Court Cases

The law can be a powerful tool in a community’s efforts to protect the environment and ensure development is sustainable. But environmental laws can be complex and bewildering. Legal advice from an EDO can ensure that people are better equipped to use the law appropriately. Initial telephone advice is free or provided at low cost. Expert advice provided by EDOs has helped thousands of clients achieve positive environmental outcomes right across Australia.

The following landmark legal cases highlight the work of EDOs of Australia, which began with EDO NSW in 1985 and spread nationally in the early 1990’s.

 

The Kyodo Senpaku Kaish Case, Australia - whaling

On behalf of Humane Society International (HSI), EDO NSW successfully acted in Federal Court contempt proceedings against Japanese whaling company, Kyodo Senpaku Kaisha Ltd (Kyodo).

In November 2015, the Federal Court of Australia ruled that Kyodo was in contempt of Court, and fined the company $1 million. This was the latest development a long running case.

Case history
In January 2008, we successfully represented HSI in Federal Court proceedings which resulted in the Court declaring that Kyodo was breaching Australia’s federal environmental law by whaling in the Australian Whale Sanctuary in the Australian Antarctic Territory. The Court granted an injunction to restrain Kyodo from further breaches of the Federal environment law.

Following the Court’s ruling, HSI representatives travelled to Japan and served the injunction on Kyodo. Despite this, Kyodo has continued its whaling activities in the Australian Whale Sanctuary. No enforcement action was taken pending the outcome of the International Court of Justice hearing into Japan’s whaling program.

In March 2014, the International Court of Justice found that Japan’s whaling program was not in accordance with scientific research programs provided under international law and ordered Japan to cease its whaling program. However, in October 2014, Japan announced its intention to recommence whaling under a new program that it again claims is for scientific research.

With Japan’s whaling program due to recommence around December 2015, HSI sought to enforce the 2008 injunction. On 18 November 2015, the Federal Court ruled that Kyodo is in contempt of Court for continuing to kill whales in the Sanctuary despite the 2008 injunction. The Court fined the company $1 million dollars. Read the judgmentView our case graphic.

Humpback Whale, NOAA

The Flying Fox case, north Queensland – Biodiversity

In the first legal action ever taken under Australia’s current federal environment laws, EDO Qld acted for conservationist Carol Booth in a case that halted the large-scale electrocution of spectacled flying-foxes on a lychee property in north Queensland and led to the end of government-permitted electrocution of flying-foxes.

This case in the Federal Court under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) demonstrated that the Act could be used to regulate actions taken outside a World Heritage Area that were likely to have a significant impact on its values.

The Court found that an estimated 18,000 spectacled flying-foxes were electrocuted during the 2000 lychee season, and that continued operation of the grid would cause the species to become endangered within five years. This decline would undermine the capacity of the spectacled flying-fox to contribute to the genetic and biological diversity of the Wet Tropics World Heritage Area. Justice Branson held that the loss of a single species could constitute a significant impact on the world heritage values of a World Heritage property.

 Speckled Flying Fox by Tolga Bat Hospital

James Price Point, Western Australia – LNG Terminal

EDO WA and legal firm Slater & Gordon won a major case in the Supreme Court of W.A. to protect James Price Point, near Broome on the Kimberley coast of north-western Australia. They represented The Wilderness Society of WA (Inc) and Mr Richard Hunter, a Goolaraboolooo man and traditional owner.

James Price Point is a calving ground for the world's largest population of humpback whales and home to newly discovered Spinner Dolphins, endangered Hawksbill turtles, dugongs and has a track of different dinosaur footprints preserved in rock.

The court case challenged the approval by the W.A. State Government of the Browse Liquified Natural Gas (LNG) Precinct Proposal at James Price Point by joint-venture partners Woodside Petroleum, Shell, BP, Mitsubishi/Mitsui and PetroChina.

Supreme Court Chief Justice Martin, in August 2013, ruled that three decisions regarding environmental assessment of the proposal were unlawful and therefore invalid. This was because they were made at meetings at which a number, often a majority, of those participating in the decision making were disqualified because of their financial interest in the proposal.

Woodside Petroleum had earlier announced in April that it would not proceed with onshore processing at James Price Point.

However the W.A. government has expressed its intention to continue with the project to build a supply base and a gas processing hub on the site and has used compulsory acquisition processes to purchase 3,414 hectares.

James Price Point, WA by Sally Cummings

 

McArthur River diversion, Northern Territory – Mining Impacts

In December 2006, Traditional Owners, represented by the EDO Northern Territory, successfully challenged the Minister for Mines and Energy’s decision to approve a proposal to change from an underground to an open cut mine and divert the McArthur River, one of the largest rivers in northern Australia.

The Gurdanji people are Traditional Owners of the mine site. The Mara, Garrawa and Yanyuwa people are Traditional Owners down river from the site.

The McArthur River is of immense cultural and spiritual importance to the local Aboriginal people of the Gulf region and a complex set of cultural responsibilities and obligations underpin this relationship. Some of these duties include; maintenance of sacred sites, performance of songs and ceremonies and the burning of country. Harry Lansen, a senior Traditional Owner of the Gurdanji group, believes the diversion of the river is a breach of his duties to protect the area. He said: “If they’re going to make it a big river down there, big dam, they’re doing to kill me, my spirits still there you know, my song and my spirit …I’ll be sick if they cut the place you know because my spirit’s there, all my songs for crossing the river… I don’t want to see this thing happen there in that McArthur River”. Aside from spiritual responsibilities, the river and coast are vitally important to local Aboriginal people for hunting and fishing.

McArthur River N.T. photo by Carol MacKinney

The project was proposed by McArthur River Mining, which operated the existing underground silver, lead and zinc mine, 45 km from Borroloola, a town of 1,000 people and the largest in the remote Gulf Region. The nearest town is Katherine, 665 km away. The mine site contains a lead, zinc and silver deposit which is potentially the biggest of its type in the world with an estimated 220 million tonnes of ore.

The project was strongly supported by the N.T. and Federal government with then Prime Minister John Howard writing a letter to the Chief Minister praising the economic benefits of the new mine. However the N.T. Environment Minister had major concerns including the “significant and long term risks of contaminants entering the river and ground water.’ The final proposal had failed to resolve the NT EPA’s chief concern that the mine was located “within the primary channel of a major tropical river”’.

The Traditional Owners challenged the N.T. Minister’s decision to approve the change from under-ground to open cut mining through an amended Mine Management Plan rather than varying or revoking the existing mining authorisation. The court found the original authorisation did not approve open cut mining and therefore ruled the approval invalid.

However in May 2007, two days after the Supreme Court judgment, the N.T. government introduced special legislation to allow the open cut mine to proceed. Despite this, the Traditional Owners continued to fight and took legal action in the Federal Court against the Federal Environment Minister’s approval of the mine. The Full Federal Court, on 17 December 2008, ruled the approval was invalid and had to be reconsidered by the Federal Environment Minister, who subsequently approved the project. This case placed the national spotlight on the mine, environmental regulation and empowered the local community to voice its objections, which were vindicated by the Court.

 

The Olympic Dam case, South Australia - Uranium Mining

EDO South Australia represented Mr Kevin Buzzacott in his Federal Court challenge to the Federal Environment Minister’s approval of the expansion of the Olympic Dam uranium and copper mine, which would make it the biggest in the world. Mr Buzzacott (known as Uncle Kevin) is an Aboriginal Elder of the Arabunna Nation in South Australia.

Mr Buzzacott argued that the Minister did not properly consider the impact of the Olympic Dam expansion on the environment, in particular the above ground storage of radioactive tailings waste and the impacts on groundwater resources including the Great Artesian Basin.

Ultimately, the open cut pit will be approximately 1 km deep and 4 km wide, and the radioactive tailings (waste) will be stored above ground covering an area of up to 40 square kilometres.

The court dismissed Mr Buzzacott’s case. However the project was later put on hold by mining giant BHP Billiton after an investment review, due to low commodity prices.

Another important uranium case:
EDO Northern Territory has advised an Aboriginal Corporation in relation to the Ranger Uranium Mine and environmental compliance. This issue is of particular significance because of the Rangers location surrounded by Kakadu National Park.

 

Tarkine Tasmanian Devil case

EDO Tasmania represented the Tarkine National Coalition in its appeal against approval of the Venture Minerals Riley Creek iron ore mine in the Tarkine region of north-west Tasmania, home to a population of healthy Tasmanian Devils and one of the world's largest temperate rainforests.

The appeal concerned the impacts of the proposed development on populations of the threatened Tasmanian Devil, and adequacy of proposed water and erosion controls. The appeal was dismissed, however more stringent erosion conditions and measures to minimise impacts on the Devil were imposed.

Tasmanian Devils by Alexandra Edwardes

The Alpha Coal Mine Case, Queensland - Climate Change

Farmers and the Coast and Country Association of Queensland Inc (CCAQ), represented by the EDO Qld, launched a legal action against the approval of the Alpha coal mine project, 79 per cent owned by Indian group GVK and 21 percent by Gina Rinehart’s company Hancock Prospecting.

The association argued in court the proposed mine, 360km south-west of Mackay in the Galilee Basin, would contribute to climate change and have permanent and irreversible effects on ground water. The mine is expected to draw down groundwater levels by up to 5 metres within a 10-kilometre radius of the mine over its 30-year life span. It will also require the clearing of 22,500 hectares of vegetation.

On 8 April 2014 the Land Court delivered its judgment, recommending that the Queensland Government reject the Alpha Coal project or impose new stricter groundwater conditions. The Court was unable to say on the evidence just how far interference with groundwater would extend, so took a precautionary approach to protect landholders.

 

Bulga, NSW - Coal Mine Expansion

EDO NSW has represented community group Bulga Milbrodale Progress Association in their challenge to the proposed expansion of the  Warkworth Mining Ltd operated open cut coal mine (owned by Rio Tinto) near the village of Bulga in the Hunter Valley.

In 2013, EDO NSW represented the group in an appeal against the Planning Assessment Commission’s (PAC) approval to extend the mine. The project would have extended the life of the mine, allowed the extraction of an additional 18 million tonnes of coal from the mine every year, and would have brought the mine closer to Bulga village. The Land and Environment Court upheld the group’s appeal and disapproved the project application, concluding that the project would have significant and unacceptable impacts on biodiversity, as well as unacceptable noise and social impacts.

Warkworth appealed to the NSW Court of Appeal, arguing that the Land and Environment Court had made legal errors in its decision. The Court unanimously dismissed Warkworth’s appeal, finding no fault with the Land and Environment Court’s decision and ordering Warkworth to pay the group’s costs.

In 2015, Warkworth lodged a new, very similar, application for an extension to the mine. This time, the community does not have merit appeal rights in the Land and Environment Court, as merit appeal rights are extinguished where a public hearing about the project is held, and there were two public hearings held into the project. The PAC approved the new application in 2015.

EDO NSW also acted for the Hunter Environment Lobby in separate proceedings to gain access to documents relating to the new application.

Bulga residents outside the NSW Court of Appeal after their legal victory