Canada sued over delay in protecting endangered killer whales

An ‘imminent threat’ assessment in November 2024 set a ticking legal clock that requires two ministers to recommend an emergency order to Cabinet — but they have yet to do so.

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Six environmental groups are suing two federal ministers over a delay in issuing an emergency-order recommendation to protect B.C.’s endangered killer whale population.

The legal action, filed Monday at a Vancouver federal court, said the failure of Environment Minister Steven Guilbeault and Fisheries Minister Diane Lebouthillier to recommend an emergency order to cabinet represents an “unlawful” delay.

The petition comes two months after a federal threat assessment concluded that despite interim protection measures, an “imminent threat still exists” to the survival of the southern resident killer whales.

Last year, a federal judge found the eight months Guilbeault waited to issue an emergency-order recommendation to cabinet on the Northern Spotted Owl — Canada’s most endangered bird — amounted to an “unreasonable” delay under the Species at Risk Act.

That legal precedent also applies to the killer whales, which are similarly protected as an endangered species. The legal clock started ticking Nov. 29, 2024, when the latest threat assessment was made.

Legislation does not spell out when the two ministers must recommend an emergency order, but court precedent suggests July 2025 would be too late.

Imalka Nilmalgoda, a staff lawyer with environmental law organization Ecojustice working on the case, said the case law is “pretty clear” that the emergency-order recommendation has to happen without delay.

“We’re in a space where it could happen at any time,” said Nilmalgoda.

Fisheries and Oceans Canada and Environment and Climate Change Canada did not immediately respond to requests for comment.

The southern resident killer whale population faces multiple threats, from toxins to ship collisions, underwater noise and a lack of food.

Since June 2024, the population has dipped to 73 individuals, following the death of an adult male and two new calves. In one recent loss, the female orca known as Tahlequah carried the body of her dead calf through the waters off Vancouver Island for the second time in seven years.

Misty MacDuffee, the wild salmon program director at Raincoast Conservation Foundation — one of the six environmental groups that filed the latest legal challenge — said the situation has become desperate.

“We’re in the eleventh hour,” said MacDuffee. “If we start losing more reproductive females, we really are into a situation that is hard to turn around.”

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