The Whale, Inside: Ending Cetacean Captivity in Canada
| Author | Katie Sykesv |
| Position | Associate Professor, Faculty of Law, Thompson Rivers University |
| Pages | 349-405 |
e Whale, Inside: Ending
Cetacean Captivity in Canada*
Katie Sykes**
Canada has just passed a law making it illegal to keep cetaceans (whales and dolphins)
in captivity for display and entertainment: the Ending the Captivity of Whales and
Dolphins Act (Bill S-203). Only two facilities in the country still possess captive
cetaceans: Marineland in Niagara Falls, Ontario; and the Vancouver Aquarium
in Vancouver, British Columbia. e Vancouver Aquarium has announced that it
will voluntarily end its cetacean program. is article summarizes the provisions of
Bill S-203 and recounts its eventful journey through the legislative process. It gives
an overview of the history of cetacean captivity in Canada, and of relevant existing
Canadian law that regulates the capture and keeping of cetaceans. e article argues that
social norms, and the law, have changed fundamentally on this issue because of several
factors: a growing body of scientic research that has enhanced our understanding of
cetaceans’ complex intelligence and social behaviour and the negative eects of captivity
on their welfare; media investigations by both professional and citizen journalists; and
advocacy on behalf of the animals, including in the legislative arena and in the courts.
* is article is current as of June 17, 2019. It has been partially updated to
reflect the passage of Bill S-203 in June 2019.
** Katie Sykes is Associate Professor of Law at ompson Rivers University
in Kamloops, British Columbia. Her research focuses on animal law and
on the future of the legal profession. She is co-editor, with Peter Sankoff
and Vaughan Black, of Canadian Perspectives on Animals and the Law
(Toronto: Irwin Law, 2015) the first book-length jurisprudential work to
engage in a sustained analysis of Canadian law regulating the treatment
of non-human animals at the hands of human beings. She is a graduate
of the University of Toronto Faculty of Law, Harvard Law School, and
the Schulich School of Law at Dalhousie University. From 2004 to 2010,
she was an associate in the New York office of Cleary Gottlieb Steen &
Hamilton LLP, and from 2002 to 2003 she was law clerk to Hon. Justice
Louis LeBel of the Supreme Court of Canada.
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Sykes, e Whale, Inside
I. I: I W
II. B S-: O C C
A. What Bill S-203 Changes
B. Scientists, eir Evidence, and Bill S-203
C. Bill S-203’s Stormy Voyage
III. C C C
A. Vancouver Aquarium
B. Marineland
C. Carnival and Conservation: e Meanings of Marine Parks
IV. C C R
A. Criminal Law
B. Fisheries and Oceans
C. Provincial Animal Welfare Law
D. Canadian Council on Animal Care Guidelines
E. Canada’s Accredited Zoos and Aquariums
F. Summary: A Regulatory Gap
V. G C: W, C C
A. International Law: Cetacean Personhood?
B. e International Whaling Regime
C. Captivity and Legal Reform in the United States
D. Captivity Bans and Regulations in Other Countries
VI. T W P: C B C
VII. C: O W
“e whale’s belly is simply a womb big enough for an adult. ere
you are, in the dark, cushioned space that exactly fits you, with yards of
blubber between yourself and reality, able to keep up an attitude of the
completest indifference, no matter what happens”.
— George Orwell, Inside the Whale
I. Introduction: Inside the Whale
Canada has just passed landmark legislation that will phase out cetacean
captivity except for limited purposes related to the protection of
the animals themselves, not to their exploitation for human ends: Bill
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S-203, the Ending the Captivity of Whales and Dolphins Act.1 is is the
beginning of the end for those who keep cetaceans2 in captivity for display
and entertainment. Leading animal law scholar and Nonhuman Rights
Project President Steven Wise, speaking of the fight for legal recognition
of animal personhood, paraphrases Winston Churchill’s wartime speech
to say that this is not the end, and it is not the beginning of the end, but
it is the end of the beginning.3 When it comes to cetacean captivity in
Canada, however, we are already past the end of the beginning, and the
end is actually in sight.
Keeping cetaceans in tanks for display has become an outdated
practice that is out of keeping with this country’s values. Canadians now
1. Bill S-203, An Act to amend the Criminal Code and other Acts (ending the
captivity of whales and dolphins), 1st Sess, 42d Parl, 2018 [Bill S-203]. e
Bill passed ird Reading in the House of Commons on June 10, 2019,
and will now become law. e final formal step that will make the bill
part of the law of Canada is Royal Assent, granted to legislation that has
passed both Houses of Parliament in identical form.
2. e term ‘cetaceans’ is colloquially used to refer to marine mammals
classified as members of Order Cetacea, which consists of 88 species of
whale, dolphin and porpoise. See Cameron S G Jefferies, Marine Mammal
Conservation and the Law of the Sea (Oxford: Oxford University Press,
2016) at 11. e cetaceans currently in captivity in Canada are mainly
whales (orcas and belugas) and dolphins.
3. “Now this is not the end. It is not even the beginning of the end. but
[sic] it is, perhaps, the end of the beginning”. Winston Churchill, “e
End of the Beginning” (10 November 1942) online: e Churchill Society
was delivered at the Lord Mayor’s Luncheon following the victory at the
Second Battle of El Alamein. For Steven Wise’s use of the quotation, see
his 2015 TED talk on the Nonhuman Rights Project’s strategic litigation
campaign for the recognition of legal personhood of certain nonhuman
animals: Steven Wise, “Chimps Have Feelings and oughts. ey
Should Also Have Rights” (March 2015) at 14:05, online (video): TED
they_should_also_have_rights/discussion#t-832610>.
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Sykes, e Whale, Inside
oppose keeping cetaceans in captivity by a two-to-one margin.4 Now, we
have national law that reflects that widespread public condemnation of
the practice. Vaughan Black has rightly observed that the animal welfare
movement has not often seen the kind of legal-reform milestones that
have been won by other social liberation movements.5 But there are
rare exceptions where real progress for animals is achieved. e end of
cetacean captivity in Canada is one of them.
In George Orwell’s essay “Inside the Whale”, the image of a Jonah
figure cocooned inside a whale’s stomach is a metaphor for what Orwell
saw as the moral and political quietism of his contemporaries.6 Being
inside the whale, Orwell argues, means being without responsibility
for participation in (or even awareness of) what happens outside; it
means “remaining passive, accepting”.7 Orwell was more concerned with
4. See Angus Reid Institute, “Canadians See Value in Zoos, Aquariums,
but Voice Support for Banning Whales and Dolphins in Captivity” (22
May 2018), online: Angus Reid
vancouver-aquarium/> [Angus Reid Poll] (an Angus Reid poll in May
2018 found that 47% of respondents agreed with the statement “keeping
cetaceans in captivity should be banned”, 21% agreed with the statement
“keeping cetaceans in captivity should be allowed”, and 32% were not
sure or did not express an opinion). By contrast, a 1992 Decima Research
poll of Canadian public opinion on marine parks and whale captivity
found 72% support for keeping beluga whales in captivity for education,
78% support for keeping beluga whales in captivity for research, and 61%
support for keeping beluga whales in captivity for public viewing (but
only 39% for keeping orcas in captivity for public viewing): Jon Lien, “A
Review of Live-capture and Captivity of Marine Mammals in Canada”
(Ottawa: Department of Fisheries and Oceans, 1999) at 21–22.
5. Vaughan Black, “Traffic Tickets on the Last Ride” in Peter Sankoff,
Vaughan Black & Katie Sykes, eds, Canadian Perspectives on Animals and
the Law (Toronto: Irwin Law, 2015) 57 at 57–58.
6. George Orwell, “Inside the Whale” in George Orwell, Inside the Whale
and other Essays (Harmondsworth, Middlesex: Penguin, 1974) 9 [Inside
the Whale and Other Essays]. “Inside the Whale” was originally published
in 1940.
7. Ibid at 43 [emphasis in original].
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humanity than with animals,8 but his metaphor carries over aptly to social
attitudes about animals. When it comes to the exploitation and suffering
of animals, most of us, almost all of the time, are inside the whale:
comfortable, passive, accepting, or simply (and complacently) unaware.
But sometimes specific animal-use practices come into our consciousness
in a much starker way than usual, and start to seem untenable. When
that happens, significant changes in both social norms and law can result.
is article examines the phenomenon of cetacean captivity and
relevant Canadian law (existing and proposed), as well as our evolving
beliefs and understandings about how we should treat cetaceans. Our
encounters with, and increasing knowledge of, cetaceans have moved us
to start thinking — to invert Orwell’s metaphor — outside the whale,
to leave behind the complacency and acceptance that the metaphor
describes, to question the justifications put forward for cetacean captivity,
and even to begin facing the profound challenges of sustainable long-
term cetacean conservation.
Captive cetaceans in Canada today include beluga whales and
dolphins, but the central characters in the story are orcas (or killer whales):
above all, the Southern resident population that lives in the Salish Sea
off the coast of British Columbia and Washington State. e first orca
kept in captivity, Moby Doll, was caught from this population, more or
less by accident, by the Vancouver Aquarium in 1964.9 Since then, our
conception of orcas has changed profoundly — from savage, dangerous
killer, to trainable and friendly entertainer, to symbol of a threatened
natural world and a creature with intelligence and emotions — perhaps
even rights — comparable to those of humans.
8. John Griffin & George Orwell, Animal Farm (Harlow: Longman, 1989)
may be the greatest animal-based allegory for human politics in English
literature. In addition, Orwell’s 1936 essay “Shooting an Elephant,”
describing a purportedly autobiographical episode from Orwell’s time as a
colonial official in Burma, exhibits compassion and respect for the dignity
of the elephant, and equates killing the elephant to murder. George
Orwell, “Shooting an Elephant” in Inside the Whale and Other Essays, ibid
at 91.
9. See detailed discussion in Part III.A. below.
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Sykes, e Whale, Inside
Recurring themes in the account set out here include advances
in scientific knowledge about the characteristics of cetaceans and the
adverse effects of captivity on them; media exposés, both professional
and activist, that have raised public awareness of the disturbing aspects of
cetacean captivity; and advocacy by animal protection organizations, in
particular Animal Justice Canada (“Animal Justice”),10 through legislative
lobbying, public engagement, and participation in litigation.
II. Bill S-203: Outlawing Cetacean Captivity
Bill S-203 was introduced into the Senate in 2015 by Senator Wilfred
Moore of Nova Scotia, who retired in 2017 on reaching the mandatory
retirement age of 75. When Senator Moore retired, sponsorship of the
bill in the Senate was taken over by Senator Murray Sinclair of Manitoba.
Senator Sinclair is an eminent First Nations leader who was the first
Indigenous judge to be appointed in Manitoba (the second in Canada)
and chaired Canada’s landmark Truth and Reconciliation Commission.
Bill S-203 was sponsored in the House of Commons by Elizabeth May,
Leader of the Green Party of Canada.
Senator Moore, the bill’s original sponsor, first became committed
to the cause of ending cetacean captivity after he and his family watched
the 2013 documentary film Blackfish.11 Blackfish exposes the detrimental
effects of captivity on orcas, as well as injuries and fatalities suffered by
some of the human trainers and staff who work with them, focusing on
10. Animal Justice, incorporated as a not-for-profit corporation in 2008,
is Canada’s only national animal law organization. It is made up of a
charitable wing and a non-profit wing that focuses on legislative activity
and lobbying. Its objectives include prevention of cruelty to animals
through the enforcement of existing laws, education of the public on
issues that affect animals, and advocating for the humane treatment of
animals and for reform of Canada’s animal protection laws. See e.g. R v
DLW , 2016 SCC 22 (Affidavit of Nicholas dePencier Wright, attached
to Notice of Motion for Leave to Intervene filed by Animal Justice
Canada, online (pdf): Animal Justice
uploads/2015/09/Animal-Justice-DLW-Motion-To-Intervene.pdf>). e
author is a member of the volunteer board of advisors of Animal Justice.
11. Blackfish, 2013, DVD (Los Angeles: Magnolia Pictures, 2013).
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Tillikum, an orca who was held by SeaWorld of Orlando, Florida until
he died in 2017.12 After watching the film, Senator Moore’s son Nicholas
asked him to do what he could about the treatment of captive cetaceans
in Canada. Senator Moore’s response was Bill S-203. He also supports
other initiatives to improve cetacean welfare, including a proposal to
create an ocean sanctuary for whales and dolphins on the coast of British
Columbia or Nova Scotia.13
A. What Bill S-203 Changes
Bill S-203 makes it illegal to hold cetaceans in captivity (except for those
that are already captive); to breed them or acquire reproductive material;
to put on shows involving performing cetaceans; to capture a live cetacean
with the intent to keep it captive; and to import or export live or dead
cetaceans and reproductive materials of cetaceans.
e legislation amends the Criminal Code14 to make it an offence
to own or have custody or control of a captive cetacean; to breed or
impregnate a cetacean; or to possess or seek to possess reproductive material
of cetaceans.15 e captivity ban has exceptions for cetaceans which are
already in captivity when the legislation comes into force, rehabilitation,
keeping a cetacean in captivity for its own best interests pursuant to a
permit, and research.16 It is also an offence to promote, arrange, conduct,
12. Senator Sinclair told the story of Bill S-203’s origins in his speech moving
third reading of the bill on May 29, 2018. “Bill S-203, An Act to amend
the Criminal Code and other Acts (ending the captivity of whales and
dolphins)” 3rd reading, Senate Debates, 42-1, Vol 150 No 210 (29
May 2018), online: Senate of Canada
chamber/421/debates/210db_2018-05-29-e?language=e#85>.
13. For a description of this proposal, see Nina Corfu, “World’s 1st Captive
Whale Retirement Home could be in Nova Scotia or B.C.” (17 November
2017), online: CBC News
whale-sanctuary-project-retirement-facility-captive-whales-dolphins-
cetaceans-1.3853957>. e sanctuary project is led by the Whale
Sanctuary Project, online:
14. RSC 1985, c C-46 [Criminal Code].
15. Bill S-203, supra note 1, cl 2.
16. Ibid.
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assist in, receive money for or take part in any meeting, competition,
exhibition, pastime, practice, display or event at or in the course of which
captive cetaceans are used for performance for entertainment purposes,
except pursuant to a license.17 is prohibition on cetacean performances
does not have a built in ‘grandfather’ exception for cetaceans already in
captivity (as the prohibition on keeping captive cetaceans does), but
facilities that hold captive cetaceans now will presumably be able to apply
for permission to show them in performances.
Further, Bill S-203 amends the Fisheries Act18 to provide that “no one
shall move a live cetacean…from its immediate vicinity with the intent to
take it into captivity”,19 except if the cetacean is injured or in distress and
is in need of assistance (in other words, rescue of sick or injured animals is
still permitted). Finally, it amends the Wild Animal and Plant Protection
and Regulation of International and Interprovincial Trade Act20 to prohibit
the import into Canada or export from Canada of cetaceans (whether
live or dead) and sperm, tissue cultures and embryos of cetaceans.21 ere
is an exception for permitted imports and exports for scientific research,
or for keeping a cetacean in captivity if it is in the best interests of the
cetacean’s welfare.22
Bill S-203 is a landmark step for cetacean protection because it
will completely phase out cetacean captivity for display purposes. ere
are already some legal provisions that regulate and limit how captive
cetaceans can be acquired and kept, but there is nothing that goes as
far as outlawing captivity completely. For example, there are existing
rules about how cetaceans can be captured from the wild for display
purposes. Controversy first arose on this question in about the 1980s,
tied to concerns about the impact of hunting on the sustainability of
vulnerable populations, especially the orcas of the Pacific Northwest. In
Canada, live capture of wild cetaceans for display was not, before Bill
17. Ibid.
18. RSC 1985, c F-14 [Fisheries Act].
19. Bill S-203, supra note 1, cl 3.
20. SC 1992, c 52.
21. Bill S-203, supra note 1, cl 4.
22. Ibid, cl 5.
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S-203, prohibited outright in primary legislation; it was possible to do
it legally by permit, but in practice permits have not been granted since
the early 1990s.23
Bill S-203 was introduced as a private member’s bill, but the Liberal
government was supportive of the legislation. e government also added
provisions to its own sponsored legislation that would have furthered
similar objectives. In 2018, the government introduced a suite of
proposed changes to the Fisheries Act under Bill C-68, including stricter
legislative limits on live capture of cetaceans. is amendment would
prohibit capturing cetaceans with intent to take them into captivity, with
authorizations allowed only if the Minister “is of the opinion that the
circumstances so require, including when the cetacean is injured or in
distress or is in need of care”.24 Even if it could not acquire cetaceans
by hunting them in Canadian waters, however, the industry would still
be able to replenish its supply through captive breeding and imports.
e government’s proposed Fisheries Act amendments would not have
changed that; nor would they have changed very much in practical
terms, given the reality that live capture in Canada for captivity purposes
ended decades ago. Later, in 2019, when time appeared to be running
out for Bill S-203 to pass before the end of the parliamentary session,
the government also sponsored amendments to Bill C-68 incorporating
the provisions of Bill S-203 restricting imports and exports of cetaceans
(these amendments would also incorporate a ban on trade in shark fins
that is proposed in another private member’s bill, Bill S-238).25 As this
article goes to press, with Bill S-203 just having passed third reading, it is
unclear what will become of the similar provisions in Bill C-68.
23. See discussion in Part IV.B. below.
24. Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence,
1st Sess, 42d Parl, 2018, cl 15.
25. Jolson Lim & Marco Vigliotti, “Shark finning, cetacean captivity
amendments could be folded into C-68,” (15 May 2019), online: iPolitics
could-be-folded-into-c-68/>.
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B. Scientists, eir Evidence, and Bill S-203
Scientific evidence and argument have played an important role in
making the case for Bill S-203, both in the Senate process and in public
discourse. e witnesses who testified before the Committee, in its many
hearings, included internationally recognized cetacean scientists Lori
Marino, President and co-founder of the Whale Sanctuary Project; Hal
Whitehead, a marine biologist at Dalhousie University in Nova Scotia;
and Naomi Rose of the Animal Welfare Institute, all of whom supported
the bill.26 Marino is one of the world’s foremost experts on cetacean
cognition and on the effects of captivity on cetaceans.27 Whitehead is
a globally renowned cetacean researcher who studies wild whales and
dolphins. He has advanced (both through sole-authored research and with
co-author Luke Rendell) the proposition that whales and dolphins, with
complex behaviours and communicative abilities that are transmitted
through social learning, have culture — and that humans are not the
only species that do.28 Rose has been a cetacean biologist for twenty-five
26. Marino and Whitehead were witnesses in the Committee hearing
of March 30, 2017. Rose testified on April 4, 2017. e full list of
Committee witnesses is available online: Senate of Canada
en/committees/pofo/studiesandbills/42-1>.
27. Lori Marino & Toni Frohoff, “Towards a New Paradigm of Non-
Captive Research on Cetacean Cognition” (2011), online: PLoS
ONE
pone.0024121&type=printable> (summarizes scientific studies on
the “large complex brains, impressive intelligence, and social and
communicative sophistication” of cetaceans, indicating that “the complex
sentience of other animals such as cetaceans must be recognized and their
physical, psychological and behavioral needs appropriately protected”
at 1). is article also surveys and summarizes the “copious scientific
literature confirming the damaging effects of captivity on dolphin
and whale physical health and psychological well-being” (at 3–4). e
authors argue that “cetaceans possess a level of intelligence, awareness
and psychological and emotional sensitivity that makes it unacceptable
to continue to keep them in captivity if not necessary for their welfare,
survival, or conservation” (at 2).
28. Hal Whitehead & Luke Rendell, e Cultural Lives of Whales and
Dolphins (Chicago: University of Chicago Press, 2015).
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years.
ese witnesses described evidence of the harmfulness of captivity
to cetaceans, and the mismatch between their welfare needs and the
conditions they experience in captivity. Whitehead testified as follows:
captive whales and dolphins live in a space that is less than a millionth — and,
in the case of killer whales, less than a billionth — of the area of their natural
home ranges. Rather than facing a wide range of living prey, they are typically
fed dead fish. ese are extremely acoustic animals. at is how they sense their
world and communicate. Concrete tanks are debilitating echo chambers.29
Marino, similarly, stated that research shows cetaceans “are the type of
animal that cannot thrive in a concrete tank”:30
[t]he evidence is building that animals, wild animals like dolphins and
whales, who are kept in displays, exhibit all kinds of abnormal behaviours,
like stereotypies, repetitive behaviours, going back and forth with the head, et
cetera. It’s something you see in humans all the time when they are emotionally
disturbed and chronically stressed. We see this in dolphins and whales in
concrete tanks all the time. We see them dying of infections that indicate or
suggest that their immune systems are going down due to the chronic stress of
living for years in a concrete tank.31
Rose explained that opposition to cetacean captivity in the early days
was “largely ethical”,32 but with the increased information available from
studies over the last few decades the arguments against keeping cetaceans
in captivity are “science-based”.33
e Committee also heard testimony opposing the bill from a
scientist, Michael Noonan, Professor of Animal Behaviour, Ecology, and
Conservation at Canisius College. However, Noonan also acknowledged
that there had been poor welfare outcomes for some cetaceans in
29. Senate, Standing Committee on Fisheries and Oceans, Evidence, 42-1,
No 12 (30 March 2017), online: Senate of Canada
en/Content/Sen/Committee/421/POFO/12ev-53197-e> [30 March
Standing Committee].
30. Ibid.
31. Ibid.
32. Senate, Standing Committee on Fisheries and Oceans, Evidence, 42-1, No
13 (4 April 2017), online: Senate of Canada
Sen/Committee/421/POFO/13ev-53212-e>.
33. Ibid.
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captivity, and supported tighter regulations with better enforcement to
ensure better standards for captive cetaceans.34
e scientific evidence concerning cetacean intelligence, social lives,
and welfare needs has played a significant part in the captivity debate
because of the perceived authority and neutrality of science. Certainly,
it would be fair to characterize researchers like Marino, Whitehead, and
Rose, who have taken positions on normative questions like cetacean
personhood35 and cetacean culture, and who are actively involved in
advocating for legal change, as not completely neutral participants in the
debate themselves. But their positions are founded in their research, which
is based on objective scientific methodology. Anti-captivity arguments are
strengthened by their basis in the extensive and growing body of scientific
knowledge about cetacean species.36 Senator Sinclair’s speech moving
third reading of Bill S-203 referenced the evidence from the Committee
witnesses concerning cetacean intelligence, emotions, social lives, family
bonds and communication, and their almost incomprehensibly wide
ranges in the wild; of the harms of captivity including “isolation, health
problems, reduced lifespans, high infant mortality rates and extreme
boredom, where they self-mutilate and end up with scars, wounds and
damage to their teeth because they live in barren environments where
everything of choice is removed”;37 and of the limited value of research
on captive cetaceans.
34. Senate, Standing Committee on Fisheries and Oceans, Evidence, 42-1, No
15 (9 May 2017), online: Senate of Canada
Sen/Committee/421/POFO/15ev-53301-e>.
35. 30 March Standing Committee, supra note 29 (Marino supports the
view that whales and dolphins are ‘persons’, defined, as she put it in her
testimony before the Committee, as “any organism that has autonomy,
self-awareness, emotions and a life to lead”). See further discussion of the
international discussion concerning cetacean personhood in Part V.A.
below.
36. Ibid (in his testimony, Whitehead described the abundance of research
on wild dolphins and whales, especially the orcas of British Columbia —
noting that “we have come to know those whales better than almost any
other wild animals, and what we have learned is truly remarkable”).
37. Sinclair, supra note 12.
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C. Bill S-203’s Stormy Voyage
e resemblance of the legislative process to the more unlovely
types of industrial manufacture is well known, but it does seem that the
process can be especially complex and dysfunctional when it comes to
animal protection legislation.38 at has been the case for Bill S-203. e
legislation had strong popular and cross-party support from the start,
and easily passed each legislative stage when it was put to a full vote.
Nevertheless, it took four years for the bill to pass, and it passed only two
weeks before Parliament was set to rise for probably the last sitting in the
legislative session, meaning that it came very close to dying on the Order
Paper. Bill S-203 faced long procedural delays during its slow progress
through the Senate, and came close to expiration several times before its
final triumph. e Conservative caucus critic on the bill, Senator Donald
Plett of Manitoba, was especially vocal in his opposition to a captivity
ban,39 and has been accused by critics — including the well-known
science broadcaster and environmental activist David Suzuki — of using
procedural stratagems in an effort to delay and ultimately prevent the
38. A notorious example is the multi-year history of successive attempts to
update the Criminal Code animal cruelty offences that ended in 2008
with no change in the substantive provisions but an increase in maximum
sentences — a saga recounted in Lesli Bisgould, Animals and the Law
(Toronto: Irwin Law, 2011) at 87–96.
39. “Bill S-203, An Act to amend the Criminal Code and other Acts (ending
the captivity of whales and dolphins)” 2nd reading, Senate Debates, 42-1,
Vol 150 No 31 (3 May 2016), online: Senate of Canada
en/speeches/sen-plett-second-reading-bill-s-203-ending-captivity-whales-
dolphins/> (speech of Senator Donald Plett on the second reading of Bill
S-203, criticizing the ban on captivity as bad policy because it “denies us
the opportunity to study and learn from a very small number of captive
animals in a way that will permit us to understand and address those
animals’ unique and special needs in much larger populations in the
wild”).
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adoption of Bill S-203.40
Senator Sinclair noted that Bill S-203 was in committee “longer than
any bill in the last 20, 25 years”,41 with 17 hearings and over 40 witnesses
(by comparison, the legislation that brought in medical assistance in
dying had five pre-study hearings and two committee hearings). When
the bill faced the risk of being killed by procedural delay, Animal Justice
and other advocacy organizations encouraged their supporters to contact
senators and express their desire to see the bill passed; senators’ e-mail
and voicemail inboxes were flooded with messages of support, and the
bill survived.42 In June 2018, when the Senate rose for the summer
without Bill S-203 proceeding to a vote, Members of Parliament from
four federal parties held a joint press conference (coordinated by Animal
Justice) urging an end to the deadlock on this and other pending animal
protection legislation.43
III. Cetacean Captivity in Canada
ere are only two remaining facilities in Canada that have captive
cetaceans: the Vancouver Aquarium, in Vancouver, British Columbia;
and Marineland Canada (“Marineland”), in Niagara Falls, Ontario.
40. David Suzuki, “Science Tells Us to End Whale and Dolphin Captivity. So
What’s the Holdup?” (28 September 2017), online: e Globe and Mail
dolphin-captivity-so-whats-the-holdup/article36430136/>. David Suzuki
argued that Senator Plett had “mounted a ferocious effort to obstruct
Bill S-203” and that his “zeal for cetacean captivity is bewildering and
unfortunate”.
41. Holly Lake, “‘Free Willy’ Bill Report Adopted in Senate” (27 April 2018),
online: iPolitics
senate/>.
42. Holly Lake, “Wave of Support for Anti-Captivity Bill Swamps Senate
E-mail System” (20 June 2017), online: iPolitics
wave-of-support-for-anti-captivity-bill-swamps-senate-email-system/>.
43. “Advisory: Animal Justice Joins MPs to Call for End to Senate Deadlock
on Animal Protection Bills” (19 June 2018), online: Animal Justice
Canada
joins-mps-to-call-for-end-to-senate-deadlock-on-animal-protection-bills>.
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A. Vancouver Aquarium
Vancouver Aquarium, in Vancouver’s Stanley Park, opened in 1956.44
It is Canada’s largest aquarium and one of the five largest aquariums in
North America.45 Vancouver Aquarium is a nonprofit organization whose
mission includes research, conservation, education and the rescue and
rehabilitation of marine mammals.46 It is the headquarters of Ocean Wise,
“a new global ocean conservation organization focused on protecting
and restoring our world’s oceans”47 that started in 2017. According to
Ceta-Base, a non-profit organization that maintains a global database of
cetaceans in captivity,48 Vancouver Aquarium currently holds only one
cetacean as of September 8, 2018: Helen, a Pacific white-sided dolphin.49
Until recently the Vancouver Aquarium had a quite significant collection
of beluga whales. Several belugas died at the aquarium in recent years; the
last two, Aurora and her adult calf Qila, died within a few days of each
other in November 2016.50 In addition, a false killer whale, Chester, died
44. Murray A Newman, People, Fish and Whales: e Vancouver Aquarium
Story (Madeira Park: Harbour Publishing, 2006) at 19.
45. “e History of Canada’s Largest Aquarium” (2018), online: Vancouver
Aquarium .
46. “About the Vancouver Aquarium” (2018), online: Vancouver Aquarium
Rescue Program” (2018), online: Vancouver Aquarium
org/learn/aquafacts/the-aquarium/marine-mammal-rescue-program>.
47. “Ocean Wise 2017 Annual Report” (2018), online (pdf):
Ocean Wise Conservation Association
static/59cac35632601e88dbb17696/t/5adf629e70a6ad662793e3
bd/1524589247160/OceanWise_AnnualReport2017.pdf>.
48. “Our Mission” (2018), online: Ceta-Base .cetabase.org/site/
mission>.
49. “Cetaceans: Vancouver Aquarium” (2018), online: Ceta-Base
cetabase.org/captive/cetacean/vancouver-aquarium/>.
50. Jon Azpiri, “Vancouver Aquarium Beluga Whale Aurora Dies at
Age 30” (26 November 2016), online: Global News
news/3090310/vancouver-aquarium-beluga-whale-aurora-dies/>.
364
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in November 2017, and a harbour porpoise, Daisy, died in June 2017. 51
Vancouver Aquarium presents shows and educational programs
involving live animals, including displays that are listed as “dolphin
training”52 but might be described by a naïve observer as dolphin shows.
ese sessions also appear to be captured by the prohibition on cetacean
performances under the new legislation.53
Vancouver Aquarium was the first facility to capture and display a
live orca. e extraordinary story of how that whale came to Vancouver
is recounted in Mark Leiren-Young’s 2016 book e Killer Whale Who
Changed the World.54 In 1964, Dr. Murray Newman, the aquarium’s first
director, wanted to have a life-size, anatomically accurate sculpture of an
orca made for display at the aquarium. His idea originally was to have an
orca killed so that its body could be used as a model for the piece. No one
was thinking about bringing a live one back to the city. Orcas were known
to be fearsome apex predators that would even kill and eat other whales;
they were considered aggressive and terrifying, “bloodthirsty villains of
the sea, dangerous to get near even in a boat”.55 e orca’s impressive size,
striking appearance, and fearsome reputation made it an ideal icon to
attract and thrill visitors. Newman, who died in 2016, seems to have had
a well-honed showman’s instinct, and to have relished comparisons of
himself to PT Barnum — the first showman to put whales on display.56
Newman hired a sculptor for the job: Samuel Burich, who was also
an experienced fisherman. Burich and another local fisherman, Joe Bauer,
51. e Canadian Press, “A False Killer Whale at the Vancouver Aquarium
Has Died” (24 November 2017), online: Huffington Post
huffingtonpost.ca/2017/11/24/a-false-killer-whale-at-the-vancouver-
aquarium-has-died_a_23287719/>.
52. “See A Show Today” (2018), online: Vancouver Aquarium
org/experience/today>; see also “Caring for Dolphins” (2018), online:
Vancouver Aquarium
dolphins>.
53. Bill S-203, supra note 1, s 2 (see also discussion in Part II above).
54. Mark Leiren-Young, e Killer Whale Who Changed the World (Vancouver:
Greystone, 2016).
55. Newman, supra note 44 at 51.
56. Ibid at 21; Leiren-Young, supra note 54 at 83.
365
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set out to the waters off Saturna Island to harpoon and kill a killer whale
for the sculpture. After two months without success, they were ready to
give up the attempt when an orca pod approached their camp and one
small, curious member of the group came close enough for Burich to
harpoon it. is whale was small because he was young, probably about
five years old.57
Burich’s harpoon strike did not kill the whale; it only pierced his
skin and blubber.58 He also tried shooting the orca, but still failed to kill
him. en something unexpected happened: Burich and Bauer watched
as two larger orcas from the pod59 lifted the injured young whale to the
surface and supported him to prevent him from drowning, until he
began to breathe and slowly swim on his own.60 is behaviour had never
been observed before. e orcas’ gentleness and care for their hurt family
member belied their reputations as vicious killers.
e young orca was still attached to the fishing boat by the harpoon
and its line. Without intending to, Burich and Bauer had become the
first people to capture a live orca. Watching the injured orca’s pod-mates
help and protect him had sparked their compassion; they had set out
to kill him, but now they wanted to save his life.61 Newman and the
two fishermen decided that that the orca should be brought back to
Vancouver. ey saw that their captive would offer an unprecedented
57. Leiren-Young, ibid at 121.
58. Ibid at 43.
59. We understand far more now about orcas’ social and kinship groups than
was known in the 1960s. Based on current understanding of orca social
groupings, it is very likely that the whales who rescued Moby Doll after
he was harpooned and shot were his family members, including, probably,
his mother and/or grandmother.
60. Lieren-Young, supra note 54 at 42–44. As Leiren-Young’s account
documents, the orca’s relatives remained steadfastly vigilant and devoted
until he died. Older members of the pod followed him to Vancouver
harbour and stayed there to the end. e Canadian military donated a
hydrophone, which captured the sound of Moby Doll communicating
with another killer whale that seemed to be about two miles away (at 77).
On the day Moby died, “several whales clustered outside the pen” and
seemed to be communicating with him (at 114).
61. Leiren-Young, ibid.
366
Sykes, e Whale, Inside
opportunity for research, enabling scientists to study killer whale
physiology, communication and behaviour by observing a live specimen
for the first time. Having the world’s first live-captured orca would also
prove to be a powerful driver of publicity and interest for the aquarium.
When they arrived at Vancouver Harbour with Moby Doll in tow,
the young whale was housed first in a drydock in North Vancouver and
then in a specially constructed pen at Jericho Beach. Newman chose
the name Moby Doll for him.62 At the time, the consensus among the
scientists who had observed him was that he was female, although after
his death it was confirmed that he was in fact male — as Bauer, who had
been able to get a good look at the relevant part of Moby’s anatomy after
harpooning him, had insisted all along.63
Moby Doll lived for 87 days before he succumbed to infections and
exhaustion and died on October 9, 1964.64 During that short time, he
became an international celebrity, the subject of media attention locally
and around the world. When his pen at the Burrard Drydock was opened
to the public, 20,000 people came to look at him.65 At the beginning,
Moby Doll swam listlessly in circles in the tank and refused to eat. Later
on, he began eating, taking food from his caretakers’ hands, playing, and
letting caretakers rub his stomach and scratch his fins.66 e people who
observed and cared for the young whale evidently were enchanted by this
intelligent, docile, sociable creature, and developed a strong bond with
him. e image of the killer whale changed profoundly, from a ruthless
and bloodthirsty killer to a gentle, intelligent, and powerfully attractive
animal. All things considered, this image makeover may not have been to
62. Ibid at 82.
63. Ibid at 119–120.
64. Newman, supra note 44 at 54.
65. Ibid.
66. Leiren-Young, supra note 54 at 110–113.
367
(2019) 5 CJCCL
the benefit of the orcas.67
e Moby Doll episode started two developments, both of which are
an important part of the historical background to the current legislative
initiative to ban cetacean captivity. One of those developments is the
phenomenon of cetacean captivity itself, which took off following
Moby Doll’s brief, tragic period of celebrity. e Vancouver Aquarium’s
experience with Moby Doll disproved the received wisdom that killer
whales were aggressive and dangerous to humans, and demonstrated
that these animals would bond with humans and could be trained to do
entertaining tricks. It also proved that people were very, very interested
in looking at them. As a 1987 New York Times story put it, “[a]quarium
operators realized in 1964 that an orca on display meant money in the
bank”.68 After Moby, there ensued what Leiren-Young calls a “blackfish
gold rush”.69 Everyone wanted an orca. Seattle Aquarium got an orca,
Namu;70 then SeaWorld acquired its original Shamu;71 and then
Vancouver Aquarium got its first killer whale, Skana, who was at the
aquarium for thirteen years.72
e second development was the beginning of opposition to
captivity. e Vancouver branch of the British Columbia Society for the
Prevention of Cruelty to Animals (“BC SPCA”) and local animal activists
criticized the aquarium for dragging the injured Moby Doll to shore from
67. Not everyone would agree with this assessment. See Newman, supra note
44, who captures what is probably the most commonly invoked rationales
for captive cetacean displays (a version of an argument used to justify
zoos more generally) when he writes that “exhibiting a few rescued [sic]
whales is justified if it contributes to the betterment of all whales, as it did
in BC” at 63. Whales may now be more beloved and revered than they
once were, and it seems reasonable to surmise that there is a connection
to the fascination and sense of connection people experience when they
visit captive cetaceans on display. But whether the condition of whales has
really been ‘bettered’ from the 1960s to now is far more questionable.
68. Wallace Turner, “For Once-Hated Killer Whales, Changing Attitudes
Mean New Friends” e New York Times (20 September 1987) 26.
69. Leiren-Young, supra note 54 at 117.
70. Ibid at 126.
71. Ibid at 129.
72. Ibid at 129–130; Newman, supra note 44 at 55.
368
Sykes, e Whale, Inside
Saturna and for keeping it imprisoned for people to look at.73 As Leiren-
Young observes, “the first killer whale in captivity had launched the first
anti-captivity activists”.74 In addition to these objections concerning the
welfare of the animals, there were also environmental concerns. As the
rush to capture orcas from the wild escalated, the destructive impact
on the species eventually triggered widespread public opposition to
taking cetaceans from the wild, which in turn led to legal restrictions
on live-capture in both Canada and the US.75 Greenpeace, one of the
world’s first (and still one of the most prominent) environmental non-
governmental organizations, began in Vancouver and shifted its focus
from nuclear testing to protecting whales in this period.76 Some of the
earliest Greenpeace activists had personal connections and experiences
with captive whales that profoundly shaped their environmental
consciousness — Paul Spong, for example, worked with the orcas at
Vancouver Aquarium and was convinced by his interactions with them
that they were profoundly intelligent creatures and deserved to be free.77
Colby argues that the orca capture controversy shaped the ecological
consciousness and values of the whole Pacific Northwest region.78
Vancouver Aquarium decided to discontinue taking orcas from
the wild under a board policy adopted in 1992.79 Acquiring them from
other aquariums was prohibitively expensive, and attempts at in-house
73. Leiren-Young, supra note 54 at 61–63, 93.
74. Ibid at 93.
75. Leiren-Young, ibid writes that as a result of the live-capture boom
of the 1960s and 1970s the southern resident killer whales of the
Pacific Northwest “lost a generation” (at 131). On the history of
environmentalist protest against orca captures in British Columbia and
Washington State, see Jason Colby, “e Whale and the Region: Orca
Capture and Environmentalism in the New Pacific Northwest” (2013)
24:2 Journal of the Canadian Historical Association 425.
76. Leiren-Young, ibid at 140–143.
77. Ibid at 139–140.
78. Colby, supra note 75 at 427–429.
79. Newman, supra note 44 at 62. In any event, it is unlikely that it could
have done so legally in Canada at that time; see discussion in Part IV.B
below.
369
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breeding were unsuccessful.80 A few years later, Vancouver Aquarium
decided to stop displaying orcas and transferred its last captive orca to
SeaWorld.81 e continuing controversy over the ethics of keeping and
displaying cetaceans prompted Vancouver Aquarium to announce in
February 2017 that it would phase out its beluga whale program, and to
state in January 2018 that it planned in the future to stop housing and
displaying all cetaceans.82
Cetacean captivity at Vancouver Aquarium has also been an ongoing
source of friction with its effective landlord, the Vancouver Board of
Parks and Recreation (“Parks Board”). Vancouver Aquarium’s Marine
Science Centre is situated in Stanley Park, which is administered by
the Parks Board. e 1996 version of the licence agreement between
the Parks Board and Vancouver Aquarium incorporated the aquarium’s
commitment not to keep wild-caught cetaceans, as does the 1999 version
(which remains in force).83 In 2017, the Parks Board voted to prohibit
the possession of any captive cetaceans on park lands,84 a decision
which would make the Aquarium’s voluntarily announced intention to
phase out holding captive cetaceans into a legal obligation. Vancouver
Aquarium challenged the by-law as invalid because it conflicted with the
terms of the 1999 licence agreement, and initially succeeded in having
it overturned on judicial review.85 at decision was overturned in 2019
by the British Columbia Court of Appeal, which remitted the case to the
Supreme Court of British Columbia for determination on whether the
ban is invalid on additional grounds that were raised by the Aquarium
80. Ibid.
81. Leiren-Young, supra note 54 at 150.
82. Susan Lazaruk & Glenda Luymes, “Vancouver Aquarium Bows to
Pressure to Ban Whales, Dolphins” (18 January 2018), online: Vancouver
Sun
pressure-to-ban-cetaceans>.
83. e relevant portions of the 1996 and 1999 agreements are excerpted
in Ocean Wise Conservation Association v Vancouver Board of Parks and
Recreation, 2018 BCSC 196 at paras 12, 34, respectively [Ocean Wise].
84. Ibid at para 14.
85. Ibid.
370
Sykes, e Whale, Inside
but not addressed in the Supreme Court’s 2018 judgment.86 As this
article goes to press, the Vancouver Aquarium has just announced that it
is dropping the lawsuit challenging the by-law.
Vancouver Aquarium has also been the target of some (although
generally not mainstream) media criticism. In 2015, Vancouver
documentary filmmaker, Gary Charbonneau, released Vancouver
Aquarium Uncovered using online hosting services Vimeo and YouTube. 87
e film questioned the Vancouver Aquarium’s public image as a benign
conservation and research organization, and (in a manner reminiscent
of Blackfish) highlighted the harms associated with cetacean captivity.
Somewhat surprisingly, the Vancouver Aquarium responded by suing
the filmmaker for copyright infringement, and succeeded in obtaining
an interlocutory injunction ordering the removal from the film of
some images and footage over which the Vancouver Aquarium asserted
copyright.88 at injunction was set aside by the British Columbia Court
of Appeal,89 in a decision that recognized the importance of not allowing
copyright claims to “silence criticism” and “stifle public debate on a topic
of great interest to the community”.90
In both the Ocean Wise BC Supreme Court case that struck down the
Parks Board by-law and the Charbonneau copyright case, Animal Justice
was granted intervener status, giving it a unique ability to make arguments
in court as an advocate for the interests of animals. In Charbonneau,
Animal Justice highlighted the potential for aggressive copyright claims to
be used by animal-use industries “to suppress production of unfavourable
and critical publications”91 and the heightened risks that would create for
86. Ocean Wise Conservation Association v Vancouver Board of Parks and
Recreation, 2019 BCCA 58.
87. Gary Charbonneau, “Vancouver Aquarium Uncovered” (2015), online
(video): Vimeo
aquarium-uncovered/>.
88. Vancouver Aquarium Marine Science Centre v Charbonneau, 2016 BCSC
625.
395.
90. Ibid at para 79.
91. Ibid at para 30.
371
(2019) 5 CJCCL
an organization trying to expose animal abuse and change public opinion
about the treatment of animals. In Ocean Wise, Animal Justice made
submissions specifically with respect to Vancouver Aquarium’s argument
that shutting down its captive cetacean program would unconstitutionally
limit its freedom of expression, on the premise that whale and dolphin
displays are a form of expression.92 e implications of that position for
regulating animal-use industries would be very profound. Since the court
decided in Vancouver Aquarium’s favour on other grounds, it did not
find it necessary to address the constitutional argument. In both cases,
then, the effect of Animal Justice’s presence as part of the proceedings was
subtle — but, nevertheless, not insignificant. Because an animal advocacy
organization was in the courtroom advocating on behalf of the animals,
a novel development in Canadian litigation, the broader questions about
cetacean captivity and human use of animals that formed the background
and context of both cases were not forgotten.
B. Marineland
Marineland is a privately owned amusement park, zoo, and aquarium
in the tourist town of Niagara Falls in Southern Ontario. In 1961,
Marineland owner John Holer saw that there was a market for additional
attractions for tourists to visit when they came to see the famous falls.
Holder “welded two large steel tanks together on a one-acre plot on
the current site of Marineland”,93 installed three sea lions, and charged
admission to view and feed the animals. Marineland opened on the site
1963.94 From those humble beginnings, it has grown into a large theme
park and tourist attraction, with about 4,000 land and aquatic animals
92. Ocean Wise, supra note 83 at para 22.
93. Liam Casey, “e Man Behind Marineland: 50 Years of Controversy”
(3 October 2011), online: e Toronto Star .thestar.com/news/
gta/2011/10/03/the_man_behind_marineland_50_years_of_controversy.
html>.
94. Liam Casey, “OSPCA Responds to Lawsuit: Marineland ‘e Author
of its own Misfortune’” (5 January 2018), online: e Globe and Mail
marineland-the-author-of-its-own-misfortune/article37512576/>.
372
Sykes, e Whale, Inside
as well as rides.95 Holer, a vivid and controversial character, remained the
owner of Marineland until his death in June 2018.
Ceta-Base shows Marineland as having 60 cetaceans as of September
8, 2018: five bottlenose dolphins, 53 belugas (including five calves listed
as born in 2018), and one orca (Kiska).96 Marineland advertises “the
largest collection of beluga whales in the world”97 as one of its attractions.
Shows featuring performing beluga whales, dolphins and walruses are
presented at King Waldorf’s Stadium.98 For anyone who has been near
a television or a radio in Southern Ontario in the last few decades,
Marineland is indelibly associated with its slogan and jingle: “Everyone
loves Marineland”.
Public concern about the living conditions of the Marineland animals,
including its cetaceans, may be the single most important force driving
legislative action on captive cetaceans — both Bill S-203 at the federal
level and (as set out in Part IV.C. below) law reforms at the provincial level
in Ontario. Marineland has been the target of criticism by opponents of
captivity since the 1990s.99 But opposition to Marineland shifted into
the mainstream much more recently, because of an extensive, multi-year
investigation by e Toronto Star (“Star”) newspaper beginning in 2012.
e Star’s findings were revealed in a series of articles beginning with
a disturbing exposé published in August 2012, which opens with the
plight of a seal named Larry:
Larry lies behind bars in a pen, his eyes red and swollen. e harbour seal with
“an amazing little personality” who arrived at Marineland about eight years ago
is now a shadow of his former self. After repeated exposure to unhealthy water,
95. Ibid.
96. “Cetaceans: Marineland Canada” (2018), online: Ceta-Base .
cetabase.org/captive/cetacean/marineland-canada/>.
97. “Attractions” (2018), online: Marineland
attractions/arctic/>.
98. “Fun Filled Show” (2018), online: Marineland .marinelandcanada.
com/attractions/shows/>.
99. Charlotte Montgomery, Blood Relations: Animals, Humans, and Politics
(Toronto: Between the Lines, 2000) at 207–210.
373
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he has gone blind.100
e Star’s Marineland coverage, led by reporters Linda Diebel
and Liam Casey, was an exhaustive project that drew on whistleblower
revelations from park employees and resulted in dozens of articles.101
Diebel and Casey set out an overview of how the story unfolded in a Star
Dispatches e-book published in 2013.102
Marineland was investigated both by the Ontario Society for the
Prevention of Cruelty to Animals (“OSPCA”) and the self-regulatory
organization Canada’s Accredited Zoos and Aquariums (“CAZA”), and
agreed to make a number of changes to improve the living conditions of
its animals.103 It also fought back, suing the Star for libel,104 the OSPCA
for malicious prosecution,105 and even a 19-year-old college student and
seasonal Marineland employee who made an unreleased short film critical
of cetacean captivity with some footage of Kiska the killer whale.106
100. Linda Diebel, “Marineland Animals Suffering, Former Staffers Say”
(15 August 2012), online: e Toronto Star
canada/2012/08/15/marineland_animals_suffering_former_staffers_say.
html>.
101. A search for ‘Marineland’ in e Toronto Star online archive on August 25,
2018 yielded 217 results (not all are from the investigative series).
102. Linda Diebel & Liam Casey, Marineland: Inside the Controversy (Toronto:
Star Dispatches, 2013).
103. See detailed discussion in Part IV below.
104. Ray Spiteri, “Marineland Files Libel Suit Against Toronto Star” (23 April
2013), online: Toronto Sun
files-libel-suit-against-toronto-star/wcm/036cbcd3-d097-4c18-a880-
10b611449312>.
105. e Canadian Press, “Marineland Sues OSPCA for $21M, Alleges Agency
Wanted to ‘Destroy’ eme Park” (27 October 2017), online: CBC News
alleges-agency-wanted-to-destroy-theme-park-1.4374712>.
106. e Current, “Marineland Sues College Student for $1M Over
Unreleased Orca Film” (20 May 2016), online: CBC Radio
radio/thecurrent/the-current-for-may-20-2016-1.3590817/marineland-
sues-college-student-for-1m-over-unreleased-orca-film-1.3590829>.
374
Sykes, e Whale, Inside
C. Carnival and Conservation: e Meanings of Marine
Parks
Susan G Davis has described the dichotomy of cultural forces shaping
the modern nature theme park, with its historical roots connected to
the amusement park, the circus and the carnival — combining thrills
for the masses with the display of exotic animals — together with its
more modern, salubrious, self-presentation as an institution concerned
with science, protection of the natural world, and public education.107
Like zoos, aquariums or marine parks, as places for displaying exotic and
fascinating captive wild animals often from faraway lands, have their
antecedents in the menageries of European royalty and the collections of
animals that Roman emperors amassed for public games.108 e modern
zoo, displaying animals to the public for education and associated with
learning and scientific inquiry, was first seen in Europe in the eighteenth
century and became widespread in Europe and North America by the
nineteenth.109 Zoos and aquariums still present themselves as scientific,
educational, and serious, as distinguished from mere pleasure-gardens.
It remains true that the main reason people visit these places is pleasure,
and the experience offered must be enjoyable (at least as much as it is
scientific, educational, and serious) to keep people coming through the
turnstiles.
With the rise of popular environmental consciousness in the last
few decades, zoos and aquariums have also become associated with
the preservation of threatened nature. ey conduct captive breeding
programs to augment the numbers of species that are depleted in the
wild, carry out research intended to support conservation of animals
in their natural habitats, and, by providing people with a personal
107. Susan G Davis, Spectacular Nature: Corporate Culture and the SeaWorld
Experience (Berkeley: University of California Press, 1997) at 20–39.
108. Dale Jameson, “Against Zoos” in Peter Singer, ed, In Defense of Animals:
e Second Wave (Malden, Massachusetts and Oxford: Blackwell, 2006)
132 at 132.
109. Ibid at 132–133; Susan Margulis, “Zoos as Venues for Research” in Jesse
Donahue, ed, Increasing Legal Rights for Zoo Animals: Justice on the Ark
(Lanham: Lexington, 2017) 49.
375
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connection with animals they would not be able to see in their natural
habitats, encourage the public to appreciate the intrinsic value of wild
creatures and develop a sense of custodianship for threatened nature.110
e environmentalist packaging of captive wildlife attractions is nowhere
more emphasized than it is for captive cetaceans, probably because
marine mammals generally, and whales and dolphins especially, have
such powerful significance as symbols of a pristine and imperiled natural
world.111
e two remaining Canadian facilities that have captive cetaceans,
Marineland and Vancouver Aquarium, illustrate the two threads in
the history of these attractions (and also how intertwined they are).
Marineland is closer to the carnival side of the genealogy. It is an
amusement park with added animals, and it does not really pretend to be
anything else. Because it is a private company, it is under no obligation to
provide disclosure to investors, as SeaWorld must,112 nor to portray itself
110. Ibid.
111. See Lien supra note 4 (Lien’s 1999 review for DFO of live-capture and
captivity of marine mammals in Canada notes that marine mammals “are
of passionate interest to much of the Canadian public who care deeply
about their conservation and welfare” because they are “a symbol of man’s
abuse of nature, of the health of the ocean ecosystem and a frontier for
exploring the relationship between humans, animals and nature” at 13).
See also Davis, supra note 107 (noting that cetaceans are associated in
New Age philosophy with “expanding consciousness” and thought of as
“spiritual healers and helpers” that “connect humans to a ‘more aware’ way
of being” at 227).
112. SeaWorld Entertainment, Inc., Annual Report (Form 10-K) (April 25,
2018). SeaWorld Entertainment, Inc. is a public company that trades
on the New York Stock Exchange under the ticker symbol SEAS. Its
communications to investors emphasize education, care for animals and
environmental responsibility alongside the profit-generating enterprise
of providing consumers with enjoyable experiences. In its 2017 Annual
Report to shareholders, the company states that its attraction for visitors
is “a compelling combination of entertainment, education, and our
exceptional ability to connect people and wildlife” (at 1), and describes
itself as “a global leader in animal welfare, training, husbandry, veterinary
care and marine animal rescue” that is “committed to helping protect and
preserve the environment and the natural world” (at 3).
376
Sykes, e Whale, Inside
to investors as a socially responsible corporation. Unlike the nonprofit
Vancouver Aquarium, Marineland faces no pressure to justify its existence
with reference to a public interest mission. Like many of the circuses and
sideshows of earlier times, Marineland is closely identified with a single
dominant and colourful figure, owner John Holer. Vancouver Aquarium,
by contrast, creates an impression that entertainment and the attraction
of paying customers are mere afterthoughts to its primary functions of
saving and rehabilitating injured animals, conducting scientific research,
and raising public consciousness about ocean life.
At the same time, Marineland’s marketing copy does evoke an
association with research, education, and the environment. e “Message
from the Owner” on Marineland’s website tells readers that since the
attraction opened:
we have hosted, educated and entertained literally millions of young people.
We have heard from many marine biologists, veterinarians, conservationists
and oceanographers that it was their childhood experience at Marineland that
inspired them to learn more about the wonders of the ocean and its amazing
aquatic life.113
And Vancouver Aquarium’s financial disclosure suggests that attracting
paying visitors is not an entirely subordinate priority to research, rescue,
and conservation: the financial statement in its 2017 Annual Report
indicates that 18% of total expenditures were for “conservation, research
and education” and 11% for “animal care” (which would include all
animals in the facility, not just those receiving rehabilitation). Other major
expenditures include 9% for “retail operations”, 12% for “marketing and
external relations” and 14% for “general administration”.114
In a way, the presentation of whales and dolphins to the public in
displays and shows like those at Marineland and Vancouver Aquarium,
although very successful and popular for many years, laid the foundations
113. “A Message From e Owner” (2018), online: Marineland
marinelandcanada.com/general/general_information/>.
114. “Ocean Wise 2017 Annual Report” (2017), online (pdf): Vancouver
Aquarium
t/5adf629e70a6ad662793e3bd/1524589247160/OceanWise_
AnnualReport2017.pdf>, at 5.
377
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for the anti-captivity movement and for the demise of these very practices.
As Charlotte Montgomery observes in her account of the controversy
over Marineland and other captive cetacean facilities:
[t]here is a growing sentiment that the justification for keeping animals captive
must include research, the conservation of rare species, or educational programs,
all with natural settings and a consideration for the animals’ behavioural needs,
rather than simply showing them off to the curious. at conviction, moving
beyond basic sympathy, has motivated demands for government regulation.115
Aquariums and marine parks that acquired and displayed cetaceans
achieved what they wanted to: they made people fall in love with
marine animals, and they made it possible for researchers to deepen our
knowledge of them. And then people started asking hard questions about
what was being done to these creatures whose intelligence and complexity
we now understand so much more than we used to, and whom we have
come to love and revere.
IV. Current Canadian Regulation
ere are already some laws and regulations in Canada on cetacean
captivity, having to do mainly with restricting the capture of cetaceans
from the wild and regulating the conditions in which captive cetaceans are
kept. e existing legal protections for cetaceans in captivity in Canada
are limited, and weakened by regulatory gaps. e gaps are related partly
to the division of powers in Canada’s federal system of government, a
division that animal protection straddles precariously,116 and also partly
to the semi-privatization of animal welfare law enforcement.
115. Montgomery, supra note 99 at 207.
116. On the allocation of constitutional jurisdiction over animals and animal
protection, see Monique Herbert, “Animal Protection: An Overview”
(Ottawa: Library of Parliament, 1984).
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A. Criminal Law
Under Section 91(27) of the Constitution Act, 1867,117 the federal
government has jurisdiction to enact criminal law. e Criminal Code118
includes several offences related to harming or killing animals, including
the offence of causing unnecessary suffering to animals, set out in section
445.1(1)(a) of the Code. e offence is committed if a person “wilfully
causes or, being the owner, wilfully permits to be caused unnecessary
pain, suffering or injury to an animal or a bird”.119
On the apparent meaning of this provision, it is possible — at least
theoretically — that keeping cetaceans in captivity could be a criminal
matter under the general animal cruelty provision, independent of the
new amendment to the Code that specifically bans it. e scientific
consensus at this time appears to be more or less clear that confinement
in small spaces and isolation from normal social relationships does cause
these animals to suffer.120 Situations where animals endure painful health
problems due to the conditions they are kept in — for example, the eye
and skin injuries that numerous seals, walruses and belugas suffered at
Marineland apparently because of water quality problems, revealed in
the Star investigation — would yet more obviously meet the element
of causing “pain, suffering or injury”.121 e question is whether in the
117. Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985,
Appendix II, No 5 [Constitution Act, 1867].
118. Criminal Code, supra note 14.
119. Ibid, s 445.1(1)(a).
120. Marino & Frohoff, supra note 27. See also discussion in omas I White,
“Dolphins, Captivity, and SeaWorld: the Misuse of Science” (2017) 122:1
Business and Society Review 119.
121. Criminal Code, supra note 14, s 445.1(1)(a).
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circumstances suffering is unnecessary, and willfully caused,122 within the
meaning of the statute. In practice, these requirements are very difficult
to establish on a criminal standard of proof, and criminal prosecutions
for animal cruelty are usually limited to situations of gratuitous violence
and sadistic abuse.123 Use of animals in a commercial context rarely
triggers criminal liability, even in situations where there is little argument
that the animals suffer (and could suffer less with improvements in their
treatment).
Although criminal law does theoretically set outer limits on how
owners and custodians of captive cetaceans can treat the animals they are
responsible for, practically speaking the criminal law as it stood before
Bill S-203 was essentially irrelevant to the regulation of cetacean captivity.
B. Fisheries and Oceans
e federal government has jurisdiction over coastal waters and inland
fisheries pursuant to section 91(12) of the Constitution Act, 1867.124 e
Fisheries Act125 is the main piece of Canadian legislation that governs
fishing, including of marine mammals (which are defined as ‘fish’ under
the statute).126 Regulations promulgated under the Fisheries Act, the
Marine Mammal Regulations,127 set out the rules for hunting and capture
122. Proving the mental element is challenging due to the legal complexity of
the required mens rea standard of wilfulness. An opportunity to clarify the
law on this question was, regrettably, not fully taken advantage of by the
British Columbia Court of Appeal in R v Gerling, 2016 BCCA 72 (where
some of the analysis may risk making it more difficult for the Crown to
establish wilfulness than appears to have been intended by the legislator).
See discussion in Peter Sankoff, “e Mens Rea for Animal Cruelty After
R. v. Gerling: A Dog’s Breakfast” (2016) 26 Criminal Reports (7th) 267,
especially at 271.
123. Bisgould, supra note 38 at 71–75.
124. Constitution Act, 1867, supra note 117.
125. Fisheries Act, supra note 18.
126. Ibid, s 2 (the interpretation section provides that the term “fish” includes
marine animals, any parts of marine animals, and the eggs and sperm of
marine animals).
127. SOR/93-56.
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of marine mammals. e federal government department responsible for
these rules and for Canada’s ocean policies is Fisheries and Oceans Canada,
known by the acronym DFO (from its former title, the Department of
Fisheries and Oceans).
e regime under the Fisheries Act and the Marine Mammal
Regulations does not impose an outright ban on taking cetaceans from the
wild to put them on display, but hunting or taking of marine mammals
and transportation of marine mammals across provincial borders is legal
only under a license granted by DFO.128 DFO has not granted licenses to
take cetaceans for captive maintenance in Canada since the 1990s.129 But
there are no prohibitions on importing live cetaceans or their reproductive
material, or on captive breeding. Furthermore, DFO has no authority to
monitor or direct the welfare conditions for cetaceans that are kept in
captivity. is matter is really beyond the scope of federal jurisdiction
over fisheries and, as discussed in Part IV.C, falls within provincial
jurisdiction to regulate animal welfare standards. us, although DFO
has the authority to regulate capture of cetaceans from the wild (and
has effectively ended that practice in Canadian waters), it is not well
equipped to address the ongoing ethical and animal welfare concerns that
arise from keeping cetaceans in captivity.
128. Section 5 of the Marine Mammal Regulations provides that no person may
fish for marine mammals except under the authority of a licence issued
under the regulations (with exceptions for fishing pursuant to Aboriginal
rights). ‘Fishing’ is defined in section 2 of the Fisheries Act as “fishing for,
catching or attempting to catch fish by any method”. Section 16(1) of
the Marine Mammal Regulations prohibits the transportation of marine
mammals or marine mammal parts from one province to another except
under a marine mammal transportation licence issued by DFO. Section
15(c) requires the issuance of a marine mammal transportation licence,
upon application, “in respect of any marine mammal or marine mammal
parts to be used for experimental, scientific, educational or public display
purposes”.
129. Lien, supra note 4 at 5.
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C. Provincial Animal Welfare Law
Under section 92(13) of the Constitution Act, Canadian provincial
governments have authority to legislate with respect to “property and
civil rights in the province”,130 and under section 92(16) the provinces
have jurisdiction over “matters of a merely local or private nature in
the province”.131 Legally, nonhuman animals, including cetaceans, are
property. Regulating the conditions in which animals are kept means
regulating property and local concerns in the province and is thus a
matter of provincial jurisdiction.132 In Ontario (where Marineland is
situated) the main provincial animal welfare law is the Ontario Society
for the Prevention of Cruelty to Animals Act (“OSPCA Act”).133 In British
Columbia (home of the Vancouver Aquarium) it is the Prevention of
Cruelty to Animals Act (“PCA Act”).134
A common feature of provincial animal welfare laws, which appears in
both the Ontario and British Columbia statutes, is a generally applicable
prohibition on subjecting animals to ‘distress’. is typically includes
keeping an animal in a situation where it does not have adequate space,
food, water, or veterinary care, or is in pain or suffering, together with
more specific regulatory standards of care for the conditions in which
animals must be kept (which can vary considerably between provinces and
depending on the type of animal and the context).135 ese provisions are
typically coupled with exemptions from liability for animal husbandry
practices that are commonly followed or are the industry norm.136
Section 11.2 of the OSPCA Act prohibits causing an animal to be in
distress, or permitting an animal to be in distress if one is the owner or
custodian. “[D]istress” is defined as “the state of being in need of proper
care, water, food or shelter or being injured, sick or in pain or suffering
or being abused or subject to undue or unnecessary hardship, privation
130. Constitution Act, 1867, supra note 117.
131. Ibid.
132. Herbert, supra note 116.
133. RSO 1990, c O.36 [OSPCA Act].
134. RSBC 1996, c 372 [PCA Act].
135. Bisgould, supra note 38 at 106.
136. Ibid at 107–109.
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or neglect”.137 Section 11.1(2) exempts from the distress prohibition all
activities “carried on in accordance with reasonable and generally accepted
practices of agricultural animal care, management or husbandry”138 and,
where regulations are specified for a class of animals, activities carried out
in accordance with the regulations.
e OSPCA Act was amended in 2015, in the aftermath of the Star
investigation of Marineland, to prohibit possession and breeding of orcas
in Ontario.139 Possession of orcas that were already in captivity when
the amendment came into force is exempt.140 Effectively, the statute
now requires that orca captivity will be phased out in Ontario — but
it permits Marineland to retain the single orca (Kiska) who is still living
there.
In addition, after the Marineland scandal, Ontario brought in
new regulations141 under the OSPCA Act establishing standards of care
and administrative requirements specific to marine mammals kept in
captivity (“Standards of Care”). ese are the first, and so far the only,
such standards to be adopted by a Canadian province.142 In the wake
of the Star investigative series, the Ontario Ministry of Community
Safety and Correctional Services, which is responsible for administering
the province’s animal welfare laws, commissioned an expert report on
captive marine mammal welfare from a panel chaired by University of
British Columbia marine biologist, Dr. David Rosen.143 e report was
completed in 2014, and the government then drafted the new Standards
of Care based on its recommendations. e new regulations were adopted
in 2016.
137. OSPCA Act, supra note 133, s 1.
138. Ibid, s 11.1(2).
139. Ibid, s 11.3.1(1).
140. Ibid, s 11.3.1(2), (3).
141. O Reg 60/09.
142. O Reg 438/15, amending O Reg 60/09 [Standards of Care].
143. Ontario Ministry of Community Safety and Correctional Services,
Developing Standards of Care for Marine Mammals in Captivity and
Recommendations Regarding How Best to Ensure the Most Humane
Treatment of Captive Cetaceans (30 May 2014), online (pdf):
jus.gov.on.ca/sites/default/files/content/mcscs/docs/ec167997.pdf>.
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e Standards of Care require anyone in possession of a marine
mammal to establish a committee with expertise, experience, and
independence144 to be responsible for developing and maintaining
an animal welfare plan for each captive marine mammal. e plan is
required to address such matters as food, social interaction, environmental
enrichment, air, breeding, and euthanasia.145 e Standards of Care also
establish detailed requirements for appropriate enclosures with sufficient
space and features to meet the animal’s needs,146 and for monitoring and
maintaining proper water quality.147
In British Columbia, the basic statutory framework is similar, but
there are no specific regulations tailored to the needs of marine mammals
or cetaceans.
Section 9(1) of the PCA Act provides that “[a] person responsible
for an animal must care for the animal, including protecting the animal
from circumstances that are likely to cause the animal to be in distress”,148
section 9.1(2) provides that “[a] person responsible for an animal must
not cause or permit the animal to be, or to continue to be, in distress”,149
and section 23.2(1) provides that no person may cause an animal to be
in distress.150 “[D]istress” exists if the animal is deprived of adequate
144. Standards of Care, supra note 142, s 7(3)–(4), (the committee must
include a marine mammal veterinarian (who must chair the committee),
a resident of the local community who is not an employee or independent
contractor of the person in possession of the marine mammal, a person
who has studied marine mammal biology and is not an employee
or independent contractor of the person in possession of the marine
mammal, a person who is responsible for the daily care of the marine
mammal, and a person who is responsible for the maintenance of the
location where the marine mammal is kept. For the relevant parts of the
welfare plan the commitee must consult with a person or persons with
expertise in the social and enrichment needs of the marine mammal’s
species (s 8(2)).
145. Ibid, s 8(1).
146. Ibid, s 17.
147. Ibid, s 18.
148. PCA Act, supra note 134, s 9(1).
149. Ibid, s 9.1(2).
150. Ibid, s 23.2(1).
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food, water, shelter, ventilation, light, space, exercise, care or veterinary
treatment; kept in conditions that are unsanitary; not protected from
excessive heat or cold; injured, sick, in pain or suffering; or abused or
neglected.151 Section 24.02(c) exempts from offences, in relation to
distress, activities “carried out in accordance with reasonable and generally
accepted practices of animal management that apply to the activity in
which the person is engaged”.152 Regulated activities are required to be
carried out in accordance with the applicable regulations.153
British Columbia has not adopted regulations establishing standards
of care specifically for captive cetaceans, and it seems unlikely that the
government will look to do so given Vancouver Aquarium’s announcement
that it plans to phase out its captive cetacean holdings.
In British Columbia, therefore, the operative provincial legal standard
concerning the conditions of cetacean captivity is by default the general
requirement that animals not be subjected to ‘distress’ — meaning that
they cannot be made to suffer, or kept without adequate food, space or
veterinary care — but only if distress results from activities that diverge
from the “reasonable and generally accepted practices”154 followed in the
activity of keeping captive cetaceans. is was also the relevant standard
in Ontario before the adoption of the specific Standards of Care for
captive marine mammals in 2016.
is imprecise legal standard, coupled with the exemption for
reasonable and generally accepted practices, means that enforcing and
applying the law is challenging. Prima facie, it may indeed seem that
cetaceans kept in captivity experience distress, if they are subjected to
poor welfare conditions (such as contaminated water or badly designed
enclosures), or even because being in captivity in and of itself creates
suffering — as the Committee witnesses on Bill S-203 argued — for
animals who are used to swimming free over vast distances and being part
of rich and complex social relationships. But, assuming there is suffering
or distress, there would still be significant uncertainty about whether
151. Ibid, s 1.
152. Ibid, s 24.02(c).
153. Ibid, s 24.02 (b), (c).
154. Ibid, s 24.02(c).
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legal liability would be triggered. ere is only one entity in British
Columbia that engages in the activity of keeping cetaceans in captivity:
the Vancouver Aquarium. Arguably, whatever it does is the ‘generally
accepted practice’ for that activity in the province (although that would
not in itself establish that the practices in question are ‘reasonable’).
As David Wolfson and Mariann Sullivan have argued (with respect
to farming, but the observation applies to other animal-use industries
as well), statutory exemptions for ‘customary’ or ‘generally accepted’
practices can have the effect — quite remarkable from a rule-of-law
standpoint — of allowing animal-use industries to define through their
own practices what constitutes cruelty, thus “delegating enforcement
power to the industry itself”.155
Another limitation on the effectiveness of animal welfare laws is the
unique system of investigation and enforcement of those laws. Police
powers over inspections, assessment, investigations and enforcement
are shared between the public authorities and private animal protection
organizations. ese private animal protection societies have primary
responsibility for overseeing compliance with animal protection law,
including federal criminal law as well as provincial legislation. 156 In
Ontario, the relevant body is the OSPCA,157 and in British Columbia it
is the BC SPCA.158
155. David J Wolfson & Mariann Sullivan, “Foxes in the Henhouse: Animals,
Agribusiness and the Law: A Modern American Fable” in Cass R Sunstein
& Martha C Nussbaum, eds, Animal Rights: Current Debates and New
Directions (Oxford: Oxford University Press, 2004) 205 at 215.
156. Bisgould, supra note 38 at 110–111; Animal Justice Canada, OSPCA Act:
A Better Way Forward: A Report on the Ontario Society for the Prevention
of Cruelty to Animals Act (2013), online (pdf):
content/uploads/2014/02/Animal-Justice-OSPCA-Act-A-Better-Way-
Forward-FINAL-140119.pdf> [A Better Way Forward].
157. Sections 2 through 10 of the OSPCA Act, supra note 133, provide for
the continuation of the OSPCA (which was incorporated under earlier
legislation), set out its constitutive rules, and establish its police powers.
158. Sections 3 through 9 of the PCA Act, supra note 134, continue the BC
SPCA and establish its constitutive rules; its powers and duties are set
forth in other provisions throughout the statute.
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ere is much about this enforcement system that is anomalous and
troubling, and that arguably weakens the practical effectiveness of laws
that are supposed to protect animals.159 With respect to cetacean captivity,
two points in particular are worth noting. First, the private animal
protection societies have combined responsibilities for both investigation
and enforcement of animal protection law, and for providing shelter
for lost, abandoned and seized animals. is means that their expertise
and resources naturally tend to focus on the kinds of animals that they
are most often responsible for sheltering and rehoming: domestic pets,
especially cats and dogs.
Second, private animal protection societies receive a significant
amount of their funding from private donors. For this reason, too, it
is to be expected that they prioritize caring for animals whose plight
strikes an emotional chord with donors. Again, that typically means pets.
Private animal protection societies do not have (and cannot reasonably be
expected to have) much specialized understanding of whale and dolphin
biology or of their natural behaviours, of the way they live in the wild
or of their welfare needs. Accordingly, the ability of the OSPCA and
the BC SPCA to oversee compliance with animal welfare law for captive
159. A full discussion of the weaknesses of a system of oversight and
enforcement through private animal protection societies is beyond the
scope of this article, but it bears noting that this has been a significant area
of concern for animal advocates for many years. For further information,
see e.g. A Better Way Forward, supra note 156, the proposals of Animal
Justice Canada concerning separation of the OSPCA’s shelter and
investigatory functions, and improved legislative oversight of the OSPCA.
e Ontario Superior Court of Justice recently ruled in Bogaerts v Attorney
General of Ontario, 2019 ONSC 41, that certain aspects of enforcement
of animal welfare law by the OSPCA were a violation of the principles
of fundamental justice under section 7 of the Charter of Rights and
Freedoms. e OSPCA has announced its intention to end enforcement
work. It is unclear what the province will do about enforcement of animal
welfare law going forward.
387
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cetaceans is inherently limited.160 Furthermore, one of the tools in their
enforcement portfolio, seizure of animals who are kept in distress or
suffering, is of no practical use here; the OSPCA or BC SPCA could not
feasibly seize or care for such large animals with such specialized needs.161
is is not to suggest that the societies have played no role in the
controversy over cetacean captivity. e BC SPCA, as noted above, took
an active role from the start of the Moby Doll incident, and is an active
participant in the current debate over captivity. It has issued a position
statement on marine mammal welfare stating its opposition “to the
capture, confinement and breeding of marine mammals for entertainment
or educational display”,162 because captivity is detrimental to the welfare
of “wild animals who require large and diverse aquatic habitats to live”.163
e OSPCA investigated allegations of abuse at Marineland, issued
orders for changes at the park,164 and later announced animal cruelty
charges against Marineland (which were later dropped by prosecutors).165
e argument is, rather, that this is not the system one would design,
given a clean slate, for optimal monitoring and enforcement of legal
standards for captive cetacean welfare. e animal protection societies are
160. Diebel & Casey, supra note 102, e Toronto Star reporters who had the
most significant roles in investigating and reporting on animal suffering at
Marineland, observed that the OSPCA had “no expertise on sea mammals
or captive wild animals” and that OSPCA chair Rob Godfrey had said in
a phone interview in the wake of the exposure of problems at Marineland
that the society was “in over its head” at 38.
161. Bisgould, supra note 38 at 263.
162. “Position Statement on Marine Mammal Welfare” (2018), online: BC
SPCA
statements/position-statement-marine-mammal-welfare/>.
163. Ibid.
164. Linda Diebel & Liam Casey, “OSPCA Investigation Ends as Marineland
Complies with Orders” (30 April 2013) online: e Toronto Star
thestar.com/news/canada/2013/04/30/ospca_investigation_ends_as_
marineland_complies_with_orders.html>.
165. e Canadian Press, “Marineland Sees Animal Cruelty Charges Dropped”
(10 August 2017), online: e Toronto Star
canada/2017/08/10/animal-cruelty-charges-dropped-against-marineland.
html>.
388
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not specialists in this area, and have had to take it on as a responsibility
that is peripheral to their main roles.
D. Canadian Council on Animal Care Guidelines
e Canadian Council on Animal Care (“CCAC”) is a peer review
agency that establishes and maintains guidelines for the ethical use of
animals in scientific research in Canada. It is not a government agency;
it is a nonprofit corporation, independent of government, funded by
public research programs (mainly the Canadian Institutes of Health
Research and the Natural Sciences and Engineering Research Council
of Canada) and by fees from research institutions that participate in the
CCAC program.166 Institutions are not legally bound to follow CCAC
standards or to be assessed by the CCAC for compliance — but research
institutions receiving federal public funding (mainly universities and
government research institutions) must comply with the CCAC program
as a condition of funding. In addition, private research facilities that
are not publicly funded may opt into the program as a visible way of
enhancing their legitimacy.
CCAC guidelines are for animals used in research, and do not apply
to pure entertainment facilities like Marineland. But the Vancouver
Aquarium collaborates with the University of British Columbia on
marine mammal research and follows CCAC guidelines.167
In 2014, the CCAC adopted a detailed, 73-page guideline on care
and use of marine mammals (including cetaceans).168 At present, the
CCAC guidelines are not directly relevant to any cetaceans in captivity;
166. Bisgould, supra note 38 at 208–214; Montgomery, supra note 99 at
96–112.
167. Memorandum from General Manager–Parks and Recreation to Board
Members–Vancouver Park Board (23 July 2014) “Review of Captive
Cetaceans in Stanley Park” online (pdf):
ca/2014/140726/documents/REPORT-ReviewofCaptiveCetaceansinStanl
eyPark-2014-07-26.pdf>.
168. “CCAC guidelines on: the care and use of marine mammals” (Ottawa:
Canadian Council on Animal Care, 2014), online (pdf): Canadian
Council on Animal Care
CCAC_Marine_Mammals_Guidelines.pdf>.
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the sole cetacean remaining at Vancouver Aquarium, Helen the white-
sided dolphin, does not appear to be used for research. e guidelines are,
however, a good indication of current expert opinion on best practices
for keeping cetaceans in captivity. Similar to Ontario’s Standards of
Care, they require oversight by an animal care committee, and an animal
husbandry regime based on current evidence on the conditions that best
support a good quality of life for the animals.
E. Canada’s Accredited Zoos and Aquariums
CAZA is a private industry association that accredits facilities that opt
into following its standards and policies.
Vancouver Aquarium is a CAZA member. It was the first aquarium
to be accredited by the American Zoo and Aquarium Association, in
1975.169 It became accredited by CAZA in 1987.170
Marineland used to be CAZA-accredited, but is no longer. In
2012, CAZA inspected Marineland following complaints about low
staffing levels and water quality problems by former Marineland trainer
Phil Demers, who was one of the whistleblower sources for the Star
investigative series.171 CAZA’s Accreditation Committee released a
decision in which it stated that:
at the time of the site inspection the animals in question in the Marineland
collection, including the marine mammals were in overall good health and
there was no evidence of animal abuse, that water quality in all the pools was
very good, and it appeared that staffing levels were adequate.172
At the same time, the statement noted that the investigation had
169. “e History of Canada’s Largest Aquarium” (2018), online: Vancouver
Aquarium .
170. Ibid.
171. “Marineland Bows Out of CAZA” (4 May 2017), online: Niagara Falls
Review
bows-out-of-caza/>.
172. e 2012 accreditation decision is no longer available on CAZA’s
website, but the complete text of the decision is included in a statement
by Marineland that is still up on Marineland’s site: “Statement regarding
Canada’s Accredited Zoos and Aquariums (CAZA) Findings” (3 October
2012), online: Marineland
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raised questions about how well water quality systems in some pools
were working, and announced that Marineland had agreed to work on
improvements, undergo further inspections (including unannounced
inspections) and report on its progress to CAZA.173 CAZA accreditation
is for a five-year period. Five years later (in 2017), when Marineland was
coming up for re-accreditation, the park announced that it was voluntarily
withdrawing from CAZA membership.174 is episode illustrates the
inefficacy of voluntary self-regulatory regimes like CAZA. e process is
ultimately toothless because the option to exit is always available.
F. Summary: A Regulator y Gap
In 1999, Jon Lien, a whale expert based at Memorial University in
Newfoundland, conducted a review for DFO of marine mammal
captivity in Canada. He observed that there are “serious inadequacies in
regulating the captive maintenance of marine mammals in Canada”.175
Lien summarized the inadequacies in a list:
DFO, or other regulatory authorities, do not have adequate powers to enforce
conditions of captive care and welfare of marine mammals.
ere are, at present, no recognized standards for captive marine mammal care
for all holding facilities in Canada.
ere is no independent, transparent inspection programme that is publicly
accountable for ensuring appropriate captive care of marine mammals.
ere are inadequate controls on the import and export of marine mammals
to or from Canada.
Captive breeding programmes for cetaceans are operating on a small genetic
base without adequate planning or coordination.
There are inadequate demonstrations of the educational value of exposure
to captive marine mammals.176
Twenty years later, all of this is still true. It is also true that there have been
173. Ibid.
174. “Marineland Bows Out of CAZA”, supra note 171.
175. Lien, supra note 4 at 78.
176. Ibid.
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improvements. Ontario’s new Standards of Care represent real progress
in developing a regulatory framework tailored to the special needs of
cetaceans in captivity based on scientific evidence. e restrictions on live
capture of cetaceans for public display reflect environmentalist concerns
about the destructive impact of the “blackfish gold rush”177 on vulnerable
populations.
Nevertheless, it is still the case that through a combination of the
absence of law, ambiguity, or weakness in the laws that do exist, and
inadequate oversight and enforcement, there is a lack of effective legal
protection, and the whales and dolphins kept inside are for the most
part at the mercy of their owners. Furthermore, apart from Ontario’s
ban on possessing captive orcas (limited to just that species), none of
the laws, regulations and standards outlined above are concerned with
limiting or prohibiting the practice of cetacean captivity itself. Experts
like Whitehead, Marino, and Rose argue that it is inherently wrong to
keep these large, cognitively and socially complex creatures in captivity
for our enjoyment — and, as public opinion like the Angus Reid Poll178
indicates, more and more Canadians agree. Until now, however, that
position was not reflected in Canadian law. is is where Bill S-203
marks a fundamental change from the laws in place before.
In a sense, the significance of Bill S-203 could be said to be more
symbolic than practical, measured by the number of animal lives it is likely
to affect. Ontario has already enacted provincial legislation outlawing the
captivity of orcas that is as strong (for those particular cetaceans) as Bill
S-203, as well as groundbreaking legal standards to protect the welfare of
marine mammals in captivity. Vancouver Aquarium has only one cetacean
left and has announced its intention to voluntarily discontinue its captive
whale and dolphin program. But this situation is contingent. Vancouver
Aquarium could change its mind. Businesses in other provinces, where
there are no rules like Ontario’s, could look to acquire and display their
own cetaceans, without any regulatory scheme forcing them to keep the
animals in conditions designed with their welfare needs in mind. e
177. Leiren-Young, supra note 54 at 117.
178. Angus Reid Poll, supra note 4.
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current regulatory gap leaves those possibilities open.
V. Global Context: Whaling, Captivity, and
Controversy
e debate over cetacean captivity in Canada takes place against a
background of discussion and evolving ideas about the moral and legal
status of whales and dolphins around the world. e focus of this article
is on Canada, so a full analysis of the developments in both international
law and domestic law of other countries would be out of place here.
A brief summary is, however, appropriate because it should illuminate
how evolving public opinion and legislation on these matters in Canada
connects to the global debate.
A. International Law: Cetacean Personhood?
e international discussion about cetaceans has foregrounded profound
questions about the nature of these animals, their moral status, and how
humans should treat them. At the heart of the debate is the question
of whether cetaceans should be recognized as persons: beings endowed
with innate moral or legal rights. e proposition that whales have an
inherent right to life, inchoately expressed in public international law,
was advanced by Antony D’Amato and Sudhir K Chopra in an influential
1991 law review article.179 Neither the proposition that whales have the
right to life nor the broader concept of cetacean personhood and rights is
concretely reflected in law. But these ideas have gradually become more
mainstream, at least as topics of debate and reflection.
At an interdisciplinary conference in Helsinki, Finland in 2010, a
group of scientists, philosophers and legal scholars adopted a Declaration
of Rights for Cetaceans, affirming that whales and dolphins are persons,
that they have basic rights enumerated in the Declaration, and that
“[n]o cetacean should be held in captivity or servitude; be subject to
179. Anthony D’Amato & Sudhir K Chopra, “Whales: eir Emerging Right
to Life” (1991) 85:1 American Journal of International Law 21. For a
critical view of D’Amato and Chopra’s argument as based on limited and
insufficiently rigorous science, see Jefferies, supra note 2 at 93.
393
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cruel treatment; or be removed from their natural environment”.180 An
introductory note on the Declaration published in the International
Journal of Wildlife Law and Policy in 2011 contends that the “moral
and legal status” of cetaceans “should undergo radical change” in
light of increasing evidence that “cetaceans possess a capacity for self-
consciousness and refined mental skills, and live in societies in which
culture plays a vital role”.181 In 2012, the Annual Meeting of the American
Association for the Advancement of Science in Vancouver included a
panel on the Declaration and cetacean personhood,182 indicating a degree
of receptiveness to these ideas in mainstream scientific circles, at least as
a topic of discussion.
If cetaceans have rights or personhood, then basic morality would
require that the law concerning human interactions with them should
go beyond merely reducing the ecological damage caused by taking them
from the wild and mitigating the negative welfare impacts on cetaceans
who are kept in captivity. Recognition of cetacean rights would require
addressing the fundamentally normative question of whether it is
inherently wrong to keep them in captivity for display and entertainment.
180. For a brief background discussion and abstracts of the conference
presentations, see “Introduction to the Declaration of Rights for
Cetaceans: Whales and Dolphins” (2011) 14:76–77 Journal of
International Wildlife Law & Policy 76 [Introduction]. See also “Short
Abstracts from the Conference: ‘Cetacean Rights: Fostering Moral and
Legal Change,’ Providing the Collective Rationale for the Decision Issued
at the End of the Meeting” (2011) 14:76–77 Journal of International
Wildlife Law & Policy 78. Participants in the conference included Lori
Marino and Hal Whitehead. e Declaration itself is appended to
the latter article beginning at 80, and is also available online:
cetaceanrights.org/>.
181. Introduction, ibid at 77.
182. “Declaration of Rights for Cetaceans: Ethical and Policy Implications
of Intelligence” (Session at Annual Meeting, 19 February 2012), online:
American Association for the Advancement of Science
aaas/2012/webprogram/Session4617.html>.
394
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B. e International Whaling Regime
Decades before the captivity debate, the original international controversy
about human use of whales concerned lethal commercial whaling. e
beginning of the practice of keeping cetaceans in aquariums and marine
parks overlapped with the end of whaling as a commercially significant
enterprise.183 During that period, there was a significant change in public
awareness of and attitude towards cetaceans, which probably contributed
(along with a decline in demand for whale products) to the decline of
commercial whaling. Whaling was not the subject of much mainstream
public discussion or controversy until the emergence of the global anti-
whaling movement in the 1970s and 1980s.184 Although some populations
of whales had been hunted almost to extinction in the nineteenth century
and the first half of the twentieth, passionate and widespread popular
opposition to whaling emerged only when the industry was already in
decline because demand for its products had fallen away. It is probably
not a coincidence that this was also the time when more and more people
were ‘meeting’ cetaceans, or encountering emotionally powerful images
of them, in the context of captivity and entertainment. For example (as
discussed above), leaders of the anti-whaling movement like Vancouver’s
Paul Spong became convinced of the specialness of cetaceans because of
personal experience with captive animals in aquariums.
e international legal regime regulating whale hunting has changed
183. Leiren-Young, supra note 54, highlights the contrast between the once-
prevalent view in Vancouver of whales as a useful and unexciting natural
resource, and the new romantic fascination with the creatures that began
with Moby Doll (as well as the overlap in timelines between the end of
the former and the start of the latter). For example, on the same day that
Newman was appointed to head the Vancouver Aquarium, a local paper
ran ads for fertilizer made from blue whale meal (at 27–28), and during
the media frenzy over Moby Doll an editorial reminded people that cans
of diced whale loin used to be available in local grocery stores for ten cents
(at 84).
184. For an account of the clash between the whaling industry and the global
anti-whaling movement written at the height of the conflict, see David
Day, e Whale War (San Francisco: Sierra Club Books, 1987).
395
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its focus over the years, from beginning as a mechanism for whaling
nations to cooperate on sharing a finite resource in an organized way,
then evolving over the years to reflect conservationist principles and,
eventually, morally-grounded opposition to all consumptive whaling,
as reflected in the International Whaling Commission’s adoption of a
moratorium on all commercial whaling in 1982. D’Amato and Chopra
have argued that the international legal regime regulating whaling
exhibits a series of five successive ‘analytic stages’, beginning with the
‘free resource’ stage (essentially without constraints on whaling) through
“regulation, conservation, protection and preservation”185 — possibly
with a sixth, emergent stage reflecting on recognition of the whales’
entitlement to basic rights.
Although the approach of much of the international community has
shifted in the direction D’Amato and Chopra describe, the regulation
of commercial whaling was still a matter of intense controversy when
their article was written, and it remains so today.186 Recently this conflict
reached the International Court of Justice (“ICJ”), when Australia
successfully challenged the legality of Japan’s whaling program under the
scientific research exemption to the moratorium under the International
Convention for the Regulation of Whaling.187 In that case, Whaling in the
185. D’Amato & Chopra, supra note 179 at 23. See also Werner Scholtz,
“Killing em Softly? Animal Welfare and the Inhumanity of Whale
Killing” (2017) 20:1 Journal of International Wildlife Law & Policy
18 (arguing that animal welfare concerns have taken on increasing
importance in the international whaling regime, potentially indicating
a gradual paradigm shift towards an ethic of preservation and
acknowledgment of the moral significance of animals).
186. See discussion of divergent ethical perspectives on whales and whaling in
Cinnamon Pinon Carlane, “Saving the Whales in the New Millennium:
International Institutions, Recent Developments and the Future of
International Whaling Policies” (2005) 24:1 Virginia Environmental Law
Journal 1 at 41–45.
187. International Convention for the Regulation of Whaling of 1946, 2
December 1946, 161 UNTS 74 (entered into force 10 November 1948).
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Antarctic,188 the ICJ found that the Japanese whaling program in place
at the time exceeded the scope of the treaty exemption for research. e
majority of the ICJ judges were careful to separate what they characterized
as a fairly narrow legal and textual question from deeper, more far-
reaching questions about the morality of whaling or the international
community’s policies regarding whales, which they declined to address.189
e international whaling regime does not expressly address the
question of cetacean captivity for public display — and, aside from the
capture of animals (which may happen in international waters and/or
affect migratory populations), this does appear primarily a domestic
rather than an international matter. In many countries where commercial
lethal whaling is just a historical memory, domestic law has changed, or
changes are proposed, to end or at least limit captivity. e controversy
over captivity of live cetaceans is a new battleground where ideas and
beliefs about the moral and legal status of cetaceans play out.
C. Captivity and Legal Reform in the United States
Probably the most relevant comparison for Canada is to the United
States, our immediate neighbour, with whom we share border-straddling
cetacean populations — including the Southern resident orca community
that Moby Doll belonged to. e US acted sooner than Canada to end
live-capture for captivity. e Marine Mammal Protection Act,190 passed
in 1972 to prevent extinction and depletion of marine mammals due
to human activities,191 imposed a moratorium on taking and importing
marine mammals and marine mammal products.192 However, under an
188. Whaling in the Antarctic (Australia v Japan: New Zealand Intervening),
[2014] ICJ Rep 226, online (pdf):
files/148/18136.pdf>.
189. Ibid (“[t]he Court observes that…it is not called upon to resolve matters
of scientific or whaling policy. e Court is aware that members of the
international community hold divergent views about the appropriate
policy towards whales and whaling, but it is not for the Court to settle
these differences” at para 69).
191. 16 USC § 1361.
192. 16 USC § 1371.
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exception to the moratorium, permits may be granted by the National
Oceanic and Atmospheric Agency (“NOAA”) to take or import cetaceans
for public display.193 e NOAA has not granted such a permit in twenty-
five years.194 Effectively (rather like in Canada) there is a de facto but not a
de jure prohibition on live capture for public display.
In 2012, the Georgia Aquarium applied for a permit to import
eighteen wild-caught beluga whales from Russia — the first such
application in twenty years.195 e NOAA received extensive public
comments opposing the permit, indicating a high degree of public
opposition to the cetacean display industry.196 After a year of deliberations,
the agency denied the application, citing potential adverse effects on the
wild population.197 at decision was upheld by the US District Court of
Atlanta in 2015.198 e Georgia Aquarium subsequently announced that
it would not appeal the District Court decision and would cease seeking
to import wild-caught belugas.199
ere has been legislative action at the state level to restrict and
193. 16 USC § 1374.
194. Elizabeth Lewis, “Whale Wars: Reconciling Science, Public Opinion, And
e Public Display Industry Under e Marine Mammal Protection Act”
(2014) 66:4 Administrative Law Review 861.
195. Ibid; Kenneth Brower, “e Great White Whale Fight” (1 June
2013), online: National Geographic
news/2013/13/130531-beluga-whale-dolphin-marine-mammal-georgia-
aquarium-capture-free-willie-narwhal/>.
196. Lewis, supra note 194.
197. “Georgia Aquarium Application to Import 18 Beluga Whales Denied
(File No. 17324)” (5 August 2013), online: National Oceanic and
Atmospheric Administration .fisheries.noaa.gov/national/marine-
mammal-protection/georgia-aquarium-application-import-18-beluga-
whales-denied-file-no-17324>.
198. Georgia Aquarium, Inc v Pritzker, 134 F Supp 3d 1374 (ND Ga 2014).
199. Bo Emerson, “Georgia Aquarium: Future of Belugas Questioned”
(18 November 2015), online: e Atlanta Journal-Constitution
mOVa0snqCw7BxVuFsEz2IL/>.
398
Sykes, e Whale, Inside
phase out cetacean captivity.200 Notably, in 2016 California passed the
Orca Protection and Safety Act,201 which bans breeding captive orcas
and presenting orca performances for entertainment. It does, however,
permit ‘educational presentations’ of orca performance displays. An
educational presentation is defined as “a live, scheduled orca display in
the presence of spectators that includes natural behaviors, enrichment,
exercise activities, and a live narration and video content that provides
science-based education to the public about orcas”.202 Before this law
was passed, SeaWorld (whose flagship location is in San Diego) had
already announced a voluntary commitment to end its captive breeding
program and phase out killer whale shows, following negative publicity
and criticism in response to the Blackfish documentary.203
California’s example inspired a move to enact federal legislation that
would phase out orca captivity throughout the US. In 2015 and then again
in 2017 Representative Adam Schiff introduced the Orca Responsibility
and Care Advancement (ORCA) Act,204 which would prohibit captive
breeding, wild capture, and import and export of orcas, so that orca
captivity would cease with the end of the current generation.205
200. In addition to the California law summarized here, similar bills have been
introduced (but have not passed) in Washington and New York, a non-
binding resolution was introduced in Hawaii, and South Carolina has
banned the display of cetaceans in the state. See “Cetacean Anti-Captivity
Legislation and Laws” (2018), online: Animal Welfare Institute
org/content/cetacean-anti-captivity-legislation>.
201. Fish and Game Code § 4502.5 (West 2016). See also summary in Kaci
Hohmann, “2016 State Legislative Review” (2017) 23:2 Animal Law 521
at 536–537.
202. Ibid, § 4502.5(d)(1) (West 2016).
203. David Kirby, “California Lawmakers Pass Bill Banning Orca Shows,
Captive Breeding” (26 August 2016), online: Takepart
com/article/2016/08/26/california-lawmakers-pass-bill-banning-orca-
shows-captive-breeding>.
204. US, Bill HR 1584, 115 Cong, 2017.
205. Congressman Adam Schiff, “Rep. Schiff Reintroduces ORCA Act to
Phase Out Display of Captive Killer Whales” (17 March 2017), online:
phase-out-display-of-captive-killer-whales>.
399
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D. Captivity Bans and Regulation in Other Countries
Some other nations have already taken more unequivocal steps to
prohibit cetacean captivity. India’s Central Zoo Authority issued a
circular in 2013 announcing the government’s decision not to allow
dolphinaria in the country and advising state governments to reject all
proposals involving “import, capture of cetacean species to establish for
commercial entertainment, private or public exhibition and interaction
purposes whatsoever” [sic].206 e introductory clauses of this circular
assert that:
cetaceans in general are highly intelligent and sensitive, and various scientists
who have researched dolphin behavior have suggested that the unusually high
intelligence; as compared to other animals means that dolphin should be seen
as ‘non-human persons’ and as such should have their own specific rights and is
morally unacceptable to keep them captive for entertainment purpose [sic].207
Chile and Costa Rica banned cetacean captivity (with limited
exceptions, not including public display) in the 2000s.208 e United
Kingdom adopted very strict standards for cetacean captivity in the
early 1990s; because the cost of compliance made existing dolphin
exhibits commercially unviable, the last one closed in 1993.209 France
banned captive breeding of orcas and dolphins in 2017, but the rule
was overturned by the Conseil d’État, the highest administrative court,
because the rule that the government brought in was stricter than the rule
206. Government of India, Ministry of Environment and Forests, Central Zoo
Authority, Circular: Policy on establishment of dolphinarium – Regarding
(17 May 2013), online (pdf):
pdf>.
207. Ibid.
208. “Marine Mammals: Guidelines and Criteria Associated with Captivity”
(September 2006), online (pdf): Whale and Dolphin Conservation
Society
MARINE_MAMMALS_WCR.pdf>.
209. “Whale and Dolphin Captivity in the EU – United Kingdom” (2018),
online: Whale and Dolphin Conservation Society
and-dolphin-captivity-in-eu-united-kingdom>.
400
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it had proposed for public consultation.210
e foregoing brief survey shows that many jurisdictions are
grappling with the morality of cetacean captivity, and some have already
taken more progressive and proactive steps than Canada.
VI. e Whale in Peril: Challenges Beyond Captivity
Bill S-203 and other similar existing and proposed legal reforms are
really only following the changed situation on the ground (or in the
water). Cetacean captivity is already on the way out, as illustrated by the
dwindling numbers of captive cetaceans in Canada and the voluntary
decision of one of the only two remaining captive facilities to discontinue
the practice. But cetacean populations face threats much more challenging
to their survival than the fact that a relatively immaterial number of them
are still kept in tanks at aquariums and marine parks.
e main threats to marine mammals today include:211 global
climate change, with consequences including prey reduction and ocean
acidification; by-catch from fishing operations, which is estimated to
cause hundreds of thousands of global marine mammal deaths each
year;212 ship strikes, which appear to be going up as the amount of
marine traffic and the size and speed of vessels increase;213 environmental
pollution, including contamination by persistent organic pollutants
(which poses higher risks to marine mammals because they are long-
lived apex predators who accumulate toxins in their bodies) as well as
210. CE, 29 January 2018, “Conseil d’État, 29 janvier 2018, Société
Marineland, Société Safari Africain de Port-Saint-Père”, Nos 412210,
412256 (2018), online: ublications/
Decisions/Selection-des-decisions-faisant-l-objet-d-une-communication-
particuliere/Conseil-d-Etat-29-janvier-2018-Societe-Marineland-Societe-
Safari-Africain-de-Port-Saint-Pere>. My thanks to Professor Olivier Le Bot
for bringing this decision to my attention.
211. is brief summary is taken from the more detailed exposition in
Jefferies, supra note 2 at 119–157. Jefferies proposes a new international
management regime to address modern threats to marine mammal
conservation.
212. Ibid at 125.
213. Ibid at 128.
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anthropogenic noise pollution;214 and whale watching, a well-intentioned
form of interaction with marine wildlife which nevertheless can interfere
with natural behaviours and cause disruption to reproduction, feeding,
resting, and socializing.215
In a sense, viewed in the context of these complex and pervasive
threats to the survival of wild cetaceans, acting to end cetacean captivity
is picking low-hanging fruit. It is not much of a sacrifice for us to stop
going to look at whales in tanks or watch live orca and dolphin shows.
By contrast, the changes human society would have to make to curtail
the activities that threaten wild cetaceans and their ecosystem, many of
which are central to our economies and ways of life, would be genuinely
transformational. Dealing with climate change alone may be the most
complex problem humanity faces, and marine transport of people and
goods is crucial to modern globally connected economies. Protecting
the long-term survival of cetacean populations would probably require
human societies to give up some forms of consumption and ways of
living that we value very much. e question we face now is whether that
is a price we are willing to pay.
e conflict between cetacean conservation and the economic benefit
of activities that detrimentally affect them was sharply illustrated in the
recent ruling by the Canadian Federal Court of Appeal invalidating
the federal government’s approval of the proposed expansion of the
Trans Mountain pipeline system from Alberta to the British Columbia
coast.216 e Trans Mountain approval was voided in part because
the process involved a “critical error”:217 failing to consider increased
marine tanker traffic associated with the project and its impact on the
214. Ibid at 131–132.
215. Ibid at 138.
216. Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153. As
this article went to press, the Canadian government had just re-approved
the Trans Mountain pipeline expansion.
217. Ibid at para 5. e Court also found the approval invalid due to the
government’s failure to consult meaningfully with Indigenous peoples in
accordance with constitutional requirements (at para 754).
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Sykes, e Whale, Inside
endangered Southern resident orcas.218 e National Energy Board,
which approved the project, had in its own report noted the adverse
impacts on the orcas’ habitat from increased traffic, noise, risk of ship
strikes, and the low-probability but potentially catastrophic risk of an oil
spill.219 But it had excluded the effects of increased marine traffic from
its conclusion that the project would not be likely to cause significant
adverse environmental effects.220 is was held by the Federal Court of
Appeal to be an “unjustifiable”221 error. e Trans-Mountain pipeline is a
highly economically and politically significant project, and the decision
that it must be put on hold — in part because of the potential adverse
effects on a small, struggling group of killer whales — has had profound
repercussions.222 is episode put into stark focus the profound change
of course that would be needed to achieve meaningful protection for wild
cetaceans.
Just a few weeks before the Trans-Mountain decision, a tragic story
drew the world’s attention to the plight of the Southern resident orcas.
218. Ibid at paras 388–471.
219. Ibid at paras 423, 425, 427 (summarizing the National Energy Board’s
findings).
220. Ibid at paras 439, 468–470.
221. Ibid at para 468.
222. See e.g. Ainslie Cruikshank, David P Ball & Kieran Leavitt, “Federal
Court of Appeal Quashes Trans Mountain Approval, Calling it
‘Unjustifiable Failure,’ in Win for First Nations, Environmentalists”
(30 August 2018), online: e Star Vancouver .thestar.
com/vancouver/2018/08/30/federal-court-of-appeal-calls-trans-
mountain-approval-unjustified-failure-in-major-win-for-first-nations-
environmentalists.html> (noting that the decision “will send ripple effects
beyond British Columbia and Alberta, potentially forcing Trudeau’s
Liberal government to rethink its entire approach to pipelines, resource
development, and reconciliation”); John Paul Tasker, “After Federal
Court Quashes Trans Mountain, Rachel Notley Pulls Out of National
Climate Plan” (30 August 2018), online: CBC News .cbc.ca/news/
politics/trans-mountain-federal-court-appeals-1.4804495> (reporting
that following the “bombshell” decision Alberta’s Premier Rachel Notley
announced her province’s withdrawal from Canada’s national climate
plan).
403
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A female from J Pod — the same kinship group that Moby Doll was
taken from decades ago — gave birth to an emaciated calf who died
only minutes after birth. e mother, known as J-50 or Tahlequah,
carried her dead calf at the surface for 17 days, the longest documented
such period, and was eventually helped by other members of the pod
who took turns supporting the calf’s body.223 is moving display of
behaviour — strikingly reminiscent of the efforts of Moby Doll’s family
to save that young whale when he was harpooned and shot back in 1964
— is also unignorably similar to manifestations of grief and family feeling
in humans beings. Tahlequah’s apparent mourning ritual symbolized
the increasing peril to cetaceans in the damaged marine environment.
e episode also highlighted the similarities between whale and human
emotions and family bonds, the recognition of which has undermined
human beings’ confidence that we alone, of all the species that share the
planet, are special because of our intelligence, feelings, communicative
abilities, or other unique characteristics that mark us out as the sole
bearers of rights.
VII. Conclusion: Outside the Whale
Keeping cetaceans in captivity has been justified as a way of enhancing
our understanding of marine life, of bringing us delight in interacting
with beautiful and charismatic animals, and of raising our environmental
consciousness. But during the five decades since Moby Doll was
harpooned, the knowledge we have acquired about cetaceans has increased
so much that it is no longer possible for us, without willful blindness, to
223. See Susan Casey, “e Orca, Her Dead Calf and Us” (4 August 2018),
online: e New York Times .nytimes.com/2018/08/04/opinion/
sunday/the-orca-her-dead-calf-and-us.html>; Andrea Woo, “Off B.C.
Coast, Grieving Mother Orca Risks her Own Life with Days of Devotion
to Dead Calf” (1 August 2018), online: e Globe and Mail
theglobeandmail.com/canada/british-columbia/article-grieving-orca-
off-bc-coast-that-wont-let-go-of-dead-calf-raises/>; Laura Geggel, “Orca
Mother, Who Pushed Her Dead Calf for 1,000 Miles and 17 Days, Moves
On” (13 August 2018), online: Livescience .livescience.com/63318-
orca-mother-stops-pushing-dead-calf.html>.
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Sykes, e Whale, Inside
ignore what it means for them: health problems, shortened life spans,
and loss of the social connections, rich communications and extensive
ranges that are the hallmarks of their life in the wild. e movement for
anti-captivity legal reform comes from thinking beyond our own self-
interest and facing sometimes uncomfortable facts about the suffering
behind the cheerful public presentation of whales and dolphins in parks
and aquariums. It comes from a different perspective from the kind of
complacent quietism that Orwell described as being inside the whale.
In an opinion piece published in e New York Times in August
2018,224 Martha Nussbaum — perhaps the leading contemporary
American moral philosopher — argues that philosophical enquiry needs
to move past thinking only about the meaning of human life and to
grapple with the ethical implications of sharing the planet with “billions
of other sentient beings”, all of whom “have their own complex ways
of being whatever they are”.225 She writes: “[a]ll of our fellow animal
creatures, as Aristotle observed long ago, try to stay alive and reproduce
more of their kind. All of them perceive. All of them desire. And most
move from place to place to get what they want and need”.226
Nussbaum refers to the work of Hal Whitehead and Luke Rendell
as enriching our understanding of a philosophical question that we have
hardly begun to think about: what it is to be a whale. Perhaps this is
a question we can only really engage with if we can manage to think
outside the whale of Orwell’s metaphor, or beyond the anthropocentric
narcisissm that Nussbaum criticizes. From such a perspective, we already
know too much about what it is to be a whale to be able to justify keeping
them for our use as spectacle and entertainment any more. In concluding
his speech in support of Bill S-203, Senator Sinclair invoked a concept
similar to Nussbaum’s ‘fellow animal creatures’, as expressed in his own
Anishinaabe culture:
224. Martha Nussbaum, “What Does It Mean to Be Human? Don’t
Ask” (20 August 2018), online: e New York Times
com/2018/08/20/opinion/what-does-it-mean-to-be-human-dont-ask.
html>.
225. Ibid.
226. Ibid.
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[T]he Anishinaabe recognize that we are all related, not just you and I, but you
and I and all life forms of creation. As living things, we are connected to each
other. We depend upon one another. Everything we do has an effect on other
life forms and on our world.227
We are a long way from fully changing our actions and our laws so as
to reflect this kind of relationship between ourselves and other animals.
Ending cetacean captivity in Canada is a step in that direction, perhaps a
small one, but not insignificant.
227. Sinclair, supra note 12.
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