When the Scottish Environment Minister, Stewart Stevenson, announced on 16 March that the Tayside beavers were to be tolerated and monitored for a three year period through to 2015, he delighted supporters of the animals, but dismayed a wide range of representative groups who were either very cautious or, indeed, openly hostile to any widespread beaver re-introduction to Scotland.
shuna_beaverWebSince the announcement, they have let their feelings be known through the Press, but without any great backlash against the Scottish Government or the Minister himself. On the face of it, that is good news for all concerned. The Minister delivered a situation that everyone could live with in the short term, even though some did not like it.
However, it has now become clear that as part of the process leading up to the announcement, that a number of organisations have been re-assured that the Tay beavers have no legal protection, and that lethal force could be used against them, if necessary to deal with a given situation.
This raises the question, are the Tay beavers legally protected or not?

EU Habitats Legislation
The EU Habitats Directive is very clear on the issue. A list of species, of which the beaver is one, are legally protected if:
•  They are breeding naturally in the wild, and
•  They are within their (historic) natural range.
Both these conditions apply to the Tay beavers.

The Caveat
The legislation recognises, however, that ‘natural range’ is dynamic, that it expands and contracts for perfectly natural reasons and that, within given boundaries, there will be areas that are both suitable and unsuitable for a given species, and a whole spectrum of situations in between. It also seeks to dissuade people from illegally introducing species to new areas, and the following caveat is given:
‘However, individuals or feral populations of an animal species introduced on purpose or accidentally by man to places where they have not occurred naturally in historical times or where they would not have spread to naturally in foreseeable future, should be considered as being outside their natural range and consequently not covered by the directive.’
There is much speculation about how the Tay beavers got here, but the accepted history among beaver supporters is that they escaped accidentally from private collections. Careful reading of the above account might initially allow the Scottish Government to say that the Tay beavers are not covered by the directive.
‘Individuals, accidentally released’ (both true) either ‘not occurring naturally in historic times or where they could not have spread to naturally in the foreseeable future’ are not covered by the directive.
Beavers were native to at least parts of Scotland, including Tayside, so that bit is OK.
However, they could not possibly have got here by themselves in the foreseeable future because beavers could not have crossed the North Sea, the nearest source of any wild animals. The only source of beavers in the UK are in private collections, and escapees are not subject to protection.
On this basis, you could say that the Tay beavers have no legal protection in that they could not have got there by themselves in the foreseeable future, and this is, no doubt, why the Scottish Government takes this interpretation.

The Complication
However, there is a complicating factor. Since 2009, there has been an official beaver re-introduction programme in Knapdale Forest in Argyll, less than 60 miles from the Tay catchment.
In the development of that project in 2005, the then Environment Minister, Rhona Brankin MSP, turned down an application for a beaver re-introduction project because she felt that there would be no legal exit strategy - ie the government would have been legally and deliberately releasing a native species within its natural range, with the expectation that they would breed naturally and spread.
The process would have taken place in full compliance with IUCN guidelines and be strictly monitored. Indeed, EU legislation requires government to consider re-introducing such species. Rhona Brankin MSP thought that, if she sanctioned a release of beavers in to Knapdale Forest, then a de facto re-introduction would have taken place, and EU legislation would then have prevented their subsequent removal. She did’nt do it.
Tayside beaversWebIn 2010, the subsequent Environment Secretary, Mike Russell MSP, decided to sanction a trial project and over-rule the previous decision. In my opinion, this was merely because it was the Year of Homecoming, and the opportunity was politically too difficult to resist.
The Scottish Government said that because it was a ‘trial project’, within certain boundaries, it could be reversed if needs be, without the Knapdale beavers ever having full legal protection. Indeed, Scottish Beaver Trial staff insist that the beavers are their property.
If this is the case, then we can infer two things;
•  Firstly, Knapdale is merely a big private collection (albeit sanctioned by Government and managed by NGOs), and
•  secondly, the beavers there are not really wild at all.
(You can deduce this anyway from their tags and collars, and the fact that they are caught up on a regular basis for inspection). This makes them no different to any other private collection in Scotland. The Scottish Government and SNH et al, however, do describe them as wild and indeed promote them as such, immediately contradicting this assessment.
Wild animals which belong to no-one, such as red deer, are described in legal terms as ‘res nullius’.
In February 2013, Roseanna Cunningham MSP, the next Environment Minister after Mike Russell, was asked about the status of both the Knapdale beavers and the ones on Tayside in a written parliamentary question:
“Liam McArthur (Orkney) (LD): To ask the Scottish Executive whether the (a) Tayside and (b) Knapdale beavers are legally termed as (i) res nullius or (ii) private property.
(S3W-39476)   Roseanna Cunningham: This would be a matter for the courts to determine.”
This means that in February 2013, the Scottish Government did not know the proper legal status of the Knapdale beavers, the ones they released, never mind the Tayside ones.
This is important. If the Knapdale beavers are wild animals, living in the wild and breeding freely within their natural range, then they are protected by EU legislation, no matter if you call the project a ‘trial’ or not. They did not escape or were introduced illegally, but under full IUCN Guidelines, so the caveats previously mentioned do not apply.

“...Interestingly, if beavers were shot, it is not the individual who would be prosecuted, but the member state. Scotland is not actually the member state. The UK is, but it requires Scottish Ministers to have systems in place to ensure that all EU legislation is complied with. In the case of the Tayside beavers, no such system is in place. Indeed, the Scottish Government is actively promoting the fact that it is not...”

Bad Beavers in Argyll
Moreover, in the three years since release at Knapdale, the population in the trial area has decreased, despite several top-ups of animals. The Scottish Beaver Trial insists that the missing animals must have died, but that does not appear to be the case.
Last summer, photographs emerged of an aspen tree that had obviously been chewed by a beaver (see top picture).  The tree was on the island of Shuna, some 15 miles from Knapdale. At least one escapee Knapdale beaver is therefore very much alive, and there will undoubtedly be others out there as well, possibly breeding in the wild, but almost impossible to find in such terrain.
You can view these latter animals in two ways - either
•  They have been introduced in to the wild under full IUCN Guidelines and are therefore subject to full EU protection, or
•  They have been released illegally in to the wild outside the trial area by the Scottish Government, which should now be prosecuted for allowing the accidental but illegal release to take place.
One way or another, we have beavers living in the wild in Argyll, fully sanctioned by Government. No-one has dared describe them as feral, illegal, or even captive, but the escapee beavers from Knapdale are no different to the Tayside beavers in the manner by which they escaped. They are wild now. This is how government describes them, even though they are unsure of the actual legal position.

The Relevance to Tayside
Aberfeldy Beaver gnawingWebAnd this is crucially important for the Tayside beavers. Because of the re-introduction of beavers in Argyll, less than 60 miles from Tayside, it is now entirely possible that beavers could reach Tayside ‘in the foreseeable future’. So, the caveat given does not apply to Tayside. The fact that beavers already exist on Tayside is irrelevant.
If Knapdale was never consented, the Tay beavers probably could legally have been shot or removed  as the Scottish Government suggests. But, because of it, they can not.
Interestingly, if beavers were shot, it is not the individual who would be prosecuted, but the member state. Scotland is not actually the member state. The UK is, but it requires Scottish Ministers to have systems in place to ensure that all EU legislation is complied with. In the case of the Tayside beavers, no such system is in place. Indeed, the Scottish Government is actively promoting the fact that it is not.
We might shortly have a situation where an English Conservative Environment Secretary at Westminster has to interfere in Scottish affairs to insist that EU legislation is properly implemented, very much against its obvious intention not to do so! Where might that end up? Angling organisations in England are already demanding that the border be defended.
The Scottish Government says it will clarify the legal position in 2015. Many people, including the Scottish Wild Beaver Group and the Scottish Gamekeepers Association, want to see the legal position clarified well before then.
Given that the situation legally is a complete mess, as described above, it is in the interests of all parties that this is indeed done as soon as possible, so that we can know if we are going to have to live with beavers in the future or not.

Victor Clements
The writer works as a woodland advisor and is based in Aberfeldy in Highland Perthshire

                           Pictured (from top) beaver evidence in Shona: Tayside beavers (pictured by the Scottish Wild Beaver Group);
beaver damage near Aberfeldy



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