Sandra: It was September 7th, 2011. The Cohen Commission had been sitting off and on for almost 18 months. Judge Bruce Cohen was presiding over a small courtroom in Vancouver, where today about 100 people had gathered to listen to testimony about the threats to wild salmon. For most of the inquiry, there wasn’t much of an audience, but today, it was standing room only because of who was on the panel. 

The crowd was there to hear Alex Morton testify. As for Alex, she was full of adrenalin. People would finally hear about what she’d been seeing with the salmon for the past decade. And she would reveal what she had found in the 500,000 pages of documents. Documents that had only been released to the inquiry witnesses and would go back under lock and key once the inquiry was over. The pressure was on. 

Alexandra: I was nervous. It's a very impressive situation there. But I was really prepared and I had a binder with me with little tabs so that I could go to things immediately and not waste anybody's time and maximize my own time up there to talk about what we really did know. 

Sandra: Alex was going to have the perfect Hollywood moment. This should be one of those movie scenes like in Erin Brockovich or Dark Waters or even The Verdict. A key piece of evidence is finally made public and the whole plot turns on its head.

It did seem like Alex was going to have that moment. But that’s not what happened. 

Welcome to The Salmon People podcast. I’m Sandra Bartlett. This podcast is a co-production with Canada’s National Observer. We are crowdfunding to cover the cost of the podcast. If you’d like to support us, you can find a link in the show notes telling you how. Also, consider giving us a five-star rating and leaving a comment. That helps more people find us. 

Today’s episode: Hiding the scientist

Sandra: Brock Martland is a Vancouver-based lawyer. His name has been attached to high-profile criminal cases including the Surrey Six murder trial, the Yaletown bike store shooting, and the Air India terrorist bombing. 

He was associate counsel for the Cohen Commission — essentially representing the inquiry itself. And he was always first to question each witness.

Brock Martland: You completed a BSc from American University in Washington.

Sandra: Brock Martland's first questions for Alex were about taking the B.C. government to court back in 2009. A case she had won.  

You’ve heard this part of the story, but I’ll give you a quick recap: The B.C. government regulated fish farms from the beginning, since right back when they arrived in the 1980s.  But it really wasn’t a provincial responsibility — the oceans come under federal jurisdiction. For whatever reason, Ottawa and Fisheries and Oceans never challenged it.  

But Alex did. She asked the court if it was constitutional for B.C. to have this power. The court said it was not. It ordered Fisheries and Oceans to step up and take responsibility for the fish farms in B.C. It was a big deal.  

But the changeover was still pretty new by the time of the Cohen inquiry in 2011. And Fisheries and Oceans had not yet fully taken control. 

Brock Martland’s questions on this were revealing of Alex’s central role in this decision. 

Brock: Ms. Morton, your name is atop a case that we all know about. It's sometimes referred to as the Morton decision, released in February 2009, and really changed an important part of the regulatory regime putting the DFO largely in the driver's seat vis-a-vis the regulation of finfish aquaculture.

Sandra: Alex was asked why she, a private citizen, took on provincial regulations. And If she thought the federal department of Fisheries and Oceans — DFO — would do a better job of regulating aquaculture.

Alexandra: I did it because what was happening was so wrong and I was hoping that in the shakeup that occurred after that it would resettle in a more logical and beneficial manner to Canada. There are no regulations against infecting wild salmon with disease from farms. There’s no regulations about the release of pathogens. Everything seems to be now up to the province [and] the fish farmers themselves. 

Sandra: Alex described how time after time she brought her concerns and the science to back them up to Fisheries and Oceans, but the department never took her concerns seriously. 

Alexandra: But the letters back to me were always, “Dear Ms. Morton, there’s no evidence of whatever the concern was.” And when it got around to sea lice I realized, “OK, they’re just saying there’s no evidence, not that there’s no problem..” And so because I was there, I could just do the research myself. ‘

Sandra: Next, it was Canadian government lawyer Mitch Taylor’s turn. When he questioned Alex, he didn’t ask her about her research. He asked about her credentials, her angle.

Mitch Taylor: I want to ask you about American University. That's where you got your degree isn't it?   

Alexandra: Yes, it is.   

Mitch: And that's in Washington, D.C.? 

Alexandra: Yes it is. 

Mitch: And is it known as being famous for political activism?   

Alexandra: I don't know. 

Mitch: All right. What do you know its reputation to be?  

Alexandra: It was close to where my mother was living, and so that's where I began to take classes.  

Sandra: Mitch Taylor then asked Alex about her blog where she writes about wild salmon, the fish farm industry, science and fish diseases. It was clear he had been watching her closely. He asked her about a specific post she’d published the night before — while she was still under oath because she was returning for a second day of testimony. And under an order not to “discuss” her testimony. Oops. That could get her charged with contempt of court. 

Alex explained she thought “discuss” covered having a conversation, not writing a blog.

Alexandra: Yeah, so it was the "discuss" that I made the mistake on, the back-and-forth. But since there's people sitting in the audience able to hear this, because it was livestreamed, I did not realize that there was that boundary.

Sandra: And another thing she did wrong that night — she emailed one of her fellow panellists with a question.

Mitch: You’ll agree with me that that email you just described to Mr. Backman is a specific reference to evidence in this proceeding yesterday. 

Alexandra: Yes.

Mitch: After you had been warned not to discuss your evidence with anyone, or any evidence with anyone.  

Alexandra: I asked him a question about a reference that he had made. It was not his opinion. And I do apologize to the courts if I've made a mistake here.

Sandra: In the end, the apology seemed to be sufficient. There were no repercussions for her actions. Lucky for Alex, but after the morning on the stand, she felt battered. 

Alexandra: This was shocking to me because I was so prepared to answer questions about salmon and the viruses. I was so angry at the first session with them and so frustrated that I almost cried on the stand, which was mortifying to me that I would be such a girl about it. And so when there was a lunch break called, my son had come to hear me … which was a big trip for him anyway. He was in his early 20s. And I just wouldn't look at anybody because people were coming up to me to sympathize and if I had received any sympathy, I would cry and I just locked arms with my son and I said, “Just get me out of here.”

Sandra: While at lunch, she pulled herself together and made a plan to fight back. 

Alexandra: And so when I got on the stand again, I remember the very conscious visualization of pulling down a fencing mask, like, “OK, you boys want to duel with me, let's do it.” 

Sandra: After lunch, the lawyer for the B.C. government, Clifton Prowse, picked up where Ottawa’s lawyer left off. 

Clifton Prowse: In addition to doing your scientific research, you also campaign publicly?  Alex: After doing years of research, I began to campaign publicly. 

Sandra: Now, the definition of an activist is someone who uses or supports strong actions to bring about political or social change. Strong actions are often defined as public protests. Alex has appeared at public events and been interviewed calling for changes to the fish farms. And called on Fisheries and Oceans to do more to protect wild salmon. But her main activism was to conduct research on sea lice and wild salmon. 

It seemed to Alex that the government lawyers were trying to frame her science as activism. To paint her as someone with a bone to pick, rather than with data-driven concerns. It was a tactic that irritated her.  

Clifton: As a scientist, when you speak publicly, do you find it necessary to simplify complex issues?  

Alexandra: Yes, I do.  

Clifton: And as a campaigner, it's important to you to get your message out and to communicate effectively?  

Alexandra: I like to communicate things as clearly as possible.  

Clifton: When you present as a campaigner and not as a biologist, you do not have to confine yourself to your expertise? 

Alexandra: The biologist is underlying everything. If the government had reacted to my concerns, I would never be talking publicly.

Sandra: The B.C. government lawyer kept building on the idea she played with the truth in her descriptions and warnings.

Clifton: And, in fact, campaigners have great freedom in what they say to media.  

Alexandra: There is nobody restraining my freedom, I’m not paid by anybody, so I try to communicate as clearly and fairly as I see possible.  

Clifton: And if you have to choose between clear and fair, what choice do you make?

        (Crowd reacts)

Alexandra: I choose fair as often as possible, yes.

Clifton: And effective media statements encourage simple, startling messages? 

Alexandra: The issue is startling. And clarity is required to communicate it.  

Clifton: So, media messages do not involve the peer-review processes that restrict what scientists say in peer-reviewed literature? 

Alexandra: The media messages that I use are based on my experience and peer-reviewed science.

Sandra: Alex’s co-panellist, Catherine Stewart of Living Oceans Society, jumped in at this point. 

Catherine Stewart: I believe DFO’s communication plan indicates that they were trying to find the most effective, clear and informative and impressive way of communicating as well. It’s standard across the board, I think.  

Sandra: I listened to hours of tape of the inquiry. No other witnesses were questioned about their motives or actions.  Not even people from environmental groups who EXPLICITLY are activists for their cause, such as Watershed Watch, David Suzuki Foundation or the B.C. Wildlife Federation. Just Alex.     

Finally, it was Greg McDade’s turn. He was the lawyer for the coalition, which included Alex. Greg McDade asked Alex about the reading she had done in the database of documents that had been submitted to the inquiry — those 500,000 pages.  She had been asked by the inquiry to go through the database and pick out documents that were important for the inquiry’s mandate to find out what happened to the wild salmon. 

Greg McDade: As a result of all your research in the database and your extensive investigations, I gather you’ve got a perspective on the issues before the commission in terms of what’s happened to the sockeye since 1992 and, in fact, what happened to the sockeye in 2009, and you’ve prepared your evidence in written form. Can I have that marked as the next exhibit?

Sandra: Suddenly all the government and industry lawyers were on their feet — objecting in unison to Alex’s report becoming evidence.

Mitch Taylor: I'm objecting. I'll let others (indiscernible/overlapping speakers).

Greg McDade: I see my friend from the salmon farmers and the province on their feet as well.

Alan Blair: I'm objecting as well. For the record, Alan Blair, for the B.C. Salmon Farmers

Association.  

Clifton Prowse: I'm objecting as well, My Lord or Mr. Commissioner.

Sandra: The key objection was the document was simply Alex’s interpretation of the database. 

Mitch Taylor: This document, which we've reviewed, is Ms. Morton's own account or review of documentation that she's looked at. And she then puts her interpretation on the documents and her understanding and her views, and so forth. It is full of hearsay and speculation. So really, what it comes down to, it's not factual evidence. 

Alan Blair: The document's full of hearsay and speculation. There are science conclusions that she draws which are far beyond her expertise.  

Clifton Prowse: It's not a document that I submit qualifies as evidence in this hearing. So, I adopt the objections of my friend from Canada.

Sandra: But the lawyer for several environmental groups urged the commissioner to make it an exhibit. 

Ted Leadem: So it really goes to weight, it doesn't go to admissibility, so I'd ask you to allow it to be admitted. You, yourself can judge its probative value at the end of the day.

(Clapping) 

Brock Martland: Mr. Commissioner, I'm going to, through the court, ask members of the gallery simply to do their best — I appreciate it may be exciting, or it may not be — but I'll ask folks, nonetheless, to please abstain from making noise during these proceedings.

Sandra: Justice Cohen put Alex’s document into the category of “for identification purposes” — essentially a document that is not an exhibit would never become public. But the judge set it aside until he could read it. And in the meantime, Alex’s lawyer Greg McDade had to ask as many questions about it as possible, so he could get some of Alex’s information into the commission record. 

Alexandra: OK, here's my opportunity to tell this judge what is going o.? And these men are blocking me. They're blocking this information just like they blocked Kristi Miller. But when I look back at it, I wish now that I just started talking. And if they wanted to throw me off the stand, just do that. I should have not have answered their questions any longer about what college I went to, blah, blah, blah,

Sandra: Alex was frustrated. There were all these new details in the government documents that no one wanted to talk about. And if they didn’t talk about them, the documents wouldn’t be made public. Of the half a million documents, only those entered as exhibits would be public. One area of new information was the work of Fisheries and Oceans scientist Kristi Miller. Her research on the health of wild salmon was groundbreaking.  

Alexandra: She went and looked at their immune systems, which nobody else was doing this very new science, [and] she realized the configuration of the immune system. Suggested that they were fighting a virus that was causing an infectious form of leukemia.

Sandra: This was not well-received inside DFO and Alex got the impression that …

Alexandra: Canada didn't really want to know.

Sandra: Kristi Miller is a molecular geneticist at DFO’s Pacific Research Station in Nanaimo. Her research builds upon the work of the Human Genome Project, which starting in the ’90s, mapped all of the human genes ’ known as the genome ’ over 13 years. That mapping technology has now been used to study animals and pathogens and diseases. It is the same technology used during COVID to identify variants of the disease. And it was used to develop the vaccines to fight it. Genomics is the reason scientists were able to move so fast during COVID. Kristi Miller used the technology to study what was happening to wild salmon. And she was there, at the Cohen Commission, to discuss her findings.

Kristi Miller: Correct. Our program really started in 2005. We started purchasing equipment in about 2004, but our genomics program got up and going in 2005. And as I've said, the program was developed in response to the lack of predictability on salmon in the return migration.  

Sandra: In January of 2011, just six months before this testimony, Kristi Miller published a study using this new technology in the Journal Science — one of the world’s leading science publications. Her team identified a health issue in fish that could be a virus. It could also have something to do with the Fraser River sockeye collapse.  

Sandra: At the Cohen Commission, Alex’s lawyer Greg McDade asked Kristi Miller about the period in 2009 when she was writing the paper. She was asked to give a presentation to an interdepartmental meeting about finding the unnamed pathogen. And it didn’t go well because she suggested fish farms could be playing a role in sicknesses in wild salmon. 

Greg McDade: Dr. Miller, it must have caused great consternation in the DFO when you put that paragraph in connecting it to aquaculture, in 2009. You got some blowback on that, didn't you?  

Kristi Miller: I would say there was concern, but I don't think there was a large pushback.  Greg: when I compare these two documents, we have the same five bullets and then a paragraph, and in document two, we have the same five bullets and no paragraph. It seems to have miraculously disappeared. Was that because of pressure you received inside the department?  

Kristi:  I think there was some concern over the speculative nature of that comment in the first one. But I think that there was a lot of reluctance to take any action based on a genomic signature because people don’t understand what a genomic signature is and how well you can actually predict a mechanism from one. 

Sandra: Kristi Miller was in a unique position. She was an employee of Fisheries and Oceans.  

Alexandra: She has to be very careful about talking to anybody on the outside because DFO has been so afraid of the power of her science because it cuts through the noise and the politics and because it's reading the actual immune system of the fish. It’s very honest. 

Sandra: And it couldn’t have helped that every day she testified at the inquiry she had two big DFO security men with her. They walked her in and out of the building. 

Greg: The guys in black suits with little mikes in their ears, I don't know what they were or not, but … if you'd seen it, you'd draw that conclusion. I think they were protecting her  or they were ensuring that she didn't stray, colour outside the lines.

Sandra: Greg McDade believed the men were handlers — to keep an eye on what Kristi Miller said on the stand and to prevent her from having any conversations or doing any interviews. Kristi Miller has confirmed that. 

Kristi Miller was questioned extensively about her research paper. What was new was the idea that it wasn’t river conditions that were making the fish sick. 

Kristi: A lot of the research has been focused on the river, the temperature of the water, pathogens they pick up when they enter the river. This is the first study that says, "Look, this could be a pathogen that they carry in with them into the river, not simply something that's picked up in the river, that might also be undermining their performance."

Sandra: Kristi Miller’s research team could tell the injuries in the fish were not because of stress or toxicants. The damage Kristi Miller’s team saw was in many tissues but not throughout the body. For example, they were seeing strong effects on brain and gill tissue, but no effect on the liver. This, Kristi Miller said, is associated with a pathogen. 

Lawyer Greg McDade turned to Dr. Garver, Kristi Miller’s colleague and supervisor at the Pacific Biological Station in Nanaimo. He asked him why he wouldn’t want to take action after learning about her discovery. 

Greg McDade: Now, Dr. Garver, Dr. Miller strikes me as a relatively level-headed person, not prone to Chicken Little "the sky is falling" material. When a senior scientist at your department says potentially devastating impacts, what level of certainty do you need about a potentially devastating impact to the sockeye salmon to actually take action rather than more studies? 

Kyle Garver: We're following a scientific approach. So, we need to establish that this sequence is indeed causing a disease.  

Greg: Well, Dr. Miller was at least hypothesizing that some 27 million salmon might have died from this in 2008. Wouldn't that be something that you would take some action about? 

Kyle: And that is indeed what we're doing, we're researching whether this sequence causes disease. 

Sandra:  Greg McDade didn’t ask about the precautionary principle, but his questions suggested it. The precautionary principle is a guide to follow in making decisions about health and safety. If there is evidence that the environment or human health may be at risk from something, there is a responsibility — particularly on governments and government agencies — to err on the side of caution. That means if there is a risk, or if all the proof isn’t in yet, you have to take the action that is the least risky. Greg McDade was clearly trying to find out where Kyle Garver thought the precautionary principle should be applied. 

Greg: Do you have any guide in your department that suggests that you should take action in the absence of final proof? What level of risk does it take to actually start doing something?

Kyle: I believe we are doing quite a bit. 

Greg: Well, let me ask … let me change gears again then. One of the things I'm interested in is in 2008 and 2009 when Dr. Miller was raising the level of concern about this potential virus, she wanted to test in the fish farms … and you resisted that, didn't you?  

Kyle: I didn't resist testing.

Sandra: Greg McDade turned to Kristi Miller and asked her why she didn’t test fish farm fish.

Kristi: It was very difficult to get across to the fish health community what is a genomic signature, the battle really was, until you have a etiological agent, we really can’t ask industry to test. 

Sandra: So, she’s saying unless the risk was proven, she, as a Fisheries and Oceans scientist, couldn’t test fish farm salmon. Kristi Miller had continued her research on the disease after her paper was published in the science journal. And by the time she appeared at the inquiry, her team knew they had a virus on their hands. They just didn’t know which one. 

Kristi: We have identified a novel virus, meaning it hasn't been seen before. 

Greg: If it turns out to be the virus and if it turns out to have the mortality that you've speculated about, could that be a very, very significant explanation for the 2009 decline? If in fact, that's the case, using the terminology that we heard yesterday, this, in fact, may be the smoking gun for the 2009 declines? 

Kristi: It could be the smoking gun.

Sandra: And not just the smoking gun for the 2009 decline. 

Greg: But the key issue about the timing here, that's a behaviour that goes back to the early '90s? 

Kristi: Yes, 1996, really. The early-entry behaviour in sockeye salmon started in 1996. 

Greg: Right. And so that would have been the generation of the brood stock from 1992?

Kristi: That's correct.

Sandra: Kristi Miller was able to do genetic testing of fish samples going back to the 1990s. The new technology was able to reveal information about the health of fish two decades ago. Discovering that the signs of ill health in wild salmon could be seen so far back was not just important to the 2009 fishery collapse, but it could reveal the cause of the downward spiral of the Pacific salmon for 20 years.

It was the kind of discovery that would be of interest to the scientific community and would likely prompt others to do more genetic research. And a researcher would be getting calls from the media to explain the paper and what it meant. Kristi Miller was asked by commission lawyer Jennifer Chan whether she did media interviews about such an important discovery.

Kristi: I'm not to speak to the public because of the ongoing inquiry. I am free to speak with colleagues and other scientists, and I have been able to attend some scientific meetings. Jennifer Chan: Have you ever been told not to attend a scientific meeting? 

Kristi: Yes. 

Jennifer: And when was that?  

Kristi: Well, it was really a think tank, an SFU think tank, but it wasn't me exclusively. DFO decided that nobody, no scientist from DFO, was to attend that meeting.  

Sandra: The lawyer for Fisheries and Oceans Mitch Taylor  jumped on this issue. 

Mitch Taylor: Do you have an understanding of why that's so? Why the DFO scientists right now are not to speak with the public or give public interviews? 

Kristi: Well, I mean, what we have been told is that we're not to speak about our findings until we testify here in the Cohen inquiry. I don't know at what point that ban in speaking to the public will be lifted. I don't believe it is lifted yet. 

Sandra: Lawyer Tim Leadem represented several environmental groups that at the Cohen Commission were given the name Conservation Coalition. He asked Kristi Miller about word coming down from a senior DFO manager that she could not go to meetings, think tanks by universities, etc., organized by non-DFO people. He read from an email Kristi Miller had written to a colleague.

Tim Leadem: You say, “Here are my proposed revisions. FYI, in case you do not already know, Laura does not want me to attend any of the sockeye salmon workshops that are not run by DFO for fear that we will not be able to control the way the disease issue could be construed in the press. I worry that this approach of saying nothing will backfire.”

Sandra: When DFO manager Dr. Laura Richards testified about the gag order.

Tim: Dr. Richards has already testified about this. The question is can you comment on this and she responded, “Well, that’s very much a misrepresentation.” You would not agree that’s a misrepresentation of what you heard from Dr. Richards would you?  

Kristi: What I would not have known at the time was whose decision that was. I only learned through the inquiry process that the decision of not allowing me to speak to the press after the Science paper came out, came out of the Privy Council office and not from DFO.

Sandra: The Privy Council office works for the prime minister, so the gag order came from, or was at least approved by, Prime Minister Stephen Harper. 

Alexandra: It's really rare in science that you get a signal that strong. The Prime Minister's Office stopped this woman scientist, Dr. Kristi Miller, from talking to the media and also took away her funding. End of subject, no more research. She discovered what was going on with those fish, but Canada didn't really want to know.

Sandra: Kristi Miller told the inquiry of her irritation over the gag order. 

Kristi: It was very frustrating to watch some of the media reports that came out. My colleagues at UBC did their utmost to talk to the media and inform them on the key messages in the paper, but they weren't genomics experts. And I had to sit back and watch the media take it in directions that I wouldn't have wanted it to go. And so those are the kinds of things that I found frustrating in this process, but I had to abide by the rules.

Sandra: Many people were shocked at the news. But for scientists, journalists and environmental groups, it was just one more example of the Harper government controlling science information. The science didn’t have to be considered controversial or political for the bureaucrats to find a reason to forbid an interview under the government’s rigid policy.  

Sandra: Rick Routledge was a professor and researcher at Simon Fraser University in Vancouver working across the biology and ecology departments. He’s now retired. In the spring of 2011, as the Cohen inquiry was working through technical sessions, Rick was struggling with the shortage of salmon for a graduate student’s experiment.  

Rick Routledge: What had happened? Why were they so few just coming down the inlet?. So I remember making up a little checklist and talking to Alex about it.   

Alexandra:  And I said, “Well, have you ever thought about testing them for infectious salmon anemia virus?”

Rick: And she said, “Well, why don't you send some samples off and get tested for ISAV?” It was actually, I think if I remember correctly, at the bottom of my list.  

Alexandra: And I couldn't tell him why because before the actual hearings on aquaculture, all of what I was seeing was confidential.

Sandra: Alex had seen in the Cohen database that the fish farm industry had been asking the province’s veterinarian Gary Marty to test their salmon for this virus. She had seen reports where over and over again the veterinarian described finding the signs of ISA virus, but full testing and a diagnosis was never done. So, she thought it might be a good idea for Rick Routledge to test for the virus. Then Alex forgot about her conversation with Rick Routledge. She was busy with the Cohen inquiry.

Alexandra: He called me one evening and he said, “You better be sitting down. I sent those samples in and we've gotten back positive results.” 

Sandra: You can’t tell how many fish are infected because weak fish get picked off by bears and seals and whales.  

Rick: The fact that we found hardly any fish that were infected way up the Fraser River somewhere doesn't mean that it's not a problem for those fish. It could very well have been a very serious problem for the fish that didn't make it.

Sandra: Alex knew a couple of things about this virus. First of all, it was devastating. 

Alexandra: Well, because in 2007, the virus was introduced to Chile. Now, Chile doesn't have a natural population of wild salmon, but the virus just ripped through the farmed salmon. They're causing over $1 billion in damages to the salmon farming industry.

Sandra: The second point is that its destructive ability makes ISAV an internationally reportable disease. When it is found in a fish farm, all the fish must be destroyed so the disease can be stopped before it spreads. Rick was just as shocked at the test results.  The disease had already been found on Canada’s East Coast fish farms, and now, it was in B.C. 

Rick: I thought DFO would rush up, they would get some more samples out of rivers and maybe some other places. And the presence of the virus would be confirmed if it really was there to be confirmed and then the situation would be dealt with properly. Of course, that's not what happened. Alex was more savvy than me.

Sandra: Alex knew it would be important to have the results confirmed by other labs. She sent Rick’s samples to a lab in Norway, to one in P.E.I. and to Kristi Miller’s lab in Nanaimo. 

Alexandra: As soon as I heard this, I took those samples and I divided them up. I knew they were going to be taken away from me. I divided them up and — boom — sent them to Norway. And I watched that FedEx package travel across the world. I kept checking to make sure that it actually got there. 

Sandra: And on the Monday after getting the results, Rick held a news conference to talk about his test results. The government response to the news conference was a bit unsettling for Rick. 

Rick: Uh, very soon, I got a call from the CFIA. They wanted my samples and I thought that it was required by law of me and that it was the appropriate, responsible thing to do.

Sandra: The CFIA is the Canadian Food Inspection Agency, and its job is to protect Canada’s food supply. The Cohen Commission was just wrapping up when news of Rick’s test results became public.   

Rick: And I had been called down by the commission lawyers to have a chat with them. 

Sandra: Justice Cohen announced he would have three more days of hearings to learn about these test results — that were now coming from several labs. Those three days would reveal that ISAV was not new to Fisheries and Oceans.  Fisheries and Oceans knew about a group of tests that found ISAV back in 2003. Not only was it not reported, but there was no followup to determine if there was a bigger problem. 

Sandra: Very quickly, the issue became “were the test results important?” The samples Alex had sent to other labs all came back positive. Then tests were done at a DFO lab in Moncton, New Brunswick, and by the Canadian Food Inspection Agency. Those tests did not come back positive. So, five labs tested, and the results were three to two in finding the virus. There was a problem. The fish samples were not in the best shape and so there wasn’t a lot of good tissue to test. The Canadian Food Inspection Agency tested tissue from a different part of the body than the other three labs. And the DFO lab in Moncton used a completely different test method. 

Alexandra: Everybody who tested my samples got the same result: weak positive. They were weak because you were dealing with incredibly suboptimal samples. To get the full ISA virus, you need to go to the farm, and you need to get one of those fish that Dr. Gary Marty said had the classic symptoms of ISA virus. That's where everybody should have gone. Grab some of those fish, divvy the samples up to all the labs and let's see what everybody gets. But oh, no, instead it was this lab’s wrong, this lab’s wrong, this lab’s wrong. 

Sandra: Other information was revealed that suggested ISAV may have been found in fish back in 2003. Molly Kibenge was a postdoctoral student working at the DFO station in Nanaimo when she found the virus. She wrote a paper and wanted to publish, but her supervisor at the station suggested her results weren’t strong enough because that same DFO lab in Moncton had not found a positive result. Lawyer Greg McDade provided internal emails and a copy of the paper. It revealed Molly Kibenge was told her results weren’t verifiable and she shouldn’t publish a paper.

Her supervisor Simon Jones was asked why he didn’t at least follow up on Molly’s work. 

Simon Jones: This is how it works.  

Greg McDade: This is significant, though, ISAV in wild salmon. Did you at least go and do more testing? Isn't that what scientists do when they have uncertain results? They test a bunch more salmon?  

Simon: Well, scientists do a lot of things, and one of the most important things we do is be very critical of what we're finding. We're … we have to be necessarily critical and skeptical, especially of unexpected findings, particularly when it relates to the occurrence of the first time of a highly virulent pathogenic organism in an area that's not been reported before. We have to be critical and skeptical.

Sandra: So once again, a risk to wild salmon surfaced and Fisheries and Oceans didn’t follow up. Why would government agencies whose job it is to protect wild salmon and Canada’s food ignore these findings? Kim Klotins of the Canadian Food Inspection Agency made it clear to the inquiry what was at risk.

Kim Klotins: Let’s say we do find ISA in B.C., and all of a sudden, markets are closed. Then there will be no trade, basically.

Sandra: And DFO hadn’t given Justice Cohen the documents on this issue until after Rick Routledge held his news conference about his test results. Lawyer Greg McDade thought the government would punish the lab that first reported the positive results — the lab in P.E.I. led by Molly Kibenge’s husband, Fred Kibenge. Greg McDade made a bold prediction and asked Stephen Stephen, the director of biotechnology and aquatic animal health at Fisheries and Oceans, to agree with him. 

Greg: Dr. Kibenge had the temerity to announce positive test results and as a result, his

lab is being analyzed by you. And Mr. Stephen, I suggest to you that the federal government is going to try and take away his OIE certification as a punishment for this. I predict within the next 12 months, Canada will go after his credibility. Isn’t that right?

Stephen Stephen: I disagree. 

Sandra:  Less than a year later, the Canadian Food Inspection Agency wrote to the international agency suggesting it strip Fred Kibenge of his world reference lab status. The agency said an audit it conducted showed serious deficiencies. The international agency did do its own audit and, in 2013, it removed the international certification from the P.E.I. lab.  

Sandra: Weeks after her testimony, Alex’s document, detailing her findings in the government dossier, did become an exhibit. But she’ll never know for sure how much of an impact it had. Justice Bruce Cohen released his report at the end of October 2012. Three volumes. Almost 1,200 pages. With 75 recommendations. Justice Cohen was clear he found no definitive answer to the decline of the wild salmon. 

Justice Bruce Cohen: Going back to the long-term decline, some, I suspect, hoped that our investigation would find “the smoking gun” — a single cause that explained the two-decade decline in productivity. That notion is appealing, but improbable.

Sandra: The Globe and Mail called the recommendations, “Justice Cohen’s recipe for change.” And it was a recipe. And if it was followed, it had the potential to make a significant improvement in the health of wild salmon. For example, recommendation number 1 said the ball stopped at Fisheries and Oceans. It was the ultimate authority for making decisions on the management and protection of the wild fishery.  Recommendation number 2 addressed a major issue that many believed had been clearly revealed in the inquiry — the conflict of interest.  

Bruce Cohen: In my respectful view, when DFO has simultaneous mandates to conserve wild stocks and promote the salmon farming industry, there are circumstances in which it may find itself in a conflict of interest because of divided loyalties. And in my view, it is of concern when their priority is to conserve wild stocks, while at the same time they may be promoting an industry that's having an impact on wild stocks. 

Sandra: Justice Cohen laid some blame at DFO’s feet. He said the department had known for years that the wild salmon population was declining and has done very little to look into it. He said DFO should do more research and force the fish farms to give the department fish samples to test for disease. He suggested DFO stop promoting aquaculture and give that job to another agency. He said DFO should end fish farms in the Discovery Islands by September 2020 unless it could show that the industry poses a minimal risk of harm to the wild salmon that migrate past the farms. And he recommended a freeze on new fish farms in the Discovery Islands.

Many people wondered what he meant by minimal risk. Justice Cohen said he hoped the new research he recommended would help define it. 

Bruce Cohen: And, in due course, when we see what that research tells us, I think at that time, determination will be made about what is minimal in the context of the knowledge that's brought forward through that research. We need to have that information so that the public can assess and be satisfied that the word “minimal” is, in fact, a real term in connection with the protection of the wild stocks.

Sandra: That term “minimal risk” became controversial over the years because it allowed people for and against fish farms to define it.  For Alex, her first look at the report gave her hope something would change. 

Alexandra: I was happy, and I actually sent an email to one of the commissioners there and I said, “Could you please pass a note to Justice Bruce Cohen and tell him: ‘Justice Cohen, ou rock!’” I knew that the fight was not over because these were only recommendations. 

MUSIC THEME

Sandra: Next time The Skull and Crossbones Offer.

Alexandra: You know the Sea Shepherd Society, I think, is fabulous. And I think there really are organizations that need to put themselves on the front line. But I didn't see myself as taking that role and I saw my association with them as dangerous.

       

CREDITS:  

Sandra: The Salmon People podcast is researched, written, and produced by me, Sandra Bartlett.  It is a co-production with Canada’s National Observer. 

Story editing by My Frozen Headphones Production.  

Sound engineering by Damian Kearns and Ben Ramos-Salsberg. 

Special thanks to Scott Renyard for the Cohen inquiry material. Check out his website 

The Green Channel.  

And it would be great if you could give us a five-star rating and maybe even leave a comment. That helps others find us.