Past Court Cases · Nature & the Reef

Paradise Dam case

10 June, 2011

EDO Qld represented the Wide Bay Burnett Conservation Council (WBBCC) who sought to compel Burnett Water, the owner and operator of the Paradise Dam on the Burnett River, to abide by a condition of its approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) relevant to lungfish.

  • Motion for stay: Wide Bay Conservation Council Inc v Burnett Water Pty Ltd [2008] FCA 1900
  • Motion for particulars: Wide Bay Conservation Council v Burnett Water (No 2) [2009] FCA 237
  • Motion to strike out discretionary factors: Wide Bay Conservation Council Inc v Burnett Water (No 3) [2009] FCA 540
  • Adjournment: Wide Bay Conservation Council v Burnett Water (No 4) [2009] FCA 1013
  • Expert reports tendered at trial: Wide Bay Conservation Council v Burnett Water (No 5) [2009] FCA 1320
  • Expert reports tendered at trial: Wide Bay Conservation Council v Burnett Water (No 6) [2009] FCA 1363
  • Expert reports: Wide Bay Conservation Council v Burnett Water (No 7) [2009] FCA 1376
  • Trial decision: Wide Bay Conservation Council v Burnett Water (No 8) [2011] FCA 175 dismissing application
  • Trial decision: Wide Bay Conservation Council v Burnett Water (No 9) [2011] FCA 661 awarding costs to respondent

WBBCC sought a declaration under the Federal Court of Australia Act 1976 (Cth) and an injunction under the EPBC Act to restrain an alleged contravention by Burnett Water. This was the first case to focus on compliance with approval conditions under the EPBC Act.

WBBCC received a grant of Commonwealth public interest test case funding, the first given for an environmental case in over a decade, in recognition of the important public interest elements in the case.

Paradise Dam was approved by the Federal Environment Minister in 2002, with a condition added in 2003 requiring Burnett Water to install a fish transfer device on the dam ‘suitable for lungfish’ and to commence operation of the fishway when the dam became operational.

The Burnett River contains one of only two endemic populations of the Australian lungfish, a species listed as vulnerable under the EPBC Act.

Burnett Water Pty Ltd installed upstream and downstream fishways on the dam but WBBCC alleged these were not suitable for lungfish.

Burnett Water applied for a delay in the trial while a compliance audit was conducted by the Federal Environment Department but Judge Logan dismissed the application deciding that there were ‘public interests at large in the present proceeding other than a potential embarrassment of Burnett Water and the administration of justice in relation to any civil penalty or criminal proceedings.’

The trial was listed for 4 weeks starting in September 2009 but on the first day of the hearing was adjourned until November 2009 after Burnett Water applied to the Federal Environment Minister to amend the condition on which the case is based. The Minister refused to amend the condition. The trial was held over two weeks in November 2009 and a week in February 2010.

On 4 March 2011, Justice Logan dismissed WBBCC’s application, finding that the fishway was suitable for lungfish.

For more information see the following education site: http://envlaw.com.au/paradise-dam-case/ 

Environmental Defenders Office Queensland (EDO Qld) gives a strong legal voice to the environment when needed most.

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