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Will rocky relationship between park board, aquarium end up in court?

The head of the Vancouver Aquarium said he’s not ruling out the possibility of taking the Park Board to court over the future of whales and dolphins in Stanley Park, with tensions between the two sides at an all-time high.

On Tuesday, members of the public — as well as aquarium management — will get their first look at details of proposed bylaw amendments to ban the import and display of live cetaceans in Vancouver parks.

FILE PHOTOS Rescued cetaceans Helen, a Pacific white-sided dolphin and Chester, a false killer whale in action at the Vancouver Aquarium in Vancouver, BC., January 24, 2017. NICK PROCAYLO / PNG

A staff report, including the proposed amendments, will be available online Tuesday, and the park board will then vote on the proposal at a meeting next Monday evening (May 15). If the board votes to enact the amendments, the change would take effect immediately.

“Until we see the exact wording of the bylaw, nobody is quite sure what the park board is intending to do,” said Aquarium CEO and president John Nightingale. Asked if a legal challenge could be a possible response, Nightingale replied: “All options are open.”

Nightingale, who has worked at the aquarium for 24 years, said the relationship between his organization and the park board, right now, is “as tense as it’s ever been.”

And as the two sides have exchanged increasingly pointed barbs in public over recent months, it becomes tougher to imagine how the relationship can be salvaged.

There’s a recent precedent for a legal skirmish between the two sides, but there was never a resolution. In July 2014, the park board passed a motion in favour of a breeding ban of captive cetaceans at the aquarium.

The following month, the aquarium launched a legal challenge asking the court to overturn the motion, arguing the board had acted outside of its jurisdiction.

But the case of “Vancouver Aquarium Marine Science Centre vs. Vancouver Board of Parks and Recreation” never saw its day in court. Within a few months, Vancouver’s 2014 municipal election changed the composition of the park board, with a Vision Vancouver-dominated board giving way to an NPA majority. The new park commissioners decided not to pursue the breeding ban.

That meant the question of jurisdiction never went to a judicial review. The legal action currently sits on hold, in limbo.

Nightingale said: “We felt that we had a strong enough case to warrant taking some money away from our conservation and education work, and paying some lawyers. Would we have won? We never found out in that case.”

Asked if the jurisdictional question would form the basis of a legal challenge on the board’s newest bylaw amendments, Nightingale simply said they are keeping “all options open.”

The current park board said they were spurred to action by the mysterious deaths, days apart in November, of a mother and daughter beluga at the aquarium.

Rebeka Breder, a Vancouver-based animal law lawyer who has advocated for ending the captivity of cetaceans, said she believes the aquarium would have a tough time making the jurisdiction argument.

“The Vancouver Aquarium is on park land, and (the aquarium) would have an uphill battle to show otherwise and show that the park board does not have jurisdiction, and to show that they somehow acted unlawfully by passing this bylaw,” said Breder, adding she believed such a dispute would be a “huge waste of taxpayer money.”

In recent weeks, the dispute has played out in the court of public discourse, with the aquarium and park board taking turns with news releases and announcements. Both sides say they represent the will of the public.

On Monday, the aquarium issued a release headlined: “Survey Shows Overwhelming Public Support for Vancouver Aquarium’s Marine Mammal Rescue Program.” Nightingale was quoted in the release saying: “The Park Board and its proposed ban are completely offside with the public.”

The Angus Reid Forum panel question, though, wasn’t about whether the aquarium should keep whales in pools to sell tickets for human entertainment, but whether or not “it is better to provide ongoing care for a stranded dolphin, whale, or porpoise at the Vancouver Aquarium than it is to euthanize the animal.”

Park board chair Michael Wiebe wasn’t available for comment Monday, but spoke at a news conference two weeks ago in support of the aquarium’s rescue program, saying: “We applaud the valuable work still being done in public education and conservation and look forward to continuing our strong partnership into the future.”

That “strong partnership” to which Wiebe referred last month sounds a bit frayed at the moment. In the same news conference, Wiebe said park board staff had asked the aquarium for input on the bylaw amendments, but had received no response. Monday, Nightingale said the aquarium’s board chair had tried to provide input to the park board, but had been “totally rebuffed.”

The aquarium has called Monday’s park board meeting the “final vote on the cetacean ban.” But it seems likely the emotionally fraught issue won’t end with Monday’s vote.


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