041020: the longer version of the "Forum" article that appeared in the Telegram 041106. I thank Joe Walsh of the Telegram for doing a nice job of editing, keeping the main points. This version (below) has more detail on the SARA process with Cosewic, and gives references to cited sections of SARA (the 'Species-at-Risk' act).

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K.N.I. Bell
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          We are being played like harps. If we care about Cod we have to think carefully about what's being said.

          The Hon. John Efford, Minister of Natural Resources, wants us to attend hearings and oppose a Listing of Cod under SARA (the Species at Risk Act). He says Listing might shut down fisheries that catch even small amounts of cod (CBC AM640 Thurs Oct 14). Why does the same Government that drafted and passed SARA now have its own Cabinet Minister working against it?

          Can a Listing of Cod result in fisheries being closed as a result of bycatch? Possibly, but not necessarily: SARA does allow {e.g. Sec 32 & 97} for charges to be laid for "harming ... an individual" of an endangered population (sure enough, scary in the context of fisheries). But SARA also allows for exceptions {Sec. 73}, as Mr. Efford's Cabinet colleagues surely know. Here's the official example (also mentioned by Dr. John Dower on Fisheries Broadcast Oct 19):

" For example, .... fishermen may be given a permit allowing the by-catch of endangered or threatened fish under certain circumstances." (www.sararegistry.gc.ca/the_act/html/Guide_e.cfm#23)

          So! It IS possible to have fishing under a Listing!

          Instead of scaring us all, why doesn't Mr. Efford ask his Cabinet colleagues to lay out their intentions first? They'd probably reply 'plans are being drafted and public consultations will be held at the appropriate time'. That would show another point: the present round of consultations is not provided for by SARA. SARA does provide for other consultations {Sec. 39, 48, 66, etc.}, but when there are plans to talk about. The present consultations are a costly ad-hoc end-run around the stated purposes of SARA, by the same Government that enacted it.

          The idea of a Listing shutting down fisheries because of small bycatches is a red herring.


          Doesn't the Government care about the lost Cod fisheries? Isn't a Listing ultimately aimed at restoration? Isn't it more important to this Province to use every possible means to get Cod recovered?

          Refusing to List means withholding the needed Protection and Research aimed at restoration. Surely, as Minister, Mr. Efford would see Protection and Research of Natural Resources as vitally important.

          Remember how we got into this mess? We had a management administration that failed to make best use of information; we lacked effective policing of fishing infractions; lacked protection of the Nose and Tail and other areas important to our fisheries*; and now we also lack the Research that would help guide restoration. A Listing would strengthen our grounds to ask for those needed things.

          (* The one-sided situation whereby other countries fish off our shores and use our resources but we can't use theirs is a leftover of times gone by. That situation is indefensible when the rules are weak or there is no meaningful enforcement. History shows it hasn't worked. Deliberate infractions like those we hear about -- e.g. double log books, small mesh liners, hidden compartments -- by domestic or foreign fleets alike should be treated as we treat poaching: lose your boat, go to jail.)


          What about the spots where we hear there are lots of cod? Firstly, it's good news. Secondly, it's a very interesting question, on which we need better exchange between the fishing community and DFO.

          But good spots don't mean there's lots everywhere. Just as we can't drop a net on the Avalon Mall on Christmas Eve to estimate the Province's population, we can't extrapolate from spots to the entire environment. COSEWIC should have Assessed at the finest scale possible with the data, and DFO should manage ditto, because these likely reflect discrete populations that should be recognised in management.

          Geographic scale comes into Government/COSEWIC's strategy against Listing: in 1997-8 they lumped (against their own evidence) all populations together into one unit (as cover-up they still refuse to release the Report that advised against that). In 2003 they still kept it to 3 (+ arctic) very big blocks: 2GHJ3KLNO, 3Ps3Pn4RS, and 4TVnVsWX5e(j,m). Such large units average over multiple populations that are almost certainly there. Why would they do that? This averaging lets the worst be hidden by the best, and can result in fewer "E" words for Government to worry about.

          The possible downside of geographic lumping? Restrictions might apply over the whole block, even if maybe there are a few places within the block where stocks are in much better shape, though not necessarily {Sec. 73 etc.} ... but wait! ... for this Government, even unfounded worries have a Machiavellian upside because they go against Listing, therefore bad info is good info. (And sure enough, NL Fisheries Minister Trevor Taylor voiced this worry Oct 19 on Fisheries Broadcast; did the Feds tell him that this would be a problem, or that it wouldn't, or both? If we want a bigger voice in management, why is our Minister saying Cod should be a matter not for COSEWIC, but for DFO alone?).

          Government will no doubt dismiss this as ridiculous. But will it explain why Cabinet approved these extra hearings that are not provided for in SARA? ... why Mr. Efford wasn't told about 'exceptions'? ... why Mr. Taylor was not told that fishing regulations under a SARA Listing were still an open book, etc.? ... and -- to sum it all up -- why is Government working against its own legislation?


          To summarise the Listing process under SARA:

          COSEWIC is C'ttee on Status of Endangered Wildlife in Canada; supposedly scientific and nonpolitical, yet voting membership is 30 of which 17 are governmental (4 Federal, 13 Provincial/Territorial) and they're all appointed by the Minister (Environment) {Sec. 16}.

          COSEWIC assesses extinction risk of populations. Government either [a] accepts each assessment and adds it to the "SARA List", or [b] refuses to List (SARA gives government the 'right' to write off a species or population), or [c] sends it back to COSEWIC (back on the hamster wheel). Risk designation is according to facts and objective criteria -- if you go to hospital and they put you in ICU, it's because there are certain facts in your case; some populations of Cod need to be in the ICU, some don't. According to Government, COSEWIC provides that objective assessment, and therefore it makes no sense for Government to not accept it, so something's fishy.

          (And regarding Assessments: I'm no pal of COSEWIC, but inform yourself before attacking Assessments; if you want to attack it, read it first, note the method, the data, etc. Then you may contribute something. Don't forget that COSEWIC already had ample input from a Government that's shown it does not want a Listing and certainly had its best kick(s) at the can already behind closed doors: so if you discover problems with the Assessment, most likely you will find that if anything -- with Cod especially -- it underestimated the risk.)

          SARA provides for public consultations {e.g. Sec. 39, 48, 66 on Recovery, Action and management plans}. But the present round is not one of those. It is wasteful duplication because there is not the information (no plans) to make the present consultations sufficiently informative. This round is the cart before the horse. Even if Cod is Listed, there will still be more consultations on how to handle it.

          SARA requires the Government, following a Listing, to produce staged plans {Sec. 39, 48, 66} aimed at species recovery. Without a Listing, Government is not obliged to do those. Such plans, for Cod, would be a huge project, but one that should have been undertaken from the time of the moratorium and increased until success. (Instead of doing those useful things, Government wasted precious time finding ways not to: the 1997 engineered delay; the 1998 politicking that prevented a Listing at a level that would require action; SARA's provision {e.g. Sec. 16 - 22} for Cabinet control of COSEWIC and of Listings {Sec. 27-8}; and now the present round of hearings and fear-mongering.) A Listing now would oblige the Government to seriously engage the issue of Conservation, instead of playing with the rules and the perceptions.


          SARA makes no sense if endangered species can be refused the acknowledgement of their status. It therefore makes no sense for a Listing to be under political control, no more sense than for Government to "decide" the value of Pi, the force of gravity, or the distance from Ottawa to Petty Harbour.

          It makes no sense to deny Listings that are biologically supported (we know many populations of cod are in hard shape, even if some maybe aren't).


          Was SARA written to be scary?

          SARA seems to make it possible for someone to be charged for "an individual" endangered {Sec. 32} bug that flew into the windshield. Imagine! Roadblocks on the TCH, and officers swabbing bug remains off windshields for DNA analysis ... they wouldn't do that, would they? But why doesn't SARA require intent or lack of due diligence (hunting in the wrong area, illegal gear, targeting, etc.) to be a key part of a charge?

          SARA's "Prohibitions" {Sec. 32 & fol.} based on single individuals don't suit all situations. For example, the sensible action triggers need to differ between cod and pandas, because pandas are hard to harm accidentally, while cod are hard to avoid with certainty, etc.

          Even under Listing, government can declare what constitutes legal fishing {Sec. 73}, and fear-mongering is not justified.


          Why is Government working against Listing under its own Act?

          There is longstanding documented pattern of unwillingness to accept early warnings (whether from the fishing community or from scientists), and of intense working to prevent or delay* the previous Listing of Cod. This is nothing different.
          (*1997-98 for example, covered in Ottawa Citizen April 18, 1998, p. A1, A4)

          How might the present hearings (not provided for in SARA) fit into a plausible Government delay strategy? Invoking Sec 27/1/1.1/b (refuse to List), or Sec. 41(2) (say recovery not feasible) might draw too much attention. Could they invoke Sec 27/1/1.1/c (put back on the hamster wheel), using the hearings to say maybe COSEWIC should re-assess using more local information? That will buy them years, by which time Cod might be so far gone that Sec. 41(2) becomes believable. Just a theory, but just watch. (p.s.: since writing that, Trevor Taylor, Nfld. Fisheries Minister, included the same complaint in his statement on the Fisheries Broadcast (Oct 19), so now we can say yes, looks like that's a part of the strategy, whether he knows it or not.)


          We worry about government's cuts to research and protection of Cod. But seriously, would a Listing make it easier to do less? No, it's much more likely to focus the spotlight and bring increased pressure to do the required research and management.

          Don't let our chances at recovery of Cod get dimmer and slide away altogether. When you're down to your last potato, plant it rather than boil it.

          Our job now is to demand all possible action for recovery of Cod. Listing will give us an extra basis for demanding that. Let us not give Government an excuse to do nothing: insist on a Listing and the research and protection it is supposed to bring.


          Let's not be distracted by red herrings. Let's acknowledge the problem, decide how to proceed, and get on with it.

          Cod got into trouble because problems were ignored. This is no time to keep on ignoring, this is time to seriously get to the needed Protection (for which we ultimately need full jurisdiction, within and beyond 200 miles, but that's another story) and the Research to guide it.

          So, yes, please do go the hearings, and please do ask them to List Cod, and ask them also to fix SARA; most importantly, ask them to please not waste precious time and our tax dollars looking for ways to continue ignoring a problem that was caused by ignoring it in the first place.