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BALANCING THE SCALES: THE WELFARE OF IN NEW ZEALAND

Bianka Atlas LLM candidate 2020, MSc, LLB Hons., BA

He ika kai ake i raro, he rāpaki ake i raro “As a fish nibbles from below, so an ascent begins from the bottom.”

INTRODUCTION

When we think of farmed , fish are not usually the first to come to mind. However, with an estimated 51 to 167 billion farmed fish slaughtered for in 2017, fish likely outnumber all other farmed animals worldwide. As with intensive farming of terrestrial animals, aquaculture presents many welfare issues. However, fish are marginalized – from our moral consideration and from legal protection. This paper provides an overview of the aquaculture industry globally and in New Zealand. It discusses the evolving conceptualization of ‘welfare’ and identifies welfare issues arising from the conditions of . It explores the scientific evidence for in fish and suggests additional reasons why the welfare of fish should matter. The paper then provides an overview of the New Zealand framework, analyzing the legal protections for farmed fish in New Zealand. The paper closes with a number of recommendations, including the development of a code of welfare and regulations for fish in aquaculture.

I. THE GLOBAL AQUACULTURE INDUSTRY

Overview

Aquaculture is the fastest growing sector of food production worldwide.1 Described by the

Food and Agriculture Organization of the United Nations (FAO) as “the aquatic equivalent of

1 THE STATE OF WORLD AND AQUACULTURE, FAO (2018), at 17, http://www.fao.org/3/i9540en/i9540en.pdf (stating that while aquaculture no longer enjoys the high annual growth

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agriculture or farming on land,”2 aquaculture involves “the farming, breeding, rearing, and harvesting of plants and animals in all types of water environments.”3 Aquaculture produces a variety of fish, molluscs, crustaceans, algae and other aquatic organisms in marine, freshwater and brackish environments, including lakes, rivers, ponds, and the .4 Aquaculture can also occur on land – in tanks and through other production methods.5 In contrast to capture (wild-caught) fisheries:

Farming implies some form of intervention in the rearing process to enhance production,

such as regular stock feeding [and] protection from predators… Farming also implies

individual and corporate ownership of the stock being cultivated. For statistical purposes,

aquatic organisms which are harvested by an individual or corporate body which has owned

them throughout their rearing period contribute to aquaculture, while aquatic organisms

which are exploitable by the public as a common property [resource], with or without

appropriate licences, are the harvest of fisheries.6

rates of the 1980s and 1990s (10.8% and 9.5%, respectively) and that average annual growth declined to 5.8% during the period 2001 to 2016, the sector “continues to grow faster than other major food production sectors” and still experienced “double-digit growth…in a small number of individual countries, particularly in Africa from 2006 to 2010.” See also Nearly Half of All Fish Eaten Today Farmed, Not Caught, FAO (Sept. 4, 2006), http://www.fao.org/newsroom/en/news/2006/1000383/index.html (reporting that since the mid-1980s aquaculture has “[sustained] a growth rate of around 8% per year” and “continues to expand in almost all world regions”). 2 Aquaculture: Definitions, FAO, http://www.fao.org/3/x6941e/x6941e04.htm. 3 About Aquaculture, FISHWATCH, https://www.fishwatch.gov/aquaculture. 4 About Aquaculture, FISHWATCH, https://www.fishwatch.gov/aquaculture. See also WATCH, & Farming Methods, https://www.seafoodwatch.org/ocean-issues/fishing-and-farming-methods, (water-based aquaculture systems include inshore/offshore cages and pens, where fish are placed in large netted areas in freshwater lakes or offshore coastal areas). 5 Simon Funge-Smith & Michael J. Phillips, Aquaculture Systems and Species. In Rohana P. Subasinghe et al., eds. Aquaculture in the Third Millennium. Technical Proceedings of the Conference on Aquaculture in the Third Millennium, Bangkok, Thailand (Feb. 20-25, 2000), http://www.fao.org/3/AB412E/ab412e07.htm. See also , Fishing & Farming Methods, https://www.seafoodwatch.org/ocean-issues/fishing-and-farming- methods (land-based production methods include: freshwater or saltwater ponds; raceways, where fish are raised in linear containment structures and water is either treated and re-used (recirculated) or wastewater leaves the facility (flowthrough); and recirculating systems, where fish are raised in tanks with continuous water flow or treated water). 6 Aquaculture: Definitions, FAO, http://www.fao.org/3/x6941e/x6941e04.htm. This definition, which differentiates aquaculture from capture fisheries by virtue of ownership of the stock in aquaculture, has important implications for fish welfare as it gives rise to a duty of care on the part of those owners. This ownership of stock is also important in

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Per capita fish consumption has doubled in the last five decades – from 9 kilograms in 1961 to

20.2 kilograms in 2015.7 The annual growth rate of fish available for consumption has surpassed that of from all terrestrial animals combined.8 In 2016, 88 percent of the total fish production (151 million out of 171 million tons)9 was used for direct human consumption – up from 67 percent in the 1960s.10

While capture fisheries still account for the largest proportion of all fish caught globally,

“aquatic food production has transitioned from being primarily based on capture of wild fish to culture of increasing numbers of farmed species.”11 Indeed, as the capture fisheries industry has plateaued,12 primarily as a result of the depletion of wild fish ,13 aquaculture has expanded continuously to meet the growing demand for fish for human use. Farmed fish for human consumption accounted for a record 53 percent of the total 171 million tons of fish produced by

practical terms in New Zealand as codes of welfare can only be developed and issued in relation “to animals that are owned by any person or are in the charge of any person” (section 68 Animal Welfare 1999) – see infra Part V (Codes of welfare). 7 THE STATE OF WORLD FISHERIES AND AQUACULTURE, FAO (2018), at 69 (an increase at an average rate of about 1.5% per year). 8 THE STATE OF WORLD FISHERIES AND AQUACULTURE, FAO (2018), at 69 (the average annual increase in “global apparent food fish consumption” (or “average food available for consumption”) (3.2%) has outpaced growth (1.6%) and exceeded consumption of meat from all terrestrial animals, combined (2.8%) and individually (, , , and other), except (4.9%)). 9 Aquaculture and capture fisheries combined. 10 THE STATE OF WORLD FISHERIES AND AQUACULTURE, FAO (2018), at 47 (The largest portion of the 12% used for non-food purposes (around 20 million tons) was reduced to and fishmeal (74% or 15 million tons), while the remaining 5 million tons was used largely as material for direct feeding in aquaculture and raising of and fur animals, in culture (e.g. fry, fingerlings, or small adults for on-growing), as bait, in pharmaceutical uses, and for ornamental purposes). 11 THE STATE OF WORLD FISHERIES AND AQUACULTURE, FAO (2016) at 2, http://www.fao.org/3/a-i5555e.pdf. 12 Vijay Modadugu Gupta, Contribution of Aquaculture to Food Security Globally. Presentation at the OIE Global Conference on Aquatic Animal Health, Panama City, Panama (June 28-30, 2011), https://www.oie.int/eng/A_aquatic/Docs/Abstracts/1.%20Gupta.pdf. 13 See, e.g. THE STATE OF WORLD FISHERIES AND AQUACULTURE, FAO (2018), at 90 (reporting that “the fraction of world marine fish stocks that are within biologically sustainable levels declined from 90% in 1974 to 66.9% in 2015. Thus, 33.1% of fish stocks were estimated as fished at a biologically unsustainable level and therefore overfished in 2015” and, at 6, cautioning that “[t]he persistence of overfished stocks is an area of great concern. The United Nations Sustainable Development Goals (SDGs) include a target (14.4) for regulating harvesting, ending and restoring stocks to levels that can produce maximum sustainable yield (MSY) in the shortest time feasible. However, it seems unlikely that the world’s fisheries can rebuild the 33.1% of stocks that are currently overfished in the very near future, because rebuilding requires time, usually two to three times the species’ life span”).

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capture fisheries and aquaculture in 2016.14 This compares with just 6 percent in 1966, 14 percent in 1986, and 41 percent in 2006.15 The FAO predicts that by 2030, aquaculture will provide 60 percent of the fish available for human consumption.16

The individuals affected?

In 2016, total global aquaculture production by weight was 110.2 million tons.17 Finfish18 represented the largest major species group by weight – 54.1 million tons (49 percent of total aquaculture, valued at U.S. $138.5 billion), followed by aquatic plants (30.1 million tons), molluscs (17.1 million tons), crustaceans (7.9 million tons), and other aquatic animals, including turtles, frogs, sea cucumbers, sea urchins, and edible (938,500 tons).19

What is striking about these statistics is that they reveal only the total weight of animals killed, not the number of individual beings.20 Unlike FAO data on terrestrial animals slaughtered for food, data on aquatic animals (both farmed and wild-caught) are provided only in tonnage and do not provide the mean weights of animals that would enable their numbers to be calculated.21

The UK organization, Fishcount has, however estimated that between 51 and 167 billion farmed fish were slaughtered for food in 2017.22 By comparison, a combined total of around 70 billion

14 THE STATE OF WORLD FISHERIES AND AQUACULTURE, FAO (2018), at 73 (47% if non-food uses are included in the calculation). 15 THE STATE OF WORLD FISHERIES AND AQUACULTURE, FAO (2018), at 73. 16 THE STATE OF WORLD FISHERIES AND AQUACULTURE, FAO (2018), at 114. 17 THE STATE OF WORLD FISHERIES AND AQUACULTURE, FAO (2018), at 17 (this includes animals and plants). 18 This term describes “the strictly classified biological group of , sometimes called true fishes, to distinguish them from other aquatic live whose common names also end in “fish,” including mollusks (e.g. cuttlefish), crustaceans (e.g. crayfish), echinoderms (e.g. starfish), and other animals (e.g. jellyfish), or any other aquatic life harvested in fisheries or aquaculture (e.g. ).” See International Seafood Sustainability Foundation, Glossary: Finfish, https://iss-foundation.org/glossary/finfish/. 19 THE STATE OF WORLD FISHERIES AND AQUACULTURE, FAO (2018), at 17. 20 See Statistical Collections, Fishery Commodities and Trade, FAO, http://www.fao.org/fishery/statistics/global-commodities-production/3/en (explaining that “quantity is measured in national units, converted to tonnes”). 21 ALISON MOOD & PHIL BROOKE, ESTIMATING THE NUMBER OF FARMED FISH KILLED IN GLOBAL AQUACULTURE EACH YEAR (July 2012), at 3, http://fishcount.org.uk/published/std/fishcountstudy2.pdf. 22 Numbers of Farmed Fish Slaughtered Each Year, FISHCOUNT (2019), http://fishcount.org.uk/fish-count-estimates- 2/numbers-of-farmed-fish-slaughtered-each-year. According to Numbers of Fish Caught From the Wild Each Year,

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terrestrial animals are slaughtered for food each year.23 Taking the midpoint of the estimated range of numbers of fish killed in aquaculture (109 billion), it is likely that more fish are slaughtered every year than all other farmed vertebrates combined.24

The world’s growing appetite for fish and the hitherto uninterrupted expansion of aquaculture positions this industry as “an essential element within global food supply.”25

According to the FAO:

With most fishery stocks expected to remain maximally sustainably fished or overfished

for at least the next decade, aquaculture must bridge the growing gap between supplies of

aquatic food and demand from a growing and wealthier global population. Aquaculture has

the potential to address the gap between aquatic food demand and supply and to help

countries achieve their economic, social and environmental goals.26

II. THE NEW ZEALAND AQUACULTURE INDUSTRY

Overview

Aquaculture in New Zealand has a long history, having been undertaken by Māori for centuries.27 However, the country’s modern, commercial-scale aquaculture industry was not

FISHCOUNT (2019), an estimated 0.79 to 2.3 trillion fish are caught from the wild every year. This estimate excludes fish caught illegally, or caught as and discarded. 23 Global Statistics and Charts, FAUNALYTICS (Oct. 10, 2018), https://faunalytics.org/global- animal-slaughter-statistics-and-charts/ (This includes , , , and sheep). 24 ALISON MOOD & PHIL BROOKE, ESTIMATING THE NUMBER OF FARMED FISH KILLED IN GLOBAL AQUACULTURE EACH YEAR (July 2012), at 1, http://fishcount.org.uk/published/std/fishcountstudy2.pdf (“assuming the true figure [of farmed fish killed] is likely to fall nearer the midpoint than at either end of the estimate range”). 25 Dinesh J. Wadiwel, Do Fish Resist? 22 CULTURAL STUDIES REVIEW 4363 (2016), https://doi.org/10.5130/csr.v22i1.4363. 26 THE STATE OF WORLD FISHERIES AND AQUACULTURE, FAO (2018), at 144. 27 RAEWYN PEART, ENVIRONMENTAL DEFENCE SOCIETY (EDS), FARMING THE SEA: MARINE AQUACULTURE WITHIN RESOURCE MANAGEMENT SYSTEM REFORM (Aug. 2019), at 62, https://www.eds.org.nz/assets/pdf/Farming%20the%20Sea_FINAL.pdf?k=d35d58d9df (referring to the Waitangi Tribunal’s report on an aquaculture claim by Ngāti Kahungunu and Ngāti Whātua (Wai 53), which outlines multiple examples of Māori actively engaging in the relocation and enhancement of wild kaimoana (seafood) stocks, including seeding and relocating pāua to local beds and removing kina to allow for better growth).

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established until the late 1960s.28 While many species have been trialled, the current industry is dominated by just three species: green-lipped mussel, Pacific oyster, and King (Chinook) .29

Figure 1: Map showing regions where the three main species are farmed in New Zealand30

Green-lipped mussels

28 RAEWYN PEART, ENVIRONMENTAL DEFENCE SOCIETY (EDS), FARMING THE SEA: MARINE AQUACULTURE WITHIN RESOURCE MANAGEMENT SYSTEM REFORM (Aug. 2019), at 2. 29 Industry – Overview, Aquaculture N.Z., https://www.aquaculture.org.nz/industry/overview/. 30 SECTOR OVERVIEW 2018, AQUACULTURE N.Z. (Oct. 2019), at 6, https://www.aquaculture.org.nz/wp- content/uploads/2019/10/New-Zealand-Aquaculture-sector-overview-2019.pdf (Green represents mussels, blue is oysters, and orange is salmon).

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The main mussel species produced in aquaculture is the indigenous green-lipped mussel.

While mussels have been harvested for human consumption since New Zealand was first settled,31 the current marine mussel farming system started in the early 1970s.32 This system consists of a series of rope ‘back-bones,’ suspended in or on top of the by a series of buoys. A continuous rope (the ‘long-line’), on which the mussels are grown, is suspended from the back- bone line, which is anchored to the seafloor at either end.33

Mussels grow quickly, can be grown in a range of conditions, and to date have lacked any debilitating diseases.34 Traditionally, almost all mussel stock farmed in New Zealand was collected as spat from the wild. However, in recent years, hatcheries have been used increasingly for selectively breeding mussels with specific qualities such as faster growth and higher meat yield.35

Mussel farms are generally found in bays and inlets with good tidal flow and high concentrations of phytoplankton, which forms most of their diet. Mussels are filter feeders (they obtain their food from the sea by pumping water through their gills) and so do not need to be fed.36

Mussel farming is mostly concentrated in the Marlborough Sounds, the Coromandel Peninsula, and to a lesser extent in Tasman and Golden Bay, Auckland, Stewart Island, and Canterbury.37

31 Environment Foundation, Aquaculture (Feb. 2, 2018), http://www.environmentguide.org.nz/activities/aquaculture/. 32 New Zealand Greenshell™ Mussels Student Fact Sheet, Aquaculture N.Z. (June 2011), https://www.aquaculture.org.nz/wp-content/uploads/2011/06/mussels.pdf. 33 Environment Foundation, Aquaculture – Farming Mussels (Feb. 2, 2018), http://www.environmentguide.org.nz/activities/aquaculture/. 34 RAEWYN PEART, ENVIRONMENTAL DEFENCE SOCIETY (EDS), FARMING THE SEA: MARINE AQUACULTURE WITHIN RESOURCE MANAGEMENT SYSTEM REFORM (Aug. 2019), at 68. 35 Environment Foundation, Aquaculture – Farming Mussels (Feb. 2, 2018), http://www.environmentguide.org.nz/activities/aquaculture/. 36 New Zealand Greenshell™ Mussels Student Fact Sheet, Aquaculture N.Z. (June 2011), https://www.aquaculture.org.nz/wp-content/uploads/2011/06/mussels.pdf. 37 Environment Foundation, Aquaculture – Farming Mussels (Feb. 2, 2018), http://www.environmentguide.org.nz/activities/aquaculture/.

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Image: Mussel farm, Waitaria Bay, Kenepuru Sound, Marlborough, cc Neil Hunt

Pacific oysters

Oyster farming commenced with the indigenous rock oyster species. The industry moved to the Pacific oyster in the 1970s after the species was inadvertently introduced to New Zealand from Asia, likely on the hull of a ship.38

Pacific oysters are farmed on intertidal racks and baskets in shallow and sheltered estuaries or harbors.39 Farming oysters at the optimum intertidal level is important for pest management and to take advantage of the several annual spawnings.40 Pacific oysters are described as “fast growing

38 RAEWYN PEART, ENVIRONMENTAL DEFENCE SOCIETY (EDS), FARMING THE SEA: MARINE AQUACULTURE WITHIN RESOURCE MANAGEMENT SYSTEM REFORM (Aug. 2019), at 62. 39 Environment Foundation, Aquaculture – Farming Oysters (Feb. 2, 2018), http://www.environmentguide.org.nz/activities/aquaculture/. 40 Pacific Oysters Student Fact Sheet, Aquaculture N.Z. (June 2011), https://www.aquaculture.org.nz/wp- content/uploads/2011/06/education-oysters.pdf.

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and robust,”41 reaching market size within 12 to 18 months.42 Like mussels, oysters are filter feeders and so do not need to be fed on farms.43

In the past, the majority of farmed oysters was sourced from wild spat. However, since an outbreak of an oyster herpes virus in 2010, an increasing proportion of oysters are farmed from hatchery spat that has been bred to be herpes resistant and also selectively bred for higher growth rates.44 Disease has been a risk for oyster farming more generally. The endemic flat oyster was farmed successfully for years, until the parasite Bonamia Ostreae was discovered in 2017 and all farms were removed to protect the wild fishery.45 Pacific oysters are farmed predominantly in

Notrthland, the Coromandel, Auckland and to a lesser extent in Marlborough.46

41 RAEWYN PEART, ENVIRONMENTAL DEFENCE SOCIETY (EDS), FARMING THE SEA: MARINE AQUACULTURE WITHIN RESOURCE MANAGEMENT SYSTEM REFORM (Aug. 2019), at 68. 42 Environment Foundation, Aquaculture – Farming Oysters (Feb. 2, 2018), http://www.environmentguide.org.nz/activities/aquaculture/. 43 Pacific Oysters Student Fact Sheet, Aquaculture N.Z. (June 2011), https://www.aquaculture.org.nz/wp- content/uploads/2011/06/education-oysters.pdf. 44 RAEWYN PEART, ENVIRONMENTAL DEFENCE SOCIETY (EDS), FARMING THE SEA: MARINE AQUACULTURE WITHIN RESOURCE MANAGEMENT SYSTEM REFORM (Aug. 2019), at 69. 45 RAEWYN PEART, ENVIRONMENTAL DEFENCE SOCIETY (EDS), FARMING THE SEA: MARINE AQUACULTURE WITHIN RESOURCE MANAGEMENT SYSTEM REFORM (Aug. 2019), at 74. 46 Environment Foundation, Aquaculture – Farming Oysters (Feb. 2, 2018), http://www.environmentguide.org.nz/activities/aquaculture/.

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Image: Oyster farm, Whangaroa, Northland, cc Tony Foster

King salmon

King (Chinook) salmon is the only salmon species farmed in New Zealand. King salmon is distinctive in international markets as most salmon producers in other countries farm .47 King salmon makes up less tham one percent of the global farmed salmon population, and New Zealand produces 75 percent of the world’s total King salmon.48 King salmon were introduced to New Zealand from Northern California in the early 1900s for fishing but salmon farming did not start in New Zealand until the 1980s.49

Salmon are anadromous, meaning they are adapted to live in both marine and fresh water environments. They are born in fresh water, mature at sea, and return to their natal streams to .50 Based on this behavior, the first King salmon farm was set up for ocean ranching – where

47 King Salmon, Aquaculture N.Z., https://www.aquaculture.org.nz/industry/king-salmon/. 48 SECTOR OVERVIEW 2018, AQUACULTURE N.Z. (Oct. 2019), at 16. 49 N.Z. Salmon Farmers Association Inc., Farming – Industry, http://www.salmon.org.nz/new-zealand-salmon- farming/industry/. 50 North Pacific Anadromous Fish Commission, What is an Anadromous Fish? https://npafc.org/species/.

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juvenile salmon are released into the sea in the expectation that some will return as adults.

However, few salmon returned and this system was abandoned for sea cage farming.51 Most marine farming occurs in the Marlborough Sounds, Stewart Island and Akaroa Harbour, while fresh water operations in Canterbury, Otago and Tasman utilize ponds, raceways and hydro- canals.52

Ocean farming

Most New Zealand farmed salmon start life in a fresh water, land-based hatchery where they remain until around 8 to 13 months of age. They are then transferred to sea cages (pens) for up to 18 months until they reach harvest weight of approximately 3 to 6 kilograms.53 The sea pens are made of netting and are around 18,000 cubic meters. The pens are up to 17 meters deep, with ideally at least another 10 meters to the ocean floor.54 According to the New Zealand Salmon

Farmers Association, “[t]he depth of the pens provide improved growing conditions allowing the fish to move below the surface water and away from surface related stress and warmer water temperatures.”55 Low stocking densities range from less than 1 kg/m3 up to around 25 kg/m3

(depending on the life stage of the salmon).56 The marine farm sites are chosen for their isolation, water quality and flow.57 Farms tend to be placed in areas with strong currents to flush the pens, improve the rearing environment and minimize the effects of waste on the environment.58

51 Maggy Wassilieff, Story: Aquaculture, TE ARA – ENCYCLOPEDIA OF N.Z. (June 12, 2006), https://teara.govt.nz/en/aquaculture. 52 King Salmon, Aquaculture N.Z., https://www.aquaculture.org.nz/industry/king-salmon/. 53 King Salmon, Aquaculture N.Z., https://www.aquaculture.org.nz/industry/king-salmon/. 54 N.Z. Salmon Farmers Association Inc., Farming – Ocean Farming, http://www.salmon.org.nz/new-zealand- salmon-farming/ocean-farming/. 55 Id. 56 King Salmon, Aquaculture N.Z., https://www.aquaculture.org.nz/industry/king-salmon/. See also N.Z. Salmon Farmers Association Inc., Farming – Ocean Farming (describing the stocking density on New Zealand farms as being “as low as 2% fish and 98% sea water”). 57 N.Z. Salmon Farmers Association Inc., Farming – Ocean Farming, http://www.salmon.org.nz/new-zealand- salmon-farming/ocean-farming/. 58 King Salmon, Aquaculture N.Z., https://www.aquaculture.org.nz/industry/king-salmon/.

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Freshwater farming

The glacier-fed waters of the hydro-canals in New Zealand’s MacKenzie Basin produce the world’s only freshwater farmed King salmon. Fresh water farmers use net pens anchored to the side of the canals, and the strong currents continually flush the farms to help ensure good water quality.59

Feed

Whereas molluscs such as oysters and mussels feed on naturally occurring plankton, farmed fish such as salmon are carnivores.60 King salmon are fed a manufactured diet of food pellets. Historically, much of the protein and oil in the feed was sourced from .

However, in recent years, land-based proteins have increasingly been used to reduce reliance on over-exploited marine resources.61 Skretting Australia, which supplies fish pellets for New

Zealand salmon farms, now produces fish pellets where less than 23 percent of the protein is derived from wild-capture fisheries, around 13 percent is from by-products of land animals farmed for human consumption, and 60 percent comes from agricultural crops such as soy, rice and sunflower.62 The New Zealand Salmon Farmers Association reports that “the New Zealand salmon farming industry now produces more fish protein than it consumes, with some producers achieving conversion rates better than 1:1.19 (fish protein in: fish protein out). By comparison, wild salmon consume between 10 and 20 tonnes of wild fish per tonne of salmon produced.”63

59 N.Z. Salmon Farmers Association Inc., Farming – Freshwater Farming, http://www.salmon.org.nz/new-zealand- salmon-farming/freshwater-farming/. 60 Environment Foundation, Aquaculture – Farming Oysters (Feb. 2, 2018), http://www.environmentguide.org.nz/activities/aquaculture/. 61 N.Z. Salmon Farmers Association Inc., Sustainability – Feed, http://www.salmon.org.nz/sustainability/feed-2/. 62 SUSTAINABILITY REPORT 2018, SKRETTING (July 16, 2018), at 24, https://www.skretting.com/siteassets/global- files/nuterra/sustainability-report-2018/skretting-sustainability-report-16-july.pdf. 63 N.Z. Salmon Farmers Association Inc., Sustainability – Feed, http://www.salmon.org.nz/sustainability/feed-2/.

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Biosecurity

The absence of any native salmon species has meant that King salmon have been raised without need for antibiotics or vaccines.64 While this is laudable when compared to farms in other countries that routinely use antibiotics and vaccines, the introduction of new pathogens remains a risk in New Zealand.65

Image: Salmon farm, Ruakaka Bay, Marlborough, cc Sid Mosdell Other species

A few other species have been commercially farmed in New Zealand on a small scale.

These include: pāua pearls, scallops, snapper, crayfish, and kina.66 There has been a longstanding interest in farming the indigenous yellowtail kingfish, with a research

64 King Salmon, Aquaculture N.Z., https://www.aquaculture.org.nz/industry/king-salmon/. 65 SALMON BIOSECURITY STANDARDS, AQUACULTURE N.Z. (May 2019), http://www.salmon.org.nz/sustainability/biosecurity-standards/. 66 RAEWYN PEART, ENVIRONMENTAL DEFENCE SOCIETY (EDS), FARMING THE SEA: MARINE AQUACULTURE WITHIN RESOURCE MANAGEMENT SYSTEM REFORM (Aug. 2019), at 74.

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program having successfully raised the fish through its entire lifecycle in a hatchery.67 Breeding work on another large indigenous fish, hāpuku, is also underway but not as progressed as kingfish.68

Biosecurity risks of farming native species

Farming indigenous species carries a risk of naturally occurring parasites and diseases.69

The Environmental Defence Society cautions: “Although New Zealand has largely ‘got away’ with a less than rigorous biosecurity approach, this may not be the case in the future if the industry grows and expands into new species....”70 Global warming also “[creates] elevated biosecucity risks” because “more pests and diseases will be able to survive during the warmer winter temperatures.”, creating elevated biosecurity risks.”71 As such, while salmon farming has hailed itself as vaccine- and antibiotic-free, it is uncertain whether the industry will remain as such if more indigenous species are farmed.

Aquaculture production, export and projected growth

Mirroring global trends, aquaculture is New Zealand’s fastest growing food production sector and contributes significantly to employment, national and regional incomes, and export

67 New Zealand Breeding Expansion Addresses High-value Species, Aquaculture Alliance (May 1, 2009), https://www.aquaculturealliance.org/advocate/new-zealand-breeding-expansion-addresses-high-value-species/. See also Yellowtail Kingfish, National Institute of Water and Atmospheric Research (NIWA), https://niwa.co.nz/aquaculture/species/yellowtail-kingfish (explaining that the aquaculture industry sees kingfish as an attractive prospect for farming, with significant domestic and international market opportunities, due to its rapid growth rate (reaching marketable size of 3 kilograms in 12 to 15 months); high flesh quality for a range of product options; amenability to aquaculture conditions; and high value (up to N.Z.$17 per kilogram on the European market)). 68 New Zealand Breeding Expansion Addresses High-value Species, Aquaculture Alliance (May 1, 2009) (stating that “reliable juvenile production is still the focus of research”). 69 RAEWYN PEART, ENVIRONMENTAL DEFENCE SOCIETY (EDS), FARMING THE SEA: MARINE AQUACULTURE WITHIN RESOURCE MANAGEMENT SYSTEM REFORM (Aug. 2019), at viii. 70 RAEWYN PEART, ENVIRONMENTAL DEFENCE SOCIETY (EDS), FARMING THE SEA: MARINE AQUACULTURE WITHIN RESOURCE MANAGEMENT SYSTEM REFORM (Aug. 2019), at 33. 71 RAEWYN PEART, ENVIRONMENTAL DEFENCE SOCIETY (EDS), FARMING THE SEA: MARINE AQUACULTURE WITHIN RESOURCE MANAGEMENT SYSTEM REFORM (Aug. 2019), at 98-99.

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earnings.72 Following the Māori aquaculture settlement, there is also a significant Māori presence in the industry.73

New Zealand’s total aquaculture production in 2018 was 102,160 tons, of which 84 percent

(85,857 tons) were mussels, 14 percent (14,339 tons) were salmon, and 2 percent (1,964 tons) were oysters.74 The aquaculture industry generated a total N.Z.$602 million in revenue in 2018.75

New Zealand has “positioned itself at the high-end of the market, exporting premium seafood” to 79 countries.76 New Zealand’s largest seafood export markets are the U.S., China,

Australia and Europe.77 In 2018, New Zealand’s total seafood export volume was 278,974 tons, of which over 85 percent (239,512 tons) was from wild capture fisheries and 14 percent (39,462 tons) was from aquaculture.78 Total seafood export revenue equated to around N.Z.$1.8 billion, of which wild-caught seafood accounted for around 77 percent (N.Z.$1.4 billion) and aquaculture around

72 See, e.g., N.Z. GOV’T, AQUACULTURE STRATEGY (Sept. 2019) at 19, https://www.fisheries.govt.nz/growing-and- harvesting/aquaculture/strategy/ (noting that the industry has experienced a 7% average annual growth rate since 2012). See also Press Release, N.Z. Gov’t, Government Delivers Plan for World-leading Aquaculture Industry (Sept. 18, 2019) https://www.beehive.govt.nz/release/government-delivers-plan-world-leading-aquaculture-industry (Fisheries Minister Stuart Nash noting that aquaculture “generated over $600 million in revenue in 2018, and employed 3,000 people, especially in the regions”). 73 See Fisheries N.Z., Māori Commercial Aquaculture Claims Settlement (Apr.28, 2018), https://www.mpi.govt.nz/funding-and-programmes/fisheries-and-aquaculture/maori-commercial-aquaculture- claims-settlement/ (The Māori Commercial Aquaculture Claims Settlement Act 2004 provides a framework for the settlement of all Māori claims in respect of commercial marine aquaculture, enabling iwi to receive assets equivalent to 20% of the value of all space approved for aquaculture development after 21 September 1992. Iwi-owned Moana New Zealand is now the largest farmed oyster producer in New Zealand.). 74 SECTOR OVERVIEW 2018, AQUACULTURE N.Z. (Oct. 2019), at 8, https://www.aquaculture.org.nz/wp- content/uploads/2019/10/New-Zealand-Aquaculture-sector-overview-2019.pdf. These weights are in greenweight tons, which is the harvested weight before any processing commences (see Fisheries N.Z., Growing & Harvesting – Conversion Factors, https://www.mpi.govt.nz/growing-and-harvesting/fisheries/conversion-factors/). 75 SECTOR OVERVIEW 2018, AQUACULTURE N.Z. (Oct. 2019), at 8 (this consists of around N.Z.$401 million in export revenue and N.Z.$201 million in domestic revenue). 76 Aquaculture N.Z., Overview, https://www.aquaculture.org.nz/industry/overview/. 77 SITUATION AND OUTLOOK FOR PRIMARY INDUSTRIES (SOPI) REPORT, MINISTRY FOR PRIMARY INDUSTRIES (MPI) (Mar. 2020), at 8, https://www.mpi.govt.nz/dmsdocument/39935-situation-and-outlook-for-primary-industries-sopi- march-2020. 78 Situation and Outlook for Primary Industries (SOPI) data – Export forecast and historical statistics, Ministry for Primary Industries (MPI) (current as at Mar. 2020), https://www.mpi.govt.nz/news-and-resources/open-data-and- forecasting/situation-and-outlook-for-primary-industries-data/.

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23 percent (N.Z.$406 million).79 Broken down by species, mussels represented around 68 percent

(N.Z.$272 million) of aquaculture export revenue, salmon contributed around 26 percent

(N.Z.$103 million), and oysters around 6 percent (N.Z.$26 million).80

The aquaculture industry is on track to reach N.Z.$1 billion in annual sales by 2025, and aspires to be a N.Z.$3 billion industry by 2035.81 Alongside the $3 billion goal, New Zealand’s

Aquaculture Strategy focuses efforts on:

• the development of sustainable open ocean and land-based farming;

• increasing farm efficiency;

• increasing product value and environmental performance in existing inshore farming;

• building resilience to environment change; and

• supporting the development and adoption of new technologies and practices to reduce the

industries contribution to waste and emissions.82

The Aquaculture Strategy states that “[a]quaculture is the proven way to increase production within the earth’s environmental limits.”83 The Strategy refers to

“heightened consumer awareness and connectivity” and increasing “demand for healthy, sustainable and ethically produced seafood.”84 With a long coastline, jurisdiction over a large marine area, and an 15 times larger than its land area,85 there is indeed

79 SITUATION AND OUTLOOK FOR PRIMARY INDUSTRIES (SOPI) REPORT, MINISTRY FOR PRIMARY INDUSTRIES (MPI) (Mar. 2020), at 11. The aquaculture export revenue figure of $406 million in this report differs slightly from that reported by Aquaculture N.Z. ($401 million) cited in note 75. 80 SECTOR OVERVIEW 2018, AQUACULTURE N.Z. (Oct. 2019), at 8. 81 N.Z. GOV’T, AQUACULTURE STRATEGY (Sept. 2019) at 6. 82 N.Z. GOV’T, AQUACULTURE STRATEGY (Sept. 2019). 83 N.Z. GOV’T, AQUACULTURE STRATEGY (Sept. 2019) at 4. 84 N.Z. GOV’T, AQUACULTURE STRATEGY (Sept. 2019) at 4. 85 See, e.g., Environment Foundation, New Zealand’s Marine Environment – Areas (Feb. 6, 2018), http://www.environmentguide.org.nz/issues/marine/new-zealands-marine-environment/areas/ (observing that “for a relatively small country, New Zealand has a long coastline, and jurisdiction over a very large area of sea. There is approximately 19,000 kilometres of coastline for the mainland, with 20,500 kilometres when the offshore islands and the Chatham Islands are included. New Zealand’s Exclusive Economic Zone (EEZ) is estimated at 4 million square kilometres...approximately 15 times larger than the land area”).

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significant potential for continued growth of New Zealand’s aquaculture industry. To meet this potential, aquaculture production will need to expand and diversify to include more “high-value” species.86

Aquaculture legislative framework

Overview

New Zealand has a long history of regulatory changes affecting aquaculture, with eight different legislative regimes since the late 1960s.87 The most recent reforms in 2011 were designed, inter alia, to free up marine space for farming, simplify the approval process for marine farms, and promote investment in aquaculture development.88 The 2011 reforms removed the requirement for an aquaculture management area (AMA) – a spatial planning tool – to be in place before a marine resource consent application could be lodged.89

86 See, e.g., Maggy Wassilieff, Story: Aquaculture, Te Ara – Encyclopedia of N.Z. (June 12, 2006), https://teara.govt.nz/en/aquaculture (observing that N.Z. aquaculture “has been built around [and currently relies on] a few low-value and easily cultured species, and is concentrated in two small regions. Such concentration makes the industry extremely vulnerable to downturns in export demand or hazards such as sudden growth of toxic algae … There is potential for the industry to diversify into farming high-value species such as pāua, kingfish and crayfish. These species require a special food supply and are more expensive to farm, but they can be sold at a higher price”). See also National Institute of Water and Atmospheric Research (NIWA), Down on the Farm (June 12, 2013), https://niwa.co.nz/publications/wa/water-atmosphere-7-june-2013/down-on-the-farm (opining that “…molluscs won’t be delivering those billion-dollar earnings alone…a hectare of mussels returns about $50,000 – a typical one- hectare fish farm, however, could gross $25 million” and quoting NIWA Chief Aquaculture Scientist, Andrew Forsythe “Growing aquaculture through mussels would need thousands of hectares of space, which would be politically and socially difficult. Far less [space] is needed for finfish farming – the scale and the value are worlds apart”). See also RAEWYN PEART, ENVIRONMENTAL DEFENCE SOCIETY (EDS), FARMING THE SEA: MARINE AQUACULTURE WITHIN RESOURCE MANAGEMENT SYSTEM REFORM (Aug. 2019), at 77 (“There is considerable potential to develop new high-value products from existing species, including in the ‘superfood’ nutraceutical markets. Seaweed aquaculture could have considerable potential, either as a stand-alone activity or integrated into existing farms, and could deliver significant environmental benefits”). 87 RAEWYN PEART, ENVIRONMENTAL DEFENCE SOCIETY (EDS), FARMING THE SEA: MARINE AQUACULTURE WITHIN RESOURCE MANAGEMENT SYSTEM REFORM (Aug. 2019), at 6. It is beyond the scope of this paper to describe this complex regulatory regime, which involves many statutes and regulations, and several government agencies. This section will simply provide context as to how aquaculture is regulated and identify proposed areas of reform, insofar as these may be relevant to the welfare of animals affected by aquaculture. 88 MINISTRY FOR PRIMARY INDUSTRIES, AQUACULTURE LEGISLATIVE REFORMS 2011: GUIDANCE OVERVIEW (Oct. 2012), https://www.fisheries.govt.nz/dmsdocument/15889/direct. See also Environment Foundation, Aquaculture – Decision Making, http://www.environmentguide.org.nz/activities/aquaculture/im:1712/. 89 MINISTRY FOR PRIMARY INDUSTRIES, AQUACULTURE LEGISLATIVE REFORMS 2011: GUIDANCE OVERVIEW (Oct. 2012), https://www.fisheries.govt.nz/dmsdocument/15889/direct. See also Environment Foundation, Aquaculture – Decision Making, http://www.environmentguide.org.nz/activities/aquaculture/im:1712/.

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Marine aquaculture is managed primarily under the Resource Management Act 1991

(RMA), which promotes sustainable management of natural resources.90 Under the RMA, any new marine farm must have a resource consent from the regional council, and regional councils are responsible for planning and managing aquaculture in their coastal area between high tide and the

12 nautical mile limit.91 Under current law, marine aquaculture is essentially treated the same as other activities within the coastal marine area that require resource consent, with the type of activity status and matters to be considered when applying for a resource consent to be determined by the provisions of the relevant regional coastal plan.92

Land-based aquaculture is managed by the Ministry for Primary Industries through the

Freshwater Fish Farming Regulations 1983, under the Fisheries Act 1996. The regulations cover all aquaculture above the high tide mark, including aquaculture in freshwater canals; in indoor aquariums; on land using fresh water; and on land using sea or brackish water (whether pumped from the sea or circulated around the farm).93 Under the regulations, farmers must have a fish farm licence, granted by Fisheries New Zealand, to farm certain listed species.94

Environmental focus

90 See Resource Management Act 1991 (RMA), section 5(1), http://legislation.govt.nz/act/public/1991/0069/latest/DLM231905.html?search=ts_act%40bill%40regulation%40dee medreg_resource+management+act_resel_25_a&p=1 (“The purpose of this Act is to promote the sustainable management of natural and physical resources”). 91 Ministry for Primary Industries, Aquaculture (June 11, 2020), https://www.mpi.govt.nz/law-and-policy/legal- overviews/aquaculture/. 92 RAEWYN PEART, ENVIRONMENTAL DEFENCE SOCIETY (EDS), FARMING THE SEA: MARINE AQUACULTURE WITHIN RESOURCE MANAGEMENT SYSTEM REFORM (Aug. 2019), at 6 (“There are some specific provisions in the RMA that apply only to aquaculture, and there is a wider range of options for councils when it comes to addressing multiple applications and the allocation of space. There is also a specific aquaculture policy in the New Zealand Coastal Policy Statement (NZCPS) (Policy 8) requiring councils to make provision for the activity in appropriate places. In practice, there is considerable variation between councils in terms of how aquaculture is provided for.”) 93 Ministry for Primary Industries, Aquaculture (June 11, 2020), https://www.mpi.govt.nz/law-and-policy/legal- overviews/aquaculture/. 94 Id.

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With the expansion of aquaculture in New Zealand comes increasing awareness of the environmental risks such as pollution from farm waste; changes to the seabed and water column; the risks of selectively bred farmed fish escaping into wild populations; potential harm to marine mammals and seabirds as a result of habitat modification, habitat exclusion and entanglement in farming structures; and the impact of therapeutants and trace contaminants on the environment.95

Legislation and regulations governing aquaculture are firmly focused on environmental concerns, including the sustainable use of natural resources,96 biosecurity,97 and the protection of aquatic environments.98 There is no explicit reference in the aquaculture regulatory framework to the humane treatment and welfare of individual animals.99 Some provisions may offer indirect animal welfare benefits while attempting to mitigate the potential negative ecological impacts of aquaculture. However, any protection afforded to farmed aquatic animals through these mechanisms is incidental to the primary environmental and biosecurity concerns.100 Further, where they exist, aquaculture industry codes and guidelines are largely unenforceable and reliant on self-

95 See, e.g., BARRIE FORREST ET AL., REVIEW OF THE ECOLOGICAL EFFECTS OF MARINE FINFISH AQUACULTURE: FINAL REPORT (June 2007), https://www.cawthron.org.nz/media_new/publications/pdf/2014_07/CR1285- Review_of_the_ecological_effects_of_marine_finfish_aquaculture_Final_report.pdf & MPI, COMPARISON OF THE INTERNATIONAL REGULATIONS AND BEST MANAGEMENT PRACTICES FOR MARINE FINFISH FARMING. MPI TECHNICAL PAPER NO: 2013/47 (Oct. 2013), https://www.fisheries.govt.nz/dmsdocument/4110/direct for comprehensive overviews of the potential environmental effects of marine aquaculture in the New Zealand context. 96 See, e.g. RMA, section 5(1), supra note 90. See also Fisheries Act 1996, section 8 (“The purpose of this Act is to provide for the utilisation of fisheries resources while ensuring sustainability,” where “ensuring sustainability means (a) maintaining the potential of fisheries resources to meet the reasonably foreseeable needs of future generations; and (b) avoiding, remedying, or mitigating any adverse effects of fishing on the aquatic environment” and “utilisation means conserving, using, enhancing, and developing fisheries resources to enable people to provide for their social, economic, and cultural well-being”). 97 See, e.g. Biosecurity Act 1993, Long Title (“An Act to restate and reform the law relating to the exclusion, eradication, and effective management of pests and unwanted organisms”), http://legislation.govt.nz/act/public/1993/0095/latest/DLM314623.html?search=ts_act%40bill%40regulation%40dee medreg_biosecurity+act_resel_25_a&p=1. 98 See, e.g. RMA, section 12(1) (imposes restrictions on activities that may adversely coastal marine areas). 99 This is not unique to New Zealand. 100 See Celeste Black, The Conundrum of Fish Welfare, in IN AUSTRALASIA: CONTINUING THE DIALOGUE, 245-263, at 257 (P. Sankoff, et al., eds., 2nd ed. 2013) (noting that “much of the ethical concern has focused on environmental considerations” surrounding “marine factory farming,” while overlooking animal welfare).

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regulation.101 As has been observed in other activities involving animals, self-regulation by industry is generally ineffective in protecting animal welfare.102

Upcoming reforms

In July 2019, Cabinet approved policy provisions for the drafting of a national environmental standard (NES) for marine aquaculture. The stated policy objective of the NES is to “develop a more consistent and efficient regional planning framework for the management of existing aquaculture activities and on-farm biosecurity management, while supporting sustainable aquaculture within environmental limits.”103

On 28 May 2020, the Government announced freshwater reforms, heralded as “the strongest ever protections of...waterways, to help ensure the next generation can swim in the rivers of Aotearoa.”104 Underpinning the reforms are two key objectives: to stop further degradation of

New Zealand’s freshwater resources and start making immediate improvements so that the water quality improves within five years; and reverse past damage to bring New Zealand's freshwater resources, waterways and ecosystems to a healthy state within a generation.105

101 See, e.g. SALMON BIOSECURITY STANDARDS, AQUACULTURE N.Z. (May 2019), http://www.salmon.org.nz/sustainability/biosecurity-standards/ (“Salmon farmers will self-report against these biosecurity standards as part of their membership of the A+ programme.” They “may be assessed against the standards by an external advisor appointed by Aquaculture New Zealand” (emphasis added)). 102 See, e.g., MARCELO RODRIGUEZ-FERRERE ET AL., ANIMAL WELFARE IN NEW ZEALAND: OVERSIGHT, COMPLIANCE AND ENFORCEMENT (2019), https://ourarchive.otago.ac.nz/handle/10523/9276 (observing, in relation to the and greyhound racing industries, “self-regulation had led to almost completely absent external oversight of animal welfare complaints” (at 17), in relation to rodeo, “the emphasis upon self-monitoring rather than independent monitoring is also problematic” (at 154), and explaining that self-regulation places reliance on “internal voluntary reporting” (at 147) and often leaves activists and whistle-blowers to expose animal mistreatment). 103 PROPOSED NATIONAL ENVIRONMENTAL STANDARD FOR MARINE AQUACULTURE, DISCUSSION PAPER NO. 2017/23, MINISTRY FOR PRIMARY INDUSTRIES (June 2017), at 16, https://www.mpi.govt.nz/dmsdocument/18407- proposed-national-environmental-standard-for-marine-aquaculture. 104 Press Release, Green Party, Strongest Ever Water Reforms Mean Swimmable Rivers Within a Generation (May 18, 2020) https://www.scoop.co.nz/stories/PA2005/S00235/strongest-ever-water-reforms-mean-swimmable-rivers- within-a-generation.htm. 105 ACTION FOR HEALTHY WATERWAYS – DECISIONS ON THE NATIONAL DIRECTION FOR FRESHWATER: AN AT-A- GLANCE SUMMARY, MINISTRY FOR THE ENVIRONMENT (2020), at 5 & 7, https://www.mfe.govt.nz/sites/default/files/media/Fresh%20water/decision-on-national-direction-for-freshwater-at- a-glance-summary.pdf.

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The proposed NES for marine aquaculture and the freshwater reforms, which emphasize proactive restoration and more transparent monitoring, may present an opportunity to develop and present fish welfare standards to the aquaculture industry. While neither the NES nor freshwater reforms reference animal welfare,106 it is considered that in this current climate of change, and with a strengthened aquaculture management framework on the horizon, the industry may be receptive to proposed animal welfare standards – especially if these are seen as also protecting and promoting environmental health.107

III. CONDITIONS AND PRACTICES IN AQUACULTURE THAT AFFECT THE

WELFARE OF FISH

What is ‘welfare’?

In contrast to terrestrial farmed animals, farmed fish have received comparatively little attention108 and have thus been referred to as “the forgotten farm animal.”109 However, with the

106 Id, at 5 (for example, the freshwater reforms refer only to the need to “preserve connectivity of [wild] fish species”). 107 For example, a standard on stocking density for fish farms would affect the welfare of individual fish as well as the environment surrounding the farm. Given this dual benefit, such a standard may not be contentious for the aquaculture industry 108 See, e.g., FARM ANIMAL WELFARE COMMITTEE (FAWC), OPINION ON THE WELFARE OF FARMED FISH (Feb. 2014) at para. 97, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/319323/Opinion_ on_the_welfare_of_farmed_fish.pdf, (referring to “a lack of understanding” about individual fish welfare “relative to that [regarding] other farm animals”). See also Felicity A. Huntingford et al., Current Issues in Fish Welfare, 68 JOURNAL OF FISH BIOLOGY (2006), 332, at 333 (observing that “[t]he scientific study of fish welfare is at an early stage compared with work on other vertebrates and a great deal of what we need to know is yet to be discovered”). See also Donald M. Broom, Cognitive ability and sentience: Which aquatic animals should be protected? 75 DISEASES OF AQUATIC ORGANISMS (2007) 99-108 at 103 (noting that “[t]here has been a limited amount of research on the welfare of farmed fish [and] almost nothing…published on the welfare of other farmed aquatic animals.” See also Celeste Black, The Conundrum of Fish Welfare, in ANIMAL LAW IN AUSTRALASIA: CONTINUING THE DIALOGUE, 245-263, at 251 (P. Sankoff, et al., eds., 2nd ed. 2013) (observing that “few fish species have been studied extensively and for those that have, the focus has been on welfare indicia that are also relevant to production, namely disease resistance, growth, reproduction and stress responses to slaughtering techniques”). 109 Lewis Bollard, Fish: The Forgotten Farm Animal, (Jan. 18, 2018, https://www.openphilanthropy.org/blog/fish- forgotten-farm-animal (noting that of the more than 100 undercover investigations that U.S. animal advocates have undertaken to expose farm animal abuse, only one focused on fish).

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exponential growth of aquaculture globally, the importance of good welfare for farmed fish is gaining prominence.

The first challenge in the quest to ensure good welfare in aquaculture is that there is no clear consensus on how ‘welfare’ should be defined or assessed.110 Through extensive philosophical and scientific debate, three general approaches have emerged, according to which an animal’s welfare may be considered to be good if:

1) Their biological systems are functioning, they are in good physical health, and they can

adapt to their environment (function-based approach);111

2) They can live a natural life, expressing the types of behaviour they would in the wild

(nature-based approach);112 or

3) They are free of negative experiences such as , hunger and fear, and have positive

experiences such as pleasure and social companionship (feelings-based approach).113

There is considerable overlap between these approaches, reflecting different aspects of the complex concept of animal welfare.114

110 See, e.g., Robert Arlinghaus et al., Fish Welfare: A Challenge to the Feelings-based Approach, with Implications for , 8 FISH AND FISHERIES (2007), 57; Paul Ashley, Fish Welfare: Current Issues in Aquaculture, 104 APPLIED ANIMAL BEHAVIOUR SCIENCE (2007), 199; Felicity A. Huntingford et al., Current Issues in Fish Welfare, 68 JOURNAL OF FISH BIOLOGY (2006), 332; Felicity A. Huntingford et al., The Implications of a Feelings-based Approach to Fish Welfare: A Reply to Arlinghaus et al., 8 FISH AND FISHERIES (2007), 277. 111 Donald M. Broom, Animal Welfare: Concepts and Measurement, 69 JOURNAL OF ANIMAL SCIENCE (1991), 4167; Ian J.H. Duncan, Science-based Assessment of Animal Welfare: Farm Animals, 24 REV SCI TECH OIE (2005), 483. 112 Bernard E. Rollin, Animal Welfare, Science and Value, 6 JOURNAL OF AGRICULTURAL AND (1993), 44. 113 Marian S. Dawkins, Behavioural Deprivation: A Central Problem in Animal Welfare, 20 APPLIED ANIMAL BEHAVIOUR SCIENCE (1988), 209; Ian J.H. Duncan, Welfare is to do with what Animals Feel, 6 JOURNAL OF AGRICULTURAL AND ENVIRONMENTAL ETHICS (1993), 8. See also Berry M. Spruijt et al., A Concept of Welfare Based on Reward Evaluating Mechanisms in the : Anticipatory Behaviour as an Indicator for the State of Reward Systems, 72 APPLIED ANIMAL BEHAVIOUR SCIENCE (2001), 145 (explaining that in the longer-term, the feelings-based approach represents the balance between positive and negative subjective experiences). 114 Felicity A. Huntingford & Sunil Kadri, Taking Account of Fish Welfare: Lessons from Aquaculture, 75 JOURNAL OF FISH BIOLOGY (2009), 2862, at 2866.

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The ‘Five Freedoms’ proposed by the Brambell Committee in 1965 provided a framework for assessing animal welfare, according to which the following five conditions must be met to ensure an animal’s welfare: freedom from hunger and thirst; freedom from discomfort; freedom from pain, injury and disease; freedom to express natural behavior; and freedom from fear and distress.115

The concept of ‘quality of life’ highlights that animals have both positive and negative experiences, and focuses on the balance between the two. Preferred states are those where, overall, positive experiences prevail.116 In line with this, the Farm Animal Welfare Council proposed a continuum – from “a life not worth living,” to “a life worth living,” to “a good life” – and contended that the minimum legal standard for farmed animals should be “a life worth living.”117

Assessment of an animal’s quality of life should cover its welfare throughout its life, up to

and including the manner of its death. … Achievement of a life worth living requires

provision of an animal’s needs and certain wants, and care by all involved. Wants are those

resources that an animal may not need to survive or to avoid developing abnormal

behaviour, but nevertheless improve its quality of life. They may well stem from learned

behaviours so that once an animal has become accustomed to their provision then

withdrawal may lead to an adverse mental experience. … Giving an animal a life worth

living therefore requires skilled and conscientious stockmanship above all else,

together with good husbandry, considerate handling and transport, and humane slaughter.

… This classification accepts implicitly that some farming practices may cause

115 BRAMBELL COMMITTEE, REPORT OF THE TECHNICAL COMMITTEE TO ENQUIRE INTO THE WELFARE OF ANIMALS KEPT UNDER INTENSIVE LIVESTOCK HUSBANDRY SYSTEMS (Dec. 1965), https://edepot.wur.nl/134379. 116 James K. Kirkwood, Quality of Life: The Heart of the Matter, 16 Animal Welfare (2007), 3. 117 FARM ANIMAL WELFARE COUNCIL (FAWC), FARM ANIMAL WELFARE IN GREAT BRITAIN: PAST, PRESENT AND FUTURE (Oct. 2009), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/319292/Farm_Ani mal_Welfare_in_Great_Britain_-_Past__Present_and_Future.pdf.

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that is unavoidable, such as vaccination and transport, but on balance the positive

experiences should still outweigh the negative over the animal’s lifetime.118

There is increasing acceptance that not only avoidance of negative states, but also positive experiences, are important for animals. Ethologist David Mellor argues that fulfiling the Five

Freedoms is insufficient to ensure animal welfare because it focuses on immediate biological and physical needs while ignoring important psychological aspects of welfare.119 This has implications for the development of minimum legislative and regulatory animal welfare standards.

In order to improve on merely neutralising negative survival-critical affects, and to

contribute to the drive to secure “lives worth living,” codes [of welfare] would obviously

need to include minimum standards specifically aimed at promoting positive experiences.

… It is recommended that all future reviews of codes, no matter how advanced they

currently appear to be, should, on a species-specific basis, include explicit and detailed

consideration of whether or not the current minimum standards need to be extended to

ensure that they do indeed enable animals to have “lives worth living.”120

The concept of animal welfare continues to evolve, in accordance with increased scientific understanding about animals and changing social values concerning the relationship between and animals. Debate continues as to how these concepts should be applied in the context of farmed animals – a debate that is only just emerging in relation to aquatic farmed animals.121

118 Id, at paras. 49, 51 & 52. 119 David J. Mellor, Updating Animal Welfare Thinking: Moving Beyond the “Five Freedoms” Towards “A Life Worth Living,” 6 ANIMALS (2016), 21. 120 Id, at 31-32. 121 See, e.g., Felicity A. Huntingford & Sunil Kadri, Taking Account of Fish Welfare: Lessons from Aquaculture, 75 JOURNAL OF FISH BIOLOGY (2009), 2862, at 2864 (“there is still disagreement about which is the most appropriate definition to use when discussing fish welfare”).

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How welfare is defined and understood is important because this will determine how it is measured and what indicators should be used.122 For example, assessment of welfare based on biological functioning might involve measuring physiological status and growth rates; a feelings- based approach would require methods for assessing pain and discomfort; while a nature-based approach would evaluate the extent to which farmed fish exhibit behaviors similar to those in the wild.123 The way we define welfare will also determine the extent to which any adverse welfare impacts of farming can be mitigated.124 Huntingford and Kadri suggest that “if good welfare requires fish to lead a completely natural life, aquaculture (or any other kind of farming) can never be welfare friendly.”125 Indeed, before we start assessing the details of aquacultural practices, perhaps we need to take a step back and consider the more fundamental question of whether the needs of a migratory species such as salmon can ever be met in a captive environment.126 This conundrum is captured in ecologist Carl Safina’s poignant observation:

122 See, e.g., Catarina I.M. Martins et al., Behavioural Indicators of Welfare in Farmed Fish, 38 FISH AND BIOCHEMISTRY (2012), 17, at 18 (regarding the question of which indicators to use, these should: be “science- based,...measure welfare over extended time periods,...be measurable on a commercial farm within a realistic framework and...be relevant as a decision support system for the farmer.” To ensure a “robust scientific welfare assessment,” a combination of indicators are needed, including behavioral (e.g. changes in ventilation rate, swimming activity, and food-anticipatory behaviour), neuro-physiological, pathological, and molecular indicators). See also Tore Hastein et al., Science-based Assessment of Welfare: Aquatic Animals, 24 REVUE SCIENTIFIQUE ET TECHNIQUE – OFFICE INTERNATIONAL DES EPIZOOTIES (REV SCI TECH OIE) (2005), 529, at 540 (calling for “[increased] understanding of the quantitative and qualitative aspects of welfare” and of the “cognitive abilities, motivational systems and behavioural needs [of fish], and the relationship between environmental parameters and welfare”). 123 Felicity A. Huntingford & Sunil Kadri, Taking Account of Fish Welfare: Lessons from Aquaculture, 75 JOURNAL OF FISH BIOLOGY (2009), 2862. 124 Id. 125 Id, at 2864. 126 See, e.g., ALISON MOOD & PHIL BROOKE, ESTIMATING THE NUMBER OF FARMED FISH KILLED IN GLOBAL AQUACULTURE EACH YEAR (July 2012), at 1-2, http://fishcount.org.uk/published/std/fishcountstudy2.pdf (“The suitability of different species for…farming, and questions such as the extent to which migratory species such as salmon suffer from confinement in sea cages, and to which solitary species such as halibut suffer from crowding, need to be addressed”). See also Marita Gimenez-Candela et al., The Legal Protection of Farmed Fish in Europe – Analysing the Range of EU Legislation and Impact of International Animal Welfare Standards for the Fishes in European Aquaculture, 11 DA DERECHO ANIMAL (2020), 65, at 79 (“the question should be raised how migratory species like salmon, eels or who naturally undergo long journeys throughout their life cycle are affected in their welfare and mental state when being confined”).

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In cold-flowing water, I have stood watching salmon returning to their birth streams from

1,000 miles away, negotiating rapids and falls, feeding bears and eagles, and people too,

their life profound, nourishing and metaphorically potent. But I once dived 20 metres into

a salmon-farm pen. Their life, one slow cyclone, seemed divorced from instincts, devoid

of experience. Repeatedly I was hit head-on by slow-motion salmon in a seeming stupor

who made no effort to avoid bumping my face-mask or body. All senses blunted, their

existence appeared robbed of meaning. It was not that their lives were over; it was as if

they had never lived. Zombies.127

It is worth keeping this overarching and potentially intractable issue in mind when considering the various practices and conditions on a fish farm and the experiences of fish outlined below.128 These include: water and environmental conditions; stocking density; handling practices; feeding and nutrition; disease; breeding and genetic selection; transport; and slaughter.129

Water and environmental conditions

Fish are in constant close contact with their surrounding environment and so water quality, including oxygen content, temperature. pH and salinity, is vital to fulfilling their physiological and behavioral needs.130 “Conditions outside the optimal preference or tolerance ranges, [which vary

127 Carl Safina, Are We Wrong to Assume Fish Can’t Feel Pain? (Oct. 30, 2018), https://www.theguardian.com/news/2018/oct/30/are-we-wrong-to-assume-fish-cant-feel-pain. 128 The focus here is on vertebrate fish (finfish) as they are the most commonly farmed aquatic animals globally, supra Part I (Overview). Moreover, in the New Zealand context, King salmon are a mainstay of the aquaculture industry and other finfish species such as kingfish and hāpuku are likely to be farmed in New Zealand in the future, supra Part II (Other species). See also NEW ZEALAND AQUACULTURE MARKET DEVELOPMENT STRATEGY, AQUACULTURE N.Z. (2008), at 14, https://www.aquaculture.org.nz/wp- content/uploads/2011/06/nz_aquaculture_market_development_strategy.pdf (Strategic priority 4 is “identification of new species driven by market demand” and requires scientific research to “consider how new species can be brought to market in a sustainable and profitable way, so that they meet an identified market need”). 129 This section is not intended to be a comprehensive review of the literature. Rather, it provides an overview of some commonly used practices in aquaculture and the conditions experienced by fish that implicate their welfare. 130 European Food Safety Authority (EFSA), Scientific Opinion of the Panel on Animal Health and Welfare on a Request from the European Commission on the Animal Welfare Aspects of Husbandry Systems for Farmed Atlantic Salmon, 736 THE EFSA JOURNAL (2008), https://efsa.onlinelibrary.wiley.com/doi/epdf/10.2903/j.efsa.2008.736.

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widely between species] may result in stress, distress, impaired health and mortality, all of which are often associated with the intensive reading conditions that cause poor water quality.”131

Dissolved oxygen is essential for fish respiration and concentrations below critical levels can induce stress and even result in asphyxiation.132 The concentration of , ammonia, nitrite and heavy metals in the water are also important; ammonia is toxic to fish at high levels, particularly if oxygen concentration is low.133 Chronic stress from poor water quality can lead to loss of homeostasis, reduced growth and greater susceptibility to disease. 134 Water circulation and exchange rates are also important; “[r]educed water circulation may induce aggression, heterogeneous growth and increased susceptibility to disease.”135 Environmental factors such as noise and vibrations have reportedly negatively affected some fish species, and the light period and intensity plays a role in the development of larvae and young fish.136

Stocking density

Optimal stocking density is often defined as the carrying capacity of the stocked environment and the amount of individual space needed by the fish, which is species specific.137

Behavioral interactions such as shoaling may mean that high stocking densities are beneficial for some species but in many farmed species high stocking densities may be detrimental.138 Crowding

131 Tore Hastein et al., Science-based Assessment of Welfare: Aquatic Animals, 24 REV SCI TECH OIE (2005), 529, at 535. 132 T. Ellis et al., The Relationships Between Stocking Density and Welfare in Farmed Rainbow , 61 JOURNAL OF FISH BIOLOGY (2002), 493. 133 M. Remen et al., Interactive Effects of Ammonia and Oxygen on Growth and Physiological Status of Juvenile Atlantic (Gadus morhua). 274 AQUACULTURE (2008), 292. 134 Tore Hastein et al., Science-based Assessment of Welfare: Aquatic Animals, 24 REV SCI TECH OIE (2005), 529 135 Tore Hastein et al., Science-based Assessment of Welfare: Aquatic Animals, 24 REV SCI TECH OIE (2005), 529, at 535. 136 E.J. Branson & T. Turnbull, Welfare and Deformities in Fish, in FISH WELFARE, 202-216 (E.J. Branson, ed., 2008). 137 Tore Hastein et al., Science-based Assessment of Welfare: Aquatic Animals, 24 REV SCI TECH OIE (2005), 529, at 536. 138 Paul Ashley, Fish Welfare: Current Issues in Aquaculture, 104 APPLIED ANIMAL BEHAVIOUR SCIENCE (2007), 199.

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can inhibit normal swimming behaviour and increase aggressive and competitive behaviors such as competition for food,139 cannibalism,140 and territoriality and dominance-subordination hierarchies.141 This increases the risk of tissue damage due to abrasion from fish-to-fish or fish-to cage contact.142 High stocking densities can also result in insufficient water flow, creating inadequate oxygen supply and waste product removal.143 Overall, stocking density is a complex area, the mechanisms of which are only partly understood.144

Handling practices

Many routine procedures in aquaculture such as grading, tagging and other management and maintenance operations involve capturing, handling and removing fish from water. Many of these procedures are considered necessary to improve aspects of welfare and productivity, but can compromise welfare in other areas.145 For example, vaccination is an intervention designed to protect fish health but handling during the vaccination process causes stress which, in turn, negatively affects health.146 In salmon and other hatcheries, aggression and cannibalism is common if fish are not graded by size, but handling during the grading process causes stress and physical injury (to , scales and other tissue), leaving the fish more vulnerable to disease.147

Tagging to identify individual fish is used increasingly for disease surveillance and other reasons.

139 K. Greaves & S. Tuene, The Form and Context of Aggressive Behaviour in Farmed Atlantic Halibut (Hippoglossus hippoglossus L.), 193 AQUACULTURE (2001), 139. 140 E. Baras & M. Jobling, Dynamics of Intracohort Cannibalism in Cultured Fish, 33 AQUACULTURE RESEARCH (2002), 461. 141 T. Ellis et al., The Relationships Between Stocking Density and Welfare in Farmed , 61 JOURNAL OF FISH BIOLOGY (2002), 493. 142 Tore Hastein et al., Science-based Assessment of Welfare: Aquatic Animals, 24 REV SCI TECH OIE (2005), 529. 143 Paul Ashley, Fish Welfare: Current Issues in Aquaculture, 104 APPLIED ANIMAL BEHAVIOUR SCIENCE (2007), 199. 144 Stocking Density: Does It Matter? THE FISH SITE (Oct. 10, 2010), https://thefishsite.com/articles/stocking- density-does-it-matter. 145 Felicity A. Huntingford & Sunil Kadri, Taking Account of Fish Welfare: Lessons from Aquaculture, 75 JOURNAL OF FISH BIOLOGY (2009), 2862, at 2866. 146 Id. 147 Tore Hastein et al., Science-based Assessment of Welfare: Aquatic Animals, 24 REV SCI TECH OIE (2005), 529.

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The various tagging methods, including fin clipping, thermal branding, and plastic or metal internal or external tags, can compromise welfare in different ways.148 Fin clipping may be painful and stressful,149 internal tags require abdominal surgery and external tags can cause chronic wounds and secondary infections, as well as interfere with swimming and other behaviors.150

Feeding and nutrition

Farmed fish are fed manufactured pellets.151 A diet that is not natural to the species or nutritionally imbalanced can lead to nutritional deficiencies and malnutrition.152 Overfeeding can lead to poor welfare as a result of degraded water quality and “lipid overload in organs such as the .”153 The feeding schedule and methods are also important; improper feeding routines may induce aggression and stress, and prevent some individuals from accessing sufficient food.154 In the wild, salmon exhibit a daily rhythm of feeding, as well as marked change in feeding behavior between their fresh water and sea water life stages.155 The extent to which this is, or can be, replicated in farmed salmon and the impact on their welfare is unknown and more research is needed in this area.156 However, periods of food absence have been observed to lead to fin-biting and other damage.157 It would appear that feeding methods on fish farms commonly deprive fish

148 Id. 149 Paul J. Ashley & Lynee U. Sneddon, Pain and Fear in Fish, in FISH WELFARE, 49-77 (E.J. Branson, ed., 2008). 150 Tore Hastein et al., Science-based Assessment of Welfare: Aquatic Animals, 24 REV SCI TECH OIE (2005), 529. 151 Supra, Part II (King salmon – Freshwater farming). 152 Tore Hastein et al., Science-based Assessment of Welfare: Aquatic Animals, 24 REV SCI TECH OIE (2005), 529. 153 European Food Safety Authority (EFSA), Scientific Opinion of the Panel on Animal Health and Welfare on a Request from the European Commission on the Animal Welfare Aspects of Husbandry Systems for Farmed Trout, 796 THE EFSA JOURNAL (2008), at 13, https://efsa.onlinelibrary.wiley.com/doi/epdf/10.2903/j.efsa.2008.796. 154 Tore Hastein et al., Science-based Assessment of Welfare: Aquatic Animals, 24 REV SCI TECH OIE (2005), 529. 155 European Food Safety Authority (EFSA), Scientific Opinion of the Panel on Animal Health and Welfare on a Request from the European Commission on the Animal Welfare Aspects of Husbandry Systems for Farmed Atlantic Salmon, 736 THE EFSA JOURNAL (2008), https://efsa.onlinelibrary.wiley.com/doi/epdf/10.2903/j.efsa.2008.736. 156 Id. 157 Id.

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of their natural feeding behaviour, resulting in chronic stress and stereotypic behaviour – an indicator of poor welfare.158

Disease

As with terrestrial animals raised in intensive farming conditions, farmed fish frequently suffer from infectious and non-infectious diseases, including bacterial, fungal, viral and parasitic conditions.159 These can result from increased stress and poor environmental conditions.160 Sea lice outbreaks have occurred on salmon farms, causing scale loss, skin lesions and haemorrhaging which, in turn, cause “osmotic disturbances.”161 In some cases, damage from sea lice is so severe that the skull bones are exposed, resulting in what is known as a “death crown.”162 Novel methods for combating sea lice and other parasites have been developed, including using such as . However, such methods compromise the welfare needs of the wrasse and high levels of mortality have been reported among them.163 A number of prominent viral and bacterial pathogens

158 See, for e.g., Catarina I.M. Martins et al., Behavioural Indicators of Welfare in Farmed Fish, 38 AND BIOCHEMISTRY (2012), 17, at 28 (noting for example that Atlantic halibut, a carnivorous ground- feeding fish, display stereotypic behavior when fed floating instead of sinking pellets in a farming environment; and more generally opining that “[d]espite the scarcity of literature, the appearance of stereotypes has been linked with aquaculture procedures and stressors and therefore can be an indicator of poor welfare in farmed fish”). Stereotypies or “abnormal repetitive behaviors” are frequently observed in captive animals, including those kept in , aquaria, fur farms, laboratories, and on industrial ‘factory farms’ and are generally understood to indicate poor psychological well-being, stress and suffering. See, e.g., G.J. Mason, Stereotypies and Suffering, 25 BEHAVIOURAL PROCESSES (1991), 103; Nora Philbin, Towards an Understanding of Stereotypic Behaviour in Laboratory Macaques, , https://awionline.org/content/towards-understanding-stereotypic-behaviour-laboratory- macaques. 159 European Food Safety Authority (EFSA), Scientific Opinion of the Panel on Animal Health and Welfare on a Request from the European Commission on the Animal Welfare Aspects of Husbandry Systems for Farmed Atlantic Salmon, 736 THE EFSA JOURNAL (2008), https://efsa.onlinelibrary.wiley.com/doi/epdf/10.2903/j.efsa.2008.736. 160 Jenny Bergqvist & Stefan Gunnarsson, Finfish Aquaculture: Animal Welfare, the Environment, and Ethical Implications, 26 JOURNAL OF AGRICULTURAL AND ENVIRONMENTAL ETHICS (2013), 75. 161 Tore Hastein et al., Science-based Assessment of Welfare: Aquatic Animals, 24 REV SCI TECH OIE (2005), 529, at 537. 162 Id. 163 European Food Safety Authority (EFSA), Scientific Opinion of the Panel on Animal Health and Welfare on a Request from the European Commission on the Animal Welfare Aspects of Husbandry Systems for Farmed Atlantic Salmon, 736 THE EFSA JOURNAL (2008), https://efsa.onlinelibrary.wiley.com/doi/epdf/10.2903/j.efsa.2008.736.

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can have severe effects on the and internal organs.164 Skeletal and soft tissue deformities indicative of “sub-optimal conditions” have been observed,165 cataracts causing blindness have been found in farmed salmon,166 and half the global population of farmed fish reportedly suffers from hearing loss.167

As well as the obvious welfare implications of infectious diseases for farmed fish, the risk of transmission to wild fish is a serious concern.168 Although this is presently described as a

“relatively minor [issue]” for New Zealand, given the comparatively small scale of the industry and limited numbers of wild salmon,169 the risk of pathogen transmission from farmed indigenous species to wild populations in the future should not be underestimated.

Breeding and genetic selection

Similarly to the farming of terrestrial animals, aquaculture employs selective breeding techniques to increase production, with a focus on rapid growth, flesh quality, feed conversion rates, disease resistance, and fertility.170 While increasing resistance to disease improves welfare, breeding for resistance to one disease may reduce resistance to others, or affect other traits.171 It is not known if changes such as better feed conversion rates “will challenge the biological limits of

164 Lill-Heidi Johansen et al., Disease Interaction and Pathogens Exchange Between Wild and Farmed Fish Populations with Special Reference to Norway, 315 AQUACULTURE (2011), 167. 165 Tore Hastein et al., Science-based Assessment of Welfare: Aquatic Animals, 24 REV SCI TECH OIE (2005), 529, at 537. 166 Hugh Ferguson & Carlos Sandoval, Cataracts in Salmonids – Gross Pathology, FISH PATHOLOGY (Apr. 24, 2019), https://fishhistopathology.com/home/2019/04/24/cataracts-in-salmonids-gross-pathology/. See also Andrew Hoyle, Scientists Shed Light on Blindness in Salmon, FISH FARMING EXPERT (May 29, 2017), https://www.fishfarmingexpert.com/article/scientists-shed-light-on-blindness-in-salmon/. 167 University of Melbourne, Hear No Evil: Farmed Fish Found to be Hard of Hearing, SCIENCE DAILY (Apr. 28, 2016), https://www.sciencedaily.com/releases/2016/04/160428094451.htm. 168 Lill-Heidi Johansen et al., Disease Interaction and Pathogens Exchange Between Wild and Farmed Fish Populations with Special Reference to Norway, 315 AQUACULTURE (2011), 167. 169 BARRIE FORREST ET AL., REVIEW OF THE ECOLOGICAL EFFECTS OF MARINE FINFISH AQUACULTURE: FINAL REPORT (June 2007), at iv, https://www.cawthron.org.nz/media_new/publications/pdf/2014_07/CR1285- Review_of_the_ecological_effects_of_marine_finfish_aquaculture_Final_report.pdf. 170 Tore Hastein et al., Science-based Assessment of Welfare: Aquatic Animals, 24 REV SCI TECH OIE (2005), 529. 171 European Food Safety Authority (EFSA), Scientific Opinion of the Panel on Animal Health and Welfare on a Request from the European Commission on the Animal Welfare Aspects of Husbandry Systems for Farmed Atlantic Salmon, 736 THE EFSA JOURNAL (2008), https://efsa.onlinelibrary.wiley.com/doi/epdf/10.2903/j.efsa.2008.736.

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the animals, become stressors and consequently cause welfare concerns.”172 There are also concerns about “unforeseen phenotypic consequences” of selective breeding, such as “cranial, jaw and opercular [brain] deformities” that affect respiration and feeding, as well as “behavioral changes” and “reduced swimming ability” in some species.173

Transport

“Live transport” of farmed animals usually evokes an image of terrestrial animals in large transport trucks. However, fish are also routinely subjected to live transport between different farming systems and at different life stages. For example, juveniles are transported from hatcheries to land-based or sea cages for rearing, while breeding fish are transported to hatcheries for spawning.174 Loading and unloading processes, which involve collecting, capturing and then transferring the fish into transport vessels, often at high densities, cause acute stress. This may lead to chronic stress and immune suppression, or result in immediate death.175 Adverse conditions during transport, including overcrowding and deteriorated water quality can cause serious harm and death.176 The capacity of different species to cope with variations in parameters such as oxygen, water temperature, salinity and pH varies widely.177 Research on the psychological effects of transport on fish is scarce. However, the European Food Safety Authority (EFSA) Panel on

Animal Health and Welfare has observed:

The behavioural response [of broiler chickens and turkeys] to being caught and carried is

generally one of passive fear behaviour and is frequently not recognised by the people

172 Tore Hastein et al., Science-based Assessment of Welfare: Aquatic Animals, 24 REV SCI TECH OIE (2005), 529, at 536. 173 Id, at 537. 174 Peter J. Southgate, Welfare of Fish During Transport, in FISH WELFARE, 185-194 (E.J. Branson, ed., 2008). 175 E.U. COMMISSION, WELFARE OF FARMED FISH: COMMON PRACTICES DURING TRANSPORT AND AT SLAUGHTER (Sept. 2017), https://ec.europa.eu/food/sites/food/files/animals/docs/aw_platform_20180621_pre-06.pdf. 176 Peter J. Southgate, Welfare of Fish During Transport, in FISH WELFARE, 185-194 (E.J. Branson, ed., 2008). 177 E.U. COMMISSION, WELFARE OF FARMED FISH: COMMON PRACTICES DURING TRANSPORT AND AT SLAUGHTER (Sept. 2017), at 5, https://ec.europa.eu/food/sites/food/files/animals/docs/aw_platform_20180621_pre-06.pdf.

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handling them as indicating the severe disturbance which is revealed by physiological

measures. An extreme example of this is the response of salmonid fish to being caught in

a net and lifted into the air. A fish which is lying quietly will be showing the maximum

adreno-cortical response possible, although the persons handling the fish may be unaware

of the very poor welfare caused by such handling. Removal from water is soon lethal for

most fish, just as immersion in water is lethal for land animals. Consequently, a maximal

physiological response is not surprising in either of these situations.”178 (emphasis added)

This highlights the complexity of assessing the welfare of animals based on observations of their behavior. This challenge is writ large in the context of fish because “[m]ost of the cues that are employed to identify distress and fear responses in other vertebrates are simply not accessible for fish. For example, there are no direct parallels for facial or vocal signalling in fish.”179

Slaughter

The process of slaughter has the potential to cause significant pain, stress and suffering to fish,180 who typically endure a period of food withdrawal to empty the gut, removal from water and transport to the point of slaughter, and the killing itself.181 Each step in the process impacts welfare; the extent to which it does so varies widely according to the species, methods used, and the care and skill of the workers.182 Pre-slaughter starvation lowers the metabolic activity of fish,

178 European Food Safety Authority (EFSA), Scientific Report of the Scientific Panel on Animal Health and Welfare on a Request from the Commission Related to the Welfare of Animals During Transport, 44 THE EFSA JOURNAL (2004), at 10-11, https://efsa.onlinelibrary.wiley.com/doi/pdf/10.2903/j.efsa.2004.44. 179 Felicity A. Huntingford et al., Current Issues in Fish Welfare, 68 JOURNAL OF FISH BIOLOGY (2006), 332, at 361. 180 D.H.F. Robb et al., Commercial Slaughter Methods Used on Atlantic Salmon: Determination of the Onset of Brain Failure by Electroencephalography, 147 THE VETERINARY RECORD (2000), 298; P. Southgate & T. Wall, Welfare of Farmed Fish at Slaughter, 23 IN PRACTICE (2001), 277. 181 Jeffrey A. Lines & J. Spence, Humane Harvesting and Slaughter of Farmed Fish, 33 REV SCI TECH OIE (2014), 255. 182 Id.

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slowing the rate at which carbon dioxide and ammonia accumulate in the water183 and preventing fecal contamination during processing, which reduces the shelf life of fish.184 Starvation is

“considered acceptable from a welfare point of view” but it is recommended that the starvation period be as short as possible.185 The duration of starvation varies according to species, water temperature and other factors, but usually lasts one to three days for salmon.186 Overcrowding can occur during gathering and transport, sometimes resulting in suffocation before the fish arrive at slaughter.187 Rough handling during this process causes additional stress and can result in injuries and death.188 As for the final step:

Various methods are used to slaughter fish and there is no doubt that many of them can be

considered totally unsatisfactory from an animal welfare point of view. … The guiding

principle for optimal slaughter is to avoid unnecessary stress and pain to the animal during

the slaughtering process. Thus, sedation should cause instantaneous unconsciousness

lasting until death.189

Research has established that many of the common slaughter techniques are inhumane, including: carbon dioxide; live chilling; asphyxiation in air or on ice; and gill-cutting without prior .190 Percussive and electrical stunning, when properly applied, are currently considered to

183 M. Jobling, The Influences of Feeding on the Metabolic Rate of Fishes: A Short Review, 17 JOURNAL OF FISH BIOLOGY (1995). 385. 184 A.E. Wall. Ethical Considerations in the Handling and Slaughter of Farmed Fish, in FARMED FISH QUALITY, 108-115 (S.C. Kestin & P.D. Wariss, eds., 2000). 185 P. Southgate & T. Wall, Welfare of Farmed Fish at Slaughter, 23 IN PRACTICE (2001), 277. 186 A.E. Wall. Ethical Considerations in the Handling and Slaughter of Farmed Fish, in FARMED FISH QUALITY, 108-115 (S.C. Kestin & P.D. Wariss, eds., 2000). 187 Jeffrey A. Lines & J. Spence, Humane Harvesting and Slaughter of Farmed Fish, 33 REV SCI TECH OIE (2014), 255. 188 A.E. Wall. Ethical Considerations in the Handling and Slaughter of Farmed Fish, in FARMED FISH QUALITY, 108-115 (S.C. Kestin & P.D. Wariss, eds., 2000). 189 Tore Hastein et al., Science-based Assessment of Welfare: Aquatic Animals, 24 REV SCI TECH OIE (2005), 529, at 539. 190 Stephanie Yue, AN HSUS REPORT: THE WELFARE OF FARMED FISH AT SLAUGHTER (2008), https://www.humanesociety.org/sites/default/files/docs/hsus-report-animal-welfare-farmed-fish-at-slaughter.pdf.

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be “the least aversive [slaughter] methods.”191 The U.K. Farm Animal Welfare Committee advises that stunning “must cause immediate loss of consciousness which lasts until death.”192

Complexities of assessing welfare impact of aquacultural practices

Ensuring good welfare in aquaculture is difficult because multiple factors such as those outlined above affect different species and individual fish in different ways.193 It is essential that those responsible for ensuring and evaluating the welfare of farmed fish first understand species- specific behavior and biology before drawing conclusions about welfare.194 It is also important to be aware that individual fish differ in their perception of external events and coping strategies, so

“while one individual may interpret a situation as…highly stressful, another may interpret it as mildly stressful or…not at all stressful.”195 Such individual variation presents challenges for welfare assessments as “not all individuals within a group will have a good welfare status. In fact,

191 Id, at 8 (noting, however at 6, that “manual percussive stunning presents challenges including operator fatigue that reduces accuracy and impairs welfare” and, at 7, “[w]hen fish are subjected to a poor stun (due to poor management or equipment malfunction) and rendered paralyzed instead of insensible, they cannot express pain or show avoidance behavior and risk being bled while conscious”). 192 FARM ANIMAL WELFARE COMMITTEE (FAWC), OPINION ON THE WELFARE OF FARMED FISH AT THE TIME OF KILLING (May 2014), at para 24, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/319331/Opinion_ on_the_welfare_of_farmed_fish_at_the_time_of_killing.pdf (citing FAWC’s 1996 REPORT ON THE WELFARE OF FARMED FISH). 193 See, e.g., Panaquatic Health Solutions, A Review of Current Welfare Arrangements for Finfish in Australia (Sept. 19, 2006), at 5, https://aussiefarms.org.au/documents?id=e5bc8e8931 (“Fish…occupy a diverse range of habitat and ecological niches” and so many of the optimal or preferred conditions are species-specific. See also Felicity A. Huntingford et al., Current Issues in Fish Welfare, 68 JOURNAL OF FISH BIOLOGY (2006), 332 (observing that it can be challenging to determine the cause of impaired welfare because the conditions that affect welfare are often interrelated and influence each other at different times). See also Stanley H. Weitzman, Fish, ENCYCLOPAEDIA BRITANNICA, https://www.britannica.com/animal/teleost (attesting to the incredible : the , a group that includes virtually all the world’s sport and commercial fishes, comprise more than 30,000 known species (more than all other vertebrates combined), with new species being discovered every year. Teleosts are found in almost every aquatic environment and have developed specializations to feed in a variety of ways – as carnivores, herbivores, filter feeders and parasites. Teleosts range in size from minnows (less than one- third of an inch long) to marlins (over 11 feet long and 1,200 pounds in weight) and ocean sunfish (over 10 feet and 2,000 pounds). Teleosts are adapted to widely varied habitats – from Arctic and Antarctic to desert hot springs). 194 Catarina I.M. Martins et al., Behavioural Indicators of Welfare in Farmed Fish, 38 FISH PHYSIOLOGY AND BIOCHEMISTRY (2012), 17, at 33. 195 Id, at 33.

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group-based indicators may hide poor welfare at an individual level.”196 Indeed, one obvious

“practical problem” in aquaculture is how to deal with the sheer number of individuals handled.197

According to the Farm Animal Welfare Committee (FAWC), “there is little consideration of welfare at the level of individual fish.”198 While recognizing the difficulty of obtaining information on individuals and taking action to protect or improve their welfare,199 the FAWC maintains that increased emphasis must be given to individuals “both for ethical and commercial reasons.”200

Although technology may assist in overcoming some of the practical challenges,201 attending to individual welfare “may require provision of appropriate conditions for categories that need them, such as small or sick fish – either provided for them, or available for self-selection.202 Ultimately,

“new and perhaps radical approaches to design and management” may be required.203

IV. WHY DOES FISH WELFARE MATTER?

Concerns about animal welfare are generally based on the notion that it is wrong to cause pain and suffering to other sentient beings.204 Sentience is a complex concept with varying definitions. However, it is commonly understood to mean “the ability to feel, perceive and

196 Id, at 34. 197 Tore Hastein et al., Science-based Assessment of Welfare: Aquatic Animals, 24 REV SCI TECH OIE (2005), 529, at 530. See also Marita Gimenez-Candela et al., The Legal Protection of Farmed Fish in Europe – Analysing the Range of EU Legislation and Impact of International Animal Welfare Standards for the Fishes in European Aquaculture, 11 DA DERECHO ANIMAL (2020), 65, at 79 (noting that that “due to the sheer number fishes reared it is practically impossible to recognise and check on every individual and ensure his or her individual well-being”). 198 FARM ANIMAL WELFARE COMMITTEE (FAWC), OPINION ON THE WELFARE OF FARMED FISH (Feb. 2014) at para. 113. 199 Id, at para. 99. See also para.113 (“FAWC recognises that the ability to deal with an individual fish with a welfare problem is restricted in some systems – for example catching a sick or injured fish in a sea pen – and that attempting to do so might affect the welfare of the rest of the group”). 200 Id, at para.113. 201 Id, at para. 99 (““It is possible with technology, at least in experimental conditions, to monitor individual or sentinel fish using video to assess swimming patterns or individual markings, different wavelengths of light or telemetric devices”). 202 Id, at para. 125. 203 Id, at para. 125. 204 See generally , (1975).

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experience,” and refers to having the awareness and cognitive ability necessary to have .205 As such, sentient beings do not merely detect and react to stimuli around them, but also feel something in response.206

This section provides a brief overview of the scientific evidence relating to fish sentience and the reasons why it is appropriate that fish receive our full ethical consideration. It also touches on other reasons why the welfare of farmed fish should matter to the aquaculture industry and policy makers. First though, it is worth briefly considering some of the phenomena that tend to hamper the inclusion of fish in our “moral circle.”

The “empathy barrier”

Given popular misconceptions about fish, including that they are insensate, unintelligent and have a three-second memory,207 it is not surprising that concern for their welfare lags behind other animals. As self-described “champion of ” Culum Brown explains, “[p]art of the problem is the large gap between people’s perception of fish intelligence and the scientific reality. This is an important issue because public perception guides government policy.”208

The subjective experiences of fish are likely very different to our own and therefore difficult to understand.209 Humans also tend to use an anthropocentric, deficit-based approach in our evaluation of other species, focusing on what “the other” lacks in comparison to us, with little

205 See, e.g., DONALD M. BROOM, SENTIENCE AND ANIMAL WELFARE (2014). 206 Id. See also , Animal Pleasure and its Moral Significance, 118 APPLIED ANIMAL BEHAVIOUR SCIENCE (2009), 208 (explaining, inter alia, that emotional states are useful adaptive mechanisms. Negative states such as fear reinforce the negative experience of doing something harmful and make it less likely the behavior will be repeated, while positive states such as pleasure incentivize and reward behaviors that promote survival). 207 See, e.g. Saara Kupsala et al., Who Cares about Farmed Fish? Citizen Perceptions of the Welfare and the Mental Abilities of Fish, 26 JOURNAL OF AGRICULTURAL AND ENVIRONMENTAL ETHICS (2013), 119 (In a survey asking respondents to evaluate whether or not an animal has a certain cognitive ability, salmon were ranked low for different mental abilities in comparison to other animals (cattle, pigs, chickens, elk, wolves and ) – second lowest species for all mental abilities. Support for the mental abilities of salmon was considerably lower compared to that given to mammals used in livestock production (pigs and cows). Salmon were even clearly differentiated from – the lowest of the “traditional” farm animals). 208 Culum Brown, Fish Intelligence, Sentience and Ethics, 18 ANIMAL (2015), 1, at 1. 209 Felicity A. Huntingford et al., Current Issues in Fish Welfare, 68 JOURNAL OF FISH BIOLOGY (2006), 332, at 361.

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attention given to some of the remarkable capacities they might have. So, when we question whether a fish:

Can feel what a human feels, we imply that that is the best a fish might aspire to. But as

[oceanographer Sylvia] Earle said, fish “have senses we humans can only dream about. Try

to imagine having taste buds all along your body. Or the ability to sense the electricity of

a hiding fish. Or eyes of a deep sea .” Many fish see four major colours; humans only

see three. Some see polarised light, some see ultraviolet. Some, such as flounders, move

their eyes independently, processing two image fields. Archerfish and “four-eyed fish” see

above and below water simultaneously, processing four images. and others signal

with changing skin-colour patterns.210

“Perceptual barriers” also make it difficult for humans to relate to fish. For example, fish do not vocalize (or at least we cannot hear them doing so) or have recognizable facial movements, both of which are “cues for human empathy.”211 In her ethnographic account of salmon aquaculture in

Norway, Marianne Lien asks: “Unfamiliar encounters? Yes, indeed. Fish are cold. They live in water. They are mostly out of sight. They are silent. Their staring eyes show no visible .

Their body language is difficult to interpret. All of this limits the cues that humans can respond

210 Carl Safina, Are We Wrong to Assume Fish Can’t Feel Pain? THE GUARDIAN (Oct. 30, 2018), https://www.theguardian.com/news/2018/oct/30/are-we-wrong-to-assume-fish-cant-feel-pain. See also Vladic Ravich, Consider the Mort, Believer Magazine (May 1, 2014), https://believermag.com/consider-the-mort/ (“We know almost nothing about the life of a salmon before it lands on our plate. Fish have physical traits we cannot fathom: imagine a line of nerves around your body that can detect electricity and shifts in the movement of water. From the perspective of a bipedal with only five senses, the thirty-two thousand species of fish that make up the largest and most diverse group of vertebrates are easier to describe by what they lack: no fur, no arms or legs, and not much of a face”). 211 Culum Brown, Fish Intelligence, Sentience and Ethics, 18 (2015), 1, at 2. See also European Food Safety Authority (EFSA), Scientific Report of the Scientific Panel on Animal Health and Welfare on a Request from the Commission Related to the Welfare of Animals During Transport, 44 THE EFSA JOURNAL (2004), at 46, https://efsa.onlinelibrary.wiley.com/doi/pdf/10.2903/j.efsa.2004.44, (“The fact that fish do not vocalise out of water, and most humans are not familiar with any sounds or other behaviours of fish in water, may have contributed to the erroneous view that fish have little awareness or cognitive ability”).

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to.”212 Because of these many “biological and habitat differences,” humans generally “identify more closely with farmed mammals than they do with fish” and therefore feel less empathy with fish and are “less likely to regard [them] as worthy of moral consideration on rational grounds.”213

As a result, “the ethical issues in fish farming could, at least from a welfare perspective, potentially be viewed as insignificant.”214

That slaughtered fish are measured by weight and not counted as individuals perhaps most vividly reflects the status of fish in our society.215 Similarly, the language used in the context of aquaculture positions fish “as a certain kind of ‘semi-animal’ – somewhere between truly sentient animals and non-sentient plants.”216

In English, there has been a tendency to use terms when referring to farmed fish or

fish taken from the sea. A cage full of salmon is sometimes called a crop, and the process

of slaughter is sometimes called harvesting. Farmers refer to ‘growing the fish’, like

‘growing wheat’, but animals are not the same as plants. It is the fish that grow and the

farmer who feeds and manages them. Such terms make the fish seem less like individual

animals, and encourage farm staff to view them as objects rather than sentient beings and

212 MARIANNE ELISABETH LIEN, BECOMING SALMON (Berkeley, CA: University of California Press) (2015), at 3. 213 FARM ANIMAL WELFARE COMMITTEE (FAWC), OPINION ON THE WELFARE OF FARMED FISH (Feb. 2014) at para. 103. 214 Id. 215 See Jenny Bergqvist & Stefan Gunnarsson, Finfish Aquaculture: Animal Welfare, the Environment, and Ethical Implications, 26 JOURNAL OF AGRICULTURAL AND ENVIRONMENTAL ETHICS, 75, at 77. See also Saara Kupsala et al., Who Cares about Farmed Fish? Citizen Perceptions of the Welfare and the Mental Abilities of Fish, 26 JOURNAL OF AGRICULTURAL AND ENVIRONMENTAL ETHICS (2013), 119, at 131 (“Even in the most intensive , production statistics are still compiled as individuals, while measuring fish production in weight likens fish to crop products”). See also Vonne Lund et al., Expanding the Moral Circle: Farmed Fish as Objects of Moral Concern, 75 DISEASES OF AQUATIC ORGANISMS (2007), 109, at 114 (“The development of fish farming into big business run by multi-national corporations which owe duties to shareholders, distant from the actual production process, has enhanced the view of fish as a ‘crop’ to be harvested rather than individual animals to be cared for”). 216 Saara Kupsala et al., Who Cares about Farmed Fish? Citizen Perceptions of the Welfare and the Mental Abilities of Fish, 26 JOURNAL OF AGRICULTURAL AND ENVIRONMENTAL ETHICS (2013), 119, at 131.

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perhaps to treat them badly. Hence the terms ‘crop’ and ‘harvest’ and ‘growing the fish’

are inappropriate and should not be used.” 217

Scientific evidence for fish sentience

In the context of the barriers outlined above, science has an important role to play in educating the public and thereby “shifting belief systems,” which can “then trigger changes in legislation.” 218 There is a growing body of scientific evidence demonstrating not only that fish are sentient but are also much more intelligent than commonly thought. As sentience is not something that can be measured directly,219 studies are used to test different aspects of physiological responses, cognitive abilities and behavior. From these, conclusions are drawn about an animal’s

“inner world” – their thoughts and feelings.

Research on pain is one strand of this research and provides evidence that fish have the requisite physiology to detect pain and also that they have an emotional response to pain, that is that they suffer as a result of experiencing pain.220 This evidence includes:221

• The presence of (pain receptors) and nerve fibers that enable fish to detect

painful stimuli;222

217 Donald M. Broom, Cognitive ability and sentience: Which aquatic animals should be protected? 75 DISEASES OF AQUATIC ORGANISMS (2007) 99, at 103-104. 218 Culum Brown, Fish Intelligence, Sentience and Ethics, 18 ANIMAL COGNITION (2015), 1, at 2. 219 See, e.g. Tore Hastein et al., Science-based Assessment of Welfare: Aquatic Animals, 24 REV SCI TECH OIE (2005), 529, at 533 (noting that “it is a matter of debate whether the existence of a subjective state such as animal suffering can actually be proved by science”). See also Lynne U. Sneddon & Matthew C. Leach, Anthropomorphic Denial of Fish Pain – Commentary on Key on Fish Pain, 3 ANIMAL SENTIENCE (2016), 1, at 1 (“No animal can directly communicate its experience to us; hence, we cannot know for sure whether or what it does or does not feel”). 220 See generally VICTORIA BRAITHWAITE, DO FISH FEEL PAIN? (Oxford, U.K.: Oxford University Press, 2010). 221 There is a complex, and developing, body of research in this area and that outlined here is merely a brief overview of some broad research findings. 222 See, e.g., Lynne U. Sneddon, Pain Perception in Fish: Indicators and Endpoints, 50 ILAR (2009), 338 (concluding that “fish are capable of and appear to experience a negative affective state”). See also Culum Brown, Fish Intelligence, Sentience and Ethics, 18 ANIMAL COGNITION (2015), 1 (fish have the “hardware” necessary to feel pain).

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• Activity in the brain during nociception;223

• Physiological changes (e.g. increased heart rate and respiration, and release of stress

hormones) linked to stress in response to pain;224

• Long-term alterations in behavior in response to pain that reduce future encounters with

the harmful stimulus;225 and

• The effect of (pain relief) on behavioural responses to pain.226

In its 2009 opinion on fish welfare and sentience, the EFSA Panel on Animal Health and Welfare concluded that (for the relatively small number of species that have been studied) “[t]he balance of evidence indicates that some fish species have the capacity to experience pain.”227

The notion that fish feel pain, in the subjective sense, has been challenged by several researchers, mainly on the basis that the conscious experience of pain (as distinct from nociception) requires higher-order mental processing – something it is contended fish cannot possess since they lack an adequately developed .228 However, “[w]hile their brain evolutionary and

223 See, e.g., Lynne U. Sneddon, Pain in Aquatic Animals, 218 JOURNAL OF EXPERIMENTAL BIOLOGY (2015), 967 (stating that “multiple brain areas are active during noxious stimulation” and this “activity differs from that in response to innocuous stimuli”). 224 See, e.g., Lynne U. Sneddon et al., Do Fishes Have Nociceptors? Evidence for the Evolution of a Vertebrate Sensory System, 270 PROCEEDINGS OF THE ROYAL SOCIETY OF LONDON (2003), 1115 (stating that “rainbow trout possesses nociceptors that detect noxious stimuli and that both the behaviour and the physiology of the rainbow trout are adversely affected by stimuli known to be painful to humans”). 225 See, e.g., Lynne U. Sneddon, Pain in Aquatic Animals, 218 JOURNAL OF EXPERIMENTAL BIOLOGY (2015), 967 (stating that fish, molluscs and crustaceans demonstrate behavioral responses to potentially painful events). See also Rebecca Dunlop et al. Avoidance in (Carassius auratus) and Trout (Oncorhynchus mykiss) and Implications for Pain Perception, 27 APPLIED ANIMAL BEHAVIOUR SCIENCE (2006), 255; Lynne U. Sneddon et al., Novel Object Test: Examining Nociception and Fear in the Rainbow Trout, 4 THE JOURNAL OF PAIN (2003), 431. 226 See, e.g., Lynne U. Sneddon, Pain in Aquatic Animals, 218 JOURNAL OF EXPERIMENTAL BIOLOGY (2015), 967 (“a range of drugs have been shown to be effective in ameliorating the pain-related changes in behaviour and physiology seen in fish when painfully stimulated”). See also Lynne U. Sneddon, Pain Perception in Fish: Indicators and Endpoints, 50 ILAR (2009), 338; Lynne U. Sneddon et al., Novel Object Test: Examining Nociception and Fear in the Rainbow Trout, 4 THE JOURNAL OF PAIN (2003), 431. 227 European Food Safety Authority (EFSA), Scientific Opinion of the Panel on Animal Health and Welfare on a Request from the European Commission on General Approach to Fish Welfare and to the Concept of Sentience in Fish, 954 THE EFSA JOURNAL (2009), 1, at 15, https://efsa.onlinelibrary.wiley.com/doi/pdf/10.2903/j.efsa.2009.954. 228 See, e.g. James D. Rose et al., Can Fish Really Feel Pain? 15 Fish and Fisheries (2013), 97 (stating that claims for consciousness in fish “lack adequate supporting evidence, neurological feasibility, or the likelihood that consciousness would be adaptive” and concluding that “overall, the behavioral and neurobiological evidence

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developmental trajectory differs from other vertebrates,” evidence shows “that there are many analogous structures that perform similar functions.”229 According to The Cambridge Declaration on Consciousness, “the absence of a neocortex does not appear to preclude an organism from experiencing affective states [and] convergent evidence indicates that non-human animals have the neuroanatomical, neurochemical, and neurophysiological substrates of conscious states along with the capacity to exhibit intentional behaviors.”230

While the question of fish sentience has not been conclusively resolved, “the precautionary principle231 dictates that we should give the benefit of the doubt to fish.”232 According to the precautionary approach, “[u]ntil we have confirmation that fish do not suffer, it seems reckless to expose fish to injury that we already know would induce severe suffering if applied in a similar

reviewed shows fish responses to nociceptive stimuli are limited and fishes are unlikely to experience pain.” Further stating there are “deficiencies in the methods used for pain identification, particularly for distinguishing unconscious detection of injurious stimuli (nociception) from conscious pain,” and that research results were “frequently mis- interpreted and not replicable”). See also Brian Key, Fish Do Not Feel Pain and its Implications for Understanding Phenomenal Consciousness, 30 Biology & Philosophy (2015), 149 (“while mammals and possess the prerequisite neural architecture for phenomenal consciousness,…fish lack these essential characteristics and do not feel pain”); Brian Key, Why Fish Do Not Feel Pain, 3 Animal Sentience (2016), 3 (“fish lack the necessary neurocytoarchitecture, microcircuitry, and structural connectivity for the neural processing required for feeling pain”). 229 Culum Brown, Fish Intelligence, Sentience and Ethics, 18 ANIMAL COGNITION (2015), 1, at 14. 230 PHILIP LOW ET AL., THE CAMBRIDGE DECLARATION ON CONSCIOUSNESS (July 7, 2012), http://fcmconference.org/img/CambridgeDeclarationOnConsciousness.pdf (signed by a prominent group of international neuroscientists at the Francis Crick Memorial Conference on Consciousness in Human and Non-human Animals at Churchill College, University of Cambridge, U.K.). 231 The was developed in the context of environmental protection. Based on the adage that “it is better safe than sorry,” the precautionary principle posits that where the potential exists for serious or irreversible harm to the environment, lack of full scientific certainty should not be used as a reason to postpone action to avoid or minimize such a threat. See Principle 15 of the U.N. Rio Declaration on Environment and Development (1992), which codified the precautionary approach for the first time at the global level, https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF.151 _26_Vol.I_Declaration.pdf. 232 Jonathan Balcombe, Cognitive Evidence of Fish Sentience – Commentary on Key on Fish Pain, 1 ANIMAL SENTIENCE (2016), 2. See also Vonne Lund et al., Expanding the Moral Circle: Farmed Fish as Objects of Moral Concern, 75 DISEASES OF AQUATIC ORGANISMS (2007), 109, at (applying a scientific risk analysis “shows that the probability that fishes can feel pain is not negligible and that if they do indeed experience pain the consequences in terms of the number of suffering individuals are great,” therefore “farmed fish should be given the benefit of the doubt” and be “morally considered”).

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way to other animals whose capacity to feel pain we already recognize.”233 Such an approach is appropriate in the context of aquaculture, where there is potential for suffering on an immense scale.234

Beyond the research on pain are a range of other studies that provide insights into the many capabilities of fish.235 These include:

• Communication and co-operation, with other fish and non-fish species;236

• Learning, memory and problem solving;237

233 Dinesh Wadiwel, Fish and Pain: The Politics of Doubt – Commentary on Key on Fish Pain, ANIMAL SENTIENCE (2016), at 4. 234 The precautionary approach also accords with the Māori worldview and concept of kaitiakitanga, according to which humans share a deep kinship with the natural world (including with other humans, plants, animals, the land, sky and water) and have an obligation to care for and nurture the natural world, and to act respectfully towards ancestors and future generations. Kaitiakitanga includes the preservation, replenishment and sustainability of the physical environment, but also has a spiritual aspect – an obligation to nurture the mauri (elemental life force or spiritual essence of a person, place or thing). See Te Ahukaramū Charles Royal, Kaitiakitanga – Guardianship and Conservation, TE ARA – THE ENCYCLOPEDIA OF NEW ZEALAND (Sept. 24, 2007), https://teara.govt.nz/en/kaitiakitanga-guardianship-and-conservation. 235 See generally Culum Brown, Fish Intelligence, Sentience and Ethics, 18 ANIMAL COGNITION (2015), 1, at 14 (“Fish have very good memories, live in complex social communities where they keep track of individuals and can learn from one another; a process that leads to the development of stable cultural traditions. They recognise themselves and others. They cooperate with one another and show signs of Machiavellian intelligence such as cooperation and reconciliation. They build complex structures, are capable of tool use and use the same methods for keeping track of quantities as we do. For the most part, their primary senses are just as good, and in many cases better, than our own”). 236 See generally JOANATHAN BALCOMBE, WHAT A FISH KNOWS: THE INNER LIVES OF OUR UNDERWATER COUSINS (Scientific American/Farrar, Straus, and Giroux, 2016) (fish communicate in a range of ways, including with sounds, electrical pulses, bioluminescence, by releasing chemicals, or using body language). See also Redouan Bshary & Manuela Wurth, Cleaner Fish Labroides Dimidiatus Manipulate Client Reef Fish by Providing Tactile Stimulation, 268 PROCEEDINGS OF THE ROYAL SOCIETY (2001), 1495 (an example of co-operation between different fish species, whereby cleaner wrasse fish offer a parasite and dead skin removal service to “client” reef fish); Alexander L. Vail et al., Referential Gestures in Fish Collaborative , 4 NATURE COMMUNICATIONS (2013), 1765 (observing a signal used by various fish species to engage in co-operative hunting with different fish species, and even non-fish species such as octopus. The signal is considered to be a “referential gesture” – a signal that intentionally draws the attention of another to an object of mutual interest. Referential gestures are considered a key element in language development and outside humans, have only been attributed to great apes and, most recently, ravens). 237 See, e.g., Lester R. Aronson, Further Studies on Orientation and Jumping Behavior in the Gobiid Fish, Bathygobius Soprator, 188 ANNALS OF THE NEW YORK ACADEMY OF SCIENCES (1971), 378 (concluding that gobiid fish “learn rapidly,” have an “extraordinary memory for the topographic features of their surroundings”); Christian Agrillo et al., Numerical Abilities in Fish: A Methodological Review, 141 BEHAVIOURAL PROCESSES (2017), 161 (fish have “substantially similar” numerical abilities with those of other vertebrates); Caroline N. DeLong et al., Small and Large Number Discrimination in Goldfish (Carassius Auratus) with Extensive Training, 141 BEHAVIOURAL PROCESSES (2017), 172 (with extensive training, fish can achieve accuracy on a numerical task comparable to that of humans, non-human and birds); A.M. Jones et al., Tool Use in the Tuskfish

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• Emotional states;238 and the possibility of

• Self-consciousness.239

Moral imperative to consider and address the welfare of fish in aquaculture

Despite continuing scientific debate and lingering lay misconceptions about the capacities of fish, the cumulative anatomical, neurophysiological and behavioral evidence indicates that fish possess advanced mental capabilities and can, indeed, experience pain and suffering.240 If we accept that “suffering is morally relevant,…then that relevance crosses the species barrier. And, if suffering crosses the species barrier and there is no morally relevant distinction between land and water animals, then the moral relevance of suffering crosses the land barrier as well.”241 As such, fish should be afforded the same ethical consideration and legal protection as other vertebrates. In the context of aquaculture, where fish have been domesticated and humans are potential agents of

Choerodon Schoenleinii? 30 CORAL REEFS (2011), 865 (observing the tuskfish using a rock to open a cockle and noting that this conforms to the definition of tool use). 238 See e.g., Chloe Laubu et al., Pair-bonding Influences Affective State in a Moogamous Fish Species, 286 PROCEEDINGS OF THE ROYAL SOCIETY (2019), 286 (the mood of a monogamous fish species, the convict cichlid, was shown to be affected by the presence or absence of their mate; females who could see their mate were optimistic when performing a task (indicating a positive affective state) while those who could only see a non-preferred male were pessimistic (indicating a negative affect)). See also Rober M. Fagen, Salmonid Jumping and Playing: Potential Cultural and Welfare Implications, 7 ANIMALS (2017), 42 (instances of jumping by salmon may be a form of play and is a potential measure of well-being); Isabel Fife-Cook & Becca Franks, Positive Welfare for Fishes: Rationale and Areas for Future Study, 4 FISHES (2019), 31 (noting that most research and animal welfare guidelines focus on alleviating suffering and urging research to be undertaken into positive emotional states such as joy and pleasure). 239 See, e.g., Masanori Kohda et al., If a Fish Can Pass the Mark Test, What are the Implications for Consciousness and Self-awareness Testing in Animals? 17 PLOS BIOLOGY (2019) (cleaner wrasse fish exhibited behavior that may be interpreted as passing the “mark test” (whereby an animal is presented with a mirror and allowed to see themselves; is then marked (e.g. with a dot of paint or a colored tag); and their behavior is observed again): they attempted to remove the mark by scraping their body in the presence of a mirror, but showed no response when marked with a transparent mark, or to colored marks in the absence or a mirror. While the researchers conceded that this does not conclusively demonstrate self-awareness, they concluded the fish must have some level of self- recognition). 240 Culum Brown, Fish Intelligence, Sentience and Ethics, 18 ANIMAL COGNITION (2015), 1. 241 David N. Cassuto & Amy M. O’Brien, You Don’t Need Lungs to Suffer: Fish Suffering in the Age of Climate Change with a Call for Regulatory Reform, 5 CANADIAN JOURNAL OF COMPARATIVE AND CONTEMPORARY LAW (2019), at 14. See also Jr., Fishy Reasoning and the Ethics of Eating, 23 (2019), 52, at 81 (noting the “growing consensus that because birds and mammals are conscious sentient intelligent beings, they deserve direct moral consideration” and that – based on the research establishing that “fish are conscious, sentient, cognitively sophisticated, intelligent beings” – they too “deserve direct moral consideration”).

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suffering, it is considered that fish have become part of the “moral community…included among those to whom humans have a special responsibility.”242

Why else does fish welfare matter?

Aside from the moral imperative to consider the welfare of farmed fish, there are several other reasons why fish welfare should be of concern to the aquaculture industry and the New

Zealand Government.

Good welfare is associated with good productivity and good flesh quality

Firstly, good welfare is usually associated with good productivity and good flesh quality.243

As noted in the Aquatic Animal Welfare Guidelines of Australia’s National Aquaculture Council:

Consideration of welfare parameters both during growout and especially at the time of

harvest can produce tangible improvements in quality of the final product. It has been

shown that high levels of stress pre-harvest result in a greater depletion of muscle energy

reserves and the induction of a more intense rigor mortis a shorter time after death. Limited

crowding intensity pre-harvest is known to produce firmer flesh, less bruising, less scale

loss and decreased incidence of gaping. … The careful control of crowding combined with

a method of harvest that minimises time out of water and time to complete stunning will

result in prolonged time to rigor mortis, with associated improvements in flesh quality,

processing performance and shelf life.244

242 FISHERIES SOCIETY OF THE BRITISH ISLES (FSBI). FISH WELFARE. BRIEFING PAPER 2 (2002) at 4, https://www.fsbi.org.uk/wp-content/uploads/2018/02/brief-welfare-norefs.pdf. See also World Organization for Animal Health (OIE), Aquatic Animal Health Code (22nd ed., 2019), at Article 7.1.1 (2)(a), https://www.oie.int/international-standard-setting/aquatic-code (stating that “the use of fish carries with it an ethical responsibility to ensure the welfare of such animals to the greatest extent practicable”). 243 See, e.g., OIE, id, at Article 7.1.1 (1)(c) (recognizing that “improvements in farmed fish welfare can often improve productivity and lead to economic benefits”). 244 National Aquaculture Council, Aquatic Animal Welfare Guidelines: Guidelines on Welfare of Fish and Crustaceans in Aquaculture and/or in Live Holding Systems for Human Consumption, at para. 1.1.4, https://www.ais.sa.edu.au/wp-content/uploads/Pages/Animal_Ethics/AG-DAFF-Aquatic-Animal-Welfare- Guidelines.pdf. See also FISHERIES SOCIETY OF THE BRITISH ISLES (FSBI). FISH WELFARE. BRIEFING PAPER 2 (2002)

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Contrary to the view espoused by some that implementing higher animal welfare standards will hamper the productivity of fish farms and ultimately deprive the human population of a much- needed food source,245 “interventions that promote welfare often also promote production and farmers can carry on business even with tight welfare regulation.”246 As such, good welfare also benefits producers and consumers.

Consumers concerns and public perceptions

Secondly, consumers are increasingly concerned about the treatment of farmed animals and are willing to pay a premium for “humanely produced” food.247 High welfare standards enhance consumer confidence and should therefore be of concern to the industry.248

A recent U.S. study found that 50 percent of consumers and 50 percent of individuals responsible for menu and purchasing decisions in the foodservice industry (operators) are more likely to purchase seafood that is “humanely harvested.”249 More than half of all consumers and

at 4, https://www.fsbi.org.uk/wp-content/uploads/2018/02/brief-welfare-norefs.pdf (noting that “poor welfare of farmed fish often equates to poor production”). 245 See, e.g., Howard I. Browman et al., Welfare of Aquatic Animals: Where Things Are, Where They Are Going, and What it Means for Research, Aquaculture, Recreational , and , 76 ICES JOURNAL OF MARINE SCIENCE (2019), 82, at 88 (asserting that “[t]he impact of increasing welfare-related constraints on aquaculture…is difficult to predict, even in terms of the desired effect of improving the welfare of the farmed animal. This, combined with the greater difficulty to impossibility of conducting research on these animals [as a result of, inter alia, the widely applied three Rs principle, which requires the minimal possible number of animals to be used in research], will leave society less able to produce high-quality protein to feed a still-growing global population”). 246 Felicity A. Huntingford & Sunil Kadri, Taking Account of Fish Welfare: Lessons from Aquaculture, 75 JOURNAL OF FISH BIOLOGY (2009), 2862, at 2866. 247 Consumer Perceptions of Farm Animal Welfare, ANIMAL WELFARE INSTITUTE (2011), https://awionline.org/sites/default/files/uploads/documents/fa-consumer_perceptionsoffarmwelfare_-112511.pdf (reporting the results of a number of studies on consumer perceptions of farmed animals and their welfare, which generally show that consumers: care about how animals are raised, support regulating the conditions in which animals are raised, and are willing to pay more for food that is “humanely raised”). See also Hans S. Solgaard & Yingkui Yang, Consumers’ Perception of Farmed Fish and Willingness to Pay for Fish Welfare, 113 BRITISH FOOD JOURNAL (2011), 997 (48% of respondents were, on average, willing to pay 25% more for humanely produced rainbow trout). 248 See, e.g., SCOTTISH GOVERNMENT, A STRATEGIC FRAMEWORK FOR SCOTTISH AQUACULTURE (Mar. 24, 2003), https://www2.gov.scot/Publications/2003/03/16842/20502 (recognizing that “consumers do have a legitimate interest in the way animals are treated during food production” and “high welfare standards are a contributor to consumer confidence and must be a high priority for the industry”). 249 Marie Molde et al., Reputation at Risk: How Animal Welfare, Antimicrobial Resistance and Social Responsibility are Shaping Consumer Perceptions of Farmed Seafood. Presentation at Global Aquaculture Alliance GOAL

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operators also believe that humanely produced seafood is likely to taste better, have better texture, and be higher quality.250 The research also revealed that consumers and operators are most aware and concerned about live slaughter and antibiotic use in both aquaculture and wild-caught fisheries.251 Consumers were less aware of other industry practices such as mouth clipping, transport and stunning.252 Concern about humane treatment increased once consumers and operators were made aware of these practices.253 The study suggests that while adopting humane practices in aquaculture can improve the market for seafood, failing to make improvements likely poses a risk to the industry’s reputation.254

A 2014 New Zealand study examining public perceptions of the aquaculture industry found that while “overall awareness of seafood farming is high, and public perceptions of aquaculture are generally positive,” there was “a level of public misconception or misunderstanding about aquaculture.”255 The study also revealed that 20 percent of respondents have neither a positive nor negative view of the aquaculture industry – and some may not know enough about the industry to form a view.256 As in the U.S. – where it was found that the “aquaculture industry currently benefits from [a] lack of awareness among consumers”257 – there appears to be an opportunity for the New

Conference, Guayaquil, Ecuador (Sept. 25-27, 2018), https://www.aquaculturealliance.org/goal/goal-2018- presentations/ (“Seafood” includes fish and crustaceans). 250 Id. 251 Id. 252 Id. 253 Id. 254 Madelyn Kearns, “Humane Aquaculture” Could Boost U.S. Seafood Consumption, Study Finds, SEAFOODSOURCE (Sept. 27, 2018), https://www.seafoodsource.com/news/environment-sustainability/humane- aquaculture-may-up-seafood-consumption-in-the-us-study-finds. 255 ANDREW ROBERTSON & VENISE COMFORT, PUBLIC PERCEPTIONS OF NEW ZEALAND’S AQUACULTURE INDUSTRY (Aug. 14, 2014), at 5, https://www.mpi.govt.nz/dmsdocument/15871/send (For example, when asked to name an aquaculture product, 30% of respondents named a product that is not farmed in New Zealand aquaculture and when those who perceive the aquaculture industry negatively are asked why, the second most common reason given related not to aquaculture, but to over-fishing). 256 Id. 257 Madelyn Kearns, “Humane Aquaculture” Could Boost U.S. Seafood Consumption, Study Finds, SEAFOODSOURCE (Sept. 27, 2018), https://www.seafoodsource.com/news/environment-sustainability/humane- aquaculture-may-up-seafood-consumption-in-the-us-study-finds (quoting Arlin Wasserman, food consultant at Changing Tastes, one of the resarch partners).

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Zealand industry to “[enhance] knowledge and [generate] positive perceptions” of aquaculture.258

Conversely, where gaps exist in the New Zealand public’s knowledge of aquaculture, there may be “embedded risk.” For example, if consumers learn of industry practices that they view as inhumane, they would likely perceive the industry less favorably.259

Overall, the research indicates that there is considerable scope to influence public perceptions of the aquaculture industry. As recognized by the U.S. researchers, it is easier “to invest in better practices in order to increase sales…than respond to criticism and declines.”260 It would seem therefore that the New Zealand aquaculture industry has a strong interest in proactively ensuring the welfare of farmed fish, particularly while knowledge gaps about the industry still exist among the general public.

International reputation

New Zealand’s economy relies heavily on animal agriculture exports.261 The New Zealand

Animal Welfare Strategy recognizes that animal welfare practices make a “significant contribution” to the country’s export success by “[adding] value to …exports and [contributing] to [the country’s] reputation as a responsible agricultural producer.”262 Conversely, “[c]ases of poor animal welfare can have a negative impact on [New Zealand’s] reputation and result in a loss

258 ANDREW ROBERTSON & VENISE COMFORT, PUBLIC PERCEPTIONS OF NEW ZEALAND’S AQUACULTURE INDUSTRY (Aug. 14, 2014), at 5, https://www.mpi.govt.nz/dmsdocument/15871/send. 259 The New Zealand study did not explicitly investigate public awareness of industry practices that implicate animal welfare (questions related mostly to sustainability and environmental impacts, contribution to the economy, and impacts on coastal areas, including environmental impacts and access to public spaces) and the research does not appear to have elicited any responses regarding animal welfare. The current level of public awareness of industry practices that affect animal welfare are therefore unknown. 260 Madelyn Kearns, “Humane Aquaculture” Could Boost U.S. Seafood Consumption, Study Finds, SEAFOODSOURCE (Sept. 27, 2018), https://www.seafoodsource.com/news/environment-sustainability/humane- aquaculture-may-up-seafood-consumption-in-the-us-study-finds (quoting Arlin Wasserman). 261 See SITUATION AND OUTLOOK FOR PRIMARY INDUSTRIES (SOPI) REPORT, MINISTRY FOR PRIMARY INDUSTRIES (MPI) (Mar. 2020), at 2, https://www.mpi.govt.nz/dmsdocument/39935-situation-and-outlook-for-primary- industries-sopi-march-2020 (New Zealand’s total primary industry export revenue in 2019 was N.Z.$46.3 billion, of which $18.1 billion was dairy, $10.2 billion was meat and wool, and just under $2 billion was seafood). 262 MINISTRY FOR PRIMARY INDUSTRIES, ANIMAL WELFARE MATTERS: NEW ZEALAND ANIMAL WELFARE STRATEGY (May 2013), at 5, https://www.mpi.govt.nz/dmsdocument/3963/send.

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of export markets, inability to gain access to new markets, or additional conditions and checks being placed on…products or production processes.”263

The Animal Welfare Strategy further states that “good care of animals and are fundamental, and there are opportunities to adopt better planning, practices and technologies,” and “professional and industry groups should take a proactive and leading role.”264

The Aquaculture Strategy simultaneously recognizes that “paired with heightened consumer awareness and connectivity, demand for healthy, sustainable and ethically produced seafood is increasing.”265 It therefore behoves both the Government and producers to ensure the highest possible standards of welfare for farmed fish.

V. NEW ZEALAND ANIMAL WELFARE FRAMEWORK

The final section of this paper outlines New Zealand’s animal welfare framework and analyses what legal protections exist for fish in aquaculture.

New Zealand Animal Welfare Strategy

The New Zealand Animal Welfare Strategy (Strategy) is a high-level document that sets out “some of the essential features of New Zealand’s animal welfare system.”266 The Strategy acknowledges that “animals are sentient – they can feel pain and distress – and as a we have responsibilities to ensure our animals’ needs are met.”267 The Strategy documents New

Zealand’s animal welfare values, stating that “compassionate treatment of animals has long been a human value” and “the principle that we take care of animals and animals take care of us reflects

263 Id, at 3. 264 Id, at 3. 265 N.Z. GOV’T, AQUACULTURE STRATEGY (Sept. 2019) at 4 (emphasis added). 266 MINISTRY FOR PRIMARY INDUSTRIES, ANIMAL WELFARE MATTERS: NEW ZEALAND ANIMAL WELFARE STRATEGY (May 2013), at 9, https://www.mpi.govt.nz/dmsdocument/3963/send. 267 Id, at 3.

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the co-evolution of people and domestic animals.”268 The Strategy further notes that there are a range of opinions regarding whether animals should be used by humans, that “New Zealand’s heritage is closely bound with farming, animals, and the environment,” and that “using animals is acceptable as long as it is humane.”269

This underscores an “inherent [weakness] of the welfare paradigm”;270 the starting point is that animals can be used by humans.271 As a result, welfare assessments will necessarily involve a balancing of the interests of animals against those of their owners (or the humans who are otherwise in charge of them, or who benefit from their use) and so the welfare framework will only ever offer limited protection.272 The legal status of, and level of protection accorded to, an animal will depend on the “social construction” of that animal – how we categorize and rank them according to their perceived value to humans, in other words “the social context in which we place

[them], rather than their biological characteristics or intrinsic value.”273 Typically, there is an inverse relationship between the “usefulness” of an animal and the level of protection they receive; the more commercially useful the animal, the less protection they receive. For this reason, animals raised and killed for food are among those who receive the least protection.274

Animal Welfare Act 1999

268 Id, at 4. 269 Id, at 4. 270 See Celeste Black, The Conundrum of Fish Welfare, in ANIMAL LAW IN AUSTRALASIA: CONTINUING THE DIALOGUE, 245-263, at 251 (P. Sankoff, et al., eds., 2nd ed. 2013). 271 Based, in part, on the fact that in most countries animals are legally classified as property. See generally GARY L. FRANCIONE, ANIMALS, PROPERTY, AND THE LAW (Temple University Press, U.S., 1995). 272 Id. See also Gary L. Francione, Animals as Property, 2 ANIMAL LAW (1996), https://www.animallaw.info/article/animals-property (asserting that “the balancing process is nothing more than an illusion in which the outcome has been predetermined in light of the very different status of the supposedly competing parties,” namely the balancing of the interests of “a human property owner seeking to act upon [their] animal property”). 273 Nicole Pallotta, China Reclassifies Dogs from “Livestock” to “Companion Animals, ANIMAL LEGAL DEFENSE FUND (May 20, 2020), https://aldf.org/article/china-reclassifies-dogs-from-livestock-to-companion-animals/. 274 See generally SIOBHAN O’SULLIVAN, ANIMALS, EQUALITY AND DEMOCRACY (Springer, 2011).

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The primary legislation governing animal welfare in New Zealand is the Animal Welfare

Act 1999 (AWA). The AWA definition of “animal” includes fish (bony or cartilaginous).275 The

AWA recognizes that animals are sentient276 and sets a broad framework for safeguarding their welfare.277 Arguably, the most important innovation of the current AWA is that it imposes a positive duty of care on owners and persons in charge of animals “to attend properly to the welfare of those animals.”278

Duty of care

Section 10 of the AWA establishes the core statutory obligation on owners and persons in charge of animals to “ensure that the physical, health and behavioural needs of the animal are met in a manner that is in accordance with both good practice, and scientific knowledge.” “Physical, health and behavioural needs” is defined in section 4 and mirrors the ‘Five Freedoms.’279 In respect of an animal who is ill or injured, section 11 imposes an obligation on the owner or person in charge to “where practicable, ensure…the animal receives treatment that alleviates any unreasonable or unnecessary pain or distress.” Failure to comply with section 10 or 11 leads to liability under section 12, which sets out a further offence for killing an animal “in such a manner

275 Animal Welfare Act 1999 No. 142 (AWA), section 2(1). The definition also includes: octopus, squid, crab, , and crayfish (including freshwater crayfish). 276 While New Zealand has attracted international praise for explicitly recognizing in legislation that animals are sentient, it remains to be seen whether this has any practical impact or if it is a largely symbolic gesture. See, e.g. 277 AWA 1999, Long Title provides, in part: “An Act (a) to reform the law relating to the welfare of animals and the prevention of their ill-treatment; and, in particular, – (i) to recognise that animals are sentient: (ia) to require owners of animals, and persons in charge of animals, to attend properly to the welfare of those animals…”. These amendments to the principal Act (the AWA 1999) were introduced by section 4 of the Animal Welfare (Amendment) Act (No.2) 2015. 278 AWA 1999, Long Title. The AWA’s predecessor, the Animals Protection Act 1960, simply imposed liability on those who were cruel to animals, thereby allowing only for reactive responses to animal cruelty rather than the opportunity for early intervention. 279 AWA 1999, section 4 provides: “In this Act, unless the context otherwise requires, the term physical, health, and behavioural needs, in relation to an animal, includes – (a) proper and sufficient food: (ab) proper and sufficient water: (b) adequate shelter: (c) opportunity to display normal patterns of behaviour: (d) physical handling in a manner which minimises the likelihood of unreasonable or unnecessary pain or distress: (e) protection from, and rapid diagnosis of, any significant injury or disease, – being a need which, in each case, is appropriate to the species, environment, and circumstances of the animal.”

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that the animal suffers unreasonable or unnecessary pain or distress.” While some of these provisions appear to have been drafted with terrestrial animals in mind (e.g. the requirement for

“proper and sufficient water”), most could be applied to fish in an aquaculture setting (e.g. the requirement to protect and rapidly diagnose injury or disease, and the appropriate physical handling requirement). An element that must be proved in duty of care offences is ownership (or control of) the animal. Given the definition of “aquaculture activity” in the Fisheries Act 1996 and

Resource Management Act 1991, according to which the fish are “in the exclusive and continual possession of the aquaculturists,”280 it is considered that this element would be proved. Offences under these provisions are strict liability and proof of pain or distress is not required.281 According to one legal expert, “such duty of care provisions may provide the strongest avenue of protection for fish welfare given the evidentiary difficulties in proving fish suffering.”282

Ill-treatment

Part 2 of the AWA focuses on individual acts of ill-treatment against animals. In addition to prohibiting or controlling specified forms of conduct,283 the AWA sets out three “general” offences: ill-treatment ‘simpliciter’ (section 29(a)), reckless ill-treatment (section 28A), and wilful ill-treatment (section 28). An ill-treatment offence is committed if a person causes an animal “to suffer, by any act or omission, pain or distress that in its kind or degree, or in its object, or in the

280 The fact of possession is important to establish because in prosecutions for duty of care offences, an element that must be proved is that the defendant was the owner or person in charge of the animal at the time the offending occurred. The Fisheries Act 1996 and the RMA 1991 define “aquaculture activity” as “a means of breeding, hatching, cultivating, rearing, or ongrowing of fish, aquatic life, inter alia, involving the occupation of a coastal marine area. Aquaculture activity does not include activities where the fish or aquatic life is not in the exclusive and continual possession of the aquaculturists, or activities where fish or aquatic life cannot be distinguished from those that are naturally occurring.” 281 See AWA 1999, section 13. 282 Celeste Black, The Conundrum of Fish Welfare, in ANIMAL LAW IN AUSTRALASIA: CONTINUING THE DIALOGUE, 245-263, at 254 (P. Sankoff, et al., eds., 2nd ed. 2013). 283 For example: animal fighting ventures (section 31); branding (section 29(f)); and piercing the tongue of an animal (section 29(b)).

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circumstances in which it is inflicted, is unreasonable or unnecessary.”284 The more serious offences of wilful and reckless ill-treatment require that the animal suffers a particular outcome: permanent disability; death; serious injury or impairment; or pain or distress so great that it is necessary to destroy the animal in order to end their suffering.285

In theory, these provisions apply to all animals who are covered by the AWA and who are therefore recognized as sentient. However, given the complexities in assessing pain and suffering in fish, meeting the high standard of proof (beyond reasonable doubt) for these offences is likely to be challenging in practice. To prove an offence, the fish must first be found to have suffered

“pain or distress,” which will ultimately be a question of fact for the court to determine. If it is not possible to infer from the facts of the case that the fish has suffered, the court may require expert evidence from a veterinarian, animal behaviourist, or other suitably qualified individual. Given that “scientific evidence is so limited with respect to those stimuli that cause and with respect to specific fish species,…it may be practically impossible to measure the extent of the harm to fish from an isolated incident.”286

If it is found that the fish did suffer pain or distress, the next hurdle will be establishing that the pain or distress was “unreasonable or necessary.” The “unreasonable or unnecessary” carve-out is a common feature of animal welfare legislation worldwide287 and essentially calls for

“a balancing of the harms suffered by the animal against the benefits gained from the use in order

284 AWA 1999, section 2 (definition of “ill-treats”). 285 AWA 1999, sections 28(1) and 28A(1). Wilful ill-treatment attracts the highest maximum penalty under the AWA – up to five years imprisonment and/or a fine of up to N.Z.$100,000 for an individual, or a fine of up to N.Z.$500,000 for a body corporate (section 28(3) AWA). 286 Celeste Black, The Conundrum of Fish Welfare, in ANIMAL LAW IN AUSTRALASIA: CONTINUING THE DIALOGUE, 245-263, at 253 (P. Sankoff, et al., eds., 2nd ed. 2013). 287 See, e.g., Frank Hurnik & Hugh Lehman, Unnecessary Suffering: Definition and Evidence, 3 INTERNATIONAL JOURNAL FOR THE STUDY OF ANIMAL PROBLEMS (1982), 131; Frida Lundmark & Charlotte Berg, ‘Unnecessary Suffering’ as a Concept in Animal Welfare Legislation and Standards, THE ETHICS OF CONSUMPTION: THE CITIZEN, THE MARKET, AND THE LAW, 114-119 (H. Rocklinsberg & P. Sandin, eds., 2013).

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to determine if the act” constitutes an offence.288 Given the variation in how the term “unreasonable or unnecessary” can be interpreted and applied by the courts, and given the premise on which the term is based (that some suffering is reasonable or necessary), its effectiveness in safeguarding welfare is questionable. Equally questionable is whether an ill-treatment case against an individual fish, suffering silently in an industrial aquaculture operation among hundreds of thousands of other fish, would ever reach the courts.

Animal Welfare Regulations

Animal welfare regulations are proscribed under the AWA and impose enforceable requirements on owners and persons in charge of animals.289 The rationale behind regulations is that they will enable the Ministry for Primary Industries (MPI) to better enforce the AWA by setting out clear rules to protect animal welfare and by providing a wider range of options for low- to medium-level offending.290 Regulations are based mostly on existing minimum standards in codes of welfare but are more directly enforceable than codes.291

The first regulations were issued in 2016, covering the treatment of bobby and changes to rules relating to the international live export of animals. Further regulations were issued in 2018, covering various species and activities, including: dogs, laying hens, pigs, rodeos, transportation, and surgical or painful procedures.292 One regulation has been issued in relation to

288 Celeste Black, The Conundrum of Fish Welfare, in ANIMAL LAW IN AUSTRALASIA: CONTINUING THE DIALOGUE, 245-263, at 253 (P. Sankoff, et al., eds., 2nd ed. 2013). 289 Amendments to the AWA in 2015 empowered MPU to make animal welfare regualations. See AWA 1999, section 183. 290 See generally Animal Welfare Regulations, MPI (May 1, 2020), https://www.agriculture.govt.nz/law-and- policy/legal-overviews/animal-welfare/animal-welfare-regulations/. 291 Id. 292 Animal Welfare (Care and Procedures) Regulations 2018 (LI 2018/50), http://www.legislation.govt.nz/regulation/public/2018/0050/latest/whole.html.

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crustaceans, but none have been issued for fish.293 Further regulations are forthcoming, including several proposed regulations relating to surgical procedures on fish used in research, testing and teaching.294

Each regulation has an associated penalty, which is determined by whether the offence is an infringement offence (resulting in an infringement fee but no criminal conviction) or a prosecution under regulations (more serious than an infringement offence and may result in a criminal conviction).295 According to MPI guidance, an offence is appropriate for an infringement when:

• The nature of the offending is minor;

• The potential impact on the animal is low;

• A criminal conviction would be disproportionate to the level of offending;

• A low-level financial penalty is sufficient to drive behavior change; and

• A breach of the regulation is straightforward and easy to determine on the facts.296

An offence is appropriate for a prosecution under regulations when:

• The offending has caused a mild to moderate level of harm to the animal;

• The offending may involve many animals;

• A criminal conviction is appropriate given the conduct and/or impact involved;

293 Animal Welfare (Care and Procedures) Regulations, regulation 11 provides that where crabs, rock lobster, crayfish and koura (freshwater crayfish) have been farmed or caught for commercial purposes, they must be rendered insensible before they are killed. 294 Proposed Animal Welfare Regulations on Significant Surgical Procedures, MPI (May 1, 2020), https://www.mpi.govt.nz/news-and-resources/consultations/proposed-animal-welfare-regulations/. The proposed regulations relate to tissue removal (entire fin removal), surgical tagging, and sterilization of fish used in research, testing and teaching, and are part of a broader suite of proposed regulations relating to significant surgical procedures. These were scheduled to be in place from May 2020 but have been postponed due to the COVID-19 pandemic. 295 The most serious offending is prosecuted under the AWA. 296 Overview of Proposed Animal Welfare Regulations, MPI (March 2018), https://www.agriculture.govt.nz/dmsdocument/28029-penalties-for-the-animal-welfare-regulations-march-2018.

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• The offending is more likely in a commercial context and higher deterrents may be needed;

and;

• The offending involves actions that are not straight forward enough to suit an

infringement.297 (emphasis added)

Serious consideration should be given to issuing regulations relating specifically to fish in aquaculture. These could be issued under section 183A of the AWA (regulations relating to standards of care, e.g. water and environmental conditions, stocking density, and handling practices) and section 183B (surgical and painful procedures, e.g. fin clipping and tagging).

Regulations on such issues would provide clear rules for the aquaculture industry, thereby helping protect the welfare of fish. Furthermore, it is considered that the italicized parameters above describe the likely context of offending in aquaculture: any offending is likely to involve many individual fish; aquaculture is a commercial industry, on which low-level financial penalties would have negligible impact; and, given the highly technical nature of aquaculture operations, any offending in this context is likely to involve complex actions. As such, regulations would provide an appropriate mechanism to target low- to medium-level offending in the aquaculture industry.

Codes of Welfare

Part 5 of the AWA details the purpose and process for the issuance of codes of welfare

(codes). Codes expand on the basic obligations in the AWA by establishing minimum standards and recommending best practice for the care and management of animals.298 Codes are not in themselves legally enforceable. However, evidence of failure to meet a minimum standard in a code can be used as evidence to support a prosecution under the AWA. Codes can also provide a statutory defense for a person charged with an offence, if they can prove that the minimum

297 Id. 298 AWA 1999, section 68.

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standards in the relevant code were equaled or exceeded.299 Owners and persons in charge of animals are not required to observe the recommendations for best practice in a code, but are encouraged to, so that they might provide higher standards of welfare.300 An advantage of codes is that they are flexible enough to be modified and improved as scientific knowledge, good practice, and public expectations evolve.301 Codes may be issued in relation to animals who are owned by, or in the charge of, any person302 and may relate to, inter alia, animals used for purposes specified in the code.303 It would therefore be possible to issue a code specifically for aquaculture.

Codes have been issued for many terrestrial animals, covering a range of species and activities.304 There is no code for aquaculture – or for fish, or indeed, for any aquatic animal. Two existing codes contain some standards that apply to fish in aquaculture: Code of Welfare:

Commercial Slaughter305and Code of Welfare: Transport within New Zealand.306 There are some positive aspects of these codes, including the recognition of the importance of competent and well- trained, personnel in maintaining animal welfare. It is also commendable that the Slaughter Code

“encourages all those responsible for animals being commercially slaughtered to adopt the highest standards of husbandry, care and handling, and to equal or exceed the minimum standards.”307 The basic principles on which the Slaughter Code is based appear sound, including: pre-slaughter

299 See generally Codes of Welfare, MPI (Dec 23, 2019), https://www.mpi.govt.nz/protection-and-response/animal- welfare/codes-of-welfare/. 300 Id. 301 Id. 302 AWA 1999, section 681(1). 303 AWA 1999, section 69. 304 These codes, which are available on MPI’s website, include: cicrcuses; companion ; ; ; dogs; goats; and donkeys; layer hens; and alpacas; meat chickens; ostriches and emus; painful husbandry procedures; pigs; rodeos; sheep and beef cattle; slaughter of animals; temporary housing of companion animals; transport of animals; and zoos. 305 MPI, CODE OF WELFARE: COMMERCIAL SLAUGHTER (Oct. 1, 2018), https://www.mpi.govt.nz/dmsdocument/1409-commercial-slaughter-animal-welfare-code-of-welfare. 306 MPI, CODE OF WELFARE: TRANSPORT WITHIN NEW ZEALAND (Oct. 1, 2018), https://www.mpi.govt.nz/dmsdocument/1407-transport-within-new-zealand-animal-welfare-code-of-welfare. 307 MPI, CODE OF WELFARE: COMMERCIAL SLAUGHTER (Oct. 1, 2018), at 3, https://www.mpi.govt.nz/dmsdocument/1409-commercial-slaughter-animal-welfare-code-of-welfare.

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handling facilities and procedures that minimize stress; appropriate equipment that is fit for purpose; and an effective process that induces immediate insensibility, or an induction to a period of insensibility, without distress.308

The Transport Code states that it is consistent with the World Organization for Animal

Health (OIE) Aquatic Animal Health Code.309 However, this is questionable, given that the vast majority of standards in the Transport Code appear to be drafted with terrestrial animals in mind.

For example, only one indicator for Minimum Standard No. 2 (Conveyance and Container Design and Maintenance) relates specifically to aquatic animals.310

Both the Transport Code and Slaughter Code suffer from the same fundamental flaw – they are heavily focused on terrestrial animals, giving aquatic animals only cursory consideration.

They also appear to be based on a narrow function-based approach, addressing only “survival- critical” biological and physical needs. It is acknowledged that codes are designed to establish minimum standards for the care of animals. However, if the recognition of sentience in the AWA is to mean anything at all and if, as David Mellor proposes, we are seeking to ensure animals have

308 Id, at 3. 309 The World Organization for Animal Health (OIE) is recognized by the World Trade Organization as the standards setting body for the international trade in animals and animal products. The OIE’s broad objectives include, inter alia: ensuring transparency in the global animal disease situation; providing a better guarantee of food of animal origin; and promoting animal welfare through a science-based approach. The OIE’s Aquatic Animal Health Code (https://www.oie.int/standard-setting/aquatic-code/) provides standards for the improvement of aquatic animal health worldwide, including for farmed fish. The Aquatic Animal Health Code provide sanitary measures for the import and export of aquatic animals to prevent the spread of disease via international trade in aquatic animals and their products. The OIE has developed welfare standards for farmed fish as part of its Aquatic Animal Health Code, with respect to slaughter and transport. The OIE also publishes a Manual of Diagnostic Tests for Aquatic Animals (https://www.oie.int/standard-setting/aquatic-manual/), which provides laboratory testing for pathogenic agents that may adversely affect aquatic animals. The OIE standards and codes do not have the force of law; they are recommendations, but have been accepted and adopted by the OIE’s members. As such, each OIE member has committed itself to comply with those principles and standards (https://www.oie.int/standard-setting/overview/). 310 MPI, CODE OF WELFARE: TRANSPORT WITHIN NEW ZEALAND (Oct. 1, 2018), at 9 (“Water quality in tanks holding aquatic animals is monitored and oxygen, carbon dioxide and ammonia, pH, temperature and salinity are maintained within the range appropriate for the species”).

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“lives worth living,”311 then surely codes need to incorporate standards aimed at promoting positive affect and experiences.

Given the immense numbers of individual fish affected by aquaculture and their complex species-specific (and individual) needs, a strong case exists for a dedicated code for fish in aquaculture. It is acknowledged that drafting a code to cover different fish species would be a complicated (and perhaps impossible) undertaking. However, the transport and slaughter welfare standards for farmed fish, developed by the OIE as part of its Aquatic Animal Health Code, could serve as a broad template. An initial code could be drafted, setting out general principles that could be applied to different fish species. This could provide a basis for species-specific codes in the future. Given that salmon are currently the only finfish species farmed on a commercial scale in

New Zealand, this is not an insurmountable challenge.312

Finally, it is important to note that fish in aquaculture will only be protected effectively if the AWA is properly enforced. It is often said that New Zealand’s animal welfare legislation is among the best in the world but is undermined by poor enforcement – due largely to under- resourcing of the animal welfare sector. As a result, “overly selective enforcement, under- prosecution, insufficient proactive enforcement, and inadequate self-regulation” are hallmarks of

311 David J. Mellor, Updating Animal Welfare Thinking: Moving Beyond the “Five Freedoms” Towards “A Life Worth Living,” 6 ANIMALS (2016), 21. 312 In developing a code for salmon, it may also be useful to consult RSPCA (U.K.) Welfare Standards for Farmed Atlantic Salmon (Feb. 2018), https://science.rspca.org.uk/documents/1494935/9042554/RSPCA+welfare+standards+for+farmed+Atlantic+salmon +%28PDF+2.56MB%29.pdf/60ae55ee-7e92-78f9-ab71-ffb08c846caa?t=1557668417384 and RSPCA (Australia) Approved Farming Scheme Standards – Farmed Atlantic Salmon (Jan. 2019), https://rspcaapproved.org.au/wp- content/uploads/2019/01/2019-01_FARMEDATLANTICSALMON_InformationNotes.pdf (noting, however, that these relate to Atlantic, not King, salmon).

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the system.313 If the “systematic welfare compromises”314 seen in in terrestrial animal agriculture are to be avoided in aquaculture, sufficient resourcing and independent oversight are essential.

VI. RECOMMENDATIONS

It is considered that a proactive, preventative approach should be taken, wherever possible.

Given the challenges of assessing the welfare of individual fish in the context of an industrial aquaculture operation, and given the evidentiary challenges and cost of prosecuting animal welfare offences, it is considered that the most effective approach would be to increase awareness and understanding of the needs of fish, the potential for fish to suffer in aquaculture, and the opportunities that exist to improve their welfare. These recommendations are made in that spirit.

1) Develop a code of welfare for fish in aquaculture

• Codes of welfare exist for many terrestrial animals, covering a range of situations and

activities. There are no codes of welfare for aquatic animals in New Zealand.

• Given the rapid expansion of aquaculture and the number of individual fish affected by this

industry, development of a code of welfare for fish in aquaculture is long overdue and

should be prioritized.

• In line with the recognition of sentience in fish and contemporary understanding of animal

welfare, which recognizes the importance of positive mental states, minimum standards in

the code should be based on a range of qualitative and quantitative indicators.

313 MARCELO RODRIGUEZ-FERRERE ET AL., ANIMAL WELFARE IN NEW ZEALAND: OVERSIGHT, COMPLIANCE AND ENFORCEMENT (2019), at 3 https://ourarchive.otago.ac.nz/handle/10523/9276. 314 Andrew Knight, Should New Zealand Do More to Uphold Animal Welfare? 9 ANIMAL STUDIES JOURNAL (2020). 114, at 134, https://ro.uow.edu.au/cgi/viewcontent.cgi?article=1470&context=asj.

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• Over time, develop species-specific fish welfare guidelines, for different life stages and

aspects of aquaculture production (e.g. breeding, handling practices, transport, and

slaughter).

2) Develop animal welfare regulations for fish in aquaculture, based on minimum

standards established in the new code

• These could include regulations relating to standards of care, (e.g. water and environmental

conditions, stocking density, and handling practices) and surgical and painful procedures

(e.g. fin clipping and tagging).

• Together, the code of welfare and regulations would provide a suite of dedicated legal

standards for fish in aquaculture.

3) Invest in research that focuses on good welfare practices, with a view to continuously

improving the conditions in which fish are raised

• Those investing in such research might include the aquaculture industry and the

government.

4) Implement mandatory, ongoing training on fish welfare for all involved in the

aquaculture industry

• The aim would be to increase understanding of fish behaviour and welfare, with a focus on

continuously improving husbandry practices.

• Stakeholders required to attend training might include fish farmers, those responsible for

transporting fish, and slaughterers.

• Publish agreed set of competencies, which aquaculture workers must be able to

demonstrate (via independent audit) on completion of training and at regular intervals

thereafter.

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• This would provide a clear and measurable baseline against which to assess worker

competency.

5) Introduce requirement for aquaculture producers to meet minimum animal welfare

standards and implement a welfare assessment framework, as a criterion for

obtaining/renewing aquaculture resource consent

• This would provide a strong incentive for producers to, at the very least, adhere to

minimum standards.

• A welfare assessment framework, together with accurate record-keeping, would enable the

identification of incidents of welfare concern and enable them to be tracked.

6) Raise awareness and educate the public, consumers and policymakers about fish

• This would include education about fish sentience and the conditions of aquaculture.

7) Call on consumers, foodservice operators and supermarkets selling farmed fish to

pressure the aquaculture industry to implement minimum welfare standards

• One strategy could be demanding that suppliers rear fish at much reduced stocking

densities, and use only humane slaughter methods.

8) Mandatory labeling of fish and with animal welfare attributes

• Label would include the origin of the food and conditions in which the fish was raise

including any mutilations they underwent and method of slaughter.

• The aim would be to increase transparency in labeling, inform and empower consumers,

and counter the effects of “humane washing” and deceptive trade practices.

9) Implement independently accredited labeling scheme, whereby farms that implement

minimum (or better) welfare standards are rewarded

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• Farms that are accredited for their welfare practices receive an accreditation symbol (e.g.

a “jumping salmon” image on their product packaging”).

10) Install compulsory cameras in fish farms and

• This is consistent with calls for cameras in livestock slaughterhouses, on livestock transport

vehicles, and on fisheries boats.

11) Increase government resourcing for the Ministry for Primary Industries and the

SPCA

• Implementation of a code of welfare and animal welfare regulations is not enough – there

must be sufficient resourcing to enable effective enforcement of the AWA.

• It is hoped that this will lead to an increase in proactive inspections of fish farms, so that

welfare issues can be identified early and remedial or legal action taken.

12) Establish an Office of the Commissioner for Animals in New Zealand

• To ensure independent and effective oversight of the animal welfare system.

VII. CONCLUSION

The New Zealand Government’s vision for aquaculture is one of sustainable and ethically produced seafood. It is considered that the industry must also be driven by, and responsive to, the welfare of the individual animals without whom the industry would not exist. The abundance of scientific evidence indicates that fish are sentient and that there is potential for suffering on a large scale in aquaculture. It is therefore appropriate that we afford fish the same ethical consideration and legal protections as other vertebrates who are raised and slaughtered for food. The recommendations provided would go some way towards balancing the scales for fish.

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