Aquarium legal challenge leaves Vision Vancouver with no alternative but to order plebiscite

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      This week, the Vancouver Aquarium upped the ante in its fight with the Vision Vancouver–controlled park board by launching a legal challenge.

      In a petition filed in B.C. Supreme Court, the aquarium is seeking a judicial declaration that commissioners exceeded their jurisdiction under the Vancouver Charter with their four-part motion on cetaceans on July 31.

      At the time, five Vision commissioners voted to virtually ban cetaceans from breeding in captivity in Stanley Park and to create a committee to "ensure the well-being of all cetaceans" owned by the aquarium. The two NPA commissioners, John Coupar and Melissa De Genova, weren't present for the vote.

      The motion mentioned that cetaceans could be bred only if they were a threatened species and if this breeding was approved by the oversight committee. The motion also instructed park-board staff to work with aquarium officials to implement alternatives to cetacean exhibits, if possible.

      The aquarium claims that the board's actions "are an attempt to legislate in relation to, or interfere with, the Aquarium's day-to-day operations", according to the petition.

      "Further, as the resolutions would affect cetaceans primarily outside Canada, they are manifestly beyond the territorial jurisdiction of the Parks Board," the petition adds.

      This was in reference to the aquarium's seven belugas at SeaWorld and the Georgia Aquarium.

      NPA mayoral candidate Kirk LaPointe has told the Vancouver Sun that if his party takes power in the November election, it will reverse the board's decision.

      It puts the ruling Vision Vancouver into a corner.

      Vision must either prepare for a lengthy, expensive, and distracting court case or, should it lose power to the NPA, watch its rivals unravel its efforts to regulate the captivity of whales and dolphins.

      Compounding the problem is Vision's rather inept consultation process leading up to the decision.

      Public meetings were held during the summer, guaranteeing a low turnout. The consultant's report was presented on a Saturday morning, followed by the aquarium's response.

      The public had to sit around for hours before being given a mere three minutes each to make comments.

      The park board barely publicized the meeting in advance, further undermining its legitimacy. Vision commissioners gave no indication in advance of the July 31 meeting that the vote would take place that evening.

      The park board can claim that there was broad consultation, but that will be picked apart in court by any lawyer representing the aquarium.

      It leaves the door open for the aquarium to claim that the decision was based on a faulty public process.

      In court, the aquarium's lawyer can raise serious questions whether commissioners truly had an open mind going into the vote. That's because the head of the party, Mayor Gregor Robertson, had already expressed his personal opposition to keeping whales and dolphins in captivity.

      There's one way that Vision Vancouver can extricate itself from this mess.

      It could say that given all the controversy and the legal challenge, it's going to put the matter before the public in a plebiscite this November.

      There can be three simple questions attached to the ballot on election day:

      1. Are you in favour of bringing more whales and dolphins into the aquarium in Stanley Park to perform tricks for audiences?

      2. Are you in favour of the aquarium breeding whales and dolphins in captivity in Stanley Park?

      3. Are you in favour of the aquarium breeding harbour porpoises in captivity in Stanley Park?

      Harbour porpoises don't perform tricks in captivity, which is why there are so few of them held in aquariums in North America. But the aquarium's CEO, John Nightingale, has been making a big deal of the effect of the park board vote on its two harbour porpoises, Jack and Daisy.

      By asking specifically about whales and dolphins performing tricks, it excludes harbour porpoises from this aspect of the debate.

      According to the aquarium, Jack and Daisy were rescued and can't be freed into the wild.

      Maybe the public will think it's okay for Jack and Daisy to mate, but not for the aquarium to breed belugas in captivity.

      By asking all of these questions in a plebiscite, Vision Vancouver will have engaged in far more authentic public consultation than what's occurred to date.

      And in giving the public a vote on the matter, this will also provide city lawyers with more material to bring forth in court, particularly if the plebiscite results support the Vision commissioners' vote.

      There's a moral authority attached to a public vote on a matter of public significance.

      An added benefit of a plebiscite is that it would increase turnout in the November civic election, adding legitimacy to the final result.

      Comments

      20 Comments

      Leeloo

      Aug 28, 2014 at 7:06pm

      Those are loaded and unfair questions. They should be something more like:

      1) Are you in favour in letting the Aquarium rescue and rehabilitate cetaceans?
      1a) If they are deemed un-releasable, are you in favour in the Aquarium keeping them?

      2) Are you in favour of keeping males and females together naturally, risking that they may breed and produce offspring who will live his/her life at the Aquarium?

      And you know, in good measure:

      3) Are you in favour on future decisions being made by specialists in the field of marine mammal biology rather than a bunch of arrogant Parks Board members?

      Respectively.

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      Donald Berrian

      Aug 28, 2014 at 8:54pm

      Putting things to a vote sounds like a good idea but the questions proposed have a distinctly totalitarian wording. In a free society, rules forbid you from doing things, not allow you to do them. What is being proposed is to forbid certain current practices and the propositions aught to be worded that way. As they stand, they imply that the aquarium is entitled to do nothing except that which the government has authorized and that is offensive as well as absurd.

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      ACMESalesRep

      Aug 28, 2014 at 11:08pm

      There is another way Vision could extricate themselves from this mess, one that would save us the cost of a plebiscite: They could simply back down and let the Aquarium continue its work, free of political interference.

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      Lee L

      Aug 29, 2014 at 12:59am

      If you think a plebiscite is in order, maybe you ought to be calling for a plebiscite or referendum that gives the people of Vancouver a chance to vote on the acceptance or rejection of their OCP. ( Official Community Plan). It has never gone to the public in a yes or no fashion. Did you want the viaducts demolished, and the high rise, mixed use formula applied in YOUR neighbourhood? Did you get a chance to ok the stealth rezoning of ALL the single family properties in Vancouver to MULTI FAMILY ( that IS what lane housing bylaws do).

      I think a plebiscite asking for the MANDATE to implement this extreme and thus far UNASKED FOR change in our neighbourhoods is absolutly in order and although I also think that cetaceans ought never to have been captured... they also are unlikely to be successfully reintroduced into the wild and the question at hand ought to be the purvey of the Parks Board, not a plebiscite.

      You cant have a plebiscite on everything, and we need a plebiscite or better, a referendum, that reintroduces DEMOCRACY into the contorted and manipulated web of bylaws and plans for growth that Vision Vancouver has rammed through.

      Ask the people Gregor. Ask them directly. But ask the questions that need to be asked.

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      Anonymous_Pseudonym

      Aug 29, 2014 at 6:24am

      And public opinion is somehow more important then professional standards and over-sight? If the public would like to close the aquarium, that is a question for the voters. How an internationally accredited aquarium is run, is a question for qualified professionals.

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      Jon Q. Publik

      Aug 29, 2014 at 9:16am

      So Charlie, you are suggesting that Gregor and Vision should flip flop on the mayor's own stance of not having a referendum on this issue? I believe that Jasper reiterated this statement most recently as of the 27th.

      What really concerns me here is why Vision allowed its junior members to act so cavalier towards such a complex issue. As commented in the article about the aquarium's legal challenge, I see Vision not claiming a majority in November for the Parks Board again.

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      Q

      Aug 29, 2014 at 9:39am

      "1. Are you in favour of bringing more whales and dolphins into the aquarium in Stanley Park to perform tricks for audiences?"

      If this isn't a loaded question I don't know what it.

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      Member

      Aug 29, 2014 at 9:43am

      As I member of the Aquarium I got an email explaining what they intend to do.

      I replied and asked why breeding is a requirement for their "mission and mandate", as they stated. And I explained that I'm finding it harder to defend their practices.

      I have not had a response yet.

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      Lifeforce

      Aug 29, 2014 at 9:48am

      The only logical option now is to change the Cetacean Bylaw to ban cetacean captivity.

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      Charlie Smith

      Aug 29, 2014 at 9:51am

      Q,

      It's not a loaded question because certain animals do tricks -- i.e. some breeds of whales and dolphins.

      The harbour porpoises don't do tricks.

      By wording the question this way, I was separating harbour porpoises from the Pacific white-sided dolphins and the belugas.

      Charlie Smith

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