Feedback on the Keeping of Wild Animals in Zoos Regulations, 2020

Time for Change Malta VO/1714 Feedback on the Keeping of Wild Animals in Zoos Regulations December 2020

Feedback on The Keeping of Wild Animals in Zoos Regulations, 2020 Submitted by Time for Change Malta, December 2020

Introduction Time for Change Malta welcomes the public consultation process with regard to a review of the Keeping of Wild Animals in Zoos Regulations, 2020.

Time for Change Malta’s main position is that any legislation on animal welfare, including legislation on zoos, must be based on a rational, logical, and science-backed approach to principles of animal welfare science, where the welfare of animals must not be overshadowed by the desire of individuals.

While appreciating that zoos are complex establishments that present multi-disciplinary issues, Time for Change Malta has reviewed the proposed regulations and would like to submit the following feedback.

Existing Zoos Time for Change Malta recommends that a provision should be included in the proposed regulations to state that existing zoos must come in line with the provisions therein within a reasonable period of time, in default of which they will lose their licence.

Definition of Zoo Sub-regulation (4) of regulation 1 states that “these regulations shall apply to animals found or intended to be kept in licensed zoos”. Time for Change Malta is concerned that this provision is creating a lacuna whereby there may be establishments that, for all intents and purposes are zoos, i.e. they exhibit animals to the public, but do not have a licence, and therefore would not fall under the definition of “zoo” under these regulations. Time for Change Malta would like to request clarification on what regulations will apply to such establishments, and how it will be

Time for Change Malta Feedback on the Keeping of Wild Animals in Zoos Regulations December 2020

ensured that the welfare of the animals kept within them are protected, at least until such an establishment is either licensed or shut down.

Ideally, a provision should be included to clearly state that if such an establishment is found to exist it will be shut down immediately and the animals removed and placed elsewhere, according to their welfare requirements. Time for Change Malta would like to ensure that the current trend of sanctioning unlicensed zoos after they have started operating, is stopped.

Furthermore, if a person is found guilty of running such an unlicensed zoo, they should not be allowed to apply for a licence to operate a zoo or to keep wild animals in the future. Until all the animals in the unlicensed zoo are removed, the keeper of the establishment should be made to pay a punitive fine on a daily basis. The removal of the animals should only be carried out with the Director’s permission.

Another are of concern is sub-regulation (1) of regulation 2, which sets out the definition of a “zoo” as follows: “ “zoo” means all permanent establishments where animals of wild species are kept for exhibition to the public other than for the purposes of a circus, with the exception of petshops and establishments which the Veterinary Services exempts from the requirements of these regulations on the grounds that they do not exhibit a significant number of animals or species to the public and that the exemption will not jeopardise the objectives of these regulations.” In the first place, Time for Change Malta welcomes the removal of the seven days qualifier that is present in the current law and has created issues in the past. However, there are still problems envisaged with the definition of “zoo” in the proposed regulations.

The phrase “animals of wild species” must be defined in the law to limit possible misinterpretation of the law. Time for Change Malta is also concerned about the use of the word “permanent” – any establishment, whether permanent or not, that is exhibiting wild animals other than circuses or pet shops should be considered a zoo and therefore fall under the requirements of these regulations. Establishments should also be considered as zoos whether they charge the public a fee to enter or not.

Furthermore, Time for Change Malta is concerned about the use of the phrase “establishments which the Veterinary Services exempt from the requirements of these regulations on the grounds that they do not exhibit a significant number of animals or species to the public and that the exemption will not jeopardise the objectives of these regulations.” It is the opinion of Time for Change Malta that all establishments that exhibit wild animals to the public should be considered a zoo, regardless of the amount of individual animals or the type of species that are found therein. The wording of this definition allows for broad exemptions to be applied, frustrating the spirit of these regulations, especially since what is considered a “significant number” is not aptly defined. Should it be kept, this definition must be set out.

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Time for Change Malta Feedback on the Keeping of Wild Animals in Zoos Regulations December 2020

Time for Change Malta recommends that the definition should be re-written in the style of the definition of “zoo” found in the UK Zoo Licensing Act1 as follows: “Zoo means an establishment where wild animals, being animals not normally domesticated in Malta, are kept for exhibition to the public, other than for the purposes of a circus or a pet shop. This definition applies regardless of whether or not the public is charged for admission, and shall also apply to any zoo to which members of the public do not have access, if a licence is in force in respect of it.”

“Dangerous Animals” versus “Non-Dangerous Animals” Time for Change Malta would like to express its concern regarding the fact that certain provisions are only applicable to “dangerous” animals. While Time for Change Malta agrees with, and encourages, the principle that certain animals need to be more heavily regulated than others, this decision should not solely be taken on the basis of whether the animal is dangerous to the public. It should also be taken based on the fact that certain species of animals have welfare requirements that cannot be met in Malta or by Maltese zoos.

Furthermore, basing such regulations on a list that is set out at law may create issues if the list takes too long to be updated, even though the possibility of updating via the Government Gazette exists. Such Government Gazette updates would only be valid for a certain period of time and would need to be constantly updated until they are set out in law.

Time for Change Malta also notes that in sub-regulation (1) of regulation 3 of the draft regulations, it is stated that “no dangerous animal shall be exhibited in a zoo before it is registered in the Register and the required written approval is given by the Director in terms of this regulation.” This provision should extend to include all species of animals, not only those that are considered dangerous, as record-keeping is essential to proper zoo operations. In any case, no animal, whether dangerous or not, should be exhibited before the written approval of the Director is obtained.

Further Definitions Sub-regulation (1) of regulation 2 states that an “enclosure means any confined space within which an animal is to be kept in terms of these regulations”. Time for Change Malta would like to see the wording “confined” removed from this definition to ensure that any space wherein an animal is kept shall be considered an enclosure.

Sub-regulation (1) of regulation 2 states that “zoo-keeper means a person authorized by the Director to keep animals in a zoo and who is the responsible person of the animals within that zoo.” The issue with this definition is that there may be a person who is acting as a zookeeper

1

UK Zoo Licensing Act 1981, section 1. Available at: <https://www.legislation.gov.uk/ukpga/1981/37> accessed 25 November 2020.

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Time for Change Malta Feedback on the Keeping of Wild Animals in Zoos Regulations December 2020

without the authorisation of the Director. Time for Change Malta would like clarification as to what is to happen in cases where a person is carrying out this role without authorisation.

Ideally, a provision should be included to state clearly that if a person is found to be carrying out the role of zookeeper without authorisation, the zoo in question should be shut down immediately and the animals removed and placed elsewhere, according to their welfare requirements, and the zookeeper should not be allowed to apply for licence for that zoo, or any other zoo or keeping of wild animals in a private collection in the future. Furthermore, until all the animals in that zoo are removed, the keeper of the establishment should be made to pay a punitive fine on a daily basis. The removal of the animals should only be allowed with the Director’s permission.

Sub-regulation (1) of regulation 2 states that “veterinarian means any veterinary surgeon, warranted in Malta, designated by the zookeeper as responsible for the zoo.” With all due respect aimed at the veterinary profession, this definition should be amended to ensure that any veterinarian associated with a zoo should not only have a warrant but should also be specialised in the welfare of wild species. The fact that a person has a veterinary warrant does not automatically mean that they will be able to provide the appropriate care for all species types.

Captive Breeding Time for Change Malta considers that the provisions set out in the proposed regulations regarding the issue of captive breeding are far from satisfactory. It is our opinion that these measures are worded in a manner so as to allow zookeepers to continue making profit from breeding practices, rather than respecting the possible but tenuous contribution that captive breeding may have to conservation of a species. Time for Change Malta insists that the regulations cannot keep allowing zookeepers to breed animals in Malta to sell to foreign zoos and/or private collections. There has been no evidence to show that this practice is contributing to conservation of the species.

In the first place, sub-regulation (4) of regulation 6 imposes that all dangerous animals in a zoo must be neutered within six months of the regulations coming into effect. It is not clear why this requirement is only set out on dangerous animals and not all other animals in a zoo that may be reasonably expected to be neutered (it is not expected that species such as fish will be neutered). Furthermore, the scope of sub-regulation (4) of regulation 6 is immediately weakened by the insistence that an exemption may be obtained from the Director in terms of sub-regulation (2) of regulation 7. Sub-regulation (2) of regulation 7 does not exist within the proposed regulations and therefore it is being assumed that this reference is made to paragraph (b) of regulation 7.

The wording of paragraph (b) of regulation 7 states that “An exemption may be issued n writing by the Director, following the evaluation of the conditions of the zoo and upon a Page 4 of 27

Time for Change Malta Feedback on the Keeping of Wild Animals in Zoos Regulations December 2020

recommendation by the veterinarian responsible for the zoo and the application is made on the grounds of species conservation or any collaboration with an approved research facility.”

The problems related to captive breeding are far too serious to allow for such a broad loophole.

There are no implementing measures regarding what the Director would consider appropriate conditions or what he will accept as being acceptable “grounds of species conservation.” There is also no delineation of what would be considered an “approved research facility.”

Furthermore, it is shocking that this decision is to be based on the opinion of the veterinarian who is employed by the zoo to care for the animals therein. This is a clear conflict of interest which should not be overlooked. Any such recommendation should not be made by a veterinarian, but rather should be made by a conservation scientist who has experience in the establishment and operation of successful breeding programmes.

The concept of captive breeding and the legislation regulating it must be based on empirical evidence. It has been shown time and time again that in many cases captive breeding in zoos of species that are not indigenous or endemic to the local environment are not successful, and, if they are, not to the extent that will justify the conditions within which certain species of animals are being kept in Maltese zoos. In particular, captive breeding and reintroduction programmes do not contribute to the conservation of the species unless there is enough genetic diversity to avoid inbreeding depression2. The issue of inbreeding is concerning especially because it can have serious negative repercussions on an animal’s health and welfare, and requires careful planning and genetics analysis.3 Notably, reintroduction programmes will only be successful if a hands-off approach is taken, i.e. the animals being bred must have very limited contact with humans.4 This directly conflicts with the insistence in the proposed regulations that animals may be allowed direct contact with visitors. Moreover, reintroduction programmes themselves will never be successful unless the ecosystem that these animals naturally inhabit in the wild are rehabilitated5 – therefore it

2

Elias, B. A., Shipley, L. A., McCusker, S., Sayler, R. D. and Johnson, T. R. (2013) ‘Effects of genetic management on reproduction, growth, and survival in captive endangered pygmy rabbits (Brachylagus idahoensis)’, Journal of Mammalogy, 94(6), pp. 1282-1292; Lacy, R. C. (2019) ‘Lessons from 30 years of population viability analysis of wildlife populations’, Zoo Biology, 38(1), pp. 67-77. Doi: 10.1002/zoo.21468.

3 McCleery, R., Hostetler, J. A. and Oli, M. K. (2014) ‘Better off in the wild? Evaluating a captive breeding and release program for the recovery of an endangered rodent’, Biological Conservation, 169, pp. 198-205. Doi: 10.1016/j.biocon.2013.11.026; Rodrigues Nogueira Forti, I., 2019. What Studbooks Can Tell Us About Captive Breeding Programmes : A Case Study Of Cheetahs (Acinonyx Jubatus). Ph.D. University of Salford (United Kingdom). Available at: http://usir.salford.ac.uk/id/eprint/49857/.

4 Greggpr, A. L., Vicino, G. A., Swaisgood, R. R., Fidgett, A., Brenner, D., Kinney, M. E., Farabaugh, S., Masuda, B. and Lamberski, N. (2018) ‘Animal welfare in conservation breeding: applications and challenges’, Frontiers in Veterinary Science, volume 5, article 323. Doi: 10.3389/fvets.2018.00323.

5 Carmona-Catot, G., Moyle, P. B. and Simmons, R. E. (2012) ‘Long-term captive breeding does not necessarily prevent reestablishment: lessons learned from Eagle Lake rainbow trout’, Reviews in Fish Biology and Fisheries, 22(1), pp. 325-342. Doi: 10.1007/s11160-011-9230-x.

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Time for Change Malta Feedback on the Keeping of Wild Animals in Zoos Regulations December 2020

is useless to insist that breeding animals in a zoo will contribute to species conservation if their wild counterparts continue to decline because of a depletion in natural resources.6 Time for Change Malta also recommends that any new animal being imported to be exhibited in a zoo must be already neutered, or must be neutered within two months of arrival, in default of which the zookeeper must return the animal and pay a punitive fine. If an unneutered animal is allowed into the zoo, it must be kept in isolation from potential mates until it has been spayed. Contraceptives may be considered as an alternative to neutering in extreme cases.

If breeding is to be allowed, Time for Change Malta insists that detailed provisions have to be set out to ensure that this activity takes place in an appropriate manner. Key documents to derive breeding standards from would be the International Union for Conservation of Nature (IUCN) Species Survival Commission Guidelines on the Use of Ex situ Management for Species Conservation7 and the EAZA Population Management Manual: Standards, Procedures and Guidelines for Population Management within EAZA.8 The standards set out in these documents are specifically created to ensure that any breeding carried out in a zoo is done in a way that balances animal welfare with effective conservation and should be applied to all zoos in Malta. Furthermore, should a zoo in Malta wish to participate in a captive breeding programme it is the recommendation of Time for Change Malta that this may only be done if the zoo becomes a member of and is accredited by the EAZA, to ensure further monitoring on the breeding activities being carried out and more access to resources in relation to ensuring that this breeding will be effective in contributing to the conservation of biodiversity.

Time for Change Malta is currently in contact with international organisations who are experienced in this area and may provide resources and training for the neutering of wild animals and developing conservation programmes.

Direct Contact between the Public and the Animals Time for Change Malta considers that the wording of sub-regulation (8) of regulation 4 is unacceptable. The wording of this provision is too broad and allows for too many loopholes which will allow for abuse of the law. Time for Change Malta insists that the relevant authorities in Malta must recognise that wild animals kept in zoos do not have the same welfare requirements as domesticated animals including companion and farm animals. In particular, 6

Conde, D. A., Colchero, F., Gusset, M., Pearce-Kelly, P., Byers, O., Flesness, N., Browne, R. K. and Jones, O. R. (2013) ‘Zoos through the lens of the IUCN red list: a global metapopulation approach to support conservation breeding programs’, PLoS ONE, 8(12), e80311. Doi: 10.1371/journal.pone.0080311.

7 Species Survival Commission, ‘IUCN Species Survival Commission Guidelines on the Use of Ex situ Management for Species Conservation’, 2014. Available at: <https://www.eaza.net/assets/Uploads/Positionstatements/IUCN-Guidelines-on-the-Use-of-ex-situ-management-for-species.pdf>.

8 EAZA, ‘EAZA Population Management Manual: Standards, Procedures and Guidelines for Population Management within EAZA’, 2019. Available at: <https://www.eaza.net/assets/Uploads/Governingdocuments/EAZA-Population-Management-Manual-Final.pdf>.

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Time for Change Malta Feedback on the Keeping of Wild Animals in Zoos Regulations December 2020

Time for Change Malta does not accept that the decision to allow direct contact hinges on the decision of the veterinarian employed by the zoo, which presents a clear and direct conflict of interest.

Furthermore, Time for Change Malta considers that the wording of sub-regulation (8) of regulation 4 is in direct conflict with the provision set out in sub-regulation (2) of regulation 5 which states that “The zoo-keeper shall ascertain that no individual shall come into direct physical contact with any dangerous animal kept in a zoo, except when that individual is a) a trained professional employee or contractor of the zoo; b) a warranted veterinarian or a veterinary student accompanying the veterinarian; c) an individual directly supporting a conservation program of the zoo.” It is the interpretation of Time for Change Malta that there are clear conflicts in the legislation that need to be rectified. Time for Change Malta cannot see any reason to allow such direct contact, especially since there are no benefits to the conservation of biodiversity.

The potential and probable negative consequences on the welfare of a wild animal that is allowed to come in direct contact with the public are severe. It is imperative that any decision taken is based on the scientific research. Two important and recent studies in this area are those carried out by Sherwen and Hemsworth9 and D’Cruze et al.10 Both studies involve a review of available literature to consider the various studies that have been carried out on human-animal interactions in a zoo setting. In Sherwen and Hemsworth, the authors conclude that in the majority of cases, human-animal interactions, especially those that involve direct contact such as petting, have a negative impact on the physiological and behavioural welfare of the animals involved. This conclusion was reached after analysing studies that look at the effects of human-animal interactions on various species, including species of large felids, primates, quokkas, penguins, kangaroos, deer, koalas, gazelle, Indian gaur, fennec foxes, brown bears, and Mexican wolves.

In their study, D’Cruze et al also conclude that the implications of human-animal interaction can be very serious, even when monitored and carried out according to recommended standards, and, in any case, such an activity does not contribute to conservation efforts and therefore does not really have a place in a modern zoo. These conclusions are further bolstered by the fact that the developers of the Five Domains of Animal Welfare model, utilised in many animal welfare assessment procedures on an international level, re-assessed their model in 2020 to include human-animal interactions and its effects on animal welfare.11

9

Sherwen, S. L. and Hemsworth, P. H. (2019) ‘The visitor effect on zoo animals: implications and opportunities for zoo animal welfare’, Animals, 9, pp. 336. Doi: 10.3390/ani9060366.

10 D’Cruze, N., Khan, S., Carder, G., Megson, D., Coulthard, E., Norrey, J. and Groves, G. (2019) ‘A global review of animal-visitor interactions in modern zoos and aquariums and their implications for wild animal welfare’, Animals, 9, pp. 332. Doi: 10.3390/ani9060332.

11 Mellor, D. J., Beausoleil, N. J., Littlewood, K. E., McLean, A. N., McGreevy, P. D., Jones, B. and Wilkins, C. (2020) ‘The 2020 Five Domains Model: including human-animal interactions in assessments of animal welfare’, Animals, 10, pp. 1870. Doi: 10.3390/ani10101870.

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Time for Change Malta Feedback on the Keeping of Wild Animals in Zoos Regulations December 2020

Time for Change Malta recommends that the possibility of subjecting zoo animals to direct contact with the public is removed from the legislation. This would include animal-assisted therapy activities in zoos, since they involve various animal welfare and public health and safety repercussions.

The Transfer of Animals Time for Change Malta is concerned that the wording of the law, in particular sub-regulation (15) of regulation 3 and sub-regulation (5) of regulation 6 is confusing and incoherent.

In the first place, sub-regulation (15) in regulation 3 states that “The offspring of any animal not deemed as dangerous may be transferred to any other appropriate zoo or any licensed private collection once the appropriate transfer forms are filled and authorisation granted by the Director.”

This can then be contrasted to sub-regulation (5) of regulation 6 which states that “Any animal which is deemed dangerous may be transferred to another licenced zoo. Where no other licensed zoo is able to take in such an animal, the Director may seek the assistance of a licensed keeper as approved in accordance with the Owning and Keeping of Dangerous Animals Regulations. or confiscate that animal and dispose of it in the manner he deems most appropriately.”

First of all, it is not clear why the regulations are making a distinction between the transfer of non-dangerous animals as set out in sub-regulation (15) of regulation 3 and dangerous animals in sub-regulation (5) of regulation 6. Furthermore, this provision does not clarify in what cases the dangerous animal may be transferred – would such a transfer be carried out in cases where the dangerous animal cannot be kept in Malta?

Furthermore, there are no provisions regarding the eventual welfare of the animals being transferred. It is Malta’s duty to ensure that any animal transferred outside of it is to be kept somewhere else should have its welfare protected to the best extent possible. Simply stating that an animal may only be transferred to a licensed zoo is not enough to protect animal welfare, since zoos may be licensed but at the same time not be keeping to proper welfare standards.

Time for Change Malta is of the opinion that the intention behind these regulations must be made clearer, in particular as the current setup suggests that these provisions are there to give loopholes and legal credence to activities that involve selling of and profiting from the breeding of young wild animals. Rather than allowing animals to be transferred to licensed zoos, the regulations should delineate the exact situations where an animal may be transferred and what conditions must be waiting to meet it when it arrives at its destination. There should also be a

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Time for Change Malta Feedback on the Keeping of Wild Animals in Zoos Regulations December 2020

provision to state that the zookeeper is responsible for the animal’s welfare until it reaches its target.

Further Protection of Animal Welfare One of the major concerns that Time for Change Malta would like to express regarding the protection of animal welfare in the proposed regulations is the lack of reference to a detailed set of provisions for welfare standards of each species that may be kept in a zoo. The legislation should not allow for broad interpretation of such welfare standards. In this case, Time for Change Malta suggests the use of the welfare requirements set out by the European Association of Zoos and Aquaria, the EAZA, including their Best Practice Guidelines.12 Guidelines issued by the World Association of Zoos and Aquariums, the WAZA, may also be considered.

This lack of detailed standards affects all the provisions in the proposed regulations that deal with welfare issues, including the regulations flagged under this section and others, such as paragraph (d) of regulation 7 which speaks about the obligation of housing animals in conditions which satisfy their biological requirements. Above all it is important that there is no wording in the regulations that could imply that the considerations of welfare do not also include behavioural issues. Following on to this, Time for Change Malta wholeheartedly recommends that Maltese zoos should be obligated to receive accreditation from approved international organisations such as EAZA and WAZA. Time for Change Malta questions why sub-regulation (5) of regulation 3 allows the use of tattoos to identify animals if microchips can be used. While it is understood that tattoos may be more easily identified than scanning for microchips, such body modification should be limited, and other defining characteristics can be used to identify individual animals. If an animal is too dangerous to be scanned with a microchip reader, then it puts into doubt whether that animal should be allowed to remain in a zoo.

Time for Change Malta notes that paragraph (c) of sub-regulation 9 of regulation 3 states that “The Director may only uphold an application where he is satisfied that the site and enclosures [...] are equipped with appropriate climatic conditions.” It is clear that the unique climate of Malta means that certain species would only be able to be kept in appropriate climatic conditions in enclosures that severely limit their freedom and range of movement, and therefore would be sacrificing the possibility of such animals exhibiting their natural behaviour.

In this scenario, Time for Change Malta would like to re-state that it would be more respectful of the principles of animal welfare to ban the importation of certain species of animals that are not acclimatised to Malta’s semi-arid climate.

12

EAZA, ‘Specialist Programmes’. Available at: <https://www.eaza.net/conservation/programmes/#BPG> accessed 25 November 2020.

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Time for Change Malta Feedback on the Keeping of Wild Animals in Zoos Regulations December 2020

Time for Change Malta welcomes the condition set out in paragraph (d) of sub-regulation (10) of regulation 3 which states that “The Director may only uphold an application for a zoo where he is satisfied that the applicant […] has not been found guilty, at any time, of any offence involving the ill-treatment of animals.” Time for Change Malta believes that in addition to this, the legislation should clarify that should a zookeeper with a current licence be found guilty of any offence under the Animal Welfare Act or any other offence that involves the ill-treatment of animals, that zookeeper’s licence should be removed. Furthermore, it should be ascertained that any staff-member employed by the zookeeper should also be checked to ensure that they have at no point been found guilty of any offence involving the ill-treatment of animals.

Sub-regulation (14) of regulation 3 states that the carcass of the offspring of animals found in a zoo that has died must be kept by the zoo until the Director can carry out an inspection to verify the death. Time for Change Malta considers that the carcass of any animal, be they offspring or not, that dies while under the care of a zookeeper should be inspected by the Director to ensure that the cause of death that is reported is accurate. In this case, regulations will also need to be promulgated to oblige the zookeeper to keep such carcasses in a state that will allow an accurate post-mortem to be carried out.

Time for Change Malta proposed that sub-regulation (1) of regulation 4 should be extended to set out a time limit whereby, any zoo that is currently operating when these proposed regulations are published must comply with this requirement within a specific period of time.

This would leave no lacuna in relation to already existing zoos. To ensure that this transition is carried out smoothly, the legislation should also state that the Director must make an inspection of current zoos in the same way that proposed enclosures will be inspected in subregulation (3) of regulation 4.

In relation to proposed enclosures, Time for Change Malta would like to propose that the inspection, and subsequent approval or otherwise, of proposed enclosures should be carried out before any new species is even brought on to the territory of Malta. This will ensure that should the enclosure not be approved, the animal in question will not need to be re-located again, causing far more stress to them.

Time for Change Malta is pleased to note the consideration of use of CCTV footage to monitor animals as set out in sub-regulation (6) of regulation 4. However, it is recommended that such footage should be mandatory and not at the discretion of the Director. Further requirements should be set out to ensure that the CCTV footage must show all areas of an enclosure and any other areas where animals spend a period of time. This CCTV footage would prove very useful in cases of investigating maltreatment of animals or any other default of the regulations.

Time for Change Malta also welcomes the inclusion of sub-regulation (1) of regulation 5 which states that “A zoo-keeper in terms of these regulations shall be solely and fully responsible for all the animals and for any matter relating to the health and safety of the animal and the Page 10 of 27

Time for Change Malta Feedback on the Keeping of Wild Animals in Zoos Regulations December 2020

general public.” Time for Change Malta recommends that this wording is extended to include the welfare of the animals, and, moreover, to ensure that even if a zookeeper loses their licence, or the establishment ceases to be a zoo under these regulations, they shall still remain responsible for the health and welfare of the animals. Time for Change Malta also recommends that the veterinarian designated as being responsible for the animals in a zoo should also bear the responsibility of the health and welfare of the animals in that zoo.

Time for Change Malta would like to request clarification regarding paragraph (e) of regulation 7 which states that “The veterinarian responsible for the zoo, will also carry out the eventual risk assessment related to overpopulation.” In the first instance, the assurance that the zoo will not become overpopulated should not rest solely on the vet that is employed by the zoo as this creates a conflict of interest. The possibility of overpopulation should be regulated by the Director using controls on breeding and regular checks and inspections. The possibility of overcrowding in an enclosure represents a serious welfare concern which should be a priority in terms of keeping welfare standards. Standards regarding overpopulation can and should be set out by considering the size of the enclosure and relying on published guidelines.

Time for Change Malta agrees with the provisions of regulation 9 of the proposed regulations that set out rules on the use of certain substances, particularly tranquilizers. However, it is recommended that a provision is added to ensure that such substances may only be used by those who are trained in their use, especially since their use by untrained personnel may result in further detriment to the health and safety of both humans and animals. Furthermore, the zookeeper must ensure that there shall always be one person on site at the zoo that can operate such instruments to administer these substances.

Time for Change Malta requests that a provision is included in the proposed regulations to ensure that enclosures are designed in a way that does not allow the public to feed the animals in the enclosures in any way and to ensure that the zoo implements measures to discourage such practices as the feeding of human food to animals may cause serious welfare concerns.

Furthermore, it is noted that above all, enclosure should be required to be designed in a manner that allows the animals kept inside to hide from the public gaze to reduce stress and its negative impacts on their welfare.

Following on from the proposal above that species that cannot cope with Malta’s climate should be banned, it is proposed that this ban should extend to other species that for welfare reasons cannot be kept on Malta due to its unique characteristics as a small island state. This would include, for example, animals that require large areas to roam or dense vegetation to satisfy their natural behaviour requirements. Furthermore, Malta should consider banning the captivity of whales, dolphins, and other marine mammals based on the fact that their welfare can not be guaranteed in captivity. Several countries have banned the capture, importation and exportation, keeping, and/or public display of marine mammals, or updated their law to severely restrict this activity, including Argentina, Bolivia, Brazil, Canada, Chile, Costa Rica, Croatia, Cyprus, Greece, Hungary, India, Israel, Luxembourg, Malaysia, Mexico, Nicaragua, Page 11 of 27

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Slovenia, Switzerland, Vietnam, and the UK. France has very recently started the phasing out of the use of marine mammals in marine parks for exhibition to the public.

As an aside, Time for Change Malta would like to express its concern about the regulation in sub-regulation (12) of regulation 2 which states that “The Director may seize the animal and may dispose of including the sale or public auction.” Time for Change Malta proposes that no animal may be disposed of through sale or public auction, and, if this provision is to remain, such sale or public auction may only be carried out while respecting the requirements of animal welfare.

Better Promotion of Conservation and Public Education, including Protection of the Environment Regulations on the promotion of conservation of biodiversity and public education are crucial since they are the basis on which modern zoos can justify their existence. It is argued that if a zoo is not contributing to these facets in a tangible manner, there is no reason for that zoo to keep operating. Time for Change Malta insists that any measures taken to promote the conservation of biodiversity and public education should be analysed through a scientific lens and require quantifiable results. Therefore, Time for Change Malta would like clarification regarding on what basis conservation efforts will be judged, and how it will be ensured that these efforts are consistently updated, reviewed, and adjusted, to reflect new discoveries in science and practice. Moreover, Time for Change Malta impresses that in any case, any conservation and public education activities must prioritise the health and welfare of the animals involved and should in no way place the public at risk.

Time for Change Malta would like to flag that the proposed regulations do not specifically mention the Convention on International Trade in Endangered Species, CITES. The importance of this Convention needs to be recognised by the proposed regulations. It is recommended that a paragraph is added to sub-regulation (4) of regulation 3, whereby applicants are specifically obliged to provide CITES documents for any species they import and/or export that fall under this Convention.

Sub-regulation (7) of regulation 3 states that “The Director may refuse an application for the license of a zoo or for the introduction of an animal into a zoo for any reason he deems valid in the interest animal health or animal welfare and the safety of the general public.” Time for Change Malta proposes that the Director should also refuse an application for a licence of a zoo based on the fact that the applicant has not been able to provide evidence to show that the zoo’s activities will be contributing in a feasible manner to the conservation of biodiversity.

Following on this, it is being recommended that a paragraph is added to sub-regulation (9) of regulation 3 to ensure that the Director may only uphold an application for a zoo where he is satisfied that the zoo has created a feasible and valuable programme to promote the Page 12 of 27

Time for Change Malta Feedback on the Keeping of Wild Animals in Zoos Regulations December 2020

conservation of biodiversity and public education. The upkeep of such a programme must be made part of the licensing conditions to ensure longevity of these contributions. To ensure that zoos participate in conservation activities it is also being recommended that the wording of regulation 7 is changed to oblige zoos to participate in at least one of the activities listed in the same regulation.

Further implementing measures must be set out to delineate how these conservation measures are going to be quantified in terms of their contribution to the conservation of biodiversity and public education, and how the work carried out will be made public. As it is being proposed, the wording behind these provisions is too vague and generalised, in particular that of paragraph (a) of regulation 7, which allows for too broad of an interpretation and can create loophole whereby zookeepers can present their activities as promoting the conservation of biodiversity, without actually proving tangible results.

Moreover, Time for Change Malta would like to express its concern that the proposed regulations do not include a provision which outright bans the display of unnatural behaviour.

There are zoos in Malta that force their animals to put on shows to the public, under the pretence of providing public education. However, such shows are not limited to natural behaviours and in certain cases can amount to little more than forcing the animals to perform circus tricks. This is both detrimental to the welfare of the animal and in no way contributes to public education or the conservation of the species, and therefore such activities should be strictly prohibited. Furthermore, Time for Change Malta proposes that a provision should be included to oblige zookeepers to promote the conservation of indigenous and endemic species and provide public education on such species, possibly in cooperation with government authorities and/or local NGOs. Research in this area, such as possibly designing a programme to boost depleted populations of local wildlife would be an interesting area to consider.

Moving on to the protection of the environment â&#x20AC;&#x201C; sub-regulation (2) of regulation 1 makes it clear that the protection of wild fauna and the conservation biodiversity is one of the main priorities of these proposed regulations. However, this protection should also be extended to local wild flora and the natural environment. Time for Change Malta is concerned that there are no substantive provisions in the proposed regulations that deal with the possible effect of zoos on the environment.

A general provision should be included to delineate that a zookeeper must take all precautions necessary to ensure that the operations of the zoo do not in any way harm the surrounding natural environment or the local biodiversity. It is recommended that a paragraph is added to sub-regulation (9) of regulation 3 to ensure that the Director may only uphold an application for a zoo where he is satisfied that the zoo has taken all the measures required to ensure that the zooâ&#x20AC;&#x2122;s operations do not damage the environment or local biodiversity.

Time for Change Malta also proposes that wording should be added to sub-regulation (1) of regulation 5 to delineate that apart from being responsible for any matter relating to the health Page 13 of 27

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and safety of the animal and the general public, zookeepers should also be responsible for any damage caused to the environment and/or local biodiversity by zoo operations. The legislation should also state that if an animal escapes from the zoo, the zookeeper is obliged to, as soon as possible, retake possession of the animal at his own expense and to make good any damages caused.

Time for Change Malta is pleased to see the addition of the requirement for zookeepers to hold insurance policies related to any potential damage caused by the animals in a zoo, as set out in regulation 17. However, Time for Change Malta considers that this insurance requirement should also be extended to insurance for environmental damage, to ensure that if damage does occur, the actions necessary to remedy it are available.

Time for Change Malta proposes that any application for a zoo and any existing zoos, should require an Environmental Impact Assessment, or another appropriate assessment, to be issued by the Environment and Resources Authority to assess the impact of the zoo operations on the environment, before such an application can be forwarded to the Director. Time for Change Malta urges that the proposed regulations should include the recommendations set out in ERA’s National Code of Good Practice on Zoos, Aquaria & Invasive Alien Species.13 Apart from provisions on minimizing the escape of animals into the local environment, zookeepers must ensure that provisions are in place to minimize the infiltration of any alien flora species that are used to enrich the enclosures in the zoo into the local environment.

Looking further afield, zoos should also be expected and obliged to give a better example in terms of protection of the environment, which is heavily linked to the protection and conservation of biodiversity. Time for Change Malta proposes that zoos should be obliged to operate in an environmentally friendly manner, including the provision that a percentage of zoo’s electricity consumption should derive from renewable energy sources.

As a final note, Time for Change Malta highly recommends that the provisions on the standards for accepted conservation activities in zoos set out in the EAZA Guidelines on the Definition of a Direct Contribution to Conservation14 and the EU Zoos Directive Good Practices Document15 are integrated into the legislation to ensure that any conservation efforts are of high quality and have effective results. The standards on public education found in the EAZA Conservation

13

ERA, ‘National Code of Good Practice on Zoos, Aquaria & Invasive Alien Species’, Available at: < https://era.org.mt/wp-content/uploads/2020/01/Code-of-Best-Practice-Zoos-Aquaria-andIAS_Public_Consultation.pdf>.

14 EAZA, ‘EAZA Guidelines on the Definition of a Direct Contribution to Conservation’, 2015. Available at: < https://www.eaza.net/assets/Uploads/Guidelines/Contribution-to-conservation-definition-2015-04Revisions.pdf>.

15 European Council, ‘EU Zoos Directive Good Practices Document’, 2015. Available at: < https://ec.europa.eu/environment/nature/pdf/EU_Zoos_Directive_Good_Practices.pdf>.

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Education Standards16 should also be followed to ensure that any education provided to the public in a zoo is of the highest standard.

Further Protection of Public Health and Safety It is being recommended that a paragraph is added to sub-regulation (9) of regulation 3 to ensure that the Director may only uphold an application for a zoo where he is satisfied that the zookeeper has installed the appropriate measures to prevent an animal from escaping, to minimise the possibility of unauthorised entry, and to minimise the possibility of unauthorised direct contact between the public and the animal, and where he is satisfied that the measures are in place for cases where an animal does escape. It is Time for Change Malta’s opinion that the wording as set out in paragraph (b) of regulation (10) of regulation 3 only ascertains that the zookeeper has the knowledge related to public health and safety, and not that the measures are actually in place. Furthermore, more focus needs to be given on limiting unauthorised entry in addition to limiting the escape of an animal.

It is recommended that the provision in paragraph (f) of regulation 7 should be expanded to state that the prevention of escape of animals should be carried out to avoid not only “possible ecological threats to indigenous species and preventing intrusion of outside pests and vermin” but also to avoid “possible harm to the general heath and safety of the public.”

Time for Change Malta proposes that more detailed provisions should be set out on how enclosures and other areas of the zoo should be designed to protect public health and safety.

In particular it is recommended that zoos should be obliged to install a double perimeter fence/wall and use more natural means of keeping the animals away from the edges of their enclosures, such as through the use of bodies of water. These detailed provisions should also include requirements on the general hygiene in the zoo and more comprehensive regulations on how the zoo shall minimise the risk of transmission of zoonoses between animals and humans.

Time for Change Malta considers that the wording of sub-regulation (14) of regulation 3, which delineates that a carcass of animal must be kept for 3 days, necessitates the inclusion of provisions to oblige the zookeeper to install equipment to keep a carcass in a safe manner without posing a risk for the health and safety of the public for that period of time.

16

EAZA, ‘EAZA Conservation Education Standards’, 2016. Available at: < https://www.eaza.net/assets/Uploads/Standards-and-policies/EAZA-Conservation-Education-Standards-201609.pdf>.

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Licensing and Inspection Provisions Time for Change Malta welcomes the more detailed provisions on licensing that are set out in regulation 8 of the proposed regulations, however there are some recommendations to be made on this process.

Time for Change Malta recommends that sub-regulation (4) of regulation 3 is further qualified to set out a specific list of documents that are required to be submitted by a zookeeper when applying for a licence. It is Time for Change Malta’s recommendation that the following documents are made mandatory: • • • • • • •

•

Confirmation from the Planning Authority that any development on the site of the zoo is in line with existing and applicable development permits; Confirmation from the Environment and Resources Authority that the zoo is operating in line with environmental standards; The relevant documents required to prove that each animal was brought into the country in a legal manner, in particular any CITES documents; The criminal conduct of the zookeeper and all zoo employees; Copies of certificates of relevant training of the zookeeper and zoo employees, including training to administer controlled substances such as tranquilizers; Copies of insurance policies; Action plans on how the zoo aims to comply with its obligations related to the protection of the environment, the conservation of biodiversity, the provision of public education, the protection of animal welfare, and the protection of public health and safety for the coming year.

If the application is for renewing an already existing licence: Annual report on the zoo’s work in relation to the protection of the environment, the conservation of biodiversity, the provision of public education, the protection of animal welfare, and the protection of public health and safety for the previous year.

Furthermore, in light of the difficulties faced by businesses during the COVID-19 pandemic, Time for Change Malta questions whether it would be appropriate to also request general business plans for the year, including provisions on how the zoo intends to deal with financial issues should visitor profits decrease due to natural occurrences, such as a pandemic.

Time for Change Malta also recommends that a provision is delineated in the legislation which states that the documents that are required to apply for a licence at the initial stages, including confirmations from the relevant are re-issued and re-submitted. This is necessary to ensure that the zoo has remained within its licensing criteria throughout the 12 month period for which a licence is given.

Time for Change Malta welcomes that provision in sub-regulation (3) of regulation 8 which states that inspections shall be carried out before “granting, refusing, extending the period of, Page 16 of 27

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or significantly amending a license.â&#x20AC;? However, there should be clarification on what â&#x20AC;&#x153;significantly amending a licenseâ&#x20AC;? means. Time for Change Malta recommends that this should include any introduction of a new animal to the zoo, including via birth from parents who are already present in the zoo, and proposes that this should be delineated specifically in the law.

Furthermore, it should be clarified that any such inspection shall not take the place of the annual inspection that is to be carried out when considering the renewal of a zoo licence.

Moreover, Time for Change Malta recommends that the legislation should obligate the Director to also carry out random spot-checks that are unscheduled to ensure that zoo operations are being conducted according to their licence requirements. It is mandatory that measures are taken to ensure that zookeepers are in no way notified of such unscheduled checks.

Once an inspection has been carried out, the person inspecting the zoo should be obliged by the law to draw up and submit a report regarding the zoo, in particular flagging any areas that need close monitoring and/or need to be amended before a licence is granted and/or renewed.

Furthermore, a time limit must be delineated within which any issues must be rectified, in default of which the licence will be revoked.

Sub-regulation (5) of regulation 8 should be extended to clearly ascertain that if a zoo or part thereof is closed down, all expenses related to this, including any expenses related to transportation or transfer of animals, must be solely born by the zookeeper. Time for Change Malta considers that the legislation should also state that if a zookeeper loses their licence due to being in default of its conditions, the individual should not be allowed to apply for another licence.

Time for Change Malta recommends that provisions should be drafted to consider what will happen in a situation where, for whatever reason, a zookeeper would like to give up their licence, or has become deceased. In such a scenario, the legislation must ascertain what will happen to the licence held by that zookeeper, whether the licence is transferrable, and if so, against what conditions, and what will happen to the animals in the zoo should the licence be surrendered.

Following on this, it is important to delineate a process for what will happen in the case that a licence is revoked, that a zookeeper gives up their licence, or a zoo, or part thereof, needs to be shut down. Provisions may be modelled on those set out in the UK Zoo Licensing Act.17 In such a situation, the zookeeper must furnish the Director with an action plan in relation to what will happen to the animals under his care. Any disposal and/or transfer of an animal must be approved by the Director. If the Director is not satisfied with the process of such disposal and/or transfer or with the zookeepers handling of the animals while the process is ongoing,

17

UK Zoo Licensing Act 1981, section 16E. Available at: <https://www.legislation.gov.uk/ukpga/1981/37> accessed 25 November 2020.

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he should have the authority to make his own directions regarding the future care of the animals, including seizing the animals in question. Any such directions and arrangements made shall not, as far as it is possible, be prejudicial to animal welfare and shall in no way harm the conservation of biodiversity or the surrounding natural environment.

Finally, Time for Change Malta recommends that the legislation should delineate who will be participating in inspections. While it is understood that random spot-checks may be carried out by the Director or a person nominated by him alone due to logistical issues, the annual inspection to renew a licence should be attended by other personnel too, including a representative of the Animal Welfare Council, a veterinarian who specialises in exotic animal welfare and is not affiliated with the zoo, and a representative of a local NGO. Time for Change Malta also recommends that sub-regulation (3) of regulation 13 is amended to give the Director the power to request the assistance of the police in any inspection and not only when he has reason to believe that he may be hindered in his right of entry, as this is limiting and may create issues in having to prove whether the Director truly had the reason to believe that he may be hindered or not.

Enforcement In the first place, Time for Change Malta would like to request clarification on who will be the enforcement personnel in relation to zoos. It is not clear whether this will be the Director, or a person nominated by him alone, or if this will also include animal welfare officers as defined in the Animal Welfare Act. This clarification is important to avoid any misinterpretation or misapplication of the law.

It is recommended that sub-regulation (12) of regulation 3 should be reworded to state as follows: “Upon upholding an application for registration of a zoo or for the keeping of an animal therein, the Director may impose any conditions he deems fit on the authorized zoo-keeper with regards to the animal/s and any other relevant matters.”, to ensure that more power lies in the hands of the Director in relation to conditions that can be imposed on a licence.

Regulation 7 states that “The Director shall take all measures under these regulations to ensure that all zoos implement all the conditions and conservation measures provided by these regulations […]”. Time for Change Malta suggests that it may be practical to amend the wording to read as follows, to ensure that the Director is not limited in any way when exercising all the remedies available at law to him: “The Director shall take all measures available to him at law to ensure that all zoos implement all the conditions and conservation measures provided by these regulations […]”.

Time for Change Malta welcomes regulation 12 which set out provisions to come into play when an animal is found to be lacking authorisation. Time for Change Malta recommends that further provisions are added to this regulation to state that the person who is responsible for Page 18 of 27

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bringing the animal in and/or the zookeeper shall pay a fine for every day that the animal has been kept without authorisation and that they are completely responsible for the welfare of that animal even while being transferred. The legislation needs to ensure that such a practice brings down punitive consequences to deter its continuation.

Sub-regulation (1) of regulation 13 states that “The Director shall have the authority to enter without prior notification any registered private establishment or licensed zoo or any site where there is a suspicion that animals are being kept without the required authorisations.”

However, Time for Change Malta is concerned that this is severely limiting the Director’s right to enter sites being used as zoos, in particular as this wording places the burden of proving such a suspicion on the Director. Time for Change Malta proposes that the wording should be amended to read as follows: “The Director may enter any registered private establishment, licensed zoo, or any site where animals are being kept and shall investigate and enter any establishment within which they have the suspicion that animals are being kept without the required authorisations to investigate the conditions therein.”

In sub-regulation (1) of regulation 15, the notification of escape or demise of an animal should also include details regarding what led to this escape or demise. These details should then be verified by the Director to ascertain that they were not the result of ill-treatment or neglect, or of non-compliance.

Moreover, Time for Change Malta recommends that a provision is included to allow the Director the authority to request any information relating to the health and welfare of the animals kept by a zookeeper and to oblige the zookeeper to furnish the Director with such information in a reasonable time period.

Time for Change Malta would also like to ensure that all of the enforcement powers afforded to the Director under article 44B of the Animal Welfare Act should be applicable when enforcing the provisions of the proposed regulations, and therefore suggests that a specific reference to article 44B should be included.

In any law, the effectiveness of the fines meted out is a crucial aspect to ensuring compliance with the law. Any fine imposed must be punitive to a degree that it acts as a clear deterrent for non-compliance. Therefore, the proposed regulations must ensure that the profit made from non-compliance with the law shall not override the punitive nature of the fines that may be imposed on the zookeeper for such non-compliance. In this scenario, Time for Change Malta suggests that a “one-size-fits-all” approach to fines will not be effective, since a fixed amount will not result in the same efficacy depending on the zookeeper. Therefore, it is recommended that fines should be based on a percentage of the total revenue of the zookeeper.

Furthermore, Time for Change Malta suggests that zookeepers should be required to deposit a bank guarantee in favour of the Director which shall be forfeited in cases of severe noncompliance. This will act as a further deterrent.

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Provisions on Qualifications and Training of Personnel One of the major points of consternation in relation to zoos is the fact that they are very complex establishments that require knowledge of various disciplines. In this regard, personnel affiliated with the operation and monitoring of zoos must be appropriately trained, including the zookeepers, the staff, veterinarians involved with the zoo, as well as the Director and inspection staff and enforcement officers. Time for Change Malta is pleased to see that consideration to such training is being given in the proposed regulations, however it proposes that such training needs to be quantified in a more detailed manner.

Time for Change Malta requests clarification on how the requirements set out in paragraphs (a) and (b) of sub-regulation (10) of regulation 3, being that the “Director may only uphold an application for a zoo where he is satisfied that the applicant is sufficiently knowledgeable as to the proper organisation and running of the establishment and in the proper handling of animals [… and …] has sufficient knowledge regarding the conditions to prevent any animal from escaping putting in place measures to be taken in the event of any escape […]”, shall be quantified. What kind of training will be required to satisfy these requirements? The same concern and question applies to sub-regulation (11) of regulation 3 which states that “The Director may uphold an application for the introduction of any animal/s into a licensed zoo where he is satisfied that the applicant is sufficiently knowledgeable as to the animal/s basic physiological and behavioural needs, their care, handling, welfare and safety requirements relative to the particular animal/s.”

It is important that the authorities insist that relevant education should come from proper scientific education, not “tradition” and “common usages” that are simply assumed to be correct by laypersons who may not understanding the complex nature of animal health and welfare. In particular, the very common concept that successful breeding is equal to good health should not be allowed to continue.

Time for Change Malta further proposes that training and education requirements should also apply to the staff of the zoo. Therefore, sub-regulation (10) of regulation 3 should be amended to include a provision that states that the Director may only uphold an application for a zoo where he is also satisfied that the employees of the zoo are sufficiently trained in the proper handling of the species of the animals being kept there. Following on this, sub-regulation (11) of regulation 3 should also be amended to include a provision which asserts that the Director may only uphold an application for the introduction of an animal into the zoo where he is satisfied that the employees of the zoo are sufficiently trained in the proper handling of that species. The appropriateness of the staff should be assessed every time that a licence is up for renewal to ensure that issues such as staff turnover do not affect the welfare of the animals kept in the zoo.

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Another issue in relation to training and qualifications is the issue of veterinarians associated with the zoos. Any reference to a veterinarian in these regulations should be amended to refer to a veterinarian who specialises in the welfare of wild animals, to ensure that the care being provided to the animals kept in the zoo is of the highest quality. The Director may consider implementing the requirement that any veterinarian associated with a zoo must be accredited by an international body, since all veterinarians in Malta must obtain their qualifications abroad. At a bare minimum, veterinarians associated with a zoo must be able to provide basic care and husbandry to the various species found in a zoo (including non-mammalian species) as well as be able to carry out neutering and spaying of these various animals. This may require the zookeeper to retain more than one vet, especially if the zoo hosts species of different taxonomic classes. There may be other types of professionals who can provide advice and monitoring on issues related to enrichment and husbandry of wild animals, and these should not be discounted.

Time for Change Malta also recommends that any and all officers tasked with the inspection of a zoo must have the training necessary to be able to appropriately analyse and note issues within a zoo, in particular in relation to animal welfare.

Furthermore, training of zookeepers, zoo staff, and inspection and enforcement officers should not be limited to animal welfare and husbandry issues and should include training on how to carry out and implement conservation and biodiversity programmes and how to appropriately promote public education.

Sub-regulation (1) of regulation 18 and Trade Implications Time for Change Malta expresses concern about the inclusion of the following wording in subregulation (1) of regulation 18, which states as follows: â&#x20AC;&#x153;The provisions of these regulations shall in no way be interpreted as to limit, substitute or exclude the applicability of any other laws or regulations including those relating to trade, movement or importation of animals and the holding of substances or arms.â&#x20AC;?

Time for Change Malta considers that this wording is unnecessary and opens a can of worms, effectively weakening the entirety of the proposed regulations. Time for Change Malta recognises that this wording is included in an attempt to respect the regulations on trade, including free movement of goods and, by extension, live animals, that Malta is subject to as a member of the European Union (EU) and the World Trade Organisation (WTO). However, Time for Change Malta is of the opinion that restricting the trade of certain animals based on animal welfare implications is a legitimate limit for trade.

In the first place, while articles 34 and 35 of the Treaty on the Functioning of the European Union secure the freedom of movement of goods, article 36 sets out exceptions to these articles as follows: â&#x20AC;&#x153;The provisions of Articles 34 and 35 shall not preclude prohibitions or Page 21 of 27

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restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants[.].” Therefore, animal health may be considered as a valid limit on the free movement of goods. This is especially relevant considering that article 13 of the same treaty states: “In formulating and implementing the Union's agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals”.18 While historically, a number of measures on animal welfare have been weakened as they were seen as incompatible with legislation on trade, the concept of animal welfare has gradually grown in importance and become considered as part of a nation’s public morals.19 In fact, the EU itself has adopted legislation to limit trade in goods based on considerations that include animal welfare, such as Council Regulation 3254/91/EEC prohibiting the use of leghold traps in the Community and the introduction into the Community of pelts and manufactured goods of certain wild animal species originating in countries which catch them by means of leghold traps or trapping methods which do not meet international humane trapping standards, Council Regulation 1007/2009/EC on trade in seal products, Council Directive 2003/15/EC on the approximation of the laws of the Member States relating to cosmetic products, and Council Regulation 1523/2007/EC banning the placing on the market and the import to, or export from, the Community of cat and dog fur, and products containing such fur.

It is important to note the consequences of Council Regulation 1007/2009/EC on trade in seal products. The EU established this Regulation, and its consequential general prohibition on of the marketing of seal products in its market, based on the allegation “that the hunting of seals inflicts suffering contrary to the European public morality on ‘animal welfare’”.20 Canada and Norway made a complaint regarding this legislation before the WTO and a decision was handed down by the WTO Panel in 2013 and then the Appellate Body in 2014 in what is now known as the EC-Seals Products Case.21 Notably, the Appellate Body confirmed that considerations on animal welfare are valid for limiting trade under the exceptions to freedom of trade delineated in Article XX(a), which states that nothing in the General Agreement on Trade and Tariffs “shall be construed to prevent the adoption or enforcement by any contracting party of measures

18

Emphasis added by author.

Nollkaemper, A. (1996) ‘The legality of moral crusades disguised in trade laws: an analysis of the EC ban on furs from animals taken from leghold traps’, Journal of Environmental Law, 8(2), pp. 237; Cook, K. and Bowles, D. (2010) ‘Growing pains: the developing relationship of animal welfare standards and the world trade rules’, Review of European Community and International Environmental Law, 19(2), pp. 227-238. Doi: 10.1111/j.14679388.2010.00679.x.

20 Fernández-Pons, X. and Lembo, C. 'The case EC – Seal Products: the WTO dispute settlement system before a “trilemma” between free trade, animal welfare, and rights of indigenous peoples', The WTO dispute settlement mechanism: a developing country perspective (1st edn, Springer 2019) <https://doi.org/10.1007/978-3-03003263-0> accessed 30 November 2020.

21 WTO AB European Communities – Measures prohibiting the importation and marketing of seals products WT/DS400/AB/R and WT/DS401/AB/R 22 May 2014.

19

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[…] (a) necessary to protect public morals”. This decision is key in showing that the WTO is willing to accept considerations of animal welfare to be a factor to limit trade.22 The concept of banning certain animals from being allowed into Malta should not be considered a trade tariff, which is what sub-regulation (1) of regulation 18 is implying. It should be considered a science-backed policy that attempts to protect the animal welfare of individual animals based on the fact that they cannot be kept in optimum welfare conditions in the unique environment present in Malta and that such concern for animal welfare is an integral part of Malta’s public morals. To further solidify such an issue, expert advice can be sought from the World Organisation for Animal Health (OIE), which has been recognised by the WTO as the as the guiding organization for their Sanitary and Phytosanitary Measures Agreement.

Assistance may also be sought from the Eurogroup for Animals who have an entire project devoted to ensuring that animal welfare is respected in trade policy.23

Reporting and Recording Obligations Time for Change Malta welcomes the inclusion of a Dangerous Animals Register in the proposed regulations and the requirement for zookeepers to register dangerous animals held in their zoos and for the Director to keep such a register under sub-regulation (1) of regulation 3 and sub-regulation (1) of regulation 10. However, Time for Change Malta is of the opinion that such records should also be registered with the Director for all animals. Therefore, the records to be kept by zookeepers according to regulation 11 should be forwarded to the Director. Furthermore, an obligation should be set out to state that the register of animals kept by a zookeeper must be kept up to date with any births, deaths, or transfers, and that all such eventualities must be communicated to the Director, who shall also have the obligation to keep their records up-to-date, as such a provision is not clearly set out in the wording of the proposed regulations. The importance of accurate record-keeping by zookeepers and the Director cannot be overstated.

Time for Change Malta also recommends that a general provision should be set out to oblige the zookeeper to ensure that every animal held by him bears a means of identification, for example, through the use of microchips. The register to be kept according to regulation 11 should also include such identification. Such registers kept by the zoo should be verified during the annual licensing inspection.

22

Sykes, K. (2014) ‘Sealing animal welfare into the GATT exceptions: the international dimension of animal welfare in WTO disputes’, World Trade Review, 13(3), pp. 471-498. Doi: 10.1017/S1474745613000232.; Howse, R., Langille, J. and Sykes, K. (2015) ‘Pluralism in practice: moral legislation and the law of the WTO after Seal Products’, The Geo. Wash. Int’l L. Rev, 48, pp. 81-150, NYU School of Law, Public Law Research Paper No. 15-05, Available at SSRN: <https://ssrn.com/abstract=2588509> accessed 30 November 2020.

23 'Trade And Animal Welfare | Eurogroup For Animals' (Eurogroupforanimals.org, 2020) <https://www.eurogroupforanimals.org/what-we-do/policy-areas/trade-and-animal-welfare> accessed 30 November 2020.

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Furthermore, Time for Change Malta proposes that the requirement to obtain a DNA profile for all dangerous animals, as set out by sub-regulation (5) of regulation 3 should also be extended to all species that fall under CITES, even if they are not classified as dangerous under Maltese legislation.

Time for Change Malta considers that the time limit to notify the Director of any new offspring within the zoo as set out in sub-regulation (13) of regulation 3 should be shortened from one week to three days. The time limit to register any new offspring with the Director as set out in sub-regulation (14) of regulation 3 should be shortened from four weeks to one week.

Public Accountability Time for Change Malta considers that the concept of public accountability and freedom of information in relation to zoo operations in Malta is lacking and proposes that more must be done to protect these principles in the legislation.

The registers and records of animals kept in a zoo, in particular records related to captive breeding should be made publicly available. Since such records do not pertain to humans, there should be no data protection issues in this regard. In a modern world, where access to the Internet and television can provide a much better understanding of wild animals and their habitats, zoos must be able to justify their operations to the public, especially when considering that such operations have a significant effect on the welfare of the animals kept therein and may lead to issues with environmental damage and public health and safety.

Time for Change Malta is pleased to see the inclusion of sub-regulation (3) of regulation 10 (the second instance) which states that â&#x20AC;&#x153;The Director reserves the right to communicate data contained in the register to any other local or international authority or entity as may be required.â&#x20AC;? This is certainly a step forward in assuring that zoo operations come under more public scrutiny. However, Time for Change Malta recommends that the decision on whether to communicate data should not solely reside with the Director, and that information that is not related to humans should be handed over when a request for such is made, within a reasonable time frame. Provisions should also be delineated on how and to who such a request shall be made.

Moreover, Time for Change Malta recommends that the legislation should oblige the Director to issue an annual report on zoo operations in Malta. Such a report should include the number of licenses granted, the transfer of animals, captive breeding measures, the results of inspections, any enforcement notices and their results, the measures taken to protect animal welfare, the results of the efforts to promote the conservation of biodiversity and public education taken by the zoos, measures taken to protect public health and safety, and measures taken to protect the local environment.

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Time for Change Malta would also like to see a provision promulgated to oblige the Director to follow up on reports of non-compliance made by private citizens as well as NGOs. This will add another layer of monitoring to ensure that zoos are operating in a proper manner.

Institutional Problems: Infrastructure and Cooperation There are issues with the current system of zookeeping in Malta that may not be directly related to legislation but still require consideration.

Time for Change Malta would like to express its concern regarding the problem of infrastructure in ensuring that zoos in Malta are keeping to their requirements set out in legislation. Time for Change Malta would like clarification on how these regulations can help to ameliorate the problem faced by Maltese authorities, whereby they may be unable to confiscate an animal and/or enforce and enforcement notice in full because they do not have the space to place the animals subject to such an enforcement notice. This issue cannot be ignored, and Time for Change Malta strongly recommends that until it is dealt with, there should be a moratorium on the importation of any new wild animals into Maltese zoos.

Another issue that needs to be looked at is cooperation among authorities. Since they affect so many facets of the surrounding environment, zoos are subject to the authority of different authorities. Cooperation among these authorities is absolutely necessary to ensuring that zoos are monitored and held to the proper standards.

Sub-regulation (9) of regulation 3 should be expanded to state that the Director may only uphold an application for a zoo when the applicant has supplied the Director with confirmation from the Planning Authority that the site has been developed according to applicable development permits and confirmation from the Environment and Resources Authority that an appropriate assessment of the environmental impact of the zoo has been carried out and that the provisions of CITES have been followed. Sub-regulation (7) of regulation 3 should also be extended to state that the Director may refuse an application to open a zoo based on the fact that the applicant has not provided such documents.

Time for Change Malta welcomes the inclusion of sub-regulation (2) of regulation 4 which ascertains that all enclosures forming part of a zoo must be subject to all the permits required by law. However, the proposed regulations do not delineate how this will be confirmed by the Director, who may not have the resources to do so. Due to this, Time for Change Malta recommends that with each licensing inspection, the zookeeper must furnish the Director with confirmation from the relevant national authorities that the standards falling under their remit are being adhered to by the zoo, including development permits, environmental standards, and documents related to species that fall under CITES. Furthermore, the regulations should state that if, during operation, the applicant does not adhere to the criteria set out by the

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Time for Change Malta Feedback on the Keeping of Wild Animals in Zoos Regulations December 2020

Planning Authority and/or the Environment and Resources Authority, the Director should have the power to revoke their licence based on this default.

Cooperation also needs to be enhanced to ensure that the current trend of initiating operation as a zoo without obtaining a licence and then applying, and receiving sanctioning, shall not continue, as this is a loophole that has been abused and has led to zoos operating in a manner that is not according to legislation without facing appropriate repercussions.

A major area of concern that is being flagged by Time for Change Malta is the fact that the authority overseeing CITES compliance in Malta is not the Director. In this case, proper communication channels must be set up with the Environment and Resources Authority to ensure that animals subject to CITES regulations do not fall through the gaps in terms of ensuring that the proper documentation is presented and filed and importation/exportation criteria are met. Moreover, guidelines should be established in collaboration with other authorities regarding the development of zoos and standards related to such development, including for example, how far they should be from residential areas.

Typos & Miscellaneous Sub-regulation (4) of regulation 6 makes reference to sub-regulation (2) of regulation 7, which does not exist in the proposed regulations.

Regulation 10 has two sub regulations (3).

Paragraphs (e) and (f) of sub-regulation (3) of regulation 10 (first instance) make reference to “regulation 7”, which should be amended to reference regulation 9.

Paragraph (f) of regulation 11 should not be in a paragraph but should be part of the main text of the regulation.

The heading of sub-regulation (5) of regulation 10 should be amended to “Cap. 586”, since “Cap. 440” has been repealed.

Conclusion While Time for Change Malta considers that the proposed regulations are a step in the right direction, it is concerned that the regulations still allow for numerous loopholes and lacunae which will affect the welfare of animals kept in zoos. Furthermore, while the legislation attempts to consider various issues, it is still far too general in its provisions, and should endeavour to rely on more specific standards to ensure that there is no room for abuse of the spirit of the law, i.e. the protection of the animals kept in zoos.

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Time for Change Malta Feedback on the Keeping of Wild Animals in Zoos Regulations December 2020

Furthermore, Time for Change considers that legislative review will not be enough to solve the myriad issues faced by zookeeping in Malta. Legislative review will have to be backed up by increase in and more efficient method of enforcement, including ensuring that enforcement officials have ease of access to bring cases to court without being faced with multiple struggles.

In fact, Time for Change Malta impresses the importance of the setting up of a specialised Tribunal related to animal welfare issues which will ensure that cases can be dealt with in an efficient and swift manner. Furthermore, other legislation which is complementary to zookeeping activities in Malta must also be reviewed, including in particular SL 439.19 Owning and Keeping of Dangerous Animals Regulations.

Local authorities should not be expected to deal with the extremely complicated issues of zookeeping alone and without proper resources. The relevant authorities need to implement the tradition of looking towards the resources available to them, especially those emanating from the EU, such as the EU Zoos Directive Good Practices Document which was especially commissioned by the European Commission to assist member states with the implementation of Directive 1999/22/EC. Local authorities should also look towards international institutions such as the EAZA to supplement their functions.

To consolidate Time for Change Maltaâ&#x20AC;&#x2122;s feedback, we adding a sample set of proposed regulations that build upon those issued in the public consultation process.

On a final note, Time for Change Malta would like to briefly comment on why it believes that the local Government should involve itself more with the practice of zookeeping among private individuals, and we believe that the eminent philosopher John Stuart Mill explained it succinctly as follows: â&#x20AC;&#x153;The reasons for legal intervention in favour of children, apply not less strongly to the case of those unfortunate slaves and victims of the most brutal part of mankind, the lower animals. It is by the grossest misunderstanding of the principles of liberty, that the infliction of exemplary punishment on ruffianism practiced towards these defenceless creatures has been treated as meddling by government with things beyond its province; an interference with domestic life. The domestic life of domestic tyrants is one of the things which it is the most imperative on the law to interfere with.â&#x20AC;?24

24

Mill, J. S. (2004) Principles of political economy (abridged): with some of their applications to social philosophy, edited with introduction by Stephen Nathanson. Hackett Publishing, p.291.

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