October 2017


Bender’s choice

By Claire Konkes
Image of Frances Bender

Frances Bender at the Huon Aquaculture salmon farming facility, Hideaway Bay, Tasmania. © Peter Mathew / Newspix

Tasmanian salmon, from farm to court

At the Supreme Court of Tasmania in Hobart, a coterie of suits wait in the foyer for the morning’s proceedings to start. It takes a moment to spot the plaintiff. Frances Bender, the plain-talking millionaire salmon farmer, who wept on camera as she told the ABC’s Four Corners last year that Tasmania’s salmon industry was in crisis, is signing affidavits at the clerk’s counter.

On this crisp winter’s day, Bender is up to her eyeballs in three separate legal challenges: one in the Supreme Court and two in the Federal Court. Bender’s company, Huon Aquaculture, is seeking stronger regulation of marine farming in the state, at both the federal and state level. Can you think of another occasion when a major primary producer took a government to court arguing for better regulation, including tightening restrictions to growth?

Tasmania’s salmon industry is worth about $700 million at the farm gate and employs more than 2000 people, notably in regional areas. Other than a handful of smaller operators, three companies, Tassal, Huon Aquaculture and Petuna, dominate the industry with business models stretched across hatcheries, sea farming and processing. Until recently, these three were on co-operative, though competitive, terms and enjoyed considerable government support as major employers and ambassadors for Brand Tasmania. But the business of farming salmon is changing and relations have soured. Bender is at the fulcrum, using media and the law to leverage change.

Having signed the paperwork, she scans the foyer and spots a tall woman in a conspicuous faux-fur coat. Laura Kelly, strategy director of the non-profit group Environment Tasmania, has just walked in. The two women embrace and I am close enough to hear Bender tell Kelly, “I’m exhausted, absolutely exhausted. But this must be done.”

This sudden rendering of emotion is a small, but extraordinary, note in the tune of Tasmanian environmental politics.

The state’s natural resources and its proportional representation voting system mean the environment has long been a feature of the political landscape. While the clichéd “jobs versus the environment” argument still gets dusted off when contentious issues arise, especially around election time, the old divide between greenies and industry is not as neatly defined or easily deployed these days.

In 2012, for instance, environmentalists sat down with the logging industry to draw up a truce to end the “forest wars”. (Although more recently the incumbent Liberal government has done its best to restart them; as Bender was signing the paperwork in the Supreme Court, parliament across the road was knocking back legislation to reopen 365,000 hectares of forest to logging.)

Also in 2012, Tasmanians faced the threat of the world’s second-largest fishing boat – “the super trawler” FV Margiris – heading into local waters. A veritable fleet of outboards and larger craft owned by recreational fishers and boating enthusiasts, many from the conservative end of the political spectrum, joined environmentalists’ protest boats to make a political case for a fair go at fishing – and won.

Now, an industry leader is rocking the boat.

The cases before the courts today – we will head up to the Federal Court this afternoon – are full of legal arcana and particulars about aquaculture management, but to summarise: Bender’s company, Huon, is accusing the Tasmanian government and the state’s Environment Protection Authority of not adequately or fairly managing the expansion of salmon farming in Macquarie Harbour. Huon alleges that the government’s enthusiasm for expanding the industry not only allowed the industry to grow too quickly but also led to decisions and concessions that favoured its major competitor, Tassal.

As the court deliberates on whether Huon has any grounds for these accusations, I think about our fish tank at home. My daughter started with a 50-litre tank, but her aptitude for research and the crash course in biochemistry that aquariums require soon led her to invest in a 130-litre tank. Not only can she fit more fish but the greater volume – assuming she doesn’t overstock – provides a better margin for error if her biochemistry goes awry. In the tank, clean water cascades from the filter outlet, making bubbles that oxygenate the water. Fish farmers describe this as water having “energy”. Invisible to the eye, “good” bacteria circulate in the water, consuming the fish poo and rotting food waste and turning them into various compounds that eventually build up to toxic levels. In fish farming, tides and currents cycle the water; at home, we use a siphon and a bucket.

The tank can hold about 15 fish, depending on their size. It’s tempting to overstock; a few more never seem to hurt. But, like much of animal husbandry, it’s about managing the accumulated waste. The more fish, the more waste and the more likely that things will get out of hand; a few less will keep the margin for error wider. “It’s your choice,” I’ve told her, as we stare at the pretty tetras flicking beneath the lights. “But you’ll be sad if they all get sick.”

Listening to the lawyers argue for their clients, it might be easy to describe Huon’s actions as one corporate fish attacking another; that Bender’s public grievances and litigation are a cynical corporate move. But there is something about Bender’s anger, and her decision to go to court, that seems more than a commercial spat. For starters, when Bender criticised the salmon industry on Four Corners, she was revealing her company’s dirty laundry along with everyone else’s.

Salmon farming was for decades a flagship of Tasmania’s “clean green” image but, in more recent years, the industry has come under scrutiny: for its industrial-scale hatcheries; its use of synthetic “pink” dyes to colour the fish and antibiotics to combat bacterial infections; the rate of “morts” (dead fish); the shooting and relocation of Australian fur seals that raid the pens; and the incursion of fish farms in parts of Tasmania’s populated, and popular, coastal areas. Huon is also the target of some of this criticism, but Bender’s choice to admit there are problems, on national television and now before the courts, is the kind of exposure not easily dismissed as greenie ideology. Hers was a loud and very public shout from inside the tent that things are not going well.

One way to look at the grievances between the companies is to glance at their roots and the culture war at play. Tassal’s CEO, Mark Ryan, was the receiver from advisory and investment firm KordaMentha who pulled Tassal from bankruptcy in 2002. A year later, his ability to cut costs and return Tassal to a profitable business was lauded in the country’s business pages, with one story in the Age praising his decision to stop harvesting immature fish to cover debt. While Ryan comes from a corporate background, Huon Aquaculture’s Peter and Frances Bender are a husband-and-wife team who started farming from scratch in the 1980s and still describe themselves as farmers.

This is not just a story of how many fish can be put in a pen or how many pens can sit in a waterway before the waterway and its fish get sick. The debate swirling around Tasmanian salmon is a debate about choice: consumer choice gets a look-in because, in these politically cynical and consumer-focused times, political action is often packaged as consumer choice. But mainly this story is about commercial decision-making – and good governance – that does not leave it to consumers to decide whether to knock back a nice piece of salmon because the politics failed to listen to the science.

Macquarie Harbour, on Tasmania’s west coast, is a deep harbour with slate-dark waters. The southern third lies within the Tasmanian Wilderness World Heritage Area. Two rivers – the King and the Gordon – fill the harbour like a bath while its narrow opening, called Hell’s Gates, keeps the wild sea in check. Its size – six times that of Sydney’s harbour – and relative tranquillity makes it ideal for fish farming, but it has limitations. The tannin in the water limits the penetration of sunlight and its stillness leaves the water conspicuously stratified – without much tidal action, the fresh river water remains at the surface while the saltier water sinks to the bottom. This stratification can be good for fish health: fresh water can flush diseases from their gills. However, the harbour is also notoriously low in the dissolved oxygen that fish “breathe”. Low dissolved oxygen in water is, for fish, like stuffy or polluted air; no dissolved oxygen and they suffocate. Macquarie’s still, light-impoverished waters are not teeming with endemic life – but Tassal, Huon and Petuna all farm there.

In 2011, Tassal, Huon and Petuna were producing 9000 tonnes of fish in the harbour when they formed a group to work towards doubling production by 2030. As the harbour partly lies in a World Heritage area and is the known habitat of at least one threatened species, the Maugean skate, expansion was subject to federal approval. Studies at the time suggested the harbour could support about 29,500 tonnes of fish, but the federal approval capped this stocking rate at about half, or 15,000 tonnes, as a precaution. Using an “adaptive management principle” the companies were to “scale up” slowly. The decision to develop the industry brought the companies together; the speed at which Tassal increased its stocking rates would land them in court.

Under the management plan, the companies monitor the top and middle sections of the harbour where the fish swirl in their pens, and Tasmania’s EPA monitors the bottom third where the oxygen levels are lowest. Scientists from the University of Tasmania and CSIRO are closely involved, and the industry contributes millions to this research.

What grows beneath the pens in the murky benthic zone is a good measure of water health: dorvilleid worms eat fish waste, so an abundance of worms indicates that too much waste is escaping from the pen, but an absence of dorvilleid worms suggests an absence of oxygen. The benthic zone is deemed “dead” when the worms disappear and anaerobic Beggiatoa bacteria form mats across the floor. These two species were key “compliance” species in the monitoring program.

In early 2014, as the companies were preparing for the cap to be lifted, the EPA revealed that monitoring was showing dissolved oxygen levels were crashing. Huon and Petuna wrote to the government and proposed keeping the biomass cap set to 15,490 tonnes rather than continuing to scale up, but, in September, Tassal revealed it had increased production in anticipation that the cap would be lifted. At the centre of concerns was Tassal’s Franklin lease, known as lease 266. As well as being the closest to the World Heritage boundary, lease 266 was showing worrying health signs that were confirmed in early 2015, when dorvilleid worms were found 4 kilometres around the lease, extending into the World Heritage area. Shortly afterwards, the Tasmanian government removed dorvilleid worms from their list of compliance species, subject to further research, and increased the cap on stocks to 20,020 tonnes.

By 2016, the incongruence between the science and management was clear. Despite calls for caution, the biomass cap was raised again, this time to 21,500 tonnes, in April. In October, the EPA revealed the floor beneath lease 266 was completely dead.

In January 2017, the EPA reduced the biomass cap to 14,000 tonnes and ordered Tassal to remove the fish from lease 266, but Tassal missed the March deadline, citing equipment delivery problems and disruptive weather, and eventually removed the salmon in April. The company also reported its overall stocking rates would probably exceed the permitted biomass until the end of the year. In May, the EPA granted Tassal an exception to exceed its cap and changed its allocation process from the equal “tonnes per hectare” allocated to each company to a “percentage of current stock” that favoured Tassal.

Huon argues that the EPA was regulating the harbour around Tassal’s planned harvest schedule rather than scientific advice and, in effect, privileging the short-term economic interests of one company over the interests of not only its competitors but also the environment. With the state authorities apparently backing Tassal, Frances Bender – who by now felt persona non grata after talking to media – took her concerns to court.

In his book How Did We Get into This Mess?, George Monbiot observes that the idea of relieving business from the constraints of social justice and environmental responsibility can essentially equate to corporate interests seeking “freedom from democracy”. Bender’s choice to take her grievances to court shows that at least some of the checks and balances inherent in a modern liberal democracy are still working.

In the case of state governments caving in to the demands of big business, there is always a higher court, which leads us through St David’s Park and across Davey Street to the Federal Court, where Huon is arguing that the Tasmanian government and/or the EPA did not comply with the federal conditions by allowing salmon stock levels to rise to greater levels than Macquarie Harbour could support. The second Federal Court challenge focuses on the technicalities of the EPA’s decision to grant Tassal a higher biomass allocation.

So, what does Bender hope to gain by risking her reputation and political relationships to publicly and resolutely demand better regulation in Macquarie Harbour?

Huon Aquaculture’s headquarters are on the 13th floor of one of Hobart’s few tall commercial buildings. The view of the city and the Derwent River is worth the ride in the lift. Frances Bender is upbeat when we meet and says that the government is finally listening after “failing to keep up with the needs of the industry and the wants of the community”. The “face-to-face dingdongs” with Canberra and more locally have been exhausting, but seem to be working.

“The sad thing about what has happened is that we needed to nearly break the industry and create a lot of angst to fix it,” she says of her decision to publicly criticise the industry and go to the courts. “I think the tide has turned because there is a level of respect from government that what we have been saying has been coming from a genuine place and not from us trying to position ourselves to a commercial advantage.”

So, this was about more than cornering your competition?

“It was never a commercial spat,” Bender says, describing the accusation as “offensive and lazy”.

“If we don’t do this right,” she continues flatly, as though the answer is plainly obvious, “we won’t have an industry, we won’t be employing people, and we will fuck up the economy of this state.”

Bender is quick to talk about Huon being a family business and a regional employer. She grew up in Tasmania and says she has seen what happens to regional communities when industries die, as well as how communities thrive when businesses succeed.

“That’s the element that never shows up on a balance sheet or in the share price.”

Bender says that, instead of looking after jobs for the long term, the industry got itself into “trouble” when the push to expand started to ignore the science.

I suggest there is some cynicism about how science is used, such as justifying the controversial development of salmon farming in Okehampton Bay on the state’s east coast – not to mention the problem of any inquiry only answering the questions asked of it – but Bender has little time for suggestions that industry is driving science to come up with answers it wants to hear.

“We are all looking at the same science,” she interrupts, “but in the interpretation of that science there is a range of views because there are differing risk appetites.”

The appetite for risk lies at the heart of the problem, she says. Tassal was prepared to take on a riskier interpretation of the science compared with Huon and Petuna, and somewhere in the middle is a government managing these two perspectives.

“The government is looking at the industry and at the science and their own interpretation, but there is no government in Tasmania that wants to limit jobs and growth.”

Science was ignored, and as a result, she continues, the industry, as a whole, confused and devalued the science by not releasing findings, or releasing part of them, or spinning them rather than giving the whole picture. As far as Bender is concerned, the industry has pushed its luck and exhausted its credibility.

“To pretend nothing is wrong, to hide behind your spin of the science or accreditation to say there is nothing to see here, you lose a lot of trust,” she says, arguing that transparency keeps the conspiracy theorists away.

“I know it sounds wanky for a corporate to be saying this, but, for any industry or business, if you don’t have that holistic view, the wheels will fall off somewhere and you will be outed, or something will go wrong in your processes,” she says. “We should be reporting more accurately, frequently and transparently, the good, the bad and the ugly.”

This ethic of transparency led Bender to risk showing the industry’s dirty laundry rather than counter criticism with reassuring spin. It appears to have paid off and, on paper, profits for both companies have continued to rise. Locally the industry still appears on the nose. Chefs of some of Tasmania’s better establishments, such as Philippe Leban, the former executive chef at Mona’s The Source, and national gastronomic identities Maggie Beer and Christine Manfield have signed the Sustainable Salmon Chefs’ Charter that pointedly calls for “the full pen to plate story”, including where the fish are grown and what they’re fed. (There is a curious absence of discussion about fish welfare in the Charter – but, as any pescetarian or recreational fisher with a fish suffocating in a bucket might admit, fish tend to live and die in a different moral universe to other creatures.)

Linguist George Lakoff, writing about how we might change the way we talk about the environment, observes how environmental action is so often framed as personal action: ride a bike, get solar panels, eat sustainably produced food. The Charter is a good example of how a complex environmental issue – or how not to collapse an ecosystem – can be turned into a food safety issue and then into a conversation about food dye.

The pink colour of salmon in the wild comes from the molecule astaxanthin, found in the crustaceans that salmon (and flamingos) eat. Just days after Four Corners highlighted the use of a synthetic form of astaxanthin, Tassal announced it would be switching to a natural source. Huon followed, despite Bender’s observation that consumer concerns about the dye were a “storm in a teacup”. Noting that astaxanthin can be bought in health food stores along with other supplements, she says concerns about the synthetic dye are ridiculous, unless people also believe that the vitamin C in tablets is made from “squashed-up oranges”.

Discussing the collapse of a marine ecosystem in Macquarie Harbour and the other issues of sustainability besetting the salmon industry as a human health issue highlights the limitations of consumer campaigns as political action. Changing the dye was a relatively easy demand to meet compared with some of the other challenges the industry faces – like moving pens offshore to deeper, colder water away from seals and community angst, not to mention rising sea temperatures. These challenges require political, as well as consumer, action. As Lakoff noted, it is often governmental action that not only outweighs our individual efforts but also shapes our individual actions. No doubt countless individuals and environment groups can argue they have been using every social, political and legal opening available to them for decades. What is interesting in the case of the salmon industry is that the political action is coming from industry itself.

When I put this to Bender, she says a good fishing industry needs biosecurity, fish health and the environment, and that these three elements are interdependent and the necessary formula for avoiding boom and bust.

Her decision to go to court was commercial in the sense that Bender sees managing the environment as a key part of her business, rather than a requirement to meet regulation or appease consumer sentiment. To this end, Bender argues for stronger support for science to inform decision-making.

“If you don’t have a healthy environment, you don’t have a business,” she says. “You need to live by this – not just spin it.”

Huon now has an interactive “sustainability dashboard” on its website that shows the real-time data produced by the monitoring efforts of the companies and scientific organisations, such as CSIRO and the University of Tasmania. It’s surprisingly informative. A quick glance shows that the company’s production is down 33% from last year and its antibiotic use has steadily reduced, too. The question of whether efforts such as these will be interpreted as transparency, or impenetrable (and therefore meaningless) data, or vacuous reassurance remains to be seen. Most visitors to the Huon website are more interested in recipes than sustainability, Bender says, and the best data in the world can be mangled at the hands of ideologues and social media commentators. But the dashboard is a start to what Bender describes as a holistic approach to salmon farming that does not hide the science. The question of how science, and scientists, can ever be truly independent when tied to industry funding, and the economic philosophies of government, remains a moot point.

The expansion of salmon farming in Tasmania appears to have verged on what Quentin Beresford, in his 2015 book The Rise and Fall of Gunns Ltd, refers to as the “crony capitalism” to which Tasmania seems particularly prone. He notes that Tasmanian politicians have had a pro-development mindset, especially when it means providing “the bounties of nature” to business, but that the collapse of the state’s forestry monopoly Gunns left Tasmania at a crossroads. Observing that the old guard, and the old way of doing politics, is still in power, he wrote that the future for business lay in high-value, differentiated products – and one imagines locally produced salmon would make this list.

Beresford suggests that the fight over Gunns’ pulp mill was the last of the great political and social struggles over the state’s environment, culture and future, and concludes that community-based activism prevailed over government and corporate interests. The Tasmanian salmon industry rose during the demise of Gunns, notably absorbing some of the regional unemployment left in the wake of the collapse of forestry. That the salmon industry appears to have become mired in controversy suggests Tasmania’s political struggle over how to manage access to its natural assets is not yet finished.

Indeed, Tasmania is at a crossroads, and Tassal has been likened by some to Gunns, a company that behaved as though it was not accountable to democratic processes. What is most remarkable about Bender’s choice to challenge her regulators in court is that she represents a corporate approach willing to turn down the short-term grab for a longer outlook. While Bender says the government has started listening, it remains to be seen what the courts decide when hearings resume in November.

Perhaps political and corporate interests in Tasmania are learning to drop the “jobs versus the environment” jingle from their songbook. In challenging the old way of doing business, Frances Bender has begun to rewrite that old song. In her words, it goes like this: “If I fuck up the environment, I don’t have a business, and if I don’t have a business, I don’t have a profit.”

Claire Konkes

Claire Konkes is a Hobart-based journalist and academic.

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