Updated 10.50am with FKNK reaction

Birdlife’s attempt to stop spring hunting for turtle dove has been turned down by the court, effectively allowing hunting of the bird species to begin on Easter Sunday. 

The court revoked a provisional injuction issued earlier this week as part of Birdlife’s legal bid. It delivered the decree from chambers, after the parties made their arguments on Thursday.

Spring hunting for turtle dove will take place between April 17 and 30 with a national bag limit of 1,500 birds. 

Gozo Minister Clint Camilleri, whose portfolio includes the Wild Birds Regulation Unit that oversees hunting and trapping, celebrated the decision in a post on Facebook. 

"What is ours, remains ours," Camilleri wrote. 

Birdlife Malta had sought a referral to the European Court of Justice, but that request was rejected by the First Hall, Civil Court, presided over by Madame Justice Audrey Demicoli. 

The court noted that the questions that Birdlife wanted the ECJ to interpret concerned the warrant of prohibitory injunction - a procedure regulated by domestic law that was not a matter of interpretation.

Even if the court were to uphold Birdlife’s request, the questions were not properly formulated in terms of the European Treaty, the court said. 

Birdlife had also asked the court to order a prohibitory injunction as “interim relief”, and cited a previous such instance in a case filed by rule of law NGO Repubblika concerning the appointment of judges and magistrates. 

But the court also rejected that request, noting that the Repubblika request concerned a human rights claim brought before the First Hall, Civil Court in its constitutional jurisdiction.

This application filed by Birdlife did not concern human rights and this court was not a constitutional court, said Madam Justice Demicoli.

Moreover, an injunction and interim relief were two distinct procedures that could not be considered as one and the same, said the judge.

Birdlife’s request was to be considered within the procedural framework for the issue of an injunction, meaning it had to prove a prima facie (at first glance) right that such an injunction was necessary to safeguard that right, and that it would suffer prejudice unless its request for the injunction was upheld.

When the other party was the government or some other constitutional authority, the applicant had to also prove that the action was planned and that if it went ahead as planned, the applicant would suffer a disproportionate prejudicial effect. 

Upon the evidence put forward, the court concluded that such legal requisites had not been satisfactorily proved. 

The court noted that Birdlife's request to suspend Legal Notice 116/2022 - the legal notice that regulates this year's spring hunting season - was a request to suspend a law that is already in place, rather than to inhibit the relative authorities from doing something which had not yet taken place. 

The legal notice targeted by Birdlife had already taken effect and thus “there was no action which the court could inhibit.”

Birdlife also failed to establish exactly what prima facie right it was seeking to safeguard. The claim appeared to be that turtle doves would suffer prejudice unless the legal notice was suspended.   

Yet figures included in a report put forward in evidence by the respondents showed that 46.5% of migrating birds flew across Italy. Moreover, while the total national bag limit was 1,500 birds, there were 150,000 breeding pairs.

The alleged prejudice was neither disproportionate nor irremediable, observed the court, rejecting Birdlife’s request and revoking the injunction provisionally upheld on April 12. 

Hunters react: historical win for FKNK

The Federation for Hunting and Conservation welcomed what it called "the fact that justice prevailed both in terms of science and the interpretation of the law".

It also thanked Minister Clint Camilleri for his work, particularly in accepting the recommendation of the Ornis Committee to open this season.

"FKNK understands that the maximum quota allowed is extremely small, however, it also understands that the opening of this season will allow the continuance of further studies on the migration of the turtle dove in a manner that could contribute to more correct data," it said in a statement.