Special Bulletin: Environmental Defenders Office (Qld) Inc.

Environmental Defenders Office involved in first case under the new Commonwealth Environmental Legislation. 15th December 2000. Carol Jeanette Booth v. Rohan Brien Bosworth Federal Court of Australia, Brisbane, Spender J.

Summary

Dr Carol Booth, a North Queensland conservationist, has commenced the first court action relying on the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Dr Booth has sought an injunction to restrain a fruit farmer from killing large numbers of spectacled flying foxes, believed to roost in the adjacent Wet Tropics World Heritage Area. Dr Booth sought an interim order from the Federal Court in Brisbane to halt the killings, pending a final hearing. The matter was heard on Wednesday 13 December by Spender J. Whilst the judge decided against granting an interim injunction, details of his judgment appear to point towards great potential for environmental protection being achieved under the EPBC Act. In particular, the judge recognised that Dr Booth had standing to bring the action and that no undertaking as to damages was required in seeking an interim injunction. EDO(Qld), a public interest community legal centre, specialising in environmental and planning law, acted as Dr Booth's solicitors, barristers Stephen Keim and Chris McGrath appearing in the Federal Court on Dr Booth's behalf. The application for a permanent injunction has been set down for
further directions in February 2001.

Background

The respondent in this case, Mr Bosworth, operates a fruit farm north of Cardwell in far north Queensland. He has used elevated electric grids since 1986 to kill flying foxes whose feeding causes damage to his lychee crop. The overhead electric fences now stretch to 6.4 kilometres in total length on the farm. Mr Bosworth says that the fences are operated only during the harvesting season which takes place from November to shortly before Christmas in each year. The Bosworth farm is one of the largest in the Cardwell area.

The extent of flying fox deaths on the property came to the attention of the North Queensland Conservation Council (NQCC) in November and led Dr Booth to inspect the property where she recorded over 300 spectacled flying foxes (Pteropus conspicillatus) being killed each night. Spectacled flying foxes are endemic to the Wet Tropics World Heritage Area, providing an important component of ecological and evolutionary processes within it, particularly due to the species' role in seed dispersal. Recent surveys have indicated that the total population of spectacled flying foxes has declined from 114 000 in 1998 to 74 000 in 1999 and 2000. The killing of over 300 spectacled flying foxes a night represents around 3% of the total population being killed each week. Following Dr Booth's inspection of the site, NQCC informed the regional office of the Queensland Parks & Wildlife Service (QPWS) of the issue. However, the QPWS responded by issuing a retrospective permit under s.112 of the Nature Conservation Regulations 1994 (Qld) to take 500 spectacled flying foxes for the 1999-2000 season. Subsequent information that the permit was being grossly exceeded were ignored.

The legal proceedings

Because the QPWS failed to take action, Dr Booth made an application to the Federal Court under s.475 of the EPBC Act which provides that the Minister or interested persons may apply to the Federal Court for an injunction to restrain an offence or other contravention of the EPBC Act. In view of the ongoing deaths, Dr Booth sought an interim injunction to stop Mr Bosworth from continuing to kill spectacled flying foxes on his property, pending determination of the final application.

The basis of the application was that the flying foxes:
 · are resident in the Wet Tropics World Heritage Area which is adjacent to the Bosworth farm;
 · contribute to the biodiversity, ecological function and ongoing evolutionary processes of the Wet Tropics; and
 · their destruction is likely to have a significant impact on the world heritage values of the Wet Tropics.

Findings on application for interim injunction

Standing and existing use The judge was satisfied that Dr Booth had standing to bring the application.
He said it was apparent that she was concerned about the wellbeing of the flying fox population and the environment in the world heritage area. He noted her current employment in the environmental field and the voluntary work she had performed. He also rejected the argument by Mr Bosworth that the EPBC Act did not apply because the system of electric grids had been in use since 1986 and predated the EPBC Act. In his view, this was not a continuing lawful use because Mr Bosworth was required to obtain a permit under the Nature Conservation Regulations prior to the killings recommencing this year.

Central issue
The central issue in the case is whether Mr Bosworth's activities are likely to have a significant impact on the world heritage values of the Wet Tropics area. However, for the purposes of the interim injunction, the question was whether the risk to the environment was such that the public interest required a halt
to using the electric grids where Mr Bosworth would suffer economic loss as a result. The judge recognised that it was a matter of great public interest that the world heritage values and biodiversity of the area be protected. However, he declined to make the interim injunction because of:
 · the disagreement between the experts who made statements on the impacts of the killings on the world heritage area;
 · the small number of evenings left until the completion of the harvest; and
 · the loss Mr Bosworth might suffer, which he would be unable to recover, even if he won at trial.

The judge noted that this decision should not be seen as pre-judging what would happen at the final hearing. He made it clear that he was not satisfied there would be a significant impact on world heritage values from the killing of the flying foxes over the short remaining time of the harvest. However, he emphasised that this was a different issue to whether use of the electric grids over a full harvesting season or a longer time contravened the EPBC Act, which would need to be considered at the full hearing.

Costs and directions
The judge ordered that Dr Booth should only pay Mr Bosworth's costs relating to the interim hearing if he were to win at trial. His Honour listed the application for further directions on 9 February 2001.

Further information relating to the case can be obtained from Elisa Nichols or Rob Stevenson at EDO (Qld) or from Chris McGrath, Barrister at Law on ph:07 3229 9097. Copies of the decision may be obtained from the EDO (Qld) when it is available, or from the Federal Court website at
http:www.fedcourt.gov.au/judgments/judgmts.html.