Will new laws better protect beavers and their habitats?

The recent Beavers (England) Order 2022 granted the Eurasian beavers increased legal protection against persecution and habitat destruction, however will this result in a key part of British wildlife being adequately protected?

Rob Espin, Co-chair of the Wildlife Working Group at the UK Centre for Animal Law (“A-LAW”), considers this question within the scope of England’s wider wildlife welfare regime.

Beavers – a very British (re)introduction

Once a widespread and key part of British ecosystems, the Eurasian Beaver (castor fibre) was unfortunately made extinct in the wild in Great Britain over 400 years ago primarily caused by human persecution through hunting. The loss of such an emblematic species represented a national shame given the beaver’s key role in forming natural habitats throughout the UK. Scientific evidence has established that beavers are ecosystem engineers, creating a mosaic of habitats though damning rivers to create wetlands rich in biodiversity. Beavers are also masters of helping managing our waterways during extreme weather conditions, with research showing their activities can reduce water flows by 73% during flooding whilst keeping 60% more open water pools during droughts.

Despite such localised extinction, following the discovery of wild beavers living in the River Tay catchment area in Scotland, a beaver reintroduction trial was licensed for 5 years in 2009. This trial was widely considered a success when it concluded in 2014 and was followed by a trial in the River Otter area in Devon, England. This trial concerned a population of wild beavers of unconfirmed origins which was managed by a group of organisations led by the Devon Wildlife Trust. The scientific report at the end of the trial concluded that the reintroduction had been a success with beaver populations increasing nearly seven-fold and the families benefiting from increased public perception.

After the conclusion of the successful River Otter trial, the Department for Environment, Food & Rural Affairs (“DEFRA”) announced that the beavers in Devonshire could stay and launched a public consultation concerning how best to facilitate beaver reintroductions as part of the UK Government’s 25 year environmental plan. Beavers still however occupy a precarious status in the UK as the International Union for the Conservation of Nature’s (“IUCN”) red list classifies beaves as critically endangered in England.

The old position

Before the enactment of the Beavers (England) Order 2022 (the “Beavers Order”), beavers received similar protections to other wild mammals under the English wildlife welfare regime. There is no single piece of legislation containing all the welfare protections for wildlife in England meaning the protections are piecemeal and stem from various different laws.

For beavers in the wild, it is an offence under the Wild Mammals (Protection) Act 1996 (“WMPA”) for any person to (amongst other things) beat, stab or mutilate a beaver if they intend to cause unnecessary suffering. Anyone convicted of causing cruelty to beavers in contravention of WMPA is liable for up to 6 months imprisonment in England. WMPA alone did not prevent persons from shooting beavers however, nor did it prevent persons setting using dogs to hunt the species. Beavers also draw some protection pursuant to the Wildlife and Countryside Act 1981 (the “WCA”), which provides different levels of protection against persecution for different types of wildlife. As beavers are listed as a Schedule 6ZA WCA species, it is illegal to place traps or snares with the intention of capturing, killing or injuring beavers.

In addition to the WCA, beavers also draw protection from the Conservation of Habitats and Species Regulations 2017 (the “Habitat Regulations”). Under the Habitat Regulations it is a criminal offence for someone to be in possession of a beaver, whether live or not, or to offer them for sale. The Habitat Regulations also outlaw the use of certain methods of killing or capturing beavers, including poisons, explosives, crossbows and automatic weapons. Anyone convicted of contravening either the WCA or the Habitat Regulations faces up to 6 months in prison.

The above paragraphs discuss the protections for wild beavers, however beavers which find themselves “under the control of man” (for example in a licensed zoo or wildlife collection) are subject to much more comprehensive protection under the Animal Welfare Act 2006 (the “AWA”). Beavers kept by humans are protected against unnecessary suffering caused intentionally or negligently and their keepers have to actively promote their welfare. On the basis that most beavers in England are not kept by humans this article will focus on the law relating to wild specimens.

Why were beavers vulnerable?

Even with the protections discussed above, prior to the Beavers Order there were significant holes in the English legal regime protecting beavers. It was not illegal for anyone to shoot or kill beavers generally as long as they did not use a prohibited method. This meant that beavers were at the mercy of the local populations and landowners they interacted with as they could easily be killed by self-interested individuals or groups.

Another key risk was that beavers’ habitats were not protected. Beavers form a complex array of damns across water, burrows dug into riverbanks, larger bank lodges accessed by underwater tunnels and food caches of branches to store food for winter. Allowing people to damage or destroy these carefully constructed habitats threatened the sustainability of beaver populations as beaver “kits” (young beavers) are dependent on this natural infrastructure for survival.

Protection following the Beavers Order

The above position changed significantly on 1 October 2022 when the Beavers Order came into force in England as this expanded the scope of certain further protections available under the Habitat Regulations to beavers. This is on top of the existing protections explained above, which were complemented instead of replaced by the Beavers Order.

The first protective change was to create an offence to deliberately capture, injure, kill or even disturb any wild beaver, unless done pursuant to a licence granted by the relevant authority (discussed further below). Secondly it is now an offence for anyone to damage or destroy beavers’ breeding and resting sites without authority pursuant to a licence. Anyone who is convicted of breaching these prohibitions faces a maximum punishment of 6 months imprisonment. The final protective change was to effectively exempt beavers from the potential scope of species control orders, which are special powers given to environmental authorities allowing them to enter land without consent to carry out “species management” activities, which may include killing or removing wildlife.

In addition to enhancing their welfare protections, the Beavers Order also amended the rules concerning reintroduction and management of beavers into the wild, by changing the beavers’ classification to “Native Animals” under the WCA. The impact of such change is that conservation groups will now need to seek consent from Natural England before conducting rewilding where beavers are released into the English countryside. Such consent will only be granted where reintroduction groups prepare plans which satisfactorily address certain issues including ecological impact, local community stakeholder support and resolution of conflicts with human interests.

Are beavers adequately protected now?

The enactment of the Beavers Order can be seen as a stride forward in ensuring that beavers are protected against meaningless persecution in the wildlife. Preventing beavers generally being killed or taken should stop persons who do not like the presence of beavers nearby from killing or removing the animal. Protection of their habitat is also a positive development and addresses a previous lacuna in wellbeing safeguards.

The Beavers Order also has consequences for proposed development and construction which may impact the animal’s habitat. Whilst beavers largely currently occupy wildlife enclosures and certain areas on wetlands which developers would not target for construction in any case, this may not always be the case as beavers’ natural range expands over time. Ecologists supporting construction will need to consider the animal in their survey and, should the proposed development impact beaver habitats, special authority will need to be sought from either Natural England or DEFRA in addition to the usual local planning authority process. This could result in planning permission being refused, or conditioned upon development businesses taking certain action to avoid harm or disturbance to protected species and their habitats, mitigating for the effect on them if that is not possible and to compensate for harm as a last resort.

Even with the positive steps forwards, how much difference these enhanced safeguards will make to the protection of beavers in the wild will depend on a number of more practical issues.

Firstly, Natural England has the power to issue licences to persons to either kill or take Beavers or to break up their habitats under certain conditions where beavers clash with certain human interests. Provided that people take actions strictly under the auspices of such licences, any acts invasive towards beavers will not be punishable by criminal offence. The UK has already seen legal challenge in the form of a successful judicial review in Scotland (which this author was involved in with alongside the Lifescape Project) determining that the Scottish regulator had been incorrectly issuing licences and therefore allowing persecution of the animal when this should not have been permitted. It is therefore critical that English authorities only licence action which might be invasive to beavers subject to strict conditions set out by law, including that there is no less harmful satisfactory alternative which could be taken to protect human interests.

Secondly, as has been frequently previously highlighted by organisations including the Wildlife and Countryside Link, the success of any wildlife welfare legislation depends upon how it is enforced. Key to enforcement include reporting and detection mechanisms and the resourcing and training of enforcement authorities including the police. The Beavers Order therefore needs to be supported by proper prioritisation of wildlife crime as a national issue in order for beavers to be adequately protected in England.

Finally the Beavers Order also contains some inconsistencies in the protections it bestows to beavers. The WCA usually makes it a criminal offence to recklessly disturb protected species which are listed in Schedule 5 to the WCA whilst such species occupy their habitat or for a person to obstruct access to natural structures such animals use for shelter or protection. This is beyond the prohibition within the Habitat Regulations which only outlaws deliberate disturbance of the species.

Beavers were, for some reason, not added to Schedule 5 of the WCA despite being granted other protections. There is no clear rationale in the supporting documentation to the Beavers Order for this exception and this creates a risk that people, who have not specific qualifications or training, try to block beavers’ lodges and burrows, causing them distress through disturbance and negatively impacting their welfare. This lacuna is a shame, and this author encourages the Secretary of State to take action to address this.

Conclusion

It is undoubtedly positive to see the Government taking action to shore up the legal welfare protections concerning a critically endangered species which is increasingly forming the spearpoint of Britain’s rewilding efforts. Whether this will in reality result in beavers being shielded from persecution will depend upon a variety of factors including the degree the relevant authorities choose to licence action prejudicial to beavers for the purpose of furthering certain anthropocentric interests and the prioritisation given to the tackling of wildlife crime.

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