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Commercial Fishing

CONFRONTATION AND LITIGATION.

confrontation-and-litigation

Confrontation and Litigation: In an important and disturbing change, environmental NGOs have now apparently abandoned any pretence of working collaboratively with the fishing industry, writes the NFFO. With one or two honourable exceptions, most have embarked down the road of confrontation and litigation.

Greenpeace’s recent vigilante activity in the Channel and Dogger Bank, supported by Charles Clover and Hugh Fearnley-Whittingstall is but the most extreme symptom of this change in direction. Less directly reckless, but toxic nonetheless, is the hovering threat of judicial review against management authorities by environmental NGOs.

Vigilantism and legal terrorism signals a dramatic alteration in approach and modus operandi. Both fisheries regulators and the fishing industry will now have to adapt and respond to this new hostile operating environment.

Gone is any pretence of working with fishermen – or even the right kind of fisherman. Anyone in the industry who thinks that Greenpeace will stop at a ban on bottom trawling is deluded. Even fishing passively for crabs with pots is now in the spotlight for possible contravention of environmental legislation.

Having effectively destroyed the European advisory councils as functional representative organisations through entryism tactics, NGOs are moving on to deal with Brexit.

But where will these confrontational and litigious tactics take us?

It wasn’t always thus

Until 2012, it could be said that the green NGOs, speaking broadly, were interested in working with the fishing industry. After that date, not so much. In the first years of the century, for example, the NFFO and WWF worked collaboratively on the Invest in Fish campaign which cleverly married economic self-interest with environmental objectives. Within the regional advisory councils, relationships between fishing organisations and the environmental lobby were respectful and on the whole cordial. Information was shared. Consensus advice was the norm. RSPB and WWF in particular played prominent and constructive roles. That is all gone.

2012, and the run-up to the 2013 reform of the Common Fisheries Policy, marked a watershed – and the answer to what happened lies in one word. That word is money. Billionaires with money to burn, and presumably with guilty consciences, sought to solve both problems by directing large sums of money into shaping fisheries policy. This was done in the naïve belief (despite a mountain of evidence to the contrary) that a combination of top-down legislation and tough enforcement provides an effective way to manage complex multi-dimensional fisheries towards sustainability. Large amounts of money from charitable foundations were pumped into the NGOs for the express purpose of shaping the outcome of the CFP Review. That largesse has continued to flow. One day someone will obtain a Phd by researching the linkage between corporate surpluses, conditions attached to donations, absence of transparency and subversion of democratic process in the field of fisheries legislation 2012 – 2021.

The US based Pew Foundation (founded in the 1930s to oppose Roosevelt’s New Deal and promote American values) took pole position in facilitating this change.

The NGOs, working in tight formation and coordinated by Pew, were hugely successful in shaping the CFP reform. The Lisbon Treaty had radically altered EU legislative landscape and the EU landing obligation, along with a rigid (albeit scientifically illiterate) interpretation of maximum sustainable yield, was enshrined in EU law. These two legislative changes have worked their black magic ever since (1). The European fishing industry (which included the NFFO at the time) was simply outgunned and outclassed, particularly in the European Parliament.

The 2013 reform did include one positive element: decentralisation of fisheries policy. Regionalisation, however, was quickly swamped by having to deal with the populist but unworkable landings obligation. The work of regional groups of member states (operating at sea-basin scale) has been entirely swallowed by the task of designing and justifying exemptions from the requirement to land all catches of quota species, in order to avoid serious chokes (2) in mixed fisheries.

After the NGOs’ legislative goals within the CFP had been achieved, external funding continued to ensure that the “reformed” CFP was fully implemented. A new wave of NGOs joined the advisory councils after 2013, bringing with them a dogmatic mindset and an intense focus on procedural/legal detail rather than substance and outcomes. The advisory councils began to die at that point. Consensus advice could only be achieved at the very lowest of common denominators and any genuinely transformational role evaporated. Even the European Commission stopped pretending to pay them anything other than lip service.

Measured by results (rather than number of clauses in legislation) the 2013 reform can now be seen in retrospect as a turning point, but in some important respects for the worse rather than for the better.

It is significant that the Green Papers that the European Commission is obliged to prepare in advance of each CFP reform, in 2002 and 2012 both identified the top-down, command and control approach to decision-making as a principal reason why the CFP had under-delivered so spectacularly. These qualms seem to have been suppressed after the Lisbon Treaty introduced co-decision into fisheries – an emphatic and in retrospect, retrograde, reassertion of the top-down, command and control, prescriptive micro-management. This important development prepared the ground for a change in the environmental lobby’s tactics and approach to fisheries policy.

Johnny Come Lately

In fact, by 2012/2013 European fisheries, along with most fisheries in the North East Atlantic were doing alright. The early 1990s are best described as a basket case. But a turning point had been reached by 2000. By 2013 we still had some way to go, and a few stocks bucked the positive trends, but right-sizing the fleets in the 1990s had been the primary driver behind a dramatic reduction in fishing pressure from the turn of the century.

Fish stocks across the piece responded to lower fishing pressure. Some like Western hake and North Sea plaice, responded quite spectacularly, with biomass levels above anything seen in the historic record. We were on the right track.

So, when in 2005 Charles Clover published his catastrophe narrative The End of the Line, or when in 2012, the Pew Foundation plotted the reform of the CFP, they were Johnny-come-latelies. The heavy lifting had already been done and the big picture was one of fleet capacity in balance with available resources and steady improvement in the status of the stocks.

The UK as an Independent Coastal State

The UK-EU Trade and Cooperation Agreement keeps the UK tied into an exploitative and toxic relationship with the EU, but it does formally recognise that the UK is and independent coastal state with regulatory autonomy to manage the fisheries within its EEZ.

This poses a problem for those green NGOs which had abandoned collaboration and consensus in 2012 in favour of top-down EU legislation as the principle means of achieving their goals. Except as temporary EU retained law, (with a potentially short shelf-life) CFP legislation no longer applies to the UK EEZ. The passage of the UK Fisheries Bill through the Westminster Parliament therefore became the stage for a lobbying campaign by the environmental lobby with the aim of reinstating the essence of the CFP. The Government’s 80 strong majority (and a lot of parliamentary work by the NFFO) ultimately saw off the most damaging amendments. The Fisheries Act 2020 therefore provides a reasonable framework for the redesign of fisheries management in the UK. But it is largely a legal framework. A huge amount of work lies ahead in designing and implementing fisheries specific management plans and making the notion of co-management work in practice.

Trouble Ahead

If hit-and-run vigilante actions and litigation (actual and threatened) by environmental NGOs is to be the norm, as government and the fishing industry (in all its diversity) work on sustainable fisheries management plans, we are in for a rough time of it. Positions can only become entrenched. In such a context, can co-management survive, never mind thrive?

Urging Government to move further and faster in their preferred directions is what environmental NGOs do, and holding the fishing industry to account is a legitimate activity.

The difficulty arises when confrontation (legal or vigilante) gets in the way of steady progress and cooperation. Mutual respect, and dialogue are thrown out of the window. Evidence, instead of being an essential and common reference point, is used selectively to bolster partisan positions.

There is no sign that the flow of money into the environmental NGOs is drying up. On the present trajectory, there is no sign, either, that the NGOs are interested in cooperation and dialogue. Frankly, that is not what they are paid for. As long as the big money flows and it is made conditional on words in legislation rather than results on the ground, this impasse is likely to persist.

Market Share

There is a plethora of green NGOs out there. Not all of them are the same. Although they successfully coordinated their activities for the 2012 reform, there are inevitable tensions within the broad coalition, not least as they position themselves for funding. Greenpeace has largely followed a separate business model – spectacular media events designed to keep subscriptions flowing is their thing. Talking to the fishing industry, they are not interested in.

The arrival of the new kids on the block – Climate Extinction – with the trump card of climate change – must have disturbed the NGO ecosystem. They all have to make space for the newcomers – the new invasive species.

Careful Trade-Offs

It is ironic therefore that fishing – the form of food production with one of the lowest carbon footprints (lower that tofu) – is currently the focus of so much green attention. All fishing methods have an environmental footprint and our job is to minimise those impacts as far as possible, whilst still putting food on the plate. This requires close work with the scientists and close attention to the evidence base. It also requires balance and careful trade-offs. For example, a ban on bottom trawling in the North Sea would (the EU Commission have calculated) lead to a 1300% increase in the number of static nets – that is, if society still wants the fish to eat. Nobody thinks that is a good idea and this is unlikely to be the result that Greenpeace seeks. Unintended consequences like this are, however, very common when fisheries management is reduced to pulling remote legislative levers in the naïve and usually forlorn belief that good outcomes can be achieved without engaging with the people affected by that the rules.

Conclusions

It is difficult to see where we go from here. Well-designed fisheries management plans and co-management (where fisheries, scientists and fisheries managers work together), offer a viable and attractive way to make fisheries management effective and deliver its objectives. Ensuring that management measures are understood and supported by the people who are most directly affected by them is understood to be an essential touchstone of modern fisheries management. This requires dialogue and shared objectives – in other words, co-management.

The question must be whether co-management is viable within a context where government policy is unduly responsive to the green vote; where green vigilantes operate under an umbrella of apparent impunity; and where green lawyers hover, searching for a weakness to use as a legal baseball bat.

Trust is a vital ingredient for co-management to work and it is exactly trust that has been so badly strained by the terms of the Trade and Cooperation Agreement. Add to that the constant threat of litigation in the complex area of fisheries management and the road leads to entrenched positions, insecurities, a brake on honest dialogue and a focus on legislative texts rather than real-world outcomes.

Despite our differences over pathways to sustainability, the fishing industry and environmental NGOs share common ultimate objectives. A functioning ecosystem is a precondition for the high yield fisheries that the industry desires. Instead of working together to achieve these objectives and supporting an industry crucial to the food security of the country we have been set on a collision course. A fork in the road occurred in 2012. It remains to be seen if there is any way for those divergent pathways to merge.

Closing the gap will require the NGOs to step away from the well-remunerated trajectory that they have been on since 2012. It will also require the fishing industry to have the maturity to understand that environmentalists and fishers ultimately have the same goals and that the future lies with co-management, despite the not insignificant hurdles in its path.

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