6.2 The legislative framework for wildlife management
6.2.1 The Wildlife Protection and Hunting Law
As noted, one of the key laws regulating wildlife management is the Wildlife Protection and Hunting Law, which was revised from the Hunting Law in 1963. The law’s stated purposes are ‘to protect birds and mammals, to increase populations of birds and mammals, and to control pests through the implementation of wildlife protection projects and hunting controls’.4 As its original name suggests, the law’s initial purpose was the regulation of hunting, and this continues to be its predominant function. The law gives the Ministry of the Environment the authority to designate game species, of which there are about 50. Game animals include Hokkaidō brown bears, Asiatic black bears, wild boar (Sus leucomystax), deer (Cervus nippon nippon); foxes (Vulpes vulpes), hares (Lepus brachyurus), squirrels (Tamias sibiricus), badgers (Procyon lotor), raccoon dogs (Nyctereutes procyonoides), and minks (Mustela vison).5 All other wild animals are designated as protected species under the law. The law also designates areas in which hunting is prohibited, regulates hunting periods, harvest rates, and hunting methods. One key characteristic of the legislation is that it designates non-hunting zones, as opposed to hunting zones: thus, in Japan hunting is permitted in any area which is not specifically designated as a non-hunting zone.
There are two key issues regarding the function of this law in protecting animals. Firstly, while it is illegal to hunt all non-game species under the law, this does not mean that these animals are comprehensively protected. Inadequate monitoring means that poaching is relatively common in relation to species such as the bear, and that poachers are rarely apprehended. Secondly, and more
importantly, though protected from hunting, these species are not protected from the threat of habitat destruction, and it will be this, rather than over-hunting, which will lead most endangered species further towards extinction. Thirdly, some species are designated as games species despite the fact that they are either endangered or extinct over a substantial part of their range. The Asiatic black bear is a case in point. The Asiatic black bear has five isolated populations extending over the west of Japan which are designated as either extinct or endangered according to the Ministry of Environment’s own criteria (see Figure 9 for distribution map), but under the law the bear is designated as a game species. In prefectures where it is either designated as endangered or thought to be extinct, prefectural regulations prohibit or limit hunting. However, if the bear is thought to present a risk to human safety or to be responsible for pestilence, it may be culled (control-killed) as a pest.
Beyond its designation of wildlife as non-game species, the Wildlife Protection and Hunting Law provides for some additional, if limited, protection for wildlife. The law gives the Minister of the Environment or the relevant prefectural governor the authority to designate areas as ‘wildlife protection zones’ (chōjū hogoku ), in which game hunting of wildlife is prohibited. (Note that the control-killing of wildlife considered to be pests is still permitted in these areas.) As of 2003, there were 56 nationally designated wildlife protection zones and 3,796 prefecturally designated zones. Wildlife in these zones is protected from hunting, but not from habitat loss or degradation: land-reclamation, forestry and other forms of economic activity are still permitted.
Additional protection against habitat destruction is provided by ‘special protection zones’ (tokubetsu hogochiku ), which may be designated within these ‘wildlife protection zones’. In these zones, all construction, land-development, reclamation projects, cutting of forest, mining and other industrial activities require the prior consent of the Minister or prefectural governor. However, the Minister or prefectural governor can only withhold his or her consent where the action(s) in question ‘will bring about serious harm to wildlife or to wildlife habitat’ (though it is not clear by whom, and by what criteria, this is judged). In all other cases, the Minister or prefectural governor is obliged to give his or her consent. Because the ‘special protection zones’ involve comparably stringent restrictions on the use of land, land-owners and users tend to oppose any applications for their designation. Consequently, as of 1999, only about 23 per cent of nationally designated wildlife protection zones had been designated as special protection zones, while only six per cent of prefecturally designated wildlife protection zones had been designated as special protection zones.6
An understanding of the historical development of Wildlife Protection and Hunting Law is useful in order to understand the nature of the law today, as much of its history is still reflected in the current law. The Wildlife Protection and Hunting Law has its origins in the hunting controls which were
established to protect the hunting grounds used by the feudal lords in medieval Japan. In 1873, the first hunting regulations were enacted, primarily to control the use of guns. These regulations included an annual firearms licensing system, and set down hunting seasons and the areas in which hunting could take place, but made no restrictions on what species could be hunted. However, as the populations of some species became increasingly depleted, there was a transition to the idea of ‘conserving’ species which had until then been regarded solely as ‘game’. In 1892, 14 bird species and one animal became protected animals by imperial edict. The number of protected animals was subsequently increased to 22 in 1901, and 60 in 1910.7
Despite the increased legal protection for wildlife, the populations of many species continued their decline. This was as a consequence of habitat destruction (primarily the reclamation of wetlands and the cutting of natural forest); an increase in hunter numbers; and technological developments in traps, guns and other hunting equipment. In 1918, a fundamental change was made to the Hunting Law: specific species were designated as game species—a departure from the previous system, whereby all species had been regarded as ‘game’ unless designated otherwise. The revised law also introduced a mechanism for prohibiting or limiting the hunting of game animals as necessary. In 1950, in another important change, the authority to limit or prohibit the hunting of specific wildlife, previously limited to the Minister of Agriculture and Forestry, was revised to include prefectural governors.8
However, the downward slide in wildlife populations continued, and in 1963 there was another major revision of the Hunting Law. In this revision, greater emphasis was placed on wildlife protection, reflected also in a change of name: to the Wildlife Protection and Hunting Law. In 1971, responsibility for wildlife conservation was passed from the Forestry Agency (within the then Ministry of the Agriculture and Forestry) to the newly established Environment Agency.9 This development was not as positive for wildlife protection as it may appear, as the Environment Agency had very little power within government—especially in comparison to the ministries whose responsibilities lay in the utilisation of natural resources for development, such as the then Ministry of Agriculture and Forestry, the Ministry of Construction, and the Ministry of Land, Infrastructure and Transport. Nevertheless, concomitant with the Environment Agency taking over responsibility for nature conservation, there was inherently less internal conflict of interest concerning core areas of jurisdiction than was previously the case with the Ministry of Agriculture and Forestry. Nevertheless, a prime area of conflict continues to be that between utilisation and conservation of forest lands: the economic interest of what is now the Ministry of Agriculture, Forestry and Fisheries lies in utilising and generating maximum profit from forested lands, which is at odds with the conservation function of national parks.
The prima facie strengthening of these wildlife protection mechanisms proved little match for the ‘development’ of wildlife habitat which was occurring at a rapid pace over this period. 10 The clearing of indigenous forest; extensive afforestation with coniferous species; dam and road construction; reclamation of wetlands and bays; the building of resorts, golf courses and other facilities all threatened important habitats for wildlife. The Resort Law, enacted in 1987, only compounded the problem of disappearing wildlife habitat: McCormack (1996) states for example that during the late 1980s and early 1990s, 26.7 per cent of Kyūshū’s inland area was incorporated into plans for 135 resorts, including 100 golf courses.11 Similarly, ski fields sprang up in many previously undeveloped mountain areas.
Ironically, this rapid loss in wildlife habitat was to lead to a policy shift from wildlife ‘conservation’ to ‘management’—in other words, the control of certain ‘problematic’ wildlife species (gaijū ) through culling. As habitat decreased or became more fragmented, the incidence of agricultural and forestry pestilence and human injury caused by wildlife such as bears, serow, deer, and monkeys (Macaca fuscata) increased exponentially from the 1980s. This led to calls to weaken the restrictions on hunting and reduce the populations of wildlife causing these problems. At the same time, researchers and academics urged the government to move from what was viewed as an archaic hunting system to a system of wildlife management based on scientific knowledge. Finally, the Environmental Agency capitulated, and the Wildlife Protection and Hunting Law was again revised. The revision included the introduction of The Specific Wildlife Planning System in 1999 (detailed below), which allowed for the regulation of populations of wildlife species causing pestilence, and the devolution of authority for regulating hunting and wildlife management to prefectural governments.12
This leads to the question of the role of natural parks, which encompass important areas of wildlife habitat, in the wildlife conservation function. This aspect will be examined in the next section.