Flying-fox case 1 stopped large-scale electrocution of flying-foxes, was the first to use third party rights under the Environment Protection and Biodiversity Conservation Act 1999 and clarified important concepts in the Act.
Hundreds of spectacled flying-foxes hung limply from electrical wires rising 5 metres above a crop of ripening lychees. More bodies littered the ground.This horrifying carnage greeted conservationist Dr Carol Booth as she tramped around one of Australia’s largest lychee orchards one early morning in November 2000. The lychee growers had no permit to kill flying-foxes, but neither the Queensland nor Federal Governments was willing to stop them. So, represented by EDO Qld, Carol turned to the courts in the very first case under new federal environment laws (the Environment Protection and Biodiversity Conservation Act 1999) and succeeded in gaining an injunction to stop further electrocution.
Australia’s Federal Court found that operation of the electric grid was likely to result in the spectacled flying-fox becoming endangered within five years and thereby have a significant impact on the values of the Wet Tropics World Heritage Area.
The Booth v Bosworth case established powerful precedents. It demonstrated the power of third party standing (the capacity for community groups and citizens to enforce laws) to drive environmental reform. It brought to an end the large-scale electrocution of flying-foxes in Queensland, and showed that federal laws could be used to protect the values of World Heritage Areas by regulating actions outside their boundaries.
In November 2000 an anonymous informant told the North Queensland Conservation Council (NQCC) that thousands of spectacled flying-foxes were being electrocuted on a lychee orchard near Cardwell in north Queensland. With long experience of government failure to investigate environmental crimes, NQCC sent Carol Booth and a colleague to investigate.
The 60 hectare lychee property had a large grid system –14 aerial fences with 20 horizontal electrified wires, extending from 4 to 9 metre above the ground and 6.4 km long. Flying-foxes attracted to the ripening lychees were electrocuted when they collided with the grid. Based on counts on four nights over a two week period, Carol estimated the nightly toll to be 300-500 spectacled flying foxes. NQCC ascertained that the grower had no permit to kill flying-foxes.
When the Queensland Government failed to stop the killing – instead issuing the lychee grower with a permit to kill 500 flying-foxes – Carol and NQCC approached EDO Qld and barrister Chris McGrath about legal options. Queensland’s Nature Conservation Act did not provide any enforcement options for third parties (but now does, as a result of EDO advocacy) but the new federal EPBC Act did. Because spectacled flying-foxes were not listed as threatened then (they are now), and therefore not directly protected under the Act, the Act could only be used if it could be proven that large-scale electrocution would detrimentally affect the values of the Wet Tropics World Heritage Area adjacent to the lychee farm.
Because no environment group could risk the potential of a large costs bill if the case was lost, Carol took on the case as an individual with the pro bono assistance of lawyers and expert witnesses.
Interim injunction application – 13 December 2000
With about two more weeks of the lychee season to go, Justice Spender of the Federal Court heard Carol’s application for an interim injunction. Because of the short time remaining in the season and the potential financial loss that could not be recovered should the farmers win the case, the application was refused.
Main hearing – 18-20 July 2001
Looking much like bats themselves in their long black gowns, barristers Dr Ted Christie and Chris McGrath presented the case to Justice Branson of the Federal Court. The bat team of expert witnesses presented evidence that spectacled flying-foxes contributed to the values of the Wet Tropics World Heritage Area, that numbers of spectacled flying-foxes had substantially declined with the counted population less than 100 000, that the large numbers killed on the Bosworth orchard would cause substantial population decline, which would reduce pollination and seed dispersal and undermine the values of the World Heritage Area, and that the grower could net his lychee crop to protect it from flying-foxes.
“Viewed with hindsight, it seems that the respondents and their legal advisors based their litigation strategy on the assumption that the applicant (who had few financial resources to devote to the litigation) would fail to gather the necessary evidentiary basis and legal support to succeed in the trial. This assumption mistook the importance that the applicant, her lawyers and the experts who agreed to give evidence attached to the case and the time and effort that these people would devote to succeeding in the trial. A major tactical windfall was also gained by the applicant when, in the weeks leading up to trial, her solicitor, Ms Elisa Nichols, discovered that a orchard netting expert had provided a quote to the respondents to net their orchard. Up to that point the respondents were proceeding to trial backed by expert reports that assumed it was impossible to net the orchard. The applicant then subpoenaed the netting expert, which had the effect that the respondents were unable to call or rely upon their economic evidence because it was shown to be based on a false assumption. Ultimately, the applicant commenced the trial with an extremely strong evidentiary basis provided by a number of Australia’s leading experts in their respective fields. The strength of evidence presented by the applicant ultimately won the trial.”
– Chris McGrath (2001) ‘The Flying Fox Case’
Expert witnesses for the farmer questioned the population estimates and argued that the impacts would not be significant for spectacled flying-foxes. The farmer elected not to give any evidence to the Court, presumably to avoid incrimination. He had been electrocuting flying-foxes since 1986 and had never obtained authorisation prior to being issued with a permit by Queensland’s EPA in 2000 after the illegal killings were reported.
Justice Branson was persuaded by the evidence from the bat team, and granted an injunction restraining operation of the grid unless approval was obtained under the EPBC Act from the Environment Minister. She found that the grids had killed probably 18,000 spectacled flying-foxes in the 2000-01 lychee season, and that continued operation would likely endanger the species within five years. Recognising the contribution of spectacled flying-foxes to the values of the Wet Tropics World Heritage Area, Justice Branson found that continued operation of the electric grid would have, or was likely to have, a significant impact on those values.
While Justice Branson considered it unlikely that the lychee farmer could afford to immediately net his entire crop, she found that financial losses should not over-ride the importance of protecting World Heritage Areas:
“In weighing the factors which support the exercise of the Court’s discretion in favour of the grant of the an injunction under subs 475(2) of the Act against those factors which tell against the grant of such an injunction, it seems to me that it would be a rare case in which a Court could be satisfied that the financial interests of private individuals, or even the interests of a local community, should prevail over interests recognised by the international community and the Parliament of Australia as being of international importance.”
Significance of the case
As the first case under the EPBC Act, Booth v Bosworth tested various legal concepts. It involved analysis of the meaning of “significant impact”, “world heritage values of a declared World Heritage property”, and “likely to have”. It established that an action taken outside a World Heritage area can be regulated if it causes a significant impact on world heritage values.
The case highlighted the public benefit of third party standing in the EPBC Act in enabling an environmentalist to enforce the law when governments failed to. Unfortunately, it also highlighted the failure of governments to prosecute environmental crimes, particularly those involving agricultural activities.
The case demonstrated the value of legal action for highlighting environmental threats and promoting conservation reforms. In August 2001, after the Federal Court hearing, the Queensland Government banned the use of lethal electric grids. The embarrassment caused by the case and a complaint to the Queensland Ombudsman about the State Government’s failure to enforce its laws led to some improved compliance practices. In May 2002, the Federal Government listed the spectacled flying-fox as vulnerable, following a report from the Threatened Species Scientific Committee that acknowledged the threat of electrocution: “Mortality caused by the use of electrocution grids to protect fruit crops poses a significant threat to the wet tropics population.”
In early 2002 Rohan Bosworth sought approval from the Federal Government to use his electric grid to “take or destroy approximately 5,500 Spectacled Flying-foxes” in November to December 2002. The figure of 5,500 was justified in the application as “simply a reasonable average figure for culling.” The Environment Minister refused the application – the first ever refusal under the EPBC Act.