KJIPUKTUK (Halifax) - The Northwest Atlantic blue whale celebrated its tenth year on the endangered species list last month, though “celebrate” is probably the wrong word.

This population of blue whales, which visits the shores of Atlantic Canada to feed during the warm season, was first listed as endangered in January, 2005. Although no species wants to find itself on this list, it has its perks.

Obligated by the Species at Risk Act (SARA), Environment Canada and the Department of Fisheries and Oceans must develop a formal “recovery strategy” for any endangered species, a strategy which outlines the actions necessary for the species’ survival.

“One of the most important things a recovery strategy is supposed to do is to identify a species’ critical habitat so that the federal government can start taking steps to protect it,” said Sean Nixon, a staff lawyer for the environmental law organization Ecojustice. “As you know, loss of habitat is the main reason why species end up on the list of species at risk in the first place.”

Critical habitat, simply put, is habitat identified as critical for a species’ recovery. Once formally identified and added to the SARA public registry, the federal government has 180 days to legally protect this critical habitat from destruction. The trick, however, is to get it identified.

The recovery strategy for the Northwest Atlantic blue whales was published in 2009 by the two federal departments mentioned above, but it did not include blue whale critical habitat. Instead critical habitat would be identified in an “action plan,” a document which would followup the recovery strategy once more research was completed.

“A blue whale…action plan will be developed within 5 years, by 2014 at the latest,” said the whale’s 2009 recovery strategy. “It will…include recommendations aimed at protecting critical habitat and will report on any portion of critical habitat that is not already subject to protection.”

This deadline has come and gone and the blue whale still does not have its critical habitat identified. There are no waters set aside for this struggling animal. The Committee on the Status of Endangered Wildlife in Canada (COSEWIC) estimated in a 2013 document that there are fewer than 250 blue whales left in the Northwest Atlantic blue whale population, a population which once numbered in the thousands.

“In the past 5 years, quite a lot of research was carried out…to identify critical habitat, and some research is still currently ongoing,” said Nicole Bouchard, Quebec Regional Manager with Species at Risk. “In the coming year, we will need to review and analyse all the data from these studies within a scientific peer review before we can identify critical habitat.”

Bouchard declined to speculate on where blue whale critical habitat is likely to be located.

Richard Sears is the founder and director of the Mingan Island Cetacean Study (MICS), an organization which has been studying the Northwest Atlantic blue whale population for 36 years. Sears was willing to tackle the question of critical habitat.

“The Gulf of St Lawrence as a whole would be best,” said Sears. “Certainly the north shore [of the Gulf] from [the St Lawrence] Estuary to the Strait of Belle Isle. [Also from the] Estuary to Gaspe and the Laurentian Channel right to the shelf edge.”

Unfortunately, the delay for blue whale critical habitat is by no means an isolated incident. According to Nixon, these delays are pandemic. During a legal case Ecojustice launched against the federal government in early 2014, 167 species at risk were identified as awaiting critical habitat identification. This number has likely declined since then.

Nixon said deadlines for critical habitat identification can be amended by the ministers of both Environment Canada and the Department of Fisheries and Oceans. This means deadlines for critical habitat are “soft” and are not legally binding. However, Nixon said, this does not mean there aren’t legal consequences for excessive delays.

“The courts could still review the federal government’s delay if that delay was unreasonable,” said Nixon, acknowledging the difficulty in deciding which delays are reasonable and which aren’t. “The longer the federal government waits to take meaningful recovery actions and to start protecting critical habitat, the more likely it is that the species will go extinct while they wait.”

Some threats to the blue whale identified by its 2009 recovery strategy and by Sears include collisions with heavy transport ships, toxic and noise pollution, food chain disruption, climate change and oil and gas development in the Gulf. While most of these threats are ongoing, the first major oil and gas project in the Gulf is expected to commence either this year or next – exploratory drilling at the Old Harry Prospect in the heart of the Gulf. This site is located in the Laurentian Channel, a location identified by Sears as likely blue whale critical habitat.

“This is one of the key problems with the federal government’s long and systemic delays in protecting critical habitat for species at risk – while they delay, development marches on,” said Nixon. “No critical habitat, no duty under [the Species at Risk Act] to assess effects on that habitat or to mitigate effects [on endangered species].”

Sears said 2014 was one of the worst years for blue whale sightings in the Gulf on record, with a mere 29 individuals spotted. He said this is only the most recent installment in a persisting downward trend.

The blue whale has become increasingly rare on our coast.

In 36 years of study, MICS has only identified 23 blue whale calves in Atlantic Canadian waters. This suggests a frighteningly low birth rate among the Northwest Atlantic blue whale population, in which blue whale females should be able to calves once every two to three years, but haven’t been.

“There is evidence this could be caused by [the] accumulation of toxic loads in their blubber, which act as hormonal disrupters,” said Sears, pointing to the St Lawrence Estuary as a likely source of the pollution. This Estuary is fed by the St Lawrence River, which begins with the Great Lakes in Ontario and carries their pollutants downstream a third of the way across Canada.

The Estuary, identified by Sears as a likely candidate for blue whale critical habitat, is already critical habitat for another endangered species – the famed white whale, better known as the beluga whale.

A staggering 25 per cent of St Lawrence belugas suffer from cancer, according to a 2002 paper published by Stephane Lair, an associate professor at the college of veterinary medicine at the University of Montreal. It’s believed this results from dangerous levels of water pollution taking place in the Estuary and upriver in the Great Lakes.

The situations of the beluga and blue whales are comparable in more ways than one. Before the beluga was reclassified as an endangered species by COSEWIC in late November of 2014, the oil and gas company TransCanada planned to build an oil export terminate at Cacouna, Quebec, on the southern shore of the Estuary and on top of beluga nursing grounds. This terminal would have been another stop for the Energy East Pipeline, carrying Albert’s crude oil to Atlantic Canada for overseas shipping.

Construction of the terminal was hailed following COSEWIC’s November decision on the beluga and on February 11 of this year, the French publication La Presse in Quebec reported TransCanada had abandoned the project altogether, considering alternative building locations farther up the St Lawrence at locations like the City of Lévis.

“After months of controversy, TransCanada will abandon its oil port project in Cacouna,” said La Presse. “In Quebec, several sources within the government indicate that the case is heard and that the announcement is only a formality, after a committee of experts concluded that belugas were an endangered species [at risk] of extinction.”

The “announcement” mentioned in this quote will be TransCanada’s formal decision on Cacouna, expected sometime before March 31.

But TransCanada has denied the claims. Company spokesperson Tim Duboyce was quoted the same day by the Montreal Gazette as saying, “Contrary to what La Presse is reporting, that decision has not in fact been made.”

Regardless of outcome, the beluga’s situation exemplifies the power of an endangered species’ critical habitat when concerning development. Had blue whale critical habitat been identified by the 2014 deadline and followed Sears’ predictions, these same considerations might likely have been applied to the Old Harry Prospect, a project still awaiting regulatory approval.

If delays for critical habitat persist and drilling proceeds in the Gulf, the blue whale could lose many of the protections owed it by the Species at Risk Act, protections in place to ensure this species’ survival.

“The federal government has recently posted a few documents on the species at risk public registry outlining their plans to deal with the entire back-log in recovery planning within the next 3 years,” concluded Nixon. “They’ve also been releasing several recovery strategies and action plans over the last few months. It’s taken some time to get them moving, but it looks like the federal government is now recognizing this as a genuine priority. I just hope they get to the point of actually protecting species before they disappear from Canada or from the planet – the longer they wait to start recovering species and protecting habitat –not just identifying it – the harder it’s going to be to recover those species.”