April 28, 2022
Can Southern Resident killer whales have legal rights?
Olivia Palmer

Southern Resident killer whales swim close to shore off Lime Kiln Point State Park on San Juan Island, to the delight of onlookers. Advocates seeking establishment of legal rights for nature—including the endangered orcas—shared their perspectives during the Salish Sea Ecosystem Conference this week. (Monika Wieland Shields photo ©)

April 28, 2022
Can Southern Resident killer whales have legal rights?
Olivia Palmer

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Kriss Kevorkian still remembers the day she fell in love with whales. 

As she and her seventh-grade peers set off whale watching from Long Beach, California, Kevorkian quickly made her way to the front of the 40-foot boat. She breathed in the salty air and stared into the deep waters of the Pacific Ocean. She watched. She waited. Then, she saw it: the majestic body of a grey whale, breaking the surface to breathe.

“It was so magical,” Kevorkian said.

Decades later, Kevorkian is the founder of Legal Rights for the Salish Sea, an organization working to establish legal rights for Southern Resident killer whales (SRKW). This week, she is leading a Salish Sea Ecosystem Conference panel of advocates and legal experts discussing rights of nature and the push for a state bill recognizing SRKW rights. The conference is presented by Western Washington University’s Salish Sea Institute.

Since being listed as an endangered species in 2005, the SRKW population has fallen from 88 to 73 individuals this year. 

Monika Wieland Shields, director of the Orca Behavior Institute, recalls seeing the whales almost daily from May through September in the early 2000s. Last season, she went 100 days without seeing J-Pod, one of three SRKW pods, in the Salish Sea. Deborah Giles, science and research director at Wild Orca, said the whales are far from recovering when two out of three pregnant females are losing their calves. 

A missing voice

In 2018, Gov. Jay Inslee signed Executive Order 18-02, establishing an orca recovery task force to lay groundwork for state bills aimed at protecting salmon habitat and reducing vessel noise and pollution. 

The task force included the Washington Departments of Agriculture, Commerce, Ecology, Health, Fish and Wildlife, Natural Resources and Transportation, as well as the Puget Sound Partnership, the Governor’s Office of Indian Affairs, the Recreation and Conservation Office, and the Governor’s Salmon Recovery Office; and representatives from federal, tribal and local governments and nonprofit organizations.

Michelle Bender, ocean campaigns manager at Earth Law Center, said there is one important voice absent from the conversation. 

“What was missing was really who was speaking for the orcas,” said Bender, a panelist at the Salish Sea Ecosystem Conference.

Advocating for Nature’s rights

Bender is an advocate for Rights of Nature, a legal framework recognizing nature as a living being with rights. 

Bender said several regions have laws recognizing the rights of nature. Ecuador passed a constitutional amendment and added additional laws to protect the Galapagos Islands. In Ohio, community members sought rights for the Lake Erie ecosystem through the Lake Erie Bill of Rights

As in Ecuador, Bender said, the rights of nature also recognize the rights of people to protect and defend nature. Environmental issues usually are brought to court after laws have been broken. A law recognizing SRKW as entities with rights could allow people to argue on their behalf in court without having to cite violations to other environmental laws or argue on their behalf in Chinook salmon harvest allocations.

 “It becomes proactive, rather than reactive,” Bender said. 

Paradigm shift

Lindsey Schromen-Wawrin, a panelist, attorney and policy partnerships manager for Firelands Workers Action, said a law recognizing orca rights could also shift the legal paradigm around rights and responsibilities.

“We’re inverting that and saying, ‘Actually, the Earth has rights. So what are our responsibilities to the Earth?'” Schromen-Wawrin said. 

In 2019, Earth Law Center developed a draft bill recognizing the rights of the SRKWs. The bill was not introduced due to legislators’ unfamiliarity with the concept. Since then, Earth Law Center and Legal Rights for the Salish Sea have partnered to lead workshops and community and legislative roundtables to increase awareness and support for the legislative campaign.

Bender said Earth Law Center has a draft local resolution, and plans to put out a toolkit next month with information on petitions and a sample letter for community members to use to contact their representatives to support an orca rights bill. She hopes the bill will be introduced by the end of this year. 

Who gets to advocate?

As-yet-unanswered questions are who would speak for the species and how human rights will be affected, should legislators give SRKW rights. 

Sen. Liz Lovelett [D-40], who cosponsored an unsuccessful amendment that would have added recognition of rights of nature to Washington’s constitution, said one key is listening to all concerned parties.

“The way that we get there is by authentically listening to the needs and concerns of people that our legislation affects,” Lovelett said. “It’s going to look different from different parts of the state, but ultimately, a benefit to the orca is a benefit to all; a benefit to the salmon is a benefit to all; a benefit to agriculture is a benefit to all. We don’t have to have a winners-and-losers mentality about all of this.”

The Orca Behavior Institute’s Shields said humans share an emotional connection to orcas; Southern Residents have distinct cultures, dialects and family dynamics. And humans also share a biological connection to SRKW, because we both rely on the same ecosystems.

“If [orcas are] living in the Salish Sea and they’re struggling, that’s telling us something about the overall health of the Salish Sea,” Shields said. “That’s ultimately going to impact us as humans also.”

One of the most pressing issues for SRKW recovery is increasing the availability of Chinook salmon, the whales’ primary food source, said Giles of Wild Orca. Another important priority is protecting existing habitats and recovering degraded ones.

“Everything that’s causing their decline is our fault. And everything that’s causing their decline is within our power to change and to rectify,” Giles said. “The whales haven’t given up. So how can we?”

—Reported by Olivia Palmer

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