Legal basis for banning Spring hunting
Hunting in Spring is an activity which
is banned in all Member States of the European Union. The basis
of such a ban is two fold:
According to article 7(4) of Directive
79/409EEC, "Member States shall … see in particular
that the species to which hunting laws apply are not hunted during
the rearing season nor during the various stages of reproduction.
In the case of migratory species, they 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".
Article 7(4) is clear in its wording,
and no leeway whatsoever is allowed to Member States to adopt
a less stringent interpretation of its provisions. This is in
line with what is stated in paragraph 8 of the preamble to Directive
79/409EEC, i.e. that the species of wild birds naturally occurring
in the European territory of the member states constitute a common
heritage, and that "effective bird protection is typically
a trans-frontier environment problem entailing common responsibilities".
Furthermore, the Bern Convention on the
Conservation of European Wildlife and Natural Habitats, which
has been signed and ratified by the European Union, prohibits
hunting in Spring as well, by virtue of the provisions contained
in articles 4(3), 6(c), 7(3) and 10(2) of the same Convention.
Hence, one finds that according to article
4(3), the Parties to the Convention must undertake to give special
attention to the protection of areas that are important for the
migratory species specified in Appendices II and III and which
are appropriately situated in relation to migration routes as
wintering, staging, breeding, moulting or feeding areas. Article
6 (c) prohibits the deliberate disturbance of wild fauna particularly
during the period of breeding, rearing and hibernation, in so
far as disturbance would be significant in relation to the objectives
of this Convention.
Killing, capturing or trading in birds
is not prohibited by the Convention, but article 7.2 stipulates
that "any exploitation (of Appendix III species) must be
regulated", in order to keep the populations out of danger,
taking into account the requirements of article 2, which requires
the contracting parties " to maintain the population of
wild flora and fauna at, or adapt it to a level which corresponds
in particular to ecological, scientific and cultural requirements,
while taking account of economic and recreational requirements
and the needs of sub-species, varieties or forms at risk locally".
Article 7.3 requires Parties to take various measures to implement
article 7.2 including closed seasons. As for article 10.3 of
the Convention, it requires Parties "to co-ordinate their
efforts for the protection of the migratory species specified
in Appendix II and III whose range extends into their territories",
Maltese Legislation
In the light of the above, it would appear
to be clear that the Maltese Government cannot hope to successfully
implement the environmental acquis without ensuring that hunting
in Spring is banned in Malta. Nevertheless, Maltese biodiversity
protection legislation to date not only fails to prohibit hunting
in Spring but allows such an activity without any significant
restrictions.
Our current rules regulating the extent
of the hunting and trapping seasons derive from the Protection
of Birds and Wild Rabbit Regulations, 1993 (Legal Notice 146
of 1993), as amended by subsequent regulations namely the Protection
of Birds and Wild Rabbits (Amendment) Regulations, 1996 and the
Protection of Birds and Wild Rabbit (Amendment) Regulations,
1997 (Legal Notices 45 of 1996 and 23 of 1997 respectively)
The above regulations, which were all
made by virtue of the powers granted to the Minister in charge
of the environment under the Environment Protection Act, 1992,
permit the hunting season on land during a period of seven months
- from the 25th March to the 22nd May and from the beginning
of October to the end of February. Moreover, under these regulations,
trapping is permitted for a period of almost eight months - from
the 1st of March to the 22nd of May and from the beginning of
September till the end of January.
Resident species almost non-existent
So acute is the problem of indiscriminate
hunting in Malta that there are almost no resident species of
wild birds on the Islands. The few that manage to survive usually
share most if not all of the following characteristics: they
are either so small that they do not provide an adequate target
to hunters, or have an unattractive plumage and call which do
not attract the attention of hunters or trappers, or are insectivores
which cannot survive out of their habitat. These include the
Spanish sparrow, tree sparrow, Sardinian warbler, spectacled
warbler, cetti's warbler and zitting cisticola. Yet a few other
birds such as the Cory's shearwater, European storm-petrel and
blue rock thrush inhabit and nest in almost inaccessible places
such as the tops of seacliffs.
If given a chance, a number of other
birds would certainly breed in Malta on a regular basis, as these
have already been recorded breeding over here. Amongst such birds
are the peregrine falcon, starling, quail, turtledove, barn swallow,
house martin, short-toed lark, moorhen and little ringed plover.
No amendments to Maltese legislation
envisaged
Although the Maltese Government has already
started to implement the environmental acquis, at least insofar
as legislation is concerned, no move has as yet been made to
alter the hunting and trapping regulations. Nor is there any
hint whatsoever of any intention on Government's part to amend
them in the near future. Admittedly, the fact that an election
is approaching does complicate matters for Government, since
there are over 12,000 hunters in Malta and Gozo, plus some few
thousand trappers, who are known not to be averse to voting in
such a way as to have the best chance of continuing to practice
their hobby. But neither this fact nor any other circumstance
can be an adequate excuse for lack of implementation of the acquis.
There are talks presently going on between
an association of Maltese hunters and BirdLife Malta which are
intended to provide a means of resolving the issue of hunting
and trapping in Spring amongst other matters. However, no conclusive
results have as yet been obtained. The problem is that there
is in reality hardly any room for agreement, as most hunters
are adamantly opposed to the abolition of the Spring hunting
season, and will probably not be swayed by other concessions
that Government might offer to make, such as a reduction in the
current hunting license fees or help in breeding game birds on
the Islands in order to provide the hunters with more quarry.
There is also the issue that a significant number of hunters
are members of other hunting associations, and are therefore
not represented in these talks. If some form of agreement were
to be reached, this lack of adequate consultation would most
surely be resented.
Enforcement
Moreover, enforcement of the hunting
laws is still of the same poor standard as it was prior to the
opening of negotiations between Malta and the EU. If and when
Government manages to find the courage to abolish hunting and
trapping in spring, there will remain the problem of ensuring
that the law is respected.
The Environment Protection Department
(EPD) remains lacking in adequate facilities to carry out its
role as an environment watchdog. Though doing the best it can
in the circumstances, it is suffering from a lack of adequate
human resources. It lacks the amount of personnel needed to carry
out regular inspections of the countryside, both with and without
police presence. Such regular inspections would serve to curb
abuses as soon as they start, and possibly even pre-empt their
occurrence.
A larger complement of staff would also
enable the EPD to spare more persons for studies in Malta and
abroad, thus increasing their efficiency. At the moment, for
example, most Environmental Inspectors either do not have any
sort of qualification, or else are in possession of a degree
in an area which is only related to environmental management,
such as biology or chemistry. The same goes for Environment Officers,
with regard to the co-ordination of the work of the Department.
Yet another problem arises in connection
with police action. The branch of the Police Force in charge
of enforcing environmental laws and regulations, namely the Administrative
Law Enforcement (ALE) unit, suffers from the same limitations
of the EPD, in that it is understaffed and desperately short
of personnel possessing specialized training. In addition, it
is also poorly equipped, especially where marine-based operations
are concerned. Its sea craft are few in number and no match for
the high-speed craft of hunters, who can thus evade capture AND
pursue their quarry with equal ease!
The poor enforcement of local hunting
laws, specifically those concerning protected species, has other
serious legislative implications, since it prevents Government
from being able to comply with the provisions of the Bonn Convention
on Migratory Species of Wild Animals. Malta is not yet a party
to this Convention, but it will have to ratify it as part of
the environmental acquis of the European Union.
Suggested remedial measures
There are a number of measures which
Government may take in order to bolster the enforcement of hunting
legislation. To begin with, the weaknesses in Government's enforcement
mechanism have to be identified and dealt with.
Therefore, Government must embark on
a thorough capacity-building exercise at the EPD, providing the
said Department with enough funds:
1) to enable the recruitment of an adequate
number of qualified personnel;
2) to enable the Department to offer an adequate pay packet to
its current and prospective personnel
The issue of funds is usually a difficult
hurdle to overcome, since Central Government is usually very
wary of giving raises to select categories of people within the
public service. However, the Environment Protection Act, 2001
provides for the possibility of the establishment of an agency
which would be separate from Government and would be charged
with handling environmental affairs. If the relevant provisions
are adopted, the Department would thus be replaced by an agency,
and the current limitation on wage increases would be overcome.
As for the ALE, it is suggested that
Government should either increase the number of personnel attached
to the unit, or else set up a separate unit to deal exclusively
with environmental offences. It is no excuse to say that financial
constraints due to the Islands' small size make either solution
impracticable. The Maltese Government has to acknowledge that
environmental protection is crucial to the physical and psychological
health of Malta's population, and act accordingly.
Conclusion
In conclusion, it seems that the Maltese
Government will have to put in a lot of last-minute effort to
meet the requirements of the environmental acquis on hunting
and trapping in spring. Unless the intention to carry out the
necessary reforms is genuine and is furthermore manifested with
the greatest possible determination, it is unfortunately highly
likely that Government will fail to deliver what is expected
of it under EU law in this area of environment protection.
