As I have previously been engaged by the fish farmers in Western Norway in the traffic light cases, I would like to clarify that what I am writing are my own opinions.
At the turn of the year 2023/2024, the status of the production areas will be settled again. It will be determined which areas will get a green light and growth and which areas will get a red light and reduction in the period 2024-2026. Based on the previous traffic light rounds, it is my opinion that at least two changes in the case processing must be implemented in order to ensure that it is in accordance with the regulations and the framework set by the Storting. One is that the consideration of population development for wild salmon must be given greater emphasis. The other is that the Ministry of Trade, Industry and Fisheries must carry out a more thorough review of the professional basis for the traffic lights to ensure that the production is controlled in accordance with the Storting’s intentions.
The professional discussion around the basis for the traffic lights is well underway. Both NORCE and HI have published research results that are presented as indications that there are a lot of lice on wild salmon in Western Norway. The organisation of the fish farmers in Western Norway has just published an article which, among other things, presents numbers showing a positive development of stocks of wild salmon and sea trough in Western Norway.
The legal basis for the traffic light system is specified through the court case concerning the reduction in PO 4 in 2020. The case was concluded through a legally binding judgment from the Gulating Court of Appeal of 3 May 2022. One of the most important conclusions in the judgment is that the management has a great deal of freedom in the exercise of its discretion when the traffic lights shall be determined. It would take a lot before the courts intervene, also regarding strongly intervening decisions towards individual fish farmers as is the reality of red light and reduction.
Pursuant to this, the reality is that the intervening decisions on lighting in the traffic light system are not subject to the administrative and legal control that we have otherwise established in our society. The decisions cannot be appealed to a superior administrative authority, and they are not subject to substantive court review. Pursuant to this, only the case processing in the Ministry of Trade, Industry and Fisheries can ensure that the professional basis for the traffic lights corresponds with the framework set by the Storting. In other words, the legally binding judgment from Gulating Court of Appeal places a great deal of responsibility on the Ministry.
Here, there is reason to note that both in 2017, 2020 and 2022, criticism was made against the Ministry’s case processing before the traffic lights were implemented. This applied both to the content of the assessments published by the Ministry and the lack of access to key documents. In my opinion, there is therefore reason to believe that the Ministry must carry out significantly improved case processing before concluding on the traffic lights for 2024-2026.
It is also a professional issue where, in my opinion, it is necessary for the Ministry of Trade, Industry and Fisheries to make new assessments if the professional expertise does not supplement its professional starting point. The Expert group and the Control group that carry out professional assessments of the traffic light system have limited themselves to assessing what they call “salmon lice-induced wild salmon mortality” since 2017. That is, they assess the extent of which wild salmon smolts that swim from the rivers to the ocean die because of salmon lice. This term was, as I understand it, introduced by the professional experts themselves after several research environments had discussed in autumn 2016 how the professional work on the traffic light system should be implemented.
However, this is not the term that the Storting used when they processed the traffic light system in 2015. Both the Storting notification and the Standing Committee on Business and Industry’s proposal (Proposal 361 S (2014-2015)) are clear that it is the population development that shall be assessed in the regulations. When the Ministry of Trade, Industry and Fisheries are to assess the professional advice related to the traffic light system, they must of course base themselves on the Storting’s understanding of the regulations. In other words, if the stocks of wild salmon in a production area increase, there would be no basis for setting a red light, even if the professional assessments otherwise indicate that a lot of wild salmon smolt die due to lice.
Politically, the traffic light system is also undergoing change, but the changes are not likely to be implemented before the status for 2024 is to be settled. The future of the traffic light system is part of the Aquaculture Committee’s mandate and will therefore likely be processed in the NOU this Committee will publish this autumn. The changes that may be proposed in that shall be sent for consultation and be politically processed, probably over several years.
Comment published on IntraFish’s website, written by regular guest writer, lawyer and partner Halfdan Mellbye.
