Top 5 landmark environmental legal cases in Australia

By Angela Heathcote 16 August 2018
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Australia’s environmental battles weren’t always fought among the trees or down the river. A lot of cases went all the way to the High Court of Australia.

ENVIRONMENTAL ACTIVISM has achieved extensive, long-lasting protections of the country’s unique biodiversity. But the battle is never easy. And sometimes, they wind up being fought in the country’s court system.

According to environmental lawyer Elaine Johnson, environmental issues have always been a matter disputed in court, however she says that in the ‘70s there was a greater push from the Australian public to get legislation into parliament that regulated environmental decisions.

The introduction of the Environment Protection and Biodiversity Conservation Act 1999 and the various state laws that came just before it have gone a long way in achieving positive outcomes for the environment, making it easier to bring these type of cases before the courts.

However, a new generation of environmental lawyers is calling for an overhaul of the current laws to better reflect the huge changes to the Australian environment we’re experiencing in the 21st century, particularly the impacts of climate change.

Here, we reflect on the most significant landmark environmental legal cases in Australian history.

1. The Franklin Dam case, Tasmania

By the time the fight for the Franklin River began, environmental activists were disempowered. Back in the early 1970s, Tasmanians had, unsuccessfully, put all their efforts into preventing the damming of the Serpentine and Huon rivers, flooding Lake Pedder. Yet activists continued the fight for seven years, culminating in a blockade at Warner’s Landing, where 1300 people were arrested.

The turning point to save the Franklin came when UNESCO declared the Franklin area a World Heritage site and when the newly elected Labor Government enacted the World Heritage Properties Conservation Act 1983, which stopped the dam from being built. However, the Tasmanian State Government challenged the Federal Government’s intervention, leading to  the landmark legal case, Commonwealth vs Tasmania.

The High Court endorsed the Federal Government’s position four-to-three. “The encouragement of people to think internationally, to regard the culture of their own country as part of world culture, to conceive a physical, spiritual and intellectual heritage, is important in the endeavour to avoid the destruction of humanity,” Justice Lionel Murphy said of the historic decision.

According to lifetime conservationist Bob Brown, the ruling was important because it demonstrated that environmental campaigns could be won. But also because it paved the way to the conservation of other places, including Denison River valley, the Walls of Jerusalem and the eastern half of Macquarie Harbour, making the Tasmanian Wilderness one of the most protected temperate areas in the world.

2. The flying fox case, Queensland

In 1999, the first federal environment laws were introduced under the Environment Protection and Biodiversity Conservation Act (EPBC Act). Booth v Bosworth, better known as the ‘flying fox case’, was the very first case to apply the new laws. Dr Carol Booth brought forward the case against a landowner who had been killing spectacled flying foxes on a property in North Queensland.

It was common for farmers in Queensland to erect what was nicknamed “fry foxes”, which were huge pole structures that – ideally for the farmers – would electrocute the flying foxes before they could get to any lychee or mango crops. Because the spectacled flying fox (Pteropus conspicillatus) was endemic to the Wet Tropics World Heritage Area, and thus included within the scope of the new EPBC Act, the farmer was given an injunction. The farmer than applied to the environment minister for approval to kill the flying foxes, but the application was denied.

According to Environmental Law Australia, the case “showed that the Act provided an important safety-net protecting biodiversity in Australia beyond the protection provided by State laws.”

3. Japanese whaling case, Antarctica

In 2004, for the first time in history, the EPBC Act was used against a Japanese company Kyodo Senpaku Kaisha Ltd for whaling in Australia’s exclusive economic zone (EEZ) around its Antarctic territory. The case, brought forward by the Humane Society International (HSI), argued that the whaling being conducted in the Southern Ocean had no scientific basis, and was harming populations of minke, fin and humpback whales.

The Australian Whale Sanctuary, which covers the whole of the EEZ, was first established in 1999 under the EPBC Act and has remained a point of contention between Japan and Australia, resulting in the landmark case Humane Society International Inc v Kyodo Senpaku Kaisha Ltd. According to the Environment Defenders Office NSW, which represented HSI, the case was an example of the “complex interplay between international law and Australian domestic law applying to Antarctica and whaling”.

Initially, the case was dismissed by Australia’s Attorney General Phillip Ruddock  because he suspected it could cause a diplomatic incident. However, the HSI appealed this successfully and the case went forward in 2008. In favour of HSI, the court ruled that the company was in contravention of sections of the EPBC Act, and should stop immediately. However, the company chose to ignore the court ruling and continued whaling in the sanctuary. Enforcement of the ruling has been an issue. As recently as November 2017, an investigation by Sea Shepherd revealed that “scientific” whaling was still taking place in the area.

4. Nathan Dam case, Queensland

After climate change, sediment runoff from agricultural activities in Queensland is a major threat to the Great Barrier Reef. According to the Australian Institute of Marine Science, “increased runoff of sediment, nutrients and contaminants from the land has lowered coastal water quality and marine ecosystems”. However, before 2003, indirect impacts weren’t included in environmental assessment impacts that are required under the EPBC Act.

Widening the scope of environmental impact assessments was the motivation behind the landmark case Minister for the Environment and Heritage v Queensland Conservation Council Inc, which argued that the proposed Nathan Dam in central Queensland would cause runoff to the Great Barrier Reef, amounting to significant damages over time. According to the EDO QLD that represented the Queensland Conservation Council, “for conservationists, the exclusion of these serious indirect impacts indicated either that the assessment process under the EPBC Act was far too narrow in its scope or that the Minister had erred in his interpretation of his legal duties.”

The court found the environmental impact assessment process should be widened. After a failed appeal, the Environment Minister had no choice but to include the impacts of the dam to the Great Barrier Reef, which resulted in Sudaw Developments Limited withdrawing their application.

5. Hazelwood power station case, Victoria

Australian Conservation Foundation v Minister for Planning (2004) is regarded as one of the first climate change litigation cases in Australia.The highly controversial Hazelwood power station, closed in March 2017, was said to have produced “5 per cent of the nation’s power and 3 per cent of its carbon dioxide emissions”. Because of this, the Victorian Civil and Administrative Tribunal ruled that any expansions made to the power station had to consider the indirect impacts of increased greenhouse gas emissions.

The Hazelwood power station case is described by Environmental Law Australia as a “hollow victory”, because the Victorian Government approved expansions anyway. Its significance is likely attributed to the fact that it was the first time climate change evidence was used in court. However, environmental lawyers say that cases like this will become more common over the next two years.