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

 

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

A future for the birds

 

Next Saturday we will be voting to give a future to the wild birds that migrate to Malta. By removing from Malta’s statute book the legal notice that permits the spring hunting of quail and turtle dove, Maltese voters will bring Malta in line with its obligations.

Nowhere does the Conservation of Wild Birds Directive of the European Union or Malta’s treaty of adhesion to the European Union permit spring hunting as a sport. The basic rules in the Directive, in fact,  prohibit the killing of wild birds in spring. The only permissible exceptions are related to aviation safety, the protection of public health and safety, and the prevention of serious damage to livestock, agricultural crops, fisheries and water as well as the protection of flora and fauna. Hunting as a sport does not feature anywhere in the list of reasons as a result of which a derogation from the duties spelt out in the EU Directive is permissible. It is a Directive that deals with the conservation of wild birds and not with hunting!

The Conservation of Wild Birds Directive of the European Union has been an integral part of Maltese law since – and as a result of – Malta’s  accession to the EU in 2004. It expressly states that EU Member States along migratory bird routes have a far greater responsibility for the conservation of wild birds. This  responsibility is very clearly spelled out in article 7(4) of the Directive, where it is stated that : “In the case of migratory species, [Member States] shall see in particular that the species to which hunting regulations apply are not hunted during their period of reproduction or during their return to their rearing grounds.” This applies to all bird migratory routes throughout  EU territory without exception.

Prohibiting spring hunting is not a question of numbers. It is not an issue of establishing a number of birds that can be shot without such a shoot-out having an impact on the bird population. It is an issue of principle. And there should be no playing around with principles. Wild birds require protection during the time of year when they are most vulnerable – in the period leading up to, and during,  the breeding season, that is spring.

Besides, the populations of both quail and turtle dove do not have a favourable conservation status in the EU and, as a result, are subject to  management plans. The aim of these management plans is to restore the species to a favourable conservation status. The EU management plan for quail, for example, specifically states that “Spring hunting that overlaps with the return migration or the start of breeding should not be permitted under any circumstances.”

The EU Management Plan for turtle dove, on the other hand, states: “of particular concern is hunting during the spring migration, which is practiced outside the EU and (illegally) in some other Mediterranean countries.”

This is the subject of the referendum: the future of wild birds in Malta in the spring.

There are, however, other issues that will be decided as a result of the 11 April referendum. Banning spring hunting on Maltese territory will remove a major obstacle which is impeding  access to the countryside to our families because of the dangers and arrogance of the men with the guns.  It will put the bullies roaming the countryside in the spring in their proper place.

This bullying is still going on, because in recent days we have had one of the leaders of the hunting lobby stating that, in the event of a victory for the NO vote in the referendum, the abolition of spring hunting might be contested. It comes as no surprise that the hunting lobby has no respect for the democratic will of Malta’s voters. Its members have repeatedly been sending clear signals that they are allergic to the democratic process. For years, they have  been holding  the parliamentary political parties to ransom. They have also presented a petition requesting the practical abolition of the right to call an abrogative referendum. Fortunately, the government had the good sense to ignore that petition!

A No vote on 11 April is hence also a vote on democracy. It will give a clear message to everyone of the ability of Maltese voters to decide. In the process it will liberate the parliamentary political parties from the clutches of their blackmailers.

published in The Malta Independent on Sunday: 5 April 2015

The 11 April vote : not against hunters

 

The issue to be decided upon on 11 April is whether Malta should accept or repeal the regulations that permit spring hunting.

In fact the question asked in the referendum is as follows : Do you agree that the provisions of the “Framework for Allowing a Derogation Opening a Spring Hunting Season for Turtle Dove and Quail Regulations” (Subsidiary Legislation 504.94) should continue in force?

On the 11 April we are expected to answer this question. A YES signifies agreement with spring hunting while a NO will abolish spring hunting from Malta’s statute book. It will also bring Malta in line with the Wild Birds Directive of the European Union.

The Wild Birds Directive is about the protection of biodiversity and not about facilitating hunting. As has been emphasised by university students on the campus this week, the focus of the referendum is sustainability. It is not about pleasing hunters but about our duties as a nation to protect wild birds. We have a duty, as a nation, to protect wild birds. We have a duty -all of us- to protect nature. In particular, we have a duty to prevent the loss of biodiversity.

Spring is the time when birds fly over Malta on their way to their breeding grounds. Malta, as one of the member states of the European Union along the route used by wild birds on their way to their rearing grounds, has a special responsibility to ensure that these birds are not hunted and can safely reach their destination.

The permissible exceptions are limited and very specific. These exceptions are known as “derogations”. The Wild Birds Directive permits the killing of wild birds during spring if these are a threat to aviation security. Likewise, the killing of wild birds in the spring is permissible if they are agricultural pests or else pose a sanitary threat. The Wild Birds Directive does not, in any way, permit the killing of birds for fun.

There are a number of inaccuracies being bandied around by the hunting lobby during this referendum campaign. They state, for example, that Malta has negotiated a derogation relative to spring hunting.  This is incorrect. No EU member has negotiated, or can negotiate, any spring hunting derogation. Derogations are not designed to suite the interests of individual states and the rules regulating such derogations are spelt out clearly and are applicable to all member states in equal measure.

The decision of the European Court of Justice (ECJ) in 2009 is also being grossly misinterpreted and quoted out of context. The ECJ decision does not in any way condone spring hunting. It does, in fact, chastise Malta for infringing the Wild Birds Directive during the period 2004-2007 and concludes that, by authorising spring hunting of quails and turtle doves  from 2004 to 2007, Malta has failed to comply with the Wild Birds Directive. (ECJ decision C-76/08 dated 9 September 2009) The reports on the derogations unilaterally taken by the Maltese government to permit spring hunting from 2008 to date are still being evaluated by the European Commission.

These are briefly the issues which the 11 April will decide. As a direct consequence of abolishing spring hunting, in addition to shouldering our responsibilities as a nation to protect wild birds during their breeding time we will have the added benefit of reclaiming the countryside during spring.

This abrogative referendum is a democratic tool which is being utilised for the first time by civil society in Malta. It is being used because, over the years, the parliamentary political parties preferred to listen to the hunting lobby which repeatedly warned them: “No hunting no vote”   and had them on a leash.

Maybe this time they will take heed, that even environmentalists have a vote.  It is not a vote against hunters, but a vote in favour of wild birds and their protection. It is a vote in favour of our environment and in favour of Malta .

published in the Malta Independent on Sunday: 22nd March 2015

Protecting the birds, reclaiming the countryside

 

The abolition of spring hunting will lead to the protection of birds when they most need it. All birds will be protected, not just the quail and turtle dove.  Birds need our protection during the spring as it is the time of the year when they breed or are preparing to breed. Every bird which is shot during spring signifies that there will be one less nest and consequently there will be fewer birds in the following seasons.

The Birds  Directive of the European Union is an integral part of Maltese law since, and as a result of, Malta’s EU  accession in 2004. The Directive expressly states that EU Member States along migratory bird routes have a far greater responsibility regarding bird protection. This responsibility is spelled out in article 7(4) of the Directive where it is very clearly stated that : “In the case of migratory species, [member states] shall see in particular that the species to which hunting regulations apply are not hunted during their period of reproduction or during their return to their rearing grounds.” This applies to all bird migratory routes throughout EU territory without exception.

The Birds Directive is not a Directive about hunting but about the protection of birds. It does, however, recognise that circumstances may arise as a result of which it may be necessary to permit an exception, which exception is called “a derogation”. Exceptions are very well defined in article 9(1) of the Birds Directive (vide box) and these are the only circumstances in respect of which an EU member state may derogate from its obligations under the Birds Directive. It follows that whilst EU members have the authority to permit an exception, such an exception, or derogation,  must be within the three general parameters determined by the Directive. It is not a right but a tool for addressing the specific situations mentioned in the Directive. Readers will very easily notice that the permissible derogations make no reference to the killing of birds for fun – commonly referred to as “hunting”.

Member states permit thousands of derogations in their territory every year. Derogations in respect of birds that are considered agricultural pests or a potential threat to the safety of aeroplanes are the most frequent cases where derogations are permitted. I am informed that the list of these thousands of derogations all over EU territory does not contain one single case which refers to a derogation for the purpose of sports during spring. Malta is the only exception.

Being on a migratory bird route means that Malta has an international responsibility to protect all birds returning to their rearing grounds to reproduce. This return occurs annually during spring, hence the need to abolish spring hunting. It is a duty we have towards the international community in respect of all the birds migrating through Maltese airspace.

The abrogative referendum, in respect of which Malta’s Constitutional Court decided that no valid objections had been filed, will ask voters whether or not they agree with the regulations that permit a spring hunting derogation for two specific species: turtle dove and quail. These regulations are contained in the Framework for Allowing a Derogation Opening a Spring Hunting Season for Turtle Dove and Quail Regulations, originally published in 2010.

Voting NO on the 11 April  will protect  birds migrating over Malta during spring as well as restore back to the public access to the countryside at that time of the year. It will also eliminate the negative impact (through the sound of gunfire and the trampling all over the countryside) which will further help to attract and allow other breeding birds (not just quail and turtle dove) to nest in our country.

Currently, Malta’s countryside is practically inaccessible during the spring hunting season as one runs the risk of being showered with hunters’ pellets. Maltese families have very little access to the countryside when hunters are enjoying their spring derogation- and a number of them shooting at anything that flies.

This means that Maltese families and their children are being deprived of enjoying nature in all its splendour. We are all entitled to enjoy the countryside, which belongs to us all and not just to a select few. This enjoyment is currently being obstructed by the spring hunting derogation which the Parliamentary parties have been defending continuously.  It is about time that we reclaimed our right to fully enjoy nature in spring, while simultaneously allowing birds to continue breeding.

A total of 41,494 citizens signed a petition which has resulted in the abrogative referendum that will be held on 11 April 2015. This is a unique opportunity to protect the birds and help re-establish our families’ links with nature during the spring.  Let us use this opportunity well by voting NO, thereby rejecting the regulations contained in the spring hunting derogation and consigning spring hunting in Malta to the dustbin of history.

 

published in the Independent – Sunday 18 January 2015