Coastal, Marine & Fisheries Management

EDO NSW has assisted community groups and individuals in their efforts to protect marine species including whales and sharks, and to conserve coastal environments such as wetlands and estuaries.

IFAW v NOPSEMA

December 2015

The International Fund for Animal Welfare (IFAW), with the help of EDO NSW, obtained access to important documents on a decision to allow Bight Petroleum to undertake seismic exploration in blue whale feeding grounds near Kangaroo Island, off South Australia.

IFAW took legal action in the Administrative Appeals Tribunal in April 2015, after NOPSEMA refused to release its assessment documents and the full Environmental Plan for the seismic testing.

Bight Petroleum objected to the release of the full Environmental Plan on the grounds that the release would adversely affect its business affairs. The Environmental Plan is the regulatory document with which Bight Petroleum must comply; without the full plan there is no way for the public to ensure the company is meeting its obligations under the law.

In addition, NOPSEMA refused to release its own assessments on the basis the documents would reveal its deliberative process. Without NOPSEMA’s own assessment of Bight Petroleum’s environmental plan, there was no way for the public to verify if NOPSEMA is properly fulfilling its regulatory functions, which includes assessing the impacts from proposed developments on matters of national environmental significance.

This was the first seismic exploration licence that NOPSEMA assessed and approved since Environment Minister Greg Hunt handed over his approval powers to the industry regulator in February last year as part of the Australian Government’s plan to devolve environmental powers to States and industry bodies.

In January 2016, NOPSEMA released the documents by consent order of the Administrative Appeals Tribunal. Read more at our blog Petroleum exploration documents released for public scrutiny, 13 January 2016.

EDO NSW is grateful to barrister Natasha Hammond for her assistance in this matter.

Whale ship and whale. Source: New England Aquarium taken under permit authorized by NOAA

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Humane Society International v Kyodo Senpaku Kaisha Ltd

December 2015

On behalf of Humane Society International (HSI), EDO NSW successfully acted in Federal Court contempt proceedings against Japanese whaling company, Kyodo Senpaku Kaisha Ltd (Kyodo).

The Federal Court of Australia has ruled that Kyodo is in contempt of Court, and fined the company $1 million.

In January 2008, we successfully represented HSI in long-running Federal Court proceedings which resulted in the Court declaring that Kyodo was breaching Australia’s federal environmental law by whaling in the Australian Whale Sanctuary in the Australian Antarctic Territory. The Court granted an injunction to restrain Kyodo from further breaches of the Federal environment law.

Following the Court’s ruling, HSI representatives travelled to Japan and served the injunction on Kyodo. Despite this, Kyodo has continued its whaling activities in the Australian Whale Sanctuary. No enforcement action was taken pending the outcome of the International Court of Justice hearing into Japan’s whaling program.

In March 2014, the International Court of Justice found that Japan’s whaling program was not in accordance with scientific research programs provided under international law and ordered Japan to cease its whaling program. However, in October 2014, Japan announced its intention to recommence whaling under a new program that it again claims is for scientific research.

With Japan’s whaling program due to recommence around December 2015, HSI sought to enforce the 2008 injunction. On 18 November 2015, the Federal Court ruled that Kyodo is in contempt of Court for continuing to kill whales in the Sanctuary despite the 2008 injunction. The Court fined the company $1 million dollars. Read the judgmentView our case graphic.

We are grateful to barristers Jeremy Kirk SC and James Hutton for their assistance in this matter. Dr Alana Grech provided expert assistance to the Court.

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Positive Change for Marine Life v Byron Bay Shire Council and Byron Preservation Association Inc

September 2015

On behalf of Positive Change for Marine Life Inc (PCML), EDO NSW sought an urgent interlocutory injunction in the Land and Environment Court to stop Byron Shire Council constructing a rock wall on Belongil Beach.

Belongil Beach is a sensitive coastal environment that is subject to coastal erosion. The Belongil spit is a dynamic system. Over time surveys around the estuary have recorded eighty species of seabirds, shorebirds, waterbirds and other wetland associated birds, many threatened with extinction.

In 1988 Byron Council adopted a policy of ‘planned retreat’ which provides an adaptive management approach to coastal erosion, rising seas and development. The management of the Australian coastline and responses to coastal erosion have become increasingly important in the face of rising seas.

PCML argued that the construction of the rock wall is likely to significantly affect the environment. When a project is likely to significantly affect the environment, the law requires that an Environmental Impact Statement (EIS) is prepared and considered before any decision to undertake the project is made. An EIS is also required to be placed on public exhibition allowing members of the community to have a say. As at October 2015, no EIS had been prepared for the proposed rock wall.

As there were machines on the site ready to commence the construction of the rock wall PCML sought an urgent interlocutory injunction and argued that Council had not followed the correct legal procedures.

On 11 September 2015 the Court rejected the application for injunction. Justice Craig found that there was a reasonably arguable case that the proposed construction of the rock wall was likely to have a significant effect on the environment. PCML had obtained independent expert evidence supporting its contention. However, in response, Council engaged two experts who supported Council’s contention that the construction of the rock wall is not likely to significantly affect the environment.

On this basis, Justice Craig formed the view that PCML’s case was not strong, and that if PCML succeeded in the final hearing of the proceedings, the rock wall could be removed.

We are grateful to barristers Ian Hemmings SC and Jacinta Reid for their assistance with this matter, and also to Craig Leggat SC and Fenja Berglund.

 

Friends of Malua Bay v Perkins & Eurobodalla Shire Council

July 2014

The Land and Environment Court rejected a legal challenge by community group, Friends of Malua Bay, to a residential development on the NSW south coast.  

EDO NSW acted for the group in its legal challenge of the Eurobodalla Shire Council’s  approval of a 30 lot subdivision on land at Malua Bay, near Bateman’s Bay.

The group argued that the Council failed to consider certain sections of its own Rural Local Environment Plan 1987 (LEP) when it approved the development..  Friends of Malua Bay argued that the law requires Council to be satisfied that the development is consistent with the objectives of the zone in the local environmental plan and that Council must consider the impact of the development on patterns of land use in the Urban Expansion zones.

Justice Craig of the Land and Environment Court, in a judgement handed down on July 14. 2014, found there was no requirement under the 1987 LEP for the council to form its own view as to whether the development, as proposed, is in fact consistent with the objectives of the relevant zone under the LEP.

The Court found that as the council had previously inspected the relevant land for the purpose of rezoning, an inference could be drawn that all councillors were familiar with the land and the pattern of land use both present and intended at that time. This inference, in concert with the material provided by the developer, was enough to satisfy the court that the council had discharged its legal obligation of consideration under the LEP.

The Court reserved its decision on costs and referred to the rule of the Court relating to cases that are brought in the public interest.

EDO NSW is grateful to barrister Fenja Berglund who acted as counsel for the Friends of Malua Bay in this case.

 

 

Humane Society International Inc v Minister for Environment and Heritage

February 2008

EDO NSW acted for HSI in the Administrative Appeals Tribunal (AAT) appealing the Minister's declaration of the Southern and Eastern Scalefish and Shark Fishery Wildlife Trade Operation under the Environmental Protection and Biodiversity Conservation Act 1999.

EDO NSW has represented HSI at four mediations with the Minister and Australian Fisheries Management Authority representatives since September 2006, and succeeded in negotiating a number of significant draft additional conditions to the Wildlife Trade Operation. Final orders implementing the conditions agreed to at the mediations were made by the AAT on 21 February 2001.

Humane Society International Inc v Kyodo Senpaku Kaisha Ltd

January 2008

In this long-running case, EDO NSW acted for the Humane Society International Inc (HSI) against Japanese whaling company, Kyodo Senpaku Kaisha Ltd (Kyodo).

Note: In 2015, we are again acting on behalf of HSI to seek orders in the Federal Court that Kyodo is in contempt of the 2008 injunction described below. Read about the current case.

The proceedings were brought in the Federal Court of Australia. HSI sought a declaration that Kyodo breached the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act 1999) by whaling in the Australian Whale Sanctuary adjacent to Antarctica and an injunction to prevent them from continuing to kill whales there. In response, Japan claimed that it does not recognise Australia 's sovereignty over the Antarctic waters which constitute the whale sanctuary.

In a judgement handed down on 15 January 2008, 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 EPBC Act 1999.

HSI representatives travelled to Japan to serve the injunction upon Kyodo but so far no enforcement action has been taken. HSI has the option of taking enforcement action within Australia should the whaling ships enter Australian territorial waters.

You can find out more about this case and access court documents at www.hsi.org.au

Judgment - Application for leave to serve the originating process in Japan (23 November 2004)

Judgment - Application for leave dismissed (27 May 2005)

Judgment - Granting leave to appeal (27 May 2005)

Judgment - Appeal (14 July 2006)

Judgment  - Application for leave granted (16 February 2007)

Judgment - Orders (18 January 2008)

Humane Society International Inc v Minister for the Environment and Heritage

April 2006

EDO NSW represented The Humane Society International Inc (HSI) in the Administrative Appeals Tribunal in a case challenging a decision of the Minister for Environment and Heritage.

HSI sought merits review of the decision to declare fishing operations in the Southern Bluefin Tuna (SBT) Fishery to be an approved wildlife trade operation (WTO) pursuant to s 303FN of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The SBT is a highly endangered species, whose numbers have been severely depleted due to overfishing. The approval of the Minister will see fishing and export levels remain unchanged.

HSI challenged the Minister's decision on the basis that certain preconditions, including that the operation of the fishery would not be detrimental to the survival or conservation status of the SBT, could not be satisfied.

One of the central bases of HSI's challenge was that the Minister did not provide for quota reductions as a condition of approval. This is despite recent advice from the international Commission for the Conservation of Southern Bluefin Tuna that the overall catch for the SBT should immediately be reduced by 30% in 2006 or by 50% in 2007.

Southern bluefin tuna is considered severely overfished and the Minister's Threatened Species Scientific Committee has advised him that it meets the criteria for protection as an endangered species.

The Tribunal found that the approval of the SBT fishery would not be detrimental to the survival and conservation of the species and upheld the decision of the Minister to approve the SBT fishery as a WTO.

Whilst HSI was bitterly disappointed about the decision, it decided not to appeal and to pursue the campaign to protect this species through other means.

EDO NSW is grateful to Mr Patrick Larkin for his assistance with this matter.

Nature Conservation Council of NSW Inc V Minister for Environment and Water Resources and Ors

In 2007, EDO NSW represented the NSW Nature Conservation Council (NCC) in proceedings against the Commonwealth Minister for the Environment and Heritage. NCC presented evidence to the Administrative Appeals Tribunal (AAT) that the NSW Ocean Trap and Line Fishery (OTLF) has a significant impact on the nationally listed critically endangered east coast population of the Grey nurse shark.

The OTLF is a multi-species targeted fishery that operates within the habitat areas of the Grey nurse shark and a number of other threatened species. The NCC is seeking the implementation of fishery closures of specific key shark aggregation areas and the banning of the use of wire traces in deeper waters.

The AAT upheld the Minister's approval of the OTLF as a wildlife trade operation on the basis that the fishery, operated in accordance with the conditions imposed by the Minister, would not be detrimental to the survival of the grey nurse shark.

EDO NSW is grateful to barristers Christine Adamson SC and Craig Lenehan for their assistance in this matter.

Pindimar Bundabah Community Association Inc v Great Lakes Council & Ors

March 2007

EDO NSW represented the Pindimar Bundbnah Community Association (PBCA) in proceedings brought in the Land and Environment Court against Great Lakes Council, Port Stephens Council and a developer. PBCA challenged Great Lakes Council's decision to allow New South Wales' first land-based abalone farm to be developed on the edge of Port Stephens estuary on the Mid-North Coast. PBCA, a local community group, has been fighting the controversial development proposal for nearly six years.

The PBCA argued that the proposed abalone farm should be refused on the basis that it would impact on the wild abalone populations and seagrasses and would affect water quality and other aquatic ecological communities. It also argued that the proposal was inconsistent with the Port Stephens Local Environmental Plan and State Environmental Planning Policy No. 62. SEPP 62 applies to pond-based and tank-based aquaculture, including tank culture of abalone. SEPP 62 also lists the types of zones in which the different types of aquaculture are permitted.

In addition to expert evidence, the PBCA relied on the principles of ecologically sustainable development, including the precautionary principle, to support its arguments.

A marine ecologist engaged by EDO NSW stated that construction and maintenance of the pipes to service the farm would cause significant damage to seagrass beds along the pipeline routes and discharge nutrient enriched water into the estuary which could have adversely affected the fragile ecosystem. These impacts directly conflicted with the Department of Primary Industries' Fish Habitat Protection Plan No. 2: Seagrasses which applies to all coastal and estuarine waters of NSW. The Plan aims "to ensure there is no net loss of seagrasses within the coastal and estuarine waters of NSW".

According abalone management and disease experts engaged by EDO NSW, the development could also have affected wild populations of abalone in Port Stephens. Wild abalone populations in the Port Stephens area are already seriously affected by over-fishing, including illegal fishing, and the parasite Perkinsus. The spread of disease within wild populations is a serious concern, likely to be exacerbated by the development.

The case was heard by Chief Justice Preston and Commissioner Adam on 20-22 March 2007. In a preliminary hearing, Chief Justice Preston held that the proposal was not prohibited by the site location requirements of SEPP 62. However, during the hearing of the case, it became clear from the developer's responses to questions posed by Chief Justice Preston that there were a significant number of uncertainties about the way in which the development would occur, including its ability to remove nutrients before discharging water into the estuary. The developer was also unable to produce accurate plans in relation to various aspects of the development. Accordingly, the respondents agreed to the making of consent orders allowing the PBCA's appeal.

EDO NSW is grateful to barrister J E Lazarus for his assistance in this matter.

Walker v Minister for Planning

November 2007

EDO NSW assisted Jill Walker, a local resident, in a successful Land and Environment Court challenge to a Concept Plan approval of a development at Sandon Point.

The proposed development was for up to 285 homes and an aged care facility to be built on flood-prone coastal land.

It was argued that the Minister failed to take into consideration the recommendations and findings of a Commission of Inquiry report, and that the Minister failed to apply the principles of ecologically sustainable development (ESD) when deciding to approve the proposal.

In a detailed judgment, Justice Biscoe reviewed the principles of ESD as well as US and Australian case law on climate change. He found that the Minister for Planning had failed to consider ESD by failing to consider whether the impacts of the proposed development would be compounded by climate change; in particular, by failing to consider whether changed weather patterns would lead to an increased flood risk in connection with the proposed development in circumstances where flooding was identified as a major constraint on development of the site.

The case has important implications for how the Minister must deal with major projects under Part 3A of the Environmental Planning and Assessment Act 1979.

The Minister for Planning successfully appealed to the NSW Supreme Court, Court of Appeal. Ms Walker then sought special leave to appeal to the High Court. The application was heard in March 2009. The High Court declined to grant leave on the basis that while there were valid arguments in her favour, they did not think those arguments would succeed if the appeal was heard by the High Court.

EDO NSW is grateful to barristers Matthew Baird and Greg Young for their assistance in this matter.

Judgment - Order on costs (29 November 2007)

Amended Notice of Appeal (3 April 2008)

Judgment - Appeal (24 September 2008)

Case summary - Appeal (24 September 2008)

Application for special leave to appeal (22 October 2008)

Judgment - Appeal - Order on costs (3 December 2008)