B.C. court strikes down park board’s cetacean ban
Bylaw amendment conflicts with two covenants, is not enforceable, ruling says
The B.C. Supreme Court says a park board bylaw that bans cetaceans from being kept in captivity in parks cannot apply to the Vancouver Aquarium in Stanley Park.
In May, the park board voted to ban the import or display of whales, porpoises and dolphins in city parks, and a month later the aquarium asked the B.C. Supreme Court for a judicial review of the bylaw. The aquarium argued the park board did not have jurisdiction to pass the amendment because of an existing licence agreement allowing it to operate in the park until 2029.
“Pursuant to the 1999 licence agreement, as amended, the park board granted the Ocean Wise Conservation Association the right to operate the Marine Science Centre in Stanley Park until 2029 and agreed that during this period it would not interfere in the day to day to administration of the Vancouver Aquarium,” Justice Andrew Mayer wrote in his decision.
“The bylaw amendment conflicts with both of these covenants. As a result, the bylaw amendment is not enforceable against the operations of Ocean Wise Conservation Association at the Marine Science Centre.”
Ocean Wise was awarded costs. The aquarium welcomed the judgment but has not said whether it will change is decision last month to voluntarily follow the ban on keeping cetaceans in captivity.
“The matters raised in our petition are of great significance to the operations of our not-for-profit marine science centre, the Vancouver Aquarium,” the aquarium said in a statement.
“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 park board said in a statement it is “obviously disappointed” with the court’s decision, and will review the reasons for judgment and weigh its options.
“The board will have no further comment on this matter until after the commissioners have an opportunity to meet, review the decision with legal counsel and determine next steps,” its statement said.
Last month, aquarium CEO John Nightingale said the decision to voluntarily accept the ban was made by senior leadership and the board of directors after months of discussion. He cited a change in public opinion, the loss of donations from “a couple” of major philanthropists and possibly a drop in gate admissions for the change.
Five cetaceans died at the aquarium over 18 months including Chester, a false killer whale last November; Daisy, a harbour porpoise in June; belugas Aurora, 30, and her calf, Qila, 21 in November 2016; and Jack, a harbour porpoise in August 2016.
Only Helen, a Pacific white-sided dolphin, remains in the pool.
The aquarium’s marine mammal rescue program will continue to rehabilitate animals, including cetaceans, with the objective of release back to the wild.
“Should a rescued cetacean require ongoing care, our team will identify an appropriate long-term facility and arrange for transfer of the patient, which may include temporary housing at the aquarium’s unique facility,” said Nightingale in a letter sent to aquarium supporters last month.
Animal Justice Canada, an intervener in the case, said it believes the “archaic, dying” practice of holding in captivity will soon be outlawed, noting a bill banning cetacean captivity, breeding and importation in Canada is moving through Parliament.
The proposed law makes exceptions for animals already in captivity or animals being cared for because of injury or other distress.
“Ultimately, the Vancouver Aquarium was already forced last month to end its whale and dolphin captivity program due to public outrage over this cruel and outdated practice,” the Animal Justice Canada statement said. “We are pleased that no further vulnerable cetaceans will languish in captive misery at the Aquarium.”
Meanwhile, the aquarium is in the midst of a $100-million project that includes new buildings and larger whale tanks, approved by an earlier park board in 2006.
A year ago, the aquarium announced it updated its plan to include building a bigger beluga tank and bringing back five belugas — on loan to U.S. breeding programs — in 2019.
Last month, after the aquarium agreed to the ban, Nightingale said no staff will be laid off and the aquarium will continue its expansion plans. Construction had already begun for an Arctic display that would have included a bigger space for beluga whales.
“We are still absolutely committed to a major Arctic exhibition,” but it will have to be redesigned without cetaceans at a considerable cost, Nightingale said at the time. The design and pre-construction has so far reached about $8 million.
The aquarium has been prohibited by the park board from catching cetaceans for display since 1996.