Now for Goliath versus David!

Towards the end of last year there were brief reports in the Press about the case that has been raised in Oban Sheriff Court by the Norwegian MOWI fish farming giant against the environmental activist Don Staniford. To describe the case as a modern day Goliath versus David would be an understatement. It’s likely that battle will be joined sometime later this year and this post is just a quick update on what I’ve heard.

MOWI are one of the largest operators of industrial battery farming salmon units in the World, largely owned by Jon Fredriksen, described on Wikipedia as “a Norwegian-born Cypriot oil tanker and shipping billionaire businessman based in London.” By contrast Don Staniford is well known as a lone operator, who relies on practical and occasional financial support from concerned individuals, who appreciate his efforts in exposing the dark side of fish farming.

While the MOWI public relations machine tries to portray Don and the few others doing the same work as mini Greenpeace operations the precise opposite is true. Despite the claim made by industry spokesman and former LibDem MSP Tavish Scott that he is in the pay of anonymous foreign evildoers there is no evidence that he is anything other than what he says he is, a man who from a background of studying marine biology has dedicated his life to the environment, at great personal cost.

I admit to being a friend of Don, whom I met shortly after he returned to Scotland from spells in Canada and Norway and subsequently on various occasions when his activities have brought him to mid Argyll. I have been impressed at the depth of his research, his dedication and the care he takes with important matters such as, when gathering data, the safety of himself and others, the avoidance of causing distress and any cross transmission of infection. In particular his custom is not to go near sites when fish farm staff are already on them.

I do not have access to the papers lodged by MOWI in court and would be prohibited by law from reporting anything if I had been. However, it is clear that, bluntly put, MOWI are seeking to place extensive “exclusion zones” around each and every one of their over one hundred installations on the open waters of our West coast.

While you may not agree with what Don and his fellow activists are doing, I would ask you to reflect on the utter enormity of this for all of us as citizens. It is well established as a matter of our constitutional law that the seabed is held in trust under the Crown for all of us and that as members of the public we have certain rights, the principal of which are of free passage over the open sea, to fish and to use our coastal waters for leisure and recreation. Operators of fish farms are allowed to place the cage anchors in position on the seabed only in terms of leases which expressly reserve these rights to all of us.

The case raises issues of major constitutional importance regarding the safeguarding of one of Scotland’s greatest assets, our extensive seabed and in particular the inshore waters of what is now often referred to as the aquaculture coast.

Please take a minute or two to reflect on the implications for everyone. There is no way that fish farm staff can tell if someone is out fishing, rowing, wild swimming, in a canoe enjoying the Mid Argyll Kayak Trail, or a deadly “eco warrior” intent on exposing an instance of animal abuse or the misuse of toxic chemicals.

In defending our freedoms ideas and publicity are as important as financial backing. Anyone wanting to discuss things further should feel free to contact me by direct message.

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Scotland's very own David versus Goliath

 William Louis Winans was a pretty disgusting fellow, the son of one of the first of America’s railroad multimillionaires, who from around 1860 lived mainly in Britain, with occasional trips to the rest of Europe, including Russia. He didn’t like people very much; on taking the lease of an expensive townhouse in London he took the one next door as well, to avoid having neighbours. He had a habit of booking all the seats at a performance, so that he and a couple of friends could watch the show without being troubled by the ordinary people.

We learned about him when studying international law, as after his death there was an argument about his domicile, to decide which country got the death duties. In support of the idea that he had kept his American domicile his family argued that despite having never returned it was only his fear of sea sickness that had kept him in, by this time, Scotland. They produced as evidence details of his cigar ship, which was supposed to take him back safely.

The posthumous litigation wasn't his only brush with Scots law, however. In 1882 he started renting shooting estates and by 1887 he had accumulated a total of over 220,000 acres, extending more or less across Scotland. On one of them, Morvich in Glen Shiel, lived a poor cottar and shoemaker, Murdoch Macrae, with his wife and family. One day he found a badly injured lamb, about three weeks old, and took it home where his wife nursed it back to health. For a time it stayed in the house, but eventually it became strong enough to venture out.

One day Mr Winans found the lamb on his land, which had no fences to keep straying animals out. He immediately sued Mr Macrae for an interdict, which, after an initial interim one was granted, went to debate before the local Sheriff. He refused it, on the basis that the lamb had caused no discernable damage.

Winans was of course enraged by this and had the interdict granted on appeal. One is tempted to wonder if perhaps the compliant Sheriff Principal, a senior QC, might have been thinking about a shooting holiday. Many were disgusted by this development, including Winans’ landlord, Mr Mackenzie of Kintail, who said that hadn’t believed the story when he first heard it.

It may surprise people that in those Victorian days, long before civil legal aid came in, lawyers saw it as their professional duty to devote time working for the poor with no expectation of payment. In fact this was still part of the tradition when I joined the profession in 1970 and remained until advertising came in and “pro bono” work became only a way of drumming up trade. Mind you, there are still some decent, ethical exceptions! Cottars were the poorest sector of society, owning nothing and doing what they could to survive. William Winans must have got a shock when his adversary was duly represented in Scotland’s highest court and again when Murdoch Macrae won the appeal.

Lord Young is one of my all time favourite judges, known for fairness and independence of mind. You can identify him in the famous group portrait in Parliament House, as he’s the only one without a huge cross on his robes. Essentially, the court ruled that there was no remedy in the absence of damage, “de minimis non curat lex”.

Winans v Macrae 1885, 22 SLR 692