Tim Stephens

The Sydney Morning Herald ran a short article today on legal options available to challenge Japan's humpback hunt in the Southern Ocean. There was a brief reference to the Convention on International Trade in Endangered Species (CITES), but not to the real nub of the argument.

CITES is a veritable treaty. Concluded back in 1973, it is one of the first comprehensive multilateral environmental agreements to come into existence.

CITES is there to stop commercial trade in threatened species of plants and animals. It applies to species also covered by other international agreements, such as whales which have their own regime in the form of the International Convention for the Regulation of Whaling which established the International Whaling Commission.

Basically, all of the great whale species are inscribed in Appendix I to CITES, which means that strict limitations on trade apply. Commercial trade is completely out of the question, but moving specimens about for research is okay. The only exceptions will be if governments have entered reservations, which a number of states have done.

Japan has made reservations in relation to a range of whale species but, very significantly, not humpbacks. This means that CITES applies with full force to this species and Japan will be in breach of its CITES obligations if it goes ahead and harvests humpbacks this summer. This is because the convention applies to introduction of species from the high seas in the same way as it applies to cross border trade in animal specimens, and it expressly prohibits taking species from the high seas for commercial purposes.

There has been speculation in the press over the last few days that Japan may back down on its plans to kill humpbacks. It was even reported last night that Japan may never have intended to hunt the whale because the Nisshin Maru factory ship it has sent to the Southern Ocean does not have sufficient refrigeration capacity to take the extra hundres of tonnes of whale meat. It may well be that Japan has been using the proposed humpback hunt as a negotiating tactic to retain its much larger minke hunt.

(me in Crikey today)

At the Bali climate change summit the Rudd government demonstrated that it is streets ahead of the previous government on the global environmental challenge of our time. This week presents another opportunity for leadership in environmental diplomacy, this time on the vexed issue of Japanese whaling in the Southern Ocean near Antarctica.

The government is moving swiftly to begin surveillance of the Japanese whaling fleet, which has been dispatched to kill an unprecedented number of whales this summer. Projected catches for Japan’s "scientific" whaling program are 935 minke whales and, for the first time, 50 fin whales (which are an endangered species) and 50 humpback whales (which are vulnerable).

This is a dramatic escalation of the Japanese whaling program, which is now reaching an intensity not seen since the days of full blown commercial whaling. Although justified by the Japanese as scientific research under a loophole provision of the Whaling Convention, in reality it is commercial whaling conducted against the express advice of the Scientific Committee of the International Whaling Commission. Consider here not only the scale of the program (Japan will kill in one summer more whales for research than it did between 1954 and 1986) but also the lethal "research" methods (despite the existence of proven non-lethal alternatives).

The government’s surveillance efforts will collate evidence that could be used in a international case against Japan. Apparently we will soon learn what Australia’s litigation strategy will be. In this respect it is very welcome news that Prime Minister Rudd and Environment Minister Garrett have dusted off the report of the Sydney Panel of Independent International Legal Experts, which had been hidden in a bottom draw by the former government.

The Sydney Panel Report outlines a suite of legal options for successfully challenging Japan’s whaling program. These include taking a case to the International Court of Justice in The Hague for breaching the Whaling Convention, which allows genuine scientific research but prohibits plainly commercial whaling. Both Australia and Japan have accepted the jurisdiction of the World Court, so there is no impediment to bringing a case immediately.

Japan could also be hauled before the International Tribunal for the Law of the Sea in Hamburg for breaches of the Law of the Sea Convention. One of the advantages of this option is that the Tribunal can issue immediate provisional measures requiring Japan to cease is unlawful whaling activities. Other equally strong options include initiating compliance procedures under the Convention on International Trade in Endangered Species which could lead to a collective trade embargo.

There are many good legal options available to the Rudd government to move things forward on this issue. Although international litigation ought to be a last resort, Japan has simply not responded in good faith to any diplomatic overtures made over many years. On fisheries and whaling matters it continues to make ambit claims for ever increasing catches, against scientific advice and the wishes of the international community. Although international litigation is unlikely to bring a quick fix, and does carry risks, it can lead to positive change as was seen most clearly in the case of French nuclear testing in the South Pacific.

Dr Tim Stephens was Rapporteur for the Sydney Panel of Independent International Legal Experts and co-author of the Sydney Panel’s Report.

On 27 November 2007 the NSW Land and Environment Court handed down one of the first major judgments turning on the issue of climate change adaptation: Walker v NSW Minister for Planning [2007] NSWLEC 741.

Up to now most climate change litigation in Australia (and elsewhere) has been concerned with mitigation. For instance cases have been brought challenging approvals for coal mines or coal-fired power stations that are contributing to rapidly rising greenhouse gas emissions globally.

Walker v Minister concerned a concept plan approval by the Minister for a residential subdivision and retirement development at Sandon Point, a picturesque spot on the coast near Wollongong. The applicant argued that the approval was invalid because, among other things, the Minister failed to take into account an implied mandatory consideration namely whether the flooding impacts of the project would be compounded by climate change.

Following an exhaustive review of the concept of Ecologically Sustainable Development and its incorporation in Australian law by legislators and the courts, Biscoe J made the following findings:

Climate change presents a risk to the survival of the human race and other species. Consequently it is a deadly serious issue...Climate change flood risk is, prima facie, a risk that is potentially relevant to a flood constrained, coastal development such as the subject project.

... ... ... ... ... ... ... ...

In my opinion, having regard to the subject matter, scope and purpose of the [Environmental Planning and Assessment Act 1979 (NSW)] and the gravity of the well-known potential consequences of climate change...the Minister was under an implied obligation to consider whether it was relevant and, if so, to take it into consideration when deciding whether to approve the concept plan. The Minister did not discharge that function.