Deliberately or Recklessly Harassing Wild Animals of a Protected Species

The heading is taken from the “Conservation (Natural Habitats, &c.) Regulations 1994”, which make offences of activities such as the seal shooting and the deafening of whales, porpoise and dolphins that are rife along Scotland’s West “Aquaculture Coast”. But each year since 1994 these practices have been going on, with dozens of seals shot and about 150 seal screechers, alias whale deafeners, in use. Read to the end to find out what’s going on; this long post ends with a surprise!

Before aquaculture arrived in force our coastal skerries were home to thousands of seals, while porpoises and dolphins were common and occasionally whales were seen close inshore. These were a significant part of the visitor experience Scotland was able to offer, keeping tourists returning and employing locals providing wild life tours and excursions.

When cages full of salmon arrived in their home territory it was for the seals as if Christmas had come not just early, but every day. With salmon cages consisting of just a single piece of netting, often not in the best condition, it was too easy for them to crash against the net, grab a bite of salmon and depart. The local companies reacted by shooting them, with the result that in most of the waters of, for example, Seil, Shuna and Melfort, seals are now only occasionally seen. It seems that only relatively inaccessible spots have been safe, for example in the Cuan Sound, where there are usually a few families hauling out.

From Day One there has been a very simple solution to the problem of seal predation, to fit a second net outside the inner one and tension both to keep them apart. The outer net can be of a very wide mesh, as it only needs to be seal proof, not salmon proof. Wildlife experts like David Ainsley have been campaigning for these to be made compulsory for years, but only a small number of operators have adopted them. They are of course significantly expensive and have to be properly maintained.

Public outcry, coupled with the activity of seal warriors such as Mark Carter’s Marine Concern, plus various petitions to the European Commission, resulted not in, as you might expect, shooting being banned, but in it’s being allowed under licence. Companies were now supposed to go through the motions of finding out which seals were “guilty” of trying to access their natural food in their own habitat and only condemn those ones to death. As with every other aspect of aquaculture regulation companies are trusted to be honest about this. It seems that some politicians do believe in fairies.

Given that there was a safe and humane option it’s strange that shooting was allowed to continue, even under licence. Operators realised that eventually it would be banned and started to develop an alternative, screeching devices to scare seals off by frightening them. There are now many different designs of these on the market, some emitting random and loud noises, some continuous ones. Generically they are referred to as Acoustic Deterrent Devices (ADDs).

By the way, there seem to be two problems with ADDs. First, there is growing evidence that they are actually useless and suggestions that there may even be a “dinner bell” effect. Second, there has been evidence for at least ten years that the use of ADDs deafens marine cetaceans that depend on their hearing for navigation and social interaction. While we don’t know for sure, it’s possible that this has been responsible for the increasing incidents of whale strandings along the aquaculture coast.

But isn’t deafening whales also “deliberately or recklessly harassing” a protected species? Of course it is!

Freedom of Information requests have shown that at any one time Marine Scotland have granted about fifty licences to disturb protected marine mammals in other industries such as the construction of offshore wind farms, harbour developments and oil rigs.

But not one has been issued to the operator of any fish farm.

The reason is simple, licences are only granted when disturbance is necessary and can’t be avoided. You simply won’t get a licence when you can keep the seals out by fitting the second net, as described above.

On 25 November 2019 a group of environmentalists met with Marine Scotland to explore our concerns that about 150 ADDs are currently in use on west coast fish farms, openly without any attempt at concealment and unlicensed. Operators are commonly obtaining planning consent to instal the devices and while it’s possible that they believe such consent obviates the need for a licence to use them there is no provision in any legislation to this effect. Permission to instal doesn’t equate in law to permission to use.

Scottish Natural Heritage were at the meeting. Their representative confirmed that a fish farm on Shetland had sought their advice, had been told the scientific truth about harm and had simply decided not to use ADDs. We left the meeting without any explanation.

Later we found that on 28 July 2017 Scottish Natural Heritage had given formal advice to Marine Scotland to the effect that “there is sufficient evidence, both empirical and modelled, to show that ADDs can cause disturbance and displacement of cetaceans”, based on the research commissioned by them entitled “Establishing the sensitivity of cetaceans and seals to acoustic deterrent devices in Scotland."

Subsequently I wrote to the Lord Advocate, reciting the above narrative and ending as follows:

“I respectfully suggest that you remind both Marine Scotland and Scottish Natural Heritage of their obligation to observe the law and that they be invited in turn to advise fish farm operators that they must discontinue the use of ADDs unless and until they are granted the appropriate licence.”

The reply came not from him, but from Marine Scotland, as follows:

“Thank you for your letter of 28 November 2019 to the Lord Advocate on behalf of members of the Coastal Communities Network regarding implementation of the EU Habitats Directive in relation to marine European Protected Species (EPS). As your letter concerns Marine Scotland’s work, I have been asked to respond.

I would like to reassure you that the Scottish Government is fully aware of its commitments under the EU Habitats Directive to provide strict protection to cetaceans in Scottish waters. I can further assure you that we continue to work closely with Scottish Natural Heritage (SNH) and other partners in reviewing evidence on the potential for impacts on cetaceans from ADDs, including the information presented in your correspondence.

You will appreciate that this is a complex issue and further work is required. That is why the Scottish Government is currently undertaking a comprehensive programme of work on this matter, including a review of the current regulation and management of ADDs at fish farms and an ongoing research project to gather information on the status and extent of ADDs use across Scottish fish farms. This work will help ensure that where ADDs are used, they are appropriately regulated, whilst minimising environmental impacts.

As the competent authority for aquaculture development, local planning authorities consider predator control measures, including ADDs, as part of the planning process, taking advice from SNH. ADD deployment plans are increasingly being adopted for new developments on the west coast of Scotland as a mitigation tool, and are often a condition on the planning permission. That said, the Scottish Government appreciates the need to consider the current regulatory framework covering ADD use, including the licensing process, which is being undertaken through its review.

The review will report to Scottish Ministers in 2020. The Scottish Government has already written to the aquaculture industry to inform them of the ongoing programme of work, including the regulatory review, and will do so again once the review has finished to inform them of its outcomes.

The research underpinning this review will provide the first comprehensive assessment of where and how ADDs are used at all fish farms across Scotland. This will enable better mapping of devices and inform the development of science-based industry guidance on the use of ADDs to ensure that any future use is in a manner that minimises disturbance to marine wildlife, including cetaceans. In parallel, we continue to work with industry, academic institutes and other countries to investigate the effectiveness of other non-lethal options to enable the industry to address the problem of seal predation.

I hope that you find this information helpful and provides the reassurances that you and other members of the Coastal Communities Network require.”

In Summary: It’s all fine, nothing to see, move on. No attempt was made to address the issue of legality. And why spend time and civil service resources on gathering information on “the status and extent of ADDs use across Scottish fish farms”, when simply reminding them to apply for licences would identify them?

We were left wondering what to do next. We can’t sue the Lord Advocate to make him act, nor can citizens prosecute fish farms privately. Judicial Review would be available if a farm actually got a licence, as that would be a “decision” of a public body that could be challenged in court within the statutory three month time limit. No applications means no decisions, means no judicial reviews!

Then, out of the murk came the American cavalry to the rescue!

Last week members of the Scottish Parliament's Environment Committee, the ECCLR, were surprised by a deputation from Marine Scotland giving evidence about a late amendment to the Animal Welfare Bill … banning seal shooting!

Since 2017 politicians and environmentalists alike have known that the United States has banned the importation of foodstuffs produced by methods involving cruelty to animals. Countries using such practices have been given until 1 January 2021 to amend their practices.

It’s inconceivable that Marine Scotland have only just become aware of this. Far more likely is that either the Scottish Government, or possibly that UK Government on its behalf, has been lobbying in attempts to obtain a derogation to allow practices such as seal shooting to continue. We may have just seen an early example of our politicians not having quite the clout they think they have, under the “Special Relationship”.

Opposition members of ECCLR were less than happy at the lateness and lack of a proper explanation. Mark Ruskell pointed out that the American law is wide enough to include ADDs and further clarity is awaited. He is absolutely right; while the deaths of a hundred or so seals a year is extremely unpleasant it doesn’t impact upon their survival as a species as much as does causing irremediable injury to already endangered cetaceans.