Comment: Should B.C.’s killer whales have legal rights?

It has been a heartbreaking year for the local orcas and their legions of admirers.

Granny, the matriarch of the iconic southern resident killer whale population, died. Three of the calves born during the mini baby boom of 2015-16 died. Three other adults also died, reducing the already depleted number of southern residents to just 76 whales.

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These orcas have been in deep trouble since 50 of them were kidnapped for display in aquariums during the 1960s and 1970s. Today, their recovery is hampered by declining chinook salmon populations, vessel noise and disturbance, and toxic chemicals in the ocean.

For 15 years, the southern residents have been protected, at least in theory, by Canada’s Species at Risk Act. However, to observe that the federal Department of Fisheries and Oceans has moved at a snail’s pace would insult these small crustaceans.

Environmental groups had to repeatedly sue DFO to force it to take steps required by law. Yet in the so-called “action plan” published last year, DFO admits “the majority of activities in the plan focus on research.” The total cost of these feeble efforts is pegged at less than a million dollars per year, or about three cents per Canadian.

It is painfully obvious that DFO’s current approach is not working. The southern resident killer whales face imminent extinction. This is an emergency. We need new ideas that will compel meaningful action.

One such idea is that orcas need legally enforceable rights. Rights have the power to modify our beliefs, culture and behaviour, as abolitionists, suffragettes and Indigenous people can attest.

Just a few years ago, suggesting that whales ought to have legal rights might have provoked puzzled looks or even ridicule.

The idea is no longer funny or far-fetched. Over the past three years, there have been revolutionary breakthroughs across the world about the legal rights of non-human animals, from chimpanzees and orangutans to spectacled bears and Asiatic lions. In New Zealand, India, Ecuador, Argentina and parts of the U.S., governments, communities and courts have acknowledged that individual animals, endangered species and even nature itself — from rivers to entire ecosystems — have rights.

These developments upend centuries of legal precedents treating non-human animals as things or property, with no more rights than a chair or a spoon. Based on the conviction that humans were superior, this approach contributed to the consistent exploitation, abuse and endangerment of animals.

Scientific discoveries sparked by Jane Goodall’s work with chimpanzees have obliterated old theories about animals as automatons. Not only our closest relatives, the great apes, are complex, emotional, sentient creatures. Researchers have also discovered amazing capabilities in species from ants to elephants, octopuses to ravens.

Orcas are a particularly remarkable species, with larger brains than humans, sophisticated language abilities (including distinct dialects for individual pods) and complex cultures that we have only scratched the surface of understanding.

In light of this knowledge, we can no longer morally justify overfishing chinook salmon, disrupting orcas with vessel noise and other disturbances, and polluting their ocean habitat with toxic chemicals.

We are responsible, in whole or in part, for all of the problems facing killer whales. We should be obligated to solve them.

The time has come to recognize the orcas’ right to inhabit a clean and healthy environment, their right not to be disturbed by whale-watching boats, oil tankers and vessel noise, and perhaps most importantly, their right to an adequate supply of chinook salmon.

There will be short-term consequences, to be sure, for commercial and sports fishermen, whale-watching companies and the shipping industry. Yet continuing to cause the disappearance of wild salmon and orcas is unethical, immoral and unconscionable.

The prospect of a West Coast without southern resident killer whales is almost unbearably painful to contemplate. Yet scientists have unequivocally stated that these orcas could disappear within decades unless immediate and effective action is taken to save them.

It is time to stop treating nature as a commodity that we own, and to acknowledge instead that nature is a community to which we belong. It is time to recognize that killer whales have rights, and that we must change our behaviour immediately in order to respect those rights.

 

David R. Boyd is an environmental lawyer, professor at UBC and author of nine books including The Rights of Nature: A Legal Revolution that Could Change the World (ECW Press, 2017).

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