On Monday 16 January, the legal battle between the Norwegian-owned multinational Cermaq (operating in British Columbia as Mainstream Canada and EWOS Canada) and Don Staniford of the Global Alliance Against Industrial Aquaculture kicked off in the Supreme Court of B.C. in Vancouver. The trial is scheduled to last for four weeks and run for 20 days – until 10 February.
The court case (in room #52) resumes at 10am on Monday 23 January – Nelson/Hornby St. entrance (court hours are 10am to 4pm with a 12.30pm to 2pm lunch break).
Here’s a summary of the first week as the battle lines were drawn. "Staniford loses first round," trumpeted Norwegian Fish Farmer magazine (20 January). "In a futile attempt to use any little scrap of dirt he could possibly dig up from any and all salmon farming operations around the world in order to defend his ridiculously childish and incredible accusations published on the Internet, Don Staniford desperately tried to convince a Supreme Court of British Columbia that this would be appropriate. But Madam Justice Elaine Adair wouldn’t have any of it, stating that the defamation suit by Mainstream Canada against Mr. Staniford was not a case about the activities of fish farms globally."
Day 1: Monday 16 January 2012
David Wotherspoon of Fasken Martineau (acting for the plaintiff Mainstream Canada/EWOS Canada – a subsidiary of the Norwegian Government owned company Cermaq) starts the proceedings with his ‘Opening Argument.’
Cermaq’s lawyer makes the case to Justice Elaine Adair (the sole judge presiding over the case – there is no jury) that the mock cigarette packets employed by the defendant Mr. Staniford via the ‘Salmon Farming Kills’ campaign “draw odious comparisons”. “Mr. Staniford is welcome to attack the salmon farming industry,” says Mr. Wotherspoon. “But he has to attack within the balance of the law.”
Mr. Wotherspoon proceeds to undermine Mr. Staniford’s character and refers to the defendant “wearing a pseudo-condom on his head” during his various public appearances as Captain Condon (more details via Superheroes 4 Salmon and ‘Captain Condom’) as well as a ‘Merchants of Death’ reference on the GAAIA web-site (online here).
“This case is not about about the right to free speech,” argues Mr. Wotherspoon. “Mr. Staniford appears to be motivates by spite and ill-will.”
Mr. Wotherspoon refers to the defendant’s previous history of being embroiled in lawsuits in Scotland and in Canada (the ‘Creative Salmon’ case which Mr. Staniford won on appeal – details online here).
“Why is Mr. Staniford’s history of lawsuits relevant?” asks Justice Adair (no relation to Red Adair – the famous oil fire-fighter).
“It goes to malice and a history of ill-will,” replies Mr. Wotherspoon.
“I ask this court to measure the sting of the GAAIA campaign,” says Mr. Wotherspoon. “The GAAIA campaign is clearly concerning Mainstream Canada.”
“The collective combination and juxtaposition creates the sting,” argues Mr. Wotherspoon. “The Defendant has not pled alternative meaning. That door is now closed.”
“There are no adverse health effects of eating farmed salmon,” argues Mr. Wotherspoon who points to an expert report from Dr. Michael Gallo which states that there is no data on health risks of farmed salmon.
“Comment cannot be a cloak for mere invective,” says Mr. Wotherspoon. “Malice defeats fair comment.”
“Mr. Staniford has already provided various admissions that he is out to attack and stop salmon farming,” says Mr. Wotherspoon. “He has demonstrated spite and ill-will to the plaintiff.”
“I want to turn to the Cohen Commission,” says Mr. Wotherspoon. “Mr. Staniford wrote extensively via Superheroes 4 Salmon and this is circumstantial evidence of malice. He published photos and comments comparing Cohen Commission staff to Eva Braun (Hitler’s girlfriend) and Adolf Hitler. This is evidence of his malice and demonstrates the depth of his spite and ill-will.” (read the offending blog ‘What’s Cohen On?’ online here).
“He shows in his attack on industrial aquaculture a disregard for the rule of law,” argues Mr Wotherspoon. “Mr. Staniford knowingly disclosed documents that were subject to an undertaking of confidentiality.” (read those confidential documents online via ‘Fishyleaks’).
“As a remedy the plaintiff is seeking a claim for general damages of $100,000 and an order of punitive damages of $25,000,” concluded Mr. Wotherspoon. In addition, the plaintiff is seeking a permanent injunction from publishing material.”
Justice Adair then dealt with an argument over the disclosure of various documents requested during the ‘Examination for Discovery’ of Cermaq’s former CEO Geir Isaksen in Vancouver in September 2011 (Cermaq refused to disclose information).
“Cermaq cannot hide behind the corporate veil,” argues David Sutherland (legal counsel for the defendant Don Staniford) as he refers Justice Adair to Cermaq’s ‘company structure’ which has the plaintiff at the bottom of the food chain (online here).
“We’re in the territory where answers are obliged,” argues Mr. Sutherland.
[Watch David Sutherland on Norwegian TV – online here]
“We seem to have a corporate entity which doesn’t exist,” says Justice Adair.
“Mr. Geir Isaksen made a mistake on how Cermaq is organized relative to Mainstream Canada and EWOS,” admits Mr. Wotherspoon.
“Mr. Isaksen was not the best witness - there will be gaps in his knowledge,” argues Mr. Wotherspoon (ignoring the fact that Geir Isaksen was the CEO of Cermaq for over a decade – in fact the only CEO Cermaq has ever had).
“I am a little confused Mr. Wotherspoon,” says Justice Adair (who seems to be perplexed at the shell game being played out in her courtoom).
Brock Thomson, the plaintiff’s first witness, takes the stand. Mr. Thomson is an area manager for three salmon farming sites in the Campbell River area. Mr. Thomson says that his job is “making sure we hit the targets”.
The plaintiff plays a short video of salmon farming detailing how salmon is farmed in a sustainable way and farmed salmon is healthy. The video refers to “hungry seals and sea lions” but does not show dead sea lions caught in nets for example (watch that video nasty online here via ‘The Sea Lion Story’).
“Our focus is sustainable aquaculture,” testifies Mr. Thomson. “Keeping fish healthy is critical.”
A press release – “Mainstream Canada begins trial to defend reputation” - issued by Mainstream Canada stated:
“In response to a prolonged and deliberate attack on our company and our employees, Mainstream Canada has been forced to defend our reputation against unfounded and irresponsible accusations by an anti-salmon farming activist.
During the trial, which begins January 16, 2012, we will defend the reputation of our company, which is proud to be the first salmon farm in the world to be certified to the Aboriginal Aquaculture Association's Aboriginal Principles for Sustainable Aquaculture standard and the Global Aquaculture Alliance's Best Aquaculture Practices new standards for farmed salmon.
Mainstream Canada operates under some of the strictest regulations in the world that govern the aquaculture industry. There are currently 73 pieces of federal and provincial legislation that regulate every aspect of our business, from environmental protection to fish health to food inspection for human consumption. Canada is also a signatory or member to several different international agreements or organizations which affect aquaculture.
Mainstream Canada's focus is on sustainable aquaculture. Our employees are proud of our reputation for producing quality salmon, and our respect for the local environment and the communities in which we operate.
While healthy debate on issues is a vital part of healthy communities, false and injurious statements are detrimental to these values and harmful to the interests of a free and democratic society. Mainstream's legal arguments will show that the damaging allegations published by the activist are malicious and unsupported by facts or fairness.”
Day 2: Tuesday 17 January 2012
Mr. Brock Thomson of Mainstream Canada continues his evidence. “Eggs are exposed to infections,” says Mr. Thomson. “We don’t want to pass on any diseases.”
Colleen Dane of the BS Salmon Farmers Association (BSCSFA) and Laurie Jensen of Mainstream Canada are Tweeting away like turkeys with bird-flu at the back of the courtroom.
“We look for signs of clinical disease,” says Mr. Thomson. “The survival rate is 90-92%.”
[So that means at a 90% survival rate – i.e. 10% mortality rate – there’s 50-60,000 dead farmed salmon at each site which holds 500-600,000 salmon and around 1 million ‘morts’ at Mainstream Canada’s 27 farms (20-23 may be active at any one time)]
“We choose deep sites to reduce the impact on the benthic environment,” says Mr. Thomson. “We have a routine mortality extraction and a ‘Fish Health Management Plan’.”
“Some fish do die,” admits Mr. Thomson as he is being led by his lawyer David Wotherspoon. “The biggest source of mortality is entry into saltwater. Morts are retrieved via uplifts and divers.”
“We’re unable to transfer sick fish – stock must be free of clinical signs of disease and must be signed off by our vet,” says Mr. Thomson who is proudly wearing his Mainstream logo on his sweater and has the Mainstream logo on his rucksack. “Fish therefore are essentially free of the signs of disease.”
“I have a tough time understanding the justification for Mr. Staniford’s cigarette campaign,” says Mr. Thomson. “I am at a loss at how those opinions were formulated.”
“You’ve heard criticisms?” asks Mr. Wotherspoon.
“Yes - I’m starting to get a thick skin because I’ve heard it for so long,” replies Mr. Thomson. “I have a struggle with their opinions.”
“There seems to be a large controversy,” admits Mr. Thomson under cross-examination by Mr. Staniford’s lawyer David Sutherland. “You read about it in the newspapers.”
“I don’t know the ownership structure of the other companies,” says Mr. Thomson. “Mainstream Canada is a separate entity. I don’t know who the shareholders in Marine Harvest are. I don’t know where they have operations. I don’t know who Grieg’s shareholders are.”
“Cermaq is a publicly owned company,” says Mr. Thomson (ignoring the fact that it is effectively controlled by the Norwegian state and a Norwegian Government owned company – details online here). “Cermaq executives visit from Norway. Each is a separate business entity. I personally don’t report to Norway – I report to Mainstream Canada.”
“Part of our licence includes the ability to kill sea lions and seals,” says Mr. Thomson. “It’s not something that happens on all sites.”
“Are you licensed to dispatch sea lions or seals from time to time?” asks the defendant’s lawyer Mr. Sutherland.
Mr. Wotherspoon – legal counsel for the plaintiff Mainstream Canada – rises to object. A complex legal argument ensures as Mr. Wotherspoon argues against a line of questioning.
Mr. Wotherspoon refers to “the challenge of pleading innuendo” and cites a case involving Tom Cruise, Nicole Kidman and the Church of Scientology Vs. the Daily Telegraph.
Mr. Wotherspoon quotes from a statement in that case from Lord Devlin concerning a “fornicator” going into a “brothel” and refers to “immoral purpose” and “scandal-mongers.”
Mr. Wotherspoon refers again to the Cruise case (this time in relation to the Sunday Express newspaper) and to “hypocrites, frauds and liars.” He makes reference to (in relation to the Church of Scientology) “a dangerous cult exploiting gullible believers.”
“This trial is not an inquiry into salmon farming practices,” argues Mr. Wotherspoon. “The Cohen Inquiry is, in part, about salmon farming – that’s not this case.”
Mr. Wotherspoon (who you can see on Norwegian TV defending his clients position – online here) refers to another legal case involving the BBC TV show ‘That’s Life’ and Esther Rantzen – and a case involving chewing tobacco marketed to children.
Mr. Wotherspoon quotes from a court case and from Lord Justice Brooke and a statement along the lines of: “I recoil from the idea......the courts should not be a forum for a crusade, however well intentioned.”
“The sting at issue in this case is set out in paragraph 22 & 23 of the Amended Notice of Civil Claim,” says Mr. Wotherspoon. “This is a legal innuendo issue.”
The ‘sting’ that the plaintiff is now suing upon is as follows:
Online in full via '‘Amended Notice of Civil Claim’
“This is an objection to admissibility, not an application to strike,” says Mr. Wotherspoon.
“As a threshold point, anything that does not relate to the sting alleged is not relevant,” says Mr. Wotherspoon. “This is not our case.”
“The plaintiff is being generous on this point,” says Mr. Wotherspoon (who would be perfectly cast as Scrooge in a Christmas Carol).
“I am a little puzzled,” says Justice Adair. “Why ask for particulars of a pleading to be argued – why bother?”
“It seeks to narrow scope of what they can lead,” replies Mr. Wotherspoon. “We need to limit them.”
“My client is quite confused,” says Mr. Sutherland (acting for the defendant Mr. Staniford). “Let’s just try to understand what they’re saying. Is he withdrawing his allegations of defamatory words?”
Mr. Wotherspoon indicates in the affirmative.
Hence, by focussing solely on ‘the sting’, the plaintiff withdrew their claims to the ‘Defamatory Words’ set out in paragraphs 13,14 and 15; namely:
Online in full via '‘Amended Notice of Civil Claim’
“We don’t want any more beach-heads of battle,” says Mr. Sutherland.
“You and your client will have some work to do this evening,” says Justice Adair (directed at Mr. Sutherland and Mr. Staniford.
Day 3: Wednesday 18 January 2012
“The time for alternative nested meanings has come,” argues Mr. Sutherland as he attempts to persuade Justice Adair to accept lesser meanings as a defence. “There’s no issue of what was published. Meaning is a matter of interpretation for your lady.”
“They’re like editorial cartoons,” argues Mr. Sutherland referring to the ‘Salmon Farming Kills’ campaign.
“It’s a mock cigarette pack,” argues Mr. Sutherland. “Like the jazz musician would say, it’s riffing.”
“We saw a very significant narrowing of the issues yesterday – with paragraphs 13, 14 and 15 now gone,” says Mr. Sutherland.
“My client just wants to go on with the litigation,” says Mr. Wotherspoon. “Therefore please strike 22 (h).”
“To quote Yogi Bera, this is déjà vu all over again,” says Mr. Wotherspoon. “This is exactly what happened in the Creative Salmon trial Vs. Staniford in 2006. This is very significant context to the application made now.”
[In the Creative Salmon case however, Justice Gerow allowed Mr. Staniford to plead lesser meanings].
“Mr. Staniford is actively and aggressively publishing the defamatory words,” says Mr. Wotherspoon. “In the Tom Cruise case it was staked by Lord Justice Brook that the courts should not be a forum for a crusade, however well intentioned. Mr. Staniford’s approach is to attack. He is turning the case into a Commission of Inquiry into Norwegian-owned salmon farming worldwide.”
“That’s not our case – that offends the rule in Cruise we discussed yesterday,” says Mr. Wotherspoon. “It is not OK to put on trial Norwegian-owned salmon farming around the world.”
“Try to make it a Church of Scientology defence,” asks Mr. Wotherspoon (a few members of the public gallery looks up to see if Tom Cruise is dangling from the ceiling in a follow up manoeuvre to Mission Impossible.
“It would be inappropriate to grant the amendments,” argues Mr. Wotherspoon. “Mr. Staniford is seeking to put Norwegian salmon farming everywhere in the world on trial.”
“Mr. Staniford is not seeking to have the trial adjourned,” says Justice Adair as she weighs up the evidence and explains her ruling. “I am exercising my discretion and refusing to grant the amendments. The application is refused. The case will proceed on the basis of existing procedures. Mr. Sutherland, if you are disposed to clean up the particulars in para 3 this would be helpful.”
Mr. Brock Thomson, a site manager for Mainstream Canada’s farms in the Campbell River area, re-takes the witness stand cross-examined by Mr. Staniford’s lawyer Mr. Sutherland.
“Measures taken to deal with significant fish health events are vastly superior to 2002 and the IHN outbreak,” says Mr. Thomson. “They have improved leaps and bounds.”
“I am not a vet and I am not an expert on ISA so I cannot comment on that,” replies Mr. Thomson in response to a question from Mr. Sutherland on Infectious Salmon Anaemia (ISA). “We don’t see the ISA virus as far as I know in North America.”
“We may be permitted by DFO to kill Steller sea lions via special conditions,” admits Mr. Thomson. “I am unaware of any breaches of the licence. I have not had to dispatch a Steller sea lion.”
“I am aware of the BC Salmon Facts campaign,” says Mr. Thomson. “I shy away from reading the newspaper. I am unfamiliar with who ran the BC Salmon Facts campaign. I am familiar with the Global Aquaculture Alliance’s certification processes.”
“We oversee the administration of a particular antibiotic or pesticide,” says Mr. Thomson.
“I am unaware of Marine Harvest being convicted today for illegal by-catch,” says Mr. Thomson. “We report by-catch. We call in incidental catch. Herring is definitely the main species.”
“I don’t know about compliance and violations of the regulations,” says Mr. Thomson. “That’s the job of the compliance officer. I would not have been privy to that information if it did exist at all.”
“Diseases can come, that’s why we take samples,” explains Mr. Thompson. “There are a number of diseases. I’m only part of the observation not the reporting structure. I’m not a veterinarian. Classifying whether a disease is contagious is not my area of expertise.”
“I don’t have any idea whether ISA is in BC or not,” claims Mr. Thomson. “Disease is one of the biggest risks to any livestock.”
“We’ve had sea lice treatments – we’re aware of the controversy around that,” says Mr. Thomson.
“We’ve had a disease called ‘Winter Ulcer’ at my three sites,” says Mr. Thomson. “It leads to small sores. When we have an outbreak we administer antibiotics. It depends on what the vet prescribes. All the reports are retained in the office.”
“There’s a SOP (Standard Operating Procedure) for antibiotics and health impacts on staff,” says Mr. Thomson. “Yes, there is a health and safety consideration – a lot of the antibiotics and pesticides may cause an allergic reaction. We refer to the Material Safety Data sheet to see if there are human health effects. We only have a small number of antibiotics.”
“We have culled farmed salmon which we find with deformities and the fish are disposed of,” says Mr. Thomson. “I’m at the bottom end of the reporting.”
“I’m only familiar with one instance which may have led to over-production,” says Mr. Thomson.
“This is not like the radio where dead air is a problem so if you need time to think then that’s fine,” says Justice Adair.
“Virkon is a disinfectant bleach,” explains Mr. Thomson. “The preferred disposal is dumping into totes and disposed on land.”
“Anybody can be fined if found negligent for oil spills,” says Mr. Thomson.
Mr. Callahan (another of the plaintiff’s crack team of expensive lawyers from Fasken Martineau) rises to object to a line of questioning on the spread of infectious diseases in Chile. “It doesn’t have anything to do with the plaintiff – it is irrelevant,” argues Mr. Callahan.
Mr. Thomson is asked to leave the courtroom as the lawyers argue whether this line of questioning is to be permitted.
“It is the sting which is relevant,” argues Mr. Callahan (Mr. Wotherspoon – the plaintiff’s other lawyer – is still in the courtroom).
“I am sustaining the objection on grounds of relevance,” rules Justice Adair. “This is not about Chile or about the plaintiff.”
Wally Samuel from Ahousaht First Nation takes the witness stand. He swears to tell the truth, the whole truth and nothing but the truth.
“Fish farms were originally places in areas that lead to environmental impact,” admits Mr. Samuel who is on the Ahousaht First Nation ‘Fish Farm Committee’ and a member of the Aboriginal Aquaculture Association. “Ahousaht took out their war canoes and blockaded a fish farm in Clayoquot Sound” (in the late 1990s).
Mr. Samuel explains how after the protests the Ahousaht First Nation negotiated a protocol agreement with Mainstream Canada.
Mr. Samuel explains how he visited Norway to attend Cermaq’s AGM in 2010 – and en route he stopped off to meet with the Norwegian consulate in Ottawa and John Duncan MP.
“Mainstream funds Ahousaht First Nation,” says Mr. Samuel.
“Yes – Geir Isaksen came to Ahousaht,” replies Mr. Samuel under cross-examination from Mr. Staniford’s lawyer Mr. Sutherland. “He came for the occasion of the protocol agreement.”
“Did he bring the money with him?” asks Mr. Sutherland.
“No – I don’t know if he brought the money,” replies Mr. Samuel. “I am not sure how the money arrived.”
Mr. Samuel explains how the Ahousaht First Nation is “negotiating” with Mainstream Canada with respect to the use of copper anti-foulant paints on nets. “We are respectfully negotiating – hopefully we will make it not allowed,” says Mr. Samuel. “We’re aware of the environmental impacts.”
Mr. Wotherspoon rises to object to this line of questioning.
“The money paid by Cermaq is like rent for the use of our territory – the word we use is ‘pauok’,” says Mr. Samuel. “It is one of the conditions of our protocol.”
Justice Adair says that she will rule tomorrow on the information disclosure issue.
Mark Hume, writing in The Globe & Mail (19 January), reported: “A defamation case against a fish farm critic cannot be turned into a public inquiry that puts aquaculture on trial for its practices globally, a Supreme Court of British Columbia judge has ruled. Madam Justice Elaine Adair on Wednesday refused an application from defence lawyer David Sutherland to amend the pleadings of Don Staniford, a controversial fish farm critic who says the case is an attempt by big business to silence him.”
“Mr. Sutherland had sought to broaden the scope of the case to look at the impact of fish farming internationally. His application came on the third day of the trial, in which Mainstream Canada is accusing Mr. Staniford of damaging the company by comparing farmed salmon to tobacco.
Mr. Sutherland argued that his client’s campaign (which was launched in January, 2011, on the website of a group called The Global Alliance Against Industrial Aquaculture) had been critical of fish farms in general, not just Mainstream Canada. He wanted the court to consider “a range of meanings” in the words Mr. Staniford used that are alleged to be defamatory, which would open the way to hear evidence about the industry globally.
“We say it’s not defamatory of Mainstream, because it’s talking about an industry worldwide,” Mr. Sutherland said of the slogans Mr. Staniford used in the campaign, which ran under the banner: “Salmon farming kills.”
Mainstream Canada’s lawyer, David Wotherspoon, objected to the application, however, saying Mr. Staniford’s campaign specifically targeted his client in declaring, among other things, that “Salmon farms are cancer,” and “Salmon farming kills like smoking.”
“Mr. Wotherspoon said that if the application was granted, it would fundamentally shift the focus of the case, away from what Mr. Staniford said to the actions of fish farms worldwide.
“It’s seeking to put Norwegian salmon farming everywhere on the globe on trial,” he said, arguing “the court should not provide a forum for a crusade.”
Judge Adair agreed, and said the focus of the case is on what was said by Mr. Staniford and whether those comments were true or fair comment.
The activities of fish farms globally “are not what this case is about,” she said.
“The defence must be directed to the complaint that’s made by the plaintiff in the action,” Judge Adair said. “I’m exercising my discretion and refusing to grant the proposed amendments.”
Read online via “Judge tosses fish farm critic’s bid to cast alleged libel as industry-wide critique”
Day 4: Thursday 19 January 2012
Justice Adair rules against the defendant and dismisses the application for the disclosure of information following Cermaq CEO Geir Isaksen’s ‘Examination for Discovery’ in September 2011.
“I have concluded that the defendant’s application must be dismissed,” says Justice Adair. “Based on the grounds that the information is outside the bounds of knowledge of the Plaintiff and are outside the arguments set out in the pleadings. There was no authority provided that the information is in the knowledge of the plaintiff. The requests are immaterial...It is irrelevant based on the pleadings – specifically based on the sting pled in 22 & 23.”
“It is somewhat unfortunate that the plaintiff here did not take the step – as in Cruise – to apply for particulars in Division 3 to be struck on the grounds that they were legally irrelevant,” says Justice Adair. “Not only did the plaintiff not take that step but it demanded better particulars. That may have created confusion towards the exact nature of the claim. Nevertheless, the answers the defendant is seeking in 45 and following cannot provide any assistance one way or another. In summary, the defendant’s application is dismissed.”
Mr. Sutherland raises an objection to the admissibility of affidavits and questions.
“The foundation of Dr. Michael Gallo’s opinion is inadmissible,” argues Mr. Sutherland. “I require that the court keeps an open mind.”
Mr. Sutherland removes ‘truth’ from the defence in light of the rulings.
George Frank from Ahousaht First Nation takes the witness stand. Mr. Frank testifies that he has “high knowledge of the management systems” and “does the audits”. He refers to an ISO food safety manual which is 2ft thick of paper. “There are thousands of pieces of paper,” says Mr Frank.
“Mainstream Canada is just a division of EWOS Canada,” says Mr. Frank (who works for Mainstream Canada). “Our parent company is Cermaq in Norway.”
Mr. Frank refers to Ahousaht First Nation “taking a stand” and protesting against fish farms in Clayoquot Sound in the 1990s. He refers to a protest and an occupation of a site at Cormorant near Cypress. “I observed the protest as a RCMP officer,” explains Mr. Frank.
Mr. Frank explains the first protocol agreement in 2002 with Pacific National Group (PNG) and the benefits of employment and capacity building. “There were still some concerns over environmental impacts,” says Mr. Frank.
Mr. Frank explains that his job comes from the protocol agreement.
“There is improvement in the relationship with Mainstream Canada and Cermaq in Norway,” testifies Mr. Frank. “Cermaq and Mainstream Canada contributed money for training and education.”
“There’s always a concern on the impact on the environment – on clam beds and rockfish,” says Mr. Frank. “They are continually monitored by Ahousaht Fisheries. It is an ongoing consultation – a communications protocol.”
“I’ve heard of Mr. Staniford,” says Mr. Frank. “In December 2011 I saw him on the banks of the Campbell River sampling for ISA. I drove down with Grant Warkentin to watch them....Mr. Warkentin had turned around to see Mr. Staniford walking towards him. They were walking towards each other holding their cameras.”
[For more background read “Tinker, Tailor, Stalker, Spy”]
Under cross-examination by Mr. Staniford’s lawyer David Sutherland, Mr Frank said: “There’s always a concern of dioxins etc in the farmed salmon – they sample and send for testing.”
“I audit the fish health records,” says Mr. Frank.
“Salmon farming has always been controversial – not so much as it used to be,” says Mr. Frank. “There’s always room for improvement.”
“All fish have mercurcy,” says Mr. Frank. “I haven’t seen any reports put forward to Ahousaht with mercury concerns.”
“Our board is situated in Norway,” says Mr. Frank.
“Yes – I saw the sticker ‘Feeding my kids farmed salmon is like buying them smokes!’,” says Mr Frank.
“I’ve seen the bumper sticker ‘Wild salmon don’t do drugs’ quite often in the Tofino area,” says Mr. Frank.
“I can’t say for sure if some people don’t eat farmed salmon,” says Mr. Frank. “We each have our preference and I cannot speak for them.”
Under re-cross examination, Mr. Frank is told by Cermaq’s lawyers that the board of Mainstream Canada is not in Norway.
Lise Bergan, Cermaq’s Corporate Affairs Director, takes the witness stand. She flew in from Norway the night before and needs to fly home back to Norway no later than Monday. Ms. Bergan swears to “tell the truth, the whole truth and nothing but the truth.”
“We have defined what we mean by sustainable aquaculture and define targets,” says Ms. Bergan. “I get a lot of information about the companies and I get information about sustainable practices.”
“From 1995 the Norwegian Government set up a feed company called Statkorn which later became Cermaq,” explains Ms. Bergan. “The Norwegian Government still holds 43.5% shareholding in Cermaq.”
Mr. Sutherland – acting for Mr. Staniford – raises an objection to the witness being led through questions on sustainability when environmental issues have been ruled out of this lawsuit.
“My friend raises a fair point,” replies Mr. Wotherspoon acting on behalf of Cermaq. “But one of the issues is related to actively misled and lied to the public.”
Ms. Bergan talks through Cermaq’s ‘Sustainability Passport’ and states that there are “so many indicators and results to report.”
Ms. Bergan is asked whether the Norwegian Government exerts control over Cermaq. “No,” she replies.
“Yes, there are critics,” says Ms. Bergan. “We have met with critics at international conferences and at Cermaq’s AGMs. I believe we have a productive relationship with NGOs. We try to learn and improve and meet the concerns.”
“I find it hard to understand what Mr. Staniford’s objective is,” says Ms. Bergan as she explains how her relationship with Mr. Staniford is “less productive than with other NGO’s.”
Mr. Wotherspoon shows three of the offending cigarette packets: ‘Salmon Farming Kills Like Smoking’, ‘Salmon Farming Kills’ and ‘Salmon Farming Seriously Damages Health’.
Ms. Bergan says she recognises the Norwegian flag and explains that the coat of arms is used by the King of Norway and the Norwegian Government.
[Read a letter sent to the King of Norway in 2010 asking that he help stop the killing of wild salmon in Canada – online here]
[Photo: Don Staniford delivering a letter to the King of Norway in 2009 – watch online here]
“Do you have a view on the health risks of smoking?” asks Cermaq’s lawyer David Wotherspoon. “My mum died from smoking,” replies Ms. Bergan. “The tobacco industry is seen as deliberately hiding the facts and seen as not trustworthy and a bad industry.”
[Perhaps Ms. Bergan should re-watch ‘Farmed Salmon Exposed’ – including this line from Otto Langer who is himself fighting cancer: “If the fish farmers want to play the same game the cigarette manufacturers did for many years and live in denial they're welcome to it but it's not going to give rise to any solutions.” – watch online here]
Under cross-examination by David Sutherland, Ms. Bergan denies that the salmon farming industry is controversial in nature.
“I don’t know that in detail but I’ve read about it,” says Ms. Bergan in response to a question from Mr. Sutherland on a lawsuit in California involving farmed salmon contaminated with PCBs (details online here).
Mr. Wotherspoon rises to lodge an objection to a line of questioning by Mr. Sutherland on the spread of ISA in Chile. “That is far afield,” says Mr. Wotherspoon. “It has nothing to do with the issued we’ve defined in this case. ISA in Chile has nothing to do with our case.”
“When Mr. Staniford takes the stand he will say it relates to the entire industry,” argues Mr. Sutherland.
“I’m struggling to connect things which happened in Chile and Norway with anything to do with the case,” says Justice Adair. “Why should I care what happens in Chile? Why should it matter to me? I’m still trying to grasp how this line of questioning is relevant. You have not satisfied me that it is sufficiently relevant. I am going to sustain the objection. But I don’t want to prevent you asking other questions. You might be able to re-phrase the question.”
Mr. Sutherland raises the issue of internal minutes from a ‘Cermaq Communication Team’ meeting accidentally posted on the internet by Mainstream Canada.
Read in full online here.
“They were informal notes made by one participant not minutes,” says Ms. Bergan.
Mr. Sutherland refers Ms. Bergan to an article in the Norwegian newspaper Dagbladet in July 2011 and the word “Oooobs!” (read in full online here).
“When we say ‘oops’ in Canada we mean we made an escape,” says Mr. Sutherland.
“Generally we do not post minutes and notes on web-sites,” replies Ms. Bergan.
Mr. Sutherland asks Ms. Bergan about the import of eggs and the spread of ISA.
Mr. Wotherspoon objects: “We’re getting outside the relevance of this lawsuit,” he says.
Mr. Sutherland continues with the line of questioning. “Diseases in general are sensitive,” he says. “And a new disease would be sensitive. If you have a disease it impacts the fish and thus it is sensitive.”
“Yes,” says Ms. Bergan. “I agree that there is a risk of spread of ISA from salmon to salmon. I am not a scientist. I don’t know details.”
Day 5: Friday 20 January 2012
Ms. Bergan – Cermaq’s Corporate Affairs Director from Norway – re-takes the witness stand to be cross-examined by Mr. Staniford’s lawyer Mr. Sutherland.
“I have not read this article,” testifies Ms. Bergan in reply to a question regarding her knowledge of a well known scientific paper in the journal Science published in 2004 (read the paper online here). “I cannot rank academic journals in order.”
Mr. Wotherspoon rises to object. Justice Adair overrules the objection.
“I’m not aware of a controversy of the limits being above the maximum safety limits – the ADI (Acceptable Daily Intake) – defined by Codex Alimentarius,” says Ms. Bergan. “I don’t know the limits of the number of meals.”
“I have not read this article,” says Ms. Bergan in reply to a question regarding her knowledge of a scientific paper from 2005 assessing the cancer risks of farmed salmon consumption (read the paper online here). “I’m not a toxicologist.”
Mr. Sutherland says the paper refers to an advisory recommending consumption of one meal of farmed salmon only every five months.
“Codex Alimentarius defines ADI’s of farmed salmon based on available science,” explains Ms. Bergan.
“Is there advice against farmed salmon consumption?” asks Mr. Sutherland. “I am not aware,” replies Ms. Bergan.
“No,” says Ms. Bergan in reply to a question about whether she receives data on contaminants in farmed salmon or fish feed. “But EWOS Innovation does test for contaminants.”
“I do not agree,” says Ms. Bergan in reply to a question on whether there is a controversy and debate on the issue of cancer-causing contaminants in farmed salmon. “There is no controversy about farmed salmon causing cancer. That’s how I see it.”
“I am having trouble understanding you now,” says Mr. Sutherland.
“I have not heard any debate,” says Ms. Bergan. “We believe that health risks and food safety should be defined by regulations and that is what we comply with.”
“That was before I was born,” says Ms. Bergan (who is in her 50s probably) – in answer to a question about the first cancer concerns raised about tobacco and smoking. “The tobacco industry was seen as deliberately hiding the science.”
“Again, I find it hard to see the comparison with salmon and tobacco,” says Ms. Bergan. “It is obvious that tobacco is bad for your health. I think that they are very different situations.”
Mr. Wotherspoon – Cermaq’s lawyer – leaps like a GM salmon to object. “It is not proper to speculate on opinion,” argues Mr. Wotherspoon.
“I don’t know what other persons believe,” says Ms. Bergan. “I’m not aware of science being hidden. I believe the situations are not comparable. Dioxins are well know and there are set limits.”
Mr. Wotherspoon reiterates his objection. Ms. Bergan is excused and is asked to leave the courtroom by Justice Adair.
Mr. Sutherland refers to the Rafe Mair Vs. Simpson case which “changed the definition of fair comment.” “My friend has put his finger on something,” says Mr. Sutherland. “Where there is a scientific controversy the courts really have no business making a judgment. The way forward is better science and better models – not better litigation. The extent to which there is a controversy is relevant. I am testing Ms. Bergan’s assertion. Effectively what I am saying is that it’s possible that there is a controversy.”
“If she says no, then it might go to her credibility,” says Justice Adair.
“Because of the pigeon-hole nature of the law,” says Mr. Sutherland. “Maybe her ladyship will give it a name? The Staniford Principle I am suggesting.”
Justice Adair overrules the objection from Cermaq’s lawyer Mr. Wotherspoon and Ms. Bergan is brought back onto the stand to continue her cross-examination. “Council can ask the question,” says Justice Adair.
“I do not see any justification for that statement,” replies Ms. Bergan. “I see no justification. I believe in knowledge-based standards and regulations and I don’t see any reason to doubt the Codex Alimentarius ADI for dioxin.”
“What is the centre here is how you express yourselves,” says Ms. Bergan. “Comparing farmed salmon with cigarettes is not justifiable.”
“Is the Codex Alimentarius proposed and lobbied for by industry?” asks Mr. Sutherland. “Is the agriculture section drafted by Monsanto?”
“No – I don’t know,” says Ms. Bergan.
Mr. Sutherland refers to the decontamination of fish feed via washing out the PCBs, dioxins and other contaminants. “I have never heard that,” replies Ms. Bergan.
[For details on decontamination of fish feed read online here]
“Is it GM soy and GM corn used in the fish feed?” asks Mr. Sutherland. “I don’t know if it’s GM. We comply with the regulations. I don’t get that information.”
“Is glyphosate used?” asks Mr. Sutherland. “Yes – I know it as Roundup – made by Monsanto,” replies Ms. Bergan. “It is used as a pesticide. I used to know this in more detail. I don’t have any comments to that.”
“Are you aware of a recent study on the health risks of glyphosate?” asks Mr. Sutherland (read ‘Weed killer causes new cancer fears’). “No, I’ve not heard about that,” replies Ms. Bergan (indeed Cermaq’s Corporate Affairs Director doesn’t seem to know very much at all).
“I don’t see it as a controversy,” says Ms. Bergan. “I don’t have knowledge of finding about the limits of dioxins.”
Mr. Sutherland asks if Mr. Staniford attended Cermaq’s AGMs in Oslo, Norway. “Yes, he was there in 2008, 2009 and 2010,” replies Ms. Bergan. “I don’t recall all the shareholder resolutions so I cannot confirm if the dioxins issue was raised. This is a fact that can be checked. It doesn’t come to my memory that contaminants were raised. I don’t recall that type of wording. I don’t recall the food safety part.”
“Are you aware that California is at the point with some movement to require warning labels on organochlorines in food?” asks Mr. Sutherland. “Yes,” replies Ms. Bergan. “I don’t know who is asking for it. I picked it up lately. I’m not sure where I read it.”
[Read this issue cited in Mr. Staniford’s letter to Cermaq and to the King of Norway in March 2011 – online here]
“I’m suggesting that – at least in California – we’re at the same stage as warnings in tobacco,” says Mr. Sutherland. “I hear what you’re saying but I cannot comment on that,” says Ms. Bergan.
Dr. Michael Gallo is now called to the witness stand.
Mr. Sutherland reminds Justice Adair that he will object to his testimony – but after hearing it. “It will require mental agility on behalf of your ladyship,” says Mr. Sutherland.
Dr. Gallo is sworn in and is described as an expert in toxicity and risks of a given substance.
“As a toxicologist we define hazards,” says Dr. Gallo. “Data is used in a risk assessment and probability of hazard resulting from exposure to foods with contaminants.”
“Whatever we have in this case is a soup of substances,” suggests Mr. Sutherland. “Dioxins are the primary compound – the most toxic,” replies Dr. Gallo. “Dioxin is the benchmark.”
“Are you an expert in contaminants in conjunction with others?” asks Mr. Sutherland. “I would say yes,” replies Dr. Gallo.
Mr. Sutherland tackles Dr. Gallo on his expert report which addresses five questions – the first of which asks: “Is the consumption of farmed salmon harmful to human health?”.
Dr. Gallo’s report answers the question: “There is no data at all to support the suggestion that farmed salmon is harmful to human health.”
Dr. Gallo cites work by Dr. Mozaffarian at Harvard University on eating farmed salmon (read one paper online here) and limits set by the World Health Organization.
Dr. Gallo agrees with Mr. Sutherland that the journal Science is one of the top three journals in the world. Mr. Sutherland gives Dr. Gallo a copy of the Science paper from 2004 detailing cancer-causing contaminants in farmed salmon (read the paper online here).
“I do not in any way refute the results,” says Dr. Gallo. “I refute and disagree with their interpretation. Dr. Carpenter [one of the co-authors of the Science paper] and I have had this argument. Their interpretation is based on the EPA model.”
“One is a tolerance model and one is a risk model,” explains Dr. Gallo. “The probability of risk of the EPA model is totally different.”
“There’s certainly a large number of scientific papers on contaminants in farmed salmon,” admits Dr. Gallo. “But I’m not familiar with this 2006 paper” (read “Consumption advisories for salmon based on risk of cancer and noncancer health effects”).
Mr. Sutherland returns back to the issue of Dr. Gallo’s statement that “there is no data to support this supposition” (that farmed salmon causes cancer risks). “One of these chemicals identified in farmed salmon has an elevated cancer risk of 1 in 100,000,” says Mr. Sutherland.
“That is their interpretation of the data,” replies Dr. Gallo. “I have no complaint with their data. If they want to review it that way then it’s their prerogative. It was accepted by this peer-reviewed journal. That’s their interpretation. I disagree with it – and with the amount of chemicals in the farmed salmon.....But no reasonable scientist would argue with the data.”
“Yes, it’s a reasonable argument,” says Dr. Gallo. “We have the same argument with the safety of drugs. People are welcome to their interpretation. Yes – it’s a scientific controversy.”
“This guy is an asshole,” whispers a member of the public gallery.
Mr. Sutherland asks Dr. Gallo if the way to treat cancer is “to cut it out”. “Yes – that’s for most solid tumours,” replies Dr. Gallo. “But you cannot do that for leukemia.”
“I may have overstated that,” admits Dr. Gallo as he is asked about his state of knowledge about wild Pacific salmon.
“Yes, it’s fair to say that there’s many scientists who follow the Hites model (the first author of the 2004 Science paper on contaminants in farmed salmon) and others who follow the Mostaffarian model,” says Dr. Gallo. “It’s not just me – it’s been broadly discussed. Some people want to go one way and some go another. It’s an open discussion, not a controversy.”
“There is no public health person who would say that tobacco cancer levels are like farmed salmon,” says Dr. Gallo. “Tobacco manufactures are now going to less contaminated sources.”
“I’m not trying to be cute here,” says Dr. Gallo who would have trouble ever being mistaken for cute.
“These are hypothetical risks,” says Dr. Gallo.
“Thousands of compounds are in tobacco and they are mutagens,” says Dr. Gallo. “Dioxin is a known carcinogen. Each of these cancers are different.”
Dr. Gallo is excused and falls down the step. Justice Adair takes a break.
“You can whimper if you want,” says Mr. Sutherland to Mr. Wotherspoon. “You’re best not to whimper too much. I want to get him in a little bit of a box.”
Justice Adair agrees that Dr. Gallo should continue his testimony via video link on Wednesday (25 January).
Mr. Wotherspoon refers to the witnesses for Monday (23 January) as Ruth Salmon of the Canadian Aquaculture Industry Alliance and Mary Ellen Walling of the BC Salmon Farmers Association. “Both are grumpy at me for having to wait around,” explains Mr. Wotherspoon.
Day 6 of the court case (in room #52) resumes at 10am today (23 January) – Nelson/Hornby St. entrance (court hours are 10am to 4pm with a 12.30pm to 2pm lunch break).
For more details visit online here and follow via the new web-site ‘Salmon Farming Kills’.
The fight is shaping up to be a classic encounter and could go the full 20 rounds.
Funding is pouring in from all over the world with a fishing group in Norway – Reddvillaksen – donating 60,000 NOK ($10,000) and over $17,000 raised online via ‘Go Fund Me.’ With legal bills expected to reach well over $100,000 there is an urgent need to raise funds – please be a superhero and donate online here now!