We are not what we might be; what we are Outlaws all extrapolation Beyond the interval of now and here: White whales are gone with the white ocean.” ~ Sylvia Plath

Table of contents Introduction 3 Status 4 Critical habitat 4 Factors limiting recovery 6 Ship traffic 6 Oil spills 6 Physical and acoustic disturbance 7 Climate change 7 Chemical dispersants 8 Conclusion 9 Endnotes 10

2 Humpbacks thrive on the zooplankton and small schooling fish that are most abundant in the North Coast’s cold, productive inlets. Humpbacks were hunted to the brink of extinction until they were granted protection in 1966.

marty weinstein

Introduction

hipping has never been good news for whales. It is ironic that it is whale oil’s replacement, fossil fuel oil, that poses the most direct threat today to the recovery of Pacific whale Spopulations. This report examines some of the major threats to whale recovery posed by plans to ship diluted bitumen from two terminals on the coast. One of those plans, the Enbridge Northern Gateway pipeline and tanker project proposed for on the Central Coast, awaits a decision of the federal cabinet in 2013. The other, Kinder Morgan’s TransMountain project proposed to terminate in Burrard Inlet (Metro ), will enter the review process in the same month. Final decisions on both projects could be made before March 2015. This report is not intended to be a comprehensive review of the factors that limit the recovery of whale populations. Whaling, while severely restricted by international agreement, continues to pose recovery challenges for some species; the toxic effects of plastic marine debris and other marine pollution are well documented. Some fishing practices affect the abundance of food, while entanglement in lost or abandoned fishing gear is responsible for a number of whale deaths each year. The impacts of all of these factors should be taken into account in assessing the additional burden that the Canadian government is proposing to impose on whale recovery, by opening the Pacific coast to oil tanker traffic.

3 Status Under Canada’s Species at Risk Act, wildlife populations are assessed periodically to determine their viability. Species are recommended for listing by the Committee on the Status of Endan- gered Wildlife in Canada. Listings that may be made by the committee are: data deficient; not at risk; special concern; threatened; endangered; extirpated and extinct. Six species of whales living on the B.C. coast are listed. The blue, Sei, North Pacific right and southern resident killer whales are endangered, meaning they face “immanent extirpation or extinction.” Humpback and fin whales are threatened, meaning that they are likely to become endangered if factors limiting their recovery are not reversed. Once a species is listed as threatened or endangered, the government must make plans to support its recovery. But the government has been extremely slow to move on action plans, largely because the plans must include protection of the “critical habitat” the whales need to thrive. Two lawsuits have been brought to force the federal government to move forward with recovery plans for whales on the B.C. coast: In October 2008, Ecojustice represented six environmental groups seeking protection for killer whales; in 2012, they brought action with respect to humpbacks. The actions established that the government is obliged to protect critical habitat for threatened and endangered species. Critical habitat Despite the fact that they have been listed since 2002-2006, there has been no designa- tion of critical habitat for the blue, fin, Sei or North Pacific right whales. Data gaps were initially cited as the reason for this. Those gaps may have been partly filled; a 2012 Can- adian Science Advisory Secretariat research document appears to address the issue but it has not been published.1 The research is cited in a “draft, partial action plan”, but the plan defers identification of critical habitat to a future, unspecified date. These whales are known to range widely throughout the Pacific Ocean; they have been sighted in Canadian coastal and offshore areas. These are all baleen whales, foraging on zooplankton and small, schooling fish. They use Canadian waters primarily for feeding, frequenting areas where upwelling concentrates vast quantities of food. With no plan in place to protect their food sources, the recovery efforts for these whales are limited.2 The federal government has designated critical recovery habitat for southern resident killer whales and humpbacks. Once critical habitat has been designated it is supposed to be protected from the major threats identified in the recovery plans for the species at risk. For example, the critical habitat for the southern resident killer whales has been protected3 from acoustic disturb- ances that could interfere with the whales’ ability to communicate and hunt. Critical habitat for humpbacks was clearly identified by scientists at least as far back as 20094, by the Canadian Science Advisory Secretariat. At a meeting to review the draft science advice in January 2009, it was “clear that there are predictable, seasonal aggregations of humpback whales in B.C. and four areas were identified as candidates for Critical Habitat designation.”5 After further analysis of the four candidate areas, the group met again in September 2009 with the stated intention of finalizing a map delineating critical habitat. Remarkably, members of the recovery team present at that meeting objected to the science team mapping critical habitat and had the item struck from the agenda. They claimed that the responsibility to designate “critical habitat” belonged to them, while the science team should confine itself to identifying, “habitats essential for the survival or recovery” of the whales.6 It is not possible to say whether the objections taken to the identification of “critical habitat”

4 Gingolx (Kincolith)

Whale Critical Habitat: DFO 2013, Recovery Prince Rupert Strategy for the North Pacific humpback whale (Megaptera novaeangliae) in Masset Kitimat Canada. DFO 2008. Recovery Strategy for Haida the Northern and Southern killer whales Gwaii Douglas Channel (Orcinus orca) in Canada. Exclusion Zone: BC Ministry of Energy, Mines and Hartley Resources. Bathymetry: DFO Mapping: Queen Charlotte Bay Living Oceans Society, November, 2013

Klemtu Bella Coola

Bella Bella

British Columbia Port Hardy Sointula

Vancouver Island Campbell River

Vancouver Tofino Designated Tanker Routes Critical Habitat Enbridge Humpback (Proposed) Barkley Sound (2013) Kinder Morgan / Victoria Great Circle Route Killer Whale Tanker Exclusion (2008) Zone Boundary USA km 0 60 120 180 240 at this juncture were motivated by anything other than concern for scientific accuracy. However, a draft map of the areas under consideration was pulled from the government’s website and four more years would pass before the recovery plan was completed and the habitat designated. Meanwhile, the Enbridge Northern Gateway pipeline proposal was finally proceeding to review by the National Energy Board and Canadian Environmental Review Agency. The Joint Review Panel Agreement and terms of reference for the project would not be finalized until December 2009, but the proposed tanker routes had been public since 2006. The tankers would travel directly through the area that humpbacks have used as feeding grounds for as long as history records. Campania Sound, Squally, Ursula and Whale Channels are located at the entrance to Douglas Channel, on the way to Kitimat. Critical habitat for humpbacks was not designated until October 2013. This spared the Joint Review Panel—which had closed the evidentiary portion of its hearings—the task of considering whether the Species at Risk Act habitat protection requirements could be met. The situation will be different in the upcoming Kinder Morgan TransMountain pipeline application, which proposes to run tankers through the identified critical habitat of killer whales.

5 Factors limiting recovery Some of the factors limiting the recovery of all Pacific whales are inconsistent with permitting oil tankers to transit their critical habitat. Recovery plans for endangered or threatened species must set out what factors constitute threats to the species or are expected to limit their recov- ery. Orders for the management of the area identified as critical habitat can then be crafted to eliminate or mitigate those threats. Ship traffic Ship traffic is identified as one of the main threats to humpbacks, which are the whales most frequently reported to be involved in B.C. ship-strike incidents.7 Fin and blue whales, which frequent continental shelf-break areas where shipping lanes are often located, are most commonly reported in ship-strike incidents globally. It is interesting to note that, in the recovery strategy for blue, fin and Sei whales published in 2006, there is considerably more detail on the nature and outcomes from this risk than is found in the humpback recovery strategy published in 2013. The earlier document explains that large ships moving at 14 knots or more pose the greatest risk of mortality and that overall mortality rates associated with ship strikes is in the range of 70-80 percent.8 The oil tankers proposed for Kitimat are larger than the biggest vessels currently calling at Canada’s Pacific ports and they routinely travel at 16 knots. At a 2008 work- shop to discuss technology available to minimize vessel strikes on large whales, the Adding 400 supertanker trips each year in the U.S. National Marine Fisheries Service reported, “no technology exists, or is expected narrow confines of Douglas Channel poses an to be developed in the foreseeable future, that could completely ameliorate … ship unacceptable risk of death or injury from vessel strikes of large whales.” The report notes that existing detection devices are of limited strikes and noise pollution. utility and costly; and that “[r]educing the co-occurrence of whales and vessels is likely the only sure means of reducing ship strikes.”9 Oil spills Killer whales were directly exposed to oil pollution during the 1989 Exxon Valdez tanker spill. Of the 36 Resident (fish-eating) killer whales in one pod that was photographed surfacing within the oil spill, 14 disappeared in 1989 and 1990. These animals are presumed to have died as a result of inhaling oil fumes and/or eating contaminated fish. Twenty-five years later, this pod has still not recovered to its pre-spill numbers. A pod of transient (mammal-eating) whales numbering 22 individuals was also decimated, losing 15 animals directly after the spill. Because many of the deaths were of young female or juvenile whales, the resident pod’s recovery rate has been exceptionally slow and the transient pod is not recovering and is expected to become extinct.10 Canada’s killer whale recovery strategy notes that oil spills pose a “catastrophic” risk to the recovery of resident orcas and proposes reducing the introduction of such pollutants into their environment.11 The humpback recovery strategy cites a lack of evidence of direct impacts from oil spills on the whales themselves but notes that herring, a key prey species, was severely impacted in the Exxon Valdez oil spill and it could therefore be expected that an oil spill in or near feeding grounds would have a negative impact on humpback recovery.12 Catastrophic spills such as the Exxon Valdez are fortunately rare events, yet their impacts linger. TheExxon Valdez Oil Spill Trustee Council’s research program shocked the world when it disclosed that oil remaining on beaches continued to be toxic after 20 years of weathering— polycyclic aromatic hydrocarbons (PAH) had been expected to dissipate but in fact showed no change from their original spill state. It is currently estimated that it will take several more decades, perhaps centuries, for the remaining oil to degrade. In the meantime, it is a source of continuing exposure to toxic PAHs for the food web in Prince William Sound.13 The daily operation of an oil port and associated vessels results in routine, small spills14 that can, over time, create chronic oil exposure effects in plankton, shellfish and other forage for whales.15

6 Physical and acoustic disturbance The humpback recovery strategy stresses their particular sensitivity to the noise that would be generated by oil tankers in the narrow fjords and channels of their critical habitat, observing that these whales’ strong aversion to underwater noise may cause them to abandon foraging.16 The killer whale recovery strategy notes that these whales are also sensitive to noise generated by shipping, which may interfere with their ability to communicate with one another and forage effectively.17 The baleen whales’ hearing extends through a range of as low as 10 to up to 30 Hertz, making anthropogenic noise from a variety of sources, including shipping, a particular problem for their communication.18 All of the recovery strategies identify the noise of ships’ en- gines as one of the factors limiting recovery and needing to be controlled within critical habitats.

Douglas Channel is critical recovery habitat for North Pacific humpbacks who return to this vital feeding area year after year. Turning this relatively quiet stretch of water into a supertanker highway would negatively impact the humpback pop- ulation’s slow recovery.

doug emery

Climate change Baleen whales survive by gulping or skimming vast quantities of zooplankton and small fish. Some of them demonstrate a strong preference for feeding in certain areas year after year, suggesting that their ability to find new feeding grounds may be limited. Changes in prey abundance in their preferred areas will accordingly have a negative impact on their recovery.19 Several factors associated with climate change are identified as threats to the recovery of blue, fin and Sei whales: increasing ocean temperature and acidification influence the abundance and location of zooplankton, in particular. Significant decreases in the zooplankton population off the California coast have been linked to rising temperatures20, while acidification interferes with the ability of crustaceans to form shells. Thus, the impacts of the oil industry on whales extend beyond the end use of the product.

7 Chemical dispersants Chemical dispersants have not been used on a spill in Canada and no reference to them was made in any of the science advice or recovery strategies written to date. However, in the recently released report of an expert panel commissioned to enquire into tanker safety, a recommendation for their use is included. The impact of dispersants on humans and wildlife has become a subject of great controversy, with several lawsuits having been brought as a result of their use in the Deepwater Horizon well blowout. We have accordingly included a consideration of the potential for additional threats to whale recovery posed by the use of dispersants for oil spill response.

sandy buckley

The term ‘dispersant’ covers a wide range of chemicals intended to deal with oil spills on water, whether by dissolving the oil or by causing it to gel, sink or move in an intended direc- tion. Some, such as the sinking agents, are illegal in Canada as they are known to smother life on the ocean floor and prolong the natural breakdown of the oil.21 These various dispersants are so different from one another that it is difficult to generalize about them, or about their toxic impacts in the environment. The following information is accordingly specific to the use of chemicals designed to break up oil into invisible particles and cause it to mix into the water column. This is the type of dispersant that was used in theExxon Valdez and Deepwater Horizon response efforts. The first point to note is the paucity and poor quality of the data available. Tests for toxicity have historically been done on the dispersant alone, rather than in a mixture with the oil it is intended to treat. Only a few types of tests have been used and these do not assist in predicting impacts on a complex ecosystem such as the ocean. Some studies comparing the effects of dis- persants alone, dispersed oil and oil alone have found that dispersant alone or in mixture with oil is several orders of magnitude more toxic to some biota than the untreated oil.22

8 By far the most important toxins in the oil/dispersant mixture are the polycyclic aromatic hydrocarbons (PAHs). These are acutely lethal to zooplankton in fresh water, leading to long- term changes in the composition of the plankton community.23 A study published by the Exxon Valdez Oil Spill Trustee Council in 2001 found both pink salmon and herring to be exception- ally vulnerable to PAH from weathered oil remaining from the spill at extremely low, chronic doses of 1 ppb and less—resulting in increased mortality of eggs, deformities in fry and lowered survival to adulthood.24 The study referred to above revolutionized the scientific understanding of the toxicity and bioavailability of weathered oil. A subsequent study proved that the addition of dispersants to oil substantially increased the dissolved and bioavailable proportion of high molecular weight PAHs in marine waters. These are the particular PAHs found to be responsible for long-term genetic damage.25 It appears that, regardless of the absence of evidence of direct impacts of dispersants on the survival or long-term health of the whales themselves, impacts on fish and zooplankton are enhanced by the use of dispersants. If the whales’ food sources are contaminated or their populations reduced, recovery could be impaired.

Conclusion The requirements of theSpecies at Risk Act, to manage critical habitat of endangered and threatened whales so as to minimize the factors limiting their recovery, stand in stark opposition to the federal government’s stated intention to permit oil tankers to traverse critical habitats. Mitigation measures cannot be crafted to deal with the threats of acoustic and physical disturbance, ship strikes, oil spills or climate change. The only course of action identified in all of this research that would protect these whales is to prevent additional vessel traffic in their critical habitats. This would mean that neither the Enbridge Northern Gateway nor the Kinder Morgan Trans- Mountain pipeline and tanker projects could proceed. Recent indications from the federal government suggest that the whales will lose this battle. In approving an application from Royal Dutch Shell for its Jackpine tarsands expansion in December 2013, the Environment Minister quoted “cabinet”, saying that the ”significant adverse effects of the project” were ”justified in the circumstances.” The review panel for that project had advised: “[T]hat the project would likely have significant adverse environmental effects on wetlands, traditional plant potential areas, wetland-reliant species at risk, migratory birds that are wetland-reliant or species at risk, and biodiversity...There is also a lack of proposed mitigation measures that have been proven to be effective.”

This represents a new kind of environmental assessment decision. It used to be that a pro- ject did not proceed if it had significant adverse effects that could not be mitigated. Now, the federal cabinet has the power to decide if a project’s harmful effects are “justified in the circum- stances.” Cabinet is not required to explain itself, hence its pipeline decisions may be political or ideological rather than scientific. If the justification is “we need more money for health care and education”, then the answer is not shipping raw bitumen out of the country as fast as we can. This is not the only way—and certainly not the best way—to develop the tarsands. The federal government should be looking for ways to add value to raw bitumen in Canada that would create more money for more Canadians for many years to come. Slowing tarsands development and using the wealth generated to develop renewable energy technology would afford Canada an economic transition strategy. It would help us move toward an economy that is not overheating and destabilizing the planet.

9 Endnotes 1. Nichol, L.M. and J.K.B. Ford. 2012. Information relevant to the assessment of critical habitat for Blue, Fin, Sei and North Pacific Right Whales in British Columbia. Canadian Science Advisory Secreteriat Research Document 2011/137. Ottawa: Department of Fisheries and Oceans 2. Fisheries and Oceans Canada. 2013. Partial Action Plan for Blue, Fine, Sei and North Pacific Right Whales (Balaenoptera musculus, B. physalus, B. borealis and Eubalaena japonica) in Pacific Canadian Waters. Species at Risk Act Action Plan Series. Fisheries and Oceans Canada, Ottawa. pp. 1-2, 15. 3. Critical habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer whale (orcinus Orca) Order, SOR 2009-1968 4. Nichol, L.M., R. Abernethy, L. Flostrand, T.S. Lee and J.K.B. Ford. 2010. Information relevant for the identification of Critical Habitats of North Pacific Humpback Whales (Megaptera novaeangliae) in British Columbia. DFO Can. Sci. Advis. Sec. Res. Doc. 2009/116 iv + 40p. 5. Ibid, p. 1 6. Ibid, p. 1 7. Ibid, p. 16; Williams, R. and O’Hara, P., Modelling ship strike risk to Fin, Humpback and Killer whales in British Columbia, Canada. J. Cetacean Res. Manage., 14 Dec., 2009 p 5 and 8; Fisheries and Oceans Canada. 2013. Recovery Strategy for the North Pacific Hump- back Whale (Megaptera novaeangliae) in Canada. Species at Risk Act Recovery Strategy Series. Fisheries and Oceans Canada, Ottawa. P. 16 8. Gregr, E.J., J. Calambokidis, L. Convey, J.K.B. Ford, R.I. Perry, L. Spaven, M. Zacharias. 2005. Proposed Recovery Strategy for Blue, Fin and Sei Whales (Balaenoptera musculus, B. physalus, and B. borealis) in Pacific Canadian waters. Nanaimo: Fisheries and Oceans Can- ada. Pp 18-19 9. Silber, G.K., s. Bettridge, D. Cottingham. 2008. Report of a Workshop to Identify and Assess Technologies to Reduce Ship Strikes of Large Whales. National Marine Fisheries Service, Providence, R.I. p. iv 10. Exxon Valdez Trustee Council website, http://www.evostc.state.ak.us/index.cfm?FA=status.Orca 11. Killer Whale Recovery Strategy, ibid, p. 34-35 12. Humpback Whale Recovery Strategy, ibid, p. 20 13. Exxon Valdez Trustee Council website, 14. International Tanker Owners’ Pollution Fund website, http://www.itopf.com/stats_index.html 15. International Tanker Owners’ Pollution Fund website, http://www.itopf.com/marine-spills/effects/environmental-impact/index.html 16. Humpback Whale Recovery Strategy, ibid, p. 21 17. Killer Whale Recovery Strategy, ibid, p. 51 18. Proposed Recovery Strategy for Blue, Fin and Sei Whales, ibid, p. 20-21 19. Ibid, p.23 20. Ibid, p.23 21. Brown, C.E., B. Fieldhouse, T.C. Lumley, P. Lambert and B.P. Hollebone. Environment Canada’s Methods for Assessing Oil Spill Treating Agents. In Oil Spill Science and Technology: Prevention, Response, and Clean Up, Ed. M. Fingas, Elsevier, Burlington, MA, USA, pp. 643-671 at para 2.8 22. Fingas, Merv, Oil Spill Dispersants: A Technical Summary, Oil Spill Science and Technology, 1st ed, Gulf Professional Publishing, 2010, p.520 23. Ikenaka Y, Sakamoto M, Nagata T, Takahashi H, Miyabara Y, Hanazato T, Ishizuka M, Isobe T, Kim JW, Chang KH. Effects of poly- cyclic aromatic hydrocarbons (PAHs) on an aquatic ecosystem: acute toxicity and community-level toxic impact tests of benzo[a]pyrene using lake zooplankton community. J Toxicol Sci. 2013 Feb;38(1):131-6. 24. Rice, S.D., R.E. Thomas, R.A. Heintz, A.C. Wertheimer, M.L. Murphy, M.G. Carls, J.W. Short, A. Moles, Synthesis of long-term impacts to pink salmon following the Exxon Valdez oil spill: persistence, toxicity, sensitivity, and controversy. Exxon Valdez Trustee Council Final Report, project 99329, p. 45, 50 25. Fingas, Ibid, p. 526

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