For 17 days in July and August 2018, a killer whale known as J35 or Tahlequah carried on her snout her newborn calf, who had died within an hour of birth. The journey took Tahlequah and her calf through the inland waters of the Salish Sea, covering 1000 miles from Washington to British Columbia.  To many people who watched, the meaning was obvious: this was a mother mourning the loss of her child.

And many people were watching. The longer Tahlequah carried her calf, the farther the story spread, attracting regional, national, and even international news coverage. 

During the later parts of the journey, some of Tahlequah’s relatives, an extended family of killer whales known as the southern resident orcas, took turns carrying the calf, apparently to give the grieving mother time to rest. On social media, there was an outpouring of empathy from around the world, especially from other mothers.

Applying ethical and legal concepts such as the rights of nature, non-human personhood, and moral debt to orca protection could open up new strategies for ensuring the southern residents’ survival, experts say.

Then, on August 9, Tahlequah released her infant’s body to the sea. Four years later the killer whale’s display of grief remains resonant, a touchstone for people working to ensure the survival of the endangered southern residents, who now number just 74 individuals, close to the lowest number in more than three decades.

In the years since Tahlequah’s journey, the Salish Sea’s endangered orcas have remained at the top of the news, sparking renewed conservation recommendations from Washington Governor Jay Inslee’s orca task force and amplifying efforts to bolster the whales’ preferred food, Chinook salmon. The story of Tahlequah has also influenced the way policymakers and scholars see the orcas themselves.

Some are asking, if orcas and other animals can exhibit emotions — emotions that many people considered to be human-like responses such as grief — should there be special ethical considerations for orca recovery?

That was one of the motivations for a series of discussions in late April at the online Salish Sea Ecosystem Conference, a gathering of agencies, academic organizations, First Nations, and NGOs focusing on Salish Sea ecosystem recovery. Over and over, speakers in two special sessions on ethics and southern resident killer whale recovery invoked Tahlequah and her lost calf. To many of them, Tahlequah’s story was evidence that the legal and ethical underpinnings of orca conservation need an overhaul.

Some argued that the human relationship with orcas has reached a turning point. “I believe that at that time a fundamental shift happened not only in the Pacific Northwest but nationally to start to consider orca and other wildlife as on par with humans, recognizing that we share fundamental emotions,” said Alexandrea Safiq, a postdoctoral researcher who studies conservation psychology at the University of Minnesota based in Olympia, Washington.

Some say it’s time for managers and policymakers to take notice of that shift. Ethics and values are implicit in conservation actions, but are “not often the focus of our management and recovery conversations,” Julie Watson, killer whale policy lead at the Washington Department of Fish and Wildlife and one of the co-chairs of the 2022 SSEC told Salish Sea Currents. Watson helped organize the ethics sessions, hoping “to bring some new voices to the table” and expand the conversation around southern resident killer whale recovery.

Applying ethical and legal concepts such as the rights of nature, non-human personhood, and moral debt to orca protection could open up new strategies for ensuring the southern residents’ survival, some experts believe. But can these provocative ideas translate into action in time to save this population from extinction? And are they too radical, or not radical enough? This article explores some of these ideas, including comments from session participants as well as other experts. 

Ecocentric law

In reshaping the human understanding of killer whales and other wild species, Tahlequah was, in a sense, simply carrying on a family tradition. Jason Colby, a historian at the University of Victoria who spoke at the conference calls the southern residents probably the most influential cetaceans in human history.” For the past 60 years, he said, they have helped reframe cultural values, environmental politics, and scientific practices in the Salish Sea and beyond.”

As Colby documents in his book, “Orca: How we came to know and love the ocean’s greatest predator,” beginning in the late 1960s a series of encounters with individual southern residents, many of them held in captivity at the Vancouver Aquarium or at various marine parks, helped transform killer whales from hated predators to beloved icons. (At least, in the eyes of the dominant settler culture; Indigenous groups throughout the Salish Sea have long held a much more positive view of the species.)

In a recent study, researchers identified 30 locations (schools, roads, institutions, and features of the Earth’s surface) and more than 600 businesses in Washington that have killer whale or orca in their name. Images of the whales are prominent on murals and other public art installations, the unofficial flag of Seattle, and even the public transit cards that people use to travel around the Puget Sound region. 

A Mother’s Love mural by Jake Wagoner in Edmonds, Washington was inspired by and in honor of the mother and calf orcas of the J pod. Photo: Jay Galvin; (CC BY 2.0)

This change in the human perception of orcas, driven in part by southern residents’ own actions, has coincided with a broader shift in cultural values away from human domination of nature and towards a desire to live in harmony with nature. One example of this shift is the development of Earth law or ecocentric law, “an emerging body of law for protecting, restoring and stabilizing the functional interdependency of Earth’s life and life support systems,” according to Elizabeth Dunne, director of legal advocacy at the Earth Law Center.

...ecocentric law aims to apply the precautionary principle to prevent species from declining in the first place.

The global movement has been gaining strength over the past decade and has led to constitutional amendments, court decisions, judicial decrees, and local laws in a variety of countries around the world recognizing the rights of species, ecosystems, natural features such as rivers, and nature as a whole to exist, thrive, and evolve.

A driving force behind ecocentric law is what some see as a mismatch between Western science and the conventional Western legal system. Jennifer Calkins, Diehl Fellow at the Western Environmental Law Center in Seattle, said Western law  is backward-looking, focused on precedent, and so its conceptualization of the natural world is largely frozen in Enlightenment Europe. The law views humans as separate from nature, she said, and holds that humans are uniquely important and other species matter mainly in their relationship or value to humans (as game, domestic pets, livestock, crop species, or timber species, for example); it sees the natural world as static, predictable, and within human control.

Although Western science also has roots in the Enlightenment, its task is forward-looking, focused on building knowledge and overturning old understandings of the world in the service of building a better one, Calkins said. Science is more likely to understand humans as part of nature, embedded in mutually interdependent relationships and neither uniquely capable nor more intrinsically important than other species. Recent scientific evidence also suggests the natural world is dynamic, complex, unpredictable, and something that humans have limited ability to control or repair.

This mismatch may explain why Western law has not always been effective at protecting endangered species like the southern resident orcas, Calkins said. “All of the legal structures that we have in place so far do not seem to be able to prevent the slide towards extinction.”

Ecocentric law can help address that mismatch and may offer more effective tools to protect endangered species, Dunne added. For example, the U.S. Endangered Species Act (ESA) – relatively strong, albeit conventional, environmental legislation – only applies once a species is facing extinction. In contrast, ecocentric law aims to apply the precautionary principle to prevent species from declining in the first place. In addition, under the ESA threatened species themselves lack ‘standing,’ a legal term referring to what entities have the right to bring cases in court, while under ecocentric law, Dunne said, “nature has a voice and a seat at the table.”

Non-human personhood

Applying ecocentric law and related concepts to southern resident killer whales would open up concrete new possibilities for strengthening legal protections for the orcas, experts say, as well as contribute to more abstract shifts in attitudes and priorities concerning the orcas and the broader marine environment.

Safiq proposes that orcas be granted non-human personhood status under state law, a move that would affirm them as having individual rights that the government is obligated to protect. “Within the legal system, I think giving non-human personhood grants a whole slew of access to other laws and rights that wouldn't be available if they didn't have personhood status,” Safiq explained in an interview. For example, the principle of habeas corpus – a mechanism that prohibits the illegal detention of individuals – could be invoked to help secure the release of Tokitae, a southern resident orca who was captured as a calf in 1970 and is held at Miami Seaquarium in Florida.

Colby pointed out that the change in human attitudes that southern resident killer whales have contributed to over the past decades has happened in large part due to the suffering of captive whales. “Through their interactions with us, they made us better people. But that slow progress on our part has cost them dearly,” he said. Because of this history, “We have an obligation, a moral debt, if you will, to ensure that they can continue their lives their life ways in these waters that they share with us.”

How might one discharge a moral debt – or, as Safiq advocates, pay reparations – to southern resident orcas? Some would argue that ongoing efforts to restore the orcas’ preferred prey Chinook salmon are a good start. But more broadly, advocates support changed priorities and a collective commitment to make sacrifices to ensure the orcas’ survival, prospects that aren’t necessarily just pie in the sky. Previous cultural shifts around our relationships with the whales contributed to the passage of the U.S. Marine Mammal Protection Act, Colby pointed out.

Two NGOs, the Earth Law Center and Legal Rights for the Salish Sea, have been working on state legislation to recognize the inherent rights of the southern resident orcas since around the time Tahlequah lost her calf. The draft text of the bill sets out the orcas’ rights “to life, culture, autonomy, free and safe passage, adequate food supply from naturally occurring sources, and freedom from pollution and contamination that can cause them physical and mental harm,” said Michelle Bender, ocean campaigns director with Earth Law Center.

The legislation would also include provisions for enforcing those rights and mechanisms for representing orcas’ interests in decision-making processes and prescribe remedies in case of violation of those rights. The law could enable representation of orcas as stakeholders in fishery management decisions alongside recreational, commercial, and tribal fishers. “This would require setting aside an amount [of the Chinook catch] that the orcas need,” she said.

It would also strengthen the case for other actions that have been proposed to help the southern residents, such as stricter boating and shipping vessel regulations, breaching of the Snake River dams, and freshwater salmon habitat restoration. “This creates a responsibility-based framework, and we have to adhere to it,” rather than choosing to take actions that would benefit the whales or not, Bender explained in an interview.

The advocates are currently holding a series of legislative roundtables to and stakeholder meetings to vet the draft legislation. They don’t yet have a commitment from any state legislator to introduce the bill but hope to move it forward in the next legislative session.

New laws and regulations?

Bender and others say they have found a receptive audience for their ideas among scientists and managers. But it’s not clear that these new ethical and legal approaches are yet shaping orca conservation on the ground. During another conference session, meant to explore outside-the-box next steps in promoting orca recovery, speakers emphasized actions that could be taken under existing legal and regulatory systems.

For many Indigenous communities, including Coast Salish nations, “it's not the rights of the individual that's paramount. It's the relationships between all the various facets of that community,” Reid said. And ‘community’ includes other species and entities such as salmon, orca, and the Salish Sea itself.

These speakers advocated actions such as working with the International Maritime Organization to impose binding restrictions on underwater noise for international shipping; continuing and strengthening the voluntary slowdown program for container ships transiting the Strait of Juan de Fuca; and using photographs of whales taken by drone to guide short-term changes in fisheries regulations.

A major reason for emphasizing these existing legal structures for orca protection is expediency. “We have an imminent crisis. And so we don't have the luxury of time to wait for, to delay in any way, protection measures,” Lance Barrett-Lennard, senior scientist with the Raincoast Conservation Foundation’s cetacean conservation research program, who has been developing the drone-photography approach to fishery regulation told Salish Sea Currents.

It takes time to pass new laws, and to work through the legal process even with existing ones, Barrett-Lennard said. (He was involved in a lawsuit related to southern resident orca protection under Canada’s Species at Risk Act that took four years to wend its way through the court system.) “I'm a triage guy,” he said.

Still, Barrett-Lennard thinks ecocentric law and related concepts could help killer whales. “I think it's necessary, actually, to develop new laws and regulations,” he said. These concepts could be applied in ways that aren’t necessarily directly linked to conservation status. “I would argue that that sticking an exquisitely acoustically sensitive animal, like a killer whale, into an environment that you've saturated with noise is inhumane,” he said. That should be enough to justify restrictions on vessel noise, he said – regardless of whether certain noise levels can be linked to killer whale mortality or reduced reproduction in a quantitative way.

One exception to the focus on existing legal and regulatory structures was offered by Carleen Thomas, special projects manager for the Tsleil-Wautooth Nation, whose comments implicitly challenged the current approach to orca protection: Instead of talking about management, “let's flip it. Let's twist it and say, ‘What is our obligation? What is our relationship with the environment around us?’”

In fact, some Indigenous scholars say the ‘rights of nature’ movement does not go far enough in remaking the legal system. It can become yet another way that a settler colonial government is trying to curtail management rights of an indigenous nation, said Joshua L. Reid, registered citizen of the Snohomish Indian Nation and associate professor of history and American Indian Studies at the University of Washington in Seattle who was not a speaker at the conference. It's putting it in a Western legal framework. And this is a framework that is rooted in the rights of the individual.”

For many Indigenous communities, including Coast Salish nations, “it's not the rights of the individual that's paramount. It's the relationships between all the various facets of that community,” Reid told Salish Sea Currents. And ‘community’ includes other species and entities such as salmon, orca, and the Salish Sea itself.

These principles are embedded in traditional Coast Salish technologies and fishing practices, such as reef nets that allow fish of a certain size to escape the net, or ceremonies honoring the return of the salmon that have the effect of interrupting fishing efforts and allowing some fish to continue their journey upstream, ensuring the future health of the salmon population. “These protocols have oftentimes been glossed over as spiritual or religious, but these are actual governance things rooted in our knowledge of salmon, of the watershed, of what needs to happen to care for salmon,” Reid said – knowledge and protocols that, after all, have a much longer history behind them than the current Western legal system.

Could contemporary technologies such as vessel quieting mechanisms or the design of culverts in agricultural fields, and regulations such as those that govern the distance that smaller vessels must keep from whales, be reframed in this way? “There is the opportunity,” Reid said. “And I think that we're just barely scratching the surface. We're not doing enough.”

It would mean asking questions about orca protection in a different way, one that paradoxically turns the focus back on us, in a way that might be uncomfortable. When it comes to small recreational boats or the whale-watching industry, “How can that crew of people, how can that community be a good relative to southern resident orcas?” Reid asked.  “How can a big cargo vessel be a good relative?”