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EDO Special eBulletin 18 January 2008: no 545

The EDO Bulletin is a free weekly bulletin that provides a listing of news, events, public notices and opportunities for public comment.

Judgment in landmark anti-whaling case: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3

The Environmental Defender's Office (NSW) has successfully represented the Humane Society International Inc (HSI) in their Federal Court case against Japanese whaling company Kyodo Senpaku Kaisha Ltd (Kyodo).

The judgment, which was handed down on 15 January 2008, is the culmination of over four years of legal action to prevent whaling in the Australian Whale Sanctuary off Antarctica.

His Honour Justice Allsop made a declaration that Kyodo was in breach of Australian law by whaling in the Australian Whale Sanctuary and granted HSI an injunction to restrain Kyodo from further breaches of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

Kyodo is the owner of a number of ships that whale Antarctic waters pursuant to the Japanese Whale Research Program. The evidence presented to the Court was that Kyodo had killed 3558 minke whales and 13 fin whales since 2000/2001.

The Court concluded that most of killings had occurred in the Australian Whale Sanctuary and that Kyodo had no permit under the EPBC Act authorising these acts. Sections 229-230 of the EPBC Act makes it an offence to kill, injure, take or possess a cetacean.

Kyodo does not recognise Australia's claim to Antarctic waters and did not attend the Court hearing to contest the case. The matter was therefore heard in their absence.

The EPBC Act has wide terms and applies to all of Australia including its external territories. The Act applies to all persons and vessels within waters claimed as Australia's Exclusive Economic Zone (EEC). This includes the Australian Whale Sanctuary that is found in the EEC adjacent to Australia's Antarctic Territory. Australia's claim to its Antarctic EEC is controversial as Australia's Antarctic Territory is formally recognised by only four nations, New Zealand, France, Norway and the United Kingdom. His Honour found that despite the fact that Japan disputed Australia's jurisdiction, it was not a ground for invalidity of the EPBC Act, as the sovereign claim by Australia is not a matter capable of being questioned in the Court.

The next step is to serve Kyodo with the injunction, which will be done as soon as possible. Should the company continue to whale in the Australian Whale Sanctuary in contravention of the injunction, it will be in contempt of court and enforcement action may be taken against it.

The EDO and HSI are grateful for the assistance of barristers Stephen Gageler SC and Chris McGrath who argued the case before the Court on a pro bono basis.

The complete judgment is available online here http://www.austlii.edu.au/au/cases/cth/federal_ct/2008/3.html

The EDO is very proud to have acted in this landmark case. With your help we can do even more. Consider becoming an EDO Defender. For as little as $10 per month you can help the EDO to protect the environment through law.

EDO New South Wales offers free telephone advice on the Environmental Law Line. Open Tuesday, Wednesday and Thursday between 2:30pm and 5:30pm. Call 02 9262 6989, or for NSW residents outside of Sydney call 1800 626 239.

This bulletin is meant for your general information. Where possible, references are given so that readers can access original sources or find more information. Any information contained in this bulletin does not represent legal advice. The EDO does not endorse and is not affiliated with events advertised in the Community News section.