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Davis, Ruth --- "Case Note: Federal Court declares Japanese whaling illegal in Australian Antarctic Waters: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3" [2008] MarStudies 11; (2008) 159 Maritime Studies 21

CASE NOTE
Federal Court declares Japanese whaling illegal in Australian Antarctic Waters:
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3

Ruth Davis[1]

On 15 January 2008, the Federal Court declared that Japanese whaling in Australian Antarctic waters was contrary to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’) and issued an injunction restraining further breaches of the Act.[2] That ruling, by Allsop J, represents the culmination of over three years of litigation by the Humane Society International Inc (‘HSI’).

HSI commenced proceedings in the Federal Court in October 2004, seeking the enforcement of certain provisions of the EPBC Act that make it an offence to kill or interfere with whales within the Australian exclusive economic zone (EEZ). In order to proceed with the litigation, HSI had to seek the Court’s permission to serve the originating process on the respondent, the Japanese company Kyodo Senpaku Kaisha (‘Kyodo’), in Japan. Before deciding whether or not he would grant the necessary leave, Allsop J ordered that the Attorney-General be informed of the proceedings and given the opportunity to make submissions, for example, as to

the proper construction and interpretation of the legislation and treaties involved, in particular in the light of what might be seen to be Australia’s national interest, including inter-governmental relations between Australia and Japan.[3]

The reason for Allsop J’s concern is that Japan, like most other countries, does not recognise Australia’s claim to sovereignty over the Australian Antarctic Territory, nor to Australia’s assertion of jurisdiction over an EEZ adjacent to that territory (‘Antarctic EEZ’). In the view of Japan, these waters remain part of the high seas. Responding to the invitation, the Attorney-General submitted that the matter was best dealt with through diplomatic channels rather than the courts.[4]

The Attorney-General suggested that it was likely that any attempt to enforce the EPBC Act in relation to foreign whaling in Australia’s Antarctic EEZ would be viewed by Japan as a breach of international law.[5] Further, it could also lead to disagreements with other parties to the 1961 Antarctic Treaty by going against the convention that each Party apply its laws in Antarctica only to its own nationals.[6]

At first instance, Allsop J refused the necessary leave to serve outside the jurisdiction, on the basis that the action would almost certainly be futile, and would place

the Court at the centre of an international dispute … between Australia and a friendly foreign power which course … the Australian Government believes not to be in Australia’s long term national interest.[7]

This decision was overturned on appeal to the Full Federal Court, the Court unanimously holding that political considerations should not affect the exercise of the Court’s discretion.[8] A majority decided that it was also premature to refuse leave to serve outside the jurisdiction based upon concerns about the futility of any possible orders for final relief.[9]

As might be anticipated, actually serving the process documents on the respondent in Japan proved to be difficult. Justice Allsop notes how the Japanese Government, through its Ministry of Foreign Affairs, refused to provide any assistance:[10]

[A] note verbale dated 26 October 2006 [from the Ministry] refused to allow the documents to be accepted for service on the grounds that ‘this issue relates to waters and a matter over which Japan does not recognise Australia’s jurisdiction’.[11]

After applying for an order allowing substituted service,[12] the applicant twice sent the necessary documents to the respondent’s business by registered post. Each time the envelope was returned, unopened, with a stamp indicating that the respondent refused to receive it. On a further occasion, a lawyer attended the respondent’s offices in person and finally managed to leave the package of service documents with the respondent’s employees.

Not surprisingly, Kyodo did not respond to the service documents and did not appear on the date of the scheduled hearing. The matter proceeded, with the applicant producing evidence to establish the claim rather than seeking a default judgment.

Evidence of whaling activities came largely from reports submitted by the respondent to the International Whaling Commission.[13] The applicant was able to use the data in the reports to demonstrate that whales had been killed or otherwise interfered with inside Australia’s Antarctic EEZ. Justice Allsop had no trouble in finding that

the applicant has established on the balance of probabilities that the fleet has engaged in conduct that contravenes … the EPBC Act, and intends to continue doing so in the future.[14]

Justice Allsop then considered the Court’s discretion to refuse relief, and once more raised international law issues and futility as possible grounds for exercising that discretion. The Attorney-General had again been invited to make submissions in the case, and had confirmed his previous position. However, Allsop J, in line with the Full Court’s ruling, stated that uncertainty regarding Australian sovereignty in Antarctica and jurisdiction in the Australian Antarctic EEZ could not be examined by the Federal Court in these proceedings.[15] He commented that

[t]hese matters of sovereignty and international recognition (and lack of extensiveness thereof) can be taken to have been before, and well recognised by, Parliament when it enacted the EPBC Act.[16]

Further, in light of the public interest nature of the proceedings, and the fact that any difficulty in enforcing the Court’s order would be a result of the respondent’s disobedience, Allsop J refused to withhold relief on the grounds of futility.[17]

Whether or not HSI gets the opportunity to have the court’s orders enforced remains to be seen. The recent change in Federal Government has certainly affected the context surrounding the case. Prior to the final judgment being handed down, the new Minister for Foreign Affairs, Steven Smith MP, and the new Minister for the Environment, Heritage and the Arts, Peter Garrett MP, issued a joint press release stating that the

Attorney-General has withdrawn the previous Government’s submission to the current federal court case concerning Japan’s whaling activities in the Australian Whale Sanctuary.[18]

In addition, the Customs patrol boat, the Oceanic Viking, has been used to collect photographic and video evidence of Japanese whaling in the Southern Ocean for use in ‘any potential international legal action against Japan.’[19] Such international legal action, perhaps under the International Convention for the Regulation of Whaling 1946, the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) 1973 or the United Nations Convention on the Law of the Sea (UNCLOS) 1982, would not involve the direct enforcement of Australian legislation and would be separate from the Humane Society Inc litigation.

ENDNOTES


[1] Australian National Centre for Ocean Resources and Security, Faculty of Law, University of Wollongong.

[2] Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3 (Allsop J).

[3] Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2004] FCA 1510; (2005) 212 ALR 551 at 552.

[4] Outline of Submissions of the Attorney General as Amicus Curiae, Court Document available at http://www.envlaw.com.au/whale.html (accessed 12 February 2008). The submissions are summarised in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2005] FCA 664 at [4]- [16] (Allsop J).

[5] Ibid, at [14].

[6] Ibid, at [16].

[7] Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2005] FCA 664 at [35].

[8] Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425 at 430 (Black CJ and Finkelstein J), 434-5 (Moore J).

[9] Ibid, at 430-432 (Black CJ and Finkelstein J).

[10] Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3 (15 January 2008) (Allsop J) [20].

[11] Ibid.

[12] Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 4.

[13] Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3 at [30]- [44] (Allsop J).

[14] Ibid, at [40].

[15] Ibid at [13].

[16] Ibid.

[17] Ibid at [53].

[18] Stephen Smith MP and Peter Garrett MP, ‘Australia Acts to Stop Whaling’, Press Release (Canberra, 19 December 2007).

[19] Bob Debus MP, ‘Whaling Announcement – release of images from the Oceanic Viking’, transcript of Doorstop interview (Maroubra, NSW, 7 February 2008).


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