Flying foxes outfox lychee farmer
The Federal Court’s recent decision in relation to a farmer who used electric grids to prevent flying foxes from destroying a lychee orchard has important environmental protection implications for developers, farmers and other businesses. In the flying foxes case (Booth v Bosworth), the Court granted the first permanent prohibitory injunction under the Commonwealth’s Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The decision is important for anyone considering the implications of the EPBC Act for a project, and is particularly relevant in Queensland, which boasts a high number of world heritage sites (for example, The Great Barrier Reef, Wet Tropics, Fraser Island) and other sites of national importance (such as the Moreton Bay Ramsar wetlands).
The facts
The case began last year, when Queensland Conservation Council research assistant Dr Carol Booth brought an action against the Bosworths, seeking an interim injunction restraining the use of electric grids to prevent their lychee orchard being devastated by flying foxes. The farm is situated near the Wet Tropics World Heritage Area in north Queensland. The Federal Court declined to grant the interim injunction for the 2001 season on discretionary grounds, as the season was almost over and the Bosworths would suffer financial loss that could not be recovered should they succeed on the final hearing. This decision is the outcome of Dr Booth’s application for a permanent injunction.
The result
The Court granted a prohibitory injunction to prevent the Bosworths using electric grids to kill spectacled flying foxes. The Court found that the spectacled flying fox contributes to the genetic diversity and biological diversity of the wet tropics world heritage area and also constitutes part of the biological diversity for that wet tropics area. The Court accepted evidence that the total Australian population of spectacled flying foxes at November 2000 was 100,000 (of which the total population of adult females was 50,000) and that 18,000 were killed by the grids on this farm during the 2000-2001 lychee season. If allowed to continue, this would halve the population of spectacled flying foxes in less than five years, causing the species to become endangered. Based on these figures, the Court found that the continued operation of the grid would have a significant impact on the population of spectacled flying foxes and on the world heritage values of the Wet Tropics Area.
Implications
The decision reinforces the broad application of the EPBC Act and highlights a number of issues for project proponents:
- Environmentalists such as Dr Booth, can, and no doubt will, use the new standing rules to bring actions under the EPBC Act.
- The lack of scientific evidence presented on behalf of the Bosworths led the court to accept evidence given on behalf of Dr Booth more readily (this highlights the need for supporting information to put the impacts of an action into proper perspective and to present the data in the most favourable context).
- An action does not need to take place in an area of national environmental significance (for example, a World Heritage Area) for it to have a significant impact under the EPBC Act.
- The effect of an action on a single species may be enough to be considered a significant impact.
- The application of the decision is not limited to world heritage areas but applies equally to other matters of national environmental significance, for example, wetlands recognised under the 1971 Ramsar Convention, threatened species or communities, and listed migratory species.
- In considering the relevant world heritage values and whether or not there was a significant impact, the court closely considered relevant International Treaties (technical studies prepared for projects will therefore need to take any relevant treaties into account).
What should project proponents do? Clearly, proponents need to:
- Review the application of the EPBC Act early in the project development phase—an early determination by the Federal Minister for the Environment will set the ground rules to enable the project to proceed down a known path, rather than running the real risks of delays and extra costs or even, as in this case, being derailed later by injunctive proceedings;
- Plan to obtain technical studies and supporting data at an early stage of the project and be sure they are rigorous and place the project in its proper context—without this information, it is impossible to make a reliable decision about whether or not an approval is needed. In addition a lack of appropriate evidence will cause difficulties if third party action is taken (as occurred in this case); and
- Remember that in giving a decision on an application, the Minister must consider economic and social issues (as well as environmental factors), but these issues are not considered in injunctive proceedings (which suggests it’s preferable to argue about an approval than to defend an injunction when damage has happened).
By way of footnote, the Queensland EPA has, in conjunction with orchardists in the area, initiated a trial using electric grids but with a lesser, non-fatal charge. Hopefully, a win-win outcome will emerge.
