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Congratulations to Ecojustice for its killer whale win. They successfully sued the federal government for its failure to protect the habitat of endangered species, killer whales in British Columbia.

The 126 page judgment concludes that the Department of Fisheries and Oceans has utterly failed to fulfill its statutory mandate to protect this endangered species,  and makes the following declarations:

1. With respect to the Protection Statement Application: a. The Minister of Fisheries and Oceans erred in law in determining that the critical habitat of the Resident Killer Whales was already legally protected by existing laws

of Canada; b. Section 58 of SARA requires that all elements of critical habitat be legally protected

by the competent ministers; c. Outreach programs, stewardship programs, voluntary codes of conduct or practice,

voluntary protocols and/or voluntary guidelines and policy do not legally protect critical habitat within the meaning of section 58 of SARA, and it was unlawful for the Minister to have cited policy documents in the Protection Statement;

d. Ministerial discretion does not legally protect critical habitat within the meaning of section 58 of SARA, and it was unlawful for the Minister to have cited discretionary provisions of the Fisheries Act in the Protection Statement;

e. Prospective laws and regulations that are not yet in force do not legally protect critical habitat within the meaning of section 58 of SARA, and it was unlawful for the Minister to have cited provisions in the Protection Statement that are not yet in force;

Page: 1242.

f. Provincial laws do not legally protect critical habitat within the meaning of section 58 of SARA, and it was unlawful for the Minister to have cited provincial laws in the Protection Statement.

With respect to the Protection Order Application: a. The Ministers acted unlawfully in limiting the application and scope of the

Protection Order made under section 58(4) of SARA; b. The Ministers have a duty under section 58 to provide legal protection against

destruction for all components of the Resident Killer Whales’ critical habitat; c. The Ministers acted unlawfully when they limited the application and scope of the destruction prohibition in section 58(1) of SARA to certain components of critical

habitat but not others; d. It was an error of law for the Ministers to limit the application and scope of the

Protection Order to provide legal protection for geophysical parts of critical habitat

only; e. It was unlawful for the Ministers to exclude the ecosystem features of Resident

Killer Whales’ critical habitat, including availability of prey and acoustic and environmental factors from the scope of the Protection Order.

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