Japanese Whaling case

The Japanese Whaling Case involved an application in the Federal Court of Australia for an injunction and declaration to restrain Japanese whaling in the Australian Whale Sanctuary adjacent to Antarctica.

The case was brought by a conservation group, the Humane Society International (HSI), under section 475 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) against the Japanese company that conducts the whaling.

The application of Australian law to Japanese (and other foreign) nationals in Antarctica was based on Australian sovereignty in Antarctica and subsequent declaration of a whale sanctuary within the waters of Australia’s exclusive economic zone (EEZ) around its Antarctic territory.

As the Japanese company had no offices in Australia, to proceed against it HSI needed the permission (“leave”) of the Federal Court to serve the court proceedings on the company in Japan.

HSI applied for this in 2004 but it was refused after the Commonwealth Attorney General submitted to the Court that allowing the case to proceed would cause a diplomatic incident.

HSI appealed this refusal to the Full Court of the Federal Court. The Full Court allowed the appeal, the majority, Black CJ and Finkelstein J, stating at [12]-[13]:

“We are also persuaded that the primary judge was in error in attaching weight to what we would characterise as a political consideration. It may be accepted that whilst legal disputes may occur in a political context, the exclusively political dimension of the dispute is non-justiciable. It is appropriately non-justiciable because the court lacks competence to resolve disputes and issues of an exclusively political type, the resolution of which will involve the application of non-judicial norms: compare Japan Whaling Association v American Cetacean Society (1986) 478 US 221 at 230.

Even if, in special circumstances, there is occasion for political considerations to be taken into account in deciding whether an action should be permitted to go forward, there is no room, in our view, for those considerations where, as here, the Parliament has provided that the action is justiciable in an Australian court: R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [2000] 1 AC 61 at 107.”

Black CJ and Finkelstein J also stated principles for the grant of public interest injunctions under the EPBC Act that are of general importance. Broadly speaking, the principle that emerges is that the Federal Court may grant an injunction under section 475 of the EPBC Act even if it may prove impossible to enforce where it serves the public interest objects of the Act by having an educative effect.

Following the successful appeal, HSI attempted to effect service through the diplomatic channel; however, the Government of Japan declined to effect service. The reason stated by the Ministry for Foreign Affairs was:

“The request for service of documents with regards to Kyoto [sic] Senpaku Kaisha Ltd cannot be processed because this issue relates to waters and a matter over which Japan does not recognise Australia’s jurisdiction.”

HSI subsequently sought an order for substituted service (which is permitted where normal service is impractical). The Federal Court granted the application and HSI effected service on the company.

The Japanese company did not appear at the trial and the Federal Court held that it was contravening the EPBC Act. In January 2008 the Court made the following declaration and injunction:

“1. THE COURT DECLARES that the respondent has killed, injured, taken and interfered with Antarctic minke whales (Balaenoptera bonaerensis) and fin whales (Balaenoptera physalus) and injured, taken and interfered with humpback whales (Megaptera novaeangliae) in the Australian Whale Sanctuary in contravention of sections 229, 229A, 229B and 229C of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), (the “Act”), and has treated and possessed such whales killed or taken in the Australian Whale Sanctuary in contravention of sections 229D and 230 of the Act, without permission or authorisation under sections 231, 232 or 238 of the Act.

2. THE COURT ORDERS that the respondent be restrained from killing, injuring, taking or interfering with any Antarctic minke whale (Balaenoptera bonaerensis), fin whale (Balaenoptera physalus) or humpback whale (Megaptera novaeangliae) in the Australian Whale Sanctuary, or treating or possessing any such whale killed or taken in the Australian Whale Sanctuary, unless permitted or authorised under sections 231, 232 or 238 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).”

The Court subsequently made orders for substituted service of its judgment and orders on the company in Japan.

HSI served the Court’s declaration and injunction on the respondent company in Japan in 2008; however, the company and Japanese Government ignored the orders and continued whaling in contravention of the injunction.

In 2015, due to the ongoing whaling HSI commenced an application to have the company punished for contempt of court.

On 18 November 2015, the Federal Court found the company was in contempt and imposed fines totalling AUS$1 million. Jagot J accepted, at [40]:

“(1) There can be no doubt that the conduct involved has been deliberate, systematic and sustained in circumstances where I am satisfied beyond reasonable doubt that Kyodo had knowledge of what the 2008 injunctions required. Further, the conduct involved required substantial effort and resources to carry out.

(2) Even on a conservative view, there have been at least five Antarctic minke whales killed in the Australian Whale Sanctuary in breach of the 2008 injunctions for each of the four years involved.

(3) The 2008 injunctions have a substantial public interest component and perform an educational role, so that any penalties imposed should be sufficient to be seen as a denouncement of the conduct of Kyodo and to be consistent with the clear intention of Parliament that this conduct be recognised to be objectively serious.”

Taking these and other considerations into account, her Honour held, at [45]-[46]:

“I am satisfied that a penalty of not less than $250,000 for each of the four whaling seasons [in 2008-2013 when it was alleged Kyodo had committed contempt in] should be imposed on Kyodo. In this regard … I do not see that as in any way excessive, having regard to the serious nature of the breaches which the applicant has established.

Accordingly, Kyodo is found to be in contempt of court and consequently, is to pay fines which together total $1,000,000.”

On 16 August 2018 the Australian Geographic listed this case third in a list of the “Top 5 landmark environmental legal cases in Australia”.

Whaling in the Antarctic (Australia v Japan)

In separate litigation (not the subject of this case study) Australia challenged Japan’s whaling in the Antarctic in the International Court of Justice (ICJ). The proceedings were commenced in 2010 (after the conclusion of the litigation in the Federal Court of Australia the subject of this case study).

Australia’s claim in the ICJ against Japan was not based on its sovereignty in Antarctica, the Australian Whale Sanctuary, or the EPBC Act, as HSI’s proceedings in the Federal Court of Australia had been.

Rather, Australia based its claim in the ICJ on Japan’s obligations under the International Whaling Convention. Japan’s defence was that its whaling was authorised under Article VIII of the Convention, which provides for each Contracting Government to issue special permits for whaling involved in scientific research.

In March 2014 a majority of the ICJ held that Japan’s whaling program in the Antarctic (JARPA II) was not authorised under the International Whaling Convention. In summarising its judgment, the Court observed:

“Taken as a whole, the Court considers that JARPA II involves activities that can broadly be characterized as scientific research, but that the evidence does not establish that the programme’s design and implementation are reasonable in relation to achieving its stated objectives. The Court therefore concludes that the special permits granted by Japan for the killing, taking and treating of whales in connection with JARPA II are not ‘for purposes of scientific research’ pursuant to Article VIII, paragraph 1, of the Convention.”

In November 2014 Japan announced it would resume whaling in the Antarctic but with a reduced quota of whales.