SHOULD CARUANA BE PROSECUTED

AND WHY DIDN’T THE RGP ENFORCE THE LAW?

My article today is not political but legal. It begs two questions: should the former Chief Minister Peter Caruana be prosecuted for breaking the 1991 Nature Protection Act? And, why didn’t the Royal Gibraltar Police enforce that law from 1997 until the present GSLP Liberal Government was elected to office last November?

Before 1991 Gibraltar was in a state of catch-up with the environmental legislation in the UK and wider Europe. However that year the GSLP Government presented the Nature Protection Act before the Rock’s parliament. It was then duly passed in to law and has been the law of Gibraltar ever since.

With regards to fishing the law specifically prohibits the use of seine and gill nets in British Gibraltar Territorial Waters. Seabed raking and the use of artificial lights for attracting fish are also illegal under the aforementioned Act.  These methods, including drift nets as well as long lines, are used by Spanish fishermen in our waters.

Between 1991 and 1997 the Act was enforced by the Royal Gibraltar Police.  While some fishing occurred, this was without sanction and the Police effected arrests and prosecutions on a number of occasions. It was following such an arrest, a campaign was started by Spanish fishermen to press the Gibraltar Government to allow them to fish.  In 1999, after the fishermen blockaded the Gibraltar frontier, a ‘Joint Understanding’ was accepted by the fishing federations of the border town of La Línea as well as Algeciras across the bay and the then Chief Minister Peter Caruana. It allowed Spanish fishing vessels to fish in Gibraltar’s waters using methods illegal under the Nature Protection Act 1991.

However this document, if that is what it was, was illegal because it contravened the 1991 Nature Protection Act. It would have been very simply for Caruana to have legalised what he had agreed with the fishermen. As he assures us he had them biting out of his hand all he had to do was to tell them to have patience whilst he took an amendment to the 1991 Nature Protection Act to the then House of Assembly for approval. Once that process had been done the accord would have become part of Gibraltar’s law.

Yet Caruana failed to do that. Either he decided to ignore the House out of shere arrogance or rather than the fishermen eating out of his hand like tame Koi Carp they had held him over a fish barrel. Hence he knew that revealing the terms of the agreement would have caused outrage in Gibraltar and maybe against that scenario he could not count on the support of his GSD team. Who knows? Well Caruana does!

The Chief Minister Fabian Picardo has made it clear to all who will listen that neither he nor his government have any power over the actions of the RGP. Indeed our Minister for the Environment, Dr John Cortes, reinforced that stance in a recent interview with me for the London Progressive Journal on the environmental implications of the current situation.

That being the case the Royal Gibraltar Police also have questions to answer. I am fully aware that the front line officers bravely enforced the Act before 1997 and have been so doing again in recent weeks. Yet what of the Commissioner? Why did he decide not to enforce the law of Gibraltar between 1998 and the former Chief Minister Peter Caruana leaving office? Was he ordered not to do so by Caruana who has no control of the force? Or was he ordered not to do so by the Convent in contravention of the law passed by Gibraltar’s parliament. We need to know.

If I park my car illegally in Gibraltar it is towed away and I am fined according to the law. If I walk down Main Street and punch a passerby on the nose I will be arrested by the RGP and brought to trial. If I walk in to a bank and attempt to rob it I will be bundled away in a police car and find myself before a judge: if found guilty I am sent to jail.

So finally to Peter Caruana himself. We are all equal in the eyes of the law so if we break the laws of Gibraltar it is logical we end up in court. As the former Chief Minister seemingly broke the law of Gibraltar by reaching an accord with the Spanish fishermen, which he then imposed over the 1991 Nature Protection Act that was and still is the law of Gibraltar, what sanction will be imposed?

As I said at the start of this article this is not a political matter it is a legal one. In theory as Peter Caruana appears to have broken the law of Gibraltar as well as possibly influencing others not to enforce the law of Gibraltar then this is a matter that should be heard and ruled on in the courts of Gibraltar. Unless of course there is one law for the hoi polloi and another for former Chief Ministers.

SPAIN’S FISHING ARMADA STOPPED FROM RAPING GIBRALTAR’S WATERS

In a 2010 report Greenpeace stated: “The Spanish government has encouraged the development of excessive and destructive fishing practices such as bottom trawling, purse seining and long lining. It has supported illegal ‘pirate’ fishing through fishing subsidies, and seems unwilling or unable to effectively prosecute Spanish companies who fish illegally.” It is that same Spanish fishing armada that has until recently raped Gibraltar’s waters, which are British waters, and the Gibraltar government is now insisting its environmental laws are upheld to stop the destruction of its marine environment.

In writing this article two statistics stayed with me that described the size of the problem facing Gibraltar. According to Greenpeace if you were to line up all Spanish fishing vessels, bow to stern, they would stretch for a distance of 123 kilometres. Whilst in a Gibraltar Ornithological & Natural History Society (GONHS) paper dated 1999 by its then general secretary and now Gibraltar’s Environment Minister, Dr John Cortes, he stated: “The fact is that the average tramallo (bottom laid net) can be anything up to 1250 metres long while Gibraltar's coastline is only some 14 kilometres in length. Sixty four per cent of that coastline is taken up for commercial purposes; leaving only 36 per cent natural coastline where such fishing if allowed could realistically take place. A single net is equivalent to 11 per cent of our overall coastline…The fishing is neither sustainable nor sufficient.”

So what are Gibraltar’s waters? They are defined by the Geneva Convention of 1958 and Spain is a signatory to this Convention. The waters in question are three miles off the Rock to east and south and a median line in the bay to the west on the other side of which sits the Spanish port of Algeciras. Gibraltar had to play catch up in the 1980s on its environmental laws but in 1991 its parliament passed the Nature Protection Act which is the legislation currently being enforced by the GSLP Liberal Government.

When Gibraltar’s new government was returned in December it fell on its feet by having Dr John Cortes on hand to step in as its environment minister. His qualifications and credentials are internationally recognized and as long as a Spanish bottom laid net. He was General Secretary of the respected NGO the Gibraltar Ornithological & Natural History Society, a post he had held since its creation in 1976 and before becoming a minister was the Director of the Gibraltar Botanic Garden since 1991. It is worth noting he was also a director of Spain’s Parque Natural de Los Alcornocales: so is highly respected on both sides of the border.

I asked Dr Cortes about the current dispute with Spain’s fishermen and the Nature Protection Act 1991: what specifically does it prohibit? The minister stated: “It specifically prohibits the use of seine and gill nets in British Gibraltar Territorial Waters. Seabed raking and the use of artificial lights for attracting fish are also illegal under the aforementioned Act.  These methods, including drift nets as well as long lines are used by Spanish fishermen in our waters.”

These measures were enacted in 1991 in order to safeguard marine habitats and species within Gibraltar’s waters that were being negatively affected by commercial fishing activities. Dr Cortes added: “In order to further protect the marine biodiversity the Southern Waters of Gibraltar were designated as a Site of Community Importance under the EU’s Habitats Directive. This designation was approved by the Commission in July 2006.”

Between 1991 and 1997 the Act was enforced by the Royal Gibraltar Police.  While some fishing occurred, this was without sanction and the Police effected arrests and prosecutions on a number of occasions. It was following such an arrest, a campaign was started by Spanish fishermen to press the Gibraltar Government to allow them to fish.  In 1999, after the fishermen blockaded the Gibraltar frontier, a ‘Joint Understanding’ was accepted by the fishing federations of the border town of La Línea as well as Algeciras across the bay and the then Chief Minister Peter Caruana. It allowed Spanish fishing vessels to fish in Gibraltar’s waters using methods illegal under the Nature Protection Act 1991.

So what are the implications of the new Gibraltar Government rescinding the illegal 1999 ‘Joint Understanding’? Dr Cortes explained it now follows that the Royal Gibraltar Police, who are not controlled by the government, are free to use their own discretion in enforcing applicable laws that prevent the use of illegal fishing methods under the Nature Protection Act 1991. 

The minister continued: “As circumstantial evidence strongly indicates that marine resources continue to decline, and in keeping with the precautionary principle, a revised system for the protection of marine resources, which will include regulation is currently being developed by my ministry for the Government of Gibraltar.”

During the past 3 months the enforcing of the Nature Protection Act 1991 has hit the news headlines as the Spanish fishing fleets have been banned from raping Gibraltar’s waters. This has led to illegal incursions by up to 12 fishing boats, sometimes escorted by a Guardia Civil armed patrol boat, to which the Royal Gibraltar Police or Royal Navy have had to respond. The fishing vessels had deployed seine nets and used artificial light lures: both prohibited under Gibraltar law. It is against this background that discussions have taken place between the Government of Gibraltar and the fishing confraternities of La Línea and Algeciras regarding commercial fishing within Gibraltar’s waters. Dr Cortes noted: “These discussions took place as a direct result of the Gibraltar Government rescinding the 1999 ‘Joint Understanding’ and the impact that this would have on the ability of the local Spanish fleets to continue fishing.”

The fishing grounds around Gibraltar have been over exploited and the fishermen themselves accept that catches have declined seriously.  It is ironic that as a result, protected areas including no-fishing zones and time restrictions have been applied by the Spanish authorities in their own waters: and would be extended to Gibraltar if its British waters were Spanish.

On a final note Dr Cortes stated: “The presence of rocky reefs in Gibraltar’s territorial waters is attractive both to fish and to fishermen.  This is one of the reasons why Gibraltar has created this protected area, one of the considerations being to provide refuge, feeding and breeding opportunities for fish, something which will be of benefit to fishermen in adjacent areas, as well as to all marine life.”

(The above article appeared in the London Progressive Journal on May 29 2012 and on various US environmental websites)