If they’re illegal, set them free

OK, let me get this straight. If I were to, say, rob a bank and get caught… would I be given two weeks to ‘reach an agreement’ with the bank management on how to refund the stolen money? Or would I be arrested and tried for the crime, like (almost) anyone else?

Judging by the way certain other legal infringements have been dealt with of late, I’d say the answer depends on how money I actually stole. If it were a few measly thousand, I’d probably get the entire Biblioteca Nazionale thrown at me in court. A few tens of millions, on the other hand, and I might just find myself receiving red carpet treatment instead.  

This latter scenario, effectively, is what the decision taken by the Planning Authority on Tuesday morning means for the Malta tuna penning industry. But let’s rewind a month or so, back to when the Environment Ministry was inundated with complaints about sea-slime, and decided to investigate. 

After two weeks of aerial, terrestrial and marine inspections, the PA finally reached a conclusion that the rest of us had deduced as long ago as 2009. Yes, the slime came directly from the dozens of tuna pens scattered within a couple of kilometres from the shore. And there was much more of it this summer than ever before, too.

It is actually that second part that should really have interested the investigators, not the first. We didn’t really need a thorough inspection to prove the source of the slime… though it is rather helpful to finally have incontrovertible evidence. The real mystery, however, was why there was so much of it precisely now. The PA investigation solved this, too… though perhaps unwittingly. It revealed that over half the tuna pens currently in operation are illegal. 

This in turn explains the quantity of slime. The industry itself has already acknowledged that the cause was a certain type of oily feed they imported in much larger quantities this summer. And what aquaculture industry in its right mind would throw more feed into its cages than was actually needed? 

The slime trail therefore spells out a simple equation. More slime = more feed = more fish. And thanks to the investigation, we also know that Malta’s tuna penning industry this year has (and is feeding) double the quantity of fish in its pens than it is actually licensed to hold. Half the cages are illegal… for different reasons, granted: some are in the wrong place, others are of the wrong size, and a considerable number are licensed to hold different species of fish altogether. Many are a combination of all three.

Whatever the reason for the illegality, however, the implication is clear. As I see it, all those fish they contain are held illegally. Even if the quantity falls within Malta’s international quota for Bluefin tuna… and this, too, is open to doubt because of the irregularities… in industry and legal terms, those tuna are ‘IUU’ (‘Illegal, unreported or unregulated’). Which raises the question: how is this illegality going to be addressed?

In the context of any other illegality, the answer would be obvious. A person found to be in possession of ‘illegally acquired property’ would clearly not be allowed to keep the ill-gotten goods. Apply that logic to Bluefin tuna, however – a single cage-full of which has been valued, again by the industry itself, at €25 million – and you get a different answer. One that looks a lot like the decision the Planning Authority took yesterday with regard to this very case.

This from our news report: “At the end of a three-hour board meeting, the Planning Authority gave fish farm operators two weeks to reach an agreement with the authorities on how to address the vast illegalities in their farms and to come up with a plan to relocate the farms further offshore… ‘If an agreement isn’t reached, then the PA will reserve the right to revoke the permits,’ PA chairman Vince Cassar warned.”

Please note that the purpose of the meeting was actually “to decide whether to revoke the permits of four tuna farms… in the wake of revelations that around half their fish cages were illegal.”

Excuse me for asking, but… what about the fish held inside those cages? If this ‘agreement’ is reached: will they still be slaughtered this month and sold on the international market… even though half of them are IUU? 

If so, kindly note that those exports will be listed in Malta’s official export statistics. This implies that it would not just be the operators in breach of local regulations: the entire country would also be violating European and international law (not to mention numerous conventions to which we are signatory).

This brings us to a couple of curious local political reactions. One of these came from Opposition board member Ryan Callus, who voted in favour of this decision. He was quoted as saying: “it was clear that permit conditions had not been observed and the current situation was not sustainable. However revoking the permits would raise questions on what would happen next… This would be an extreme decision which would see the entire industry operating illegally, he said.”

‘What would happen next’, eh? Let’s weigh the options, shall we? When a planning permit is revoked for multiple infringements, what usually ‘happens next’ is that the illegality is forcibly removed by enforcement notice. In this case, it happens to be spectacularly easy to enforce, too. No demolition even involved: you simply send enforcement officers down to open up the cages and release all the illegally held fish into the wild. Et voila: illegality removed.

Now let us consider ‘what would happen next’ if no action is taken at all… in other words, what really is going to happen, thanks to the yet another toothless PA ruling. The IUU fish will remain penned, and I don’t think they will be kept there for the pleasure of watching them swim endlessly in circles. either. Clearly, if they are not released they will be illegally sold.

Personally, I would consider that to be “an extreme decision which would see [half the] industry [and the entire country] operating illegally”. Yet strangely, Callus seems to prefer that very option, and evidently considers any attempt to actually enforce the law to be ‘extreme’.

That explains a lot about his party’s general attitude towards this issue since the industry first spawned in the early 1990s. It also explains how we ended up in this awful slimy mess in the first place.

Meanwhile, the second remarkable reaction came in the form of a tweet by Prime Minister Joseph Muscat, who said he was ‘Very disappointed Planning Authority failed to decide following decisive action by government on fish farms”.

OK, for a change I won’t question to ‘decisive government action’ part. When I wrote about tuna and slime in 2009, MEPA never actually concluded its investigation, and the Fisheries Department openly doubted that fish-farming was the source. This time round, the PA acted on the issue within weeks. All very commendable.

But Muscat professes to be ‘disappointed’ by the PA’s lack of action. And whose idea was it, might I ask, to dismantle the authority formerly known as MEPA, and strip it of all environmental responsibility: which now falls to the seemingly non-existent ERA? What ‘action’ have we actually seen from these two authorities since that demerger came into force?

Two spectacular cop-outs in quick succession, I’d say. Huge-scale construction projects approved without any input at all from the ERA… which subsequently refused to appeal against at least one of those projects (though it has since sent mixed signals about that… either way, it hasn’t actually appealed).

And now this: a decision that fails to even address the main illegality involved; and  that gives maximum leeway to the ones at fault, without even removing (still less rectifying) the infringement itself.

Ah, well. I guess that means Joseph Muscat is ‘disappointed’ by the fruit of his own environmental policies. He is ‘disappointed’ by how severely his idea of a MEPA demerger has backfired. He is ‘disappointed’ by his own success, at weakening an already pusillanimous planning enforcement capability to the detriment of the environment.

All I can say to that is: his disappointment is nothing compared to mine.