Wildlife laws exist to protect wildlife, not people | Mark Sultana

On Wednesday, the Advocate-General of the European Court of Justice issued an ‘opinion’ regarding Malta’s annual derogation to permit the trapping of wild finches, in apparent breach of the European Wild Birds Directive.

As opinions go, this one seems pretty clear-cut to me. In a nutshell, AG Eleanor Sharpston rejected all the government’s arguments to justify the derogation; she argued that Malta had clearly failed to fulfil its obligations under the Accession Treaty, and recommended that the European Court issue a ruling which reflects this view.  

Yet it remains, at this stage, just an opinion. What will eventually count more is the European Court verdict itself: and few await that ruling with greater anticipation than BirdLife Malta’s CEO, Mark Sultana... whose NGO, incidentally, has been making much the same arguments about finch-trapping for years.

Surely, Sultana must feel just a little vindicated by Sharpston’s report. But how confident is he that the ECJ will indeed bring about the end of finch-trapping in Malta? What is the chance of a surprise verdict that somehow overturns this preliminary indication?

“The European Advocate General’s opinion is very significant to us... even if, as you say, it is ultimately advice to the judge to pass a sentence based on that opinion. There is around 99% chance that the verdict will be exactly what is written here. The sentence itself might be different, however: depending on the judge’s interpretation. It could be that Malta is found guilty, but may be given a year to phase out trapping, for instance. There could even be fines... though we, as BLM, would not like to see that happen. We are, after all, trying to protect birds here... not to harm the country.”

All the same, ‘harming the country’ is a criticism frequently levelled at BLM... naturally, by the hunting lobby. Yet what Sharpston’s report also throws into focus is precisely the question of who is really to blame for any ‘harm’ that may arise. It stresses, for instance, that Malta had repeatedly been warned by the Commission to desist from applying this derogation... yet the present government went ahead anyway.  Now that the ECJ seems poised to rule against Malta... who would really have to shoulder responsibility for the consequences? The people who tried to stop this from happening... or the ones who doggedly pursued this illegal policy from the outset? 

“Let’s go back a bit in history: before 2003, Malta was planning to join the EU. At that stage, there was an Accession Treaty being drawn up. Part of that involved understanding how EU legislation would affect Malta, and how Malta would cater for it. On the trapping issue, it was very clear-cut from the EU’s perspective. There were no two ways around it: trapping is not allowed in Europe, for all the reasons laid down in this ECJ opinion.

“So what happened? We agreed to phase it out. Malta and the EU shook hands over an agreement that, once we were members, we would start phasing out trapping all the way until 2008. And we did. In 2009, there was no trapping in Malta. Now: one can argue whether the government at the time, which was a Nationalist government, put enough resources into the captive breeding programme that was supposed to replace trapping. Maybe that wasn’t taken seriously by the trappers, or by the government at the time.

“But when there was a change in government, and Labour came in, there was the famous statement by [parliamentary secretary] Roderick Galdes that they had found a ‘loophole’... or ‘crack’, or whatever... and therefore could apply a derogation on finch-trapping. His statement was based on false advice... wrong advice... wishful thinking... call it what you like, but it was basically wrong. We were basing our own position on what we knew; on the experiences of other countries; and on European law. The ECJ opinion has solidified all those arguments.

“What does this mean for us? First of all, it means that it is very likely that the ECJ will find Malta in breach of the Birds Directive, and while we hope there won’t be any fines, we do expect that trapping will have to stop in Malta. That, ultimately, is the most important issue. The second thing is that this opinion shows that BLM means well. We were giving the right advice to the government for the benefit of the country. Of course we have our mission: we want to safeguard nature, etc. But what we do is ultimately for the common good. We don’t do it for our members... for those who voted ‘yes’ in the referendum. We work for the benefit of the whole country. Be it safeguarding nature, or be it saving us from the shame of being found guilty at the ECJ... we were actually giving the right arguments.” 

BLM were not the only ones urging the government to change tack... most independent media took editorial positions along the same lines, and – much more significantly – Malta’s Attorney General also advised the government against pursuing the derogation. We all know there are political undertones to this issue... but did the government really expect to defy so much advice, and somehow get away with it? Or did it know all along that the quest was futile, but felt compelled to honour its pre-electoral pledges anyway?

“There could be several reasons. It could be because the government was looking at the issue only from the perspective of its political agenda. We’ve always said this: the government needs to start taking decisions based on scientific facts and legal advice, and not on the basis of its own agenda. This is a clear case. The government was given both scientific and legal advice not to open the trapping season. The local AG had warned them that they didn’t have a solid case. But there was a decision to go ahead... and it was a political decision. We keep repeating this ad nauseam, but it needs to be repeated: political decisions and wishful thinking do not add up to any form of justification for a derogation.” 

At the same time, however, the ECJ’s opinion is limited to the trapping of seven species of finch. Malta also applies another trapping derogation, for song thrush and golden plover. Strangely, however, the Commission only seems interested in putting a stop to one of those two trapping derogations... even though, as Sultana mentioned earlier, trapping of any wild birds is illegal all over the EU. Why are we allowed to trap some species but not others?

“The reason why they separated those two derogations is that there are certain technicalities that are different: for example, the quotas, the types of net you can use, etc. Secondly, because these species are listed under two different annexes: thrush and plover are ‘huntable’ species; finches aren’t. So there was a more solid argument for the EU to say Malta should not be trapping finches. But the fact remains that trapping for song thrush and plover is still against the law. In fact, we ‘derogate’... which is another way of saying, ‘we break the law, but feel we have justification to do so’.  If you can justify the derogation, fine. But if you can’t, then you will be taken all the way to the ECJ...”

Yet this has only happened in the case of finch trapping. Does this mean that the derogation to trap song thrush and plover is justified?

“It depends. If you’re asking for the opinion of BLM, we would say ‘no’. If you’re asking what the Wild Birds Directive says, we would say ‘no’ as well. However, the Commission also believes it is a breach, because it started infringement procedures on those trapping seasons too. But it chose to concentrate on the battle it felt it was likelier to win. The procedures over song thrush and plover have been shelved in the meantime. What I think is going to happen, at prosecution level, is that they will look at this document [the European AG’s opinion], and apply any arguments that also relate to those other two species. And there are several: the use of clap nets; the fact that there are big reservations about the way trapping is regulated and controlled; and also the issue of ‘tradition’. The AG’s view is very clear: ‘tradition’ is no excuse to break the Birds Directive. The same arguments listed out in this opinion can be used against Malta when it comes to the derogation for plover and thrush.”

There does, however, seem to be a slight discordance between the way the European Union approaches wildlife protection laws, and the way these laws are interpreted locally. From the outset, the Commission argued that Malta’s trapping season poses a danger to the conversation status of the birds themselves. (Sharpston even suggests that the scale on which trapping takes place here was “capable of causing the local disappearance of a species”). The government of Malta, on the other hand, has consistently approached European law on the basis of how it could be circumvented for the benefit of trappers... without any apparent consideration for the welfare of wild birds. Would Sultana agree with this (admittedly generic) assessment of mine? And if so... what are the environmental implications?

“At one point, the AG’s opinion specifically explains – and this was something we had also said often during the referendum campaign – that the Birds Directive is there, not to regulate hunting or trapping... or to govern human activity... but to protect birds. That is the spirit of the law. Maltese legislation, which is in line with the Directive, is also there for the same reason. Why do I specify this? Because when you understand that the law is there to protect birds, you also realise that any changes to the law must respect the same spirit. You cannot change the law to accommodate a particular lobby group. You cannot change it to try and find a loophole to circumvent the system.

“The reason we have those laws is to protect and preserve a world heritage, not to give ‘rights’ to people to hunt or trap. The gist of legislation on nature in general should be, as it is in Europe, focused on safeguarding nature. This is why we get frustrated when environmental laws are amended by means of legal notices: as happened in the case of taxidermy laws. Now, everyone can be a taxidermist without a licence or any regulation. Locally, you can do that sort of thing. But not at European level. This is also why the people wanted to join the EU. Sovereignty only goes so far: if the government does something which is in breach of European law, it can be brought to book by the Commission...”

Experience doesn’t always bear that out, however. Malta was also taken to the ECJ over spring hunting; and in 2015, the ECJ delivered a ruling which has been given different and conflicting interpretations ever since. In its immediate effect, it forced Malta to keep the spring hunting season closed. But it also seemed to suggest that spring hunting could be legally carried out in Malta... so much so, that Malta eventually re-opened the season, and has not faced any further infringement procedures. Isn’t there a danger of something similar happening with regard to finch trapping? 

“Yes, there is a risk that – even if the AG’s opinion is very clear – the ECJ may deliver a ruling which ‘opens a window’, so to speak. My personal opinion, and that of people I spoke to who studied this document, is that it is highly unlikely that the ECJ will be in any way lenient with their verdict in this case. Hopefully they will be lenient with the sentence, though...”

When is the verdict expected?

“Knowing that the trapping season usually starts around mid-October, I’m assuming that by end September it will be out. It makes no sense to allow the season to open, then inform the country that it has to be closed...”

But isn’t that exactly what happened in the case of spring hunting?    

“Not exactly: there was a difference. Because the status of turtle dove was ‘vulnerable’, the ECJ took what is known as an ‘interim measure’: the moment they took us to court, they also ordered Malta to close the season. It was something they enforced, and the Maltese government had no choice but to abide by that decision. In the same way, if this verdict is clear-cut the government will have no choice... unless it wants to defy the ruling and incur unnecessary fines and sanctions.”

Even before factoring in any fines, Maltese governments under both administrations have already incurred considerable expenses fighting these legal battles in Luxembourg. Does BLM have any idea of how much these cases have so far cost the taxpayer?

“No. I have no idea. I think the public should know, however. We have a situation where the local AG warned the government not to go ahead; but for some reason, the Wild Birds Regulation Unit always argued that there was a case. We ended up hiring a foreign legal team to present the case in Europe – I don’t know how much that cost, but I can’t imagine it would have been cheap – and now we are almost certainly going to lose the case.

“I think the people have a right to know how much all this has cost... and eventually we will know at least part of the answer. On the same lines as your question, the AG’s opinion also specifies that Malta will have to fork out the Commission’s expenses, too. I think it’s only fair for the public to know how its tax-money is being spent, and why. But having said all this: from our perspective at BLM, the issue is not about expenses. No amount of money, gained or lost, can ever compensate for the loss of nature. Nature is priceless...”