Malta’s finch-trapping at the European Court of Justice

goldfinches and linnets

 

On May 1, 2013, Roderick Galdes, Parliamentary Secretary responsible for Hunting and Trapping announced that a technical loophole had been found “that would allow the Government to present proposals to the European Union to allow bird-trapping in autumn.” The European Commission has not been impressed and the loophole referred to by Roderick Galdes will shortly be examined by the European Court of Justice.

During the negotiations leading to Malta’s accession to the European Union, bird-trapping had been one of the areas referred to in the treaty itself. In fact, the Treaty of Adhesion provided for a transition period at the end of which bird- trapping in Malta was to cease permanently. The cut-off date was 31 December 2008.

This limited concession was subject to a number of conditions relative to the setting-up of a captive bird  breeding programme which was to be introduced by 30 June 2005 as well as to carry out various studies intended to establish the numbers and types of species held and bred in aviaries as well as their mortality rate and their replenishment to sustain the genetic diversity of the captive species.

All this was ignored, notwithstanding the fact that, way back in 2004, the authorities had  detailed advice as to how this was to be implemented.

This is the current state of play: the interpretation of the rules as accepted on the date of Malta’s EU adhesion.

 

Earlier this week, the Commission of the European Union decided to refer Malta to the European Court of Justice because Malta is not committed to end finch- trapping. The following was stated by the Commission in an explanatory press release:

“The case concerns Malta’s decision to allow the live capture (i.e. trapping) of seven species of wild finches as of 2014. In the EU, the capture and keeping of bird species like finches is generally prohibited. However, member states may derogate from the strict protection requirement if there is no other satisfactory solution, and if the derogation is used judiciously, with small numbers and strict supervision. As these conditions have not been met in this case, the Commission sent a letter of formal notice in October 2014, urging Malta to refrain from allowing finch-trapping. Despite this warning, Malta went ahead as planned with the opening of a finch-trapping season in 2014. In response, the Commission sent a reasoned opinion to Malta in May 2015, urging Malta to end the practice. Malta has replied, contesting the Commission’s analysis. Since Malta has not committed to end finch-trapping, the Commission has therefore decided to refer Malta to the Court of Justice of the EU.”

In a background note the Commission further noted:

“In Europe, many species of wild birds are in decline, and markedly so in some cases. This decline disturbs the biological balance and is a serious threat to the natural environment.The EU Directive on the conservation of wild birds aims to protect all species of wild birds that occur naturally in the Union. The Directive bans activities that directly threaten birds such as deliberate killing or capture, destruction of nests and removal of eggs, and associated activities such as trading in live or dead birds, with a few exceptions. It also places great emphasis on the protection of habitats for endangered and migratory species, especially through the establishment of a network of Special Protection Areas (SPAs).

Article 9 of the directive provides limited scope for derogations from the requirement of strict protection where there is no other satisfactory solution, for instance, in the interests of public health and safety or air safety, to prevent serious damage to crops, livestock, forests, fisheries and water, and for the protection of flora and fauna. Derogations may also be permitted for the purposes of research and teaching, repopulation, reintroduction and for the breeding necessary for these purposes.

Malta was allowed a transitional arrangement in the Accession Treaty to phase out the trapping of finches, taking into account the time required to establish a captive breeding programme. The transitional arrangement expired in 2008.

The case concerns the live capture of seven species: chaffinch, linnet, goldfinch, greenfinch, hawfinch, serin and siskin.”

Published in The Malta Independent on Sunday – 27 September 2015

Advertisements

The elephant in the room

elephant-in-the-room

 

When Malta’s EU accession negotiations approached the final stages, a merger of the then Planning Authority and the Department for the Environment was announced.

While the merger was the right thing to do, it was done in a hurry and as a result, an organised Planning Directorate overshadowed an understaffed Environment Directorate.  A number of  civil servants employed in the former Environment Department had refused to go along to MEPA, thus further diluting the newly established Environment Directorate. This was further exacerbated by long spells during which the post of Environment Director was vacant. This did not involve weeks, but years. Currently, in fact, there is no Environment Director in place- the post having been vacated around two years ago.

The Environment Department was then one of the youngest departments in the civil service which, overnight, as a result of EU accession had to shoulder responsibility for a substantial portion of the EU acquis for which it was largely not equipped. The situation has slightly improved over the years. The previous administration declared many times that it would bridge the gap in human resources, but, unfortunately, it never lived up to its declarations. As a result, the Environment Directorate was, and still is, overshadowed. In addition, to make matters worse, the consolidated authority was (and still is) led by a Board in which environmental knowledge  was (very) scarce. This was the perfect recipe for a good initiative not to yield any results by design.

Malta requires more consolidation of environmental governance, not its fragmentation. Further consolidation will increase the chances of being more effective in coordinating related areas of policy: land-use planning and environment protection are two such areas. Fragmentation, on the other hand, increases ineffectiveness. However, mergers require commitment and resources – both of which have been manifestly lacking.

The potential fruits of the merger would only have been reaped if the consolidated MEPA had been led by an Environment Directorate. Unfortunately, it was designed differently: a combination of bad design and an absence of good faith.

The solution to this problem is not to reverse the merger but rather to reverse the roles of land-use planning and environment protection in a consolidated MEPA, meaning that land-use planning should be subjected to rigorous environmental control. Unfortunately, this was never on the cards, nor is it contemplated in the de-merger bills. The agenda of the parliamentary political parties has always been very clear: to ensure that land-use planning is subject to the least possible environmental controls in the interests of the development lobby.

This is the elephant in the room. The PN in government implemented this objective by a merger of a highly organised Planning Directorate with a weak but dedicated Environment Department. Labour has opted to achieve the same objective through fragmentation.

At the end of the day, the government’s misguided de-merger will not  cause additional damage: it will be more of the same, as we have been accustomed to throughout the years. The attainment of the full potential of the newly-created authorities will be postponed until such time as they are inevitably reunited under the leadership of a revamped Environment Directorate.

In the meantime, other important issues in the projected legislation can be focused upon. The manner of appointment of boards and top officers of the newly created authorities is one such issue.

Having the Minister’s trust is not a sufficient requirement justifying appointments to boards and authorities – and this not just with reference to appointments of an environmental nature. It would be appropriate if the competence of those selected for office is scrutinised in public. Other democracies, the United States of America for example, regularly use public hearings as an instrument for carrying out such  public scrutiny for a number of appointments of national importance.

In its 2013 election manifesto, Alternattiva Demokratika  specifically proposed the adoption of this method in order to examine the government’s nominees to public bodies. In particular, AD proposed  that government nominees to land-use planning, environment and resource-management boards (including directors and CEOs) should not take up their post until Parliament’s Environment and Land Use Planning Committee had examined such nominations in public and signified its consent thereto. Such a public hearing  should be carried out to establish whether the nominees are suitable for the posts to which they have been nominated.

Were nominees  required to subject themselves to such a public hearing, Malta would  definitely have a much better crop of administrators than that which it has been accustomed over the years. This would also reinforce the notion that administrators of public authorities are, at the end of the day, accountable to the whole country and not just to the government Minister who nominates them for the post.

The merger of land-use planning and environment protection at MEPA should be strengthened by ensuring that the Environment Directorate calls the shots. It is, however, equally important to ensure that those nominated to lead the authority (irrespective of whether we have one or more) are suitable for running the show.  Parliament should thus reclaim back its powers and vet the government’s nominees in public. When this has been done, we will be able to state that we have commenced down the path to improving environmental governance. Otherwise, it will be more of the same for many years to come.

published in The Malta Independent on Sunday – 12 July 2015