limited to one criteria: Mature individuals were no longer declining. The only threats identified were vessel strikes, net entanglement, and disturbance from underwater noise. There was no mention in the review of oil spills or supertankers.

In 2012, an alliance of environmental groups challenged the government’s failure to implement SARA in a timely fashion, based on the record of inaction regarding four species, including the humpback, facing threats from the proposed Northern Gateway Pipeline. No Recovery Strategy for the humpback had been advanced, and it was long overdue; it should have been in place by 2009. After over a year of deliberation and appeals, Justice Anne Mactavish released her final judgement in February of 2014, in which she stated: “…the delays encountered in these four cases are just the tip of the iceberg. There is clearly an enormous systemic problem within the relevant Ministries, given the respondents’ acknowledgement that there remain some 167 species at risk for which recovery strategies have not yet been developed.”

Mactavish went on to write: “To state the obvious, the Species at Risk Act was enacted because some wildlife species in Canada are at risk. As the applicants note, many are in a race against the clock as increased pressure is put on their critical habitat, and their ultimate survival may be at stake.”

Noting that government ministries had missed statutory deadlines by up to six and a half years, Mactavish also stated, “It is simply not acceptable for the responsible ministers to continue to miss the mandatory deadlines that have been established by Parliament.”

Curiously, a final Recovery Strategy for the humpback whale was, in fact, completed in 2013, despite the recommendation for downgrading. Its timing is interesting: It was in time to satisfy the legal challenge, but too late (apparently) to be reviewed by the Northern Gateway Joint Review Panel. 

The Recovery Strategy identified the humpback’s critical habitat as covering the exact area of the tanker route and included new impacts such as toxic spills, seismic exploration, sonar and pile driving. But this report was never considered in the Northern Gateway Joint Panel Review. The Recovery Goals were to observe continued growth to pre-exploitation levels and expansion into suitable habitats. An Action Plan to implement this strategy was to be prepared within five years. 

But the whales never had a chance to become part of that Action Plan. On Earth Day of this year Prime Minister Harper instructed his environment minister to officially accept the downgrading of humpbacks to Special Concern. If a spill happens, then the humpback will have to enter the long process for assessment and protection all over again. 

A 30-day period was allowed for comment. 

Naturalist Briony Penn has been watching the humpback population expand along the coast with joy and optimism. The latest announcement has killed one of the few hopes for their future.