woensdag 24 maart 2010

The badger: protected species or legal outcast?

We will write this in English, since it was the language of use in a correspondence with the secretariat of the Bureau for the Bern Convention. A few blogposts ago, we mentioned the Bern Convention and how this treaty seemed to respect wildlife animals and its habitats. The articles and appendixes seemed to be very clear in describing the purpose or intent of their meaning and legally binding force... but reality shows a quite different perspective.

"This Secretariat believes that your interpretation of the possible presence of snares in badger habitat (or actually in any habitat) as falling under "habitat disturbance" is far reached."

"Dit Secretariaat gelooft dat jouw interpretatie van de eventuele aanwezigheid van stroppen in een dassen habitat (of welke andere habitat dan ook) en dat dit valt onder "habitat verstoring" vergezocht is."

«Ce Secrétariat est d'avis que votre interprétation de la présence possible de pièges dans l'habitat du blaireau (ou réellement dans tout habitat) comme relevant de" perturbation de l'habitat" est bien atteint.» (tiré par les cheveux)

Far reached = far-fetched. So the presence of snares in a badger's habitat is not considered a disturbance of that habitat. Oh no? It will just capture and torture a badger who then suffers immensely, entice other badgers to attack one of their own because the badger doesn't behave like his usual self, something that most likely happened with the badger found on February 11 due to the wound at the end of his back... and all of this is not considered disturbance?? For a poacher or game warden to enter a badger's habitat, taking his time to place snares, looking for the right spot along the routes the badgers use to move about the habitat... repeatedly return to the habitat, to check the snares (something this game warden doesn't do, so he is definitely in offence of the Walloon hunting legislation) or remove and dispose of captured animals... Not in the sligthest considered to be disturbance...

You can download the 13 pages document of this correspondence here or just scroll down and read.(click FILE and then DOWNLOAD AS)

I wrote a letter to the secretariat and board of the Bern Convention asking them about the Bern Convention and the Walloon hunting legislation, how there seemed to be a conflict that needed attention and that we needed their help. The way I understand it, the articles and appendixes in the Bern Convention differ from the Walloon legislation in a way that the Bern Convention has the obligation and power to guide the Wallon government in its errors. Or the other way around! Belgium has the obligation, as a contracting party, to respect and live up to the articles and appendixes in the treaty known as the Bern Convention. But the Wallon hunting legislation doesn't provide for that if a badger can be captured and killed in a snare because the snare is still legal. This is where the conflict rises.

In Appendix III of the Bern Convention, the badger (meles meles) is listed as a protected species: http://conventions.coe.int/Treaty/FR/Treaties/Html/104-3.htm#Mammals/Mammifères and then scroll down some until you reach CARNIVORA ---> Mustelidae.

There can be no mistake or misconception about that!

In Appendix IV of the Bern Convention, the snare is listed as a prohibited means and method of killing, as first in line even: http://conventions.coe.int/Treaty/FR/Treaties/Html/104-4.htm

and there can not be a mistake or misconception about that either... or?

Let's take a closer look at the correspondence with a representative of the Bern Convention secretariat. At first there was an obvious misconception. They compared the articles in the Bern Convention with the Walloon hunting legislation under the impression that the snare was legally allowed to capture badgers. From this point of view, there could indeed be a possible conflict if this were true, since the Bern Convention doesn't allow for badgers to be snared. But somehow something insists on getting lost in translation?


If I understand rightly you claim that Walloon hunting legislation is contrary to the Bern Convention, which prohibits the use of snares for the capture or killing of badgers (except as an exemption to the obligations set up in Articles 7 and 8, and in the terms and conditions regulated by Article 9 of the Convention).

The Secretariat of the Convention should be grateful to receive that piece of legislation to examine in detail whether there is a general authorisation of snares for the capture of badgers or this is done through a system of licenses compatible with exemptions that may be granted by Article 9 of the Convention.

If the Secretariat finds that such piece of legislation is contrary to the obligations of Belgium under the Convention, we shall submit the matter for the attention of the bureau of the Convention, in view of the possible opening of a file against Belgium for presumed non compliance of her obligations under the Convention.

Kindly note the Council of Europe, which is depositary of the Bern Convention, is not an organ of the European Union, but a different international organisation. To our knowledge the EU habitats Directive does not list badgers as protected species.


So far, it remains clear. So I sent him the text of the Walloon hunting legislation.

http://www.ecogeste.ch/index.php?2009/09/19/410-le-blaireau-et-son-statut-d-espece-protegee

Thank you for your quick reply and that you're taking the time to investigate this issue.

The badger is a protected species in Belgium and as you can see in the link above, only allowed to hunt in France, Germany and Switzerland even though the Bern Convention lists the badger as a protected species in Appendix III.

http://www3.interscience.wiley.com/journal/119839077/abstract?CRETRY=1&SRETRY=0

Flanders (Belgium) has a program alongside the border with the Wallon Region to protect badgers by building eco-tunnels to prevent badgers from getting killed by traffic.

In a study performed by a student of the University at Liege/Luik/Luttich 5 years ago, he investigated the presence of badgers in this particular Wallon region and concluded that all or most of the fortresses were empty and abandoned.

The exemptions granted by Article 9 you refer to, are not applicable for this particular case in Eben Emael since I spoke to the forest owner myself who had no clue whatsoever there were badgers in that forest strip; nor did he know the snare was still legal or what the game warden was doing there. So as a farmer and agricultural worker, he never gave official permission for the badger to be snared for alleged damage to his crops.

Also, the people who use these snares say they want to snare the fox (which is according to Wallon hunting legislation) and claim that if a badger gets caught, it is by accident. But they seem to have sufficient knowledge of nature and wildlife animals and their habitats to know where to place the snares, plus there are more witnesses who can testify there have been more badgers in snares placed by this particular family who feels they are protected by the Wallon hunting legislation.

There also is no real valid reason to be hunting down the fox BUT the sake of recreation and hobby. Hunting and snaring and killing animals is done out of a habit and a desire to kill. The Wallon hunting legislation or magistrates in charge somehow seem to only take notice of the legislation without any detailed investigation in matters. It is generally accepted that there is "a need to kill of animals who are a threat" without even questioning whether they still are a threat or cause damage of any kind!!

The Wallon hunting legislation also only seems to value the right to use a snare without considering the fact that it also victimises a protected species like the badger and while caught in a snare, the animal suffers which is also contrary to articles in the Wallon legislation itself. This is besides the right of the animal as a protected species.

Here are some links to the hunting legislation in French. And I will also add a Word document with the legislation included, in French and German.

http://environnement.wallonie.be/LEGIS/dnf/chasse.htm

http://www.wapenunie.be/node/247

And of course, there is a lot we don't know about, because a lot of this happens quietly and without any witnesses...


Can you still follow? Let's take a closer look at the exemptions and articles mentioned here above. Articles 7, 8 and 9 of the Bern Convention.

Article 7

1. Each Contracting Party shall take appropriate and necessary legislative and administrative measures to ensure the protection of the wild fauna species specified in Appendix III.
2. Any exploitation of wild fauna specified in Appendix III shall be regulated in order to keep the populations out of danger, taking into account the requirements of Article 2.
3. Measures to be taken shall include:
1. closed seasons and/or other procedures regulating the exploitation;
2. the temporary or local prohibition of exploitation, as appropriate, in order to restore satisfactory population levels;
3. the regulation as appropriate of sale, keeping for sale, transport for sale or offering for sale of live and dead wild animals.

Article 2

The Contracting Parties shall take requisite measures to maintain the population of wild flora and fauna at, or adapt it to, a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements and the needs of sub-species, varieties or forms at risk locally.

Article 8

In respect of the capture or killing of wild fauna species specified in Appendix III and in cases where, in accordance with Article 9, exceptions are applied to species specified in Appendix II, Contracting Parties shall prohibit the use of all indiscriminate means of capture and killing and the use of all means capable of causing local disappearance of, or serious disturbance to, populations of a species, and in particular, the means specified in Appendix IV.

Article 9

1. Each Contracting Party may make exceptions from the provisions of Articles 4, 5, 6, 7 and from the prohibition of the use of the means mentioned in Article 8 provided that there is no other satisfactory solution and that the exception will not be detrimental to the survival of the population concerned:
* for the protection of flora and fauna;
* to prevent serious damage to crops, livestock, forests, fisheries, water and other forms of property;
* in the interests of public health and safety, air safety or other overriding public interests;
* for the purposes of research and education, of repopulation, of reintroduction and for the necessary breeding;
* to permit, under strictly supervised conditions, on a selective basis and to a limited extent, the taking, keeping or other judicious exploitation of certain wild animals and plants in small numbers.
2. The Contracting Parties shall report every two years to the Standing Committee on the exceptions made under the preceding paragraph. These reports must specify:
* the populations which are or have been subject to the exceptions and, when practical, the number of specimens involved;
* the means authorised for the killing or capture;
* the conditions of risk and the circumstances of time and place under which such exceptions were granted;
* the authority empowered to declare that these conditions have been fulfilled, and to take decisions in respect of the means that may be used, their limits and the persons instructed to carry them out;
* the controls involved.

Chapter II – Protection of habitats

Article 4

1. Each Contracting Party shall take appropriate and necessary legislative and administrative measures to ensure the conservation of the habitats of the wild flora and fauna species, especially those specified in Appendices I and II, and the conservation of endangered natural habitats.
2. The Contracting Parties in their planning and development policies shall have regard to the conservation requirements of the areas protected under the preceding paragraph, so as to avoid or minimise as far as possible any deterioration of such areas.
3. The Contracting Parties undertake to give special attention to the protection of areas that are of importance for the migratory species specified in Appendices II and III and which are appropriately situated in relation to migration routes, as wintering, staging, feeding, breeding or moulting areas.
4. The Contracting Parties undertake to co-ordinate as appropriate their efforts for the protection of the natural habitats referred to in this article when these are situated in frontier areas.

Chapter III – Protection of species

Article 5

Each Contracting Party shall take appropriate and necessary legislative and administrative measures to ensure the special protection of the wild flora species specified in Appendix I. Deliberate picking, collecting, cutting or uprooting of such plants shall be prohibited. Each Contracting Party shall, as appropriate, prohibit the possession or sale of these species.

Article 6

Each Contracting Party shall take appropriate and necessary legislative and administrative measures to ensure the special protection of the wild fauna species specified in Appendix II. The following will in particular be prohibited for these species:

1. all forms of deliberate capture and keeping and deliberate killing;
2. the deliberate damage to or destruction of breeding or resting sites;
3. the deliberate disturbance of wild fauna, particularly during the period of breeding, rearing and hibernation, insofar as disturbance would be significant in relation to the objectives of this Convention;
4. the deliberate destruction or taking of eggs from the wild or keeping these eggs even if empty;
5. the possession of and internal trade in these animals, alive or dead, including stuffed animals and any readily recognisable part or derivative thereof, where this would contribute to the effectiveness of the provisions of this article.


That's a tough read, right? To be real clear about it, we're discussing this with the forest strip in mind owned by a farmer who was aware that the game warden was "always up there doing something," but unaware what exactly. The farmer was not aware his forest strip has a badger fortress nor that snares were still legal. The farmer was under the impression that snares were also illegal in the Region Wallonne. So he didn't know what went on there and as such never filed for a license so the game warden of/and the family Baudinet had a right to snare for either foxes or badgers.

And so the Secretariat of the Bern Convention sent us the following answer.


After careful reading, we fail to see where the text of law you send us provides for the use of snares ("collets") for the capture or killing of badgers. We see it only authorised for the capture of foxes, wildcats, beech marten and the European polecat. We cannot see a contradiction of this text with the obligations of Belgium under the Convention for badgers.

On top of that, this is not a general text permitting an indiscriminate destruction of badgers, but establishing a system of permits in which the conditions set for the capture or killing of animal have to respect the conditions set by the Bern Convention namely that "there is no other satisfactory solution and that the exception will not be detrimental to the survival of the population concerned: " (article 9) ("L’autorisation ne peut eˆtre accorde´e que si elle ne nuit pas a` la survie de la population concerne´e et a` condition qu’il n’existe pas d’autres solutions satisfaisantes susceptibles a` elles seules de pre´venir les dommages importants")

Thus I fail to see grounds in your claim that this piece of law is not respectful of the Bern Convention for badgers.


No, no, no. This is not what it is about! So I sent another reply in return:

Thank you for you answer, but I have to disagree on the interpretation, with all due respect.

First, my complaint or claim wasn't solely based on the fact that the badger's right under the Bern Convention is breached by the Wallon regional hunting legislation because it allows for badgers to be snared. I didn't say that the Wallon law allows for badgers to be snared. That is the problem. The Wallon law doesn't issue a lawful permit for the badger to be snared, but it also doesn't offer a solution for the problem that occurs WHEN a badger is snared which has happened and happens, since the snare is far from selective and turns badgers into victims while they are supposed to be a protected species.

The Wallon law indirectly interferes with what is determined in the Bern Convention when it comes to the protected status of the badger and disturbance of its habitat, a fact that can be established without a doubt, by witnesses and pictures that show there are snares placed near a badger's fortress and along the routes the badgers walk.

Chapter II, Article 4, Protection of Habitats:

1. Each Contracting Party shall take appropriate and necessary legislative and administrative measures to ensure the conservation of the habitats of the wild flora and fauna species, especially those specified in Appendices I and II, and the conservation of endangered natural habitats.
2. The Contracting Parties in their planning and development policies shall have regard to the conservation requirements of the areas protected under the preceding paragraph, so as to avoid or minimise as far as possible any deterioration of such areas.
3. The Contracting Parties undertake to give special attention to the protection of areas that are of importance for the migratory species specified in Appendices II and III and which are appropriately situated in relation to migration routes, as wintering, staging, feeding, breeding or moulting areas.
4. The Contracting Parties undertake to co-ordinate as appropriate their efforts for the protection of the natural habitats referred to in this article when these are situated in frontier areas.

It may state in point 1, especially the species in Appendix I and II, but it also doesn't say it's not applicable for the species in Appendix III where the badger/meles meles is mentioned.
"Prohibited means and methods of killing, capture and other forms of exploitation"
What about http://conventions.coe.int/Treaty/FR/Treaties/Html/104-4.htm?

According to the Bern Convention the snare is prohibited. The fact that the snare is still allowed under Wallon law must certainly interfere with what is stated in Appendix IV?

If not, I have to wonder, what are the conditions you deem rightful for the rules in Appendix IV to be applicable?

The badger is entitled to protection according to the Bern Convention. The Wallon hunting law allows the use of snares that also capture badgers and as such this law contradicts with the terms as stated in Article 7 of Chapter III in the Bern Convention. The Wallon law doesn't take measures to ensure the protection of the badger, a species specified in Appendix III. The snares that are out there also suppose to have registration numbers, but they're 99% not visible because it is all rusted and the snares are old and used again time after time. Some don't even have these little metal tags.

Chapter III – Protection of species

Article 7

1. Each Contracting Party shall take appropriate and necessary legislative and administrative measures to ensure the protection of the wild fauna species specified in Appendix III.
2. Any exploitation of wild fauna specified in Appendix III shall be regulated in order to keep the populations out of danger, taking into account the requirements of Article 2.
3. Measures to be taken shall include:
1. closed seasons and/or other procedures regulating the exploitation;
2. the temporary or local prohibition of exploitation, as appropriate, in order to restore satisfactory population levels;
3. the regulation as appropriate of sale, keeping for sale, transport for sale or offering for sale of live and dead wild animals.

Badgers are supposed to be a protected species in Belgium since 1973. And they are supposed to be a protected species according to the Convention of Bern, but
HOW CAN A BADGER BE PROTECTED if another law indirectly allows for this species to be killed? And like you yourself wrote in reply, that you fail to see grounds in the claim that the Wallon law is not respectful of the Bern Convention for badgers...

By not providing a solution IF and WHEN a badger is caught, it is disrespectful. The lack of acknowledging the right of the badger as a protected species... how can the badger be protected? Because he clearly is not, not as long as the snare is legally allowed in the Region Wallonne.

As you wrote, you fail to see where the text of law provides for the use of snares for the capture or killing of badgers. Because it is not allowed or provided for by law. But it does happen, that is the offence or crime here. One that is not punished.

Although I think this is the full legislation:

http://environnement.wallonie.be/LEGIS/dnf/chasse/chasse001.htm

If this doesn't help to clarify matters, perhaps you can contact the DNF via

http://environnement.wallonie.be/cgi/dgrne/plateforme_dgrne/visiteur/v2/frameset.cfm?page=http://environnement.wallonie.be/administration/dnf.htm

or

Tél. : +32 (0) 81 33 50 50
Fax : +32 (0) 81 33 58 33
DNF.DGRNE@mrw.wallonie.be

The article 9 you refer to, in which the Wallon law offers an opening for the badger to fall victim "there is no other satisfactory solution and that the exception will not be detrimental to the survival of the population concerned". It doesn't really apply to the situation/conditions/circumstances that motivate my claim and complaint and questions. It's merely a legal-technical comparison that if it points out anything, it does point out the system of permits only as given in the Wallon hunting legislation but not the heart of the matter intended.

This has got nothing to do with there not being another satisfactory solution or an exception, these hunters can also shoot foxes if they like (they use poison too) and placing snares in front of a badger's fortress entrance is by no means an exception. And the badger's existence in this particular region is worth a discussion, not only due to the research done by a student 5 years ago, but also because I have heard more stories this afternoon, about villagers who massacred badgers because they used them for their fat/graisse... The people who did this are gone and buried so I was told. And I was also told that the villagers will never openly or officially testify because that's comme d'habitude of a small community. They're afraid for represailles.

The badger that got caught in a trap on February 11 didn't wander there by accident, on a very cold icy winter's day, with a fierce wind that cut like knives in the face and skin... he wasn't an accidental tourist! He lives or rather, lived there. The loophole in the Wallon hunting law, FOR NOT MENTIONING BADGERS as potential victims who should be protected, is a license to kill them without ever receiving a penalty or punishment for it.

That is not justice. That is not conserving, preserving and protection wildlife animals and or IN their habitat.

I have to wonder about the moral values at stake here, namely the lives of animals, wildlife, badgers to be specific... and your approach that translates to the letter of the law only. I do understand it may be the only way perhaps, but I hope I managed to point out the complexity of this particular issue. And I also hoped the Bern Convention was able to provide for some justice, since the badger has suffered plentiful of the opposite because it is clearly only a protected species on paper, in name, but not for real. Which is a shame and extremely sad!

Therefore I hope you will allow for more time to be invested in researching this matter, because there is something very wrong for sure, whether in the Bern Convention or the Wallon hunting legislation (or both perhaps) if an animal such as the badger turns out to be a legal outcast, one that doesn't receive the help nor care nor protection offered on paper, in the rules and articles of the Bern Convention for which Belgium as a country signed a binding agreement.


In addition to my reply from yesterday evening, I'd like to also refer to Article 8 and not just 7 in Chapter III of the Bern Convention.
Belgium signed a binding agreement, Flanders does protect its badgers and has prohibited the snare which is in accordance with the Bern Convention. The Region Wallonne hasn't.

Chapter III – Protection of species

Article 8

In respect of the capture or killing of wild fauna species specified in Appendix III and in cases where, in accordance with Article 9, exceptions are applied to species specified in Appendix II, Contracting Parties shall prohibit the use of all indiscriminate means of capture and killing and the use of all means capable of causing local disappearance of, or serious disturbance to, populations of a species, and in particular, the means specified in Appendix IV.

This clearly indicates that the killing of a species which is specified in Appendix III, as the badger/meles meles is, is prohibited by the means that are specified in Appendix IV and that includes the snare, le collet. It is fact that badgers get killed by the snare and this article 8 kind of provides where the Wallon (legislation) law fails, doesn't it?

The exceptions of Article 9 you refer to in comparison to the Region Wallonne law and according to the Bern Convention, are applied to the species in Appendix II as the article clearly indicates. It doesn't imply "especially" which also allows an opening for species in Appendix III, as is described in Chapter II when it comes to the protection of habitats.

Chapter II – Protection of habitats

Article 4

1. Each Contracting Party shall take appropriate and necessary legislative and administrative measures to ensure the conservation of the habitats of the wild flora and fauna species, especially those specified in Appendices I and II, and the conservation of endangered natural habitats.

The way this article is described, it doesn't exclude the habitats of species in Appendix III /the badger/meles meles.


Furthermore, Chapter I, Article 1.

Chapter I – General provisions

Article 1

1. The aims of this Convention are to conserve wild flora and fauna and their natural habitats, especially those species and habitats whose conservation requires the co-operation of several States, and to promote such co-operation.
2. Particular emphasis is given to endangered and vulnerable species, including endangered and vulnerable migratory species.

http://www.natuur-forum.be/phpBB3/viewtopic.php?f=2&t=7532#p193414

The link above refers to actions undertaken by the Flemish ANB to protect badgers in the South-Limburg region where they are a vulnerable species, which is where we are here in Bassenge-Eben Emael, if you include Voeren and Hesbaye... the study done by a student of the University in Luttich/Luik/Liege showed that most of the fortresses he examined in the province of Liege were empty or abandoned, he also made a map where these fortresses are situated. As I wrote to you before, we are trying to locate the student and his thesis with the help of the university.
Right now, the project of the Flemish ANB is a onesided effort. But wouldn't it be better if there is a combined effort from across the other side of the language barrier and regional border? But that is difficult since the laws and mentality differ, so it seems. In Flanders a badger is protected, if he walks 10 meters he is at risk of getting snared, if we consider this borderzone here in the Valley of the Jeker river.

Dear mr. XXXXXXX, it's because I try to understand things and how they operate that I ask these questions hoping to learn there is indeed a solution that can stop badgers from getting snared because the snare is a prohibited tool in most countries and also according to the Bern Convention.

Again, thanks for your time and hope you understand the need for a conversation about these matters.


And that was that. I sent this additional email, but their last reply kind of left things as they are, very unsatisfactory ofcourse and leading to only one conclusion. There is no WILL to be of any real help or assistance, nor real comprehension of the issue, or so it seems. The presence of snares in a badger's habitat is not considered a disturbance of that habitat. Oh no? It will just capture and torture a badger who then suffers immensely, entice other badgers to attack one of their own because the badger doesn't behave like his usual self, something that most likely happened with the badger found on February 11 due to the wound at the end of his back... and all of this is not considered disturbance??

He writes "possible presence of snares" while it has been proven so already!

The last response, as given here below, is trying to convince me I am wrong and also telling me I have no right whatsoever to speak up. He then says that the use of snares is not prohibited under the Bern Convention, only when it is used for the capture of mammals included in Appendix III. And here we go again... that IS the whole point of my writing, since the snare is used to capture and kill badgers, but under the pretense of it being intended for the fox! Either way, no solution or advice is offered in how to help the position of the badger, an animal that is supposed to be protected under Belgian law and according to the Appendix III of the Bern Convention. The snare to capture a fox may be legal in the Walloon region, it is prohibited to use a snare to capture a badger according to Appendix IV. It is admitted and denied at the same time, so if anyone can lend a helping brain here... would be much appreciated!


Thanks for your views on the Bern Convention and on the possible shortcomings of the Walloon legislation concerning badgers.

Your interpretation of the obligations of Belgium under the Bern Convention obviously differ of those of Walloon region, only it is for the parties to interpret treaties.

This Secretariat believes that your interpretation of the possible presence of snares in badger habitat (or actually in any habitat) as falling under "habitat disturbance" is far reached. Your assertion that the Bern Convention prohibits snares is factually wrong. Kindly note the use of snares is not prohibited under the Bern Convention, only its use for the capture and killing of mammals and birds (except Lagopus lagopus North of latitude 58 degrees N) included in Appendix III of the Convention (or when making exceptions for species listed in Appendix II). The Bern Convention does not prohibit the use of snares for capture or killing of mammals and birds not included in Appendices II and III of the Convention.

We understand that you would have liked the Bern Convention to have gone further in the limits of the use of snares, but it did not.

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