WBBCC v Burnett Water
On the 7th October 2008, Wide Bay Burnett Conservation Council, with the support of the Environmental Defenders Office QLD, filed a legal injunction in the Federal Court of Brisbane against Burnett Water Pty.Ltd. for an alleged breach of the approval conditions for Paradise Dam, south-west of Bundaberg, Queensland, under the Environmental Protection and Biodiversity Conservation Act 1999.
The dam was approved subject to the condition that it provided a fully operational fish transfer device suitable for the Queensland Lungfish, but a federal audit of the dam conducted in July 07, found it to have a partial compliance rating meaning that the device was not operating effectively. The Queensland Conservation Sector jointly wrote to the Federal Minister calling for immediate intervention but after failing to receive correspondence, our executive committee began planning legal action. On the 24th September 2008, 2 weeks before the filing date, we received correspondence from Minister Garrett explaining that he was evaluating the situation but he felt that “Court action is also an option but may not achieve the best outcomes for lungfish at this stage”. WBBCC proceeded to file.
WBBCC endeavors that this case will set a new precedent for environmental legal cases, showing the public, the governments and businesses that if you do not comply with the laws and regulations put into place to protect the environment, then you may very well find yourself in court.
Case Updates.
Update on Paradise Dam Case- WBBCC v Burnett Water Pty Ltd
On Friday 7 November 2008 Dr Chris McGrath with EDO Qld represented applicant Wide Bay Burnett Conservation Council (“WBBCC”) against lawyers for Burnett Water in the first directions hearing for this landmark case in the Federal Court. This involved oral submissions to the Court by Dr. McGrath and preparation of affidavit evidence by EDO Qld.
WBBCC sought disclosure of documents about lungfish monitoring and the fishway operation from Burnett Water and a timetable leading to a full hearing of the matter in March 2009. Burnett Water disagreed with WBBCC’s proposals and provided evidence that it had 242 boxes of possibly relevant documents so that it would be time consuming to provide disclosure.
Burnett Water also indicated that it might seek an adjournment of the WBBCC matter on the basis that the Commonwealth was conducting compliance investigations against Burnett Water. However WBBCC knows that those investigations have been going on for some time and appropriate enforcement action has not eventuated, despite requests to Minister Garrett made by WBBCC and other groups. Dr McGrath informed the Court that the legislation gives WBBCC legal standing rights to take enforcement action, with those rights not dependent on what the government chooses to do.
Justice Logan of the Federal Court decided against ordering a hearing date yet and set a fresh date of 5 December 2008 for a further directions hearing. His Honor has given the parties time to lodge applications, submissions and supporting materials for any pre-trial applications such as disclosure of documents or adjournment. Any pre-trial applications will also be heard in the Federal Court on 5 December 2008.
Burnett Water’s attempt to delay Paradise Dam case fails
On Friday 5th and 12 December 2008, Dr Chris McGrath, with EDO Qld, represented applicant Wide Bay Burnett Conservation Council (“WBBCC”) against Burnett Water in a pre-trial hearing in the Paradise Dam case. This involved detailed oral and written submissions to the Federal Court opposing Burnett Water’s application to delay the case. Dr McGrath relied on affidavit evidence prepared by EDO Qld, Mr. David Kreutz, WBBCC. President Dr Tim Thorton and lungfish expert Professor Jean Joss.
Burnett Water asked the Court to stay (i.e. put on hold) the civil action by WBBCC that Burnett Water had breached Commonwealth condition of approval 3 concerning the fishway at Paradise Dam. Burnett Water argued that the Commonwealth was conducting compliance investigations against Burnett Water concerning the Paradise fishway and that findings in the WBBCC case might prejudice the fairness of any later prosecution by the Commonwealth. Justice Logan dismissed this application by Burnett Water, stating that the prospect of either criminal or civil penalty proceedings by the Commonwealth is but “a bare contingency” at the moment.
In a surprise move, Burnett Water today reversed its opposition to providing discovery of documents to WBBCC. This means the legal team for WBBCC and its expert witnesses will now gain access to important documentation about the operation of the Paradise Dam fishway.
Justice Logan’s judgement showed a keen appreciation of the public interest elements of the Commonwealth Environment Protection and Biodiversity Conservation Act 1999.His Honour noted that Act’s objects include the protection of the environment and the promotion of biodiversity. In the introductory paragraphs of today’s judgement, Justice Logan noted that Lungfish can lay claim to be the oldest surviving vertebrate species.
The case is listed before the Court for 13 February 2008. We anticipate Justice Logan will set a hearing date then if discovery of documents is completed.
For more information contact Jo Bragg at jbragg@edo.org.au
A copy of the judgement is on the Federal Court’s website: Wide Bay Conservation Council Inc v Burnett Water Pty Ltd [2008] FCA 1900,
Latest Case Update 23rd March 2009
