Australian Court Permits Humane Society to Sue Japanese Whalers

SYDNEY, Australia, July 17, 2006 (ENS) - The Federal Court of Australia has granted Humane Society International permission to proceed with a lawsuit against the Japanese company that hunts whales in the Australian Whale Sanctuary adjacent to Antarctica.

The conservation group now will ask the court for an injuction stopping the whale hunt, which is carried out by the Japanese company Kyodo Senpaku Kaisha Ltd. as part of Japan’s scientific research program. The Japanese Institute for Cetacean Research charters Kyodo Senpaku's ships and crews to carry out whaling activities.

“Humane Society International is glad to have overcome the first hurdle in our case against the Japanese company killing whales in Australia’s sanctuary, said HSI Director Michael Kennedy.

The company, Kyodo Senpaku Kaisha Ltd, has killed more than 850 minke whales within the Australian Whale Sanctuary since the sanctuary was proclaimed in July 2000 under the Commonwealth Environment Protection and Biodiversity Conservation (EPBC) Act, according to Humane Society International estimates.

This year the company added fin whales to their annual hunt and from next year they plan to start killing threatened humpback whales.


The Nisshin Maru factory whaling vessel owned by Kyodo Senpaku Kaisha Ltd. in the Southern Ocean, January 2006. (Photo courtesy Sea Shepherd)
Under the EPBC Act it is an offense to kill whales in the Australian Whale Sanctuary and conservation groups have the power to go to the Federal Court to demand the law be enforced.

But the Humane Society International (HSI) needed initial permission from the court to begin legal proceedings because the case involves a foreign company.

Last year, Justice James Allsop refused HSI permission to bring the case, citing concerns raised by Attorney General Philip Ruddock over Australia’s diplomatic relations with Japan.

The Attorney General had submitted to the Court that enforcing the Australian Whale Sanctuary against the Japanese company “would be likely to give rise to an international disagreement with Japan.”

HSI appealed to the Full Court of the Federal Court asking for Justice Allsop’s decision to be overturned. On Friday, the Federal Court ruled that HSI could go ahead with its request for an injunction to stop the whaling.

All three judges said they believed Justice Allsop erred in taking into account political considerations.

In opposing HSI’s case, the government expressed a preference for dealing with this matter through diplomatic channels.

“As a matter of international law, Australia has only limited jurisdiction to prevent whaling activity in the waters off Antarctica," Attorney General Ruddock said in May 2005.

"It has been international practice for parties to the Antarctic Treaty to regulate the activities of their own nationals in Antarctica and its adjacent waters since the Treaty came into force on 26 June 1961," Ruddock said. “The government will consider all legal and diplomatic options open to it to bring pressure to bear on Japan to make it change its whaling policy.”

In May 2005, Prime Minister John Howard wrote to Prime Minister Junichiro Koizumi asking him to stop the whale hunt. The Japanese government was undeterred and the whale hunt went ahead in December 2005 and January 2006.

“We are pleased the Full Court of the Federal Court saw fit to place the enforcement of Australian federal environment legislation ahead of diplomatic concerns,” Kennedy said.


The Yushin Maru catcher ship of the Japanese whaling fleet takes a minke whale in the Southern Ocean. January 2006 (Photo by Kate Davison courtesy Greenpeace)
Humane Society International can now able to ask the Federal Court to declare the company’s activities illegal under Australian law and to issue an injunction for the hunt to be stopped.

Once HSI commences the proceedings against Kyodo Senpaku Kaisha Ltd, further hearings will be required to confirm the whaling is illegal under the EPBC Act and for the Court to decide whether to grant the injunction to stop the hunt.

On March 24, 2006, Kyodo Senpaku Kaisha Ltd, announced that its present shareholders would be transferring all shares in the company to several public interest corporations including the Institute for Cetacean Research.

HSI’s lawsuit comes at a time when Japan is escalating its whale hunts and when Japan’s campaign to recruit developing countries to join the International Whaling Commission has brought the balance between conservation and pro-whaling nations close to even.

In addition to the Federal Court case, Humane Society International is also asking the Australian government to commence its own proceedings against the Japanese Government at the International Court of Justice, on the grounds that Japan is abusing the loophole in the international whaling convention for lethal research to get around the ban on commercial whaling.

HSI’s Wildlife and Habitat Program Manager Nicola Beynon said, “If HSI is ultimately unable to bring the Japanese whalers to account in the Australian Federal Court, we hope the Australian government will be prepared to bring them to account in the international courts."