Park board’s cetacean ban crossed line, court rules

The park board did not have the authority to ban whales, dolphins and porpoises at the Vancouver Aquarium, a B.C. Supreme Court judge has ruled.

The decision released Friday follows the aquarium’s announcement last month that it will voluntarily stop displaying cetaceans in captivity.

The Ocean Wise Conservation Association, a non-profit society that runs the aquarium, filed an application for judicial review last year challenging a bylaw amendment passed by the park board prohibiting the keeping of cetaceans in parks.

The aquarium has a licensing agreement with the park board that allows it to operate in Stanley Park, and it was renewed in 1999 to include “non-interference” provisions.

Justice Andrew Mayer said in his ruling the agreement states the board will not interfere with the day-to-day administration of the aquarium, and as a result the bylaw amendment is unenforceable.

“In my view, when an administrative body begins to trench into areas of ethics, morality and perhaps even animal rights, it may overstep its bounds if it adopts a political position which conflicts with its core mandates,” he said in his written ruling.

The board approved the aquarium’s $100-million expansion plan in 1996 and made several other agreements in subsequent years that didn’t remove the non-interference provisions, Mayer said.

The aquarium planned to create larger outdoor pools for beluga whales, sea lions and dolphins, and upgrade its building.

The judge said the bylaw “effectively undoes the park board’s approval of the expansion project” because the aquarium would be prohibited from using the expanded facilities for its intended purposes.

The park board issued a statement saying it was “obviously disappointed with the conclusion the court reached in the matter.”

It said the board would be reviewing the reasons and would consider its options.

The debate over holding cetaceans at the aquarium has been brewing for decades, but the heat was turned up when two of the aquarium’s belugas died in 2016.

Since then, a false killer whale named Chester, and Daisy, a harbour porpoise, also died at the facility.

The Vancouver Aquarium said in a statement that it is pleased with the decision.

“We will need to take the time necessary to review the judgment with our legal counsel and consider the implications it may have on our organization before determining our future course of action or making any further public statements about these matters,” the statement says.

The judge stopped short of quashing the bylaw, saying the board was authorized to enact such amendments as long as it didn’t apply to the aquarium.