An important article from my legal friend Ewan Kennedy, now retired and living in Argyll.
Scotland is getting SLAPPed!
At the end of last year Iain was kind enough to publish my introduction to the curious world of SLAPPs, “Strategic Litigations Against Public Participation” and my article can be accessed here:
As discussed in more detail last December, the classic features of a SLAPP are:
The case is brought by an individual or corporation with something to hide.
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.
I promised readers that I would disclose details of the latest SLAPP case to land on our shores in Scotland and I am now in a position to do so. Last week the international organisation CASE Europe decided to place the case on its official register of SLAPPs, on the basis that it meets the classic features outlined above.
A thousand years after King Cnut sought to demonstrate to the people of England that no ruler can control the sea, another Scandinavian is attempting to do the opposite to the people of Scotland, in the perhaps surprising forum of the Oban Sheriff Court, with a hearing set to take place on 1 June.
The giant Norwegian fish farm company, MOWI, largely owned by John Fredriksen, one of the world’s richest men with a fortune, per Forbes Magazine, of about $13 billion, has raised an action seeking an interdict against the well known environmental activist and campaigner, Don Staniford, the effect of which would be to place exclusion zones round each and every one of its fish farms on our west coast. There are over forty of these, mostly larger than a football pitch, and the effect of the order, if granted, would be to prohibit not only Don Staniford, but potentially any other member of the public in a boat, a kayak or even a wild swimmer from being closer that fifteen metres to a farm. It’s likely that other fish farm companies, operating another two hundred sites, would then follow suit.
Don Staniford is one of a very small group of committed individuals who combine scientific knowledge with boat handling skills in order to record and document factually what is going on inside the hundreds of salmon cages that we see along our coast, and give the public reports that the current Scottish Government would rather we didn’t hear about.
Listening to industry propagandists, such as Fergus Ewing in committee at Holyrood last week, or Tavish Scott, the former MSP who has landed rather a well paid job as the mouthpiece of the Scottish Salmon Producers Organisation, you would think that everything under the surface is just fine. The evidence uncovered by Don Staniford, of Scamon Scotland and others, such as Corin Smith, of Inside Scottish Salmon Feedlots, shows that the reality is very different.
Below the surface of the cages, where the fittest salmon can be seen constantly jumping, itself an indication of a creature in distress, the cameras show images of fish being eaten alive by sea lice, eyes missing and with gaping holes in their skin. Further down, the weaker fish move more slowly; at the foot are piles of mortalities. Figures released by the industry itself, in reports to the Scottish Government, have shown in recent months between 25% and 40% of the salmon on some sites dying through sea lice or viral and other diseases. With huge populations of fish in close proximity such things are unavoidable, but come at huge environmental cost. These fish have themselves been fed on other fish harvested from the world’s seas, often far away, depriving local populations of foodstuffs. The current shortage of sandeels, a staple diet for wild birds such as puffins, is also due to overfishing. The costs of transporting these so-called “trash fish” and the safe disposal of hundreds of tonnes of mortalities are enormous.
It’s important to understand that Don Staniford is a very different sort of campaigner from organisations such as Greenpeace and Ocean Rebellion, who set out to be disruptive. He is an experienced, long term environmentalist, with a sound academic background in marine biology and years of experience inside and outwith the UK. He argues that organisations such as SEPA and Marine Scotland are failing in their duties to protect the environment and detect and prosecute instances of animal cruelty.
His visits to fewer than a dozen MOWI sites largely took place during lockdown, when these governmental agencies had suspended site inspections. His method of operation was to visit sites, alone, early in the morning before staff arrived, record what he saw and depart, leaving no trace of having been there. Invariably, on finding evidence of animal abuse, pollution, or the use of illegal seal screeching devices, he published his findings and reported them to those agencies. The gruesome stills and videos and the data gathered have been featured on BBC, Channel Four and France V and he has been internationally recognised for his efforts. His work is totally non destructive and truly an essential part of the process of journalism in a free society.
The material gathered by Don Staniford and others shows clearly that fish farming has a lot to hide; it uses the image of the wild Scottish salmon leaping in a Highland river to advertise a product that often isn’t even produced from Scottish stock. If everything was just fine, simply giving the public access to cameras in the fish cages, which are often already there, would make activism unnecessary.
But this case isn’t only about environmental activism. It’s also about our freedom as members of the public to access our own coastal waters. We don’t need to go back to King Cnut, just four hundred years will suffice to take us to the debate between the Dutch jurist and diplomat Hugo Grotius and the Scottish law professor William Welwood of St Andrews University. Welwood was complaining about the huge fleets of Dutch fishing vessels hoovering up the herring from Scottish inshore waters, a story that resonates today. King James VI initially wanted to place a tax on the herring, but was eventually persuaded that attempts to control the surface of the seas would feed into the narratives of those dastardly Catholics, the Spaniards and the Portugese, who wanted to control the wider oceans, so the argument presented by Grotius prevailed, and the seas of the world have been open to all peoples and all nations ever since.
In law the Crown Estate holds 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 our rights, which are not just to navigate, but to fish, to swim and for recreation and leisure. By granting over two hundred permits to anchor massive floating installations along the “Aquaculture Coast”, often in inshore bays, they have already gone a long way to violate that trust. That trust will be totally destroyed if this foreign owned multinational is allowed to colonise the sea surface around these farms as well. Make no mistake, we’re seeing an attempt at a Twenty first Century land grab!
MY COMMENTS
As Salvo Liberation constantly highlight the land and seabed of Scotland is owned by the people of Scotland. That this case is being held in a Scottish Court gives us the opportunity to highlight that fact. I wish Don Staniford every success in Oban Sheriff Court.
I am, as always
Yours for Scotland
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Thanks Ewan.
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Why aren’t SEPA and Marine Scotland regulating this sector properly ? Have they been “captured” by the industry and its tame political lobbyists like Fergus Ewing and Tavish Scott ? Where is Mairi McAllan in all of this ? Doesn’t she have ultimate responsibility for environmental regulation ?
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an afterthought – does MOWI conform to the relevant environmental regulation in Norwegian waters ?
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How much might a Sheriff cost?
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Fish farming seems to me the archetypal British business in Scotland; capitalising on Scotland’s hard won reputation for having a high quality salmon, but utterly trashing that reputation on the way to short term profits, followed by ever diminishing returns, as people realise the salmon on their menu is the equivalent of a battery hen which spent it’s entire rotten life in a cage, suffering interminable misery and distress.
These industries don’t care for Scotland’s long term prosperity, or the opportunity to set an example to the world (like our farmers say), for diligence and commitment to the highest, and most ethical standard possible. Instead, they’ll sell any old shit with a tartan box and a genial photo of our Scottish landscape.
Fish farming actually seems to have the same reckless, get-rich-quick mentality, and the “make hay while the sun shines” attitude which saw the Cattle industry south of the border wrecked after shooting itself in the foot with BSE mad cow disease. When you’re feeding cattle on their own flesh, you’ve already gone several steps too far.
When your crop is riddled with flesh eating parasites, you’re just not doing it right. It’s the usual story, Scotland the short term cash cow…
It says it all I think, that salmon farming is the one Scottish industry I’d be relaxed about seeing a Union Jack on the packaging.
These companies line up to exploit Scotland the Brand, because that is all that Scotland means to them.
In fairness, maybe I’m jumping to conclusions, and these unpalatable practices are indeed a blight on Scotland, but I don’t believe a home grown business plan for a sustainable Scottish industry would be so casual about the suffering of the fish, nor indeed the disgust and revulsion of it’s customers. Such values are Dickensian, 19th Century attitudes, and I refuse to believe they’re indigenous to Scotland.
As for the salmon, just Google for photos of Scottish Salmon caught in the 1920’s and look at the size of the unfortunate critters, (unfortunate to be caught I mean), compared to the fish you see now. Scotland’s exploitation of the Salmon was barely ethical in the first place, by my god, look at where we are now.
But I fear nothing will change until land ownership changes, power is unseated, and Scotland’s land is owned by people who actually have a stake in Scotland, and ache to see our people thriving in prosperity and happiness… and an appropriate wee drawp happiness and prospering spared for the fish themselves.
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In its early days the smoked salmon industry and its suppliers in the Scottish salmon farming business were concerned with quality. There was great care taken to maintain the health of the farmed salon. But, very early on 80s-ish it was realised that the calm waters of the lochs were wonderfully easy to work on with no strong current to tip cages from moorings, virtually tideless, sheltered by hills and less damage from storms. Not much later, it was realised that the waste from the cages, uneaten food and salmon faeces, were bad news, encouraging disease and lice. Also some farmed salmon had almost no tails because they were doing no work to exercise their tails.
I worked for a smoked salmon producer in the early 90s. The suppliers were carefully chosen. Farms at sea with the tides cleansing the sea bed beneath the cages and currents minimising disease/lice. Moreover the salmon had to swim against the tides and currents, keeping active, building healthy muscle. We took only the very best healthy fish, anything else was rejected by QC. The fish were in the under 2kg* weight. It was much cheaper to buy bigger fish as the feed/growth equation was more costly in growing the fish in the period from egg to 1.5 kg than in the 1.5kg to 4 kg. So weight for weight bigger fish are cheaper. Bigger fish have broader fat lines, are bit coarser and do not taste as good. Our fish died in the same manner as Roman senators, made dozy by reduced oxygen and increased carbon dioxide and then bled to death by cutting the gills. It avoided stress and anxiety which releases unwanted chemicals into the flesh.
Our customers demanded quality, supervised from egg to the supermarket food counter. They got it. The business was hugely profitable.
That was then.
However, the Norwegian producers concentrated on bigger fish. The crucial thing to keep in mind is the description” “Scottish Smoked Salmon” means salmon smoked in Scotland. It does not mean Scottish salmon. Any amount or all of the smoked salmon could be Norwegian, unless it clearly says “Scottish Salmon” somewhere on the packet or ticket on the fish counter. From being a high priced luxury, salmon became a competitive commodity in supermarkets and this drove Scottish smokers to buy Norwegian fish.
Scottish salmon farmers worked to reduce costs, copying the Norwegian model. Many were bought up by Norwegian companies, or bigger food companies. The drive to reduce costs, increase volumes and maintain profits was a downward spiral.
The rest, overcrowded cages, sea lice, followed.
Who polices this?
* I cannot remember the exact numbers, however, the approach is correct.
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Very disturbing reading but thank you for explaining your experience in this industry.
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Thank you for this, another one of your always informative pieces, Ewan. The monetization of justice is nothing new, of course, and any expectation of our woke-captured SNP government doing anything meaningful on this or any other occasion is forlorn in the extreme. I could rant all day about “What is to be done” but would only arrive back at my original conclusion i.e. without independence/decolonisation, nothing conclusive can or will be done.
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Reblogged this on Ramblings of a now 60+ Female.
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two points come to mind. it’s time to think of justice and not risk assessment when considering defending or pursuing one’s rights. It’s time to think how we can equal access to justice through a National Legal Service. Various models need to be considered other than the risk based insurance one.
The second point is that all the fundamental issues we discuss comes back to land including what’s under the sea. How society stewards the land can dictate what we allow people to do with it and to it. Sadly the current land reform proposals if enacted will contribute no meaningful advance to better stewardship.
The Land Commission is trying to promote the proposals as significant. They are anything but! all they do is perpetuate the self justification for an organisation which like so many public bodies is an nuanced exercise in their jobs for life .
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Access to justice is an ancient and preserved right in Scotland and the negative influence of money and threats should have no part in its delivery.
Cases brought to further the aspirations of large foreign corporations and against the interests of the territorial owners – the people of Scotland – must be judged on the impact it will have on the Common Good and not the dividends paid to shareholders.
As a 3rd generation wild salmon fisherman, using the haaf-net on the Solway Firth, a traditional method for over 1000 years, it was clear to us very early that faming salmon would be difficult and expensive with problems related to disease, deformity and environmental issues. However, when they began to place the cages in waters almost enclosed from the open sea, those problems were multiplied many times over.
In an attempt to avoid, or cure, the diseases that became so prevalent, they had to use chemicals that should be nowhere near anything produced for human consumption. Therefore, even though my family has been involved in wild salmon fishing on the Solway for over 100 years, there is no way that I would consider buying or eating salmon nowadays unless I had seen it caught by environmentally safe methods.
Plus, the revenue from licences issued by the town in accordance with the Royal Burgh Charter of 1538 signed by King James V that included the right to fish with Stake Nets, Poke Nets, and Haaf Nets on the Solway went directly to the Common Good Fund and although much reduced, it still does to this day.
I doubt if John Fredriksen or MOWI has ever heard of the Common Good, let alone what it has done for local communities for many centuries.
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Good perspective. It is possible to produce food cleanly and humanely, indeed it is our duty. This does conflict with the juggernauts of big business. We were asked to provide smoked salmon from wild fish, in 1993. We had to import from Iceland and it was very expensive. I think that wild salmon numbers in Scotland are greatly diminished, but I don’t have figures.
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Thank You Ewan for this informative article, I recall working in my 20’s many moons ago at McConnell’s Salmon Farm now Marine Harvest on South Uist and what you say about the dead (morts we called them) and dying Salmon is all true, sea lice were and still is a very big problem for Salmon farming, not only that I also recall that seals were allowed to be shot if they came close to the nets.
It seems as though the rights (ancient) of Scottish folk are there for all to trample on whenever those seeking to circumvent them feel the need to, Westminster has been stamping on our rights for centuries, also it would appear rich business folk can do what they want in Scotland regardless of were they come from.
Basically Scotland is an open door for any who wish to exploit it and us in the process.
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In a previous incarnation I worked as a fish filleter in the Shetland islands, this predated the oil bonanza when offshore inchcape had not yet begun to drill in the Shetland box. Even then factory ships from the Soviet union and elsewhere were using small mesh nets to harvest immature fish, not for food consumption but as fertilizer. These vessels would be at sea for months scooping up everthing and anything. In those days the harbour at Lerwick was full of seine netters, a sustainable method of fishing, but even then the sandeels were aready in decline. Long before then I recall from my schooldays a protest song, the tune purloined from a sectarian source. It was entitled The Glesca Eskimos. In that instance the threat was not just about sea life but humanityitself and the culprits still remain with thier toxic rust buckets and obsolete military justification for being there. I may have wandered of topic to some extent but at the core it is all about power and who controls it. Perhaps it’s time for the Glesca Eskimos to set sail again.
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Excellent article by Ewan bringing this to light and I agree with your comments entirely, Iain. Besides which, it is never healthy to cage wild animals, especially on an industrial scale. Such a pity that our MSPs don’t have the nous to actually make improvements to the justice system by tackling these “Strategic Litigations Against Public Participation” rather than undermining it by making it easier to convict innocent people.
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Would the active involvement of the Scottish Goverment or its agencies in instances such as this, result in the Scottish Government being sued – big time?
It takes you into the subject of Investor State Dispute Settlement – ISDS.
Good link (below) for some examples of exactly that happening:
‘Corporate courts’ may sound abstract, but their impact on people and the planet is real, and devastating.
From suing governments for phasing out coal, to threatening democratic protests, here are some real-life examples of what this unfair legal system can do, and why we need to fight it.
https://www.globaljustice.org.uk/our-campaigns/trade/corporate-courts/isds-case-studies/
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Thanks for this Mike. Folk need to be aware of how we need to keep our eyes open all around.
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Just read and listened to the isds case studies. It beggars belief. A plunderers charter. Awareness is better than blissful ignorance. Thanks for this.
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