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Leatch v. National Parks and Wildlife Service and Shoalhaven City Council

Pays/Territoire
Australie
Type de cour
Autres
Date
Nov 23, 1993
Source
UNEP, InforMEA
Nom du tribunal
Land and Environment Court of New South Wales
Juge
Stein
Numéro de référence
81 LGERA 270
Langue
Anglais
Sujet
Espèces sauvages et écosystèmes
Mot clé
EIA Espèces animales protégées Principe de précaution
Résumé
This Appeal sought to challenge a license issued by the Director General of the National Wildlife Service to the Shoalhaven City Council to take or kill protected fauna in the course of carrying out a road development project. Under the National Parks and Wildlife Act l974 the Director General is empowered to issue licenses ’to take or kill’ endangered fauna. A license issued to Shoalhaven City Council was challenged by an objector submitting that the fauna impact statement was invalid or legally inadequate, because it was failing to comply with the requirements for a fauna impact statement as set out in Section 92(d) of the Act. In the course of the judgment Stein J. observed that: 1. A license to take or kill endangered fauna should not in most circumstances be "general" in its coverage of endangered species but should specify the species which it permits to be taken. 2. The period of a license to take or kill endangered fauna should be confined, so far as reasonable, because of possible changes in the physical environment and state of scientific knowledge. 3. The provisions allowing the Director General to seek further information from an applicant is clearly to assist the decision maker in his task to inform the public and enable its participation and to supplement the fauna impact statement. Like an Environment Impact Statement, a fauna impact statement is not the decision; rather it is a tool to aid the decision maker. 4. The Court also observed that when there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat. It was noted that this principle is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision-makers should be cautious. Application of the precautionary principle appears to be most apt in a situation of a scarcity of scientific knowledge of species population, habitat and impacts. Indeed, one permissible approach is to conclude that the state of knowledge is such that one should not grant a license to "take or kill" the species until much more is known.
Texte intégral
Jud.Dec.Nat.pre.pdf
Disponible en
UNEP/UNDP/Dutch Government Joint Project on Environmental Law in Africa, Compendium of Judicial Decisions on Matters related to Environment, National Decisions, Volume I, Page 373

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