Hunting group loses High Court challenge over ban on shooting four duck species
Seán McCárthaigh
The country’s largest hunting organisation has lost a legal challenge against a 2023 ban on shooting four species of duck after the High Court ruled that the Minister for Housing, Local Government and Heritage, has acted lawfully in restricting the hunting of pintail, pochard, scaup and goldeneye ducks.
The National Association of Regional Game Council and its chairperson, John Butler, had sought a judicial review of the Wildlife (Wild Birds) (Open Seasons) (Amendment) Order 2023, which made it unlawful to hunt the four species of duck after August 24, 2023.
The NARGC, which has 26,000 across 1,050 affiliated clubs, claimed the minister had acted unlawfully in making the order by failing to comply with a provision of the Welfare Act 1976 that required him to consider the ecological, scientific and cultural requirements as well as economic and recreational requirements before making the change.
Counsel for the NARGC, Neil Steen, said there was no evidence that recreational hunters in Ireland had jeopardised conservation efforts relating to the affected species of duck.
However, counsel for the State, Caren Geoghegan, argued the minister had the powers to make the order without being obliged to carry out the analysis suggested by the NARGC.
Ms Geoghegan also said the minister had acted on “cogent scientific evidence” that there had been a decline in the populations of the relevant species in Ireland over the preceding years.
She pointed out that the minister was essentially required to maintain the populations of species of wild birds at a satisfactory level.
In his ruling, Judge Anthony Barr said it was clear that the minister enjoys a wide discretion on the exercise of powers conferred on him under the Wildlife Act 1976.
He noted that 13 affidavits were filed in the case extending to over 3,900 pages, much of which he described as “argumentative, repetitious and irrelevant” including expert reports commissioned by the NARGC.
Barr noted there was evidence that the European Commission had started to express concern from 2020 about declining population trends in certain duck species.
An official from the National Parks and Wildlife Service had told the court that the then Minister of State in the Department, Malcolm Noonan, had also identified a concern in 2021 about the potentially unsustainable hunting of birds on Birdwatch Ireland’s red and amber lists of conservation concern.
The official, Cliona O’Brien, gave evidence of a detailed process to determine what species might be removed from wild birds that could be hunted during the open season, including an extensive public consultation including an online survey and public stakeholder meeting.
The judge ruled the minister had powers to take whatever steps were deemed necessary to maintain the populations of wild birds at satisfactory levels.
He said such powers were not circumscribed by any requirement to take any economic or recreational factors into account in making his decision.
Barr said it was clear that a working group within the Department of Housing, Local Government and Heritage had a deep knowledge of the issues concerning wild birds in Ireland.
The judge said he accepted data from the Irish Wetlands Bird Survey which showed a significant decline in the population of the four species of duck was “robust and reliable".
He rejected a claim by the NARGC that there was an absence of “bag data” – figures compiled by hunters on how many birds are shot – to justify the ban as the decline in populations could be due to another cause such as climate change.
Barr said the minister was entitled to apply “the precautionary principle” and also observed that it was not open to the NARGC to complain about the lack of bag data available to the minister when it had deliberately withheld such information from him.
