Axing and Bartering Trees - Claire Bonello

Axing and bartering TREES

by claire bonello • photos by Joe Attard

American President Franklin D. Roosevelt held strong views about trees. He once said, ‘A nation that destroys its soils destroys itself. Forests are the lungs of our land, purifying the air and giving fresh strength to our people’.

It would seem that the prevailing sentiment held by Maltese government agencies is a million miles away from that. Rather than protecting, nurturing and promoting Malta’s diminishing tree cover, there seems to be a concerted effort to axe trees and urbanise natural and agricultural land.

This attitude is encapsulated in Immanuel Mifsud’s poem, ‘Aqta Fjura u Ibni Kamra’ (Cut a Flower, Build a Room):

Aqta’ fjura u ibni kamra; Aqla’ siġra u tella’ dar; Imxi metru, ibni villa; Tinkwetax… dak li sar sar.

(Cut a flower, build a room Uproot a tree and build a house Move a metre, build a villa Don’t worry... what’s done is done.)

The present state of affairs has come about by dint of the intentional dilution of the relevant regulations.

To date, the attempt to maximise developable floor area and viewing trees as an obstruction may have been more evident in the private sector which seeks to maximize profit. However, we are now seeing government agencies and even environmental regulators taking up this unsustainable view. In fact, the impression that trees no longer enjoy any meaningful form of protection is completely justified. The present state of affairs has come about by dint of the intentional dilution of the relevant regulations.

Up to 2018 trees were protected by means of the Trees and Woodlands Protection Regulations. These regulations classified trees into different groups. There were the strictly protected tree species which included trees of antiquarian importance and trees protected by tree protection orders as well as some other tree species. Then there were other trees which were protected because they were present in selected areas. These included trees which were more than 50 years of age within protected areas or located Outside Development Zone and Urban Conservation Areas. Carob trees and Judas trees were amongst the species which fell under this category within protected areas and Outside Development Zone. A third category of trees consisted in invasive, alien or environmentallyincompatible species.

The first two categories of trees enjoyed strict protection. Nobody was allowed to carry out any action which could be damaging to them or to the biological diversity of any protected tree. Any intervention on such trees required a permit from the Environment and Resources Authority. Furthermore wherever a development, either individually or in combination with other plans or projects, was likely to have an adverse effect on any protected trees, the Environment and Resources Authority could refuse the application, impose conditions, require an assessment of the impacts or a combination of all the above.

Then there was a very fair and sensible regulation which stated that no permit for interventions on protected trees should be granted whilst an application for a permit was being processed or being appealed and the intervention would prejudice the merits of such processing. This regulation was (and remains) necessary to safeguard the application or the appeal process. It doesn’t make sense to have an intervention such as the cutting down of protected trees being completed whilst an appeal on the same intervention is underway. Allowing this to happen renders the appeal a futile and academic process.

So, up to 2018 we had a perfectly adequate and functional regulatory system for the protection of trees. At that point the Environment and Resources Authority (ERA) set up a consultation exercise for the public to submit its comments about proposed amendments to the the Trees and Woodlands Protection Regulations. Ostensibly, the reason for this was the improvement of the existing regulations.

Much was made of the fact that persons who would be allowed to carry out interventions on protected trees would have to be licensed. This appeared to be an eminently reasonable suggestion to prevent heavy-handed and insensitive pruning of trees. ERA said that it wanted to revise the regulations in order to protect an additional 14 tree species in the Maltese Islands and to protect trees in urban public open spaces.

The new regulations came into force in 2018. They stated that no interventions on protected trees could take place unless carried out by a licensed tree specialist. However, to this day – a full three years from the enactment of the regulations – this particular criterion is not yet in force. So, the highly-publicised improvement of having persons with expertise prune trees is not yet in force.

There were other retrograde steps. Although a permit was still required for an intervention on protected trees, ERA was now obliged to process the applications for such permits without undue delay. This was not simply doing away with needless bureaucracy, but paved the way for the rubber stamping of applications to destroy trees.

The prohibition on interventions on protected trees whilst an appeal was underway was done away with. The result of this is that it has become extremely difficult for third parties, such as NGOs, to intervene to try and intervene to protect trees when there is an application for them to be uprooted. This is because their uprooting may already have taken place whilst the appeal is underway.

Then there is the other obstacle of trying to figure out when ERA is considering and deciding upon such an application. There is no regular notification or publication of ERA decisions in public, so NGOs have a very hard time trying to extract information from ERA or its website in order to be able to file an appeal on time. In a recent appeal filed by NGOs to appeal ERA’s approval of a permit to uproot 300-year old carob trees in Dingli, ERA also argued that NGOs had no legal standing to file such an appeal. This issue has not yet been confirmed in the Court of Appeal.

It has become customary for the agencies carrying out large scale projects to highlight the number of trees which will be planted to make up for those being uprooted. This is the result of the compensatory tree planting scheme adopted by ERA where permits are issued for uprooting trees as long as more are planted in their stead. At first glance, this may appear to be a satisfactory trade-off as the end result should be more trees. However, it doesn’t work out like that in reality.

Trees are not gadgets which can be plugged in and played. Mature trees with their magnificent canopies, gnarled trunks and extensive roots are ecosystems in their own right. They support a host of other creatures and form their own microhabitat. They provide a resting point for birds. Mature trees are essential elements of well-loved landscapes. The substitution with saplings is not a satisfactory one as time, energy and resources are required for saplings to establish themselves to the point at which we can glean the same amount of benefit from them.

Despite the fact that ERA has adopted this tree barter system, it is doubtful whether ERA has sufficient resources to ensure that the substitute trees are planted where they ought to be, that the right kind of trees are planted in the appropriate locations and that they are wellmaintained for the requisite amount of time.

In replies to queries regarding the rate of compliance, ERA stated that out of 30 permits, 6 were found to be fully compliant, 9 were partially compliant, 4 were totally noncompliant and the remaining 11 permits were still under review. No fines have been issued for non-compliance with compensatory planting conditions under permits. These figures are not reassuring figures and do not foster any faith in the soundness of the compensatory tree planting system.

The compensatory tree-planting system is at odds with the UN Convention on Biological Diversity. One of the main points of the Convention is ‘in situ’ conservation. The objectives of the draft local biodiversity strategy which were recently issued for local public consultation make absolutely no reference to one of the main aims of the UN Convention on Biological Diversity, namely on site conservation.

In situ conservation of ecosystems and natural habitats is cited as being a ‘fundamental requirement’ for the conservation of biological diversity in the Convention. Yet this fundamental requirement is largely ignored in the Maltese context where the easier substitution approach is preferred. This mirrors the overall approach to development and planning on the Maltese Islands, where the wholesale substitution of entire urban landscapes is taking place without much regard as to whether the end result is sustainable, enduring on desirable. n

claire bonello been practising law for over 20 years and is self-employed. she is a legal consultant for local environmental ngos and has led several environmental and information campaigns. claire serves as the chairperson of the scientific Advisory council on the environment – a national advisory entity enjoined with providing professional views for sustainable, professional and holistic legislation. it is doubtful whether ERA has sufficient resources to ensure that the substitute trees are planted where they ought to be, that the right kind of trees are planted in the appropriate locations and that they are well-maintained for the requisite amount of time.