Over 3000 whales and dolphins suffer in aquarium “whale jails” throughout the world, despite years of marches, letters and petitions for their release to ocean sanctuaries. Canada imprisons about 60 belugas and dolphins at the Vancouver Aquarium and Marineland in Niagara Falls. Celebrities and animal welfare foundations alike have struggled to get them freed … without success. In BC the group behind Orca Awareness Month continues the fight.
June was proclaimed Orca Month in BC by the Lieutenant-Governor in 2016. OrcaMonthBC speaks for wild orca pods and also promotes freeing of captives seized from local waters, such as Lolita-Tokitae and Corky, imprisoned at Miami Seaquarium and SeaWorld respectively.
Lolita-Tokitae was captured as a juvenile off the coast of Washington 52 years ago. She circles alone in the world’s smallest whale tank (although in nature her kind swims a hundred miles a day), under a blazing sun with no depth to dive into, no joy, no escape from depression. Has she given up? Have her champions given up the fight for her?
Letters begging for her release, from the public and celebrity figures alike, have been ignored by the Seaquarium which refuses to budge from its attitude that it “owns” this orca, that she is mere property.
The Nonhuman Rights Project has challenged in American courts the notion of animals as property, using the habeas corpus principle (the right of plaintiff to be present in court as a legal “person”, not “thing”). In legal suits for chimpanzees and elephants, NhR Project has persuaded judges in New York to hear arguments for the rights of cognitively advanced, self-aware, emotionally sensitive mammals suffering physical and mental harm due to imprisonment.
This is progress, but it hasn’t yet helped Tokitae, Corky, and Kiska (at Marineland). Nor does existing American or Canadian legislation. PETA, Animal Legal Defense Fund and the Orca Network tried to use America’s Endangered Species Act to get Tokitae released from the Seaquarium, but an appeals court declared that her treatment, although acknowledging that she’s in “the world’s smallest orca tank … displayed with incompatible species, without adequate protection from the sun, and without companions of her own kind”, did not cause “serious” harm.
Canada has acknowledged no rights of person-hood for animals, and doesn’t even follow its own Species At Risk Act, which since 2001 has obliged the Government to take emergency action to save the southern resident orcas from extinction. Cabinet has decided only to “advance feasibility work within sub-areas of critical habitat” — in other words, no progress.
Canada did in June 2019 pass the Ending Captivity of Whales and Dolphins Act, which banned capture of wild cetaceans, captive breeding and import and export — with exceptions. The wider goal is to phase out whale and dolphin captivity entirely and to free the victims to ocean sanctuaries, not to other aquariums and their endless breeding programs, but that goal has yet to be reached.
Other countries have outlawed whale captivity. France in 2018 announced it’s banning marine parks—including Marineland Antibes—from breeding or acquiring new whales and dolphins, and it intends to transition cetaceans to seaside sanctuaries within the next two years. Canada has a long way to go. Lawyers and strategists at West Coast Environmental Law (wcel.org) point out that as well as a legal definition of animal person-hood, we need a legal definition of sanctuary (“place of refuge or protection”) because once an orca is released from whale-jail, a natural ocean sanctuary is where s/he would go. WCEL stipulates need for a transboundary protected area covering the species’ critical habitat, and a governance board empowered to act on behalf of the SRKWs and enforce their rights.
There’s a precedent for this thinking. The ten-point Declaration of Rights for Cetaceans: Whales and Dolphins was created by a group of whale scientists meeting in Helsinki in 2010, and recognizes the rights of whales to live, and live in their own habitat.
That’s what the www.whalesanctuaryproject.org is working on. This American-based organization has purchased marine property at Port Hilford in Nova Scotia which it’s readying for cetaceans rescued from aquarium captivity. The trick is in the rescue part, given lack of law which criminalizes the captivity industry. Orcas need to be returned to native waters, and for BC’s Corky, a 40-acre inlet, “Double Bay Sanctuary” has been purchased on the west coast by Paul Spong and partners at OrcaLab.
For Tokitae, the Lummi tribe of Washington State (who call Tokitae their relative) proposes a sanctuary in the American Gulf Islands, across Haro Strait. They have tried to use the Native American Graves Protection and Repatriation Act (NAGPRA) to bring her home, and they marched across country from Washington to Florida only to be ignored by the Seaquarium. They will only succeed in getting Tokitae home when the law makes her imprisonment a crime.
In Canada, Animal Justice (www.animaljustice.ca) leads the legal fight for animals. It shared the grim news that despite the ban on import and export, Marineland sold five belugas to Connecticut-based Mystic Aquarium for “scientific research”. Only through documents made public by American regulators did Canadians learn that the facility plans to use the animals for breeding.
Fisheries and Oceans Canada (https://www.dfo-mpo.gc.ca/) held a 90-day online public consultation about cetacean captivity between August and November 2020, after which the Minister reported that “the results were used to clarify and complete the policies where relevant and/or possible”: “we have strengthened the final policies to ensure that animal well-being is the priority … (placing) … animal welfare at the forefront by … adding greater specificities in addressing the best interest of the cetacean … (and) expanding facility accreditation to increase the ability for animal sanctuaries to apply …” Does this “clarify and complete” anything for the average orca-defender, and the two-to-one Canadians who believe orcas should not be kept in captivity?
It’s time for more lawyers in Canada to follow Nonhuman Rights Project’s lead lawyer Steven Wise in the campaign for person-hood for cetaceans (as for elephants and chimpanzees) suffering cruel captivity — time to get behind their efforts for OUR orcas (natives of the Salish Sea between our two countries).
Animal Justice has published a list of MPs who supported Canada’s 2019 Ban on Whale Captivity: Animal Justice – Parliament Passes Historic Ban on Whale & Dolphin Captivity. Citizens who want to see legal reforms for the non-human residents who live alongside us might contact them, and might also keep in mind the role of the Minister of Justice.
The totally unnecessary industry of captive orca torture will end only through new federal and international legislation (the world needs an UNDROC – a UN Declaration on the Rights of Cetaceans) and that will happen for Canadian orcas only when policy makers conclude that citizens think Black and White Lives Matter.
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Sandra Barbara Julian is a member of the OrcaMonthBC team which works for BC’s wild and captive west coast killer whales.