Advocates worried Trans Mountain was a threat to orcas. It was the other way around

Click to play video: 'Whales the big winner in court battle over pipeline'
Whales the big winner in court battle over pipeline
Linda Aylesworth explains how conservationists' fight for the future of B.C.'s whales played a big part in the Federal Court of Appeal's decision to overturn Ottawa's approval of the Trans Mountain Pipeline expansion – Aug 30, 2018

For many orca advocates, the Trans Mountain pipeline was a looming threat to the endangered local population. On Thursday, it turned out the whales were the threat to the pipeline.

There are just 75 southern resident killer whales left in the Salish Sea, enough to earn them protected status — along with serious concern from scientists and conservationists.

Orcas use echolocation, a sort of sonar, to communicate and hunt prey, a method scientists worry is being overwhelmed by growing noise from marine traffic.

READ MORE: Marathon of mourning ends for mother orca, seen without dead calf for first time in weeks

So the prospect of a project-related increase in tanker traffic through the Port of Vancouver, from five to 34 large vessels per month, had advocates on edge.

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“We’re relieved, and maybe a little bit surprised, but when you look at the law, it shouldn’t have been surprising at all,” said Misty MacDuffee with the Raincoast Conservation Foundation.

READ MORE: ‘Trudeau government failed in its rhetoric’: First Nations groups react to Trans Mountain ruling

The Trans Mountain Pipeline expansion’s federal approval was quashed by a three-judge panel at the Federal Court of Appeal, which ruled, in part, that the National Energy Board (NEB) had failed to consider the effects of project-related marine shipping when approving it.

The court went further, to specifically — and repeatedly — single out the potential impact on killer whales.

WATCH: New regulations to protect resident orcas

Click to play video: 'New regulations to protect resident orcas'
New regulations to protect resident orcas
“Its report failed to address marine impacts, failed to address impacts on southern resident killer whales [to] and meet the standards of the Species At Risk Act,” said Ecojustice lawyer Dyna Tuytel.
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Indeed, the court ruled that both the federal government and the NEB were well aware of the potential impacts to the region’s struggling orca population.

“The Governor in Council was also fully aware of the effects of Project-related marine shipping identified by the Board and that the operation of Project-related vessels is likely to result in significant adverse effects upon both the Southern resident killer whale and Indigenous cultural uses of this endangered species,” states the ruling.

READ MORE: Sick orca J50 gets live fish delivery in experimental attempt to save her

The judgment went on to highlight that the NEB accepted both that vessel noise was a key factor in depleting local populations, and that an oil spill would be “potentially catastrophic.”

“What the court has said is that the National Energy Board took the approach that its responsibility ended when tankers left the dock,” said Tuytel.

“So it only considered the project as far as the marine terminal.”

In the wake of the ruling, it appears it’s back to the drawing board for the expansion’s proponents, at least as far as the marine aspect goes.

READ MORE: Spill equipment, orca study among newly unveiled details of Oceans Protection Plan

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MacDuffee said with the existing NEB permits essentially “torn up,” Trans Mountain would now have to do a project-related assessment of consequences and risks on southern resident orcas.

“[The court] said we have these laws, they’re there for a reason, they’re there to protect species that are going extinct,” she said.

“And that’s what the courts did, is uphold that.”

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