The Ontario government received thousands of letters, including testimony from many world renowned experts, and a 115,000 person petition calling for substantive action to protect marine mammals in captivity in Ontario. The Government knew about the large, high profile, protests taking place outside of Marineland in Niagara Falls and the hundreds of media stories, including a lengthy front page series in The Toronto Star (which generated a number of SLAPP suits against former Marineland employees as well as the TO Star) that were featured in print, radio, television and online media everywhere. The Government had numerous meetings with various stakeholders, Canadian and international experts, and organizations (including Zoocheck), on captive marine mammal issues and expended a great deal of staff time and taxpayer dollars developing new captive marine mammal regulations. During that time Ontario Minister of Community Safety and Correctional Services Yasir Naqvi repeatedly promised decisive action to protect marine mammals in captivity. So after all this, what was the result?
In late December, just days before the holidays, the Ontario government quietly released Ontario SPCA Act Reg. 60/09 – Part III Additional Standards of Care and Administrative Requirements for Marine Mammals, which came into effect on January 1, 2016. Sadly, the standards pay lip service to many core animal welfare concerns faced by marine mammals in captivity and many of the provisions contained in the standards are unenforceable. After the repeated promises of Minister Naqvi and substantial efforts on the part of Zoocheck and other animal welfare groups to achieve something meaningful, the result is disappointing.
What is particularly concerning is that the standards delegate a great deal of authority to determine what is, or is not, required for marine mammals in captivity to a Committee set up by the marine mammal facilities themselves. And the Committee will operate behind closed doors in secret, so there will be no public transparency or accountability.
Many of the problematic provisions of the new Ontario captive marine mammal standards can be lumped into three categories:
- Provisions that are non-specific and therefore difficult or impossible to enforce.
- Provisions where interpretation and implementation are left to the discretion of the internal Animal Welfare Committee or facility (self regulation).
- Provisions that are vague and/or contain loopholes with wording that allow them to be ignored.
Will the new captive marine mammals standards actually change anything at all? We doubt it. From our perspective, it looks like things will remain pretty much the way they were before. See what you think by reviewing some sample provisions excerpted from the standards, followed by a brief commentary regarding our concerns.
Provision 7(1) A person who possesses at least one marine mammal in Ontario shall establish and maintain an animal welfare committee to develop an animal welfare plan for each marine mammal the person possesses. O. Reg. 438/15, s. 7.
This regulation allows the owner of a marine mammal, such as Marineland, to establish its own Animal Welfare Committee (AWC). Its members are appointed at the discretion of the facility owner or management, so the constitution of the AWC can be manipulated to suit the purpose, preferences or existing circumstances of a facility.
The AWC will operate behind closed doors and will not be open to public scrutiny. None of the workings of the AWC or the plans or materials they produce are required to be submitted to government or to be made available to the public. There is no transparency or public accountability.
In addition, rather than just mandating that certain needs of marine mammals be met, the regulation leaves that to the discretion of the AWC. If the Committee doesn’t think that certain aspects of the biological, behavioural and social requirements of marine mammals need to be addressed and included in its animal welfare plan, they don’t need to be. For example, according to provision 15. (2), “Every marine mammal must be provided with daily training, social enrichment and play sessions, unless otherwise specified in its animal welfare plan.” Whether or not these are provided is left to the discretion of the AWC. There is no impartial oversight panel, organization or advisory body to instruct them otherwise.
Provision 7(3) The animal welfare committee must be comprised of at least the following members:
Required members include, 1) a marine mammal veterinarian, 2) a person who is not an employee or independent contractor and who is a resident of the municipality in which the marine mammal is located, 3) a person who is not an employee or independent contractor and who had studied marine mammal biology at a post-secondary institution, 4) a person responsible for the daily care of the animal, and 5) a person responsible for the maintenance of the location where the marine mammal is kept. There is no requirement for anyone with specific animal welfare expertise to be part of the AWC.
Provision 7. (3) 1. A marine mammal veterinarian.
Unlike laws/regulations in some other jurisdictions, this regulation contains no minimum criteria as to what experience, training and/or expertise is required for a veterinarian to qualify as a bona fide marine mammal veterinarian. At present, veterinarians with even token exposure to marine mammals can call themselves marine mammal veterinarians. In the absence of actual criteria, this regulation does not ensure that the AWC will be overseen by a qualified marine mammal veterinarian.
There also does not seem to be any requirement for a marine mammal veterinarian to actually attend meetings in person, so this provision could be satisfied by having a consultant veterinarian remotely participating by phone or internet.
Provision 7. (3) 3. A person who, i. is not an employee or independent contractor of the person who possesses the marine mammal, and ii. has studied marine mammal biology at a post-secondary institution.
This provision provides no indication as to what minimum level of study is required, so a first year university student who has taken a single marine biology course could qualify.
Provision 8. (1) An animal welfare plan must include at least the following:
Provision 8. (1) 1. Procedures for routine interactions with, and routine care of, the marine mammal.
This provision does not provide any specificity and is entirely open to interpretation. Therfore enforcement will be difficult or impossible.
Provision 8. (1) 4. Minimum staff and resource requirements to ensure the physical, psychological and social well-being of the marine mammal.
This provision is a non-specific general statement with no quantitative benchmarks attached and no definitions of physical, psychological and social well-being. It is entirely subjective and unenforceable.
Provision 8. (1) 5. A stimulation program that is sufficient to maintain the marine mammal’s health and mental wellness.
This provision is also a non-specific general statement with no benchmarks for assessment and no definition as to what constitutes mental wellness. It is entirely subjective and unenforceable.
Provision 8. (1) 6. Appropriate social groupings for the marine mammal, including consideration for a companion animal if the marine mammal is the only animal housed in its enclosure.
Providing companionship and/or an appropriate social context is not required. The inclusion of the word “consideration” allows highly social marine mammals to be kept temporarily or permanently in social isolation at the discretion of the facility.
Provision 8. (1) 7. A plan for providing the marine mammal with feedings at night, if appropriate.
Provision 8. (1) 8. A plan for providing the marine mammal with social interaction at night, if appropriate.
Provision 8. (1) 9. A plan for providing the marine mammal with training, social enrichment and play sessions, if appropriate.
The inclusion of the words “if appropriate” allow provisions 7, 8 and 9 to be ignored, even when they would substantially enhance the welfare of captive marine mammals.
Provision 0.2 If the marine mammal requires a portion of its enclosure be shaded, the minimum portion of the enclosure that must be shaded to meet its needs.
This provision is non-specific and therefore unenforceable. Whether or not shade is provided is left to the discretion of the facility.
Provision 0.2.(2) In developing the portion of the animal welfare plan referred to in paragraphs 5 to 10 of subsection (1), the animal welfare committee must consult with a person or persons with expertise in the social and enrichment needs of the marine mammal’s species. O. Reg. 438/15, s. 8 (1).
This provision does not specify what level of expertise, experience and/or training is required by someone being consulted by the AWC to qualify them as having bona fide expertise in the social and enrichment needs of marine mammals. The absence of criteria allows almost anyone with even token experience to be consulted.
Provision 10. (1) Every marine mammal must be provided with a diet that, (b) accommodates individual preferences, subject to the availability of particular types of fish or other food items; and
This provision does not define the words “individual preferences” and does not require that feeding occur according to species-specific needs. It is left to the facility to determine what this provision means.
Provision 11. (1) The reproduction of every marine mammal must be managed in a way that promotes the immediate and long-term health of the marine mammal and any offspring. O. Reg. 438/15, s. 11 (1).
This is a non-specific, general statement that, for all intents and purposes, is impossible to define, so it is unenforceable.
Provision 15. (2) Every marine mammal must be provided with daily training, social enrichment and play sessions unless otherwise specified in its animal welfare plan. O. Reg. 438/15, s. 13 (2).
Including the phrase, “unless otherwise specified in its animal welfare plan” allows a facility to ignore this provision.
Provision 15. (3) The enclosure of every marine mammal must have the environmental enrichment objects, if any, specified in its animal welfare plan. O. Reg. 438/15, s. 13 (2).
Including the phrase, “unless otherwise specified in its animal welfare plan” allows a facility to ignore this provision.
Provision 16. (4) The enclosure must meet the following requirements:
The enclosure must provide the marine mammal with sufficient space and features for species-appropriate activities both in and, if appropriate, out of the water.
The term “species-appropriate activities” is not defined and is left to the discretion of the facility to determine. Whether it means natural movements, behaviours, simple postural adjustments or something else is unknown. This provision is therefore unenforceable.
Provision 16. (4) The enclosure must include fixed features that provide visual and tactile enrichment, which may include, but are not limited to, any of the following: i. Bubble walls.ii. Privacy baffles.iii. Different substrates.iv. Water jets.v. Sprinklers.vi. Mirrors or other reflective surfaces.vii. Areas on the bottom of the pool that simulate pebbles on the seafloor.
This provision does not specifically mandate that any given feature named has to be included, but only that there must be “fixed features that provide visual and tactile enrichment”, terms defined, apparently, by the facility. Since what “must” be included is not defined, this regulation will be difficult to enforce.
Provision 18. (7) Every marine mammal must be housed in an enclosure that is outdoors or that provides access to an outdoor area unless its animal welfare plan provides otherwise. O. Reg. 438/15, s. 16 (2).
The inclusion of the words “unless its animal welfare plan provides otherwise” allows the permanent keeping of marine mammals indoors, even when outdoor accommodation would substantially enhance health and quality of life.
Provision 18. (8) Every marine mammal must be provided with an area of shade in its enclosure in accordance with its animal welfare plan. O. Reg. 438/15, s. 16 (2).
This provision does not actually mandate that shade be required, but leaves it to the discretion of the AWC.
Provision 19. (3) A method to separate any marine mammal for behavioural or management purposes must be provided. O. Reg. 438/15, s. 17.
The words “behavioural or management purposes” are not defined and are left to the discretion of the AWC or facility to determine. This provision could be used to rationalize marine mammals being kept in permanent social isolation for “behavioural or management” purposes.
Provision 20. (4) The following records must be kept for every marine mammal:
- The date that possession of the marine mammal was obtained by the person who possesses the marine mammal.
- Whether the marine mammal was captive-born or wild-caught.
- The name of the person from whom the marine mammal was acquired, if applicable.
- The species, sex, colour, markings and physical abnormalities, if any, of the marine mammal.
- The marine mammal’s date of birth or, if wild-caught, the marine mammal’s estimated date of birth.
- The marine mammal’s parents, if known.
- Records related to any attempt to breed the marine mammal, including the identity of the marine mammal with which breeding was attempted, the outcome of the breeding and the identity of any offspring.
- Veterinary clinical records.
- A list of any medication given to the marine mammal and the reason for which it was given.
- Training records.
- A record of any abnormal behaviours exhibited by the marine mammal, including the expression of any stereotypies, such as inappetence or food refusal, vomiting, actions that result in self-inflicted injuries or aggression towards trainers or other animals. O. Reg. 438/15, s. 18 (1).
Provision 20. (5) The records required by this section must be retained for five years following the death of the marine mammal. O. Reg. 438/15, s. 18 (1).
These provisions require that certain information be kept by the facility, but none of it is required to be submitted to the Ontario government or to be made available to the public. There is no public oversight or accountability.