Updated 5.15pm with government reaction

A government decision to hand over management of the Miżieb and Aħrax woodlands to hunters’ federation FKNK has been declared null and void.

In two separate judgements issued on Wednesday, a judge found that the secretive 2020 deal was null "from the start" as it had not been done according to the law. 

The 2020 guardianship deal, which was quietly signed in October 2020 at an event featuring ministers Ian Borg, Clint Camilleri and Aaron Farrugia with no prior discussion, should have been undertaken through an official public deed, an appeals court concluded.

In a brief statement, the government said it "took note" of the court decision. 

Apart from being given management rights over the two sites, totalling 1.5 million square metres of natural area, FKNK were allowed to use the woodlands as hunting areas for nine months of the year.

Public access was restricted to designated “picnic areas” within the two areas.

In exchange, FKNK had to pay a token €400 annual fee. 

The decision prompted public outrage and protests, and led to a coalition of NGOs to file court action to have the deal nullified. 

The NGOs – Birdlife Malta, Moviment Graffitti, Din l-Art Ħelwa, Friends of the Earth and private individual Edward Mallia - had argued that the deal was illegal as it effectively locked citizens out of public open space. 

Separately, another NGO, the Ramblers' Association, also filed court action to have the deal revoked. 

Both those court cases ended with victory for the activists on Wednesday. 

FKNK representatives and the government had defended the deal by making reference to a 1986 pledge to allow hunters to manage the areas. 

A first attempt to challenge the concession was thrown out by the Administrative Review Tribunal, which had ruled that the coalition of NGOs did not qualify as “injured parties” in terms of law.

That decision was subsequently revoked by the court on appeal and the case was sent back before the Tribunal.

However, the Tribunal threw out the NGOs' claims in January 2022.

The environmental NGOs appealed that decision, and on Wednesday an appeals court upheld their claims, declaring that the concession was effectively null.

Judge Lawrence Mintoff concluded that the government had signed over the two woodland areas illegally, as it had not done so as prescribed by law.

In a statement issued on Wednesday afternoon, the government said it "took note" of the court decision but again sought to justify the guardianship deal. 

"The Miżieb and Aħrax reserves have been administered by the FKNK since the 1980s, and the deal, which was published in full, sought to regulate a long-standing practice," it said.   

What the court concluded

The court concluded that the concession was null ‘ab initio’ (from the start) because it had not been done by public deed and did not follow the rules required when transferring public lands.

Those rules were intended to ensure greater accountability and transparency and to provide more information to the general public, the court said. They existed to ensure such transfers could by scrutinised by parliamentary representatives and public opinion.

Instead, the deal to hand over the woodlands to the FKNK was done by private writing, signed behind closed doors, with no media presence whatsoever, and without any public consultation and parliamentary debate.

Guardianship deals had to be done by public deed, with detailed plans attached and the areas that were publicly accessible clearly delineated, the court said. 

In this case, the Lands Authority handed extensive tracts of land over to the hunters’ lobby for use and management, making them a no-go zone for the public throughout the nine months covering the hunting season. The ban applied except for small-scale picnics in limited areas.

Who testified in the case?

The court heard testimony from several witnesses, including a minister and parliamentary secretary. 

Gozo Minister Clint Camilleri, whose portfolio includes hunting, testified that he didn't sign the concession agreement, nor suggested introducing a clause requiring guardians to be on site.

James Piscopo, who led the Lands Authority as CEO at the time the deal was signed, testified that the decision to only charge FKNK a nominal fee for the sites was a "ministerial one". 

That was confirmed by Ivan Meli, the private secretary within the parliamentary secretariat for lands. There was "political instruction" to reduce the fee because FKNK was not receiving public funds, he said. 

Meli said the decision to engage conservation officers was also a political one. 

Meli's boss at the time, junior minister Chris Agius, testified that he held several meetings with the FKNK before the deal was signed. The government did not have any set parameters when deciding how much to charge entities for the use of public land, he said. 

FKNK CEO Lino Farrugia testified that the lobby group did not have to hold a public consultation about the concession. Farrugia said the agreement made mention of the appointment of a number of conservation officers, but up to this day the sites are overseen by volunteers. 

Environment and Resources Authority CEO Michelle Piccinino said the authority was not involved in the agreement. It had not sought an environmental impact assessment of the sites. 

The acting CEO of the Lands Authority, Marisa Grech, submitted an affidavit in which she revealed that the FKNK had officially sought the concession in 2014. The process then kicked off in earnest in 2017, when then-junior minister Deborah Schembri advised the authority to proceed with setting up a management agreement. 

Lawyer Claire Bonello assisted the appellants.

A second legal victory

That activist victory was quickly followed by another in the case filed by the Ramblers' Association. 

The association, which organizes country walks in the area, had filed proceedings to review the decision taken by the Lands Authority.

Declaring the concession null ab initio, the court observed that since the intention behind the agreement was for FKNK to have a guardianship role, there were a number of procedural safeguards which ought to have been taken before the signing of that agreement.

The Lands Authority could not rely on the tacit approval of previous administrations, it said, or on an informal agreement dating back to the 80s. 

It had to give consideration to changes in Maltese law over recent years, in line with EU legislation and international obligations placed upon Malta in relation to the environment.

Lawyers Joseph Ellis and Martin Farrugia assisted the association.

NGOs: The sites should be declared year-round public areas

In a reaction, BirdLife Malta, Din l-Art Ħelwa, Friends of the Earth, Moviment Graffitti, Ramblers’ Association and Prof Mallia said the court's judgement was a historic win for social justice and nature. It also sent a clear message to the government that political will can only be implemented within legal parameters. 

Now that the deal has been annulled, the eNGOs insisted that the government should immediately declare the sites as public areas all year round.