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COURT WASTED NO TIME BUT JAPANESE ARE TAKING NO NOTICE MINKE WHALE Balaenoptera acutorostrata November 2015, the Federal Court of Australia fined a Japanese whaling company $1 million for breaching an order requiring it to stop whaling in theAustralianWhale Sanctuary*. Despite this landmark win, the company announced in December that its shipswere headed to the SouthernOcean to start the 2015/2016 summer whaling season under Japan’s controversial new ‘scientific’ whaling program. It’s likely the company will kill whales in the Sanctuary. HSI’s legal counsel James Hutton and Jeremy Kirk SC with HSI’s Michael Kennedy and EDO NSW Solicitor Stacey Ella What is the significance of this case? How can the whaling continue despite the Court’s decision? And what effect does this decision have? About the case In November 2015, the Federal Court of Australia found that Japanese whaling company Kyodo Senpaku Kaisha Ltd (Kyodo) was guilty of four counts of contempt of Court. Kyodo had breached a 2008 order of the Court requiring the company to stop whaling in the Australian Whale Sanctuary (the Sanctuary) off the coast of Antarctica. EDONSW, on behalf of our client Humane Society International Australia (HSI), presented evidence to the Court that Kyodo had whaled in the Sanctuary in four separate whaling seasons since it was ordered to stop in 2008. The Court accepted our evidence, and fined Kyodo $250,000 for each of the four seasons in which Kyodo breached the 2008 order. What is the significance of this case? This case is legally significant for a number of reasons. First, it is the first time that a fine has been imposed in contempt proceedings brought to protect biodiversity under Australia’s Environment Protection and Biodiversity Conservation Act, 1999 (Cth). Second, it is the largest fine in any contempt proceedings in Australian history, and the largest fine ever imposed in Court proceedings under national environmental law. Third, and perhaps most significantly, the decision establishes a legal precedent for future biodiversity protection cases. Companies or individuals who might contemplate similar breaches of court orders under the EPBC Act or other environmental protection legislation will now be aware that the Court views such breaches to be very serious and will hopefully be deterred from committing such breaches. The Court imposed the fine on the day of the hearing. It was completely unexpected that the Court would find in our favour so quickly and deliver a decision on the spot. What effect does the Court’s decision have? In December 2015, EDO NSW arranged for the contempt orders to be served on Kyodo—this involved having the orders and evidence delivered in person and also by post to Kyodo’s offices in Tokyo, Japan. The court ruling in November was the result of an 11 year fight for HSI and EDO NSW. Now that this significant milestone has been reached, what happens next? Generally speaking, enforcing an Australian court’s decision outside of Australia is difficult. In this case it is extremely difficult for a number of reasons. *Japan has killed 330 minke whales this season so far in Antarctica. 6 EDO NSW SOLICITOR • STACEY ELLA Though the Australian government has a claim over territories in Antarctica, which allows it to make laws to protect whales in the Sanctuary, Japan does not recognise Australia’s claim over those territories. The Australian government has also signed an international treaty stating that it will not enforce its claim over its Antarctic territories against any other country, including Japan. As Japan does not recognise Australia’s claim over these Antarctic territories, it also does not recognise the Australian laws protecting whales in the Sanctuary. The effect of this is that Kyodo, as a Japanese company with permits for whaling issued by the Japanese government, does not recognise the Federal Court’s jurisdiction over the Sanctuary and is likely to continue to disregard the orders of the Court requiring it to stop whaling in the Sanctuary. Despite these difficulties, we are seeking further advice on behalf of HSI on possible alternative enforcement measures. The international context It’s important to note that the Federal Court’s fine is not related to a decision made by the International Court of Justice in 2014 that Japan’s whaling program is illegal. In purely legal terms, the whaling program is not illegal under international law. That’s because after the International Court’s decision, the Japanese Government simply changed the wording of its agreement on its obligations to theCourt—the agreementnowexcludes ‘any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea.’ It also relabelled its whalingprogram,though in substancethe programremained the same. This rewording prevents any further disputesonJapan’s whaling program from being brought before the International Court of Justice. A growing voice of condemnation Despite the whaling program continuing, the $1m fine is an important milestone in our long-running legal battle. The Federal Court’s decision sends a strong message to the Japanese Government and the international community—it reaffirms the Australian legal position in the ongoing international condemnation of Japan’s ‘scientific’ whaling program. Note: HSI has asked EDO to determine whether there are potential opportunities under international law to recoup the $1 million fine from Kyodo. EDO is in turn seeking the advice of experts in Admiralty law. HSI also continues to provide the Commonwealth with advice on opportunities to pressure the Japanese Government over perceived violations of CITES and IWC rules in relation to cetaceans. HSI will attend the next meeting of the International Whaling Commission (IWC-66) in Portoroz, Slovenia in October 2016 to pursue the Japanese Government and whalers.