Translation of BirdLife Norway’s article 20.1.17 by Ellen, for original text see birdlife.no.
Last fall Norwegian authorities neglected to follow up and fix their own oversight on the self-defense paragraph in regards to predatory attacks in connection to the Diversity law. A weakened rule of law for the goshawk and other bird of prey is the result. BirdLife Norway means this is in violation with the Bern Convention that protects European species and their natural habitats.
In a verdict from 2014, the Supreme Court let an accused man from Lierne in Trøndelag walk free after the suspect had shot a protected goshawk even though other measures were possible. The farmer noticed that the goshawk was pecking on a chicken. He found his shotgun and killed the goshawk, without trying to scare it or in any other means of making it leave. The Supreme Court convicted the accused, who appealed the case. After several rounds in the Criminal Justice Court it ended in Supreme Court where it was concluded that the law did not provide basis for prosecution.
BirdLife Norway has an assessment that this creates uncertainty around the legal protection on birds of prey in general. Preventative measures and alternative actions must always be considered before reaching for the gun. When the Supreme Court means that the legislation did not demand this in this case, that is serious problem.
The goshawk is categorized as near threatened (NT) on the Norwegian Red List, and is included in the Bern Convention’s list II over strictly protected species. The species is also in the list II of the Bonn Convention, which protects migratory species.
Weaker protection for wild predators in the Norwegian law
All wild animals are protected in Norway, unless the law states anything else, for example through regulations, that explicitly allow for killing/euthanizing. In this case it is the Diversity law (Naturvernsloven) § 17 that opens for shooting protected wildlife if it is in relation to acute situation, where a raptor or other predator attacks a person or a domestic animal, it is then allowed to act on the so called self-defense rule.
The Diversity law § 17 second part, 1 point (about people):
Wildlife can be killed/euthanized when it is mandatory for posing an actual and significant danger for doing harm to a person.
The Diversity law § 17 second part, 2 point (about domestic animals):
Owner, or another responsible person on behalf of the owner, may kill wildlife in direct attack with cattle, reindeer, pig, dog and poultry.
With ‘mandatory’ it means that one is obliged to do a proper attempt to scare away the predator, before killing can be considered. Good fences is also a central and known method of preventing damage on for example poultry, a praxis the Bern Convention recommends.
The term ‘deemed necessary’ is essential in the understanding of the law. Earlier, when one decided upon the self-defense in the wildlife law (viltloven), there was established a common rule for both people and domestic animals, where it was determined that a permit always needed to be necessary. This permit fell away when the decision was moved from the wildlife law to the diversity law. The term was only included in the first point, which concerns attacks on people. It is this change that the Supreme Court did not have the opportunity to judge the man (from Lierne) for shooting a goshawk.
The Ministry does not wish to change the law
Proposition 118 L was treated by the Parliament this fall (2016). BirdLife Norway/NOF had waited for such a treatment, that today’s law could be mended. The Ministry of Climate and Environment has been clear that § 17 in today’s Diversity law is a result of a inadvertence, an oversight. That predators get weakened by the Diversity law was not intended, it was a mistake. In the constitutional letter dated to 27.11.2014 in the preparations of the elaboration of Prop. 118 L, the Department stated that the meaning was to continue the content of the wildlife law. BirdLife Norway answered this hearing, and was supported by the Department that the law needed to be changed, so that the legislation would be updated after the intention.
However, the correction never made it to the proposal in the Parliament, where Norwegian laws are decided. The Department has therefore decided not to fix this mistake despite for their own recommendations. They write about this on page 7 in the propositions, where they write that the purpose is to see how the self-defense practice will evolve, and that there should not be done any changes at this time. BirdLife Norway means this is unacceptable.
Prosecutors in the grazing industry urges shooting referral to verdict
Prosecutors are well aware for the weakness in the legislation. In a letter to a newspaper in summer 2016 there was an urge by the sheep- and goat farmers of Fitjar to self-act against golden eagles, and . They are referring to the verdict by the Supreme Court, and claim that has given sheep owners an expanded approval to use the self-defense for when predators attack sheep or lambs. These sheep farmers in Hordaland (region on the Mid-West coast of Norway), have made a ‘flying restriction-zone for golden eagles’ that fly lower than 35 meter over ground level, and encourage shooting golden eagles without warning it, and if the eagle chases any lambs. It is unclear what the farmers at Fitjar mean about eagles chasing sheep, and if an eagle is below the 35 meter, if this automatic goes into action and definition. This example shows it is problematic to uphold today’s legislation. If one is in disagreement of national management regime, it is possible to use § 17 as an attempt to hide this behind a smokescreen for culling protected birds of prey. No cases where self-defense is claimed, and used, is the same. If the Fitjar sheep- and goat farmers interpretation of the legislation will be legit in a judiciary is more or less doubtful, despite the cited goshawk-verdict.
BirdLife Norway asks the Bern Convention to examine the issue of the Norwegian authority, as they mean today’s legislation is against the Conventions article no 9, that put claims that killing/culling can only happen if there is no other solution. It is very important to have a clear legislation on this area. The Ministry of Climate and Nature, Vidar Helgesen, said no to licensed hunting of two-thirds of the Norwegian wolf population this winter, because the Norwegian Law and the Bern Convention did not allow it, proves the importance of this. Norwegian birds of prey and predators have a right to good legal protection.