The Australian Federal Court has ordered a Japanese whaling company to stop killing whales in Australian Antarctic waters.
But the court acknowledged the whalers cannot be arrested unless they enter Australia - in what is essentially a moral victory for the anti-whaling lobby with little practical effect.
The Humane Society International launched legal action against whaler Kyodo Senpaku Kaisha Ltd in 2004, seeking a Federal Court injunction against harvesting in the Australian Whale Sanctuary in Antarctic waters.
HSI claims the company has slaughtered 1253 minke whales and nine fin whales since the sanctuary was declared in 2000, in breach of Australian domestic law protecting the animals.
Justice Jim Allsop said yesterday that, unless restrained, the Japanese company would continue to "kill, injure, take and interfere with" Antarctic minke whales and fin whales.
He also said the company had targeted humpback whales in the Australian whale sanctuary in contravention of the Environment Protection and Biodiversity Conservation Act.
"The respondent has, on the evidence, no presence or assets within the jurisdiction," Allsop said.
"Unless the respondent's vessels enter Australia, thus exposing themselves to possible arrest or seizure, the applicant acknowledges that there is no practical mechanism by which orders of this court can be enforced."
The Australian Whale Sanctuary, in Australian Antarctic territory, is not recognised by Japan.
The hearing was derailed in 2005, after then federal Attorney-General Philip Ruddock intervened on the grounds it could spark a diplomatic row with Japan.
But the full bench of the Federal Court ordered the proceedings to resume in 2006.
The Howard Government wrote to HSI last October reiterating its opposition to the injunction, saying it went against long-standing international practice under the Antarctic Treaty system.
"Taking such action can reasonably be expected to prompt significant adverse reaction from other Antarctic Treaty parties, including Japan," the Australian Government Solicitor wrote.
Labor voiced support for the HSI action before the election, with Environment Minister Peter Garrett promising to enforce a ban on whale slaughter in the sanctuary.
Yesterday the HSI called on the Rudd Government to live up to its pre-election promises on whaling and intercept Japanese ships in Australian waters.
HSI spokeswoman Nicola Beynon welcomed the decision as long overdue, and urged immediate action from the new federal Government.
"The Japanese Government doesn't recognise Australia's claim to those waters.
"However, as far as the Australian Government is concerned, Australian law says it's an offence to kill whales in those waters and the court has confirmed that," Beynon said.
"The court has ordered that the hunt be stopped.
"I think it's the Australian Government's responsibility to uphold the law and to uphold the Federal Court's injunction."
Beynon called for officials on board the Ocean Viking, currently tracking whaling ships in Antarctic waters, to immediately act on the court's orders.
"The Australian Government is very well placed to enforce the injunction, they have a ship on the way to the hunting grounds," she said.
Immediate action on Kyodo Senpaku Kaisha's permit from the Japanese Government to kill 935 minke whales and 50 fin whales this year could save hundreds of animals, Beynon said.
"Under Australian law the Government can intercept the ship and stop this hunt," she said.
"Yes, it would be controversial with the Japanese Government but, hey, they're the ones who are being extremely provocative in killing whales in Australia's territorial waters and we think it's time that this whole matter is brought to a head."