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"It has not yet been determined when the 9-month timeline for making a decision will be initiated." [20050308 from DFO]
Federal Minister of Environment
breaking SARA timelines
pretending he gets to start his own timeline
...
what sense does that make?
There have been various expectations, and announcements regarding when a decision on Listing would be made. SARA is supposed to protect endangered species. Time is of the essence in protection, so delays run counter to the declared objectives of SARA. The delays are consistent with the reluctance of a Government to take on a tricky problem, and take on the bureaucrats that are responsible for the problem (being the collapse of Cod).
Bear in mind the entire process is rotten -- Minister appoints Cosewic members, so Cosewic is an armpit-length committee that does what it's told. Cosewic seems to have been told to be 9 months late in submitting the Assessment to the Minister in the first place. It is bizarre that the assessment was available on the public registry 3 months before the Minister officially got it!
Clearly, a delay was wanted. Having detected -- or arranged -- that the Act does not mention how the GIC (Governor-in-Council) gets the Cosewic Assessment, they have decided that the Minister has to give it to the GIC, and that gives them a tool to delay, indefinitely, making a decision. Now, we shouldn't really call this a loophole, because it doesn't actually change much, the Act still has a clear intent that should have been respected by the Minister getting the Assessment to the GIC within, say a week (a day is plenty, they do have a mail service; a week would be generous). But there was a desire to stretch this opportunity into something completely different. Apparently there was a confab between DFO, Environment and Justice, and despite that Parliament in enacting the bill assumed that the GIC would get the Cosewic assessment at the same time the Minister did, it is (claimed as) normal government practice that somebody has to give something to the GIC. There is a normal expectation of "reasonableness" in any legislation that doesn't specify a detail such as time; in this case, reasonableness would dictate that, in the spirit understood by Parliament during the discussion of the Act (Parliament understood that the 9-month clock would begin ticking when Cosewic handed in its assessment), the delay would be a day or so for photocopying, the parliamentary mail service, etc., i.e. a few days tops. And there is where the bureaucrats have been creative, abusing this as an opportunity for indefinite postponement, despite that Justice had cautioned that they would have to be careful with delays, considering the clear intent of the Act with regard to the 9-month timeline. It is a scandal.
To show how sneaky and surreptitious the deception is, look at the following slide from DFO's presentation in its bogus "SARA consultations". At first glance it looks entirely consistent with the Act's 9-month timeline following Cosewic's transmittal of the assessment to the Minister.
Did you notice that "consultation/analysis phase"? It looks like a heading for what goes on in the 9 months, BUT they are interpreting that as an open-ended "phase" to let them start their own 9-month timeline any time they want, delay it as long as they want. As in this comment from DFO:
" As for timetable, the Minister of the Environment must first initiate the 9-month timeline for making a decision on whether to list the cod populations under SARA. The 9-month timeline is initiated when the Minister submits the species assessments from the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) to Cabinet. Once Cabinet receives the species assessments, the government has nine months to make its final decisions.
It has not yet been determined when the 9-month timeline for making a decision will be initiated." [20050308 from DFO]
Note first that SARA does NOT say anything to the effect that "Minister of the Environment must first initiate the 9-month timeline", so that reflects a complete fabrication. What sense is any timeline, if the person responsible gets to start it as late as he wants? (I think the person who wrote that memo is a decent person who, had he known the background, would probably have been as disgusted as we all should be.)
For an example of how the Minister of Fisheries is either playing along with the illegal delay or being duped by bureaucrats (take your pick, it has to be one or the other), see this comment he made to the House of Commons Standing Committee on Fisheries and Oceans (FOPO):
" As the member knows, the final say on whether to list cod under the Species at Risk Act is in the hands of the Minister of the Environment, who must consult the Minister of Fisheries—in other words, me—as he will do. I will provide my advice to him in due course. As you undoubtedly also know, this decision will be made next fall*, which is the process** the act provides. That's what will happen.
" It is important, as I said earlier, to hear from Newfoundlanders and Labradorians about their views on the socio-economic impacts of a possible listing***."
[(emphasis added) Hon. Geoff Regan speaking; Excerpt from the 38th PARLIAMENT, 1st SESSION, Standing Committee on Fisheries and Oceans, EVIDENCE, Thursday, November 18, 2004]
Given that * “next fall” meant fall
2005, firstly, this is now fall 2005 and we are
hearing "spring 2006" -- i.e. endless delay, and secondly **
no, that is NOT the process the Act provides.
The Act provides for a
decision
to be made within 9 months, which makes it fall 2004, not 2005. ***
Also an error, insofar as SARA gives NO ROLE to socio-economic factors
in the Listing decision per se, those considerations become
relevant only for recovery planning, which happens after a Listing.
('Consultations on costs and benefits of Listing' were parachuted
in by Anderson
(20040303)
apparently
under
cover
of requirements of regulatory
policy (not an Act) that there be consultation in respect of
any regulation. But that is problematic because [a] it's not mentioned
in SARA, [b] it still would have to fit in the 9-month timeline,
and [c] the policy is arguably already well
met by the consultations provided for in SARA sections 39, 48, 66,
which
allow them to be
considered when making recovery plans, etc., unless the Listing itself
is considered a regulation, in which case the
SARA
drafters
had to
have seen, or ignored, the need to
acknowledge the timing implications. It is silly to equate the
recognition of a fact and a regulation. The sensible approach would
be for the Listing to be considered not a
regulation;
that
would
require that prohibitions & regulations etc. would have to be
given effect by an Order, perhaps as part of a recovery strategy
or plan,
separate
from
the Listing Order.) [Statutory Instruments Act: http://laws.justice.gc.ca/en/s-22/text.html;
Gov't of Canada Regulatory policy: http://laws.justice.gc.ca/en/s-22/text.html]
"Hon. Geoff Regan: Mr. Chairman, I misspoke earlier, and have been reminded that in fact the Minister of Environment doesn't actually make the decision. He consults the Minister of Fisheries and then makes a recommendation to cabinet. Cabinet decides the question of whether to list a species under the Species at Risk Act."
[Hon. Geoff Regan speaking; Excerpt from the 38th PARLIAMENT, 1st SESSION, Standing Committee on Fisheries and Oceans, EVIDENCE, Thursday, November 18, 2004]
The correction he gave shows he and his staff had the time
to evaluate the previous statement and to correctly inform the Committee.
If the Minister thinks he is using the
process the Act provides, he is misinformed,
he
is using
a
process
that
violates
the “9-month” intent
of SARA; it isn’t even a loophole.
Those violating SARA must know
it’s
a illegal or they would have been upfront about it (i.e. they'd say "we
interpret SARA as allowing us endless delay [giggles] because it doesn't
specify [more giggles] when the Minister
has to give the Cosewic Assessment to the GIC", but they've never been
upfront about it).
A Cosewic member has observed in a paper:
"These 90-day and 9-month time lines are clearly specified in the Act. What is not specified in the Act is the time period during which the Minister of the Environment must submit the COSEWIC assessments to the GIC. Herein lies some highly regrettable flexibility in SARA." [Vanderzwaag & Hutchings 2005. Ocean Development & International Law, 36:219–259]
I agree that it is regrettable, but I disagree that this
flexibility actually exists in the first place.
The article soft-pedals
the legal seriousness of the situation, the tenuousness of Cabinet's interpretation.
In
fact the article implies incorrectly that SARA even says the Minister must
submit the assessment to the GIC, but that's not true; the Act merely fails
to specify any means by which the assessment would reach the GIC.
In any
law, there is always an expectation of reasonableness in the interpretation
of any
point not specified in detail. The legislative summary, the Guide,
and the Act itself, clearly show the intention of a 9 month timeline from
the time of Cosewic's submission of the assessment to the time of Cabinet's
decision. The task facing Cabinet then was to respect that timeline, for
instance
by implementing
some mechanism which gets the assessment to the GIC as soon as Cosewic
submits it where SARA says it must submit it. But Cabinet did not respect
it; instead it chose
to convert a tiny dilemma into a major loophole. SARA
does not anywhere actually give flexibility to ignore that 9 month
timeline. Anything said to the contrary is a pretense. The sole
loophole that Cabinet has exploited for open-ended delay is that SARA's
final draft
failed to specify how the GIC got the Assessment; it never gave any person
the right to create an open-ended delay.
Secrecy is the giveaway: Cabinet never explained the origin of its end-run around the timelines. If Cabinet truly believed its loophole was a legitimate interpretation, it would have explained it openly, but it did not. Instead it was delivered as if it were normal. More details follow.
The SARA requirements (must List or otherwise within 9 months of the Minister having received the Assessment from COSEWIC) are irreconcilable with the timeline given in the DFO consultations poster and with hints made in 3 other cod-related documents from the federal government that assume government has extra time*. (*That is additional to the extra time it got earlier getting COSEWIC to delay its official forwarding of Assessment to Minister by 9 months; that meant that the the Minister received the Assessment "officially" about 3 months after it was publicly available on the SARAregistry web site.)
According to SARA, the GIC should already have made a Listing decision on or before Oct. 16 2004, or if the GIC did not do that the Minister was obligated to add it to the List in accordance with the COSEWIC assessment as of the same date.
• The Minister received the Cod assessment and status report from COSEWIC
January
16, 2004. (That already was interestingly late, given that it was
publicly posted in October 2003, and had been assessed in April 2003)
• Then, according to SARA, the Minister had 90 days from Jan 16 to file
a Response, and the government had 9 months to add or not.
Calculations:
Jan 16 2004 + 90 days = April 16 2004(deadline for filing Minister's Response
Statement
in registry, SARA 25(3))
Jan 16 2004 + 9 months = Oct. 16 2004 (deadline for GIC to add to List,
according to
COSEWIC assessment, unless the minister has already taken other action under
SARA 27(1.1:
to either add, not add, or refer back to COSEWIC), SARA 27(3))
Allow an extra week for the Minister to convey the Cosewic Assessment
to the GIC, and you have an outer limit of Oct. 23, 2004. (Cabinet eventually
announced
Nov
28, 2005 (the day the government fell, i.e. the start of the election) its decision
to
not
List
Cod.)
BUT some cod-related documents arrogate a much longer time frame.
[1] The Minister's "Response
Statement" (in full below) mentions, as an event, the
receipt of the Assessment by GIC from Min Env, which is not an event that
is accounted
for explicitly in the Act or the Guide, and it seems to allot (though
the legislation does not seem to support that) a further 9 months following this
step.
[2] The "Consultation
workbook" ('Newfoundland and Labrador population') contains the critical
time
of "nine
months", but hints that the clock is restarted by the GIC receiving the
assessment from MinEnv*, though doesn't calculate the date. [extended quote below].
(*I hope this was a typo.)
[3] And, finally: DFO's poster “Species
at Risk (E&F).pdf” [download] for
its (mis-named) 'SARA' hearings of Oct & Nov 2004 does not mention the 9
months, but instead gives dates that suggest a very extended time-line: "a
decision by end of September 2005 on whether or not to add Atlantic cod populations
to Schedule 1 of SARA."
MORE DETAIL on the above references IS BELOW.
The Minister's official Response
Statement "Response statement for Newfoundland and Labrador population "Reason(s) for status designation provided by COSEWIC: Cod in the inshore and offshore waters of Labrador and northeastern Newfoundland, including Grand Bank, having declined 97% since the early 1970s and more than 99% since the early 1960s, are now at historically low levels. There has been virtually no recovery of either the abundance or age structure of cod in offshore waters since the moratoria imposed in 1992 and 1993. Threats to persistence include fishing (now halted), predation by fish and seals, and natural and fishing-induced changes to the ecosystem. Competent Minister(s): Provinces and territories to be consulted: Applicable federal legislation: Fisheries are managed and fish habitat is protected under the Fisheries Act. Individuals of the species found in national parks are protected under the Canada National Parks Act. There is a proposed Marine Protected Area (Area of Interest) in Gilbert Bay, which could lead to the protection of the individuals of that species and its habitat found in Gilbert Bay under the Oceans Act. Conservation activities underway: All directed fisheries were closed in 2003. How the Minister of the Environment intends to respond to the assessment: The Minister of Fisheries and Oceans will undertake consultations for a period of 9 months [*] with the government of Newfoundland and Labrador, Aboriginal peoples, stakeholders, and the public on whether or not this species should be added to the List of Wildlife Species at Risk (Schedule 1) under the Species at Risk Act. Information respecting opportunities to comment and updates on the progress of consultations will be posted on the public registry. Following consultations, the Minister of the Environment will forward the COSEWIC assessment of this species to the GIC. The Minister of the Environment will then review the comments received and, following consultation with the Minister of Fisheries and Oceans, will make a recommendation to the GIC on whether or not to add the species to the List. The GIC will make a decision within nine (9) months[**] of having received the assessment. {{* But SARA (see below) does not give the Minister the right to give another Minister 9 months outside the specified timeline}} |
What we're comparing here are the sources that say only a single 9-month clock, vs. documents that suppose or hint a longer or indefinite timeline. The former are all the more fundamental ones. The latter all reflect the adoption of an intepretation that probably cannot be defended as being within the spirit of the Act, as read or as in the Legislative Summary (that is what Parliamentarians understood the Act to mean when they voted on it, and interpretations have to be consistent with it).
Colour key for these sections: | only one 9-month
clock |
more than
9 months |
Documentation indicating only a single 9-month clock [cf: more than 9mo]SARA -- the Act -- parts seeming relevant to Timelines25. (1) When {{note absence of timeline -- with Cod, COSEWIC assessed ~April 2003, but took 6 months to post in public registry (sararegistry), and 3 further months to send to the Minister}} COSEWIC completes an assessment of the status of a wildlife species, it must provide the Minister and the Canadian Endangered Species Conservation Council with a copy of the assessment and the reasons for it. A copy of the assessment and the reasons must also be included in the public registry. 25. (3) On receiving a copy of an assessment of the status of a wildlife species from COSEWIC under subsection (1), the Minister must, within 90 days, include in the public registry a report on how the Minister intends to respond to the assessment and, to the extent possible, provide time lines for action. 27. (1) The Governor in Council may,
on the recommendation of the Minister, by order amend the List in
accordance with subsections (1.1) and (1.2) by adding a wildlife
species, by reclassifying a listed wildlife species or by removing
a listed wildlife species, and the Minister may,
by order, amend the List in a similar fashion in accordance with
subsection (3). {{*** Surely this cannot be taken to mean that the Minister can keep the COSEWIC indefinitely and then give it much later to the GIC (GIC=Cabinet) and only start the 9-month clock at that time? YES, that is how they are treating it. But is that consistent with the Legislative Summary?}} ... ACCORDING to that, the Minister should have Listed these populations by Oct. 16. SARA -- The Legislative Summary[http://www.parl.gc.ca/common/Bills_ls.asp?lang=E&Parl=37&Ses=2&ls=C5&source=Bills_House_Government#clauses27tx] ... and this clearly means that COSEWIC gives the assessment to some designated Cabinet member, and that is the time from which Cabinet has 9 months to act one way or another. SARA-the guide [first instance][http://www.sararegistry.gc.ca/the_act/HTML/Guide_e.cfm] SARA-the guide [second instance]" After June 5, 2003, the Governor in Council will follow the
process set out in SARA to add a species to the List of Wildlife
Species at Risk or change its status on the List. This is the listing
process: (This guide makes no 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, GIC, Cabinet.) "Listing Process" on sararegistry siteListing Process The listing process, begins with a species assessment that is conducted by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC). Based on a status report, species specialist subcommittees assess and assign the status of a wildlife species believed to be at some degree of risk. When COSEWIC completes its assessment, they must provide the Minister with a copy of the assessment and its reasons for the status designation. Upon receiving an assessment, the Governor in Council may on the recommendation of the Minister, amend the List and add a wildlife species; reclassify a listed wildlife species; or remove a listed wildlife species. When the Governor in Council has not taken a course of action within nine months of receiving the assessment, the Minister shall amend the List in accordance with COSEWIC's assessment. Under SARA, wildlife species that are listed on Schedules 2 and 3 must be assessed by COSEWIC within a given timeframe. These wildlife species follow the same process for assessment and classification, but are not included on the official list. Last update: 2005-01-07 {{seems consistent with Act; if not, they're crossing their fingers behind their back}} |
Next follow lower-level documents that don't make rules, but assume them.
DOCUMENTS Suggesting or arrogating EXTENSIONS beyond 1x9months [cf: 9 only]Several COD-RELATED DOCUMENTS SEEM TO ATTEMPT TO EXTEND THE TIMELINES The Minister's "Response Statement" It mentions an event, the receipt of the Assessment by GIC from
Min Env, which is not an event that is accounted for explicitly in
the Act or the Guide, and it seems to allot (though the legislation
does not seem to support that) a further 9 months following this
step. (**It is a bit vague whether this document attempts to add a process, or whether the last line is merely a recitation of the Act's single 9-month clock.) Consultation workbook [for "N&L" pop; but note that part of Laur.Nor. is also part of NL's!](http://www.sararegistry.gc.ca/public/showASCII_e.cfm?ocid=1133) --
does it CONFIRM or add wiggle room to the critical date of "nine
months"? **Shell game (who's on first: is it passed by Cosewic to MinEnv & CESCC &/or GIC, or to MinEnv then only later to GIC)? ... or adding wiggle room? Typo? (Was "having received the assessment from the Minister of the Environment" supposed to read "having received the assessment from COSEWIC"?) Nowhere in the SARA Act is there mention of MinEnv passing the assessment to GIC. Nor do I find any indication that the passing of the Assessment from the Minister of Environment to the GIC starts a new clock. The Assessment passed is exactly that received by MinEnv etc. from COSEWIC, so if consistent with the Act and Guide and Legislative Summary, which do not mention this step of the MinEnv passing the Assessment to the GIC, it could only be reasonably assumed that GIC receives the Assessment exactly when the MinEnv does. A consultation workbook cannot alter legislation! The DFO poster “Species at Risk (E&F).pdf” [download]...for its mis-named 'SARA' consultations of Oct & Nov 2004
suggests a very extended time-line: |
"ORDERS acknowledging receipt", with footnotes attempting to re-cast [1,2] the processThese documents (found 050124) don't specifically mention Cod, but they
assert "The
Order of the Governor in Council acknowledging receipt of COSEWIC's
assessment on the recommendation of the Minister of the Environment
is the first step
in this process." Order [041019] Acknowledging Receipt of the Assessments Done Pursuant to Subsection 23(1) of the Act http://www.sararegistry.gc.ca/regs_orders/showASCII_e.cfm?ocid=1259 EXPLANATORY NOTE {{this is "footnote
a" referred to above}} The Order acknowledges receipt by the Governor in Council of the assessments of the status of wildlife species done pursuant to subsection 23(1) of the Species at Risk Act (SARA) by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC). The purpose of SARA is to prevent wildlife species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity and to manage species of special concern to prevent them from becoming endangered or threatened. SARA provides for assessments of indigenous Canadian wildlife species by establishing COSEWIC as an independent scientific body. COSEWIC meets once or twice annually to review information collected on species and assigns each species to one of seven categories — Extinct, Extirpated, Endangered, Threatened, Special Concern, Data Deficient or Not at Risk. Under subsection 27(1.1) of SARA, the Governor in Council, within nine months after receiving an assessment of the status of a species by COSEWIC, may review that assessment and may, on the recommendation of the Minister of the Environment, accept the assessment and add the species to that List of Wildlife Species at Risk set out in Schedule 1 to SARA, decide not to add the species to the List or refer the matter back to COSEWIC for further information or consideration. Before making a recommendation in respect of aquatic species, the Minister of the Environment must consult with the Minister of Fisheries and Oceans. The Order of the Governor in Council acknowledging
receipt of COSEWIC's assessment on the recommendation of the Minister
of the Environment
is the first step
in this process. The species set out in the Order are species that the Minister
of the Environment is considering for the purpose of their possible listing
in
Schedule 1 by the Governor in Council. These species were assessed as being
extirpated, endangered, threatened or of special concern at COSEWIC's November
2003 and May
2004 meetings. The Minister of the Environment will take into account the
assessments of these species and will consult with the Minister of
Fisheries and Oceans
for aquatic species, as defined in the Fisheries Act, for which that Minister
is
competent, as well as the Canadian public and Wildlife Management Boards.
Consultation documents have been prepared and circulated to stakeholder
groups as well as
posted on the Public Registry of the Species at Risk Web site (www.sararegistry.gc.ca).
Once the consultation process is complete, the Minister will make a recommendation
to the Governor in Council for the purpose of a decision being made under
subsection 27(1.1) of SARA. Last update: 2005-01-07 {{There are two of these "Orders" on the SARAregistry site; neither mentions Cod! What a way to dish yourself extra time. This makes a mockery of the timelines in the Act.}} Order [040421] Acknowledging Receipt of the Assessments Done Pursuant to Subsection 23(1) of the Species at Risk Act http://www.sararegistry.gc.ca/regs_orders/showASCII_e.cfm ?ocid=86
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