Author: Jacques René Zammit

On the 11th of April 2015 the Maltese electorate will be called upon to express its opinion as to whether or not the derogation to spring hunting should continue to be applied. In short, layman’s terms the referendum will determine whether or not it will be possible to continue to hunt birds in spring. At least that is what we think is at stake. The issue is a minefield of controversies for a multiplicity of reasons. Hunting is notoriously a thorny issue, not least because of the hold that the hunting lobby has on the major political parties of the land. Also, since 2004 and full membership of the European Union, Maltese law has been complemented by the corpus of EU law, not least among which is the Birds Directive that includes what we tend to refer to as “the derogation”. Malta’s hunting practices have already been questioned under the terms of this directive and it got quite a few slaps on the wrist that time round. There is also the issue of an abrogative referendum. What is that about exactly and what effect does it have on the order of things?

As you can see it’s not that simple. As usual J’accuse is out to dispel some misunderstandings and research some truths for the benefit of the reader. Here is a list of observations on what is going on, in no particular order.

The Derogation

Let’s get this one out of the way, technical as it may be. What is this derogation and how does it fit in Malta’s hunting scene? Well it all begins with the Wild Birds Directive (the one we would label 79/409/EEC). I’ll let the Guidance Document on the directive tell you what it is about:

Council Directive 79/409/EEC on the conservation of wild birds (the so-called “Birds Directive”) provides a common framework for the conservation of naturally occurring species of wild birds and their habitats throughout the European Union. The directive owes its origin to the fact that wild birds, which are mainly migratory, represent a shared heritage of the Member States and whose  effective protection is typically a transfrontier problem entailing common responsibilities. The Birds Directive fully recognises the legitimacy of hunting of wild birds as a form of sustainable use. Hunting is an activity that provides significant social, cultural, economic and environmental benefits in different regions of the European Union. It is limited to certain species, listed in the Directive, which also provides a series of ecological principles and legal requirements relating to this activity, to be implemented through Member States legislation. This provides the framework for the management of hunting.

So that is the genesis – the why and how of the directive. You may have noticed that there is an emphasis on the idea of sustainable hunting and basic ecological principles that exist behind hunting within the framework of this directive. So, the basic rule under this directive is that killing birds is not allowed. Essentially the basic principle is the “conservation of all species of naturally occurring birds in the wild state” (article 1). Member states are not only encouraged to limit instances of hunting but also to take measures to “maintain population” of species and to encourage their preservation by, among other things creating protected areas (article 2).  [For an in depth look at the next few articles scroll down to the end of this post *].  Having described when hunting may be allowed and what species may be hunted we can now look at Article 9 which is the infamous derogation.

It’s quite straightforward really: member states may derogate (create an exception to) from the provisions of articles 5 to 8 where there is no other satisfactory solution for a number of listed reasons. The reasons are the following:

1. In the interests of public health and safety, in the interests of air safety, to prevent serious damage to crops, livestock, forests, fisheries and water, for the protection of flora and fauna.
2. for the purposes of research and teaching, of re-population, of re-introduction and for the breeding necessary for these purposes.
3. to permit, under strictly supervised conditions, and on a selective basis, the capture, keeping and other judicious use of certain birds in small numbers.

So. Let’s get one thing clear. The derogation is not a bespoke derogation that Malta negotiated and “acquired” in pre-accession talks. Forget the nationalist party claims that they had managed to acquire anything special and specific to Malta. It’s all bullshit and forms part of the general PLPN approach to butter the hunting lobby the right way. The derogation exists for everybody. The crux of the matter is that certain conditions need to be satisfied. To hunt outside the accepted levels of hunting (outside article 7 conditions) you have to fulfil certain criteria. A cursory look at the above list of conditions will immediately make it obvious to any reader that the exceptions relate to emergencies where birds become pests – a necessary cull because of a disease, air safety = shooting birds that hang around airports and imperil aviation, or killing birds that are threatening livelihood. Not exactly “il-kacca namur”.

There is an important phrase in article 9: “where there is no other satisfactory solution”. A member state must prove that not only is the species in question a pest (or required for research etc) but that the only satisfactory solution would be to hunt the buggers. That is a very tough onus of proof, one that Malta failed in 2008 before the court. So there. You now know what the derogation is and (bar some more technical info on reporting) how it works.

 Applying the Derogation – the History

So the way the derogation works is the following. Member states do not need permission from the EU to apply the derogation. They may go ahead and apply it if they believe that they fulfill the conditions that allow the use of the derogation. Member states are however obliged to report to the commission every time they make use of the derogation. This allows the Commission to monitor the use of the derogation and to take action if it believes that the Member state abused of it. In 2008 the Commission felt that the measures taken by Malta fell outside the scope of the derogation because the Maltese authorities failed to show that there was no satisfactory solution other than spring hunting the species concerned. The sole purpose of Malta’s use of the derogation, according to the Commission, was to extend the hunting season for species of birds.

It must be hard for the Commission to keep a diplomatic poker face when faced with Malta’s argument – that hunting of the species concerned was possible in autumn, ok, but we did not have enough birds to hunt. We get more birds in spring so hey, we should be allowed to kill them then. In fact the stats presented by Malta for 2005 showed that in spring 15,239 quails were “taken” while “only” 5,109 were “taken” in autumn. Turtledoves? 31,493 taken in spring and only 4,990 in autumn. At no point did Malta bother to justify the use of the derogation under any of the criterion required under article 9 of the directive. At most, Malta argued, the total prohibition on spring hunting would in practice lead to the entire prohibition of the hunting of the species.

In the end the Court rapped Malta’s wrists very strongly for that period, emphasising that there must be a balance between protection of species and certain leisure activities. The derogation must be used proportionately but Malta did not prove such proportionality given that it allows the killing of 3 times more quails and 8 times more turtledoves in spring than in autumn. That, for the record, was Lawrence Gonzi’s PN government arguing before the court to justify the spring hunting season. We can only infer today that Joseph Muscat’s government would do the same – given the PM’s declaration that he would vote in favour of spring hunting. Same same, but different.

The Legal Notice and the Referendum

So if we got punished by the court why are we still talking about it? Well it’s not that easy. The issue arises every season. A Member state can declare the next hunting season open – always with the necessary conditions being fulfilled. In Malta we have Subsidiary Legislation 504.94 entitled “Framework for Allowing a Derogation Opening a Spring Hunting Season for Turtledove and Quail Regulations”. Under Section 3 of the legal notice, the Minister may decide to open the spring hunting season (a maximum of three weeks in April) by means of a notice in the Government Gazette. Since the ECJ case a proviso has been added:

 “Provided that the Minister shall not open the spring hunting season when the hunting for the two species concerned during the previous autumn hunting season may be considered as having constituted a satisfactory solution in therms of Article 9(1) of Directive 2009/147/EC f the European Parliament and of the Council of 30 November2009 on the conservation of wild birds, and taking into consideration the thresholds established in Annex I”.

See? The discretion is available for the government every year under these regulations. Every year a spring hunting season may be opened – supposedly bearing in mind the conditions of the directive. Once it is opened and the government has made use of the derogation it is obliged to report to the commission – including birds bagged.

In Malta we have the possibility of an abrogative referendum. What the referendum initiated by petition is doing is kicking off a vote as to whether or not the legal notice that empowers the minister to set up a spring hunting season should be abolished. So if the people vote NO (don’t ask why, but maybe Joseph is banking on the fact that YES has a 100% record in referenda in Malta) the Legal Notice will be abolished and the minister will have no instrument to set up a hunting season. If the people  vote YES then nothing changes.

Party Opinions and binding the future

First off the parties. Joseph Muscat has declared he will vote in favour of spring hunting. The Labour party has not got an official position although we are supposed to assume that since they are accusing the PN of dilly-dallying then they are assuming that Joseph’s position is Labour’s position. The PN has stated that it will wait for an internal debate before taking a position. Somewhere I seem to have read that Simon Busuttil is in favour of regulated spring hunting. I strongly believe that the two main parties have long abdicated any right or duty to be opinion formers and leaders on this issue. Their historical dealings with hunting lobby is such that it would be preferable if they both wait for the people to speak and then act accordingly. It’s not a question of fence-sitting but a question of  (for once) listening to the electorate they represent.

But here is my biggest question. Let us assume a victory for those who want to ban spring hunting. Legally speaking all that would have been banned is the legal notice that empowers the minister to set up a spring hunting season. For obvious reasons the Wild Birds Directive, derogation and all, will remain applicable in Malta. Even if our parliament were to vote out the Legal Notice in question there is nothing – absolutely nothing – that binds future parliaments and prevents them from re-enacting an implementing legislation of the Wild Birds Directive. This leads me to conclude that the message of the forthcoming referendum is political more than legal. A strong victory for the LE ghal Kacca would be a strong message to the parties in parliament. Sure they could in the future try to re-enact another implementing bill but they would do so in strong defiance of public opinion and would have to face the consequences.

 

What should have been done long ago by any party that has the environment at heart is that the Wild Birds Directive should have been implemented to the letter. Rather than promising the impossible to the hunting lobby (and conservationists), the parties in government could and should have been busy applying the directive – even if that meant an impossibility of applying the derogation and therefore no spring hunting. It would take a smatter of intellectual honesty and political accountability and responsibility.

 

Perhaps it might have been too much to ask.

How to vote?

 

I hope this blog post has helped clarify any questions you may have had. If you hold the environment to heart and want to pass on a strong message to our main representative parties then do please go out and vote LE/NO on the 11th April. This blog will be backing the No campaign wholeheartedly.

 

 

 

 

[*] The Articles in Detail

 

The directive contains annexes that are lists of bird species. Annex I contains the untouchables – the birds that need special conservation measures due to, for example, a danger of extinction or vulnerability (article 4). States are also urged to extend such protective measures to species not listed in Annex I but that may be regularly occurring migratory species (very crucial for Malta). Article 5 is the “thou shalt not kill” bit. You cannot kill birds, you cannot destroy their nests, their eggs, keep their empty eggs. You cannot even disturb the birds particularly during their breeding and rearing. Also, you cannot keep birds of the species the hunting and capture of which is prohibited. Clear? Article 6 prohibits the commerce in birds (dead or alive).

 

Which brings us to Article 7. Which is where our dear Turtledoves and Quail come in. Due to the population level, geographical distribution and reproductive rate of certain species (such as the turtledoves and quail), hunting may be allowed under national legislation. Careful though. It is not a carte blanche. Conservation standards must be respected. Turtledoves and quail fall within this category. The fact that a species is in Appendix II/2 and therefore one for which hunting is allowed does not oblige a member state to allow hunting for that species. It is an option that is left to the member state, and one that it must implement using national legislation allowing for such hunting to happen. Furthermore the directive requires that member states ensure that the practise of hunting complies with the principle of “wise use and ecologically balanced control”. While the interpretations of the latter phrase may be controversial it is definitely not an open license to kill indiscriminately.

 

Article 7(4) also asks of Member States that they make sure that the species to which hunting laws apply are not hunted during the rearing season or during the various stages of reproduction. This was an important point that was raised when the Commission took Malta before the European Court as it was one of the problems that arose when it comes to hunting in spring. Article 8 prohibits the use of disproportionate means of hunting in any case. you cannot use a kalashnikov, dynamite or rocket launcher, nor can you hunt from any mode of transport.