By Canadian Press

Vancouver Aquarium files civil claim suing city and park board over cetacean ban

May 21, 2019 | 3:01 PM

VANCOUVER — The Vancouver Aquarium is suing the city and park board over the 2017 cetacean ban for breach of contract and claiming it lost millions of dollars in revenue.

In May 2017 the Vancouver’s park board voted 6 to 1 to approve a bylaw banning whales, dolphins and porpoises in captivity.

The bylaw went into effect immediately, preventing the Vancouver Aquarium from bringing new cetaceans to its facility in Stanley Park.

In the civil claim filed May 14, the Vancouver Aquarium states attendance has dropped in the last two years, adding the bylaw has interfered with the aquarium’s “ability to carry out day-to-day administration” of the Marine Science Centre.

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“Compared to 2016, attendance at the Marine Science Centre in both 2017 and 2018 has declined by approximately 13 per cent,” the aquarium says in the claim.

“Based on 2016 admission rates, this decline in attendance equates to a loss of approximately $4 million in revenues for each of 2017 and 2018.”  

The Vancouver Aquarium has one senior-aged Pacific white-sided dolphin named Helen that the park board continues to support.

“She was rescued from fishing nets many years ago, and has no pectoral fins as a result,” says a spokesperson for the aquarium.

A B.C. Supreme Court judge had agreed with the aquarium’s attempt to quash the park board bylaw and declared it void. But that ruling was overturned in February by a panel of three Appeal Court judges, who sent the matter back to the B.C. Supreme Court.

The Vancouver Aquarium says as the matter is currently before the B.C. Supreme Court, it is not in a position to provide additional details on the lawsuit.

For more than five decades, cetaceans have been a central feature of the aquarium and its efforts to engage the public, the lawsuit says.

In January 1999 the aquarium housed five belugas, one killer whale and one Pacific white-sided dolphin, it says.

By September 2011 the aquarium had four belugas, three pacific white-sided dolphins and one harbour porpoise, the claim reads.

In the early 2000s, it says the aquarium began planning a three-phase, $100-million expansion of the Marine Science Centre. It says the first phase included improvement of “facilities and systems” for cetaceans costing more than $2.75 million, while the second phase included expansion of habitats for cetaceans including the Canada’s Arctic exhibit.

Over the last two years the lawsuit says the aquarium wrote off $2.2 million in design and consulting costs for the new Canada’s Arctic habitat for cetaceans, and lost a “major private donation” equal to $7.5 million which was in support of the habitat. The lawsuit says the aquarium also revised its plans for the second phase of the expansion project.

The aquarium had announced in February 2017 that it would phase out its cetacean program by 2029. But it intended on bringing in five more belugas in the interim once it opened its Canada’s Arctic exhibit.

“The ability to control the day-to-day administration of the Marine Science Centre — including the choice of what aquatic animals to bring into or display at the Marine Science Centre — is crucially linked to the Vancouver Aquarium’s fiscal sustainability,” the lawsuit says.  

The lawsuit says since 1995 the aquarium has owned and operated the Marine Science Centre in Stanley Park under a series of licence agreements with the city, represented by the park board.

The aquarium pays two licence fees, it says. This includes a fixed fee of $150,000 which is to be increased by $25,000 after every five years, and a monthly amount based on a percentage of gross revenues from retail food and beverage sales, it says.

“Despite the changes to its permitted uses under the license agreement, the Vancouver Aquarium has continued to pay combined annual licence fees to the park board and the city in excess of $290,000,” the lawsuit says.

None of the allegations in the lawsuit have been proven in court.

A statement from the Vancouver Board of Parks and Recreation says it has received a claim for damages in response to the 2017 amendment of the bylaw to restrict the importation and keeping of cetaceans at the Vancouver Aquarium.

“The Park Board is reviewing the claim with legal counsel and considering its options going forward. The Park Board will have no further comment while this matter is before the courts,” the statement says.

The Canadian Press