Letter 20050603 from Dr. K.N.I. Bell to Prime Minister Martin

which included Appendices: -- copy of previous letter (20050208 Bell to PM), -- copy of non-reply from DFO, -- reply to DFO's defense, -- Recommendations, -- Mischief with timelines.

table of contents (pagination refers to original format, not web format)

Letter of June 03, 2005 (Bell to PM)......................................................................... 1
Appendix 1: Bell letter (to PM) of Feb. 08, 2005........................................................ 2
Appendix 2: DFO's 'response' of Apr. 28 2005............................................................ 4
Appendix 3: Bell reply to DFO response (Appendix 2).............................................. 5
Appendix 4 Recommendations.................................................................................. 7

Appendix 5 -- big mischief with SARA timelines...................................................... 13

Dr. K.N.I. Bell, B.Sc., M.Sc. (Dalhousie), Ph.D. (Memorial)

June 03, 2005

The Right Honourable Paul Martin, Prime Minister of Canada

Re: My letter of Feb. 08 2005 to you on irregularities in Cod Listing process

Dear Mr. Prime Minister,

Imagine if we destroyed wheat. Imagine, no wheat to plant. Or, to think in terms of populations, imagine we destroyed the only wheat that could grow in Saskatchewan. That's about where we are with Cod. The only difference is that Cod is not in Saskatchewan, and Cod used to plant itself. Whether wheat or Cod, the loss is immense. Both were economic engines. We couldn't doubt that Government would quickly respond to any threat to wheat. Why does it not act with similar urgency in the case of Cod?

I wrote to you on Feb. 08 (Appendix 1) citing mischief in the Cod Listing process. Listing should never have been opposed at all (it simply reflects a fact), and certainly not by breaking rules. The mischief just snowballed. SARA's structure (Appendix 4) invited more of it. The extent of the mischief is astounding. Somebody even got the Minister of Environment to contravene SARA, or at best to exploit an undeclared loophole (Appendix 5). The tail wags the dog.

Your office asked DFO for a response (dated Apr. 28, Appendix 2). It only proves my point: what it leaves out is more telling than what it says. In no way is it a real or sincere reply. DFO acknowledges one token point only, but does its best to miss that (see Appendix 3); it ducks all the issues. Some of the same issues also appeared in a newspaper article (Telegram Nov 06 2004), with no comment from DFO on that occasion either. Similar issues are in other documentation, e.g. from the HoC Standing Committee (FOPO).

DFO's muteness undoubtedly reflects its awareness of the documentation. Therefore, those issues stand, uncontested.

Therefore, the political risk in Refusing to List is, if anything, increased by DFO's response.

Given the mischief by DFO & COSEWIC, Cabinet cannot refuse a Cod Listing.

Refusal would seem like assisting, wittingly or unwittingly, the efforts of a small group of bureaucrats to avert a Listing to keep light off their own failures. The acme in failure is refusal to correct a known mistake. Such is the corner DFO painted itself into (see under Appendix 4). Refusal would prop up a history of mismanagement and manipulation. Refusal would call into question the Government's commitment to conservation, as well as its commitment to open and good governance.

Cabinet needs to take this file away from DFO & COSEWIC. The Cod Listing needs to be done without delay, but not without undoing the damage done by DFO's tactics to the Listing itself (its basis). The sources of mischief need to be removed and identified. Undoing the damage and meeting the 'objections' to Listing, and more, are described in my Feb. 08 letter (Appendix 1) and in Appendix 4. Note also that (Appendix 4) a Listing could be a political asset to help Canada resolve some longstanding problems.

I consider you informed, I welcome your questions, and I respectfully request your reply.

Sincerely,

[signature]

cc. Premier Williams, Minister Taylor (NL); Ministers Dion (DoE) and Regan (DFO), FOPO, PACP, OAG, Dr Davis, NL MPs, and others

Appendix 1: Bell letter (to PM) of Feb. 08, 2005

From kbell@mun.ca Tue Feb 8 13:27:16 2005
Cc: premier@gov.nl.ca
Subject: Cod Listing: an opportunity
Date: Tue, 8 Feb 2005 13:27:15 -0330
To: Martin.P@parl.gc.ca, <pm@pm.gc.ca>

To: The Right Honourable Paul Martin, Prime Minister

Dear Mr. Prime Minister,

With greatest respect, I am sure you will want me to speak frankly. I recognise that this message may not reach you, so I plan to pursue other routes to get it to you.

I hear that your government is about to announce that it will refuse to List (SARA List) Atlantic Cod.

That refusal, for a high-profile species that is so clearly in serious trouble due to well-known mismanagement, could be a politically risky step. As well it should be.

The Cod fishery collapsed because it was mismanaged; this is well documented. It is well documented that DFO bureaucrats have resisted, often by dubious tactics, any Listing. It is well documented that COSEWIC, in which DFO is a key player, has broken its own rules. (I reported this to Mr. Chretien and Mr. Anderson, and the latter blithely brushed off the issue of the integrity of a government committee, and even, scandalously and carelessly, let his letter be drafted by the agency in question.)

Therefore, Refusal would highlight the failure of Government to deal with an unfolding resource tragedy.

If Government refuses to List cod, it could certainly be perceived as having been manipulated by the same bureaucratic clique that was responsible for mismanagement and collapse. The same that has fought a Listing to hide itself from overdue scrutiny.

It could look like the tail wagging the dog.

How the system should work -- but doesn't -- has been discussed and the common themes that emerge are:

            1. Assessment is Government's stated best estimate of a fact, so logically it should equate directly to Listing; Assessment & Listing need to be separated from the conservation and management decisions, etc., that respond to that fact -- we can't keep dry by denying it's raining.

            2. Assessment must be a truly open and accountable process -- not one that actually, confessedly, alters Reports after the fact to fit un-scientific decisions made in un-minuted meetings behind closed doors.

            3. Assessment must be based on facts properly analysed against internationally accepted criteria -- instead of based on DFO's specious tactical denial (against its own data) of multiple populations and lumping them together into arbitrary large area units to [i] confound COSEWIC and [ii] elicit complaints from fishers who perceive great heterogeneity (of Status) within each areal unit, but are guided to object to a Listing rather than to the parameters under which it was done or to the inappropriate rigidity in SARA.

            4. Listing should indeed trigger responses, but they should be rigid as to intent and direction, not rigid in detail; it should provide authority that lets measures and prohibitions be appropriate to the case -- but SARA fails there, and could be perceived to have been written with the intention of being too rigid in detail and thus made unworkable in a fishery situation, because it will depend on Sec. 73 to salvage workability (as indicated on Gov't web page).

In contrast, consider the U.S. Endangered Species Act, in which Listing is driven (Sec. 3(A)) "solely on the basis of the best scientific and commercial data". This is one thing they got right.

By contrast, the SARA system does not separate science (i.e. fact) and politics (i.e. what to do given the facts); it entangles them and therefore invites meddling. It is a recipe not only for disaster, but also for disrepute.

Indeed, the recent DFO "consultations" [a] were not provided for by SARA; [b] invited un-informed comment because they did not give draft plans of management under a Listing (whereas SARA provides for 3 rounds of plan-informed consultations); [c] may well mask the fact that the objections heard actually stem not from the measures that would sensibly follow a Listing but from the way the Assessment process was manipulated and the way SARA was written; [d] are in summary duplicative and wasteful at best, and at worst are a squanderous and manipulative scheme for eliciting excuses to Refuse a Listing.

I don't believe Government could want to be seen as seeming to endorse, or seeming to fail to notice, either waste or manipulation by a few bureaucrats whose defensive actions are inconsistent with the concept of public service. Following the collapse of a mismanaged fishery, 40,000 people directly lost their jobs, and it directly cost the taxpayer $2billion. Yet the public perception is that not one head rolled -- now is high time to correct, revise, reconstitute the system and culture that made such waste possible, not to say inevitable. Cabinet and Government will surely not want to seem to protect and defend a system that still propagates the same errors.

There are other issues that need remedy, for example as I wrote to Minister Thibault when congratulating him on a decision he took.

The Listing needs to be [1] made, and [2] revised to address populations at the finest scale permitted by data (i.e. to undo DFO's population-lumping strategy); this would effectively address the bulk of the objections elicited by the 'consultations'. Then, [3] dysfunctionalities in the system need to be firmly corrected. [4] Most importantly, we need to do research and trials on avenues for restoration of stocks that have been lost (instead of which these are not even being talked about, no doubt because they clash with DFO's strategy against a Listing). Restoration will be a big task in several stages, but we must shoulder it.

There are other reasons why a Listing is in the National interest.

In fact a Listing could provide Canada, and Newfoundland and Labrador, with opportunities to address issues that for so long have been awaiting strong leadership. I could detail these as I see them, if so requested.

Sincerely,

Kim

(Dr. K.N.I. Bell, M.Sc. (Dalhousie), Ph.D. (Memorial))

Appendix 2: DFO's 'response' of Apr. 28 2005

(Note: A glance at Bell's letter will show that the most serious issues were completely avoided, not even mentioned, in the DFO reply. The 'response' came with no copy of Bell's letter of Feb 08 2005, nor even the date reference to that letter, which deficiency would mean a reader seeing this 'response' alone might think the original letter contained only one point based on a misunderstanding of SARA -- so perhaps that was DFO's intent. The 2 main paragraphs pose as prefatory but are actually irrelevant because they provide no new information, and furthermore gloss over the fact that the consultations were not provided for by SARA, which is the crux of the problem. Only one token point is singled out for mention, and that is not countered by pointing out any error, but only by an empty statement of position. The resort to democracy is ironically disingenuous because there is no sense of accountability in the 'response', and the DFO effort in the 'consultations' has been to circumvent SARA, and ridiculous because democracy involves informed consent, not manipulated outcomes.)

From DavisJo@pac.dfo-mpo.gc.ca Thu Apr 28 09:41:24 2005
To: kbell@mun.ca
Cc: SheppardSh@DFO-MPO.GC.CA
Subject: Your e-mail to the Hon. Paul Martin
Date: Thu, 28 Apr 2005 10:48:18 -0700

Dear Dr. Bell- I have been asked to respond to an e-mail that you sent to the Honourable Paul Martin, Prime Minister, with respect to listing Atlantic cod populations under the Species at Risk Act.

During passage of the legislation, the process for adding species to Schedule 1 of the Species at Risk Act was the subject of lengthy debate in Parliament, in particular with respect to the relative roles of scientific assessments and socio-economic considerations. The process finally adopted in the Species at Risk Act, which is now law in Canada, begins with scientific assessment by the Committee on Status of Endangered Wildlife in Canada (COSEWIC). The final decision on whether or not to add a species to the protection list (Schedule 1) is made by Governor-in-Council, advised by a committee of Cabinet.

As elected officials, Ministers of Cabinet are the appropriate final decision-makers on questions of great importance to Canada. Ministers must balance many factors in making their decisions, including the opinions of Canadians about these decisions and the potential impacts of decisions on individuals and communities. It is to develop information on such matters as they relate to decisions about whether to add Atlantic cod populations to Schedule 1 of the Species at Risk Act that consultations on listing Atlantic cod and other species have been held over the past several months. As evidence of the great interest and public reaction to this issue, close to 2000 individuals turned out to community meetings and briefings in Newfoundland and Labrador and many written submissions were received by the Department of Fisheries and Oceans.

I strongly disagree with your statement that these consultations are redundant and pointless; they are essential as part of the democratic process.

Thank you for making your concerns known on this matter.

Yours sincerely,

Dr. John C. Davis

Special Advisor to the Deputy Minister on Species at Risk, Fisheries and Oceans

Appendix 3: Bell reply to DFO response (Appendix 2)

(I have to remark: I have many friends in DFO. Some are scientists, some are bureaucrats/administrators. Some are very troubled by all that has happened. The 'DFO' of the failings I address here is a group of senior bureaucrats. The liberal use of ad-man, opinion-manipulating, poker-style tactics in a science organisation reflects misdirection from the top, or very near the top, where the mandate is either not cared about, not understood, forgotten, or where priorities were overwhelmed by shorter-term considerations that snowballed out of control.

            I repeat from the previous appendix the following Note:      
            A glance at Bell's letter will show that the most serious issues were completely avoided, not even mentioned, in the DFO reply. The 'response' came with no copy of Bell's letter of Feb 08 2005, nor even the date reference to that letter, which deficiency would mean a reader seeing this 'response' alone might think the original letter contained only one point based on a misunderstanding of SARA -- so perhaps that was DFO's intent. The 2 main paragraphs pose as prefatory but are actually irrelevant because they provide no new information, and furthermore gloss over the fact that the consultations were not provided for by SARA, which is the crux of the problem. Only one token point is singled out for mention, and that is not countered by pointing out any error, but only by an empty statement of position. The resort to democracy is ironically disingenuous because there is no sense of accountability in the 'response', and the DFO effort in the 'consultations' has been to circumvent SARA, and ridiculous because democracy involves informed consent, not manipulated outcomes.)

On the one and only point you acknowledged, you give only an assertion:

"I strongly disagree with your statement that these consultations are redundant* and pointless**; they are essential as part of the democratic process***" (DFO/Davis Apr 28 2005).

You paraphrased with milder words. My statement (Feb 08) said the DFO 'consultations' were 'duplicative and wasteful at best, and at worst are a squanderous and manipulative scheme for eliciting excuses to Refuse a Listing'.

You ignored more important issues, indicating your unwillingness to even acknowledge them let alone contest them. In this (token) one that you singled out, here are the reasons why you are wrong:

* REDUNDANT:      The DFO consultations are not provided for by SARA; they are indeed redundant (duplicative) because SARA (s. 39,48,66) does already provide for other and better consultations that would occur against a background of draft plans (see the Act). You did not acknowledge this point.

** POINTLESS:        The DFO consultations are pointless, inter alia because they pretend to be asking for opinion, but they do not properly inform that opinion; whereas in comparison the consultations provided for by SARA (s. 39,48,66) would provide draft plans to inform discussion (you did not address that point).

What you (DFO) engaged in with the DFO consultations was classical argument to the consequences. Whether it's raining or not is a fact, and voting against rain won't keep you dry. Argument to the consequences is always pointless.

In fact they are worse than pointless, because they attempt an end-run around SARA. That is cynical manipulation of the process. It's also wasteful.

*** PART OF THE PROCESS?          Not so: they were arbitrarily imposed on top of the process after SARA was enacted. They are a cynical attempt to sabotage the process you falsely claim they are part of.

You should acknowledge that good management is also part of the democratic process, as is a clean acknowledgement of problems so as to encourage solutions. Yet DFO/COSEWIC used dubious tactics to avert the Listing, to protect interests that are departmental but not Canadian.

Moreover, the DFO consultations are also deceptive for other reasons: -- they pretend (see the DFO poster) to be SARA consultations, when they are not; -- they drastically understate the connection between DFO and COSEWIC, failing to mention the important truth that DFO is the most powerful player in COSEWIC, certainly with respect to marine fish (see the DFO poster), and that DFO has already had its kicks at the can behind closed doors within the SARA process and is now stepping outside the process for an unfair rematch; -- they fail to mention that other SARA consultations would follow after a Listing.

In fact the DFO consultations can only be seen as a cynical end-run around SARA in order to protect a bureaucracy that failed. They compounded a serious abuse of a public trust and very likely also a misuse of the public funds involved.

DEMOCRACY was invoked in the 'response', and a comment on that is merited. Democracy requires accountability and forthright responsiveness of Government to concerns — because without forthright responses and a clear means of the public knowing what's going on, the value of democracy is eliminated. The 'response' completely ignored the most serious issues and charges, and even fails to properly deal with the one it acknowledged; therefore it can't be called forthright and can't be considered consistent with the philosophy of democracy. The allusion to democracy was clearly insincere. Just because Democracy is Good doesn't mean the word should be sprinkled like holy water into any lame argument.

Appendix 4 Recommendations

Conservation depends not merely on a quantity of scientific information, but, even more critically, on the process that's supposed to use it.

The Listing of Cod is merited according to all the recognised criteria, therefore it needs to be proclaimed so we can get on with correcting the situation that a Listing acknowledges.

The overall problem is that this fishery was mismanaged, and that the Listing process was also mismanaged and manipulated. This was a problem that snowballed far beyond its original dimensions. The key action for Cabinet now is that: the process therefore needs to be taken out of the hands of those (DFO & COSEWIC) who mismanaged it.

The key problems in brief and sensible responses to them are tabulated:

The key shortcomings in the COSEWIC Assessment were those that were tactically engineered by DFO (see Populations, and below) to avert a Listing. COSEWIC went along with it, and deservedly suffered in the press though perhaps not exactly for the sins for which it was culpable. In tactical ability, DFO left COSEWIC in the dust; but this was bad for the file, for conservation, and for the nation. To be good at doing a bad thing is only a waste. The actions of both agencies were negative in terms of public education, accountability, science and conservation.

This file needs to be taken out of the hands of DFO and COSEWIC because of the mischief so far, which is further documented for example in my open letter to the Hon. J. Chretien, PM on April 28, 2000, in my other letters, and in the press, e.g. Pauline Comeau's Ottawa Citizen article of April 18, 1998.

The Listing of Cod needs to be finalised without delay. At the same time as doing that, the damage done by DFO's tactics to the Listing itself (its basis) needs to be undone. This is both for science/conservation, and also to remediate the public education damage done by DFO.

That means the Listing needs to be revised to the finest geographic scale permitted by the data, and this needs to be ongoing to continue as new data become available. The existence of multiple populations explains and accommodates the diversity of views of fishermen and others, who report great variation from place to place even within each area used as a basis for the current (2003) COSEWIC assessment. A Listing Revision Process would accommodate that.

The Listing Revision Process also needs to be firmly separated from COSEWIC and DFO, because both are culpable for breaking their own rules in the politicised handling of Cod and for their cynical handling of the file.

The Listing Revision Process therefore needs to be done openly, transparently, and on a purely scientific basis. I suggest this be done by an independent scientific panel of which at least half is chosen by NL. Following the Listing revision will be the three (3) rounds of public consultations provided for by SARA (s. 39, 48, 66), each of which is informed by draft plans appropriate to the stage, and the purpose of which is to find the best implementation that will bring about recovery. (That SARA already provides for s.39, 48, 66 consultations, and does not provide for the uninformed and premature DFO 'consultations', is the key reason the DFO 'consultations' were wasteful and duplicative; these are points DFO/Dr Davis well knew but did not acknowledge or address in their 'response'.)

The Listing Revision Process needs a logical structure. As in: get the facts, then decide what to do. The facts are the assessment, and provided that was properly done (openly, transparently, scientifically, scrutably) the assessment should be accepted as a Listing. SARA embeds an ill-conceived notion that the acceptance of the 'fact' can depend on consequences, but that is entirely illogical as already explained. Instead, SARA should mandate that the question be addressed and, depending on the answer (assessment), solutions to legislated conservation goals be developed and applied. SARA can give scope for use of particular 'tools' or 'prohibitions', but those should not be considered one-size-fits-all, because they can't. The requirement for conservation and recovery can be universal, but the details will have to be flexible. That is enough discussion on the deficiencies of SARA; the point now is to get past them, and until appropriate revisions to SARA are made, the process can be made sensible in an ad hoc way that can be covered by SARA s. 73. I.e., although SARA has problems, they should not prevent us from taking a sensible course of action.

The Listing Revision Process should not provide a playground for more foot-dragging, like the limbo entailed in the ruse 'we haven't yet decided when to start the 9-month timeline' etc., in which the Minister of Environment is himself violating SARA (this is known to officials, to a much greater degree than I need detail here).

The Listings could within days be broken down to management areas, because there is ample data there.

The s. 39, 48, 66 consultations would be held intensively in quick succession aimed at achieving a rapid development of community-acceptable plans within the constraint of meeting conservation/recovery goals. Good facilitators would be needed here, open and honest people that the public can relate to and trust. The approach taken by the Great Barrier Reef Marine Park Authority would be worth examining here, and perhaps the presence of one or two of their people with their experience might be beneficial in smoothing the process (see www.gbrmpa.gov.au/). What distinguishes their effort is the socially-positive outreach, their open and rational approach (for example, they created a logical framework that began with the conservation objectives, treated consultations as addressing the best and most acceptable ways of meeting those objectives, they avoided counting multiples of the same submission, they developed new software to track submissions, etc.).

The Listing Revision Process commission/entity will continue until it declares its work completed to a stage that can be handed over to some other authority. Information input will continue be welcomed, and at each reasonably major revision additional SARA s.39, 48, 66 hearings, or such as are germane in these unique circumstances, can be held, perhaps electronically to save costs and increase accessibility (with information and people available to Fisheries Broadcast). This would be a 'no-cost concession' because it will be good for conservation and for everybody involved: it will improve relations and improve management.

(recommendations) Following Listing

As soon as the 'Offshore' Listing is in place, Cabinet and Canada will have a powerful public-relations tool internationally, and using it will likely be popular nationally.

Internationally, it will give Cabinet added leverage in either reforming or replacing NAFO, or in questioning (if not dismissing) foreign 'rights' as an anachronism that has been eliminated not only by time and urgency, but also by the behaviour of those who claim them: any fleet that refused to regulate itself within the bounds of ecological responsibility was declaring itself more a looter than a stakeholder. Placing the issue in an ecological/moral framework is necessary, because those are the real issues; it is also effective because it is readily assimilated by an ecologically aware public, especially in Europe.

Nationally, reference to the offshore and a clear stance taken with the fleets that have continually overfished and acted unilaterally and deceitfully (double log books, etc.) will be much as has been demanded by the HoC Standing Committee on Fisheries and Oceans in the past. Action will likely be popular.

(recommendations) Regarding Science and Recovery

The purpose of a Listing is, as has always been, to point to an urgency. We are losing, with every moment, opportunities to look more creatively than we have been doing at possible recovery of Cod. The situation grows more urgent with every moment. Many authorities doubt Cod will ever recover; I cannot say they are wrong, but I can say they have constrained their outlook to passive recovery and that we don't know enough about populations to dismiss all options for active or assisted recovery. Nobody, except myself, is talking about active or assisted recovery. That DFO is not talking about it is a disgrace.

The key damage, that still impedes DFO's outlook, involved its population-lumping tactic.

Populations

The POPULATIONS question, a brief history

It's important to note that in legislation (SARA) and in COSEWIC's procedures, the word "species" is actually defined to mean population.

" Species at Risk Act—2002, c. 29

An Act respecting the protection of wildlife species at risk in Canada

[...]

" "wildlife species" means a species, subspecies, variety or geographically or genetically distinct population of animal, plant or other organism ..." http://laws.justice.gc.ca/en/s-15.3/text.html

DFO's Cod Stock Components Workshop (1997) concluded that the weight of evidence supported the existence of multiple populations (against the "homogeneous" model) and said these should be recognised in management. Yet for COSEWIC purposes, DFO played freely with its own science: first it demanded (Doubleday letter of Dec 23 1996) that COSEWIC assess on the basis of multiple populations, then it changed its mind (Rice at 1997 COSEWIC meeting, citing the 97 Workshop) and said they were not real. It later turned out that the document Rice cited actually said the reverse.

COSEWIC's Procedures of the 1990s were very explicit that assessment should be done on the basis of separate populations even if there was not certainty of separateness; this properly reflects the precautionary principle that less damage is done by separately assessing parts of one population than by lumping together multiple populations, because in the latter case a loss of one entire population can be misunderstood as a mere shrinkage. This principle and procedure was violated by DFO/COSEWIC when Cod were arbitrarily lumped into one (1998, against the 1998 Report recommendations) or 3 (2003, the 2003 Report is written this way) marine populations.

So, clearly, the question of "what are Cod populations", how many etc., has been crucial in the battle over a Listing since 1996. Let's review the history.

In the 1960's, Templeman opined that in the future it would be found that every spawning bank had its own unique population that may mix with others at non-spawning times, but at spawning times all populations would segregate to their natal banks.

By analogy, a sample taken of people at the Avalon Mall would include individuals of many families. To sample a family, sampling the Avalon Mall in daytime would therefore be the wrong technique; instead, families would be identified by sampling homes at night.

Tagging studies, therefore, only contribute to the knowledge of populations when the same fish is observed repeatedly when spawning.

Early DNA work failed to identify population structure. This was mistakenly taken as meaning there were not separate populations. The gee-whiz factor made it seem more convincing, but in principle it is difficult to prove a negative. DNA work never looks at the entire genome—never reads the entire book. Moreover, the functions of the genes "probed" are not necessarily known. It is like probing two books for a particular word, but we don't even know what the word means. (Pretend the book is in Swahili.) One probe is the word "na"; another is the word "mbili". We probe two books, and they both have those words. We have not found a difference yet, but should we get excited and say these are therefore the same book? "Na" is swahili for "and"; "mbili" means "two". These are very common words and will probably both occur in nearly all books.

But other techniques (microsatellite DNA) do show differences that suggest separate populations. Preferring the earlier conclusion, that of no difference, is like saying: "I look out of the frosty window and I see two cows. I open the window and suddenly I see they are a horse and a moose. But I prefer to think they are two cows, so I close the window again."

The definitive evidence of whether A and B are separate populations is: if you eliminate A, will it spontaneously reappear by colonisation from B? This is a brutal but effective test of what was a population; unfortunately, the experiment has been done. Ted Ames in the Gulf of Maine analysed catch records and found that a fished-out spawning bank remained without spawning for at least 40 years while banks nearby that had not been fished out continued to show spawning. This tells us several things: [1] that was a population; [2] spontaneous recovery cannot be relied on; [3] fish do home to a spawning bank. The picture that emerges is that Cod population structures don't seem that different from trout or salmon populations, which mix at some times but spawn where they were hatched.

A point virtually never acknowledged is while genetic difference is a nice indicator of a population, it is not essential. It is possible to have populations that are independent but not genetically different. All that is required for a population to be independent is that fish return to their natal bank.

We know we can 'transplant' salmon eggs to a location to which they will return, as adults, to spawn. We didn't have to alter them genetically in order to do that. However, once established as a population, the population has the opportunity to 'specialise', to adapt by the process of natural selection to the subtle differences in the environment it exploits. Thus a genetic difference would generally be a result of spawning isolation, rather than the reverse. However, re-establishing salmonid populations is easy compared to animals like whooping cranes and marine fish whose migration is more complex than 'go downstream'. This is one more reason to take very great care to avoid losing populations.

Populations (many or few) were a key issue for the basis of Listing. DFO, having flip-flopped on the populations issue for purely tactical reasons, has painted itself into a corner. DFO can't now readily admit the importance of population structure because it, against its own evidence, persuaded COSEWIC to treat Cod as one (1998) or a few (2003) populations. I repeat: against its own evidence, and also against its own (W. Doubleday Dec. 23 1996) previous very strongly-worded demand that COSEWIC should assess multiple populations separately. It just changed its mind.

This lumping of multiple populations together was tactical within COSEWIC to reduce chances of Listing, and reduce the potential number of Listings. (For further detail, see my open letter to the Hon. J. Chretien, PM, on April 28, 2000, or Pauline Comeau's Ottawa Citizen article 'Put Cod on Endangered List' on April 18, 1998.)

That 'population-lumping' tactic also helped in DFO's 'consultations' to generate objections aimed at the red cape (the Listing) instead of the guy behind it (SARA & DFO/COSEWIC). Fishermen and the public see much more heterogeneity in the 'units' (regions currently lumped together for assessment) than can be acknowledged by a single Listing. This observation by fishermen is also supported by science, including DFO's own. The assessment on such a large geographic basis is irreconcilable with the data. But, because DFO has used population-lumping as a tactic now means that unless they go back on their key tactic, they are stuck and they can't come out and explain how the variation seen by fishermen is probably an indication of populations. DFO is similarly stuck when it comes to addressing research on population structure.

But population structure is key to any thinking about conservation and recovery. The decline of Gulf of Maine Cod (Ames, E. P., 1997. Cod and haddock spawning grounds in the Gulf of Maine. 33 pp. Rockland, ME, USA: Island Institute) has been shown to have been not a gradual fishing-down of a homogeneous stock, but a sequential elimination of elements of a heterogeneous stock. Population structure of Cod is thus like salmon or trout — where each tributary can have its own population, and each population is at separate risk of loss.

But so far as I know, nobody else is talking about active recovery options. All we hear about is waiting for Nature to replace what we destroyed. That needs to be changed. A Listing gives a chance at effecting that change.

Appendix 5 -- big mischief with SARA timelines

SARA and its related documents say that COSEWIC submits an Assessment and then Cabinet has nine (9) months to act on it. Government is not respecting that timeline, and is either breaking its own law or exploiting a loophole in its own law.

The SARA timeline has run out. That means the Minister should already, under SARA s.27(3), have added Cod to the SARA List as of Oct. 16, 2004.

-- The Minister received the Cod assessment and status report from COSEWIC January 16, 2004 (this was already late; another story).

-- Then, according to SARA, the Minister had 90 days from Jan 16 to file a Response.

-- Then (SARA 27(3)) the government had 9 months from Jan 16 to List or not. Calculations:

Jan 16 + 90 days = April ~16 (SARA 25(3): deadline for filing Minister's Response Statement in registry)

Jan 16 + 9 months = Oct. 16 2004 (SARA 27(3): deadline for Minister to add to List, according to COSEWIC assessment, unless the minister has already taken other action under SARA 27(1.1))

Under the rules, Cod should have been Listed or otherwise acted on by Oct 16, 2004. That was last year. What gives? Let's look:

Government is currently acting as though it had endless scope for delay of action on a Listing under SARA, although it does not have that scope under SARA. DFO claims this scope with no basis; see the DFO poster 'Species at Risk (E&F).pdf', or the following bizarre notion from DFO:

Similar hints are in many documents, all more recent than the Act (SARA). But there is no provision in SARA for Government to decide arbitrarily when this timeline starts. None explains how they justify this under the Act. All merely state it blandly as if it is a given.

But it's abundantly clear from SARA itself, from the Legislative Summary, and from the SARA Guide that the timeline envisioned during the discussion and enactment of SARA is such that Cosewic would submit an assessment and Cabinet would have just 9 months to act one way or the other. Under SARA, the Minister had the obligation to do this before Oct. 16, 2004. Thus Cod is already Listed, it just hasn't been admitted.

When questioned, the SARA bureaucracy got testy. But the situation is obvious: at best a loophole is being exploited, and at worst SARA is being cynically breached by the officials responsible for managing it.

The latter, harsher interpretation is supported because there is no clear open acknowledgement of an interpretive dilemma in SARA and how it was decided to treat it. I.e., the hallmarks of good faith are lacking.

Suffice to say however that senior Environment and also Fisheries officials cannot be unaware of the chancy nature of this situation, and they have an obligation to inform the Minister before he steps in it. Therefore, the question is whether the relevant Ministers are already aware of this issue and have knowingly breached their own law, or whether they have been led astray by their own advisers. I do have further confirmation that I withhold from this document.

Below are the details -- excerpts from and references to the key documents.

SARA (from the Act):

SARA clearly intends that after COSEWIC's Assessment, Cabinet has nine (9) months only in which to act one way or the other. SARA makes no mention of Cabinet being able to itself decide when to start the 9-month timeline for making its own decision. That would be ludicrous.

* GIC is not a person. 'The Governor in Council is the term for the Cabinet acting in a legal capacity. Formally, it is the Governor General acting on the advice of the Cabinet. Parliament does not assign powers to the Cabinet or to Ministers collectively, but rather to the Governor in Council. ...'          
(www.pco-bcp.gc.ca/default.asp?Language=E&Page=Publications&doc=guidemin/guidemin_annexes_e.htm#a3)

** SARA is reasonably read as intending that GIC has the Assessment when the Minister & CESCC have it and there's no need to separately consider receipt by GIC at all. But, looking at s.27(3), some bright spark evidently asked 'but what if they pretended GIC didn't get it at the same time': in that case the Act fails to say when or how. Voila: loophole. Not the intent of the law, but that is what they are doing. Implicitly, SARA says the GIC has the Assessment when the Minister and CESCC have it (that's the clear intent); but explicitly the link is missing. Whether this was bad drafting or good planning is impossible to say without investigation.

The interpretation, or loophole, is not explicitly explained anywhere. Why? Obviously, it is a bit on the thin side, and a decision was evidently made to exploit it surreptitiously rather than openly. So the only clues we have to the loophole are the open-ended delays (as in 'It has not yet been determined when the 9-month timeline for making a decision will be initiated.' from a DFO official, writing in 2005 re Cod).

But an endless delay is clearly not the intent of the law: the Act, if it intended to give that amount of discretion to the Minister, should have said so explicitly. 'Gotchas' don't belong in legislation.

The Legislative Summary and the SARA Guide also indicate that the 9-month timeline begins when COSEWIC submits the Assessment. Indeed, nothing else would make sense. How can timelines make sense if they have an undefined start?

SARA -- The Legislative Summary

... this clearly means that COSEWIC gives the assessment to some designated Cabinet member, and that is the time from which Cabinet (GIC is Cabinet acting in a legal capacity) has 9 months to act one way or another.

SARA-the guide [first instance]

SARA-the guide [second instance]

The guide makes no explicit distinction between GIC or MinEnv receiving the assessment; "receiving the assessment" can only reasonably be read as one single event, the receipt from COSEWIC by either or any of MinEnv, CESCC, GIC, Cabinet. The Guide writers do not alert us to any distinction, so they cannot have considered it important (i.e. they must regard receipt by Minister & CESCC of an assessment as including receipt by GIC), or if they do think it's important they have zipped their lips.

If Government plays games with its own laws, what kind of example does that set?