Can Canada build its new oil pipeline to the West Coast and meet its legal obligation to protect endangered species? Many biologists say no

If you ask biologist Misty MacDuffee what is responsible for the plight of the West Coast’s iconic southern resident killer whale populations, she’ll narrow it down to two major factors: not enough salmon and too much noise.

The one-two punch of declining Chinook stocks and loud, bustling ports and shipping routes in the Salish Sea are the crux issues for the endangered species, MacDuffee told The Narwhal. And that’s without even mentioning toxic contamination that bioaccumulates in the blubber of orcas, which starving orcas metabolize, leaving them invisibly poisoned.

It’s also before introducing the issue of the embattled Trans Mountain pipeline that would introduce the further risks of oil spills and increased ship strikes into the mix as well as the additional underwater racket — known as “acoustic smog” — that would result from the project’s seven-fold increase in oil tanker traffic.

The Trans Mountain pipeline project would triple the amount of oil shipped from Alberta to export terminals in Burnaby, B.C., and result in a jump from five to 34 tankers traversing the Burrard Inlet and Salish Sea each month.

The fatal exclusion

“We’ve done a population viability analysis that found the conditions in the Salish Sea cannot get any worse if we hope to recover these whales,” said MacDuffee, a scientist with the Raincoast Conservation Foundation, one of the organizations that successfully challenged the National Energy Board’s review of, and the federal government’s subsequent approval of, the Trans Mountain pipeline.

“That’s exactly what Trans Mountain would do: it would make the conditions in the Salish Sea worse.”

Only 75 individuals remain in the southern resident population. Low birth rates and calf mortality became a subject of renewed attention this summer after a newborn died and was carried by her mother for 17 days in what experts have described as a display of grief.

During the review stage of Trans Mountain the National Energy Board (NEB) excluded the marine shipping element from consideration of the project’s environmental impacts.

The exclusion was a fatal one: alongside the federal government’s failure to adequately consult First Nations it ultimately led Canada’s Federal Appeals Court to rule the project’s review was irredeemably flawed.

The court declared the project quashed in an unforgiving decision, delivered by Justice Eleanor Dawson:

“This finding — that the Project was not likely to cause significant adverse environmental effects — was central to its report. The unjustified failure to assess the effects of Project-related shipping under the Canadian Environmental Assessment Act 2012 and the resulting flawed conclusion about the environmental effects of the Project was critical to the decision of the Governor in Council [cabinet]. With such a flawed report before it, the Governor in Council could not legally make the kind of assessment of the Project’s environmental effects and the public interest that the legislation requires.”

“The NEB made one fatal error which they compounded over time as they deliberated and as this went to cabinet,” Chris Tollefson, lawyer with the Pacific Centre for Environmental Law and Litigation, said.

“It undermined the whole exercise because that was a fundamental question they were bound to assess, they were bound to make a recommendation on,” he said.

Had the NEB considered that question, Tollefson said, they would certainly have found Trans Mountain would have significant, adverse effects on this population.

“Then we would have had a clear answer.”

Excluding marine shipping impacts from the project’s review limited what experts, scientists and conservation groups could raise as evidence during the Trans Mountain hearings. And simultaneously allowed government and industry to avoid the responsibility of articulating their plans for how they would mitigate the impacts of increased tanker traffic on an endangered marine species.

“They canned the part of the review that would have dealt with the terminal and tanker traffic,” MacDuffee said.

Research conducted by MacDuffee and her colleagues at Raincoast found the noise from tanker traffic alone would result in a 24 per cent chance of the southern resident killer whale population becoming functionally extinct over the next 100 years.

If you add in the risk of oil spills and ship strikes, the probability of extinction within 100 years jumps to 50 per cent.

“This is the piece of Trans Mountain that nobody was getting,” MacDuffee told The Narwhal.

A likely trade-off of the pipeline and tanker project is a loss of this unique population, she said.

“This is a dialogue Canadians have not had,” MacDuffee said.

“They not being told they’re making a choice between a population of iconic killer whales or pushing through this pipeline. The cost of this project has not been a part of the dialogue.”

Ignoring Canada’s protection for at risk species

Dyna Tuytel, lawyer with Ecojustice, the law firm that represented Raincoast and co-applicant, the Living Oceans Society, told The Narwhal that the recent Federal Court of Appeal ruling means new hearings will have to take place on the subject of marine shipping and impacts to marine life.

“We know the National Energy Board identified noise from shipping as a significant, adverse environmental effect,” Tuytel explained, “and they also identified the risk of oil spills.”

“But the board didn’t think it was its responsibility to deal with those things and didn’t deal with whether or how those impacts could be mitigated.”

Impacts on the southern resident killer whale population was considered under the National Energy Board Act but not under the Canadian Environmental Assessment Act, “where special considerations have to be taken into account,” she said.

If any significant, adverse environmental effects of a project are found under the Environmental Assessment Act, those effects must be justified by the final decision-makers on the project — federal cabinet.

“They would have to explain why those significant effects are worth it,” Tuytel said, adding under the act government would also be required to ensure measures are being taken to lessen or avoid the impacts on endangered species.

However MacDuffee argues there are no measures that can be taken to lessen the impacts of a seven-fold increase in tanker traffic in the habitat of the southern resident population.

“Oil spills and ship strikes are probabilities…noise is a certainty. Noise is the product of moving tankers — it’s inherent in moving tankers through the Salish Sea.”

Raincoast modelling found that the increase in tanker traffic would mean a “near-continuous presence” of vessel traffic in the whale’s habitat.

“They’ll be in the presence of a vessel — everything from a large ship to small whale watching vessels — more than 90 per cent of the time,” MacDuffee said.

“There are no scenarios under existing technology where Trans Mountain goes ahead where we hope to recover killer whales.”

She added Canada’s Species At Risk Act has all but been ignored in this case.

“We would argue that the Species At Risk Act deems that if you can’t mitigate then your project can’t go ahead.”

Facing down current threats

Just days after the Federal Court of Appeals ruling, Ecojustice launched a new court challenge in an attempt to force emergency measures from Canada’s ministers responsible for the southern resident killer whale population — Environment and Climate Change Minister Catherine McKenna and Fisheries and Oceans Minister Jonathan Wilkinson.

“Under the Species At Risk Act if a species is found to be facing an imminent threat there’s an automatic trigger — it’s mandatory the ministers must act,” Megan Leslie, executive director of WWF Canada, litigant in the new case, told The Narwhal.

Additional applicants in the case are Raincoast, the David Suzuki Foundation, the U.S.-based Natural Resources Defense Council and the Georgia Strait Alliance.

There is no disagreement between government and the scientific and conservation community that this population is facing an imminent threat, Leslie said.

In early 2018 the groups filed a petition with the federal government, asking for an emergency order to protect the whales.

Since then, the federal government has introduced new measures aimed at protecting the species. But the efforts — including announcing the Oceans’ Protection Plan, small fisheries closures and identifying new critical habitat protections — have been roundly criticized as inadequate.

“Most of what we’ve seen has been announcements around funding and research,” Tuytel said. “Very little has been concrete, enforceable and timely.”

A new rule to keep whale watching vessels 200 metres from the endangered population took 10 years to implement, Tuytel said.

In the court’s decision on the Trans Mountain review, Ottawa’s proposed action plan for the southern resident population and the Oceans’ Protection Plan were called “inchoate initiatives” that by themselves are “insufficient” in the face of the project’s inadequate review.

“If the government was serious there would be a Chinook fishery closure,” Leslie said. “We don’t see government taking that legislation seriously or helping these whales in a timely and critical manner.”

“This didn’t happen this weekend. This didn’t happen this summer. These whales were listed under the Species At Risk Act in 2003,” she said.