IPNLF explain why it believes the Independent Adjudicator decision to uphold the CAB’s determination to re-certify the PNA skipjack fishery creates inequity in the market place and jeopardises efforts on shark conservation and FAD management.
The MSC recognises that stakeholders play a very important role in maintaining the rigour and credibility of its ecolabelling programme and have said that their participation ensures that the standard is applied consistently by all the Conformity Assessment Bodies (CABs). The International Pole & Line Foundation (IPNLF) has engaged in the recertification process of the Parties to the Nauru Agreement (PNA) skipjack tuna fishery right from the beginning of the process and in the prescribed manner. The FAO guidelines on ecolabelling make it clear that fishery certification schemes should be transparent, which includes the balanced and fair participation by all interested parties, and that certification outcomes should be based on the best scientific evidence available.
It is the conviction of IPNLF that clear scientific evidence was presented during the assessment of the PNA fishery to show that the fishery did not meet the MSC standard and that the CAB did not adequately consider this evidence when recommending that the fishery be recertified. Based on this, IPNLF decided to lodge an objection against the CAB’s decision in the hope that the Independent Adjudicator (IA) appointed by the MSC would fairly evaluate the issues based on their merit. During the objection process IPNLF has had to contend with inflammatory public statements, casting doubt about our reasons for raising issues which we felt clearly undermine the concepts of sustainability. From the beginning IPNLF has focused on the scientific evidence and have expected the precautionary approach[1], as embodied in the United Nations (UN Fish Stocks Agreement and the FAO Code of Conduct for Responsible Fisheries, to be applied in the assessment.
Compartmentalisation
IPNLF is surprised and concerned by the IA’s decision to uphold the determination of the CAB to recertify the fishery. Despite this ruling by the IA it is still IPNLF’s belief that the PNA fishery does not currently meet the MSC standard and should not have been recommended for recertification. The basic principle that should apply is that fisheries should only be recognised as truly sustainable when all of their fishing operations have been subjected to scrutiny, and have been found to meet the standard. The MSC itself has recently recognised that a system which allows for the artificial compartmentalisation of some fishing activities during a single trip, while ignoring serious environmental impacts during the rest of the trip, is not a workable solution. This has prompted them to revise their policies so that in future a fishery will have to be assessed against all activities on a target stock on a single trip[2]. Unfortunately these new requirements have not been applied to the PNA fishery and the fishery has been exempted for a further three to four years from implementing measures which the MSC themselves have said “will help support further improvements in fisheries”.
No one has disputed IPNLF’s characterisation of the way in which the PNA fishery operates. During a single fishing trip most purse seine vessels will fish on free-swimming schools as well as on FADs. Despite this, the only part of the fishery assessed was the fishing activities on free-swimming schools, or so called ‘FAD-free’ tuna. The serious environmental impacts associated with FAD fishing and FAD use in general by the same vessels, during the same trips, were specifically ignored by the CAB when assessing the PNA fishery.
This false distinction between ‘sustainable’ ‘FAD-free’ tuna and ‘unsustainable’ ‘FAD-caught’ tuna, undermines the notion of rewarding sustainable fisheries and driving improvements on the water. Many environmental organisations agree that unless purse seine tuna fisheries are assessed holistically, and all of their impacts are considered, they should not be rewarded for being partly ‘sustainable’. There is no logic in claiming that a fisher fishing on free schools in the morning can be ‘sustainable’ while the same fisher is supposedly ‘unsustainable’ when fishing on FADs in the afternoon.
Inequity of assessments
The PNA ruling also raises serious concerns around equity in how fisheries are assessed. Small-scale and artisanal tuna fisheries such as those using pole-and-line, handline or troll gear are expected to subject all their fishing activities to scrutiny when entering assessment against the MSC Standard.
If large-scale industrial fisheries, such as the tuna purse seiners operating in the PNA fishery, can obtain the same market recognition as small-scale tuna fisheries by only subjecting a part of their fishing activities to the assessment, it creates an unfair market advantage for such fisheries.
One of the key principles of the FAO Guidelines for the Ecolabelling of Fish and Fishery Products from Marine Capture Fisheries is that certification schemes should be “non-discriminatory”, and “not create unnecessary obstacles to trade and allow for fair trade and competition”. A number of other international instruments such as the Agreement on Technical Barriers to Trade under the World Trade Organization (WTO) rules, the UN Sustainable Development Goals (SDGs) and the FAO’s Small-scale Fisheries Guidelines make it clear that small-scale and artisanal fishers should be provided with equal access to markets.
Adding the burden of additional cost and complexity to small-scale fisheries to ensure that all of their fishing activities are sustainable and meet the MSC standard, while allowing tuna purse seiners, which are regarded as some of the most sophisticated and expensive fishing vessels in the world, to only worry about the sustainability of half of their fishing operations, seems patently unfair. This unfairness is emphasised by the difference in their operations. While tuna super seiners, equipped with a vast array of sophisticated electronics, can net 3,000 tonnes of tuna in a single fishing trip, tuna handline boats, with one or two fishermen on board, catch one or two tuna on a good day.
Shark conservation
The artificial distinction between sustainable and unsustainable fishing practices on the same fishing trip has seriously undermined shark conservation efforts in the Western and Central Pacific Ocean. A worrying trend is that since the PNA fishery was first certified in December 2011, during the lifetime of their five-year certificate, the number of IUCN red-listed silky sharks caught during fishing operations has almost doubled. The WCPFC Scientific Committee[3] stated that observers reported 61,738 silky sharks caught as bycatch in 2016 by the large-scale purse seine fleets operating in the WCPFC, of which the PNA fishery contributes about 80% of catches. This compares to 36,616 in 2012. These numbers exclude those killed by ghost fishing, whereby sharks and other marine species get entangled in the netting of drifting FADs. It is possible that ghost fishing mortality could be as high as 5-10 times more than the bycatch figures based on studies in other ocean areas[4]. Due to the fact that the Unit of Assessment in this fishery is focused on the FAD-free fishing activities of the vessels only, the impacts of the FADs and of FAD fishing are ignored and no condition has been raised to address the fishery’s impact on threatened and endangered species.
One of the key issues raised by IPNLF in its objection relates to shark finning. Shark finning is unlawful in the PNA. This does not only relate to the act of shark finning and the discarding of the bodies of the sharks, but also to the possession, transhipment or landing of shark fins.
The MSC policy on shark finning is also very clear. Its Board resolved that any fishery engaged in shark finning from 2013 onwards would not be eligible for certification. The MSC stated that “MSC requirements prohibit shark finning; and a fishery will be scored on the level of certainty that shark finning is not taking place. The conformity assessment body (CAB) should not certify or maintain the certification of a fishery when there is objective verifiable evidence of shark finning.”
The IA and CAB agree that there have been 429 unlawful acts of shark finning in the UoA in the period 2012-2015. As already shown this number is likely to be much higher when taking into consideration that having shark fins obtained from FAD sets, stowed next to MSC-certified catch, is also illegal. Therefore, it cannot, on any analysis, be said that it is “highly likely that shark finning is not taking place”. The MSC’s policies and guidance make this clear.
The CAB also made the fundamental error of ignoring shark finning incidents that occurred on FAD sets on the same vessels, during the same trips that produced MSC-certified fish. The CAB’s reasoning that the illegal fins obtained when vessels were fishing on FADs somehow belonged to another ‘fishery’, suggesting that it is acceptable to fish “illegally” and “legally” on trips producing MSC-certified products. Such an argument distorts the scientific reality. The fact that these illegal fins were being transported alongside MSC-certified fish on the same vessels seems to have been completely ignored. The possession of shark fins on board a fishing vessel operating in PNA waters is illegal, regardless of whether the fish was caught on a free school set or on FAD sets. IPNLF pointed out this flaw in the CAB’s interpretation of the legal aspects of shark finning during the objection process, but the IA chose to ignore this.
The real figures on shark finning paints a very different picture to that presented by the CAB. Observer records show that in 2014, when the MSC ‘ban’ on shark finning was already in place, 798 shark finning instances were reported in the WCPO purse seine fishery. As the purse seine fishery in PNA waters accounts for around 80% of the WCPO purse seine catch, it can be assumed that 638 shark finning incidents were reported from vessels operating in PNA waters. In 2015, when the CAB claimed that only 14 shark finning incidents could be connected to the fishery, observers in fact reported 315 incidents in the WCPO purse seine fishery, with an estimated 252 incidents occurring in PNA waters.
Another major shortcoming in the assessment is that the CAB provided no evidence of successful prosecutions or sanctions against vessel captains or owners when shark finning occurred, even for those cases which they admitted were happening in the certified fishery. If the MSC and PNA truly want to eliminate these practices from their supply chains, then merely calling them “illegal” is not good enough.
It is well-known that shark finning is a black market activity and it is highly likely that observer records underestimate the extent of the problem. With no evidence of successful prosecutions (what MSC refers to as “external validation”), and reports of intimidation and bribery of observers, the claim by the CAB that there is a “high degree of certainty that shark finning was not taking place” seems overly optimistic at best, and certainly not in line with the precautionary approach.
MSC’s private Interpretation Log
The CAB referred to MSC’s Interpretation Log, a private interpretation that was only available to the CAB and MSC, as justification for their score on shark finning. However, the IA confirmed that: “…it is not legitimate for the CAB to rely on the Interpretation Log when assessing the PNA’s Fishery’s compliance…”, and, “It is wrong for a publicly available standard to be interpreted based upon a privately available policy…” and finally with reference to the MSC’s transgression “It is … surprising, … that when asked the MSC did not disclose the full Log to the parties”.
The IA therefore concluded that: “I agree with the Objector [IPNLF] that the [CAB’s] scoring of the shark finning indicator was arbitrary because it relied upon a document which was illegitimate and unfair…”
It is of great concern to IPNLF, and hopefully to all stakeholders, that having found the CAB’s scoring of shark finning to be arbitrary, the IA then upheld the CAB’s scoring based on a personal view and interpretation. This was done without referring to any arguments put forward by the CAB at the objection hearing nor did the IA express these views at the objection hearing.
In that respect it is IPNLF’s view that the logic applied by the IA is fundamentally flawed. In his justification of the CAB’s scoring, the IA stated: “The overall purpose is to assess the fishery to ensure it has in place a management strategy which is operative and effective to ensure shark fining is not taking place. Given the reduction in shark finning cases from 2012 to 2015, seen against the scale of the PNA fishery, the strategy has resulted in it being highly likely that shark finning is not taking place at any assessed time”.
The IA and CAB agree that there have been 429 unlawful acts of shark finning in the UoA in the period 2012-2015. As already shown this number is likely to be much higher when taking into consideration that having shark fins obtained from FAD sets, stowed next to MSC-certified catch, and is also illegal. Therefore, it cannot, on any analysis, be said that it is “highly likely that shark finning is not taking place”. The MSC’s policies and guidance make this clear.
IPNLF cannot understand how an act that is prohibited by the MSC and is illegal in numerous jurisdictions, can be regarded as acceptable if there is supposedly a strategy in place to eradicate it and without any clear evidence put forward that such a strategy is working. For instance no proof was provided of successful prosecutions connected to the 429 shark finning transgressions mentioned.
All the NGOs working with tuna fisheries at the WCPFC have for many years urged a greater level of transparency in compliance issues and recognise that the WCPFC is significantly less transparent than its four peer tuna RFMOs. For instance the International Seafood Sustainability Foundation (ISSF) recently stated that “WCPFC’s limited information-sharing and closed decision-making regarding the assessment of its members’ compliance with WCPFC conservation measures have undermined tuna-conservation progress in the Western and Central Pacific Ocean” and “it has reduced public confidence in the effectiveness of this organisation”.
Ignoring Ecosystem Impacts
Another troubling element that the CAB overlooked is the impact that lost FADs have on marine ecosystems when they are abandoned or wash ashore in sensitive coastal habitats. Both the CAB and the PNA would argue that the impacts of tens of thousands of abandoned FADs and the ghost fishing and habitat damage that result from this, are not part of the certified fishery. It is, however, abundantly clear that FADs are lost and abandoned by the same boats that are part of the MSC-certified fishery and that this all happens on the same trips where MSC-certified skipjack is caught. Incredibly, the ghost fishing, marine litter, and habitat damage that result from these fishing trips were excluded from the assessment, and the same vessels that deploy FADs with no accountability are the very ones benefiting from the ‘sustainable’ MSC accreditation.
A missed opportunity for the MSC
IPNLF feels that rather than creating greater transparency and improving the overall sustainable management of tuna fisheries in the WCPFC, the recertification of this compartmentalised fishery will have the opposite effect. No real efforts have, for instance, been made to solve issues associated with FAD fishing activities of the PNA fishery as they will be rewarded by the MSC in the market place, regardless of whether they manage FADs or not.
There is no doubt that certifying only part of the fishing activities of a trip when targeting the same species can have serious unintended consequences. These could include excessive pressure on observers deployed on fishing vessels to validate fishing mode separation, fraud in the market and manipulation of scientific data that is essential to determining the stock status of the relevant species.
It is IPNLF’s contention that tuna purse seine fisheries can potentially attain certification, but only if a holistic approach is followed and concerted efforts are made to address all the impacts of their fishing operations.
[1] The principle that the absence of adequate scientific information should not be used as a reason for postponing or failing to take measures to conserve target species, associated or dependent species and non-target species and their environment.
[2] Although this is a step in the right direction, IPNLF still feels it leaves open the possibility of an unsustainable trip followed by a sustainable trip and the only option for true sustainability would be look at a fishery holistically and to include all their environmental impacts in an assessment.
[3] T. Peatman, V. Allain, S. Caillot, P. Williams, and N. Smith. 2017. Summary of purse seine fishery bycatch at a regional scale, 2003-2016. WCPFC-SC13-2017/ST-WP-05.
[4] Filmalter John, Capello M., Deneubourg J. L., Cowley P. D., Dagorn Laurent. (2013). Looking behind the curtain : quantifying massive shark mortality in fish aggregating devices. Frontiers in Ecology and the Environment, 11 (6), 291-296