The Canadian government is downgrading the protection of humpback whales off the coast of B.C. under the Species at Risk Act, following a recommendation from biologists in 2011.

But environmental groups are concerned that the move is being made as the government readies for a decision on the approval of the Northern Gateway pipeline, which would feed oil onto a tanker shipping route that overlaps with what they describe as "critical habitat" for the whale.

Environment  Minister Leona Aglukkaq, with advice from Fisheries Minister Gail Shea, is recommending that the Northern Pacific population of humpback whales be downgraded from "threatened" to "species of special concern." The recommendation for the change to the Species at Risk Act was published in the Canada Gazette Saturday. 

The government is accepting responses to the recommendation for 30 days following publication. After that, the change would go into effect immediately once approved by the Governor-in-Council.

"The species population is trending up...and we're changing the law to reflect that," Trevor Swerdfager, an assistant deputy minister with Fisheries and Oceans Canada, told CBC News.

The change in the whale's status would mean:

  • There would no longer be a requirement to protect the whale's critical habitat.
  • Other "general prohibitions" under the act would no longer apply.

That means that the downgrade "could result in small benefits to industry in the form of cost savings," said a statement supporting the government recommendation. 

The government noted that the whale population has increased "significantly" since it was first listed as threatened in 2005. It added that a 2011 assessment by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) showed the whale's population growth rates have also increased to the point where it can be reclassified as a species of special concern. COSEWIC is an independent scientific body designated to determine the level of threat to a species and its classification under the Species at Risk Act.

Whale downgrade good news: UBC biologist

Andrew Trites, research director at the University of British Columbia’s North Pacific Universities Marine Mammal Research Consortium and a member of the COSEWIC committee that studied the whales, noted that the recommendation to downgrade the whale was originally made by biologists.

“This is actually a good news story,” Trites told CBC “We’re seeing more humpback whales in B.C. than we’ve ever seen before.”

  • AUDIO | UofT Prof. Andrea Olive says whale downgrade means government has less responsibility to protect ocean habitat

Trites said about 2,200 humpback whales spend their summers in B.C. and the whale population is increasing at about four per cent each year, which he called “phenomenally fast.”

But Karen Wristen, executive director of the environmental group Living Oceans Society, said that while the population of whales has increased since they were protected from hunting, it's not clear how current populations compare to population levels before hunting began.

Oil tanker concerns

Environmental groups are concerned that losing "threatened" status could put the whales at risk because the government would no longer have to designate critical habitat for the whale's recovery.

Currently, Wristen said, that designated critical habitat includes areas near Kitimat, B.C. – the proposed western end of the Northern Gateway pipeline – where the whales feed and rear their young in the spring and summer.

If the pipeline goes ahead, those areas are expected to be a major corridor for oil tanker traffic.

"Ships were one of the specific things that were mentioned by …scientists as being a very high hazard to the whales for their recovery," Wristen said. "The danger is of course that the ships will strike them physically and kill them."

Scientists involved in the recovery strategy for the whales also cited the potential for the whales to be harmed by toxic oil spills.

There are also concerns, Wristen added, that noise generated by ships would disrupt the whales' feeding and their ability to care for their young.

"Without the habitat, they can't be expected to thrive," she said.

The change in the whale's status could potentially remove one of the hurdles in the way of approval for the Northern Gateway pipeline.

In January, the Living Oceans Society, along with Ecojustice, ForestEthics Advocacy, and the Raincoast Conservation Foundation, launched a lawsuit attempting to block cabinet approval of the pipeline. They argued that the report being used as the basis for approval was flawed, in part because it failed to consider protections for the humpback whale required for a "threatened" species under the Species At Risk Act. Those protections will soon no longer apply.

The federal government is expected to decide before the end of June whether to approve or reject the proposed pipeline. A report of a joint review panel recommended in December that the government approve the project subject to 209 conditions.

'A political move'

Wristen suggested the decision to downgrade the whale's protection at this time "has absolutely no basis in science and is simply a political move to clear the way to approve the pipeline."

But Trites says COSEWIC's recommendation to downgrade the Pacific humpback whale was based on research by leading experts on marine mammals across the country, including himself, which showed a growing population that was currently facing no obvious threats.

He acknowledged that the amount of time the government takes to change a species' status under the Species at Risk Act following COSEWIC's recommendation is highly variable, and it doesn't always accept the recommendations as it may consider other factors.

"You know, the timing may be political, and the decision to accept this one and maybe not something else may be political," he said, "but it was the recommendation of biologists."

Trites acknowledged that there may be threats to B.C.’s whales in the future, including collisions between whales and oil tankers, but hypothetical threats can't be considered during COSEWIC's assessments because nothing can be done to mitigate them.

“We can only change things that are real."

He added that because the whale wasn't delisted completely and is still a species of special concern, its population will be monitored and reassessed regularly.

Under the whale's new status, the government still needs to come up with a management plan for the whale, including conservation measures, within three years of the change in classification. The population and distribution of the whale would still need to be monitored, and reports would have to be issued every five years.

Following the release of COSEWIC's report and recommendation to downgrade the Pacific humpback whale in 2011, the government held consultations in 2011 on the proposed change. At that time, it noted, a majority of responses were against changing the whale's classification. Fisheries and Oceans responded to concerns by saying that the resulting reduction of protection wasn't expected to affect the whale's population growth rates, and that the Fisheries Act and Marine Mammal Regulations would continue to apply.

The government noted that the whales continue to receive protection within the 3,400 square kilometres of Gwaii Haanas National Marine Conservation Area Reserve, which has been identified as "a primary feeding habitat" for the whale in the waters off the west coast of Canada.