On March 5, 2014 a decision is expected from the Supreme Court of Western Australia in relation to Sea Shepherd Australia Ltd. (“Sea Shepherd”) and Sharon Ann Burden’s (“Ms. Burden’s”) application for judicial review of a decision by the State of Western Australia (“WA”) on the issue of “shark mitigation”.
For most of you, Sea Shepherd likely needs no introduction. You may also recall that Sharon Ann Burden’s son, Kyle Burden, died at the age of 21 as a result of a shark attack while bodyboarding in Bunker Bay, Western Australia, in 2011.
It was as a result of this death, and several others over the course of two years, that WA Premier, Colin Barnett, made the decision to place baited hooks along the coast to catch sharks and licenced shark hunters to patrol the coastal waters and kill any shark bigger than 3m in length.
The Shark Drum Line Program is essentially a tool to allow licenced individuals to [h]umanely destroy any white shark, tiger shark or bull shark that is greater than 3m total length caught on the drum lines.
It was this decision that led to Sea Shepherd and Ms. Burden’s application for judicial review.
In announcing the commencement of legal action, Sea Shepherd set out the reasons for the judicial review on its website:
– The WA Fisheries report by the Bond University in 2012 did not recommend the use of drum lines and nets as shark mitigation for Western Australia, as baited drum-lines and shark nets do not guarantee that beaches are free of sharks of a size or species that pose a risk to humans.
– The WA Fisheries Nov 2012 Shark Correlation Report, stated that most Great White Shark attacks occur offshore, in deeper waters, with only one of the 26 shark attacks in WA occurring less than 30 metres from the shore. The highest number of attacks occur more than 1km offshore, with scuba divers and snorkelers (44%) having the highest incidence, followed by surfers and sea kayakers (37%).
– Recent polls have shown that between 80-95% of Australians are against the WA government’s shark cull program.
– Using large hooks has not minimised the catching and killing of smaller sharks, including legally protected Mako Sharks.
– The treatment of undersized live sharks and the condition they are being released in gives them little to no chance of survival. Based on current cull numbers, an estimated 140 Tiger Sharks will be killed by the end of the program, far more than the original estimate of 10-20, made by the WA Department of Fisheries risk assessment. This will have a significant impact on the population of near-threatened Tiger Sharks.
– The WA Fisheries Department and Premier Colin Barnett acknowledge that their drum lines are drawing sharks closer to popular beaches and surf spots, which led to them removing the drum lines for the Rottnest Channel Swim. Sharks caught on the drum lines are drawing in more sharks, made evident by sharks being pulled up with large chunks taken out of them by even larger sharks. Some distressed sharks are throwing up their stomach contents 1km off our popular swimming and surf beaches leaving burley oil-like substances in the water, which attracts larger sharks.
– A recent report by Professor Jessica Meeuwig on the effectiveness of the Queensland drum line program found that shark-related fatalities in Queensland have declined in both areas with and without drum lines, with the steepest rates of decline occurring before the drum lines were installed. The ecological cost of drum lines is high, with 97% of sharks caught since 2001 considered at some level of conservation risk, and 89% caught in areas where no fatalities have occurred.
– Effective solutions exist that make our beaches safer and help minimise risk, both immediate and long-term, such as tagging and research.
– The global science community is crying out for more research and science on Great White Sharks. 100 shark experts and scientists wrote an open letter to the WA Government stating their drum line program would not work.
– There are massive ecotourism opportunities for Great White Sharks, like those currently in place in countries like South Africa.
– The Great White Shark is an IUCN Red-Listed species vulnerable to extinction, legally protected under Federal Environment laws, and an APEX predator critical to the health of our oceans.
– Global shark populations have been wiped out in some places by over 90% due to overfishing.
– Sharks maintain the health of our precious marine ecosystems, oceans that provide humans with most of the oxygen we need to breathe.
– According to the WA Fisheries, the presence of sharks off the WA coast is an indication of a healthy marine environment.
– The world is condemning the WA government shark cull.
The judicial review is predicated on the allegation that the sharks that have, or will be, taken are protected pursuant to WA statute and, therefore, the taking of those sharks is unlawful. As a result, it is claimed that the decisions and conduct of WA are:
– ultra vires the Fish Resources Management Act and regulations thereunder (“FRM”);
– have been, or are affected by jurisectional error; and
– as such, are not decisions or conduct capable of lawfully affecting rights, duties or obligations.
The sharks targeted by the shark mitigation efforts are alleged to be “totally protected fish” and the FRM prohibits the taking of totally protected fish (the definition of “take” includes “kill… by any means”). The FRM establishes that Great White Sharks are totally protected fish. The FRM further establishes that Whaler Sharks (which include Bull and Tiger) are totally protected fish in certain circumstances based upon size and location.
Check back tomorrow for a short commentary on the expected WA Supreme Court decision.
By James Early.