There is no doubt that the new millennium has brought with it a heightened sensitivity towards environmental issues and an increase in the use of the legal system to address environmental concerns.
Two recent Australian decisions illustrate the growing trend of environmental activism in Australian courts, which is likely to have a significant impact on shipping activities and all transport in the future.
Blue Wedges Inc v Minister for the Environment, Heritage & the Arts  FCA 8
On 15 February 2002, the predecessor of the Port of Melbourne Corporation referred a proposal to the Federal Minister to deepen shipping channels at Port Phillip Heads, in Port Phillip Bay and the Yarra River in a bid to permit entry of larger container vessels to Melbourne. The proposal was made under section 68 of the Environment Protection and Biodiversity Conservation Act 1999(EPBC Act).
The EPBC Act's stated objectives include the protection of the environment particularly for matters of national environmental significance, conservation of bio diversity and heritage and promotion of ecologically sustainable development.
The approval process under the EPBC Act is quite complicated. The process adopted is to first 'refer' to the Federal Minister an 'action' which may have an environmental impact on areas of Federal responsibility. The Minister then decides whether the action needs Federal approval because of its potential impact on those areas, that is, whether it is a 'controlled action' for the purposes of section 75 and 523 of the EPBC Act.
The proposal is then subjected to a number of independent inquiries where the environmental and economic merits of the proposal are assessed.
On 2 November 2007, the relevant Victorian Minister provided his assessment on the environmental effects of the Port Phillip Bay and Yarra River project to the Federal Minister. On 20 December 2007, the newly appointed Federal Minister, the Honourable Peter Garrett MP approved the decision and effectively gave the green light for dredging to commence, subject to strict environmental controls monitored by an environmental management plan.
In the Federal Court of Australia, the applicant, Blue Wedges Inc,challenged the legal validity of the Federal Minister's decision.Blue Wedges submitted that the project, which was the subject of assessment in 2007, had substantially changed since it was first referred to the Government in 2002, and was now of 'greater scale nature and included different actions'. Blue Wedges argued that the Federal Minister had no lawful basis for approving the project because it had not been the subject of a 'referral' for the purposes of section 75, 87 and 133 of the EPBC Act.
In the alternative, Blue Wedges submitted that even if the project, approved in 2007, was not found to be 'relevantly different' from what was described in the 2002 referral, the assessment undertaken did not adequately assess the relevant impact of the project and/or provide enough information to enable the Federal Minister to make an informed decision.
The second and third respondents, the Port of Melbourne Corporation and the State of Victoria, argued that the 2007 project was not relevantly different from the project described in the 2002 referral. Rather, they were both the same 'action' within the scope and meaning of section 75 of the EPBC Act
In his judgment, Heerey J accepted that there were 'differences' between the 2002 referral and the final project approved in 2007. His Honour concluded that 'in a project of this magnitude, it would be surprising if there were not'.
Much of Heerey J's judgment concerned application of the EPBC Act and whether the project approved by the Minister in 2007 related to the same 'action' that was described in the 2002 proposal. His Honour noted, it was not to the point whether the differences in the project were described as 'significant' or 'substantial', rather, whether or not the 'action' described in the referral was the same. The 'action' was described in the referral in these terms:
To deepen shipping channels at Port Phillip Heads, in Port Phillip Bay and the Yarra River and its approaching channels.
In dismissing Blue Wedges application, his Honour held:
The project is to take place at Port Phillip Heads, in Port Phillip Bay and the Yarra River and its approaching channels, and nowhere else. It is the same 'action'. The Approval Decision is lawful. The law does not require the process to be started all over again.
Blue Wedges Inc has now made a further application to the Federal Court on the basis that the Federal Minister's reasons for his decision to approve the project are insufficient. This application is set to be heard by Justice North in mid February and seems likely to delay the start of dredging operations as the dredging contractor is currently preparing to perform its contract.
Japanese Whaling Case
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd  FCA 3
Since the end of Australia's whaling industry in 1978, the Australian government has long campaigned to protect many whale species, both at a domestic and international level.
The scope and application of the EPBC Act is quite broad. It applies throughout Australia, including its external territories (section 5(1)), and to adjacent waters claimed as Australia's Exclusive Economic Zone. It applies to all persons and vessels within territorial Australia and the exclusive economic zone, which includes persons who are not Australian citizens and vessels that are not registered Australian vessels (section 5(4)).
The Australian Whale Sanctuary
In order to ensure the stated objectives (section 3) of the EPBC Act are performed and achieved, the EPBC Act has established the Australian Whale Sanctuary (AWS). Section 3(2)(e)(ii) of the EPBC Act provides that the AWS was set up to 'to ensure the conservation of whales and other cetaceans'.
The AWS is established by section 225 of the EPBC Act:
... to give formal recognition of the high level of protection and management afforded to cetaceans in the Commonwealth marine areas and prescribed waters.
Sections 229 to 230 make it illegal to 'kill, injure, intentionally or otherwise deal with a cetacean in the AWS'.
Australia's declared Exclusive Economic Zone extends to the waters adjacent to the base of Australia's external territories, including the Australian Antarctic Territory. Section 225 of the EPBC Act declares that the waters within 200 nautical miles from the Australian Antarctic Territory land mass is within the Australian Whale Sanctuary.
However, Australia's claim to sovereignty over the Australian Antarctic territory is a very sensitive issue. Australia's claim to the territory is only recognised by four nations, those being France, Norway, the United Kingdom and New Zealand. Relevantly, Japan has rejected Australia's declaration of jurisdiction over the territory, which is considered by Japan as being within international waters.
The 2008 Federal Court of Australia judgment in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd  FCA 3, is the latest in a long line of decisions aimed at restricting activities of Japanese whalers.
On 19 October 2004, the applicant, Humane Society International Inc (HSI), filed an application in the Federal Court seeking leave from the court to serve the respondent, Kyodo Senpaku Kaisha Ltd, in Japan (outside the Australian jurisdiction).
On 27 May 2005, Allsop J dismissed the application for leave following submissions received by the Commonwealth Attorney-General that the subject matter of the proceedings was best dealt with by the Government. The applicant then appealed to the Full Court of the Federal Court who allowed the appeal and granted leave to issue the proceedings in Japan.
Following the Full Court's judgment, HSI attempted, although unsuccessfully, to serve the respondent in Japan through diplomatic channels. The Japanese Ministry of Foreign Affairs refused the service and stated that 'the issue relates to waters and a matter over which Japan does not recognise Australia's jurisdiction'.
Consequently, the applicant then filed a motion in January 2007 seeking substituted service, which allowed the applicant to serve the respondent with the documents in Japan.
Following this, the matter was called for hearing on 18 September 2007.
The 2008 Judgment
HSI made an application under section 475 of the EPBC Act for injunctive relief in relation to the respondent's suspected whaling activities in the Australian Whale Sanctuary in contravention of sections 229-230 of the EPBC Act.
The applicant argued that 'the respondent had intentionally engaged in a series of activities that have resulted in the Antarctic minke and fin whales being killed, taken and interfered with in the Australian Whale Sanctuary'.
In declaring that the respondent had 'killed, injured, taken and interfered with Antarctic minke whales in the Australian Whale Sanctuary in contravention of sections 229, 229A, 229B, 229C of the EPBC Act', Justice Allsop relied on reports submitted by the respondent to the International Whaling Commission from 2005/2006. The reports indicated that a compound crossbow was used to take 'biopsy samples' from humpback whales and other whale species. His Honour held:
I am satisfied that this non-lethal method of sampling amounted to injuring, interfering with and treating a cetacean within the definition of the EPBC Act.
Allsop J ordered that the respondent was to be restrained from 'killing, injuring, taking or interfering with any Antarctic minke whale or any other whale species in the Australian Whale Sanctuary', unless permitted to do so under the EPBC Act.
While the decisions themselves are of limited application, the implications these decisions have on the transport industry are significant. While Blue Wedges has not been successful to date in its challenge to prevent the channel deepening at Port Phillip Heads, they have aroused much public support for the protection of the marine environment in the process, and have already delayed the start of the dredging operations. That will impact upon shipping operations and is proving to be a significant 'thorn in the side' for the Port of Melbourne Corporation and its plans for port development. The decisions demonstrate the effectiveness of using the legal system to generate awareness towards environmentally sensitive projects. Furthermore, the dredging of Port Phillip Bay shipping channels has promised to generate numerous economic benefits for Melbourne and Australia's shipping industry, an estimated $2 billion in revenue is predicted over the next 30 years. It will be interesting to see if the project is stymied.
Similarly, the Japanese whaling litigation confirms the progression and development of environmental law in Australia under the auspices of the EPBC Act. While it remains to be seen whether Allsop J's injunction to prevent the killing of whales in the AWS will be enforced, the decision's symbolic impact is huge. Again, use of the courts has brought this environmental issue into the consciousness of the Australian and global public.
These cases serve as a warning to the Australian transport industry and all its stakeholders that the environmental lobby cannot be taken for granted. As environmental issues continue to dominate life in the 21st century, the transport industry must either choose to 'shape up' and continue to improve its environmental practices, or they will be forced to 'ship out'.
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