WWF RESPONSE PURSUANT TO PD 2.9.3 - WWF PD2.9.3 Submissions
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WWF RESPONSE PURSUANT TO PD 2.9.3
A. Executive summary
1. WWF respectfully submits that its objection1 ought to be upheld on the basis of the following ground
expressed by the Independent Adjudicator (IA) in her remand decision dated 5 January 2021
(Decision):
…there has been a serious irregularity which has had a material impact on the fairness of the assessment. Orange
roughy should have been treated as an ETP species and not scored as a Principle 1 target species2.
2. The CAB has now acknowledged that orange roughy is an ETP species in its letter dated 10 March
2021 (Remand Response) and version three of the Final Report and Determination (Updated FRD)3,
however, this acknowledgement alone does not go far enough in addressing the objection, as the
ground for upholding the objection also states that orange roughy should “not [be] scored as a
Principle 1 target species”4. The CAB has not adopted this aspect of the finding in its Remand
Response and Updated FRD and has instead assessed orange roughy pursuant to both Principle 1, in
respect of the Eastern Zone stock, and Principle 2 in respect of the species as a whole in Australia5.
3. The MSC Standard, by reason of the Standard’s silence on the issue, does not permit particular stocks
of an ETP species, or ETP species at all, to be assessed under Principle 1. Therefore, ETP
populations (and species) can only be assessed under Principle 2, and such assessments, we
contend, should always be based on ecosystem constructs, parameters, metrics and models that are
consistent with the ecological assessment of an ETP species’ population. However, in circumstances
where the applicant fishery’s target stock cannot be assessed under Principle 1, the certification
assessment must fail because the failure to assess or deploy Principle 1 means the applicant fishery
does not meet all three core MSC principles.
4. It is clear that the objection must be upheld for the following reasons:
4.1 the “silence in the Standard” about about a species which has been established to be an ETP
species (in the case of orange roughy, established by Australia’s national legally-binding
assessment/designation process) being both out of scope and assessed under Principle 1
should be taken to mean that it “is not intended for ETP species to be target stock and
assessed under Principle 1”6. Assessing an ETP species under Principle 1 was “likely … not
anticipated by the MSC”7 and so this is a matter that must be referred back to the MSC for
determination ideally through the Fisheries Standard Review process, or as a temporary
alternative through the Interpretations Log process8;
4.2 to the extent that the silence of the MSC Standard in respect of assessing ETP species under
Principle 1 is insufficient to establish beyond doubt that assessment of that type is not
permitted, WWF submits in the alternative that the ambiguity created by the silence must be
interpreted in light of the purpose of the MSC scheme, which requires ensuring the public can
1
References to the objection excludes any aspects of the objection which were not upheld in the Decison.
2
Decision, [39]. We note that the CAB’s Remand Response also refers to [88] of the Decision as being a ground for the
remand. It is WWF’s view that paragraph [88] is intended as a summary, or abridged version of [39] and therefore it is
more accurate to refer to only [39] as the ground for the remand.
3
Updated FRD, Part 9.
4
Decision, [39].
5
Updated FRD, page 51.
6
Decision, [37].
7
Decision, [29].
8
The issue of whether ETP species can be the subject of a target is fundamental to the MSC process and as such
decisions regarding ETP scope should be part of public consultations and decided by the MSC Board of Directors through
the Fisheries Standard Review. See [45] below. In the view of WWF the Interpretations log should only be seen as a
temporary clarification. Since parts of the interpretation log are now translated to guidance – without consulting
Stakeholder Advisory Council, the Technical Advisory Board or the public – WWF would not want such an important
decision to be taken by the MSC without appropriate consultation and consideration.rely on the certification program to identify sustainably caught seafood products9. The
approach taken to interpreting the ambiguity should therefore ensure that the credibility of the
MSC certification is not damaged. It follows that any ambiguities, meaning any confusion
about orange roughy being in-scope for assessment under Principle 1 and whether orange
roughy can be assessed under both Principles 1 and 2, should not be resolved through
certification by a CAB occurring at the present time on either basis. Rather this issue should
be clarified internally by the MSC (and its advisory bodies) as the “owner” of the Standard;
4.3 the CAB, MRAG Americas, has taken a novel and inappropriate approach by carving out
certain stocks of the ETP species orange roughy to be assessed under Principle 1. Both the
MSC Standard and the Environment Protection and Biodiversity Conservation Act 1999 (Cth)
(EPBC Act), for different reasons, do not permit such an approach, and to do so would lead to
circumstances where the ETP species “loses its special status under the Standard” by reason
of being a target catch10;
4.4 it is not intended that the MSC framework permit assessment under both Principle 1 and
Principle 2. Orange roughy, as an ETP species, is clearly required to be assessed under
Principle 2 and is therefore disqualified from being assessed under Principle 1;
4.5 having a target catch for orange roughy (as has been adopted by the CAB) is inconsistent
with Principle 2 which requires the minimisation of mortality for ETP species and assessment
based on ecological attributes of the population, not fishing attributes. A total allowable catch
(TAC), or a management or a recovery plan, does not automatically mean a stock is suitable
for assessment under Principle 1. Had MSC intended that ETP species be included in
Principle 1 as targeted catch (meaning, an acceptance of an objective of higher than zero
mortality as targeted catch, rather than incidental bycatch mortality), it would have been
addressed more concretely rather than in “such an opaque way”11;
4.6 permitting an ETP species to be assessed as the target species, and/or ultimately certified as
sustainably caught as determined by use of fishery attributes (such as stocks) rather than
ecological and ecosystems attributes of the ETP population (such as range, population
structure, and others as in P2), has the potential to be misleading to consumers and
damaging to MSC’s credibility. Assessing an ETP species under Principle 1 directly contests
the basis for the national system of ETP determination, lowers the purpose and outcome of
MSC certification to indicating simple compliance with national laws and does not differentiate
MSC fisheries as employing best practices.12
5. Therefore, it is clear that neither the orange roughy population, nor any of its stocks, can be assessed
under Principle 1 assessment by reason of orange roughy’s ETP status. The failure to assess or be
in-scope for Principle 1 means the application must fail because it does not meet all three core MSC
principles.
B. MSC Standard does not permit assessment of an ETP species under Principle 1
6. It is clear, for many reasons, that an ETP species should not be assessed under Principle 1 of the
Standard. Further, if there is no species to assess under Principle 1, an assessment cannot be
completed that is coherent with the MSC Standard.
B.1 Silence in the MSC Standard
7. The IA has taken the view it was likely “not anticipated”13 by MSC that ETP species would be
assessed under Principle 1 as a target species. This suggests that MSC, when preparing and refining
9
See Decision, [6].
10
Decision, [32].
11
Decision, [35]. See also Decision, [33] – [34].
12
Although the ETP determination permits fishing, it does not default to fisheries management parameters for selected
stocks as a suitable replacement for conservation management to achieve effective conservation outcomes for the
species as a whole.
13
Decision, [29].
pg 2the Standard, did not consider what process should be followed where an ETP species is also
commercially fished and therefore proposed to be a Principle 1 target species for an MSC
assessment. The fact that this potentially was not considered (which would offer an explanation as to
why ETP species are not expressly listed as out of scope”14) certainly does not automatically lead to
the conclusion that ETP species can, in light of that silence, be a target species. To reach such a
conclusion:
7.1 ignores the special consideration and protection carved out for ETP species under Principle 2.
As the IA identified, the Standard has “special precautionary measures clearly intended for
ETP”15. Permitting ETP species (or a stock of that species) to be a target species, and
assessed under Principle 1, ignores that special status and legal standards set externally to
the MSC, and is therefore inconsistent with the broader MSC framework;
7.2 risks propagation of a potentially dangerous approach (and precedent for the MSC) that
silence is permission. The MSC framework has been carefully designed to reward specific
practices and behaviours and specifies what behaviours and practices are required for
certification. If a behaviour or practice has not been included in the Standard (e.g., targeting
an ETP species), it should not be concluded that the behaviour or practice is permitted under
the Standard. Certification must be limited to what is expressed within the Standard;
7.3 fails to adequately account for consumer expectations about the fishing of a species that is a
“threatened” species pursuant to national ETP legislation. This is discussed further in Part
B.6 below.
8. In circumstances where MSC has not specified how this situation is to be dealt with (either by a failure
to consider such circumstances, or any other reason) it is appropriate for the MSC itself to address this
matter by way of updating the Standard (ideally – and most appropriately – for example, as part of the
Fisheries Standard Review process which review currently includes consideration of the ETP
classification16) or providing other temporary guidance such as through the MSC Interpretations Log17.
B.2 Ambiguities to be resolved consistently with MSC purpose
9. The MSC Standard is silent on whether ETP species can be assessed under Principle 1. Although, as
set out above, WWF’s position is that the silence in the Standard is itself sufficient to say that an ETP
species cannot be assessed under Principle 1, it is submitted in the alternative that the silence creates
an ambiguity as to how the Standard should be applied. Ambiguities such as this must be considered
in the context of the purpose of the MSC framework, and interpreted consistently within that
framework. Part of MSC’s mission is to recognise and reward sustainable fishing practices, and
influence the choices consumers make when buying seafood18. This is achieved by providing (through
the blue tick) a trustworthy, clear, and accurate guide when purchasing seafood to identify products
coming from sustainable sources. To ensure this purpose can be achieved, any ambiguities in the
MSC Standard must be interpreted to ensure the MSC certification is as trustworthy, certain and
robust as possible. To take a novel, untested and uncodified approach of assessing stocks of an ETP
species under Principle 1 risks obscuring or damaging the credibility of MSC certification by adopting a
process initiated by a CAB rather than following documented and agreed upon MSC procedures which
MRAG Americas, as the conformity assessment body, is obliged to follow19.
10. Further, WWF respectfully submits that interpretation of ambiguities such as this can also be validly
addressed by applying the precautionary principle. Although the IA concluded in her decision in
14
MSC Standard v2.01, G Scope.
15
Decision, [32].
16
See Clarifying best practice for reducing impacts on endangered species (ETP). The MSC specifically states: “This
review could change the scope, intent and requirements of the MSC Fisheries Standard” (emphasis added). MSC also
states that: “We may need to update the scope of what is eligible to assess, for example which species to consider under
the ETP requirements.”
17
This is discussed above in [4.1] and further in Part C below.
18
MSC FCP v2.1 Mission, page iv.
19
MSC FCP v2.1, page vii says “the purposes of the FCP are … to establish a defined process that enables all CABs to
operate in a consistent and controlled manner” (emphasis added).
pg 3respect of the CAB’s PD 2.7.10 notification that the precautionary approach within the MSC framework
is limited in its application and only applies where there is an information deficit, WWF respectfully
submits that that the precautionary approach can, and should, be extended beyond that interpretation
as:
10.1 the guidance in the MSC Standard provides that a precautionary approach should be taken
“throughout the certification requirements”20. Applying the certification requirements naturally
also extends to application of the principles to relevant species. It is clear from this guidance
that all aspects of the assessment of the fishery are to be applied in a precautionary manner;
10.2 a wide application of the precautionary approach is consistent with the FAO Code of Conduct
for Responsible Fisheries from which the MSC guidance is derived and on which the MSC
Standard is based. In fact, this Code is referred to as a reference in Box GSA1 which deals
specifically with the precautionary approach21;
10.3 the Standard incorporates an overall tone of precaution – one only needs to look at how many
times the word “precautionary” or “precaution” appears in the Standard (over 80 times) to
understand that the MSC framework is grounded in taking a precautionary and considered
approach to assessments in order to ensure that assessments can be confidently backed by
MSC, and to ensure a consistent approach is used;
10.4 the MSC Interpretation Log reflects the precautionary theme, and does not limit the
application of the precautionary approach to ambiguous information. For example, a log entry
from August 2018 advises that CABs should be “precautionary” in respect of the unit of
assessment22. There are other examples in the log of the precautionary approach being used
not just in respect of ambiguous information, but in applying the Standard where there are
ambiguities23.
11. Assessing an ETP species pursuant to Principle 1 interprets the Standard in a risky and potentially
damaging manner. This approach requires an interpretation of the Standard which is inconsistent with
the framework’s purpose, and ignores the precautionary approach, potentially risking:
11.1 MSC’s credibility and reputation as an independent certifier of sustainable fisheries; and
11.2 the orange roughy population’s health and conservation in Australia.
B.3 National ETP legislation does not permit stocks to be carved out
12. In its Updated FRD, the CAB distinguishes certain orange roughy stocks, and seeks to assess those
specific stocks against Principle 1 and the species against Principle 2. Whilst Principle 1 does
anticipate target stocks (rather than entire species) being assessed, it is inappropriate to do so here,
where:
12.1 the national ETP legislation has clearly identified the entire orange roughy species as
threatened and listed it as such; and
20
MSC Standard v 2.01, Box GSA1: precautionary approach.
21
FAO Code of Conduct for Responsible Fisheries, Article 6.5: “States and subregional and regional fisheries
management organizations should apply a precautionary approach widely to conservation, management and exploitation
of living aquatic resources in order to protect them and preserve the aquatic environment, taking account of the best
scientific evidence available. 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” (emphasis added).
22
See https://mscportal.force.com/interpret/s/article/identification-of-VMEs-SA3-13-3-1527262008557. Although the
question is in respect of vulnerable marine ecosystems, this log entry confirms that a precautionary approach is relevant to
the unit of assessment aspect of the assessment, and therefore indicates the precautionary approach is not limited to
resolving ambiguities in information alone.
23
See https://mscportal.force.com/interpret/s/article/How-should-large-catches-be-interpreted-when-designating-Main-
species-in-P2-SA3-4-4-1527586955640 and https://mscportal.force.com/interpret/s/article/Move-on-rules-at-SG60-for-PI2-
4-2a-1527586956234.
pg 412.2 the MSC Standard’s definition of ETP24 does not refer to, and therefore does not expressly
permit, separating out specific ETP stocks from the species or population25.
13. To carve out an ETP stock in order to assess it under Principle 1 has no proper basis in the MSC
Standard or procedural requirements. It also fails to recognise that the MSC framework must be
subordinate to national legislation26. It may even appear to some as though the CAB has simply
proposed a novel and unsupported method of interpreting the Standard in respect of ETP species in
order to address the Decision and despite the IA’s findings, still certify the applicant fishery. As is
discussed in Part B.6 below, the MSC must determine first whether an assessment on this basis is
permitted.
14. The EPBC Act identifies orange roughy as a species, not individual stocks. The Threatened Species
Scientific Committee (TSSC) is responsible for advising the Minister as to which species ought to be
listed, and in which category, and whether any changes need to be made (for example, change of
category or removal from the EPBC list). The TSSC has, to the best of WWF’s knowledge, not made
any recommendation to remove orange roughy from the EPBC list. We understand that the TSSC has
specifically been asked to consider the conservation status of orange roughy in recent times27. It is
understood that orange roughy may come before the TSSC for reconsideration of its listing status in
2021, but as at the time of this submission, no change has occurred to the listing of orange roughy.
15. As was correctly stated by the IA in the remand Decision, the MSC Standard does not permit the CAB
to make a “qualitative judgment28” of recognition of a species by national ETP legislation. If orange
roughy as a species has been identified as threatened through due process by the Australian
government, there is no scope for the CAB to then arbitrarily carve out specific stocks to assess under
Principle 1.
16. The CAB appears to have again made a qualitative judgment in using the conservation dependent
status of orange roughy under the EPBC Act to determine it can carve out specific stocks,
notwithstanding that it is the entire species in Australia that is listed as “threatened” under the national
ETP legislation. The Updated FRD is lacking articulation of how the CAB has reached this conclusion.
The fact that the conservation dependent category is, in the words of the CAB, a “major complication”
is not an appropriate reason to make this arbitrary distinction between stocks in circumstances where
the species is classified as ETP29.
17. It is WWF’s view that it is clear from both the EPBC Act and the definition of ETP in the MSC
Standard30 that there is no mechanism to distinguish certain stocks of that species for the purpose of
facilitating a Principle 1 assessment.
18. The management of the species, and the specific stocks in question using a combination of
commercial TACs and incidental bycatch allocations by the AFMA is not a sufficient basis on which to
distinguish them from the entirety of the orange roughy species which the CAB has assessed under
Principle 2:
18.1 there is insufficient data about orange roughy stocks generally within Australian waters. For
example, the age of the fish in the stocks, and any exchange between the various populations
24
MSC Standard v 2.01, SA3.1.5.
25
An exception to this may be where the relevant national ETP legislation lists stocks, rather than (or in addition to) entire
species.
26
See further, for example, WWF Written Representation dated 10 November 2020, Part C.
27
Minutes of the Great Australian Bight Resource Assessment Group (GABRAG) meeting in October of 2020 indicate that
in response to GABRAG members raising the issue of whether the GAB orange roughy stock could be delisted, advice
received from the TSSC is that they “consider the status of a species across its range, and that delisting a stock isn’t
something that has been considered in the past” and that “the TSSC may require demonstrable proof of the stock having
rebuilt across its (entire) range before the species could be considered for delisting. See
https://www.afma.gov.au/sites/default/files/gabrag_october_2020_minutes_final.pdf.
28
Decision, [21].
29
Updated FDR, page 15.
30
MSC Standard v 2.01, SA3.1.5.
pg 5or stocks, and the likely range of spatial ecological dependencies/interactions exhibited across
the population are not properly known;
18.2 as discussed further in Parts B.5 and B.6 below, the current forecasts show that the target
populations for orange roughy recovery will not be achieved with TACs set around the current
levels;
18.3 the MSC Standard is silent and therefore ambiguous as to whether “recovered” stocks of an
ETP species can be assessed under Principle 131; and
18.4 it is not appropriate to commence commercial fishing whilst some stocks of the same species
or population are still recovering, especially in circumstances where the exchanges between
stocks are relatively unknown32. It is problematic in itself to deal with certain stocks and not
the entire species in light of this uncertainty.
19. The entire species is classified ETP, and as such, individual stocks cannot be assessed under
Principle 1 (nor the species as a whole).
B.4 Principle 2 species cannot also be assessed under Principle 1
20. In addition to the submission that an ETP species cannot, in any circumstance, be assessed under
Principle 1, it is also the case that the MSC Standard indicates that a species should not be assessed
under two principles. This further implies that orange roughy cannot be assessed under Principle 1,
because as an ETP species it must be assessed under Principle 2.
21. The three principles of the MSC framework are intended to be independent of one another, and of
course, all three must be satisfied in order for certification of an applicant fishery to be obtained. The
independence of the principles, and hence why orange roughy cannot also be assessed under
Principle 1, is confirmed by the Default Assessment Tree:
21.1 the Default Assessment Tree33 reflects MSC intent that Principle 1 and Principle 2 are
separate and independent as demonstrated by the separate and discreet branches of the tree
for each Principle;
21.2 any variation to the Default Assessment Tree can only occur by applying for a variation to use
a modified assessment tree. The need for approval by MSC is clearly set out in FCP v2.1 at
7.10.3 and 7.12.5. This process must be followed prior to issuing the Announcement
Comment Draft Report;
21.3 no variation for the use of a modified assessment tree was applied for or approved prior to or
during the assessment of the Australian orange roughy Eastern Zone stock.
22. Each of the principles have distinct purposes and consider different aspects of the fishery. To assess
orange roughy under both Principle 1 and Principle 2:
22.1 fails to follow the Default Assessment Tree;
22.2 is inconsistent with the special protection given to ETP species under the Standard;
22.3 ignores the mortality minimisation requirements of Principle 2; and
22.4 ignores the intention that Principle 2 is intended to deal with species outside of the unit of
assessment.
23. If the IA or the CAB disagrees, and is of the view that orange roughy can be assessed under both
Principles 1 and 2, this identifies a procedural or structural difficulty within the MSC Standard as it
currently does not permit such an assessment. Such a matter must be resolved by the MSC as the
“owner” of the Standard. This is discussed further in Part C below.
31
See further Part B.1 above about how such silences or ambiguities must be resolved.
32
See WWF Written Representation dated 10 November 2020, Section 3.
33
See Figures SA1 and SA2 of the MSC Fisheries Standard v2.01.
pg 6B.5 Principle 1 target species management inconsistent with Principle 2 requirements for ETP species
24. A further reason why orange roughy cannot be assessed under Principle 1 is because as an ETP
species, the Standard includes mortality minimisation requirements which are set at standards higher
than implemented for a usual single species stock assessment. For example, SA3.11.134 provides:
When scoring the ETP Management Strategy PI SGs teams shall consider the need to minimise mortality.
25. Mortality minimisation was explored by the IA in her Decision at paragraphs [30] – [35].
26. Of course, the assignment of a TAC to a stock or species does not in any sense trump or override the
ETP status given to orange roughy by reason of its listing in the EPBC Act.
27. WWF agrees with the IA that to require mortality of an ETP species to be “minimised” is entirely
inconsistent with that same species being a target species. For example, the management of target
species relates to setting a TAC using surplus production models based on the principles of maximum
sustainable yield (MSY) and/or maximum economic yield (MEY). The fact that Principle 1 target
species (or, in this case, stocks) are managed on the basis of the maximum possible yield being taken
before the stock begins to be depleted is wholly inconsistent with the concept of minimising mortality
which is intended to facilitate recovery of the species.
28. It is the view of WWF that for ETP species it should never be a first choice to use a fishery population
approach nor targets set under fisheries management type arrangements to assess an ETP species.
These are suitable for Principle 1 assessment based on surplus production models of how much can
be safely extracted from a fish resource without detrimental impacts on long-term recruitment or
recruitment impairment. This approach cannot and should not be applied to ETP species where the
primary motive is protection and conservation of a species.
29. This approach is particularly concerning where there are valid concerns that the Eastern Zone stock
may not rebuild to the B48% target level if TACs continue to be set at the same levels:
29.1 the CAB notes at page 114 of the Updated FRD that “in the Eastern Zone, the stock is
monitored, and commercial TACs are set conservatively using the harvest strategy to ensure
catches do not exceed a sustainable level while still allowing the eastern stock to rebuild to
the B48% target level”;
29.2 however, arguably the best available data on the current Eastern Zone orange roughy stock
levels, demonstrates that this target level is not achievable with TACs set at the current levels.
Haddon (2017) observed that “[e]ven after 55 years the Eastern Orange Roughy stock is not
predicted to have achieved the biomass target reference point of B48% in either base-case
version 35;
29.3 this is in part because the predicted dip in recovery which is projected to occur sometime after
2027 and continue through to approximately 2051, has not yet begun to be seen in the data36;
29.4 the CAB has seemingly ignored these issues, perhaps on the basis that the failure to meet the
recovery target and the fact that the dip in recovery has not yet occurred, will only be a matter
for concern from around 2025 to 2027, as until that time, the current TACs are acceptable
under the Principle 1 requirements and will allow recovery of the stock consistent with
estimates of MSY;
29.5 to take such a stance, which does not promptly address potential risks to the stock’s recovery,
reflects a conventional MSY-based management approach;
29.6 however, WWF’s view is that the conventional MSY-based management approach is
inconsistent with how the Standard indicates ETP species should be managed. Principle 2
requires ETP species be managed so as to not hinder recovery, rather than on a MSY-type
basis37;
34
MSC Standard v2.01.
35
Bundle Item 30 Haddon 2017, page 35, 40.
36
Bundle Item 30 Haddon 2017, page 35.
37
MSC Standard v2.01 Performance Indicators 2.3.1 and 2.3.2.
pg 729.7 this suggests that to the extent the CAB has carved out the Eastern Zone stock on the basis
that current TACs will permit recovery to the B48% target level, this approach is inconsistent
with how the MSC Standard (in Principle 2) determines ETP species must be managed;
29.8 to recognise the ETP status, the CAB should have made greater allowances for the
uncertainty inherent in the current stock assessment;
29.9 finally, while it is unlikely to be appropriate to assess the CAB’s scoring of ETP performance
indicators at this point of the objection process, taking the above points into consideration it is
difficult to see how the applicant fishery could pass a Principle 2 assessment of ETP
performance indicators related to hindering recovery, despite the extremely high scores
awarded by MRAG in their revised Final Report.
30. Again, any “opaque[ness]”38 or ambiguity in the Standard about whether ETP species can be the
target species must be interpreted in accordance with the intent of the MSC framework39 and/or the
precautionary principle, both of which lead to the conclusion that the silence in the Standard does not
permit assessment of ETP species under Principle 1, especially where to do so could lead to potential
harm of that species (i.e., unsustainable treatment).
B.6 Misleading labelling and failing consumer expectations
31. To certify a fishery targeting an ETP species may give rise to misleading conduct, and will likely fail to
meet consumer expectations about sustainability which could result in reputational damage for MSC.
32. As was raised in WWF’s written representation prior to the oral hearings, consumers who rely on the
MSC tick to indicate sustainably caught seafood products are likely to expect that a species certified
as sustainable would not also contemporaneously be listed in national ETP legislation as
“threatened”40.
33. Although it may be argued that the stocks targeted by the applicant fishery are sustainable to fish
because an appropriate TAC has been set by AFMA, WWF submits that this does not necessarily
mean (and in this case, does not mean) that fishing orange roughy is sustainable within the common
meaning of language – or as would be understood by an average consumer.
34. There are likely many considerations that the AFMA (or any other comparable body) has when setting
TACs for each species and specific stocks, and one of these considerations is very likely
commerciality. The AFMA’s sole purpose is not to ensure best practice for conservation by not
hindering recovery of depleted species – this is, of course, a consideration, but it is tempered by other
competing objectives. The commercial considerations at play may leave open a less than best
practice approach to achievement of sustainability outcomes for the fish population.
35. It is clear, then, that a commercial TAC simply indicates the balance between conservation and
commerciality can be tipped in favour of the commercial benefits, and therefore a TAC does not
automatically indicate that it is appropriate to assess that stock under Principle 1, particularly where
that species is also listed as conservation dependent. A TAC does not necessarily demonstrate that a
conservation-centred assessment of the stock has been made.
36. It follows that MSC’s certification process must, and does, require more from fisheries than to simply
abide by local laws and TACs. If MSC’s certification was limited to ensuring compliance with local
laws, the certification process would serve little to no purpose as, especially in a well-regulated country
such as Australia, and so the public (likely correctly) assumes that commercial fishing operations are
largely lawful. Were the MSC blue tick only intended to qualify circumstances such as legality, it would
not effectively distinguish between competitors as intended in terms of the ‘sustainability’ of the fishery
in question relative to other non-certified fisheries.
37. The MSC ought to be making its own independent assessment of the fisheries beyond government
regulations, so that consumers can distinguish between fisheries that only comply with government
38
Decision, [35]. See also Decision, [33] – [34].
39
Ensuring MSC certifications are highly credible and reflect global best practice.
msc-strategic-plan-summary-2017-2020.pdf
40
WWF Written Representation dated 10 November 2020, Part C.
pg 8regulations, and those fisheries that also have incorporated best practices into their business
behaviours and practices which meet sustainability benchmarks.
38. Consumers assume that businesses comply with laws (especially in countries such as Australia) and
expect that something labelled as “sustainable” goes further than simply legal compliance41 and
ultimately has a neutral, if not a positive, impact on that species/resource. It is not far-fetched to say
that a reasonable consumer in a country such as Australia would likely assume that any species being
advertised as sustainable is not listed in national ETP legislation as threatened.
39. In order to maintain its status as a credible certification, MSC (or the CAB on its behalf) should not
permit the weakening of the Standard by assessing orange roughy in a manner which is not intended
or based in the framework. This is especially the case in circumstances where:
39.1 orange roughy is an ETP species and is listed as threatened under national ETP legislation;
39.2 the target recovery for orange roughy is currently not expected to be achieved42;
39.3 a further dip in recruitment levels which has been forecast due to overfishing in the 1980s and
1990s is still yet to occurr43; and
39.4 the CAB is adopting a MSY-based management approach which is inconsistent with the
recovery principles set out in the MSC framework for ETP species.
40. If the MSC framework does not meet these consumer expectations, it is at risk of damaging its social
licence to operate. MSC’s business model relies on its blue tick being a persuasive way to encourage
consumers to purchase certain products. If a fishery is certified as sustainable despite fishing a
threatened species, this has the potential to undermine consumer’s confidence and trust in the
credibility of the MSC tick, as well as potentially being misleading conduct under Australian consumer
law.
C. Applicant fishery must fail
41. The objection can clearly be upheld and for the reasons set out above. By reason of orange roughy’s
ETP status, it cannot be assessed under Principle 1.
42. Each MSC assessment requires a target species to be assessed under Principle 1. The logical
extension of this for orange roughy is that if it must be assessed as Principle 2 and cannot be
assessed as Principle 1 (by reason of its ETP status) then there is no Principle 1 species. If there is
no Principle 1 target stock, the assessment cannot occur and there cannot be any certification.
43. The fact that the MSC Standard is silent on whether ETP species can be assessed under Principle 1
cannot be taken as permission to do so. To take such an approach is reckless, as it suggests the
starting point should be to permit anything which has not expressly been excluded by the MSC
Standard. Certification must be limited to what is expressed within the Standard.
44. Aspects of the approach the CAB has taken in its Updated FRD are novel, and are not clearly within
the confines of what the Standard permits. To try and ratify that approach during the objections
procedure is not the appropriate way to clarify such matters. Rather, to the extent there are silences,
inconsistencies or ambiguities in the MSC framework, guidance from the MSC is required. WWF was
informed during the oral hearing that the CAB was in fact engaged in an exchange with the MSC on
these matters at an early stage before the assessment began, however no definitive conclusion was
reached44. If the CAB failed to seek guidance, or MSC failed to adequately address the issue, this
does not change the fact that it ought to be MSC as the “owner” of the Standard addressing these
matters. As stated in the remand decision,45 the IA has a narrow remit and her power to resolve these
matters is limited to what is set out in PD2.8.2.
41
Unless legal compliance results in sustainability as defined in this case by the MSC Standard.
42
Bundle Item 30 Haddon, 2017, page iv.
43
Bundle Item 30 Haddon, 2017, page 16.
44
Decision, [38].
45
Decision [8]
pg 945. The MSC carries out a Fisheries Standard Review process every five years. One of the issues being
considered by the current review as an area that potentially requires changes is clarification of the
ETP aspect of the Standard. Whether ETP species, or stocks of that species, can be assessed under
Principle 1 ought to be addressed by such a review, and in fact, the current review could change
the scope, intent and requirements of the MSC Fisheries Standard46. This question should have at
minimum been referred by the CAB to the MSC Interpretations Log for clarification.
46. The other way which this issue could be resolved for the applicant fishery is if the Australian laws were
changed, either so that orange roughy was no longer listed in the EPBC Act or if the EPBC Act
permitted differentiation between certain stocks in its listings (however, see paragraph 14 above about
the TSSC’s current views on the listing of orange roughy).
47. The IA summarised this point well in her decision in respect of the CAB’s 2.7.10 notification dated 24
February 2021:
However, the difficulty, in my view, lies in the narrow terms of the Standard when read against the Australian ETP
legislation. It is not open to me to go beyond my interpretation, in light of any views I might have on the otherwise
sustainability of the stock and the suitability of the unit of assessment for certification. The remedy to this lies outside
of this process in seeking a change either to the Australian legislation or clarity in the Standard.
48. The IA’s finding in her Decision must be maintained, and WWF’s objection upheld.
46
See Clarifying best practice for reducing impacts on endangered species (ETP). The MSC specifically states: “This
review could change the scope, intent and requirements of the MSC Fisheries Standard.” MSC also states that: “We may
need to update the scope of what is eligible to assess, for example which species to consider under the ETP
requirements.“
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