Wednesday, 9 March 2016

Letter to ALAB : Recent High Court Ruling

Salmon Watch Ireland
6 Sutton Castle, Shielmartin Road, D13NN20, Dublin 13 Niall.b.greene@gmail.com
Phone: +353 1 832 4852



8 March 2016

The Secretary
Aquaculture Licences Appeals Board Kilminchy Court
Dublin Road PORTLAOISE
Co Laois


Dear Secretary

I refer to my letter and submission of 15 October 2015 about Salmon Watch Ireland’s appeal in respect of the granting of aquaculture and foreshore licences reference T5/555.

We now wish to draw your attention to the following development which impinges on the basis on which the Aquaculture Licences Appeal Board will be making its determination in this case:
The Supreme Court has recently restated, in three significant judgments, the legal position in Ireland regarding development consents in which important environmental and conservation considerations arise.  This applies in respect   of projects which can have an adverse impact on European Sites that are designated pursuant to the Habitats Directive or the Birds Directive to be Special Areas of Conservation (SACs) or Special Protected Areas (SPAs). The judgments were delivered by Mr Justice McMenamin, Mr Justice Charleton,  and Mr Justice Clarke, in the case of Cromane Foods Limited & Anor -v- Minister  for Agriculture, Fisheries & Food & Ors [2016] IESC 6. Relevant extracts from the judgment are set out below.

While the Cromane case primarily concerned the application of legitimate expectation and public policy in Ireland, it contains important and authoritative restatements of Irish law regarding the application of Article 6.3  of  the Habitats Directive. This involves the central requirement to ensure certainty that  there  remains  ‘’no reasonable scientific doubt regarding the absence’’  of    adverse
effects on designated European Sites, before consents can be given in  situations where there may be risks of adverse impacts.



THE JUDGMENTS
Paragraph 43 of Mr Justice McMenamin’s judgment clearly sets out that all ‘reasonable scientific doubt’ must first be excluded regarding the impact of projects on protected European sites, p. 15.  In relation to the previous European  Court of Justice decision in the Waddensee case 1, regarding appropriate assessments required to be undertaken as part of the consent process he stated, at paragraph 40 of his judgment, that the legal position is:
‘’ that such assessment(s), must be carried out prior to approval being granted, and authority may be given only if the State authorities have made certain that it will not adversely affect the integrity of  that site”.
Mr Justice McMenamin held that there must be no reasonable scientific doubt remaining as to the absence of  such effects.
He went on at paragraph 43 to emphasise that the Court of Justice of the EU held at I – 11077, par. 243 that:
 Under Article 6(3) of  the Habitats Directive, an appropriate assessment of  the implications for the site concerned of the plan or project implies that, prior to its approval, all aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities are to authorise an activity on the protected site only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects. …”

Mr Justice Charleton likewise affirmed the foregoing legal position in his judgment, at p. 23-24, and he went on the say that:
‘None of this is or was, as Hanna J put the matter on page 29 of his judgment in the High Court, “the discretion of the Minister” or “the annual discretion” of the Minister. On the designation of  a site there is no such discretion. It is clear that nothing impacting on a site can occur unless it is certain that it will not affect the integrity of the site. Nothing could be further from any notion of  discretion.’



Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v
 Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C-127/02) [2004] ECR I-07405,                   



Mr Justice Clarke also affirmed the foregoing legal position at paragraph 3 of his judgment which also deals with the EU Legal Framework, p. 45. At paragraph 3.6 he referred to the Waddensee Case, and to Commission v. Ireland Case
2.  At paragraph 3.8 he held that:

‘As a result, it was clear that, as a matter of law, the Minister could not grant any permissions which would have the effect of allowing activity within the boundaries of the protected area unless and until an appropriate assessment had been carried out and such assessment satisfied the requirements identified by the ECJ, being that there was no reasonable scientific doubt as to the absence of adverse effects’.

THE SCIENTIFIC EVIDENCE

The Appellants herein wish to refer to the extensive body of expert scientific evidence regarding the adverse impacts of intensive salmon farming in Ireland as previously referred to. This evidence is now of increased relevance in the light of the Supreme Court judgments aforementioned. In view of the extensive body of expert findings the Appellants submit that it would defy the clearest evidence possible for any reasonable decision maker to now conclude that there is ‘no reasonable scientific doubt as to the absence of adverse effects’.  It is plain that there is an extensive body of international peer reviewed published scientific evidence pointing to the existence of scientific evidence to the contrary. In the circumstances no licence ought to be granted until the risk of such adverse impacts can be excluded beyond ‘reasonable scientific doubt’. (Please see attached reference to scientific reports cited in the Schedule hereto. This Addendum should be read in conjunction with the aforementioned reports).


CONCLUSION.
As a consequence of the foregoing Supreme Court analysis of the overall legal position, the applicable legal requirements, and in reliance on the                     substantial body of expert scientific knowledge advanced in its original submission and in this appeal by this Appellant, and others, it appears that the implications are inescapable.  It is clear that the weight of  the evidence confirming the

2 Commission v. Ireland (Case C-418/04, ECR [2007] I-10947)



existence of ‘reasonable scientific doubt’ regarding the adverse impacts of intensive fish farming of salmon must be recognised. ‘Reasonable scientific doubt’ cannot be excluded in any objective assessment of the intended project. Indeed it is very clear, based on domestic and international peer reviewed expert reports, to be relied on by the Appellant, that significant and ‘reasonable scientific doubt’ does exist regarding the adverse impacts of intensive salmon farming on protected Atlantic Salmon in SAC’s for which they are a ‘qualifying interest’.  Experience and expert scientific knowledge shows that the mitigation measures being taken, in this sector, and those proposed in relation to this particular application, fail to mitigate the adverse effects of  intensive fish farming on those designated sites for which wild salmonids are a ‘qualifying interest’. As a consequence the consent granted in this case ought to be set aside and the licence refused.

ORAL HEARING
In view of  the foregoing legal and scientific authority, which was not available at the time of making our appeal, Salmon Watch Ireland, herein repeats its request for an oral hearing in this matter.  This is essential in order to adequately present its appeal against the licence granted herein. Otherwise this Appellant would be precluded from adequately advancing these important aspects of  its position.

Yours faithfully




Niall Greene
Chair of  the Board






.



SCHEDULE to letter of  7 March 2016 to ALAB


Expert Scientific Reports Cited:

Krkošek, M., Revie, C. W., Finstad, B. and Todd, C. D. (2014), Comment on Jackson ET AL. ‘Impact ofLEPEOPHTHEIRUS SALMONIS infestations on migrating Atlantic salmon, SALMO SALAR L., smolts at eight locations in Ireland with an analysis of lice-induced marine mortality’. Journal of  Fish  Diseases, 37: 415–417. doi: 10.1111/jfd.12157

Krkosˇek M, Revie CW,  Gargan PG, Skilbrei OT, Finstad B, Todd CD.   (2012) Impact of parasites on salmon recruitment in the Northeast Atlantic Ocean. Proc R Soc B 20122359. http://dx.doi.org/10.1098/rspb.2012.2359
McGinnity,P., Jennings,E., deEyto, E., Allott, N., Samuelsson, P., Rogan, G., Whelan, K., Cross, T. (2009) Impact of naturally spawning captive-bred  Atlantic salmon on wild populations: depressed recruitment and increased risk of climate-mediated extinction. Proc. R. Soc. B 2009 276 3601-3610; DOI: 10.1098/rspb.2009.0799. Published 10 September 2009
Besnier, F., Kent, M., Mauritzen, R., Lien, S., Malde, K., Edvardsen, R., Taylor, S., Ljungfeldt,L., Nilsen F., Glover K (2014) Human-induced evolution caught in action: SNP-array reveals rapid amphi-atlantic spread of pesticide resistance in the salmon ecotoparasite Lepeophtheirus salmonis. Available at URL: http://bmcgenomics.biomedcentral.com/articles/10.1186/1471-2164-15-937

Evidence for sea lice-induced marine mortality of Atlantic salmon (Salmo salar) in western Ireland from experimental releases of ranched smolts treated with emamectin benzoate.  http://www.nrcresearchpress.com/journal/cjfas
(In press at the Canadian Journal of  Fisheries & Aquatic  Sciences).


Glover et al. 2014 Mutate Salmon Louse DNA Spread throughout the North Atlantic in 11 years or less. Norwegian Institute of Marine Research, Sea Lice Research Centre at the University of Bergen.