Japanese whaling in Australian Antarctic waters

Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116

The Federal Court on Friday granted leave to the Humane Society International (HSI) to proceed with a case to stop Japanese whaling in Australian Antarctic waters:

THE Federal Court has cleared the way for the Japanese company Kyodo Senpaku Kaisha to be challenged over its whaling.The court yesterday allowed Humane Society International to seek an injunction ordering the company to halt whaling in waters off the Australian Antarctic Territory, where it has harpooned hundreds of the animals.

The background to the case is this. In late 2004, HSI commenced proceedings in the Federal Court, seeking an injunction to restrain Kyodo Senpaku Kaisha – a major Japanese whaling company – from carrying out whaling in Australia’s "whale sanctuary", which comprises all Australian waters.

Japan is allowed to conduct "scientific whaling" under the International Whaling Commission rules and carries out part of this whaling in Antarctic waters over which Australia claims sovereignty. Under Australian domestic law (the federal Environment Protection and Biodiversity Conservation Act 1999 or EPBC Act), whaling is prohibited in any Australian waters. So as a matter of Australian law, Japan’s whaling in Australian Antarctic waters is illegal.
However, a number of countries – including Japan – do not recognise Australia’s claim to Antarctica and Antarctic waters and so the position at international law is unclear. This does not mean Australia can’t attempt to enforce it’s own laws against nationals of other countries, however the federal government has declined to enforce the EPBC Act against Japanese whalers. It prefers, it says, to use diplomatic pressure and international forums and does not want to spark an international disagreement over its Antarctic claims by enforcing its domestic laws against other countries who carry out activities in Antarctica. Doing so would be provocative when those countries believe that Australia has no right to enact those laws in the first place.

However, under the EPBC Act, any person who has a relevant interest can apply to the Federal Court to enforce the Act. HSI has an interest in enforcing provisions related to whales because it is a representative organisation whose objects include conservation and animals welfare. And so HSI applied to the Court to enforce the Act itself, ie, to obtain an injunction to prevent Kyodo from carrying out whaling in Australian waters.

As a first step, HI had to get the Court’s permission to serve the proceedings on Kyodo, because the company has no physical presence in Australia and must be served at its offices in Japan. The Court sought the federal government’s view and the Attorney-General, Phillip Ruddock, argued that the Court should not grant leave. The reasons were pretty much those I’ve given above: seeking to enforce Australia’s laws against countries who dispute the validity of those laws could spark international disagreement and that could ultimately undermine Australia’s claim.

The judge agreed with the Attorney-General and refused to grant HSI leave to serve documents on Kyodo. (The Courting Disaster blog gives a good summary of that decision and the international law aspects of the case – you need to scroll down to the November 20 entry). HSI appealed that decision to the full Federal Court and the appeal was heard last November. The Court has now allowed HSI’s appeal, which means that HSI can serve the relevant documents on Kyodo and proceed with the case.

This is good news for anti-whaling campaigners as the case will attract more attention to Japanese whaling in Antarctic waters. Ultimately it will be difficult to enforce any injunction that may be granted, but the case is probably more important as part of the PR war over international whaling.

The Federal Court judgment is here. Later in the week we’ll try to bring you some more detailed analysis of the decision itself.