Humane Society International has appealed a judicial ruling that prohibits HSI from proceeding with a lawsuit against a Japanese company that allegedly killed, in violation of law, more than 400 minke whales in an Australian sanctuary.

In October 2004, HSI filed documents in the Federal Court of Australia to seek leave from the government to sue Kyodo Senpaku Kaisha, Ltd., the Japanese whaling company that allegedly hunted and killed whales in the Australian Whale Sanctuary (AWS). The sanctuary was created in 2000 under Australia's Environment Protection and Biodiversity Conservation Act, and includes waters within the country's 200-nautical-mile exclusive economic zone adjacent to Antarctica.

But on Friday, May 27, Justice James Allsop of the Federal Court of Australia denied HSI permission, citing concerns raised by Australian Federal Attorney-General Phillip Ruddock who said that enforcing Australian law against the Japanese company would likely give rise to an international disagreement with the island nation.

Despite an international ban on commercial whaling that went into effect in 1986, Japan continues to kill whales under a "scientific" loophole in the International Whaling Commission (IWC) treaty. The Japanese Whale Research Program in Antarctica (JARPA) employs Kyodo, which sends five whaling ships to the Antarctic coast each year to kill 440 minke whales with explosive harpoons and rifles. The company subsequently sells whale meat for human consumption in Japan.

Doing Themselves In

Justice Allsop made his ruling despite finding that HSI's evidence did indeed support its findings that Kyodo hunted in the AWS. HSI's allegations are based on JARPA's own reports to the IWC's Scientific Committee, which requires that nations conducting scientific whaling annually report the number and location of whales killed.

"The Scientific Committee report and the annexes clearly indicate that, since 2000, Kyodo has illegally killed over 400 whales within the Australian Whale Sanctuary—nearly a quarter of the total number of whales killed there in the last four years," explains Nicola Beynon, wildlife and habitats program manager for HSI Australia.

Court documents submitted by Senior Counsel Stephen Gageler and Barrister Chris McGrath of the nonprofit Environmental Defenders Office include diagrams that show JARPA's own reports reflect that hundreds of whales were hunted and killed within the Australian Whale Sanctuary.

Those claims have been corroborated by Greenpeace observers, whose logs note the longitude and latitude of the minke whale killings by Japanese boats in the Antarctic in 2001-2002. In December 2001 Greenpeace expedition leader Kieran Mulvany observed one of Kyodo's whaling ships, the Yushin Maru, pursuing and killing a minke whale at Latitude 63º 0'6" South, Longitude 051º 32'7" East, a location 40 nautical miles within the AWS.

"Whale meat from these so-called 'scientific' expeditions ends up in restaurants and on the shelves of grocery stores in Japan," notes Naomi Rose, marine mammal scientist for HSI. "It adds insult to injury that these mammals were killed well within the borders of a sanctuary designed to protect them."

The Decision and the Damage Done

Australian law permits third parties such as HSI to act to restrain illegal activity in the absence of government action. Had the Federal Court of Australia allowed the case to continue, HSI had planned to request an interlocutory injunction to halt Japanese whaling in the AWS, to be enforced by the Australian government.

A month after HSI filed its documents in October 2004 to seek leave from the government, Justice Allsop said he would reserve his final decision until Australia's attorney general could submit the government's opinion on the case. In late January, Attorney General Ruddock told the Federal Court of Australia that the government would prefer not to pursue legal action, favoring diplomacy instead. But he did not dispute HSI's legal right to take court action. Justice Allsop's May 27 decision sided with Ruddock's opinion, but HSI will appeal in hopes that a different judge will see the urgency of the situation.

"Today's judgment is especially devastating now that the Japanese government has revealed it will allow the company to double the number of minke whales it kills in Antarctica and to start hunting humpback and fin whales. Australians have been in an uproar over this and will share HSI's frustration with today's decision," said HSI Australia Director Michael Kennedy.

"We're disappointed that they are recommending diplomatic pressure rather than court action, because Japan has never responded to diplomatic pressure on this issue in the past," says Beynon.

For a full text of HSI's appeal and more details on the case, see our Australian office's web site.

Meanwhile, Kyodo's whaling ships are already in the Antarctic for this year's hunt. Kyodo's annual hunt on minke whales in the Antarctic is reportedly the nation's largest slaughter of whales. Japan kills approximately 700 whales a year in the name of research.