On September 10, 2008, DFO declined to issue an Order under Species at Risk Act (SARA) to protect their critical habitat from destruction. DFO contended that other laws and regulations already protect killer whales.

"DFO's decision not to protect critical habitat of Resident Killer Whale is symptomatic of the federal government's widespread failure to implement the Species at Risk Act," said Gwen Barlee, policy director of The Wilderness Committee.

The endangered Southern Resident Killer Whale has suffered a 20 percent decline between 1993 and 2003, with only about 80 whales remaining. The threatened Northern Resident Whales have dropped 7 percent in recent years with only 205 remaining.