[WATCH] The finch that lays the golden egg | Steve Micklewright

It hasn’t been a great week for Birdlife Malta, nor (one could argue) for Birdlife in general. In the last days we have seen a recommendation by the Ornis Committee – the entity tasked with regulating issues affecting birdlife conservation, including hunting and trapping – to permit the trapping of seven species of finch, five years after this practice was effectively phased out by the end of 2008.

This marks a dramatic return to the situation before five years ago, and suggests that the acquisitions made on the environmental and conservation front as a result of EU membership may be whittled away right under our noses.

Coming so soon after the re-opening of spring hunting following a two-year EU-imposed moratorium, it seems we are sliding backwards to the pre-accession standards of wildlife protection. Birdlife Malta is (as its name suggests) opposed to all this; but it is also a member of the Ornis Committee and took part in all the discussions leading to this unexpected development.

I meet its director Steve Micklewright at BLM’s Ta’ Xbiex offices with a view to finding out what actually happened at Ornis this week. What is BLM’s actual position on trapping, and what did it bring to the table during what was by all accounts a long and detailed discussion?

“The accession treaty to the EU makes it very clear that the phasing out of finch trapping was meant to be done in five years, and was meant to become illegal after that,” he begins. “What we’ve seen over the past few years was a lot of illegal finch trapping, and government now seems to be minded to make it legal again through a derogation from the Birds Directive.”

This directive is the main article of European legislation governing bird conservation, and it explicitly forbids hunting during the breeding season (i.e., spring), and trapping in general. Derogations are special exemptions from EU law, and are governed by conditions laid down in Article 9 of the Birds Directive. Government has already applied a derogation on spring hunting, and now seems dead set on using this precedent to wriggle out of Malta’s commitment to end trapping according to the accession treaty.

“Of course we oppose that on principle. The Birds Directive explicitly forbids trapping of birds, therefore we think this is something Malta should not even consider. Having said that, it became very clear to us that the government was strongly-minded to reintroduce finch trapping.

"Even before the Ornis Committee met, there were reports in the newspapers that it was going to decide to allow finch trapping. It was a done deal, a fait accompli. With Ornis you have to remember it is heavily weighted in favour of government; there are three government-appointed representatives who outnumber everybody else.

"Even if FKNK and Birdlife agreed on something, and the government didn’t agree, government would still win. So whatever Ornis decides is really a rubberstamping exercise…”

With all that in mind, BLM made its objection to finch trapping clear to Ornis, and voted against it. “But we also put together proposals that were very clearly aimed at minimising the damage that trapping would cause to the wider environment. We asked Ornis to make certain that trapping would not take place on the most important habitats…”

Micklewright explains that trapping involves clearing away the surrounding landscape to make way for clap-nets, and this has a detrimental effect on the surrounding ecosystem.

“We tried to limit the damage, even though we were in principle against trapping altogether. We felt this was a mature way of approaching what we felt was a done deal anyway.”

Yet the situation doesn’t seem to be clear-cut. Micklewright is adamant that trapping is illegal under European law; but as all saw in connection with another related issue – spring hunting – this does not necessarily preclude it from taking place. The much-cited European Court ruling of 2009 has been interpreted to permit a limited spring season by means of a derogation.

Hunters argue (and Ornis recommended) that the same should apply to trapping. But there is also considerable confusion surrounding the precise meaning of the term ‘derogation’ and how such exemptions are meant to be applied. What exactly is the purpose of a derogation, and what sort of conditions must be in place to apply one?

“The Birds Directive is very clear on what can and cannot be done and derogations can only be applied on very specific circumstances.” Micklewright here reads from a print-out of the celebrated Article 9, which lays down the necessary conditions.

“These include: health and safety, air safety… damage to crops, so if it’s a pest species… protection of other wildlife: so if it’s an invasive bird, maybe, that’s causing more native birds to disappear… then that would be acceptable. There’s also this thing in there called ‘judicious use’: for me that would be something like research. It certainly isn’t hunting and trapping.

However, when the European Court of Justice made its ruling about spring hunting, it said – which we feel is incorrect – that ‘hunting in autumn’ was not a sufficient replacement for hunting in spring. And therefore a limited season could be acceptable. We fundamentally don’t accept that, when 41 species of bird can be shot in unlimited numbers.”

Here I interrupt to ask if I’ve heard correctly. If that’s what the European Court ruled, surely there is no option but to accept the ruling? (On a separate note, the ‘41 species’ refer to all species which are shot – illegally – during spring.

Part of the objection to spring trapping also concerns inadequate levels of law enforcement, which this year once again prevented widespread illegalities of the kind recorded by BLM and CABS, a German birdlife conservation NGO. The derogation actually only allows for the taking of two species – turtle dove and quail – but as Steve Micklewright later reminds me, these are classified as ‘vulnerable’ and ‘in decline’ all over Europe; and their conservation status wasn’t given sufficient weight when deciding to allow hunting).

Micklewright acknowledges that the ECJ ruling must be respected. “But I think we have to look at what the ruling says, what it does, and get it challenged. This is what we’ve been seeking to do by campaigning with MEPs and the European Commission. We are trying to get that looked at again. It needs to be challenged because we feel it’s incorrect.”

All along there is the possibility that the ruling has simply been misinterpreted. In actual fact the ECJ ruled against Malta for opening spring hunting seasons between 2004 and 2007. Hunters (and also the government) have seized on a single sentence that suggests that autumn hunting is not a ‘satisfactory solution’ to spring… but as already pointed out, there are other conditions for a derogation to be successfully applied. There are also earlier court rulings that clearly stipulate that recreational hunting cannot be considered ‘judicious use’.

Case C-182/02 of 2003, for instance, ruled that “the use of birds for recreational hunting cannot, in any event, be considered judicious and, accordingly, acceptable for the purposes of the 11th recital in the preamble to the Directive”.

Isn’t it possible, then, that what we are looking at is a simple misapplication of the ECJ ruling… in which case there would no need to challenge the ruling, but only the interpretation?

“The ruling is being interpreted by the Maltese government, by the Commission, that a limited, controlled season for turtle dove and quail would be acceptable. That’s the interpretation that people are putting on it. Our job is to challenge the European Commission on its interpretation of its ruling, and that is what we are actively doing.

"We are working with MEPs across 10 countries within the EU to get the Commission to look again. The species are in such decline, and the ruling is so out of line with the other rulings by the ECJ you quoted, that something is deeply flawed here. That, at the moment, is the way we are seeking to institutionally challenge spring hunting at the European level.”

On another level, the re-legalisation of trapping appears to be a regressive step which undoes the advantages of EU accession, at least on the environmental front. Naturally Malta is a divided country on this point, but it seems reasonable to ask the director of Birdlife Malta – whose bias is known to one and all – to comment from the perspective of the many who are no doubt disappointed by this backward slide in nature protection, and who would view such a decision as ‘obscene’.

"At face value, government seems to have completely neglected the issue of wildlife protection when approaching both hunting and trapping, and European institutions seem to have done likewise. What does this tell us about the level of commitment to nature protection by both the government of Malta and the European Union?

“For me it demonstrates the determination of the Malta government to fulfil its commitment that it made before the election to the FKNK to provide it with ever more privileges. This is yet another sign of that deal being fulfilled.

"It says to me that the Maltese government, including the Wild Birds regulation Unit, who are the people responsible for working out what can and cannot be done to wild birds on Malta, are trying to provide concessions for hunters, above all other interests: conservation, the environment, and the wider interests of the people of Malta. Those don’t seem to come into the equation, when hunters’ and trappers’ demands are being considered.”

That, he adds, is as far as Malta is concerned. “At EU level, it seems to indicate to me a level of weakness in the European Commission, which we are seeing in many other situations across Europe. The Commission appears weak at the moment. All the commissioners are about to change; we’ve just had MEP elections, so the EU and all its institutions are going through a period of change.

"So perhaps this is the most difficult time to challenge things from an environmental perspective. But very soon the new MEPs will be in place and doing their jobs, a new Commissioner for the Environment will be in place… that’s the time which we feel we need to go back to the European Commission and EU generally, and say: spring hunting on Malta should not be allowed any more – the Birds Directive is very clear on that – and trapping (not just of finches, but the other derogations for turtle dove and golden plover) should not be allowed either. Finch trapping especially was part of the accession treaty. It’s all a no-brainer: you (the EU) need to act. Now is the time to act.”

Meanwhile, there seem to be other anomalies surrounding the work of the Ornis committee. Micklewright earlier mentioned the WBU: under scrutiny it turns out that its director, Sergei Golovkin, also doubles up as the secretary of Ornis Committee. But in comments to this newspaper, Ornis chairman Mark Anthony Falzon admitted that the only legal advice Ornis sought was from the WBU… which in practice means the committee asked its own secretary for legal advice. Isn’t this a little odd?

“When the Wild Birds Regulation Unit was set up, we raised a number of concerns. One of them was that it wasn’t at an arms’ length from the government. It was within the ministry; and I think what we’re seeing is that the WBU is doing the job it was set up to do, which is to deliver on the government’s agenda with regard to hunting and trapping. That’s its main purpose and that’s what it does.

"It is delivering government policy, without – I think – due diligence and operating in a very biased way… as opposed to providing Ornis and the government with objective overviews of the situation that decisions can be made upon. We said that from the very start. After the WBU was established we were prepared to give them a fair go, but I think we are increasingly seeing that they’re just there delivering very one-sided work that enables concessions to be given to hunters and trappers.”  

Matters have meanwhile escalated on account of two separate initiatives: a petition to force an abrogative referendum on spring hunting – BLM is part of the coalition of NGOs behind the campaign – and a counter-petition by the hunters’ lobby to block the referendum in order to protect ‘minority rights and privileges’. How does BLM counter the claim that its own campaign for an abrogative referendum ‘endangers’ minority rights?

“I think it is time we explode a few of the myths and spurious claims being made about this issue. This has nothing to do with minority rights. We are talking about a hobby, a pastime, and the simple truth is that all hobbies and pastimes are regulated.

"Take fireworks for instance” – the hunters’ petition in fact directly targeted fireworks enthusiasts as being ‘next in line’ for similar treatment – “You can’t have a fireworks display without regulations and controls. Everybody accepts this, starting with the fireworks enthusiasts themselves. If you allow free-for-all, you’ll end up with a disaster. So fireworks are regulated, as it should be. It’s the same for hunting.”

Micklewright also points out that it is absurd to suggest that the abrogative referendum might be used to ban fireworks or any other hobby… when it is not even being used to ban hunting. “We are not even talking about a total ban on hunting. Only a ban on hunting during the breeding season, which is unacceptable from a conservation perspective. Our aim is not to get rid of hunting, but to put in a context of adequate controls and regulation. Hunting in spring is unsustainable.”

Micklewright insists that the issue boils down to science and biology – the very areas that were not given due consideration by the entities making all the decisions.

“The reality is that 90% of individuals in most bird species do not survive their first year. Out of 10 eggs hatched, only one or two hatchlings will become mature breeding adults. By permitting shooting in spring, you are permitting the shooting of the minority that has survived the migration from Africa, and which represents the strongest and most genetically valuable specimens, just before they breed. You can’t compare this to hunting in autumn: the impact of spring hunting on breeding bird populations is devastating.”

If hunters truly believed in conservation, he adds, they would see this for themselves. “All we’re saying is you shouldn’t kill the goose that lays the golden egg.”