Updated | "Values don't change" - BirdLife to continue fighting Spring hunting court case after injunction setback

A judge has dismissed an injunction aimed at preventing the opening of the Spring hunting season this year, in a decision which strikes a blow at conservation efforts, in what has come to be an annual exercise in futility.

In April, BirdLife Malta had filed an application for a warrant of prohibitory injunction that would have held the Spring hunting season from being opened this year.

The environmentalist NGO had based its request for the injunction on scientific studies which showed that turtle dove populations were falling on a regional level and not just locally, insisting that this was principally due to Malta’s permitting the hunting of the species in Spring.

In his decision to reject the injunction, Mr. Justice Francesco Depasquale said that there was no doubt that the turtle dove population was in fact, in decline, but expressed scepticism at the claim that the principal cause for the loss of the species could be mainly attributed to “two weeks of hunting in April on the tiny island of Malta, which this court observes is nothing more than a rock in a big sea dividing Africa and Europe.” 

The judge also observed that this was the third time that BirdLife Malta had applied for a similar injunction on identical grounds

The first injunction was not successful because the court dealing with the issue had ruled that the Legal Notice they were contesting - Legal Notice 116 of 2022 - could be attacked through an ad hoc action and their stated interest would not be irremediably prejudiced by its refusal as they still had the option to dispute the legislation in the appropriate forums. 

The second injunction was unsuccessful because the court decided that issue had observed no change of circumstances that could lead it change the position taken with regards to the first injunction. With regards to the third attempt, the court said it was expecting the applicants to exhibit documentation and evidence demonstrating that there had been a substantial change in the circumstances that should lead the court to discard the previous decisions and issue the requested injunction.

“This court, however, does not consider that any of the facts listed by the applicant association can in any way be considered as a considerable change of circumstances that could in any way lead this court to grant the request for issuing the current injunction. 

“In no way can the court consider that the opening of such a case and/or that such a case is pending, should be considered as a basis for the current injunction to be accepted.” 

That said, the claimant association should have asked that court, aware of all the facts of the case, to take the appropriate provisions, if it deems necessary to protect the interests of the claimant association, and not require another court, which is not in possession of all the information, to make such a decision - this cannot but be considered a clear and glaring case of 'forum shopping' where the organisation tries its luck with an identical request to that filed in  previous years, in the hope that a different judge would grant it.” 

The Wild Bird Regulation Unit had drafted a detailed and well-studied report that was considered and discussed during the meetings of the Ornis Committee, and that eventually led to the final decision being taken to open the hunting season for the year 2024 with various limitations imposed, said the judge.

BirdLife "disappointed" but remain resolute 

Reached for comment, BirdLife CEO Mark Sultana said the organisation's volunteers were disappointed at the decision, but would not let this setback stop them from continuing their work. 

“We are disappointed that we did not convince the court, mainly because such requests are decided on prima facie evidence and we were precluded from arguing the merits. We came up with arguments which were not challenged by the court or in the judgement. While I think there are some worrying comments in the conclusions, of course we respect the court’s decision and accept that the injunction for 2024 has not gone through. We will continue our work in the case on the merits and will ensure that it receives all the resources and reports necessary for the court to take a sound, solid decision, not only about the past but also for possible future Spring hunting seasons, until the birds are in a favourable situation.”

Sultana disagreed with the suggestion that the injunctions were an annual exercise in futility. “It is not futile because it is important that we continue to try. Values don't change and one does not simply stop because of a hurdle. It is true that it is very hard to convince a court about a scientific topic on a prima facie basis, because it’s very difficult to see the reality of it, but it’s something which we cannot not do, and something that we will continue to do in future.”