COMPENDIUM OF SUMMARIES OF JUDICIAL DECISIONS IN ENVIRONMENT RELATED CASES

AUSTRALIA

Australia - Wildlife Protection

LEATCH v. NATIONAL PARKS AND WILDLIFE SERVICE AND SHOALHAVEN CITY COUNCIL

LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 81 LGERA 270 (1993) STEIN, J.

Introduction

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.

Legal Framework

Under the National Parks and Wildlife Act l974 the Director General is empowered to issue licences 'to take or kill' endangered fauna. A license so issued to Shoalhaven City Council was challenged by an objector submitting that the fauna impact statement is invalid or legally inadequate, as failing to comply with the requirements for a fauna impact statement as set out in Section 92(d) of the Act.

Held

In the course of the judgement 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 minimise 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.