The court should not uphold a request by BirdLife to stop spring hunting for turtle dove because it does not have any basis at law, a lawyer from the State Advocate’s office argued in court on Thursday.
Charlene Muscat was making her arguments after BirdLife Malta asked a court to stop spring hunting for turtle dove, claiming the authorisation by the government breached EU law.
Muscat said that according to law, an application for an injunction was an attempt to stop something from happening.
In this case, the attempt was to stop a legal notice from coming into force when this had already happened.
She added that Birdlife had failed to prove “irremediable harm” in the manner that the law dictated.
Birdlife lawyer Mark Soler rebutted that the killing of 1,500 turtle doves was in itself harm that could not be remedied in any way.
The spring hunting season opened last Sunday while hunting for turtle dove was set to go ahead between this Sunday and April 30 with a national bag limit of 1,500 birds. There had been a moratorium on the hunting of turtle dove since 2017, but the Ornis committee voted to lift it last month.
BirdLife: Derogation cannot be invoked
BirdLife said it is requesting a judicial assessment on how this year’s spring hunting season was permitted, claiming that according to EU regulations, turtle doves are vulnerable and a derogation to allow hunting cannot be invoked.
Moreover, Soler argued that a derogation must be subject to judicial control. He insisted before Madam Justice Audrey Demicoli that the court had the power to stop any provision of a national legal system that might impair the effectiveness of community law.
Muscat rebutted that the law was already in force so there could be no procedure to stop its application. Had this been at all possible, everybody would be filing injunctions to stop the law, effectively freezing the state from legislating.
'No evidence' turtle dove is threatened - State advocate
She said there was no evidence that the turtle dove was a threatened species. The legal notice in question was issued following a recommendation by the Ornis Committee on the basis of scientific studies.
Muscat said that according to data issued by the European Environment Agency, turtle doves were not a threatened species in Malta. 1,500 of them, which was Malta’s permissible bag limit, was less than one per cent of the turtle doves that fly over Malta.
“Birdlife Malta’s arguments do not hold water. They did not trust their own proceedings because they filed an urgent request for the matter to be referred to the European Court of Justice,” she said.
She said the warrant for an injunction should not be used as a “legal threat” or as an “arm-twisting tool”.
She insisted that there was no irremediable prejudice if the hunting season for turtle doves were to open as planned on Sunday.
Lawyer Anthony Borg, also from the State Advocate’s office, said the European authorities never opened infringement proceedings for the non-transposition of the Birds Directive and that Birdlife was simply putting pressure on the court to abstain from hearing the case and refer the matter to the European Court of Justice.
He said Birdlife was expecting the government to withdraw a law when the society knew that the Ornis Committee had made its recommendation on March 16. Instead, it left it until the last minute to pile extra pressure on the court.
Madam Justice Demicoli, who refused to allow the FKNK hunters' federation to appear as a party to the case, despite the strong presence of hunters in court, said she will decree in chambers. She did not indicate when.
BirdLife was also represented by lawyers Claire Bonello and Philip Manduca.