Future of trapping to be decided tomorrow

The European Court of Justice is expected to publish its final decision on the lawfulness of trapping seven different species of songbirds during the autumn season tomorrow.

The decision could re-establish the ban on trapping mandated by EU laws, and possibly end a century-old tradition of trapping migratory songbirds flying south to Africa over Malta.

Contacted by MaltaToday, FKNK President Joe Perici Calascione augured that the judiciary will “apply the true spirit” of the directive which according to him leaves space for “exceptions whenever there are no alternatives.”

He also augurs that the judiciary will not ignore the principle of “cultural diversity” enshrined by UNESCO. Perici Calascione mentioned Austria as an example where trapping of song birds is allowed and valued as a cultural tradition.

“The European Union should respect the particular circumstances in each member state and should not apply a ‘one size fits all’ approach.”

Austria had obtained recognition of the practice as an Intangible Cultural Heritage by UNCESCO.

But according to Bird Life’s conservation manager Nick Barbara, the comparison with Austria is not tenable.

“The clap nets are far smaller than Malta’s, it operates on a catch-and-release basis, and it is limited to just 500 birds,” adding that the impact on birds was far smaller when compared to Malta where 4,000 trappers are allowed to trap 10 songbirds each.

He also dismissed the argument that trapping is a cultural tradition, insisting that this is nothing but trapping protected birds for “recreational purposes.”

“How acceptable is it to impact negatively on protected bird populations for the sake of recreation?”

Barbara expects the European court to uphold the opinion of the ECJ’s Advocate General that trapping should be banned.

In June 2017, Eleanor Sharpston stated in an opinion to the ECJ that the court should rule that by opening a trapping season for finches, the Maltese government would fail to fulfil its obligations to abide with the Wild Birds Directive.

Finch trapping is illegal under EU law, and only allowable under strict conditions. Sharpston stated that she was “entirely convinced that the present arrangements do not respect Malta’s obligations under EU law”.

The core of the Advocate General’s opinion is that she has turned down all of Malta’s arguments in relation to those conditions necessary to derogate from the trapping ban, namely: ‘judicious use’; trapping as a ‘tradition’; the argument that there is ‘no other satisfactory solution’; the use of clap-nets as a medium of capture that can be derogated; and the fact that these type of nets are a method of capture that is both large-scale and non-selective.

The Advocate General also questioned the capabilities of en-forcement, and expressed serious doubts as to the credibility of the methodology used by Malta.

She also expressed strong doubts that Malta can demonstrate that the populations of the seven species of finch can be maintained at a satisfactory level.

To the contrary, she stated that it may even be that there is some risk that the use of clap-nets by 4,000 licence holders over a trap-ping season of 73 days may, potentially, be “capable of causing the local disappearance of a species”.

But according to Nick Barbara much will depend on the “word-ing” of the sentence.

“If the wording is ambiguous, as was the case with the sentence on spring hunting in 2009, the government may still end up al-lowing trapping.

Malta was obliged to phase-out trapping for the seven species by 2009, but the outlawed practice was reintroduced in 2013 under a new Labour administration. The European Commission took the government to court in October 2015.

The seven species that are trapped are considered as songbirds in European Union states and are fully protected. Trapping with clap-nets and decoys is illegal in the EU

Political repercussions

The judgment also has political repercussions. Prime Minister Joseph Muscat has stood by the trapping community, aware of the voting niche they occupy, and has defended his decision to open up autumn trapping, arguing that the numbers caught are too small to leave an impact on the bird populations.

His position has strengthened Labour’s hold in Gozo and other rural areas. The government will not be allowed to appeal the decision and will have no choice but to honour it or risk massive fines which will be an unacceptable price to pay for taxpayers who do not engage in this hobby.

Although Muscat will not be personally blamed for a decision taken by the European court, a ban on trapping may swell abstentions in MEP elections due next year as trappers blame the EU for their fate.

But if the derogation on trapping is confirmed, Muscat’s standing among trappers will receive another boost and the environmental lobby will receive a second consecutive blow following the defeat in the spring hunting referendum which saw a slight majority in favour of retaining the hobby in spring.    

The decision could also release countless hectares of public and private land from trapping sites, which traditionally consist of clap-nets surrounded by live decoys in cages and others which are coerced to fly, as migrating birds pass over the trapping sites. But this would also depend on the willingness of the government to enforce the law.