Behind scenes Vancouver Aquarium frustrations revealed in court battle

​The scene: a meeting in Vancouver Park Board offices near English Bay in April 2017.

A member of the Vancouver Aquarium's board of directors, Derral Moriyama, had occasion to remind park board chair Michael Wiebe of words spoken by one of his fellow commissioners at a special hearing held a month earlier to debate the issue of keeping cetaceans in captivity.

Tempers had been hot; Green commissioner Stuart Mackinnon gave an impassioned statement lambasting aquarium staff and drawing historical parallels to a time when "both the Nazis and the Imperial Japanese Army committed atrocities in the name of science."

The meeting between Moriyama and Wiebe is detailed in notes filed as part of an affidavit sworn in an ongoing B.C. Supreme Court battle between the aquarium and the board.

He wrote that — during that April meeting — an "aggressive" Wiebe accused the aquarium of failing to be collaborative. Moriyama responded.

"What about us being compared to war criminals, Nazi Germany, and especially The Japanese Imperial Army when you have a proud Japanese-Canadian sitting across the table from you? How collaborative is that, Mr. Wiebe?"

'We left it at that'

According to Moriyama's notes, Wiebe went on to apologize, saying "rhetoric is overstated" at such proceedings.

"I said it was much more than rhetoric. I told him that in my opinion, and I know this is shared by many on the board, we are a world class organization who are not valued by either the Park Board or the City. He acknowledged we are indeed a world class institution with many world class staff and researchers. We left it at that."

Moriyama's 13-page affidavit is just a tiny part of a court file that fills a cardboard legal box and a bulging folder.

Taken together, the documents paint a picture of the fractured relationship which led to the park board's ban on the display of cetaceans last May. And ultimately to the aquarium's dramatic decision this week to stop housing whales and dolphins altogether.

They provide a window into just how polarized the public and private battle became between the body overseeing one of the world's best-loved parks and an internationally renowned facility which has attracted more than 44 million visitors in the past 60 years.

The legal fight is still a going concern, expanded by an intervention from two animal rights organizations that could take the case into what Justice Christopher Grauer described as "novel" territory.

The aquarium challenged the ban on four grounds: that the Park Board had overstepped its authority; that the process was procedurally unfair; that the bylaw was unacceptably vague and that the restriction would deny the aquarium a Charter-guaranteed freedom to express its viewpoint on the ethics of keeping cetaceans in captivity.

But in their application to intervene, Animal Justice Canada and Zoocheck say the courts have been clear that freedom of expression is not protected which it comes to the expression of violence or an activity "intimately connected" with violence.

"The capture and captivity of cetaceans constitutes a form of violence, in the same way that the capture and confinement of human beings constituted violence," their application reads.

"Both activities involve the coercion and involuntary captivity of living beings with the capacity for self-determination, complex thought and the ability to suffer."

In their application, the animal activists say they're concerned that tying freedom of expression to the captivity of animals could have implications for zoos, circuses and even dog fighting.

"Proponents of dog fighting could argue that the activity of dog fighting, however cruel and harmful, is an expressive 'performance', or otherwise necessary to express the idea that dog fighting is an entertaining activity, or to educate the public that dogs are not always killed in these encounters," the application says.

'Debilitating' to organization's mission

The aquarium sought to deny Animal Justice Canada and Zoocheck from taking part in the legal fight. But Grauer decided they brought a unique point of view to the table.

It's a theme which runs from 1996, when public sentiment prompted the aquarium to commit to not capturing cetaceans from the wild for display, to last week when CEO John Nightingale said the debate had become "debilitating" to the organization's mission — science and public passion don't always make for comfortable partners.

The Park Board cites the influence of documentaries like The Cove and Blackfish in its response to the aquarium's original petition.

But the death of two of the facilities' belugas in 2016 was also clearly a turning point.

An investigation would find that Aurora and Qila died of unknown toxins.

Aquarium staff were brokenhearted.

An affidavit from chief financial officer Catherine Imrie suggests their grief was compounded by a subsequent loss of revenue from the organization's attendance, membership renewals and retail sales.

According to Imrie, general admission from Dec. 1, 2016 to May 31, 2017 was down nine per cent from the same period the previous year. Member attendance dropped 17 per cent. Membership renewals fell by 22 per cent.

Even the sales of beluga-themed merchandise from the gift shop — including plush toys and souvenirs — dropped by 33.6 per cent.

'A philosophical question'

This week, the Park Board welcomed the aquarium's decision but withheld comment on the legal case while it's before the courts.

In its response to the original petition, the board makes clear it believes it has the authority to ban the display and import of cetaceans and that the process which led to its decision was fair.

"In their consideration of cetaceans in captivity in Stanley Park, all of the commissioners acted conscientiously, diligently and with open minds," the response says.

"Through their own process and the processes of former boards they were well informed about the issues."

According to the notes he filed with his affidavit, Moriyama left the April meeting with a belief the writing was on the wall.

"My gut issue is that the main issue — no cetaceans in the park — is not going to change," he wrote.

"It was also evident they do not like the negative media attention and expect us not to drag them into anything, but to work with them on solutions that serve their purposes (not necessarily ours)."

At that point, the board was a month away from voting for a ban but had already committed to amending the bylaws.

"At the end of our discussion I asked a philosophical question," Moriyama's note reads.

"I said before the vote we owned five belugas in captivity that could not be released in the wild. After the vote, nothing changed. So are they just saying not in (my) yard?"