The ADDs live on!

 Following the recent report from Environmental Standards Scotland I submitted a Freedom of Information Request in order to find out the procedure in terms of which an operator of a fish farm could get permission to operate an Acoustic Deterrent Device, otherwise a sea scarer, WITHOUT applying for a licence.

The answer came today, referring to an FAQ page on Marine Scotland. The relevant paragraph reads:

“5. Do I need to apply for an EPS licence?

It is your responsibility as the fish farm operator to determine whether you need to apply for an EPS licence. However given current scientific advice, it is likely that an EPS licence will be required for all currently available ADDs unless you can demonstrate that the device(s) operating at your site will not cause disturbance to cetaceans. If you are using or intend to use ADDs at your site and consider that the device(s) will not cause disturbance to cetaceans, evidence of this must be submitted to Marine Scotland - Licensing Operations Team (“MS-LOT”) at MS.MarineLicensing@gov.scot. This evidence should include a robust assessment of the numbers of cetaceans likely to be disturbed using the best available estimates of cetacean abundance and distribution for the site, alongside underwater noise propagation modelling that accounts for local environmental conditions. If your assessment concludes that less than one individual of a cetacean species will be disturbed MS-LOT may be able to confirm that an EPS licence is not required following consultation with Marine Scotland Science (“MSS”).”

It remains a complete mystery how anyone could prove that less than one, i.e. NO, cetaceans would be harmed by using a device the use of which inevitably does precisely that!

I also asked if there would be a list of applications and indeed there is, on Marine Scotland Information.

I just checked and as at today there are NO applications to use an ADD without a licence, but ONE for a licence, by Kames Fish Farming in respect of SIX sites:

North Moine, Shuna Castle, Kames Bay East, Kames Bay West, Ardifuir and Pooltiel West

The application is still current, so who knows what’s going on!?

This is the first Summer that Dolphins and Porpoise and even an occasional whale have been spotted in places including Seil, Shuna and Melfort, perhaps due to the use of ADDs having been abandoned.

So, today’s question is why does the locally owned company Kames Fish Farming, among all the operators on the West Coast, uniquely believe that it needs to harass protected species?

Like

Comment

Share

Let's hope this is the end for Acoustic Deterrent Devices!

Last week saw an absolutely massive victory for all those who have campaigned for years to stop the illegal harassment of whales, dolphins and porpoise in our inshore waters. Environmental Standards Scotland have produced a report confirming not only that fish farm companies have been committing offences by their use of seal screeching devices but that they have been doing so with the knowledge and the tacit approval of Marine Scotland.

Let that sink in.

Marine Scotland, a branch of the civil service in Scotland and the governmental body in sole charge of protecting our marine environment, has been deliberately and cynically turning a blind eye to active criminality by the largely foreign owned companies who use our waters for the industrial production of salmon.

On 25 November 2019 a group of concerned citizens, all members of Coastal Communities Network, met with senior civil servants at Marine Scotland and sat in disbelief as we were lied to. In a nutshell:

(first) the use of a seal screecher (ADD) in Scotland is illegal in the absence of a licence from Marine Scotland

(second) licences cannot be granted, because their use inevitably “harasses or disturbs” protected species such as whales, dolphins or porpoise. (Only where there is no alternative will a licence be granted, e.g. temporary harbour works. Fish farms have other options.)

(third) Marine Scotland responded to this by turning a blind eye to wholesale criminality.

My subsequent letter to the Lord Advocate was passed to the very civil servant who spoke at that meeting!

Huge thanks to David Ainsley and Jean Ainsley at Sealife Adventures, also to Guy Linley-Adams and Coastal Communities Network.

More about this can be found in previous posts on this blog.

The full ESS report can be accessed here:

Environmental Standards Reporthttps://www.environmentalstandards.scot/wp-content/uploads/2022/08/Environmental-Standards-Scotland-ADD-Informal-Resolution-Report.pdf

PS For the curious: Does anyone wonder if there was any pressure put on those civil servants to tell lies by a certain Scottish Government Minister?

SLAPPS - STRATEGIC LAWSUITS AGAINST PUBLIC PARTICIPATION

 

In recent years many Western countries have seen our law courts used by the very rich and powerful, many (most?) of whom have gained their wealth through means they would prefer the public didn’t know about, to silence those who have been looking too closely.

Perhaps the most recent and widely publicised case of this recently has been the English case brought by Arron Banks against Carole Cadwallader, claiming damages for libel in respect of some remarks she made hinting that he might have had some Russian connections. What we know about Mr Banks suggests that he is a very wealthy fellow indeed, whereas his target was a well-known and very active investigative journalist, a career that is more likely to get you shot than to gather wealth.

Instead of suing the media who published his target's remarks, Ted Talks and the Guardian, he attacked her personally. As we know, she has successfully defended herself, but at enormous personal and emotional cost and huge expenditure, funded by outraged citizens who rallied to help at a time when everyone is under strain.

The case illustrates a prime feature of a SLAPP; there is usually a huge imbalance of financial muscle. In addition to this, classic features are:

The case is brought by an individual or corporation with something to hide.

As it says on the tin, the target is public participation in the exposure of wrongdoing.

The remedy is usually disproportionate and the costs enormous.

There is often no basis whatsoever for the case, or perhaps the case is mainly, but not entirely, unfounded. Often there is no damage of the sort a court will regard as appropriate for compensation; by that I mean reputational damage caused by the disclosure of criminal or some other gross misconduct. In Mr Banks’ case his links with various Russian individuals were already well known and indeed had been publicised by himself.

SLAPPs first came to public attention in the late 1980s in the United States, famously the land of the free, including the Constitutional right to freedom of speech. Judges were recognising court cases that breached this right, with an early case going to the New York Supreme Court. The ruling was based not on any statute, but on the common law power of judges to throw out cases they considered vexatious.

Following the New York case, legislators there and elsewhere got interested. Currently there is legislation in thirty one States in America, plus Quebec, British Columbia and Ontario in Canada, plus the Australian Capital Territory.

In other jurisdictions it’s still down to judges deeming cases to be vexatious. This happened in the South African case of Mineral Sands, where attorneys got sued. In the Republic of Ireland a decision is awaited in a major case re a Dublin housing development, where a property developer is suing.

The advantage of legislation, apart from respecting democratic lawmaking, is to have clear rules about what is allowed for judges to follow. The European Commission has recognised this and has a team of experts working on a draft Directive that will basically define what is a SLAPP and set out detailed rules.

Sadly, it’s because of another “Brexit benefit” that the Scottish legal system will have to rely on the judge made power re vexatious litigations. Also, here it’s mainly been used by powerful people and even the State to silence folk like Robbie the Pict.

If you’re wondering how this is all relevant to the West Coast, according to what has been published in the Oban Times and elsewhere on social media it seems that we have one of the first Scottish SLAPPs here on our doorstep in Oban Sheriff Court.

MOWI, one of the biggest salmon farming companies in the World, are suing the lone environmental activist Don Staniford to stop him from taking photographs of what he claims are instances of animal welfare abuse, mortality and pollution in their sites. To do this they are seeking to place exclusion zones around each and every one of their dozens of fish farms.

Let’s look at the defining features of a SLAPP, as identified above.

Brought by a corporation with something to hide? Well, some of Staniford’s photographs are not pretty.

A huge imbalance of money? Tick.

A basis for the case? This one is very interesting and extremely important to every one of us who ventures, as I do, onto the water in a small boat. I suggest that there can be no basis whatsoever for excluding anyone from being on the open sea.

Since King Cnut demonstrated to his people, about a thousand years ago, it’s been recognised that nobody can control the sea. Less whimsically, the rights that we all, as members of the public have, to navigate on the surface of the sea are absolutely fundamental to our constitutional law. You can check the position here:

Scottish Law Commission

The Crown Estate may give an individual, or a company, a licence to place an anchor on the seabed, but they do not have the power to interfere with what goes on above. Legally they hold the seabed, a public asset, in trust for all of us and they cannot violate that trust. Indeed, the licences they give out expressly reserve the rights of Her Majesty and all the rest of us. We have rights not just to navigate, but to fish, to swim and for recreation and leisure.

As we now have something approaching two hundred massive floating installations along the “Aquaculture Coast” this case has huge implications. Already we are seeing the companies placing lines of buoys well outside the actual fish cages, in what looks like an act of colonialism. Make no mistake, with aquaculture we’re seeing a Twenty first Century land grab!

Grateful thanks to The European Circuit for the seminar on 11 July, with speakers Dr Roya Sangi, Paul McGarry SC, Greg Callus QC and Nick Vineall QC

Land Farms and Sea "Farms"?

 This week the Ferret has published figures which should shock everyone, about the massive increase in fish farm pollutants and the use of pesticides and antibiotics in recent years. The figures would be incredible, but result from reporting by the aquaculture companies themselves and are taken from Scottish Government and SEPA databases.

“The latest official pollution inventory reveals that discharges of carbon, nitrogen, phosphorus and zinc from salmon cages rose by more than 4,000 tonnes between 2019 and 2020. Overall emissions of pesticides used to kill sea lice also increased by 45 kilograms.”

In response to my tweet about this an industry apologist posted a graph showing the use of chemicals in land agriculture, for “context” in what he no doubt assumed was a gotcha, but he has only underlined once again the total difference between landbased and seabased activities. Of course, it’s by no means a given that practices in agriculture are 100% environmentally friendly. I’ll leave the argument about that to others.

I’ll also leave it for another day to discuss the fact that if farmers routinely saw up to 82% of their stock of mature cows dying off due to disease, the resultant piles of rotting corpses at the sides of fields would surely provoke public outcry. With aquaculture the facts only come to light occasionally, for example late last year when several hundred tonnes of dead salmon were taken off Gigha for ensiling, resulting in the ferry terminal being seriously affected by stink and mess, an event that would have gone unnoticed in official circles had not the dedicated Corin Smith been on hand with his drone.

https://www.facebook.com/issf.org.uk/videos/931620917461828

My main issue with the land/sea comparison is simply that farms are invariably owned by someone, whereas the seabed is owned, in terms of title, by the Crown, but held in trust for all of us, the public. The difference is more that purely conceptual; in the case of a conventional farm there is always an owner, be it the farmer or a landlord, with a vested interest to ensure that an asset that may have belonged to, or held under a secure tenancy for generations, will remain productive and/or marketable for those to come along in future. Those who are currently exploiting our public seabed have no such interest whatsoever. Let’s look briefly at a couple of them.

The largest operator in Scotland is MOWI, until recently named Marine Harvest until it was renamed following adverse publicity. The name reflects the name of the original founder, Mr Mowinkel, although one hears that he may not have been completely delighted. The main owner is understood to be Mr Jon Fredriksen, about whom I’ll say no more (google him!).

Then, the owner until recently of “Scottish” Salmon Company Limited was Yuri Lopatinsky, about whom more has recently been in the Press.

Bluntly, can anyone imagine the private owner of a farm in Scotland giving a foreign oligarch the freedom to cover the fields with rotting faeces and unwanted feeding stuffs, rendering what was once fertile soil utterly anoxic and useless for cultivation for several lifetimes? That’s exactly what the Scottish Government, on our behalf, allows fish farm companies to do to the seabed.

Next up, the pesticides. Research commissioned by SEPA several years ago confirmed that one component, Emamectin Benzoate, which kills all crustaceans, was still active on the seabed four and a half years after a fish farm had ceased operations on the site in question. That’s become a benchmark; perhaps they’ll send the biologists back to do some more tests after what would now be ten years. This is important, because sealice, lobsters and crabs are all crustaceans, so what price traditional creeling?

Due to very a very lax (non) inspection system plus no checks whatever during lockdown and regulations actually relaxed due to it, the farms have been doing what they want.

Yes, 45 Kilos of deadly poison is an awful lot to dump on someone else’s property!

@FerretScot @HI_Voices

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.

0 comments

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

Fresh water lochs suffer in the cause of aquaculture

There's a current application to legitimise the smolt growing facility at Loch Tralaig, under reference 21/02612/CLAWU. I have written to our politicians as follows:

Good Morning, MSPs and Councillors

This message concerns a current planning application in respect of Loch Tralaig, a small fresh water loch in mid Argyll near to Kilmelford, where I live, but it raises issues that should concern all of us with an interest in the environment.

In 1991 Kames Fish Farming Limited, then a fairly new company, obtained planning consent to operate smolt growing facilities in three lochs, Tralaig, Losgain Mor and Avich. A copy of the consent for Loch Tralaig is annexed and you will see that it was limited to a period of six years, after which it was envisaged that a further consent might be granted, after an environmental assessment had been made. The same condition appeared in the other consents.

Officials at Argyll & Bute Council failed to notice the expiry of the period in 1997, nor did Kames bring it to their attention. The result was that smolt growing has continued in the three lochs, more or less continuously, for the period to date, thirtyone years. There are indications that cages may even have been in position prior to 1991.

For confirmation of the error I quote from an email I received from the Council in 2020:

“In eventuality, and for reasons I have not been able to establish – all of the involved persons having long left the employment of Argyll and Bute Council – this planning condition was not acted upon when it was first breached in November 1997. In fact, this breach did not come to light until at some point in late 2019 by which time the operations had likely gained ‘immunity’ from any planning enforcement action the Council may have wished to take. Nevertheless, the planning authority took this matter up with the operator of the fish farm as soon as the breach of condition was realised. The subsequent application was made in order to support a claim by Kames Fish Farming Limited that their operations were, by that point in time, lawful.”

Having operated on the three sites for more than ten years Kames had applied in 2020 for a certificate of lawful use in respect of Loch na Losgain Mor. Being fully aware of the position the Council found itself in, basically that in law they had no option but to grant the certificate, I wrote to them asking them to request Kames to agree to carry out the environmental test that they had, after all, agreed to in 1991. The Argyll & Bute planners did not agree to make this simple request and went ahead to grant the consent.

Thus a provision that was designed to enable householders to legitimise things like garden sheds was used to avoid an environmental assessment.

To those of us who know and love these lochs this was a troubling development. I do not fish, but understand anecdotally that none of the three lochs now supports the range and numbers of wild fish that formerly grew there. That would of course have become clear had there been an assessment.

Worse by far was the possibility that in three decades of the constant dropping of fish faeces and uneaten food the loch beds may have become irrecoverably polluted by waste. Two of the lochs, Losgain Mor and Tralaig, feature hydro electric schemes. The former is now privately owned by the landowner, who lives in Cornwall, and is still in use, providing him with no doubt welcome income. I believe the one at Loch Tralaig is, along with part of the alveus and adjoining land, owned by SSE. It is no longer in use, but the dam is still in position, seriously restricting flushing.

Accordingly, in April of last year some concerned friends and I decided to visit Loch Tralaig and carry out an inspection using an underwater camera. The resulting film can be viewed here:

A dead loch

This was filmed near to the edge of one of the cages. You will see that the bed is covered in what appears to be inert, anoxic waste to some depth.

A separate environmental issue is the considerable use of Formaldehyde in recent years. Formaldehyde is a highly toxic chemical with a history of use in disinfection and serious industrial cleaning. It is a carcinogen and industry guidance for its use requires operatives to wear protective clothing. In recent years operators of fish farms have been experimenting with its use in dealing with saprolegnia, a fungal condition which typically affects fish kept in fresh water, such as aquariums and in their case cages in our fresh water lochs, where salmon smolts are grown for eventual transmission into open cages in the sea.

No doubt as a result of industry lobbying the Scottish Environmental Protection Agency decided to allow its use, with companies having an obligation to disclose how much they were using. The figures reported by the various companies operating in Scotland owned up to a total of 22.4 tonnes of poison being poured into ten Scottish fresh water lochs between April and December 2019. I am unable to get detailed, recent figures due to the collapse of the SEPA database but no doubt the applicants will be able to inform you of the quantities used.

In May The Ferret drew attention to the issue in a clear, hard hitting article that can be accessed here:

Formaldehyde in fresh water lochs

My purpose in writing is to ask you to write to Argyll & Bute Council quoting reference 21/02612/CLAWU, asking that they consider asking Kames to comply with what they agreed to in 1991, not out of legal obligation, but simply out of the concern that everyone of us should have for our natural environment.