Schneiders v State of Queensland [2001] FCA 553

FEDERAL COURT OF AUSTRALIA

Schneiders v State of Queensland [2001] FCA 553 LYNDON HENRY SCHNEIDERS v STATE OF QUEENSLAND Q 88 OF 2001 JOHN DALUNGDALEE JONES AS ELDEST OF THE DALUNGBARA PEOPLE AND REPRESENTATIVE OF THE NGULUNGBARA PEOPLE OF FRASER ISLAND, QUEENSLAND v THE STATE OF QUEENSLAND Q 89 OF 2001 DOWSETT J 4 MAY 2001 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 88 OF 2001

BETWEEN: LYNDON HENRY SCHNEIDERS

APPLICANT

AND: THE STATE OF QUEENSLAND

RESPONDENT

Q 89 OF 2001

BETWEEN: JOHN DALUNGDALEE JONES

AS ELDEST OF THE DALUNGBARA PEOPLE AND REPRESENTATIVE OF THE NGULUNGBARA PEOPLE OF FRASER ISLAND, QUEENSLAND

APPLICANT

AND: THE STATE OF QUEENSLAND

RESPONDENT

JUDGE: DOWSETT J

DATE OF ORDER: 4 MAY 2001

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The motions are refused. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 88 OF 2001

BETWEEN: LYNDON HENRY SCHNEIDERS

APPLICANT

AND: THE STATE OF QUEENSLAND

RESPONDENT

Q 89 OF 2001

BETWEEN: JOHN DALUNGDALEE JONES

AS ELDEST OF THE DALUNGBARA PEOPLE AND REPRESENTATIVE OF THE NGULUNGBARA PEOPLE OF FRASER ISLAND, QUEENSLAND

APPLICANT

AND: THE STATE OF QUEENSLAND

RESPONDENT

JUDGE: DOWSETT J

DATE: 4 MAY 2001

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 Fraser Island is a large sandy island off the coast, some distance north of Brisbane. It has in recent years become a very popular tourist and holiday resort. It is visited by several hundred thousand people each year, as appears from the evidence. It is also, as I understand it, a world heritage property for the purposes of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ( the "Act"). There is evidence of long Aboriginal occupation of the island. 2 It is well-known that there are dingoes on the island. Unfortunately, on Monday of this week, a nine year old boy was killed by a dingo and his brother, quite seriously mauled. In those circumstances, the Queensland Government, through the Department of Parks and Wildlife Management has commenced a culling program of the dingoes on the island. Previously, the Department had only culled dingoes which had demonstrated aggression towards human beings. That culling program has now been extended to animals which show habituation to people, by which it is meant that they demonstrate that they are no longer frightened of people and have been seen in areas frequented by people. The logic behind this approach seems to be that such animals are a risk to human beings because they appear to be like domestic dogs but react in quite different ways, as evidenced by the sad incident to which I have referred. I am sure that all involved in the case will join with me in saying that we very much regret that the pain caused to the family of the boy who was lost on Monday should be aggravated by these proceedings today. We hope that the effects of these proceedings on them are no more distressing than they must be. 3 I am told that as at 2.00 pm today seventeen animals had been killed. It is likely that more have been killed since that time as they are normally killed at first and last light. The Department has directed its officers that the cull is to be completed by last light tomorrow and that no more than thirty animals are to be culled. There is uncertainty as to the number of dingoes on the island, but the best evidence appears to be that led by the respondent that the number is between 100 and 200, and that it varies throughout the year from a total of about 200 at the end of the breeding season to about 100 at the commencement of the next breeding season. It cannot be denied that the loss of thirty animals from such a small pool will have an impact upon that pool. That seems to be little more than a matter of common sense. However, the extent of the impact is difficult to assess given the substantial fluctuations in population which apparently take place. 4 Pursuant to s 12 of the Act, a person must not take action which has or will have a significant impact on the world heritage values of a declared world heritage property or is likely to have a significant impact on such values. It seems that in the process which led to the according of world heritage status to Fraser Island, there was an indication that the dingo population on the island was of more than usual importance because it had not been exposed to inter-breeding with domestic dogs to the extent that dingoes on the mainland have been, and so the Fraser Island gene pool, if that is the correct expression, is likely to be more pure than the gene pool on the mainland. I accept for present purposes that this is a matter of some scientific importance. For this reason, the applicants have applied for interlocutory injunctions restraining the continued cull. It is said that it is arguably in breach of the provisions of subs 12(1) of the Act. The second applicant, Mr Jones, is proceeding on behalf of persons who claim to be the traditional owners of the island. He has assisted substantially by his explanation of conditions on the island and of the attempts by the Aboriginal population to husband its resources, including its fauna. 5 This is presently an application for a short-term interim injunction until this matter can be argued in more detail next week. For that reason, the arguments and evidence advanced by both sides must be taken to be less than well-digested. Probably, there will be more evidence when the parties have had the opportunity to consider the matter in more detail. For present purposes, I am obliged to address two questions. The first is whether or not there is a serious question to be tried; the second is where the balance of convenience lies. This must be done in light of the fact that we know that seventeen animals have already been destroyed, and probably more. The only action that, for the moment, can be restrained is the threatened culling of more animals, up to a total of thirty, between now and last light tomorrow. 6 The serious question for trial must be whether or not this threatened conduct may have a significant impact on the world heritage values of Fraser Island, or is likely to have such a significant impact. This invites consideration of what those values might be. The relevant evidence in this regard comes from exhibit C to the affidavit of Mr Schneiders. The only possibly relevant matter for present purposes is the reference to species of flora and fauna which have adapted to the comparatively nutrient-poor and acidic sands of the island. It seems likely that the dingoes fall into this category. 7 It is important to understand that the test which must be satisfied for the purposes of s 12 is not that there be or be likely to be a significant impact on the dingo population on the island; the question is whether or not that impact is likely to constitute a significant impact on the world heritage values of Fraser Island. Dr Pillsworth, who gave evidence for the applicants, thought that the proposed cull, if carried to completion, could have an impact upon the dingo population. He was, if I may say so, understandably careful in seeking to estimate the extent of this impact. However, it is clear that as a scientist, he is concerned at the possibility. That concern alone could not justify the conclusion that the impact on the dingo population will constitute a significant impact on the world heritage values of the island. However I am willing to proceed for present purposes upon the basis that his evidence was sufficient to suggest that there is an issue for ventilation, and that it constitutes a serious question for trial. I must say that I consider, on the state of the evidence as it is at the moment, that the applicants do not have substantial prospects of success on that issue. It may be that other evidence will be forthcoming which will improve those prospects, but on the current evidence, it is not a promising case. 8 Although I am satisfied that the applicants have demonstrated a serious question to be tried, the relative weakness of the case remains as a factor to be taken into account in considering the balance of convenience. American Cyanamid Co v Ethicon Ltd [1975] AC 396 establishes this proposition. The question, then, is as to the balance of convenience. It is perhaps a little fatalistic and perhaps, unattractive to say that most of the feared harm has already been done, but nonetheless that is the case. I also cannot ignore the fact that it is a primary responsibility of the Queensland Government to ensure the safety of the substantial number of people who go to Fraser Island. As I said in the course of argument, were it possible to prevent tourists from going to the island for a finite period of time in order to address this problem in other ways, then there may have been much in Mr Jones' suggestion that an alternative solution could be developed after a period of rational thought and discussion. However, the Queensland Government is faced with the immediate problem of providing, as best it can, public safety. Of course it must not deliberately or negligently impinge upon the world heritage values of the island. I see nothing in the material to suggest that it is other than aware of this responsibility. 9 Although we no longer assume, as was assumed in the past, that human beings are the only species entitled to survive on this planet, nonetheless the pre-eminent position of the human race is still very much at the base of our society. Threats to human safety from any source, particularly where young children are involved, strike at our basic need for security. This fundamental desire for security, particularly for our children, results in great pressure being placed upon Government to fulfil our expectations. 10 In those circumstances, a court must be reluctant to intervene in government action where that action can be seen to be a reasonable attempt to protect the safety of the public. Nonetheless, government must act in accordance with the law, and of course the Act is part of the law. I must balance issues of public safety against world heritage issues and the claimed interests represented by Mr Jones. 11 In all of the circumstances I am not persuaded that the balance of convenience favours intervention by the Court at this stage. The proposed continued cull will extend for a finite period of time and will involve a relatively small number of animals. In those circumstances, and particularly having regard to the relative weakness of the case, I consider that the balance of convenience does not favour interim relief at this stage. 12 I must make it clear that this decision is based upon the Government program as it has been explained to me; that is, that there is no intention of culling more than thirty animals, that instructions have been given to that effect and that the program will finish tomorrow evening. If circumstances change, then the rationale for this particular decision will no longer exist, and the applicants will be at liberty to seek further relief. In any event, if they wish to prosecute their claim for interlocutory or final relief, they will have an opportunity to do so next week should they be so advised.