From: kbell@mun.ca
Subject: Consultation EC/DFO: must accept ALL cosewic assessments
Date: May 14, 2004 2:21:12 AM CDT
To: SARAregistry@ec.gc.ca
Cc: nacampbell@globeandmail.ca

SARAregistry@ec.gc.ca
Director, Species at Risk
Canadian Wildlife Service, Ottawa, Ontario, K1A OH3

Dear Director,

          With regard to the current round of "public consultations ... on the costs and benefits of listing ..." as announced by Minister Anderson on March 03 2004: Please register my comment with respect to ALL species in the current Environment Canada 'waiting' list, AND as well as ALL the species on the DFO 'waiting' list.

          A famous person* said “You understand that when someone says they’re waiting for “all the facts” before they make a choice, they’re actually just avoiding a decision and hoping it will go away”.

          I am also concerned that the present round of public consultations (which I repeat does not seem provided for within SARA) may habituate us to a way to later prevent or delay a Listing of Atlantic Cod, which comes up soon. (Some populations of Cod should have been Listed and protected since 1997.)
          A famous person* said “ To quote Kenneth Irving: 'When it comes to the environment, you just can’t sit on your hands and wait until all the scientific reports have been filed; by then, it’s often too late.' ”
          In that marine-species context, I am also concerned that the rigidity of SARA's prohibitions, offences and penalties could be self-defeating. Prosecutions based on a single harmed individual of a Listed species are an unrealistic basis for protection in any situation where non-visual capture means are permitted in a multi-species environment. It would be more effective to protect habitat, and restrict bycatch to low levels through gear and location regulations, effective incentives, monitoring and adaptive management, and with prosecutions reserved for prima facie abuse. An excessive focus on offenses will counterproductively cause alienation, especially where abuses are perceived to be routine and enforcement slack outside the EEZ; that is a reason to take a tougher line on behaviour of guest fleets.

LISTINGS AND MODIFICATIONS OR DELAYS THEREOF
          A scientific assessment such as COSEWIC's is a proposition, estimating the actual biological level of extinction risk.
          According to SARA Section 15(2), COSEWIC MUST make this estimate (assessment) on "on the basis of the best available information on the biological status of a species". The designation terms are adequately defined to permit this to be done on an objective scientific basis.
          According to SARA Sections 14, 16(1), 16(5), 20, 21(2), the Minister and CESCC appoint all members of COSEWIC, can make regulations on COSEWIC functions. Thus Cabinet has full power (and obligation) to ensure that COSEWIC can and does, indeed, meet the SARA requirement of delivering the best scientifically possible estimate of conservation status or extinction risk.

          It is inconsistent for the Minister or CESCC or Cabinet to reject a scientifically-supported designation on non-scientific grounds ("costs and benefits of listing" -- Minister Anderson March 03 2004).
          The SARA List is clearly supposed to be presentable as something based on science. This becomes false if the science is altered by political non-scientific inputs such as "costs ... of listing".
          Therefore --- the entire COSEWIC List should be adopted as the SARA List. Anything less is simply a confusion.

          Consultations on costs-and-benefits of Listing are a logical fallacy: argument to the consequences. (This would not be the case if consultations were restricted to the means of achieving the required improvements in conservation, because that would be a plan, not a fact; the List if it has any meaning at all is not a plan but a proposition as a best-estimate of a biological fact.)
          Therefore --- the scientific assessments should be accepted for the SARA List.

          The entire idea of a Species-at-Risk-Act is (we hope) neither to put species at risk nor suffer them to remain at risk during unduly long delays. Instead (we hope) the intent is to protect all species which are ("are", not just "are politically admitted to be") at risk.
          Therefore --- the entire COSEWIC List should be adopted as the SARA List. Anything less may be seen as a creative delay.

          However, it is clear that the public consultations are likely to focus on the regulatory regimes consequent upon Listing, rather than the Listing per se. I.e., some may argue that Listing involves too great a cost (logical fallacy as above, therefore rejectable).
        I do not wish to dismiss discussion of such concerns; I wish merely to point out that they are out of place and that is due to the structure of SARA.
          The reason that Cabinet doesn't want to adopt the entire List is -- or (if you prefer) the problem that (we presume) the Minister wishes to address through public consultations is -- that the short-term consequences of Listing might be inconvenient for some interest groups, user groups, etc. Obviously the political difficulties vary with the species.
          This is a problem with SARA: that a SARA Listing automatically equates to certain prohibitions which brings in a rigidity that may be counterproductive in some situations.
          Instead, SARA should separate the functions of [i] Listing and [ii] Protecting.

[i] LISTING
          Listing should be on the basis of the best scientific knowledge, which according to SARA is the way that COSEWIC is obliged to operate, and therefore there can be no good-faith authority under SARA to do other than adopt the COSEWIC List as the SARA List.

[ii] PROTECTING
          Prohibitions, offences and punishments are the problem with SARA. Instead of providing regulatory authority that allows sensible regulations to be developed, gazetted and enforced for each species or situation, it uses a one-size-fits-all approach, for example Section 32 (1):
          "no person shall kill, harm, harass, capture, or take an individual
          of a wildlife species that is listed** as an extirpated species, an
          endangered species, or a threatened species"
          [** this refers to the 'SARA List', the politically-approved
          portion of the list generated by SARA's science arm (COSEWIC)]
          SARA connects a specific prohibition with a specific designation level, no matter what the species and no matter what the circumstance. A person can be charged on the basis of a single individual of a Listed species. SARA does not require prima facie evidence of intention or negligence in order for a charge to be laid. Section 97 lists fines up to $1,00,000. Section 103 addresses seizure of equipment involved in the offence; and even though Section 102 lists considerations to be taken into account in sentencing, it remains that SARA allows a person to be charged with an offence that is purely accidental in the context of normally advised practises.
          If the intention in drafting SARA was to provide the scariest and most inflexible prohibitions to develop a groundswell of opposition to Listing, congratulations. But anybody stepping back should easily see it is ridiculous and should ask for better.
          How can a one-size-fits-all approach work for all species? Not all species are equally easily caught, nor equally easily avoided. You don't expect an endangered beetle in your capelin trap, and nor do you expect an endangered codfish to splat on your windshield as you drive through a park. Some accidents are easily avoided, some are not. This should be recognisable at the detection and charging level, not deferred to the verdict and sentence level.
          Protecting should involve a little more imagination than is currently in the Act. Protecting requires more than a list of prohibitions: it requires that the prohibitions be realistically capable of being followed, and that accidents at some normally expected rate (determined for each situation) are differentiated from intentional or negligent acts. Unless we plan to post roadblocks at the exit of every piece of Federal Land (where SARA has effect) and arm the Mounties with swabs and Qtips to sample every smudge on the windshield and send them all to a lab for DNA analysis to see who can be prosecuted for collecting an endangered beetle on the windshield ... in short, the prohibitions, offences and punishments part of SARA makes a mockery of itself and stereotypes conservation as something almost guaranteed to generate hostility to any Listing, and to generate "don't-List" comments in consultations. It's as though the Act sabotages itself.
          Instead, protection sections of SARA should have clear aims that encompass assessing the nature of the problem, and finding the best means of (regulations for) combatting it. A one-size-fits-all approach that enables prosecuting tourists who have a bug on the windshield, or fishermen who have traps into which one endangered fish haplessly roams -- this will not work. The cynical among us may suspect it was never intended to.

          My comments should in no way be misconstrued as being anti-conservation; they are the opposite. Instead I argue that SARA as it stands lays a poor foundation for conservation. SARA fails to provide the needed separation between politics and science, and between acceptance of science and the implementation of appropriate conservation regulation. The administrators of SARA are mistaken in having public consultations on Listing which is a scientific issue, instead of focusing consultations on the implementation end.
          If a species that is assessed by COSEWIC as Endangered is kept off the SARA List as a result of consultations or any other means, it makes the SARA List scientifically meaningless. That is why the COSEWIC assessments should ALL be accepted.
          If we end up with a SARA List that omits even one species given at-risk status by COSEWIC, then the SARA List cannot be an honest benchmark against which to evaluate the conservation success -- it will look like a deception.

CONCLUSION:
          Please accept ALL the assessments for the SARA List -- make it a credible list instead of a tainted one.
          Then, fix SARA. SARA should separate politics and science, separate COSEWIC from political control. SARA should accept assessments based on the best precautionary science; then and separately SARA should require the Minister to develop and implement, on a case-by-case basis as necessary, regulations adequate to conserve and restore species, populations, and resources.

Sincerely,

          KNIB

Dr. K. N. I. Bell
Biology Dept., Memorial University
<kbell[[at]]mun.ca>