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Carol Jeanette Booth v. Rohan Brien Bosworth and Frances Brien Bosworth

Country/Territory
Australia
Type of court
National - higher court
Date
Oct 17, 2001
Source
UNEP, InforMEA
Court name
Federal Court of Australia
Judge
Branson
Reference number
Q 163 of 2000
Language
English
Subject
Wild species & ecosystems
Keyword
Protected animal species International agreement-implementation Biodiversity Protected area
Abstract
In this proceeding Dr Booth applied to the Court for an injunction restraining the respondents from, in effect, killing Spectacled Flying Foxes on or near their lychee orchard at Dallachy Creek, Kennedy in the State of Queensland. The respondents had a large lychee orchard which was approximately sixty hectares in area. A series of fourteen aerial electric fences erected in a grid pattern has been constructed within their lychee orchard. The admitted purpose for which the Grid was operated was to electrocute flying foxes that approached, flew between or departed from the respondents’ lychee orchard. The respondents’ lychee orchard was in close proximity to the Wet Tropics World Heritage Area which was a listed property under the international Convention for the Protection of World Cultural and National Heritage. The Environmental Protection and Biodiversity Conservation Act 1999 had been enacted by the Australian Parliament for the purpose, amongst other purposes, of implementing Australia’s international obligations under the World Heritage Convention. The power of the Court to grant an injunction of the kind sought by the applicant depended on the Court being satisfied, on the balance of probabilities, that the operation of the Grid had, or would be likely to have, a significant impact on the world heritage values of the Wet Tropics World Heritage Area. The applicant visited the respondents’ lychee orchard on four nights during the 2000-2001 lychee season. On each night she counted the number of dead Spectacled Flying Foxes under the Grid. The average number counted by her was 377 per night. Assisted by expert evidence, and taking into account the failure of the respondents to give evidence, the Court concluded, on the balance of probabilities, that the number of female Spectacled Flying Foxes killed by the operation of the Grid during the 2000-2001 lychee season fell within the range of 9,900-10,800. The probable impact of the operation of the Grid, if allowed to continue on an annual basis during future lychee seasons, would be to halve the Australian population of Spectacled Flying Foxes in less than five years. Such an impact would be sufficient to render the species endangered within that time frame. The Court was satisfied that the Spectacled Flying Fox contributed to the heritage values of the Wet Tropics World Heritage Area in two ways. First, as part of the record of the mixing of the faunas of the Australian and Asian continental plates following their connection. Secondly, as a species which contributed to the character of the Wet Tropics World Heritage Area as "one of the most significant regional ecosystems in the world" and as an important and significant natural habitat for in-situ conservation. In the circumstances, the Court was satisfied that the action of the respondents in operating the Grid was an action that was likely to have a significant impact on the world heritage values of the Wet Tropics World Heritage Area. The Court therefore concluded that it had discretion to grant the injunction sought by the applicant. However, the Court accepted that it was probably not economically feasible for the respondents immediately to protect their entire orchard with netting. Evidence which supported the grant of the injunction was evidence of the national and international interest in the protection of the world heritage values. However, as the action of the respondents in operating the Grid constituted a contravention of the Act only while there was no approval of the taking of the action under the Act, the injunction would be a conditional one. The person authorised by the Act to grant such an approval was the Minister for the Environment.
Full text
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References

Cites

Convention on Biological Diversity

Treaty | Multilateral | Rio de Janeiro |

Keyword: Sustainable use, Subsidy/incentive, Policy/planning, Ecosystem preservation, Access and benefit sharing, Traditional rights/customary rights, Protected area, Management/conservation, Financing, Institution, Liability/compensation, Protection of habitats, Alien species, Biodiversity, EIA, Research, Monitoring, Genetic resources, Dispute settlement, Ex-situ conservation, Data collection/reporting, Technology transfer, Biotechnology, Education, Crops/grasses

Source: IUCN (ID: TRE-001148)