Student paper snapshots in animal law: Limits of Canada’s animal welfare recognition

Law360 Canada (February 11, 2026, 11:43 AM EST) --

V. Victoria Shroff

Next in my animal law student paper snapshot series, I’m highlighting a research paper on cetaceans by my animal law student at the Peter A. Allard School of Law at UBC, Isabella Schopper.

Her paper is titled “Banned in Law, Abandoned in Practice: Cetacean Protection and the Limits of Canada’s Animal Welfare Recognition.” The paper argues that Canada bans cetacean captivity in law but fails to enforce those protections in practice. Through the cases of Marineland’s beluga whales and the endangered southern resident killer whales, Isabella shows how federal and provincial governments deflect responsibility and rely on discretion, allowing suffering and extinction risk to continue. Comparing Canada to France, the paper shows how enforceable duties and firm timelines can turn legal recognition into real protection.

I asked Isabella a series of questions about her research on legal protections and cetaceans, and she responded as follows:

V.V.S.: Why did you choose this particular animal law topic?

I.S.: I felt compelled to write about this topic because I noticed a pattern in the Canadian federal and provincial government’s enforcement of the laws regarding the treatment of captive and wild cetaceans, specifically the captive Marineland belugas and then-endangered southern resident killer whales, which tended to separate or decontextualize the species in question from the laws intended to protect them.

For the belugas held captive in deteriorating conditions in Marineland, Ontario officials attempted to justify their inaction by asserting that relocating cetaceans exceeds provincial capacity and falls within federal jurisdiction. This argument collapses under scrutiny. The PAWS Act (Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13) does not require Ontario to single-handedly design or operate a marine sanctuary; it requires the province to take reasonable steps to relieve distress. Such reasonable steps could include seizing the animals, ordering their transfer to a suitable facility, coordinating with federal authorities or compelling the owner to bear relocation costs; none of these options are foreclosed by the statute. By refusing to act, however, Ontario has effectively rendered the PAWS Act meaningless for the very animals most in need of protection. This lack of enforcement undermines the rule of law and exposes a hierarchy of animal worth, in which economically inconvenient animals are left unprotected.

V.V.S.: If your paper were to influence future litigation or legislation, what practical change do you envision it could potentially produce?

I.S.: If my paper had the ability to influence future legislation, I would hope it could evoke the federal and provincial governments to critically evaluate the laws on captive cetaceans in other jurisdictions and to implement similar legislation to address Canada’s fragmented and reactive approach to cetacean protection. For instance, the French Ministry of Ecological Transition issued an official public statement in December 2025 that the mother and son orcas Wikie and Keijo are destined to join the Whale Sanctuary Project in Nova Scotia, as this is the only ethical and credible solution and the only outcome that acts in accordance with their laws.

This framing is significant: the relocation of Wikie and Keijo was not presented as a discretionary act of compassion, but as a legal obligation flowing directly from France’s animal welfare framework. Unlike Canada’s reliance on discretionary enforcement, France’s regulatory regime empowered inspectors to trigger binding consequences, including the mandatory relocation of animals whose continued captivity violated statutory standards.

The French model offers clear guidance for reforming Canada’s federal cetacean protection regime. First, the federal Act must be amended to include mandatory timelines for the relocation of all captive cetaceans, accompanied by enforceable obligations rather than discretionary authority. Second, the federal government must assume financial and logistical responsibility for facilitating sanctuary placement, recognizing that the state bears responsibility for dismantling harms it has historically tolerated. Third, provincial governmental actors must be legally obligated, or compelled through conditional federal funding, to exercise existing animal welfare powers to relieve ongoing distress, rather than deferring indefinitely to federal actors. Most importantly, enforcement of the Act should not result in the Marineland belugas and dolphins’ continued life in captivity in one institution to life in captivity in another institution.

V.V.S.: How are the consequences of governmental regulatory inaction reflected in the context of cetaceans living in the wild?

I.S.: The federal government’s failure to protect the southern resident killer whales (SRKW) is a profound example of governmental regulatory inaction in Canada’s wildlife protection regime. Unlike the captive belugas at Marineland, SRKW inhabit their ancestral waters of the Salish Sea, yet their survival is constrained by regulatory inaction rather than physical barriers. The continued decline of this population exposes the limits of the Species at Risk Act (SARA) and reveals a stark disconnect between federal knowledge and political will. SRKW have been listed as an endangered species under SARA since 2003; 22 years later, fewer than 75 individuals remain.

The Department of Fisheries and Oceans (DFO) has acknowledged the threats facing the population: prey scarcity, particularly Chinook salmon; acoustic disturbance from vessel traffic; and chemical pollution within their critical habitat. These findings are reflected in DFO recovery strategies and scientific evaluations, which emphasize that without immediate, substantial intervention, the population faces an imminent risk of extinction. Despite this knowledge, the federal government has consistently declined to issue a comprehensive emergency order under section 80 of SARA. In the case of SRKW, the statutory threshold for emergency intervention has long been satisfied, yet the federal government has maintained its position to implement incremental measures that fall far short of what science demands.

The federal government’s reluctance to disrupt shipping corridors and commercial fishing illustrates how economic considerations continue to override statutory mandates. While SARA purports to prioritize species survival, its reliance on political discretion allows extinction to be approached through management rather than prevention, operating to the detriment of SRKW, whose recovery requires precisely the kinds of restrictions the federal government has been unwilling to impose.

V.V.S.: How does your analysis move beyond descriptive discussion to offer a normative or doctrinal contribution to animal law?

I.S.: The parallels between SRKW and the belugas remaining captive in Marineland Canada are instructive; in both cases, the federal government has acknowledged harm and affirms protective principles yet retreats from action when meaningful enforcement would impose costs. For captive belugas, the cost to prioritize their welfare is financial, for SRKW it is economic disruption to shipping and fisheries. The federal government’s refusal to invoke its emergency powers transforms the crisis of extinction from a biological inevitability into a policy choice, one that prioritizes industry stability over ecological survival. This mirrors the predicament of captive cetaceans, whose prolonged confinement has produced irreversible harm. Whether confined in tanks or constrained by regulatory inertia, whales in Canada are left unprotected by laws that promise far more than they deliver.

More broadly, Canada must abandon its legacy of reliance on reactive, criminal-law-based animal protection, which decentres the beluga whales’ welfare from the purpose of the legislation, and adopt a proactive regulatory model that prioritizes prevention, transition and enforcement. This shift is equally necessary for the protection of wild cetaceans such as the southern resident killer whales, whose survival depends on the timely use of existing emergency powers under SARA. In both captive and wild contexts, discretion must yield to duty where extinction or prolonged suffering is foreseeable. Meaningful animal protection requires more than moral denunciation; it requires the political courage to implement consequences.

Conclusions 

Isabella Schopper concludes her paper by noting that significant legal protections for cetaceans requires action — proactive, mandatory enforcement rather than symbolic bans. I couldn’t agree more.

V. Victoria Shroff, K.C., is one of Canada’s first and longest-serving animal law practitioners and the longest-serving in B.C. Shroff practises animal law in Vancouver at Shroff and Associates. She is also an adjunct professor of animal law at UBC’s Allard School of Law and faculty, Capilano University. Shroff is an associate fellow at the Oxford Centre for Animal Ethics. Recognized locally and internationally as an animal law expert, she is frequently interviewed by the media. The second edition of her book, Canadian Animal Law, was published in 2025 and is available at LexisNexis Canada. www.shroffanimallaw.com | LinkedIn.

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