Category Archives: International

ICJ Whaling Ruling

This week, the International Court of Justice (“ICJ”) ruled (Whaling In The Antarctic (Australia v. Japan: New Zealand Intervening)) against Japanese whaling activities in the Southern Ocean finding that Japan’s JARPA II whaling program was not for scientific purposes and ordering that all permits given under JARPA II be revoked.

You may be familiar with the popular TV show, Whale Wars, which followed marine conservation organization Sea Shepherd’s attempts to dissuade Japan’s whaling fleet from hunting whales as part of it’s Japanese Whale Research Program. This case deals directly with that hunt.

On May 31, 2010, Australia filed an Application at the ICJ against Japan concerning:

“Japan’s continued pursuit of a large-scale program of whaling under the Second Phase of its Japanese Whale Research Program under Special Permit in the Antarctic (‘JARPA II’), in breach of obligations assumed by Japan under the International Convention for the Regulation of Whaling . . . , as well as its other international obligations for the preservation of marine mammals and the marine environment”.

Australia sought a declaration from the ICJ that Japan was in breach of its international obligations in implementing the JARPA II program in the Southern Ocean and asked that the ICJ order Japan to:

– cease implementation of JARPA II

– revoke any authorizations, permits or licences allowing the activities which are the subject of the application; and

– provide assurances and guarantees that it will not take any further action under JARPA II, or any similar program, until it conforms with international law.

The International Convention for the Regulation of Whaling (“ICWR”) was in issue in this application. Australia argued that JARPA II was not a program for purposes of scientific whaling within the meaning of Article VIII of the ICWR. Japan, of course, maintained that its hunt was for scientific purposes.

The specific Article reads:

“Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted.”

Australia contested that JARPA was conceived in order to continue commercial whaling under the guise of scientific research, though Japan asserted that JARPA was launched “for the purpose of collecting scientific data to contribute to the ‘review’ and ‘comprehensive assessment’” of the moratorium on commercial whaling that had been adopted by the International Whaling Commission (“IWC”) in 1982.

In assessing JARPA II, and whether the design and implementation were reasonable in relation to achieving Japan’s research objectives, the ICJ found, amongst other things, that:

– the JARPA II Research Plan lacked transparency in the reasons for selecting particular sample sizes for individual research items;

– the JARPA II Research Plan had a considerable increase in the scale of lethal sampling;

– the stated sample sizes for fin and humpback whales were too small to provide the information necessary to pursue the JARPA II research objectives;

– in light of the fact that JARPA II had been ongoing since 2005 and involved the killing of 3,600 minke whales, the scientific output appeared limited;

– there was evidence that the research program could have been adjusted to require a much smaller sampling size;

Taken as a whole, the ICJ found that JARPA II involved activities that could be broadly characterized as scientific research, but that the evidence did not establish that the program’s design and implementation were reasonable in light of the stated objectives.

The ICJ’s decision is legally binding upon Japan and cannot be appealed.

By James Early.

Australian Shark Cull To Continue

I reported yesterday, here, that Sea Shepherd and Ms. Burden (“Sea Shepherd”) had been seeking an injunction against the State of Western Australia (“WA”) in relation to the ongoing shark cull by means of a Shark Drum Line Program.

Today, the Supreme Court of Western Australia sided with WA and dismissed the application for an injunction. The full decision can be read here.

The Court identified the primary issue as follows:

– Are the Exemption Instruments which are made under s 7(2)(c) of the Fish Resources Management Act (WA) ‘subsidiary legislation’ for the purposes of s 41 of the Interpretation Act 1984 (WA) with the effect that the Exemption Instruments are invalid or inoperative?

WA had made two exemptions (the “Exemption Instruments”) pursuant to section 7(2)(c) of the FRM to allow for the shark cull to occur. Of course, without these exemptions, the taking (meaning “killing”) of various species of shark would be prohibited pursuant to the FRM.

In order to address the primary issue, the Court identified a series of five sub-issues, as follows:

33 First, what is meant by ‘instruments … having legislative effect’ in the definition of ‘subsidiary legislation’ in s 5, and applied to s 41, of the Interpretation Act 1984 (WA)?

34 Secondly, can instruments which exempt individuals or groups of individuals from the operation of an Act have ‘legislative effect’ so that they fall within the definition of ‘subsidiary legislation’ in s 5 of the Interpretation Act?

35 Thirdly, does the Fish Resources Management Act impliedly exclude the operation of s 41 of the Interpretation Act in relation to exemption instruments under s 7?

36 Fourthly, do the Exemption Instruments in this case have legislative effect?

37 Fifthly, if s 41 of the Interpretation Act applies, and if the Exemption Instruments have legislative effect, then does the failure to publish those Exemption Instruments in the Gazette mean that they are invalid or inoperative?

As a short backgrounder, section 41 of the Interpretation Act requires that a written law that confers power to make subsidiary legislation shall be published in the Gazette. The “Gazette” is reference to the Western Australian Government Gazette, and is operated by WA. It exists, essentially, as a tool to communicate legislative changes to the public.

It was argued, by Sea Shepherd, that the Exemption Instruments in this case had legislative effect and that WA failed to publish the Exemption Instruments in the Gazette.

As such, much of the focus of legal argument in this matter was based upon the second sub-issue. Sea Shepherd argued that every exemption to the FRM is legislative in effect because every exemption operates to change the law. However, the Court disagreed.

Further, the Court found that even if the Exemption Instruments made by WA were legislative in effect, section 41 of the Interpretation Act is impliedly excluded by the FRM such that publication of the Exemption Instruments in the Gazette is not required.

Sea Shepherd has not yet announced what its next move will be, simply stating that it will continue to work to save the sharks of Western Australia, exploring all options available to it.

By James Early.

Western Australia Shark Cull Decision Imminent

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.