European/Maltese Environment Law and Controls and Enforcement

Professor Kevin AquilinaDean, Faculty of Laws,

University of Malta

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• Today’s presentation deals with the theme of ‘European/Maltese Environmental Law and Controls and Enforcement’. The main emphasis thus will not be on Environmental Substantive Law but on Environmental Procedural Law for it is this branch of environmental law which deals with controls and enforcement. However, before going straight into this topic I need to clear two preliminary points. These are:

• what does Maltese Environmental Law mean by the term ‘environment’?

• why is the title of the presentation referring to both European and Maltese Environmental Law?

Let me first address the first preliminary point, what does Maltese Environmental Law mean by the term ‘environment’?

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Defining the Key Term: What is the ‘Environment’?

Over the years, the term ‘environment’ has been ascribed various meanings in diverse environmental enactments. Normally, the meaning has to be read in the light of the statute in question. For instance, if the law concerns the regulation of an environmental impact assessment which, by its very own nature, deals with the environment in its multifaceted aspects, then a wide definition is given. If, on the other hand, the statute is dealing with say the protection of a particular species of flora or fauna, then the tendency would be to define the environment narrowly, within the context of that species

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Furthermore, the term ‘environment’ tends to be qualified by various adjectives such as the ‘built’ environment, the ‘social’ environment, the ‘natural’ environment, the ‘cultural’ environment, etc. All these adjectives qualify and stress one particular aspect of the environment. But that does not mean that the environment is necessarily restricted to such sole or unique type of environment. For instance a law on the cultural heritage would be interested more in protecting the ‘cultural’ environment rather than the ‘human’ environment or the ‘natural’ environment.

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• However, when a law is dealing with the environment in its totality usually the three adjectives ‘natural’, ‘cultural’ and ‘human’ are addressed. At other times reference is also made to the landscape as forming part of the environment even if the landscape need not necessarily comprise living organisms when the protection afforded is more to the scenery, panorama and view rather than the species, ecosystems and habitats that inhabit that landscape. Furthermore, the nomenclature ‘environment’ has to be distinguished from other words which one comes across in environmental legislation such as ecology, sustainable development and heritage.

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These words cannot be used interchangeably with the word ‘environment’ as each has its own nuance in meaning. In so far as Malta is concerned, the expression ‘environment’ is defined in the Environment and Development Planning Act as follows: "environment" means the whole of the elements and conditions, natural or man made, existing on earth, whether together or in isolation, and in particular: (a) the air, water and land

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(b) all the layers of the atmosphere; (c) all organic and inorganic matter and all living organisms; (d) all ecosystems; and (e) the landscape.

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This is quite a mouthful; indeed a wide definition which seems to incorporate everything in it. Perhaps the key words are ‘elements and conditions’ which, however, are not defined in the law. Whilst paragraphs (a) to (e) provide a list of examples of these ‘elements and conditions’, it is not that clear which are the other ‘elements and conditions’ which are not listed in the definition though included in the general part of the definition. An analysis of this definition reveals that the environment includes the natural environment and the cultural environment. This is because the definition refers to ‘natural or man made’ environment. If by environment the definition means the surroundings in a very wide sense, then it is including both the natural and the cultural environment.

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The cultural environment is man-made. The surroundings in a very wide sense includes the planet earth but the subsequent paragraphs include extra-territorial spaces such as the atmosphere and therefore the various layers which comprise the atmosphere. What nonetheless seems to be excluded is outer space once the ‘elements and conditions’ referred to in the definition have to be ‘existing on earth’. Whilst the atmosphere is part and parcel of planet earth, outer space is not. The definition does not specifically mention the sea although it does refer to ‘water’. Nevertheless, from the context – ‘water’ is juxtaposed to ‘air’ and ‘land’; and it appears that water in this context is water situated on land such as a lake or river. It can also comprise groundwater which can be extracted from the land as used for irrigation or drinking purposes.

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However, the fact that the sea is not mentioned does not exclude it from the definition of the environment. First, because it can be included under an ‘element’ and secondly if the sea comprises seven-tenths of the world, then it is very difficult to argue that the sea is excluded from the definition more so as it hosts several living organisms and ecosystems. Even the landscape is included within the definition of the expression ‘environment’ and a landscape may include both man made elements and the natural environment. Maltese Law therefore has a very difficult task to protect the environment due to the wide significance given to the term which, at times, can also involve cross-boundary implications.

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Why refer to both European and Maltese Environmental Law?The next preliminary point I intend to address in brief is why the title of this presentation is referring to both Maltese and European Environmental Law? The answer lies at the very root of the Maltese Legal System. The latter is a mixed system of common law, civil law and EU law. Up till 1800, Malta was a purely civil law jurisdiction. When the British came over to Malta in 1800 our legal culture began to absorb British legal concepts. Now let me be more precise.

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We are not and have never been influenced by the common law of the United Kingdom. But we have been very much influenced by British Statutory Law, in particular in our Public Law with our Civil and Commercial Laws remaining predominantly, though not exclusively, civilian. However, when in 2004 we acceded to the European Union, we began to be influenced by European Union Law. The latter legal system is replete with environmental law. At the date of accession there was round about 280 pieces of European Union environmental laws.

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By European I therefore mean European Union Law because this has influenced heavily our mixed legal system not only across practically all the branches of Maltese Law but specifically our Environmental Law. Following accession, one cannot discuss Maltese Environmental Law without referring to European Environmental Law as they are inseparable and, to a large extent, indistinguishable. Hence this brings out the relevance of EU Environmental Law to Maltese Environmental Law.

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Controls and Mechanisms Aimed at the Protection of the Environment I now address the controls and mechanisms aimed at the protection of the environment. These controls and mechanisms derive from a number of laws. Having defined the term ‘environment’ the next task is to identify Maltese Environmental Law which addresses controls and mechanisms aimed at protecting the environment.

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The Constitution of Malta

The starting point must, inevitably, be the supreme law of the land – Malta’s written Constitution. Section 9 thereof states that: The State shall safeguard the landscape and the historical and artistic patrimony of the Nation.

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This provision, we are told by section 21 of the Constitution, is non-justiciable: ‘The provisions of this Chapter shall not be enforceable in any court, but the principles therein contained are nevertheless fundamental to the governance of the country and it shall be the aim of the State to apply these principles in making laws.’

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Other Applicable Ordinary Environmental LawsIs article 9 of the Constitution merely wishful thinking? The answer is in the negative as there are several laws which have been enacted by Parliament since Malta gained independence in 1964 aimed specifically at the protection of the environment. These comprise: Porte des Bombes Area (Preservation) Act • Cultural Heritage Act • Environment and Development Planning Act• Building Regulation Act • Sustainable Development Act • Crimes Against the Environment Act. I now address the control and enforcement mechanisms established by these six laws.

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Porte des Bombes Area (Preservation) Act The raison d’etre of the Porte des Bombes Area (Preservation) Act is ‘to provide for the preservation of the area outside Portes des Bombes’. Section 3 declares the area outside Porte des Bombes ‘a non-building area and excluded from commerce, and any deed of conveyance of any part of such area or of any real right over such area which any Government Administration may make in favour of any third party shall be null.’ Hence this control mechanism is also supplemented by an enforcement mechanism in the form of an actio popolaris contained in sections 4 to 6:

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‘4. (1) The right of action for a declaration of nullity in respect of any transfer made in contravention of this Act shall appertain indistinctly to any person and he shall not be required to show any private interest in support of his action.(2) No fee shall be charged by the Registrar of the Superior Courts in respect of the filing by the plaintiff of any judicial act in connection with the exercise of the said action or of the service of any such act, and no registry fee shall be levied in respect of any decision on such action.’

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‘5. It shall likewise be competent to any person, in the public interest, to bring an action for the demolition of any building or other structure erected by any person, or by the Government, on the area outside Portes des Bombes.’‘6. In any action under sections 4 and 5 the court shall, in allowing the claim, order the defendant to pay to the plaintiff a sum not less than 116.47 euro nor exceeding 1,164.69c:Provided that such sum shall be awarded to that plaintiff only who shall first have brought with success the proper action under this Act.’

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The enforcement mechanism behind this law is innovative and effective. Yet it is limited to a very minute area in Malta and is not replicated in other laws making such remedy sectoral and impossible to extrapolate on a national level.Cultural Heritage ActThe Cultural Heritage Act defines the expression ‘cultural heritage’ as meaning:

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‘movable or immovable objects of artistic, architectural, historical, archaeological, ethnographic, palaeontological and geological importance and includes information or data relative to cultural heritage pertaining to Malta or to any other country. This includes archaeological, palaeontological or geological sites and deposits, landscapes, groups of buildings, as well as scientific collections, collections of art objects, manuscripts, books, published material, archives, audio-visual material and reproductions of any of the preceding, or collections of historical value, as well as intangible cultural assets comprising arts, traditions, customs and skills employed in the performing arts, in applied arts and in crafts and other intangible assets which have a historical, artistic or ethnographic value.’

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Once again, quite an exhaustive definition. The breadth of the definition’s purview is however restricted by article 3 of the Cultural Heritage Act which states that: ‘3. For the purposes of this Act, an object shall not be deemed to form part of the cultural heritage unless it has existed in Malta, including the territorial waters thereof, or in any other country, for fifty years, or unless it is an object of cultural, artistic, historical, ethnographic, scientific or industrial value, even if contemporary, that is worth preserving.’

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From this definition and article 3, the following points emerge: (a) Maltese Law uses the concepts of ‘cultural property’, ‘cultural objects’ and ‘cultural heritage’ but ascribes a different meaning to these terms and does not use them interchangeably; (b) the definition of ‘cultural heritage’ is not an exhaustive one. The word ‘includes’ is used twice in the definition and the word ‘comprises’ is also used once in the same definition. The word ‘other’ is also employed with reference to intangible assets; (c) the definition of ‘cultural heritage’ covers both movable and immovable property as well as both tangible and intangible property;

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(d) cultural heritage may be both situated on land and within the territorial sea of Malta. Thus underwater cultural heritage is also covered by the Cultural Heritage Act; (e) although cultural objects must have existed for fifty years, the law does recognise the possibility of instant culture, that is, a contemporary cultural object which though not fifty years old is still worth preserving. An interesting case in this respect is that the Church at Manikata, Malta, had to be protected under the Environment and Development Protection Act and not under the Cultural Heritage Act because although the said church has landmark architectural features worthy of preservation, it was not fifty years old when the need to protect it arose;

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(f) the fifty year criterion applies to cultural objects not to cultural assets, that is, to intangible cultural assets which do not therefore need to comply with the fifty year rule; (g) the law distinguishes between a cultural object, which is tangible, from a cultural asset, which is intangible; (h) although intangible cultural heritage is included within the definition of ‘cultural heritage’, the law shies away from providing an exhaustive list of examples of the said intangibles;

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(i) the definition does not provide in an Appendix a list of cultural objects or cultural property falling within the ambit of cultural heritage; (j) no definition is afforded as to what constitutes ‘underwater cultural heritage’, ‘culture’ and ‘heritage’; (k) key terms defined in international and Council of Europe conventions such as ‘artistic’, ‘architectural’, ‘historical’, ‘archaeological’, ‘ethnographic’, ‘palaeontological’, ‘geological’, ‘landscapes’, ‘groups of buildings’, ‘archives’ and ‘audio-visual material’ are left undefined in the Cultural Heritage Act; and

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(l) electronic databases, websites, blogs and other metadata as well as microfilms and digitized materials which form part of electronic and ICT cultural heritage are not addressed in the definition of cultural heritage. Yet, notwithstanding the above definitional lacunae, the Cultural Heritage Act does establish controls and mechanisms intended to conserve and manage the cultural heritage. It sets out principles and general duties which have to be abided by the State and the citizenry in the protection of the cultural heritage and establishes:

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• the Superintendence of Cultural Heritage which plays a supervisory, regulatory, and monitoring role together with its functions

• Heritage Malta whose duties include making available to the public

for inspection the cultural heritage situated in Malta • the Malta Centre for Restoration whose mission is to ‘become a

centre of excellence for the teaching, training, research and practice of conservation, restoration, maintenance, management and presentation of the cultural heritage, and to provide conservation and restoration services and consultation as may be required by other bodies, both public and private’

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• the Committee of Guarantee whose tasks include the coordination of the above entities, ensuring and facilitating the collaboration between the different agencies with direct or indirect responsibility for the protection and management of the cultural heritage sector, advising the Government on the National Strategy for Cultural Heritage and subsequently overseeing and monitoring the implementation of the strategy as adopted by Government and as directed by the Minister, drawing the attention of the Government or of any organisation or person to any urgent action that may be required in the field of cultural heritage, meeting regularly and consulting, at least, every four months, with non-Governmental Organisations working in the field of cultural heritage and with persons operating in the commercial sector

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• the Cultural Heritage Fund which receives and manages all monies paid to it under the provisions of this Act or under any other law, as well as other monies or other movable or immovable properties which may be donated to it by non-governmental sources. The monies may be used solely for the purpose of research, conservation or restoration of the cultural heritage

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• the National Forum for Cultural Heritage involving the participation therein of the Superintendence, Heritage Malta, the Centre, the Committee, the Catholic Cultural Heritage Commission, the Religious Cultural Heritage Commissions, other Government departments and entities, the Mayors of each Local Council, non-Governmental organizations registered with the Superintendence as organizations aiming at the protection of the cultural heritage, the University of Malta, other educational institutions, specialists, consultants, representatives of the commercial sector, and any other parties registering their interest in writing with the Minister responsible for cultural heritage

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• the Restorers Warrant Board considers applications for the issue of a warrant, and to make recommendations thereon to the Minister; organises, regulates, and determines requests for exemptions from the professional warrant examination; regulates the conditions of practical training abroad; approves universities or academic institutions; organises and regulates the appropriate tests and periods of practical training; considers and determines applications by warrant holders, other professionals and other persons in the field of conservation and restoration for accreditation to perform particular work, interventions or procedures in connection with cultural property, and to grant or withhold accreditation accordingly; draws up a code of ethics and guidelines of practice for warrant holders and persons accredited; encourages initiatives that ensure programmes of continued professional training and development for warrant holders and accredited persons; and advises the Minister on any matter relating to the profession of conservator-restorer and to accreditation.

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The Cultural Heritage Act further provides for special powers of the state consisting in: the right to preference whereby in the case of sale, export, exchange, emphyteutical grant or lease of an object of cultural property the Superintendent has the right, with the approval of the Minister in consultation with the Committee of acquiring the same, in preference to all others on equal conditions including consideration as that concluded between the parties

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establishing a regime for controls of exportation and re-exportation in terms of which no person may export or re-export any cultural property without the written permission of the Superintendent of Cultural Heritage

empowering the repair and restoration by Government whereby the Superintendent may after consulting the Committee by notice inform any person being the owner, holder or possessor of cultural property that such cultural property, is in urgent need of repair or restoration. In such notice s/he fixes a time limit in which such repair or restoration has to be effected, failing which, the Superintendent, may affect the said works at the expenses of such person

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limiting the exercise of the exclusive right to excavate in the sense that archaeological or palaeontological excavations or explorations on land as well as in the territorial waters or in the contiguous zone of Malta can only be made by the Superintendent, or with the written permission of the Superintendent and in accordance with any condition attached thereto regulating development permissions which relate to cultural property by commending for scheduling to the Planning Authority such sites and buildings which he deems should be scheduled. No interventions on such cultural property or classes thereof may be made without first having obtained a permit therefor from the Superintendent

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conferring powers of entry and inspection upon the Superintendent without the need of a warrant signed by a Magistrate. This is not the case with the Police when they arrest, detain a person, and seize or inspect property allow the issuing of suspension notices by the Superintendent on the owner, possessor or holder of cultural property or any other person carrying out development works or excavation, to suspend all activity in connection with the development work or excavation where any development or other work is being carried out in respect of any cultural property in contravention of any of the Cultural Heritage Act, or any person holding a licence to carry out archaeological excavations under that Act does not conform to any condition attached to such licence

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conferring the power upon the Superintendent to issue conservation and preservation orders in the case of any infringement of any of the provisions of the Cultural Heritage Act or of any regulations made thereunder on the owner or occupier or possessor of cultural property, requiring such action as may be specified in the notice, including the discontinuance of anything being done or carried on, to be taken within such time as may be specified in the order entering into guardianship agreements, with the authority in writing of the Minister, in concurrence with the Minister responsible for lands, by public deed, with a local council or with a non-government organization whereby the custody and administration of immovable cultural property is passed over to the local council or the non-government organisation

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bestowing a right of appeal upon an aggrieved party from the above measures except in the case of the exclusive right to excavate, development permissions and cultural property, and the power of entry and inspection establishing criminal offences for violations of the Cultural Heritage Act empowering the Superintendent to assist the Police in criminal cases and to plead the case before the Court of Magistrates either directly or through his/her officers

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The Cultural Heritage Act is a very elaborate law with well thought out structures which interact with each other. It provides for an adequate control and enforcement mechanism and allows the participation in the protection of the cultural heritage not only with regard to the myriad state institutions established by the enactment but also private persons and non-governmental organisations with a keen interest in the cultural heritage. Yet the Cultural Heritage Act is a law unto itself with limited interaction with other relevant laws for the protection of the environment like the Environment and Development Planning Act, the Building Regulation Act and the Sustainable Development Act, all of which have a bearing, both positive and negative, on Malta’s unique cultural heritage.

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Environment and Development Planning Act

The Environment and Development Planning Act establishes in its very first substantive provision ‘the duty of every person together with the Government to protect the environment and to assist in the taking of preventive and remedial measures to protect the environment and manage natural resources in a sustainable manner’. In the subsequent provision, it sets out the duty of the government ‘to protect the environment for the benefit of the present and future generations’. Laudable as these provisions might be, both fail the test of enforceability as they are, like section 9 of the Constitution, only a desideratum which leads to no consequences against government if left unimplemented, totally ignored or not to say flagrantly violated.

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The enactment establishes: the Malta Environment and Planning Authority which is responsible, inter alia, for ‘the formulation and implementation of policies relating to the promotion of sustainable development, protection and management of the environment and the sustainable management of natural resources’, ‘the promotion of proper planning and sustainable development of land and at sea, both public and private’; ‘the control of such development in accordance with plans and policies approved in terms of this Act’; carrying out of national mapping, including carrying out land surveys of specific areas and keeping up to date the national geographical database’; ‘the regulation of alignment and levelling schemes and their interpretation on site’; and facilitating and coordinating ‘the permit granting process for projects of common interest acting as the competent authority for Malta’ under Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure

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the House of Representatives Standing Committee on Development Planning which is required to ‘review any plan referred to the House of Representatives in terms of this Act’, to recommend to the House whether the plan should be approved, with or without amendments, or rejected’; to ‘discuss any report referred to it by the Minister relating to the structure plan or any review thereof’; to ‘discuss any other plan or policy referred to it by the Minister and report thereon to Parliament’ the Environment and Planning Commission which is created as the licensing arm of the Authority which essentially does the day to day work of the Authority

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a Users’ Committee supervises ‘the general functioning of the Authority particularly to ensure, in the interest of the general public an expeditious and fair process and transparency and uniformity in the Authority’s decisions and acts’. It also monitors the running of the Authority and proposes, to the Authority or the Minister as the case may be, such changes to administrative processes and practices as it may deem appropriate’ the Heritage Advisory Committee is made up of a Cultural Heritage Panel and a Natural Heritage Panel, both panels being tasked ‘to provide professional and expert advice to the Authority on matters relating to the conservation of the cultural and natural heritage in an integrated process’ and to ‘provide advice on the application process in particular with regard to the conservation of property or areas that may be affected by an application for permission’

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the Environment Fund is ‘used to finance projects, programmes and schemes related to, and costs intended to enforce and manage, the aims and objectives of the Act, as well as works which may be needed for that purpose or to remedy any harm caused to the environment in connection with any contingency or emergency plan, or to finance such other activities, including activities organised by nongovernmental organizations, as the Minister in consultation with the Authority may prescribe’ Environmental Mediators may also be appointed, yet none have as yet been so appointed, ‘to act as a mediator between an applicant for permission or licence and the Authority’

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a review mechanism in the form of an Environment and Planning Review Tribunal to 'hear and determine all appeals made by the applicant or a person aggrieved by a notice issued under the provisions of Part VI on any decision of the Authority on any matter of development control, including the enforcement of such control, or appeals made by any person on any decision of the Authority relating to environment protection, including environment assessments, access to environmental information and the prevention and remedying of environmental damage’, to ‘exercise such functions as are vested in it’ by various provisions of the law, ‘hear and determine appeals made’ under the Act ‘to carry out such other functions assigned to it under the provisions of this Act’; and to ‘hear and determine an appeal lodged by an interested third party from a decision of the Authority on any matter of development control’.

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‘Members of the public concerned having sufficient interest’ have ‘access to a review procedure before the Tribunal to challenge the substantive or procedural legality of any decision, act or omission relating to a development or an installation which is subject to an environmental impact assessment (‘EIA’) or an integrated pollution prevention and control (‘IPPC’) permit’. Third parties are also given rights of appeal before the said Tribunal

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an Environmental Impact Assessment Consultants’ Registration Board to evaluate applications for registration in the Register of Consultants eligible to carry out environment assessments and other assessments.

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Once again, the law provides for a top heavy structure to ensure that all stakeholders are represented or have rights under the enactment. It also replicates structures already established under the Cultural Heritage Act such as the Cultural Heritage Fund which, under Chapter 504, is known as the Environment Fund. Part V of the enactment, articles 66 to 82, regulate environment protection and development control. This is done through licensing and permitting, revocation or modification of licences and permits, levying of charges and contributions, scheduling, conservation orders and emergency conservation orders. Part VI then contemplates the powers of the Authority and the enforcement of control through the right of entry, monitoring of activities and development, various enforcement procedures, removal of danger, issue of certificates of development according to permit, and administrative penalties for non-compliance with the provisions of the enactment. Part VII deals with criminal offences.

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Building Regulation Act

The Building Regulation Act establishes a Building Regulation Board, which is supervised by a Committee of Appeals, to provide advice to the Minister responsible for the building industry, to consult stakeholders and to advice the said Minister on all matters relating to building regulations, building control regulations and on the criteria for the suspension, withdrawal or cancellation of a registration or licence, to issue technical guidance documents and decide upon the dispensing with or relaxation of a requirement of the building regulations.

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Fire consultants, other consultants in the building industry, building contractors and building trasdespersons have to be registered and issued a licence if they qualify for oneThe Building Regulation Office issues such licences Building regulations and building control regulations are made by the Minister after consultation with the Board. The same applies for establishing standards and codes of practiceThe Director of the Building Regulation Office issues enforcement notices and inspects premises The Minister may prohibit use of certain materials in the building industry

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Sustainable Development Act The competent authority for the purpose of the Sustainable Development Act is designated to be the Office of the Prime Minister, not the Ministry responsible for the environment as one would have expected. It allows for the appointment of Sustainable Development Focal Points within government departments, agencies or entities. It also establishes a Guardian for Future Generations in the form of a Commission and a Sustainable Development Network. However, although this law was enacted in 2012, the Guardian was not endowed with a financial allocation between 2012 and 2013, and, earlier this year, all members of the Commission resigned en bloc on the basis of impossibility to perform the functions of their office

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According to a reply to a Parliamentary Question, the Minister responsible for the environment stated that a call for applications has been issued for a Director for Sustainable Development and that Government would be increasing the financial allocation for the Guardian for Future Generations. Hopefully, the Commission is reconstituted and endowed with the necessary budget to carry out properly its legal duties

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Crimes Against the Environment Act The Crimes Against the Environment Act transposes into Maltese Law Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law. In provides, in essence, that whoever knowingly commits any of the unlawful acts referred to in the Act, shall be guilty of an offence and shall be liable, on conviction to the punishments set out in this Act. A crime against the environment means any of the following acts:

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(a) the discharge, emission or introduction of a quantity of materials or ionising radiation into air, soil or water, which causes or is likely to cause the death or grievous bodily harm to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants; (b) the collection, transport, recovery or disposal of waste, including the supervision of such operations and the aftercare of disposal sites, and including action taken as a dealer or a broker in waste management, which causes or is likely to cause the death or grievous bodily harm to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants;

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(c) the shipment of waste, falling within the scope of Article 2(35) of Regulation (EC) No. 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste and is undertaken in a non-negligible quantity, whether executed in a single shipment or in several shipments which appear to be linked; (d) the operation of a plant in which a dangerous activity is carried out or in which dangerous substances or preparations are stored or used and which, outside the plant, causes or is likely to cause the death or grievous bodily harm to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants;

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(e) the production, processing, handling, use, holding, storage, transport, import, export or disposal of nuclear materials or other hazardous radioactive substances which causes or is likely to cause the death or grievous bodily harm to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants; (f) the killing, destruction, possession or taking of specimens of protected wild fauna or flora species, except for cases where the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species;

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(g) trading in specimens of protected wild fauna or flora species or parts or derivatives thereof, unless, it is proved to the satisfaction of the court that the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species; (h) any conduct which causes the significant deterioration of a habitat within a protected site; (i) the production, importation, exportation, placing on the market or use of ozone-depleting substances.’.

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Nevertheless, not all environmental crimes fall under the EU Directive. For instance, the protection of the cultural heritage is conspicuous by its absence and the Maltese legislature has slavishly restricted itself to the minimal transpostion requirenents of the directive without adding to it other Maltese environmental crimes unknown to the EU Directive.

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Conclusion Like any other creation of humankind, the law can always be improved provided that there is political will. Government has announced that during this month a White Paper will be issued to deal with the demerger of the Environment Directorate and the Planning Directorate of the Malta Environment and Planning Authority. I will not go into the merits of this proposal, even though I consider it to be a retrograde step, as I am still not yet privy of Government’s plans in this regard.

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What can however be concluded from an analysis of the above Maltese Environmental Laws is that they tend to be too sector specific and, at times, replicate administrative structures at an additional cost to government coffers. Sometimes, legally speaking, these structures do not even inter-relate together. It is only Chapter 504 which requires the administrative structures established therein to ‘seek to co-operate or to make arrangements with other entities or persons to enable it to better monitor the implementation of and compliance with the provisions of this Act’ whereas such a duty should permeate the functioning of all administrative entities responsible for the protection of the environment.’

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Indeed, there is a myriad of sector-specific institutions all focusing on their specific environmental concern without any attempt at institutional rationalisation of these structures to ensure that there is a working synergy between these administrative structures who, after all, are established specifically to work for the same common aim – the protection of the environment. Indeed, a more holistic approach is needed from an institutional perspective.

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Furthermore, some laws lack citizen empowerment: it is good to allow public participation before decisions are taken, yet not all environmental laws discussed above allow for the exercise of the actio popolaris when the same guardians of the state fail miserably in the performance of their duties or decide to abdicate their responsibilities at law at protection of the environment. The citizen thus needs to be empowered not only with regard to the Portes des Bombes Area but to the whole Maltese archipelago with no distinction being made between one geographic locality or place in Malta and another. Yes the time is ripe to address these institutional and enforcement mechanisms once a new law is being drawn on the protection of the environment. Hopefully it will be one which considers the protection of the environment to be paramount in state policy and sets up all the structures and provides all remedies to ensure that aim materialises in concrete form.

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Chartering the Way Ahead: Recommendations for Change It is not the purpose of this presentation today to come up with a workable structure for the enforcement of Maltese Environmental Law as that would require a study in its own right and the time allocated does not allow for this. Yet I think that if all the enforcement mechanisms referred to above were to be grouped together and rendered applicable to all the manifold spheres of the environment – rather than dissecting the environment in its component parts and applying certain remedies to one part and other remedies to another part, Malta would have gone forward at establishing a more effective, efficient and workable environment protection enforcement mechanism which would by far be better than the current one without really changing much in the legal framework for the protection of the environment for the solutions are already extant: what needs to be done is to universalise them and render them applicable to all the various components of the Maltese environment

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THANK YOU !65