Living with Licensing – The Practitioners’ View

Mark Oddy & Adam SmithJudicial Studies Committee Seminar25 June 2012

The Law and Conservation: Protection

Protecting nature from the hand of manYou must not...

Copyright ©2005 Sierra Club. All Rights Copyright ©2005 Sierra Club. All Rights

ReservedReserved. . John Muir (1838 – 1914)

1970s were about protecting resourcesAgri-intensification, litter, public

accessNature Reserves were the way

forward

Protecting Species

• Pre 1979– Species management and legal

ownership

• 1979 onwards:– Start of the ‘Ecosystem approach’– Favourable Conservation Status

• Population size, distribution, trend, fecundity

– Management by exemption leading to anomalies... Lepus timidus

Captured in Law

• Enshrined in law– Birds and Habitat Directives– Wildlife & Countryside Act 1981– As amended... (7)

• Delivery– Multiple interpretations– SNH, Police, Fiscals, Sheriffs– Political input...

• How did we get here...

So does protection work?Buzzards

(Holling 2003)

Andreas Treptke

1988 2002

The Mountain Hare anomaly?

Global range of the Mountain Hare: IUCN data

Scottish population often 10x higher

than anywhere else on globe because of management not in

spite of...

Alpine Mountain Hare

MammalsBreeding population estimates(UK)

Badger 250,000

Fox 240,000

Badgers at Langholm• Law:• Must not set snares where ‘likely’ to

catch badgers• Guidance:• Always look for signs of badger

activity, such as well worn paths, badger tracks and coarse grey hairs with black tips. Do not set snares in the vicinity of badger setts or near their “dung pits”, in holes through or under fencelines, gateways or hedges clearly used by badgers.

• But lack of legal clarity and over protection leading to a no-risk approach

Impacts on Prey: rarer predators

Predators in Favourable Status

Addressing the Problem

• Now: Work with an outdated System– Use Legal best practice

• (aka Satisfactory Alternatives)

– Gather Proof• Best practice and unresolved problems

– Get a License• Future:

– ‘Smart’ use of system– Law Reform

Satisfactory Alternatives

• The Basics– Habitat, Disease, Predation– Second opinion - advice

• Guidance is patchy– Open: Lambs– Detailed: Pheasants

• Novel approaches used to delay

RSPB Images

Not shooting: a satisfactory alternative?No!

• Conservation Ecology– Core support for margins– Wildlbird can be enhanced by

production of a shootable surplus• Legally

– Article 2 of Birds Directive more important that Article 9

– WCA 1981 does not prevent shooting and conservation from overlapping

Licensing when best practice fails

• Wildlife & Natural Environment Act (Scotland) 2011 • Scottish Natural Heritage now wholly responsible• Without a relief crimes may be committed:

1. We publically condemn Wildlife Crime2. We seek to understand why crimes are committed3. With understanding comes effective resolution

• Licensing can provide understanding and resolution • There must be a reasonable expectation that the derogation

from the law will provide the remedy that is being sought.• So... evidence of need

Evidence 1: Conservation Status

• A licence when:– Predator in good status, prey

less so...– Measures are Status, trend,

population size– Legally at national levels but

SNH want local levels– If local Natural Heritage Zone

data is not available?– Practitioners much collect it

themselves

Evidence 2: Serious damage

• Livestock (Section 16k Wildlife and Countryside Act 1981)

– Lambs Any confirmed attack or attacks

– Fish Probability of attack

• Wild Animals (Section 16(c) Wildlife and Countryside Act 1981)

– Salmon: Depends on status with harvest allowed– Wild(game)birds: Depends on status, but

harvest not allowed!

Evidnce 3:

Will removing the predator solve the problem?Pine Marten or Fox Cat or Wildcat

Shoot or not shoot?

Evidence gathering

• Population Surveys– Planned– Opportunistic - Cab cards

• Impacts– Photos– Carcasses

• Records– Estate Office

Legal 4: Application

• Scottish Natural Heritage– Lambs, Poults, Salmonids– Mountain Hares– Waders, Grey Partridge,

Grouse• Consistent and Timely

responses– Licences can be issued for

2 years

RavensBuzzardsSawbillsSparrowhawks Pine Martens

The most likely spp to see licensed control:

Can it work?

• Spey, Conon, Ness, Beauly– Thorough Monitoring System

• Sawbills and Salmon

– Prior Research shows take by Sawbills

Can it work?

Summary

• Frustrated practitioners facing changing predator and prey populations

• Populations protected by 30 year old laws• A slow, overly political licensing process• Too often illegal killing results• What now

Improving biodiversity: Simplify the law

• Consolidate existing wildlife law.

• New legislation should be ‘enabling’ and encourage wildlife management. The Animal Welfare Act (2006) model. • Better wildlife protection, conforming to EU Directives and Regulations.

“How many hen harriers are enough?”

Mike Russell, Scottish Minister for Environment 2006-09

Andreas Treptke

The Preventing Decline Issue

• Conservation should be about preventing species from reaching perilous situations (decline or extinction) as well as rescuing them– Habitats Drctv: ‘maintain or restore’– Guidance good in principle but what

defines:• Edge of range• Core population

– Where would advice on this come from?

• 1981 baseline for species?

Clarify roles Statutory Agencies & Central Government• Why separate production and

conservation?– Nature Conservancy and Ministry of Agriculture– In Scotland:

• Raven licensing to protect livestock: Straightforward• Raven licensing to protect birds: Ha!!

• Better linkage– Species survival embedded with land management– Game conservation is nature conservation

Use licences boldly

• Avoid making adaptive management licences as complex as PhDs :– High status of species to be managed + – Anecdotal evidence of benefit of

management + – Low risk to status by limited

management = – Licence, regulating scale of

management and monitoring required

COUNCIL DIRECTIVE (1979) on the conservation of wild birds.

Article 2

Member states shall take the requisite measures to maintain the

populations of species referred to in Article 1[all birds] at a level which

corresponds in particular to ecological, scientific and cultural

requirements, while taking account of economic and recreational

requirements, or to adapt the population of these species to that level.