Scotland is getting SLAPPed!

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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