Orca Guide Trial Sparks Fear Among Whale Tour Operators

Tuesday, June 24, 2003
DUNCAN -- Representatives of several whale watching groups listened intently Monday to a court case that some say could have a chilling effect on the popular West Coast industry.

A 63-year-old professional whale-watching guide is accused of twice disturbing orcas last summer, one of the first cases of its type in a decade to go to trial.

Such charges are rare, and it's rarer still that they are battled out in court.

But Jim Maya has pleaded not guilty to two charges of disturbing a marine mammal, and several whale guides say the case may determine how the generally-worded Fisheries Act charge is to be interpreted by the industry.

In testimony Monday, provincial court heard the ins and outs of whale watching, a business that attracts thousands of tourists on West Coast waters each year hoping for a glimpse of orcas.

Two Department of Fisheries and Oceans officers testified that they saw Maya, an American who runs a whale-watching company out of San Juan Island, contravene a law that prohibits disturbing a marine mammal by being within 100 metres of it.

The first incident, fisheries officer Willi Jansen testified, was about 10:40 a.m. on Aug. 14, 2002, at the south end of North Pender Island. Maya was within 30 metres of a pod of orcas for about three to five minutes before veering off, she said.

The second was later the same day at the eastern end of Active Pass. Maya was again about 30 metres behind some orcas, court heard, and a few members of the endangered southern resident orcas were within seven metres of his running boat.

However, Maya said the fisheries officers were mistaken with their distance estimates in both. And he said he had to turn his boat motor on in the second incident or possibly face harm to his craft and passengers in choppy waters.

In cross-examination by defence lawyer Mel Hunt, Jansen acknowledged that estimating distances on water can be difficult, but as a fisheries officer with 11 years experience, says she does it "all the time."

In the first incident, Maya said he "paralleled" the pod for about five minutes at a distance of 100 to 150 yards.

There are two general methods of whale-watching style, said Maya who, in his tweed jacket, tie and chinos, still looks like the drama and history teacher he was for 35 years before retiring to start his business.

Paralleling is just as it sounds. Maya said it's his preferred method because though you're farther from the whales, customers see more of their behaviour.

The other method sees guides go ahead of the pod, and position themselves where they anticipate the whales will go. Often, the pod swims right by, even underneath the boat. The boat must be stilled, and the motor not started until the orcas are 100 metres past.

In the second incident just before 3 p.m., Maya was near the eastern end of Active Pass to see the pod as it made its way out of the busy waterway.

But several orcas in the pod, some of which swam underneath a B.C. ferry as it went through Active Pass, took a slightly different route and unexpectedly swam right by his stilled boat, Maya said.

The water was choppy, Maya said. A wind and the wake from the ferry rocked his seven-metre boat, pushing it toward shore. The sounder was off because the whales were nearby.

"My level of concern was rising. I wasn't familiar with the depths in the area, and I was concerned for the boat and passengers."

Though the orcas were only about 30 metres away, Maya said he felt he had no choice but to turn on one of the Honda 90-horsepower engines to get out of the chop and away from shore. He said he slowly moved in a 45-degree angle away from the orcas.

Prosecutor Norm Fraser questioned Maya's explanation, asking why he had told none of this to the fisheries officers, who saw him too close to the orcas and immediately came up to his boat. Maya said Jansen was too angry and didn't seem prepared to listen.

One of the orcas slapped its tail in the second incident, a sign that can mean it feels a threat.

The trial will continue.