Once a species is listed under the Species at Risk Act, the government is required to identify the habitat the species needs to survive and recover. For the killer whale, DFO first issued a Protection Statement claiming that existing laws, and the exercise of government discretion were enough. The Federal Court disagreed.

"The court ruled that discretionary laws, such as the Fisheries Act, do not sufficiently protect critical habitat of these endangered species," said Keith Ferguson, Ecojustice staff lawyer.

The win ensures stronger legal protection for all of Canada's 90 marine species that are at risk of extinction, but DFO has appealed the decision.

"We're not backing down," said Christianne Wilhelmson, executive director of the Georgia Strait Alliance one of the nine groups represented by eco-justice, after being notified that DFO had appealed the decision in June 2011. "DFO would rather waste its time in court instead of focusing its energy and taxpayer money on protecting habitat for at-risk species that urgently need help to survive and recover," Wilhelmson added.

"DFO is trying to limit the power of the Species at Risk Act, which intends to provide mandatory protection for at-risk species,"added Feguson.