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Dyna Tuytel talks about Ecojustice, Alexandra Morton, the Species at Risk Act and the National Energy Board

The Kinder Morgan pipeline expansion could wipe out the Southern Resident Orcas. The orca’s unofficial lawyer, Dyna Tuytel from Ecojustice (@ecojustice_ca), is challenging their plans in court.

“I feel like I’m fighting on my client’s behalf, but that we are all fighting on the Orcas’ behalf."  

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The Killer Whale Who Changed the World…

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Show Notes:

  • Tuytel talks about the first time she saw a whale. [03:42]
  • Raincoast and the Living Oceans Society. [06:22]
  • Why whales need legal representation. [7:14]
  • A walkthrough to the National Energy Board report challenge and issues with the NEB report. [7:37]
  • How to apply the Species at Risk Act (not treating the tankers as part of the project). [10:06]
  • Significant adverse effects.” [15:28]
  • Population viability analysis concludes 50% chance of extinction for Orcas with this project. [17:09]
  • What happens next? [18:00]
  • How the Species at Risk act is being used to set precedent, and EcoJustice’s main arguments. [19:17]
  • Defining “critical habitat.” [20:53]
  • A brief chat about giving Orcas the standing of personhood. [21:44]
  • “We’re all fighting on the orcas’ behalf.” [22:43]
  • Changes since 2012. [25:25]
  • About Ecojustice, and what it’s like to be an Ecojustice lawyer in Calgary. [28:53]
  • Court cases in progress, including the case for Alexandra Morton. [30:40]
  • The slow pace of government. [33:58]
  • Species deserve protection and matter in and of themselves. [35:41]
  • Salmon availability,  risk of oil spills, don’t downplay the additive effects. [37:41]
  • Dyna’s suggestions for protecting the whales. [39:53]
  • And much more…

Significant quotes:

“They modelled the effects of decreased salmon prey, they modelled the effects of noise, they modelled the effects of oil spills and potential collisions with ships, individually and together, and the result of this modelling was a conclusion that with the project they have a greater than fifty percent chance of being effectively extinct this century. Which is pretty stark.” [17:26]

“Ecojustice is a national environmental organization, so we have offices in Vancouver, Calgary, Toronto and Ottawa, and our mandate is to use the law to protect and restore the environment, mostly through litigation.  And we try to prioritize cases where we can set a precedent, so one case can have a broader impact beyond the specific facts of that case.” [29:31]

“Of course the tankers should have been considered, and of course the species at risk act should have been applied,  because there’s no practical way that the shipping isn’t part of the project.” 24:11

“People will flock to the side of the ferry to see the whales, and get so excited and go on whale watching tours, and clearly love this species, but maybe don’t know how few of them there are, or how much they depend on this specific area that they live in, or just how unique they are.   The fact that they have their own language and culture, and don’t interbreed with other killer whales, and that there are different types of killer whales.   I think that that information really galvanizes people to care about the whales and to take action.” 24:26

“I feel like I’m fighting on my client’s behalf, but that we are all fighting on the Orcas’ behalf.   Everyone is so committed to protecting this amazing species.  I would describe us as a team that is working for the Orcas.” [22:43]

“The start of the problem is that when the NEB reviewed the project, they separated out the pipeline and the marine terminal from the ships.  So they’ve defined the project as ending at Westridge marine terminal, and shipping being related to the project, but not part of it.   And so what that approach means, is that under the environmental assessment act, the environmental assessment is only of the pipeline and the marine terminal, and the tankers were considered and reviewed but only under the more general provisions of the National Energy Board Act, where they consider the public interest broadly speaking and weigh the pros and cons.” [09:30]  

“So by not considering the tankers as part of the project, and not subjecting them to the same environmental assessment the NEB has said that the species at risk requirements that are triggered by an environmental assessment don’t apply to its review of the tankers.   So there’s a key provision of the Species at Risk act, that’s triggered by an environmental assessment, that says that when a project is under review you have to ensure that there are measures to avoid or lessen the impacts on endangered species.  So by treating the ships as separate from the environmental assessment and separate from the project, they’ve said that this provision of the species at risk act does not apply in this case.” [10:17]

“The whales themselves can not get standing, but my clients can get public interest standing to represent the interests of the whales, and the environment.” [07:30]

“I think the risk of oil spills has somehow been downplayed throughout the review process and since. And just the fact that even in the official DFO recovery strategy it says clearly that an oil spill would be potentially catastrophic for this population is something that doesn’t get talked about very much.  And I think there’s also a tendency to downplay the additive effect of this project.  Sort of saying “oh, it will only be such and such percentage of shipping traffic in the area” or something, whereas it’s really important to keep in mind that the threats facing them, everything is already too bad.  We need to stop adding new threats, and we also need to mitigate existing threats.” [38:03]

The NEB and how to contact them

Reports mentioned

Related news

Contact the political parties


Support Ecojustice & Their Clients







The Living Oceans Society

Raincoast Conservation Foundation

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Dyna Tuytel talks about Ecojustice, Alexandra Morton, the Species at Risk Act and the National Energy Board