Hen Harriers (Circus Cyaneus) Under Council Directive 79/409/EEC on the Conservation of Wild Birds

Allihies, County Cork, Ireland http://friendsoftheirishenvironment.net/ Circulation Copy Ireland’s designation of Special Protection Areas (SPAs) for Hen harriers (Circus cyaneus) under Council Directive 79/409/EEC on the conservation of wild birds Final Caroline Lewis, Andrew Jackson, Tony Lowes 26 February, 2009 1 Index Introduction 1. Background 1.1. The European Legal Context 1.2. The Political Context 1.3. The anti-Natura 2000 Campaign 2. SPA Site Selection Process 2.1. Exclusion of three sites 2.2. Limiting geographical range 2.3. Reasons for exclusions 3. Habitat Protection 3.1. Habitat of the Hen harrier 3.2. Forestry quotas in the ‘Forestry Management Protocol’ 3.3. Conversion of rough grassland 3.4. Exclusion of improved grassland 3.5. Open Space 4. Species Action Plans 5. Conclusion Appendix I: Maps Appendix II: Management Protocol Appendix III: Economic reasons for exclusion of three ocSPAs Appendix IV: Species Action Plans and Resources Allocated to Nature Conservation: Northern Ireland/the UK compared to the Republic of Ireland Appendix V: Wind farms within pSPA in County Cork: breach of Article 4(4) of the Birds Directive Appendix VI: Charts Showing Potential Habitat loss through proposed afforestation within SPAs References: References are given as endnotes, many of which contain hyperlinks to the referenced material. Double left click on reference number in document to take you to the endnote. To return double left click on the number in the endnote. 2 Introduction To date, Ireland has failed to designate Special Protection Areas (SPAs) for the Hen harrier (Circus cyaneus) in breach of its obligations under Article 4(1) of the Birds Directive [79/409/EEC]. A desktop study was undertaken by Friends of the Irish Environment of the potential long term impact of Ireland’s prospective SPA designations on breeding Hen harrier populations. The study raised significant concerns in relation to the long-term survival of the Hen harrier in the six proposed SPAs (pSPAs) and three excluded original candidate SPAs (ocSPAs). The main risks are due to the exclusion of nationally important areas containing >1% of the all-Ireland population and permitted land use changes from rough grassland to both forestry and improved grassland. The nine ocSPAs are already considered to be at carrying capacity due to extensive forestry, improvement of rough grassland and developments e.g. wind farms and quarries. Current fiscal measures were found to significantly favour afforestation over other land uses, particularly in marginal areas in both the pSPAs and excluded ocSPAs. The decision not to designate three of the original nine ocSPAs and the decision to exclude improved grassland from the pSPAs represented a loss of 110,000 ha. from the 279,0001 ha. originally identified on scientific grounds for designation. Such areas were excluded from SPA designation for political and economic reasons, a clear breach of EC law (C-44/95; C-3/96). Similarly, in respect of the six pSPAs and the three excluded ocSPAs (areas which “have not been classified as SPAs but should have been so classified” (C-374/98, at paragraph 47), the Irish government’s failure to take steps to avoid pollution or deterioration of habitats or significant disturbances affecting the Hen harrier in these areas through land use change represents a breach of the first sentence of Article 4(4) of the Birds Directive, which applies to such areas (C-374/98). Specific breaches are highlighted throughout this paper and in Appendix V. Back to Index 3 1. Background 1.1 The European Legal Context Under the Birds Directive Ireland has a requirement to protect the Hen harrier. This directive recognises that: ‘habitat loss and degradation are the most serious threats to the conservation of wild birds.’2 There is great emphasis on the protection of habitats for endangered and migratory species (listed in Annex I), in particular through the establishment of a coherent network of Special Protection Areas (SPAs). Article 4(1) of the Directive requires Ireland to classify “the most suitable territories in number and size” as SPAs for Annex I species, including the Hen harrier. Under the terms of the Birds Directive, this classification process was due to have been completed by 1981.3 Three decisions of the European Court of Justice (ECJ) provide the legal backdrop to this review. First is the Lappel Bank case (C-44/95), in which the UK government, supported by the French government, argued that in selecting SPAs and their boundaries, Member States should be allowed to take economic considerations into account (paragraphs 20 and 21 of the ECJ’s judgment). The ECJ disagreed, holding that, in selecting SPAs and defining their boundaries, Member States are not authorised to take account of: (a) the economic requirements mentioned in Article 2 of the Birds Directive (paragraph 27 of the ECJ’s judgment); (b) economic requirements as constituting a general interest superior to that represented by the ecological objective of that directive (paragraph 31); (c) economic requirements which may constitute imperative reasons of overriding public interest of the kind referred to in Article 6(4) of the Habitats Directive (paragraph 42). Selecting SPAs and their boundaries, the ECJ ruled, must be done only on the basis of the ornithological criteria set out in Article 4(1) and (2) of the Birds Directive (paragraph 26).4 4 Second, a decision against the Netherlands (C-3/96) in 1998 established that Member States’ margin of discretion in selecting SPAs, “does not concern the appropriateness of classifying as [SPAs] the territories which appear the most suitable according to ornithological criteria, but only the application of those criteria for identifying the most suitable territories for conservation of the species in question” (paragraph 61 of the ECJ’s decision). The third important case for present purposes is the ECJ’s decision in case C-374/98. The case related to a site in France - the Basses Corbières - which the Commission contended should have been classified as an SPA. The opening and working of limestone quarries on the site, the Commission argued, had resulted in deterioration in breach of Article 6 of the Habitats Directive. However, the ECJ reasoned differently, as follows: on a literal interpretation of Article 7 of the Habitats Directive, the Court held, only areas classified as SPAs fall under Article 6(2) to (4) of the Habitats Directive. Areas which have not been classified as SPAs but which should have been so classified, the Court held, continue to fall under the (old) stricter regime governed by the first sentence of Article 4(4) of the Birds Directive.5 Back to Index 1.2 The Political Context In addition to the above EC legal context, it is worthwhile putting Ireland’s implementation of the Habitats and Birds Directives in their national political context. We draw here on a recent article6 by Professor Brigid Laffan of University College Dublin and Dr Jane O’Mahony of the University of Kent. They pointed out that: “Traditionally, nature conservation issues in Ireland had been heavily politicized with farmers and landowners resisting previous moves by the state to curb any practice or development on the land that might damage biodiversity. This had been the case with attempts to set up a system of designation of Areas of Scientific Interest and their successors, National Heritage Areas, from the early 1980s onwards (see Tovey, 1993, p. 321; Tovey, 1994, 2001; Tovey & Share, 2003 for full accounts). This shift in the 5 policy paradigm occurred in a constitutional and legal environment that accorded considerable protection to landowners under the principle of natural justice underlined in an Irish Supreme Court Judgement in 1994 (Tovey, 1994). Those responsible for the transposition and application of the national implementing measures [for the Habitats Directive] were acutely aware of the Supreme Court judgement, which upheld the right of landowners to be granted the opportunity to object to designation. In this sense, the policy implications of the Habitats Directive had profound legal consequences and was extremely neuralgic for those seen to be most affected, namely farmers. In such circumstances, implementation of the directive was always going to be politically and legally tricky because of the strong cultural sensitivity about property rights in Ireland (Flynn, 2007, p. 113; Taylor, 2001, p. 84; Tovey, 1994). The potential for conflict between landowners (in particular farmers) and regulators was high.” [Laffan and O’Mahony, at p.182] They continue: “The minister responsible for the transposition phase [of the Habitats Directive] left office in June 1997 and was replaced by a minister, Síle de Valera, whose constituency was in a part of Ireland very much affected by site designation. The junior minister responsible for rural policy was her cousin, Eamon Ó Cuiv, who was also from the western half of the country. Both were grandchildren of one of the 1916 leaders, Eamon de Valera, who founded Fianna Fáil, the largest and most successful political party in Ireland. By temperament and political location, neither of these office holders was likely to risk alienating their constituencies in order to comply with a European law. They would invest considerable political energy in mediating between Brussels and the farmers and there is no doubt that their sympathies were entirely with the landowners. Speaking in Boston in 2000, Síle de Valera (then a junior minister for Arts, Heritage, Gaeltacht and the Islands) told her listeners that “we have found that directives and regulations agreed in Brussels can often seriously impinge on our identity, culture and traditions. Brussels, Birmingham, the Burren; the same European Union, different worlds.”7 6 Ó Cuiv, who was in a position of power in relation to the Habitats Directive, cited as the reason for his ‘No’ vote in the Nice referendum ‘an inflexible and unreasonable attitude towards implementation of certain policies.

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