Jordan: By now most of us know that they’re endangered. Even still, the vanishingly small numbers of living Southern resident killer whales are kind of terrifying to contemplate.
News Clip: A matriarch, a young male, and an even younger male, this trio of orcas hasn’t been seen off the coast of BC since last winter. Now scientists believe they won’t appear again.
Jordan: There are now so few of these animals left that we know them by individual families. We know them by their names, we know them by the heartbreaking behaviors they display as they die.
News Clip: It’s heartbreaking to see a killer whale carrying her calf, who died shortly after birth for 17 days, the orca, known as J35 wouldn’t let go of her baby.
Jordan: There are lots of theories as to what or who is to blame for their shrinking population, and there are nowhere near as many potential solutions to the problem, but there’s one proposal out there gathering steam that seems immensely strange when it’s first proposed. It seems a little less strange when you realize that it’s actually been done before, and it seems maybe even a tiny bit logical when you look at the threats, these animals face and how powerless they are against them. So what if they weren’t powerless? What if we gave them rights and a voice or even personhood? You know, like we have. Is that nuts, or is it the only way the courts will take them seriously?
Jordan: I’m Jordan Heath Rawlings, and this is The Big Story. Lyndsie Bourgon is a writer who covers the environment, among other issues for the Walrus, among other publications. Hi Lyndsie.
Lyndsie: Hi.
Jordan: Start by telling me if whales are people, too.
Lyndsie: I do not know if whales are people, but I do know that whales; Scientifically, we have done many studies into their consciousness. You know, consciousness is a very; I read it once described as an ethereal notion, and whales and other citations like dolphins are proven to have kind of the neurochemistry that proves that they that they are conscious.
Jordan: Well then we should begin with the story of J35 because it’s one that’s kind of more than a year old but it gets to the center of what we’re talking about today. So tell me that story.
Lyndsie: Sure. So J35 is a female, she’s one of the matriarchs of the J pod of the Southern resident killer whales, and they migrate along the Pacific Northwest between BC and down into Washington State, and J35 came into the news last year because she had had a calf, which was a very promising development but the calf died and after it died she carried that calf on her nose throughout the coastal waters for 17 days. So it was a very heart wrenching image for many people and something that out here in BC, we all followed and heard about on the news quite a bit. I think it captured us because I mean A) southern resident killer whales, when we say that we basically mean orcas or killer whales so those like iconic black and white whales that you see, you know, we used to see the Met aquariums, you know, it’s the movie from Free Willy. So we do have a relationship with those whales and so to also see one of those whales essentially going through its own version of grief, I think was quite shocking to many people.
Jordan: Well and in your piece you talked about a term called environmental grief. If you could unpack that a little, because it’s just such a; it’s a sad and really poetic term.
Lyndsie: It is, and so it was coined by an academic named Chris Kervorkian, and actually, I’ve heard it being talked about a lot this year in particular. And it essentially refers to the feeling that humans have when we are witnessing a loss of ecosystem around us. So it’s the melancholy that we feel maybe when we know that the coral reefs are being bleached off Australia and we won’t be able to see them for much longer, or knowing that the Southern resident killer whales are in dire straits and maybe our children won’t be able to see them. It’s a kind of helpless feeling defined by him.
Jordan: How close are we to losing these orcas? How many of them are left? I guess it’s small enough that you can count them pretty accurately.
Lyndsie: So at the time that I wrote this story, I believe there were 76, and actually there was some news that just came out of Vancouver saying that three of them had recently died, and so there are now only 73. So the numbers have not always been consistently tracked but from what we know, those numbers, you know, they’ve never dipped below 70, and they’re already not a sustainable species as it is so any lower and we don’t know what will happen. We don’t know if the population will sustain itself.
Jordan: What’s killing them?
Lyndsie: The kind of three main reasons for the decline of the Southern resident killer whales, they tend to be in dispute in terms of which is more important and which needs to be focused on. So the kind of main one that everyone can agree on is a decrease in salmon spawning in their habitat, which means that they don’t have enough to eat, they’ve starved to death. There’s also data that indicates that noise and a physical disruption from vessels and traffic in the Salish Sea and in their habitat affects the ability of the whale to live in its natural environment, and there are also still ocean contaminants in the environment, even if they’ve been banned. So DDT is still present, there’s pesticides, there’s chlorine present in the water so that also affects the ability for salmon to spawn. The kind of interesting implication, I suppose, for the Southern resident killer whales and what makes them so easy to focus on is that there’s about to be a huge increase in noise and physical disruption from vessels in their habitat, and that’s because they are linked to the expansion of the trans mountain pipeline.
Jordan: So what’s being done to try to protect them right now and what’s actually worked and what’s not working?
Lyndsie: So after J35 was tracked last year and we all watched her carrying calf draped over her nose, the Department of Fisheries and Oceans announced that it would do consultations before kind of proposing a new management plan for the whales. Their recommendations included a voluntary slowdown zone for vessels, including tankers and theories, but also whale watching boats and nuts. That’s kind of a tense situation there because they’re considered to be smaller, and tourism is such a vital part of the local economy that many operators say that they’re not actually the problem in terms of making noise. And they also increased some regulatory controls of contaminants in the water at that time, in the hope that it would help salmon spawning in the area.
Jordan: Well one of the reasons that we wanted to talk to you was because of a more radical proposal to protect these creatures, which kind of brings us to a woman named Michelle Bender. Can you tell me who she is and what she’s proposing?
Lyndsie: Yes, so Michelle Bender, she’s a researcher, she works at the Earth Law Centre in Spokane, Washington, and she has been working over the past couple of months with environmentalists and researchers, people who work in ecology and indigenous groups to basically create a report that, hopefully, governments would accept, which indicates that the Southern resident killer whale should be given legal personhood, and as she has been doing that, there’s also a legal group out of Vancouver Island who are doing the same thing, the West Coast Environmental Law Centre.
Jordan: So what does granting personhood mean exactly?
Lyndsie: So granting personhood essentially places or indicates that in this instance, the Southern resident killer whale should be given the same legal rights as a person or kind of more indicatively I suppose or what they’re hoping for as a corporation. Um, so it would acknowledge that the Southern resident killer whales have a stake in the environment around them and that the development taking place in that environment should have their approval.
Jordan: How do you get approval from a whale?
Lyndsie: So that’s the interesting question, this has happened in other countries in the past. In my piece I talk quite a bit about two cases in New Zealand. One of those cases, a river was granted legal personhood and in the other, an entire national park. And basically what that requires is creating a board that would then represent the whales at negotiations, at the table, at reviews, at any sort of public consultation process and that they would you know, that they would be considered players in the game a bit higher than any sort of current status that they have now. So, you know, it’s one thing now for one legal group to; Or one environmental group to put forth a challenge to the expansion of the trans am pipeline, for instance, and say that it’s because you know it will increase traffic and noise in the waters and therefore harm the environment that the southern resident killer whales live in. And it’s another thing for a board made up of people that are kind of acknowledged as representing those actual whales.
Jordan: How are these kind of proposals seen by governments in Canada and the United States? Have they ever happened here?
Lyndsie: They have not happened in Canada. There was one well known case where the tuna hunt nation wanted to protect one of their sacred Alpine valleys from a ski hill development, and they argued that the importance of that land was in the freedom of conscience and religion, which is more similar to a personhood case than anything else, but they were still denied in that way. The U. S. , there have been a number of different proposals, actually, so there’s a current one where there’s a community along Lake Eerie that has; the community itself has granted Lake Eerie legal personhood to protect it from contamination, from various pesticides, and whatnot that have basically almost killed all the biodiversity in the lake. But there haven’t been, as many big cases as there have been in New Zealand and also in South America.
Jordan: Well, what has to happen practically for this to succeed? I mean, which governments have to acknowledge it, and how do you enforce it on behalf of an animal?
Lyndsie: The provincial government and the federal government would have do come to an agreement in this way. So in New Zealand, the way that it worked is that the national park, there was a bill passed at the federal level that acknowledged that the park was then going to be represented in various negotiations by this board, and that’s essentially what would have to happen for the whales. You know, there would have to be a certain amount, it’s a legal appeal process, so there would have to be a certain amount of partnership going into it because whales are quite different than a park, they’re migratory, they, you know, they currently go back and forth across international borders relatively easily. So there’s quite a bit of complicated negotiations that would have to take place. From what I understand when I was interviewing David Boyd, he’s a UBC professor, and he works at the U. N. he’s an export, or an expert rather on human rights and the environment and he wrote a book called The Rights of Nature which argues that we should be giving nature like the whales, legal personhood and he sees it as starting on a local level that, you know, maybe local governments on Vancouver Island, for instance, might come to the point where they’ve acknowledged that the whales are legal persons, and you know, that might then require being stricter in terms of whale watching permits that they give out, being stricter in terms of how they manage their ports, and their dock systems and what not.
Jordan: Why do you think; And maybe I’m wrong here. But to me, the idea of granting personhood to an orca or, you know, a whale or a dolphin or whatever feels different than granting rights to a river or a national park, and do you think that would help make the case or hurt it, or just create to your point a whole lot of complexity?
Lyndsie: It’s interesting because the idea of granting the southern residents legal personhood actually came second to Michelle Bender’s ideal situation, which would be to grant the Salish Sea legal personhood, and they found that it was much easier for people to get behind the idea of granting the Southern residents legal personhood rather than the sea. And I think that a lot of that comes down to a shift in our culture in recent years. So, you know, after the movie Blackfish came out, I think that there was a huge public discourse surrounding the kind of ethical conflict of keeping whales in captivity. The fact that they, in fact, do have consciousness and they have feelings and they’re intelligent and their brains are actually not that dissimilar to ours in a sense, and therefore it’s wrong to cause them harm. That may have bled into this idea that even Southern residents in the wild should be granted protection as well.
Jordan: How has this proposal gone over with the general public, I guess, or even just feedback you’ve seen since the piece came out and since this idea became more widely known?
Lyndsie: It’s kind of… it’s kind of a polarizing topic, right?
Jordan: I can imagine.
Lyndsie: Yes, so I’m getting emails from people saying don’t be ridiculous whales are not people, or you get messages from people who completely agree and think that the southern residents should be protected at all costs, and because their bodies are pretty political at this point, they’re tied so inextricably to the approvals for the Trans Mountain pipeline. There’s no way of avoiding how political it is and therefore, you know, having a refined debate or discussion around whale consciousness and the importance of whales to our ecology it almost gets lost in the kind of flashy idea of calling them persons, unfortunately. I think that you know Linda Nolan from BC, who is the kind of voice of this from the British Columbia level, you know, even she can acknowledge that it at times can sound outlandish to people that we should call them persons but, you know, at the same time, she believes fully that they should be receiving the same protections and the same representation as even a corporation would or an industry.
Jordan: Well I was gonna ask you, there’s a famous quote by Mitt Romney, if you remember that corporations are people to my friends and it’s because of the rights that are granted to them. And, you know, if we can grant those rights to corporations and we can grant them to bodies of water or parks as ridiculous as it does seem when you see a headline in the walrus that says whales are people too, what did you think?
Lyndsie: I do not disagree that in these times, you know, as we’re kind of coming to further understand the extinction crisis on our hands. You know, we’re kind of all talking about climate change in a much more serious way, even in the past two or three years than we have ever before. I don’t think it’s ridiculous at all to start considering how we might provide nature legal rights. I think that what sets people off is the comparison, it’s using the word person in my observation that’s what really can upset some people because they think it appeals to emotion and that it’s being used as a tool of activism, which is easy to understand why, for instance, industry might think that way, especially the tourism industry. So it’s a fine line and I don’t you know, I don’t know the right answer. David Boyd, the U. N. Representative, you know, he talks about how when you read through the paperwork that made the New Zealand River, that granted it legal personhood that the wording is so unique and so different from what we currently have you know, it requires businesses to enter into friendship partnerships with the part instead of, you know, business agreements. I think that to turn industry and business or corporate sensitivities in that way takes a lot of work. I’m not sure how easy it would be.
Jordan: Is it more effective as that legal device that may or may not ever actually be passed and grant them these rights, or is it more effective as a method to engage people on the topic of whether or not this ever happens?
Lyndsie: I think it would need to have some legal backbone to it. I think that you know, it certainly works to have discussion. I think especially out here in BC, where I live we hear about those whales kind of as characters all the time, you know, in the news and on the radio. They are charismatic creatures, and it is important that we talk about it but until some actual kind of concrete legal steps happen, I don’t know how seriously people will take it.
Jordan: Well, yeah, I mean, there is that aspect of personality to it, and I mean, the three whales that died this week were were numbers until I read the article and realized that one of them was J17 who was J 35’s mother.
Lyndsie: Yep. Yeah, the matriarch right?
Jordan: And of a sudden that’s a family been torn apart.
Lyndsie: Yeah, for sure, and that’s also, you know, an important distinction to make and I think that it kind of links them even more to this idea of personhood, right? That you can lose a bloodline that, you know, they are a matriarchal society, which means that they can make distinctions between mother and father rules and what not is fascinating. It opens up a lot of questions about what we need to be doing for this kind of very imminent decline that’s right off our shores.
Jordan: Thanks Lindsay.
Lyndsie: Thank you.
Jordan: Lyndsie Bourgon, a writer for the Walrus and lots of other places. That was The Big Story, for more from us you probably know the address by now, but we’re at thebigstorypodcast.ca, and we’re on Twitter @thebigstoryfpn, and we would like to hear from you if you think whales are people, you can also find us wherever you get podcasts, wherever you’re listening to us right now, and several dozen other podcast applications and you can subscribe, and if it lets you, you can rate us, and review us, and we’ll appreciate it. Thanks for listening. I’m Jordan Heath Rawlings, we’ll talk tomorrow.
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