All objections to Fraser Sockeye Salmon MSC certification dismissed

In his ruling handed down July 12 2010, Independent Adjudicator Wylie Spicer, Q.C., dismissed all objections to the MSC certification of the Fraser River Sockeye Salmon as sustainable. Certification will now proceed and the BC Salmon Marketing Council can apply the blue MSC sustainability label to all products from the Fraser River sockeye fishery. The objections were filed jointly by the Watershed Watch Salmon Society, David Suzuki Foundation and the Skeena Wild Conservation Trust.

This is Spicer’s first adjudication in his new job on salary to MSC. In his findings, he sets the tone early on by stating that “Other IA’s, in recent decisions, recognizing the purpose of the OP [Objection Procedure], have described the standard of review available as being “narrow” and requiring “deference to the determinations of the certification body” (Ross Sea Antarctic Toothfish Longline Fishery decision at para. 8).”

Further into his report Spicer notes that the Objector’s arguments “are really taking issue with whether the Fraser River Fishery can stand up to scrutiny given the MSC Principles and Criteria.” He notes that “this type of review is not the purpose of the OP. The purpose of the OP is to review the work of the CB [Certification Body] to see whether it made an error that materially affected the outcome of the Determination.”

Within this narrow ambit of the OP, Spicer finds that no such errors were made. Procedures were followed and the scores are justified.

For those of us that value our children’s future more than MSC procedures and the short-term economic benefits accrued by the BC Salmon Marketing Council, there are some major concerns with this certification.

Firstly, the productivity of Fraser River salmon is in free-fall as pointed out by the “Think Tank of Scientists” that met in December 2009 at Simon Fraser University: “The productivity of the Fraser river sockeye salmon, which is the number of adults produced per spawner, has been declining since the mid-1990s to the point where Fraser River sockeye are almost unable to replace themselves.” No matter what scoring guideposts were set up and what scores were allocated by the Moody Marine assessment team, a population that is “almost unable to replace itself” cannot be considered a candidate for a sustainable fishery.

Secondly, two distinct genetic components of Fraser sockeye, those spawning in Cultus Lake and Sakinaw Lake, have been found to be endangered by the Committee on the Status of Endangered Wildlife in Canada. The Canadian government however decided not to list them under the Species at Risk Act, citing socio-economic considerations.  Listing would have mandated an explicit rebuilding strategy. The continuing loss of biodiversity should be a major concern for those that care about our planet’s future.

So, MSC adds another controversial certification to their growing list, the perfect record of all objections to any assessment being dismissed is retained, and public confidence in the process, and hence the value of the MSC label, is diminished.

Controversy over MSC krill certification - science flatters fishery?

A well-researched article on the MSC krill certification by David Jolly published June 23 in The New York Times quotes Sidney Holt as saying the problem with the MSC process was that the outsourcing of fishery assessments to commercial contractors paid by the fisheries created a conflict of interest, because the contractors have an incentive to present the science in a way most flattering to a fishery. “It’s like having the prosecutor in court appoint the judge” he is quoted as saying.

Although long retired and now considered by some to have extreme views on conservation, Sidney Holt, along with fellow British colleague Ray Beverton and Canadian scientist Bill Ricker, laid the foundation for quantitative science for sustainable fisheries management through their research in the 1950s and 1960s.

Holt hits the nail on the head. In fact his prosecutor-judge analogy can be taken one step higher in the chain. MSC appoints and pays the salaries of the lawyers who act as the independent adjudicators of formal objections to its sustainability determinations. No objection has thus far been judged by the independent adjudicators to be of sufficient merit to result in overturning an MSC sustainability determination. Given that pre-assessments are confidential, MSC is batting 1000.

MSC eco-certified fish are not necessarily from sustainable ecosystems

An interesting posting Fishy branding - the ecosystem behind the label by Sally Campbell on the Community of Arran Seabed Trust looks behind MSC-accreditation and explores some of the emerging problems with our new hunger for ‘sustainable’ labelling.

Campbell writes "It underlines a real concern that many of the MSC eco-certified fish are not necessarily from sustainable ecosystems. Certifiers are accredited by Accreditation Services International GmbH (ASI) to the Marine Stewardship Council (MSC) Accreditation requirements. Companies such as Moody Marine Ltd and MRAG Americas, Inc can certify that fisheries meet the MSC environmental standard for sustainable fishing and these organisations duly undertake a programmed check on those fisheries wishing to have the Blue Label from MSC. It was following such a review by a these external organisations that the Cape Hake was re-certified, and the collapsed state of the fishery was even pointed out by the independent reviewer of the certification."

Canadian bluefin tuna fishery to apply for MSC certification?

The Canadian fishery for bluefin tuna takes place on the Scotian Shelf, in the Gulf of St. Lawrence, in the Bay of Fundy, and off Newfoundland during the tuna feeding migration which brings large fish into Canadian waters between July and November.

The directed fishery uses rod-and-reel or tended line with a restriction of a maximum of four lines per vessel and one hook per line. A portion of the Canadian harvest is taken as by-catches in the swordfish longline fishery and other tuna fisheries.

Canada’s 2009 allocation by ICCAT comprised 470 t for the inshore fleets, 67 t for the swordfish longline fleet (as bycatch), 20 t for offshore bycatch in the fishery for other tuna species and 2 t for scientific tagging.

ICCAT assesses the western and eastern stocks of northern bluefin tuna Thunnus thynnus separately although mixing between stocks is known to occur and some proportion of the western stock is caught by the larger and wide-ranging fishery on the eastern stock.

Both the eastern and the western stocks of northern bluefin tuna are severely depleted and being overfished. In the most recent scientific assessment of the western stock by ICCAT (2008) two scenarios regarding recruitment potential were considered. Under low recruitment potential, spawning biomass was estimated at 57% of Bmsy and fishing mortality at 1.27 x Fmsy. Under high recruitment potential, spawning biomass was estimated at 14% of Bmsy and fishing mortality at 2.18 x Fmsy. Both scenarios are considered equally likely by ICCAT.

ICCAT found that under low recruitment potential, a total catch of 2,100 t is predicted to have at least a 50% chance of achieving the Convention objectives of preventing overfishing and rebuilding the stock to MSY levels by 2019, the target rebuilding time. Under high recruitment potential, the rebuilding target is higher and a total catch of less than 1,500 t is predicted to stop overfishing in 2009, but the stock would not be expected to rebuild by 2019 even with no fishing.

The TAC was set at 2,100 t in 2007 and 2008, lowered to 1,900 t in 2009 and 1,800 t in 2010. The TAC is intended to stop overfishing by 2010 and to rebuild the stock to Bmsy by 2019. The ICCAT 20 year rebuilding plan began in 1999 but half way through there has been no rebuilding. Although fishing mortality is estimated to have been decreasing recently, the stock is still being overfished (F>Fmsy). The next ICCAT scientific assessment of the stock is in September 2010.

In a press release Friday (2 June) the Canadian fisheries minister, Gail Shea stated “Our Atlantic bluefin tuna fishery is the best managed fishery of its kind in the world today, and we are starting to see the positive results of those efforts”. This statement was made following an informal meeting in Barcelona with Japan, Korea and other nations that, like Canada, voted against CITES listing of bluefin tuna earlier this year. The Minister’s department website has a link to a video it made called “Canada’s Bluefin Tuna Fishery: A Model for Sustainable Management”.

While maybe not a candidate for MSC certification (yet, as far as we know – remember MSC pre-assessment is secret) it would be interesting to speculate how the Canadian bluefin tuna fishery would score under the MSC three principles. It applies targeted fishing gear with minimal bycatch or damage to the environment, it is well monitored, abides by regulations, and is managed by an RFMO based on peer-reviewed scientific advice under clearly stated management objectives that address sustainability. This suggests that a passing grade would be obtained it went to assessment. After all, it is “A Model for Sustainable Management”!

But the question is: Can a fishery on a stock that is severely depleted and being overfished be considered “sustainable”?

By-the-way, COSEWIC (Committee on the Status of Endangered Wildlife in Canada) is currently reviewing western bluefin tuna as a potential candidate for listing as a species at risk of extinction under Canada’s Species at Risk Act (SARA) based on a decline in the population of more than 80% from historic levels. Given that the Gulf of Mexico is the spawning area for the entire western bluefin population and given BP’s recent little mishap, COSEWIC’s review may be very timely.

Verdict out - Antarctic krill fishery is sustainable because MSC says so

Yesterday (25 May 2010) MSC released the legally sounding "Supplemental Decision of the Independent Adjudicator on Remand in the Matter of an Objection to the Final Report and Determination of the Proposed Certification of the Aker Biomarine Antarctic Krill Fishery under the MSC Principles and Criteria for Sustainable Fishing".

The "Decision" is by the Independent Adjudicator (on staff to MSC) - lawyer Eldon V.C. Greenberg.

In his 4 page ruling he reaches the conclusion "In sum, after consideration of Moody's Response to Additional Remand, I conclude that the response is "adequate to meet the matters raised in the remand" within the meaning of Section 4.9.4(a) of the Objections Procedure, and I confirm the determination of the certification body with respect to PIs 1.2.2 and 2.5.3. I conclude that Moody has cured the procedural defect identified in my remand of May 5, 2010 and provided a reasonable explanation for its decision not to alter the scoring of the PIs in question in light of Watters 2009."

See post on this blog on May 7 for background

So Moody wins another one and MSC can check an additional sustainable fishery to its growing world-wide list.

But what do conservation bodies think?  The influential Pew Environmental Group does not like it one little bit.  The Pew Environment Group is the conservation arm of The Pew Charitable Trusts, a US-based non-governmental organization that applies a rigorous, analytical approach to improving public policy, informing the public and stimulating civic life.

PR Newswire reports that "The Pew Environment Group today criticized the decision by the Marine Stewardship Council (MSC) to certify Antarctic krill. The certification gives the false impression that the entire fishery for Antarctic krill is sustainable when in reality it is not."

Gerald Leape, director of Pew's Antarctic Krill Conservation Project (AKCP) points out the main grounds for objecting to the certification of the Aker krill fishery as sustainable:

• MSC's standards allow for the certification of a single operator in a fishery. In general, this runs contrary to its mission of ocean protection. If a few ships are acting responsibly but the vast majority are not, the target population could still be at risk of being overfished.  
• Climate change impacts to species are not considered by MSC methodology. As krill have been proven to be susceptible to climate change, the impact of warming temperatures on the population must be considered, if fishing is to be sustainable.
• Numerous uncertainties are associated with the determinants and drivers of krill population size. Though extensively studied, scientists are still learning what affects krill population size. Without this knowledge, it is difficult to set appropriate catch limits.

PR Newswire reports Leape saying: "Unfortunately, perception is reality...The MSC's label falsely advertises the message that all krill are sustainably caught and that consuming krill-based omega 3 supplements or purchasing farmed salmon raised on krill meal is okay. Nothing could be further from the truth."






 

Ross Sea Antarctic Toothfish fishery MSC certification in question

FIS is reporting today that MSC Independent Adjudicator Michael Lodge has questioned the scores Moody Marine has assigned to six performance indicators for the Ross Sea Antactic toothfish fishery following an objection made by the Antarctic and Southern Ocean Coalition (ASOC).  Lodge however dismissed eight of the ASOC objections and also rejected an objection against the definition of the “Unit of Certification”. 

See previous blog entry on this fishery: http://fishyfellow.blogspot.com/2010/01/case-6-sw-ross-sea-antarctic-toothfish.html

FIS reports that ASOC is calling Lodge’s remand a “victory for science and the Antarctic marine environment.” The Coalition argued that the dearth of data on the stock and lack of scientific rigour in the assessment did not support certification of the fishery as sustainable.  Also supporting the objection were the Centre for Biological Diversity and 39 marine scientists under the collective name of Friends of the Ross Sea Ecosystem (FORSE).

FIS reports ASOC Executive Director James Barnes as stating “This fishery should never have been allowed to undergo full assessment in the first place - there are simply far too many unknowns about this highly vulnerable stock, which is precisely why the fishery is officially classified as 'exploratory' by CCAMLR....The adjudicator has agreed with ASOC that Moody cannot justify its scores for a number of crucial indicators.”

Moody Marine has 10 days to issue a “reasoned response” regarding the remand but can apply to Lodge for an extension.  The objections process will be finalised once Lodge considers the response and makes his decision on whether the fishery should be certified or not.  No fishery has thus far been denied MSC certification based on an objection.

Link to FIS article http://www.fis.com/fis/worldnews/worldnews.asp?monthyear=&day=11&id=36508&l=e&special=&ndb=1%20target=

Objection to Antarctic Krill fishery certification as sustainble by MSC

On December 4 2009 the Antarctic and Southern Ocean Coalition (ASOC, a coalition of over 200 non-governmental organizations in fifty countries concerned with the preservation of the Antarctic environment) filed a notice of objection with MSC regarding the sustainability determination of Moody Marine with regard to the Aker Biomarine Krill Fishery.

The Aker Biomarine pelagic trawl krill fishing fleet is a major participant in the Antarctic krill fishery in Area 48 in the Southern Ocean waters around the Antarctic Peninsula and South Georgia. ASOC and its partner the Pew Antarctic Krill Conservation Project have been advocating for management reforms in the fishery and have concerns about the Aker Biomarine krill fleet’s role in that fishery.

The MSC report by Moody Marine, together with comments from two independent reviewers and Moody’s responses, were published on their website on 6 August 2009.

One of the reviewers, Stephen Nicol, is an acknowledged world expert on krill in the Antarctic. He made a number of critical comments on the report which Moody Marine mostly dismissed. For example, he stated that “There is little doubt that the data being collected are insufficient to detect impacts of fishing – and there is no mechanism to alter the krill management approach even if impacts were detected.” Moody Marine responded that “The reviewer is correct, but his concerns do not render the harvest strategy ineffective, in our opinion.”

In another instance Nicol comments that he is “unaware of any evidence that exists that the [existing management] strategy is effective other than the absence of an obvious stock collapse. Nicol argues for a lowering of the scores in a number of instances, for example “Because of the lack of a mandatory observer scheme, the shortfalls of the CEMP [CCAMLR Ecosystem Monitoring Program] and the uncertainties over bycatch it is difficult to see how information/monitoring can be considered adequate.” Again, Moody Marine is dismissive.

Nicol concludes that “Overall, the assessment probably falls somewhat short of what I might hope given the MSC principles. There are two reasons for this. Firstly the operator has a very short history in the krill fishery and has not yet had a chance to establish its credentials or to fully examine the impacts of its new technology [mid-water trawl continuous fishing system]. This suggests to me that this proposal is slightly premature. Secondly, the proposal assumes that the procedures implemented by CCAMLR in pursuit of its ecosystem approach to management are sufficiently robust to enable the krill fishery to meet the MSC criteria.” Moody Marine considers that although “The harvest strategy has not been fully tested, … monitoring is in place and evidence exists that it is achieving its objectives.”

The outcome of the review resulted in Moody adjusting its scoring as follows:

1.2.1: Score reduced to 90
1.2.2: No change
2.5.1: Score increased to 100
2.5.2: Score reduced to 75
2.5.3: No change

The change in score for PI 2.5.2 has resulted in a new Condition – Condition 3 at the end of this document.

The basis for a 100% score under 2.5.1 is that “There is evidence that the fishery is highly unlikely to disrupt the key elements underlying ecosystem structure and function to a point where there would be a serious or irreversible harm.” Presumably this increase is necessary to counteract the decrease in the score under 2.5.2.

Overall scores for the fishery are now:
Principle 1: 84
Principle 2: 91
Principle 3: 93

This would therefore maintain the determination that this fishery be certified.

The objection by ASOC noted that the company seeking certification was only one of the operators in fishing krill in the Antarctic and felt that for the MSC label to have any credibility it must reflect the impact of the fishery as a whole.

ASOC also criticized Moody Marine for not paying any attention to a report by Watters et al. (2009) which they suggest demonstrates that “recent risk assessments conducted for the krill fishery clearly show that measures currently in place are not sufficient to prevent irreversible harm to several krill predator populations” [WG-EMM-09/12, George M. Watters, Simeon Hill, Jefferson T. Hinke, and Phil Trathan. The Risks of not Deciding to Allocate the Precautionary Krill Catch Limit among SSMUs and Allowing Uncontrolled Expansion of the Krill Fishery up to the Trigger Level.]

Moody Marine argued that the study conducted by Watters et al. (2009) was produced after their final report was completed, but ASOC claimed that this was incorrect because these findings were highlighted in comments by Antarctic Krill Conservation Project (AKCP) on Moody Marine’s draft report. ASOC claimed that Moody Marine “simply chose not to respond to it, but they had ample opportunity to become familiar with this important document, which is being provided to the Independent Adjudicator and should be a part of the formal record.”

The Independent Adjudicator is lawyer Eldon Greenberg, one of three new lawyers recently appointed under salary to MSC to hear and judge objections. He is a partner in the Washington, D.C. office of the law firm of Garvey Schubert Barer. A graduate of Harvard College and Harvard Law School, Mr Greenberg was deputy general counsel of the Agency for International Development and general counsel of the National Oceanic and Atmospheric Administration during the Carter Administration. He specializes in environmental and natural resources issues, including fishery management, marine mammal and endangered species. He also teaches international negotiation as an adjunct professor at Georgetown University Law Center.

Under the MSC “Objections Procedure” a remand can only be ordered where the Independent Adjudicator determines that one or more of the following circumstances apply: (a) There was a serious procedural or other irregularity in the fishery assessment process that made a material difference to the fairness of the assessment; or (b) The score given by the certification body in relation to one or more performance indicators cannot be justified, and this was material to the outcome of the determination; or (c) It is necessary to remand the Determination in order to enable the certification body to consider additional information.

Although the “Objection Procedure”sounds very legal and official, it is difficult to see that it has any real legal standing. There is no contract in existence between MSC and the the resource owners, the civil public, to make any of this legal and binding – it is just a bunch of rules much like in a game of Monopoly.

The ASOC objection is based on three claims (i) Moody has misapplied the MSC principles in relation to the “unit of certification”, contending that the unit of certification must be the entire Antarctic krill fishery; (ii) Moody has incorrectly applied the MSCs procedures in reaching its conclusions; and (iii) The scores given by Moody in relation to a number of the Performance Indicators cannot be justified.
Eldon Greenberg found, in his judgment, that “Moody explicitly addressed the comments of both peer reviewers, including the one who was most critical of the analysis [Steve Nicol], and had made a rational judgment call about what changes should be incorporated in its report.” Greenberg concluded that this satisfies MSC requirements.

While dismissing other claims by ASOC, Greenberg did concede that Moody should have considered the Watters 2009 report because it was available “substantially in advance of completion of the certification body’s final report”. He stated that information brought to light in a timely fashion by commentators on a draft report cannot be ignored and to do so would “diminish the utility and value of the public comment process”.
Greenberg cites the precedent of the Pacific Hake Mid-Water Trawl Fishery decision where the Independent Adjudicator considered whether new material that arose after the draft report had been prepared would have made a “material difference to the fairness of the assessment”.

Without calling any expert scientific experts, Greenberg passes judgment on the contents of the Watters 2009 report and finds that the report “did not conclude that the fishery was not managed in a precautionary manner, but rather that the management system was not “as precautionary” as previously posited in the event of an “uncontrolled expansion” of the fishery.”

Greenberg finally decides on a “limited remand to the certification body to consider Watters 2009 in the context of the specific PIs where ASOC asserts that this study supports its objections to Moody’s scoring”.

Greenberg acknowledges that ASOC levels a “series of weighty arguments against a finding of sustainability” by Moody based on the role of krill in the Antarctic Ecosystem, lack of an adequate management strategy and the large amount of uncertainty and gaps in knowledge. He states that “I cannot (and will not) substitute my judgment for that of the certification body as long as its finding and determinations have a rational basis in the record and the rationale stated is consistent with the facts found here”.

After considering each issue raised by ASOC under each of the PIs through reams of text, Greenberg repeatedly finds that “I am not persuaded that Moody made a mistake of material fact, failed to consider material information, or acted arbitrarily or unreasonably in awarding the score” on each PI element contested by ASOC.

Finally Greenberg concludes that “Having considered the written submissions and supporting documentation of the parties, I find that, with one exception, ASOC’s grounds for objection…have not been established under the Objections Procedure. However, he did find “a serious procedural error” with regard to Moody not taking into account the Watters 2009 report in the scoring of a number of criteria under PIs 1 and 2. Moody now has the opportunity to reflect on the judgment and make changes, if any, in a response to Greenberg after which he will decide whether the objection is upheld or dismissed.

Note that there was no oral hearing in this case. Written submissions were instead considered and no scientific experts were called. This may reduce the considerable cost for leveling an objection imposed by MSC, to be borne by ASOC.