[Coral-List] The Chagos MPA - what went wrong?

[Richard Dunne]

Many thanks to Jon Slayer for drawing our attention to this.

BUT DID THE COURT ACTUALLY CONCLUDE WHAT JON THINKS?

The quote that Jon cites is actually the English Court of Appeal (Lord 
Dyson, Lady Justice Gloster & Lord Justice Vos). It was considering an 
appeal from a decision of the High Court (Lord Justice Richards & Mr 
Justice Mitting).

The High Court had ruled that a leaked Cable from the US Embassy in 
London to the US Secretary of State in Washington sent on 15 May 2009 
was inadmissible as evidence under the 1961 Vienna Convention on 
Diplomatic Relations. The Cable was a record of a meeting on 12 May 2009 
between British Foreign Office officials (Mr Roberts & Miss Yeadon) and 
senior US Embassy staff during which Mr Roberts (amongst other things):

"asserted that establishing a marine park would, in effect, put paid to 
resettlement claims of the archipelago’s former residents", and that the 
UK’s “environmental lobby is far more powerful than the Chagossians’ 
advocates” and could therefore be used to defeat those supporting the 
Chagossians.

Unsurprisingly the British Foreign Office fought very hard both in the 
High Court and the Court of Appeal to exclude this leaked Cable which 
was highly prejudicial to their case.

In the High Court both Mr Roberts and Miss Yeadon were cross-examined 
about their recollection of the meeting which they agreed had taken 
place. They admitted that they had taken no notes at the time or 
afterwards but disputed the US account.

Because of their decision that the Cable was inadmissible, the High 
Court was denied the US evidence and was left solely with the testimony 
of Roberts and Yeadon as to what was said at the meeting.

Just 7 days earlier, Mr Roberts had written a Confidential Internal 
Memorandum to the British Foreign Secretary, saying that: "we should be 
aiming to calm down the resettlement debate. Creating a reserve will not 
achieve this, but it could create a context for a raft of measures 
designed to weaken the [Chagossian] movement.  This could include: 
.........   activating the environmental lobby". Part of the Memorandum 
is then redacted. Some may consider that there is a similarity here with 
what the US Embassy officials reported.

Ultimately the High Court decided the issue of whether the creation of 
the MPA had been made for an 'improper purpose' on the basis of the 
motivation of the Foreign Secretary alone. This is found in paragraph 74 
of the judgment as follows:

This material makes it clear that it was the personal decision of the 
Foreign Secretary to declare an MPA on 1 April 2010, against the advice 
of his officials.  There is no evidence that, in doing so, he was 
motivated to any extent by “an intention to create an effective 
long-term way to prevent Chagossians and their descendants from 
resettling in the BIOT.

So they were careful to dissociate the motives of the officials (Roberts 
or Yeadon) from those of the Foreign Secretary.

There was then an appeal to the Court of Appeal which decided that the 
High Court had been wrong to rule that the Cable was inadmissible. 
Having decided this, it then went on to say at paragraph 93 of its judgment:

"We therefore conclude that, even if the cable had been admitted in 
evidence, the court would have decided that the MPA was not actuated by 
the improper motive of intending to create an effective long-term way to 
prevent Chagossians and their descendants from resettling in the BIOT.   
In other words, the court’s ruling that the cable was not admissible had 
no effect on the proceedings and is not, therefore, a ground for 
allowing the appeal."

This the full context of what Jon erroneously mis-quotes. What the Court 
of Appeal was doing here was endorsing what the High Court had concluded 
at paragraph 74 above. Because of this it did not have to say whether it 
considered that Mr Roberts (the BIOT Commissioner) was motivated to 
prevent Chagossian return or whether the US Embassy account was or was 
not true.

So perhaps the most credible evidence remains that of US Embassy 
officials and this is a true reflection of what Roberts was thinking. 
After all, what reason did US diplomats have for making this up? They 
could have hardly known that their Confidential Cable would be leaked a 
year later by Bradley Manning.

Having read all the evidence and seen the witnesses cross-examined I am 
inclined to prefer the account written up within 3 days of a meeting to 
the attempted recall from memory 4 years later of Foreign Office 
officials whose reputation was in question.

THE SHEPPARD LETTER - THE MPA BASED ON THE BEST AVAILABLE OR BAD SCIENCE?

I have not yet seen New Scientist but the text of the letter posted on 
the Chagos Conservation Trust (CCT) website appears to differ from that 
quoted by Jon Slayer below. The first sentence reads:

"Designating the Chagos Archipelago a no-take Marine Protected Area 
(MPA) was based on the best available science not ‘bad science’, as 
suggested in Fred Pearce’s article (29 September 2014, New Scientist)."

So was the 'science' the best available or 'bad'. Well as far as the 
merits of the MPA for pelagic fish and their bycatch are concerned, the 
science relied upon by the advocates of the MPA can be found in a report 
commissioned and paid for by the Pew Environment Group, written by 
conservationists from the Zoological Society of London (ZSL) which was 
ultimately published in the journal Marine Pollution Bulletin whose 
Editor is Charles Sheppard. It is perhaps no coincidence that all 
concerned were ardent advocates for the no-take MPA, but that alone does 
not make it bad or questionable science.

I would suggest that readers should make up their own minds on this by 
looking at the review in Advances in Marine Biology Vol 69 - The 
creation of the Chagos Marine Protected Area: a fisheries perspective. 
Unashamedly I admit to being an author of that review along with Nick 
Polunin, Peter Sand and Magnus Johnson.

My own conclusion - it was poor and unreliable conservation-minded 
science, both at the time and now.

That doesn't mean I think the idea of the MPA was wrong, just that it 
was not necessary for the protection of pelagic fish. A smaller MPA 
(53,270 km sq) would have adequately protected the reefs and inshore 
areas.  The 640,000 km sq MPA lulls us into a false sense of security 
that we are achieving our global targets for protecting the oceans.  We 
need MPAs but they must be in the right place for the right reasons, and 
based on sound science.


Richard Dunne

On 17/10/2014 19:41, Jon Slayer wrote:

A letter is published in New Scientist by Charles Sheppard as Chair of 
the Chagos Conservation Trust in response to the opinion article by Fred 
Pearce recently. Part of the letter responds yet again to the erroneous 
claim that the conservation of Chagos, specifically the creation of the 
marine reserve, was done to prevent the return of Chagossians. As many 
of us know, a High Court judgement of March-April (Bancoult vs Secretary 
of State, before Lady Justice Gloster and Lord Justice Vos) states, 
after a detailed 93 paras, that: ".the MPA was not actuated by the 
improper motive of intending to create an effective long-term way to 
prevent Chagossians and their descendants from resettling in the 
BIOT."The text of the letter is inserted below.'

 From Charles Sheppard, Chair, Chagos Conservation Trust.

Designating the Chagos Archipelago a no-take marine protected area (MPA) 
was based on the best available science. The precautionary principle was 
rightly applied to ensure that lengthy deliberation did not allow 
further destruction of the world's most pristine coral reefs. Policies 
should, of course, be reviewed as further scientific evidence comes to 
light. In the case of Chagos, new research continues to corroborate the 
decision to protect this unique ecosystem.

It is misleading to claim that the no-take policy is another barrier 
preventing the displaced Chagossians from returning to the islands. The 
MPA declaration states that the level of protection would be reviewed – 
in full consultation with the Chagossians – in the case of resettlement.. 
A mere 2.8 per cent of the world's ocean has any protection, with only 
0.6 per cent fully protected, well below international commitments. With 
the cleanest sea water in the world and a staggering diversity of marine 
life, the Chagos Archipelago is a site of resilience within the heavily 
overexploited west Indian Ocean. It is an underwater sanctuary that 
deserves to be afforded the ultimate protection.

Warwick, UK




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