Paradise Dam Case (WBBCC v Burnett Water Pty Ltd)

Judgement Day!

It has been 3 years since WBBCC began the epic journey of preparing the Legal Case against Burnett Water Pty Ltd (Owned now by SunWater Ltd- Corporate Entity of QLD Gov) for an alleged failure to protect the QLD Lungfish at Paradise Dam and  we finally have a date locked in for Judgement. Justice Logan will hand down his Judgement on Friday 4th March from 10:15am at the Commonwealth Law Courts on North Quay, Brisbane. This has been an enormous challenge for WBBCC. We began with a concept and took it all the way to the Federal Court thanks to the generous support from the community which saw us raise approx $190,000 in donations and approx $200,000 in Legal Aid from the Commonwealth based upon it’s test case status. This case highlighted the importance of adequately protecting the Federally listed Threatened Species and it’s inability to successfully gain fish passage up and downstream of the Burnett River via the failed ‘State Of The Art’  Fish Transfer Device at Paradise Dam. This Legal Case brought the issue into the public eye and demonstrated to the then Federal Environment Minister, Peter Garrett, why the Proposed Traveston Crossing Dam would fail to protect the QLD Lungfish, even if an approval was heavily conditioned. During the first week of the Lungfish Trial, Peter Garrett flew to Brisbane and informed the QLD Government and the community that:

“It is my decision to say NO to the Traveston Crossing Dam because it  poses an unacceptable risk to Threatened Species such as the QLD Lungfish.”

WBBCC firmly believes that the launching of this case, had an impact on his decision and ultimately the continued protection of the Lungfish from large scale impoundments on the Mary River.

So the time has come to prepare ourselves for the decision. We will accept Justice Logan’s decision whatever it may be, knowing that regardless of whether we win or lose, this action has had an enormous impact on the protection of the QLD Lungfish in the Mary River and highlighted the fact that Environmentally Conditioned Approvals do not necessarily ensure that the company responsible will always adhered to the approval conditions unless someone throws the book at them. The best case scenario resulting from this legal action will be that the Lungfish is adequately protected in the Burnett River by being given the right to safely gain access up and downstream of Paradise Dam to ensure their survival. How this occurs will be up Justice Logan. Either way, WBBCC will stand proud of what we have achieved because we gave it our best shot!

Background

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.

Previous Updates From Hearings

Hearing 7-11-08:

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.

Hearing 5-11-08 -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 2009. We anticipate Justice Logan will set a hearing date then if discovery of documents is completed.

Hearing 7-9-09 –

Paradise Dam Legal Case commencing on National Threatened Species Day

The legal action launched against Burnett Water Pty Ltd by The Wide Bay Burnett Conservation Council (WBBCC), for an alleged breach the approval conditions for Paradise Dam west of Bundaberg, will begin in Brisbane’s Federal Court on Monday.

This legal case argues the suitability of the fish transfer device used at Paradise Dam to protect the QLD Lungfish after a federal government audit revealed that the device was failing to allow lungfish access up and downstream of the dam on the Burnett River. The QLD Lungfish is a federally listed threatened species and ironically the trial begins on National Threatened Species.

WBBCC filed legal action against the dams proponents last October for an alleged breach of approval condition 3 for the dam under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC) :“Burnett Water Pty Ltd must install a fish transfer device on the Burnett River Dam suitable for the lungfish. The fishway will commence when the dam becomes operational”.

WBBCC Coordinator Emma-Kate Currie said “After we had contacted the Environment Minister calling for action and received no response, we felt that it was up to us as the local conservation group to investigate this issue in court. We made the decision to initiate legal action and shortly before the filing date, received a response from Minister Garrett containing no commitment to compliance action so we proceeded to file.”

Miss Currie Said “Monday is National Threatened species day and on that day we begin this trial ultimately with the desired outcome of protecting the Lungfish.  They are endemic only to the Burnett and Mary Rivers and currently face an uncertain fate with the Burnett River containing multiple dams and weirs and the Mary River facing the proposed Traveston Crossing Dam.  Queensland Water Infrastructure (QWI) has modelled the Traveston Dam with the same fish transfer device used at Paradise and currently under question in this trial and if it is proven ‘unsuitable’, then it will be back to the drawing board for Traveston.”

The trial is set to begin on Monday expecting to take up to four weeks but legal counsel for Burnett Water filed a ‘notice of motion for adjournment’ late last week and both parties anticipate a decision from Justice Logan on Monday.

 

Hearing update- 9-09-09 –

The legal case WBBCC V Burnett Water Pty Ltd began on Monday 7th October but has been adjourned until 9th November.

Burnett Water filed a ‘motion for adjournment’  5 days prior to the opening of the case, after applying to the Federal Environment Minister (Peter Garrett) requesting that he consider varying the approval conditions for Paradise Dam under the EPBC Act.

Wide Bay Burnett Conservation Council’s (WBBCC) Coordinator Emma-Kate Currie said today, “Although Burnett Water is well within their rights to make this request, it’s rather ‘convenient’ that the request was made within the weeks leading up to the trial. We were only contacted last week and informed of this latest development.”

“If the Federal Environment Minister agrees to vary the approval conditions, it will change the case entirely as the legal action is specifically based around the alleged breach of approval condition 3. We believe that Burnett Water has used this as a diversionary tactic to avoid a Federal Court Trial and are banking on the Minister’s decision going in their favour”, said Miss Currie.

Justice Logan made the decision to adjourn the case this afternoon after hearing arguments from both legal teams. As it is a test case, the boundaries differ from other environmental and litigation cases and Logan stated today that this case is a ‘peculiar species of public litigation’.

“WBBCC is now awaiting Garrett’s decision and can only hope that the Federal Environment Minister makes a decision that is within the best interest of the QLD Lungfish, not the economic interests of the corporation.”

 

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