Not all doom and gloom… or slime | José Herrera

As Environment Minister Jose Herrera will later point out, the chair I am sitting upon – at the head of the boardroom table at the very impressive Casa Leoni in Sta Venera – is ‘the hottest seat in the island’. 

It is in this chair that Herrera takes the decisions that guide Malta’s environmental policies. And with public concern about the environment currently at an all-time high, such decisions are never easy.

This interview itself takes place against the backdrop of several environmental controversies. Let’s start with fish farming. This week, Herrera announced the results of his ministry’s investigation into the cause of the ‘mysterious’ thick oily slime that has polluted our beaches for years. No one was particularly surprised to learn that the trail of ooze led directly to the fish farms around our shores.

What was slightly surprising, however, was the sheer extent of the illegalities uncovered by the investigation. As many as half the operational tuna cages – each worth €25 million when full – are unlicensed or in breach of their permit conditions.

And yet, when faced with such widespread disregard of the law, the Planning Authority’s only response was to call on aquaculture operators to present a plan of action within two working days. 

Doesn’t this hammer home the impression that the local regulatory authorities – the PA, the Environment and Resources Authority, and (in this case) the Fisheries Department – are in fact powerless to enforce the law with the rich and well-connected?

“Let me start by giving some background on the fish farming industry,” the minister begins. “Malta’s aquaculture industry started out in 1993. It started out small, but has since grown considerably. Last year, statistics show that there was more production of fish through fish farming than through direct fishing. This in itself is a good thing, because if fish farming is done in a sustainable way, it will help us preserve fish stocks…”

But given what we now know: how can we talk about this industry as sustainable? Even without the illegalities, tuna penning is not strictly speaking ‘farming’ at all. The tuna are taken from the wild; they are not bred in captivity, as is the case with farmed fish…

“Unfortunately, Bluefin tuna is a species which cannot be bred domestically. No one has yet succeeded in producing tuna on an industrial scale through breeding. But I don’t agree that it’s not sustainable. Originally, this type of tuna penning was indeed unsustainable, because there were no quotas. Today, the EU has set a number of quotas, and therefore the quantity of tuna that can be taken from the wild has been limited. There has been a drive to make tuna stocks sustainable; and up to a certain extent, this EU policy has borne fruit. The Mediterranean blue fin tuna stocks are slowly replenishing themselves – they’re not back to the levels of 50 years ago, but European policies are having an effect. Tuna penning can be carried out in a sustainable way, so long as it is done according to law…

But isn’t that the whole point? Herrera’s own investigation has established that Malta’s tuna penning industry is not in conformity with the law. If Malta’s tuna penning industry doesn’t observe local laws and permit conditions… how can they be trusted to observe EU regulations?

“I cannot affirm at this point in time that the investigation has proved that there is more tuna than was legally admissible. What we have managed to prove – and which is just as bad – is this: yes, there were a number of serious irregularities over a number of years, reaching a critical level lately. But I must also underline that the number of cages does not necessarily reflect the quantity of tuna they hold. When we say ‘Malta is allowed to catch so much tuna’, it doesn’t mean they all have to be put in cages. Some of them might be slaughtered for local consumption. The number of cages in itself does not indicate that Malta exceeded its quota…” 

There are however other indications. Herrera’s own investigation was sparked by an increase in the oily slime drifting from tuna cages towards the shore. This slime is caused by a combination of natural oils produced by the tuna themselves, and the fish food which they are fed. Aerial photographs show large quantities of slime emanating from tuna pens. This indicates that those cages are bursting with tuna…

 “As soon as this issue was brought to my notice – I inherited it in July – I took immediate action. I wanted to take stock of the situation. I didn’t have the data, so I appointed a ministerial committee involving the three regulators: the Planning Authority, the ERA and the Director General of Fisheries. The first thing I wanted to know was whether the slime was coming from the tuna pens. It took a couple of weeks, but we concluded that it was. Secondly, I wanted to know the extent of the infringements. Here again, it resulted that there were a number of infringements, including the fact that tuna pens were supposed to be relocated to an area designated by the PA: six kilometres out to the southeast. It doesn’t mean, however, that we are infringing EU legislation.

But it does mean that we are infringing our own legislation. Why so much emphasis on European quotas, when the problem we are all faced with – the slime on our beaches – is caused by disregard for local laws, not European ones?

Herrera acknowledges this, but adds that action has already been taken. “One of the problems was that the three regulatory authorities were acting in a disjointed and uncoordinated manner. The Fisheries Department felt its duty was limited to vetting how much tuna could stay in one cage. There had to be co-ordination, which wasn’t the case, to also check whether those cages were permitted by the PA. So the quantity of fish in each cage was according to law; but the number and size of the cages were not…”

That was not the only failure of the regulatory authorities. The entire country (even from the Gozo ferry) could see that some of those farms had doubled in size. How was this glaring illegality invisible to the authorities that are supposed to be checking such issues?

“The PA as such isn’t at fault. There was a study in 2012 by Sterling University, which concluded that tuna penning should be done offshore; and the PA decided to transfer the pens to that zone. There was a particular company that challenged the law for administrative reasons. The courts however rejected their submissions, but the process was stalled…”

This doesn’t explain why no irregularities at all were ever noticed by the authorities. Doesn’t this raise suspicions? Has it occurred to the minister to extend the investigation to the regulators themselves, to find out if there was corruption involved? 

“I’m a person who hates illegalities. I’d like to make it clear, that if any allegation of corruption landed on my desk, I would immediately pass it on to the police… Honestly, however, I don’t think the issue was corruption. I think it was a lack of co-ordination between the authorities. The PA issued a number of enforcement orders. But it didn’t have the whole picture.

“That is something I decided to have. I wanted to take stock. This ministry was receiving criticism – justly so – and I decided I had to take action. But two things must be borne in mind. When the PA issued enforcement orders, they were appealed. Before the demerger, the PA unfortunately did not have the power to issue emergency enforcement. Today – and this is one of the positive things about the demerger – the PA has wide-ranging powers. In extremis, they can issue an enforcement order, so long as the Environment Authority states that there is an environmental emergency. This is this new power at their disposal, and now… I wouldn’t say I ‘directed’, but I suggested that they should use these powers to deal with the issue…”

Have they, though? Has the PA sent enforcement officers to open up the illegal cages, and re-release the illegally held tuna back into the wild?

“In this case, the ERA issued a letter to the PA stating that there is an environmental emergency. Upon receiving that letter, the PA issued an emergency enforcement. Don’t forget that these entities are quasi-judicial when it comes to individual decisions. I can’t interfere. For prudence’s sake, the PA felt the need to ask the five or six tuna pen operators for a plan of action…”

That takes us back to the original question. For all its discretionary powers, the PA is reluctant to take action when there are multi-million corporate interests involved…

“What I can say is this. I have directed ERA to investigate according to the Environmental Protection Act, whether there are grounds to issue a letter to the Attorney General to prosecute them. So yes, action is being taken… I did give a direction to the relevant authorities, and they are in consultation to see whether there are grounds for these people to be prosecuted. I agree they should be prosecuted…”

Meanwhile, on the subject of ministerial direction, we have recently seen a spate of government initiatives that call into question the present administration’s environmental credentials. Examples include an amnesty to sanction illegal development against payment; revisions to SPED (and other laws) that permit ODZ construction in the case of ‘national projects’… as well as the redevelopment of countryside ruins into residences. We also saw how the MEPA demerger resulted in an ERA that didn’t even give any input in the Sliema and Mriehel high-rise decisions. The permits were approved, even though a national master plan for high-rise  has not been finalised.

Is this the direction Herrera has in mind? Because it seems to point towards a lack of planning, rather than a strengthening of environmental protection…

“These are the questions I am supposed to face, and I will face them. But I have to say, it’s not all doom and gloom. Traditionally, environmental issues were skipped over the years. Priority for the environment was not pronounced. But as we became more emancipated, and the quality of life improved, interest in the environment is now a priority. Today, I would say that the environment is definitely one of the hottest and most spoken-about topics on the political agenda. Now: I want to defend the government a bit… and criticise the Opposition. That’s my job as a politician. The Opposition’s environmental credentials are not [made of] gold…

Sorry to interrupt, but the PN’s environmental policies are actually identical to those of the present government. All the examples I mentioned earlier could be applied to the PN as much as Labour…

“But the Opposition is criticising us over the environment… even though most of what is happening is its own doing. In 2006/2007 the Nationalist government substantially extended the development zones. When you see buildings going up today, it doesn’t mean that those permits were issued under this administration. They are the fruit of the ODZ rationalisation. Another thing to keep in mind is that, in 25 years under the Nationalists, almost a third – more than 30% – of all agricultural land has been included in the development zone. That is also very disturbing. When we come to high-rise: if you see the policy before the reform, there was practically the possibility to apply for a high-rise permit all around the country. That’s why it’s not all doom and gloom… because one of the things we did is to limit the areas where a person can potentially apply for high-rise to only five or six areas…”

On paper, perhaps. But that’s not what happened in reality. Mriehel, for instance, was not included in the original high-rise policy document. It was added after the consultation period ended…

“I don’t think the start-off point should necessarily be that high-rise is taboo in Malta. What is good about our high-rise policies is that: first of all, contrary to before, today you have to have a footprint that is four times larger than what you build. That creates open space, 50% of which must be accessible to the public. The development must be surrounded by four roads. There has to be enough internal parking…

But all these policies were systematically flouted in the Sliema and Mriehel decisions. Mriehel doesn’t have sufficient parking, yet the developers still got a permit. In Sliema, the ‘four roads’ turned out to be three. Not to mention the lack of provisions for an additional 3,500 cars driving into Sliema each day…

“I’ll come to that later. The most important policy is that the flats themselves have to be larger than normal flats. They cannot be ‘gabubi’, but nice, high-class flats. Secondly, they cannot be more than what would be permitted in the whole area. So the question should be, what would be best for the environment: to have a high-rise building with a footprint four times larger, half of it open to the public… enough parking for everyone… or the whole area built up 12 storeys high, with not a square inch open?”

That’s not what we’re getting, though, is it? I already pointed out that the PA ignored its own policies on parking and accessibility when approving those projects. And besides, why should those two be the only options, anyway? How about the PA refusing permits to protect the quality of life of residents… on the basis that certain areas (Sliema being a classic case in point) are already saturated with development?

“Because if a plot of land is not ODZ, and it is owned privately, I don’t think it is reasonable to reject applications to build. There is no legal justification to stop that development…”

All the more reason to rigorously enforce planning policies, then. Yet this is not happening either. Then there is an economic consideration. By Herrera’s own admission, the flats have to be of a high quality – which also means they will be priced out of reach of any existing local market segment. This creates inflationary pressure on property, which has already gone up by 67% in recent years. Where does this leave first-time buyers?

“It is this government’s policy, take it or leave it, to be pro-business. It wants to attract foreign direct investment, to grow the GDP, create employment for everybody, and to improve the standard of living. To do this, we cannot be closed within ourselves. So yes, there have been a number of schemes aimed at attracting foreigners to live in Malta...”

But to what extent are we willing to bend our own planning policies to accommodate these people? On such a small island, does it make sense to prioritise an economic policy that values over-development more than environmental protection?

Herrera however insists that both those objectives can be achieved simultaneously. 

“When it comes to protecting the natural environment, I am extremely sensitive. Let me tell you what I’m going to do to protect the environment: during these last three months I have been working incessantly to create new natural reserves. I’m setting up a team to declare large tracts of land as ‘public domain’. This way, no government – including my own – would be tempted to destroy it. In the coming days we will hear of a new, very large national park. So yes: in areas that are ODZ, there you will find me super-protective…”