Paradise Dam Case

This case study involved an application by the Wide Bay Burnett Conservation Council (WBBCC) for a declaration and an injunction to restrain an alleged contravention of an approval under the EPBC Act for the Paradise Dam.

The Paradise Dam (previously called the "Burnett River Dam") is a major dam with a storage capacity of 300,000 megalitres constructed on the lower Burnett River approximately 80 km southwest of Bundaberg in Queensland.

The respondent to the litigation was Burnett Water Pty Ltd, which owned and operated the dam.

The Burnett River contains one of only two known endemic populations of the Australian or Queensland lungfish, a species that is well over 100 million years old, and listed as vulnerable to extinction under the EPBC Act.

The Paradise Dam was approved in 2002 and in 2003 the conditions of the approval were varied to include the following condition:

3. 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.

Burnett Water Pty Ltd installed an unstream fishway and separate downstream fishway on the dam but WBBCC alleged these were not "suitable for lungfish". A series of pictures showing the dam and the fishways is available here.

The trial was orginally listed for 4 weeks commencing on 7 September 2009 but on the first day of the hearing it was adjourned until 9 November 2009 after the respondent applied to the Federal Environment Minister to amend the condition on which the case is based. The Minister subsequently refused to amend the condition.

The proceedings commenced in late 2008 and the trial was held on 9 - 23 November 2009. Due to the illness of one of the witnesses, it was adjourned part-heard until 1 February 2010. The judgment was reserved for over a year before being delivered on 4 March 2011. The Court dismissed the application.

Key documents in the case are:

EPBC Act referral

  • Referral of the Paradise Dam by Burnett Water Pty Ltd dated 28 August 2001.
  • Minister's decision to approve the dam on 25 January 2002.
  • Minister's decision varying the approval on 8 August 2003 to include conditions to mitigate impacts on lungfish.

Originating process & pleadings

  • Directions orders on 7 November 2008 regarding progress of pleadings and interlocutory motions.

Motion for stay

Motion for discovery

Evidence for motion

Motion for particulars

Motion to strike-out discretionary factors

Defence to Amended SoC and Reply

  • Reply filed 15 June 2009.

Adjournment

Amended Application & pleadings

Expert reports tendered at trial by WBBCC

Note:

Exhibits tendered at trial

  • Exhibit 3 - Maps showing location of Paradise Dam
  • Exhibit 4 - Graphs of percentage of total time the Paradise Dam upstream and downstream fishways operated between 28 November 2005 and 24 May 2009 based on particulars provided by Burnett Water Pty Ltd on 11 June 2009.

Note: Over 4000 documents were disclosed by the parties prior to the trial. These were reduced to an Agreed Bundle of 800 documents for the trial (printed in 15 volumes).

Of these, 105 exhibits were tendered at trial in addition to scores of documents annexed to witness statements. Many of these documents are not published here because they remain subject to copyright.

Trial decision

 

Subsequent monitoring reports

Following the conclusion of the litigation subsequent monitoring of the dam and fishways showed high lungfish mortality in flood events and ongoing lack of operation of the fishways:

 

Part of the Burnett River flooded by construction of the Paradise Dam.

Photo: Carl Moller (2003)

 

Burnett River at the site of the Paradise Dam wall in September 2002

(prior to construction of the dam).

Photo: Andrew Berghuis (2003), "Migratory Fish Communities at the Proposed Burnett River Dam Site"

 

Riverbed of the Burnett River at the site of the Paradise Dam wall in September 2002 (prior to construction of the dam).

Photo: Andrew Berghuis (2003), "Migratory Fish Communities at the Proposed Burnett River Dam Site"

 

Australian or Queensland lungfish

Neoceratodus forsteri (Krefft 1870)

Photo: ScienceBlogs

 

Paradise Dam wall and water reservoir showing water intake tower & entrance to downstream fishway (circled in red)

(ca 2007).

Adapted from DPIF (2008) "Paradise Dam Downstream Fishway Monitoring Program - Annual Report - September 2008"

 

Paradise Dam water intake tower & entrance to downstream fishway in 2008.

Photo: Roger Currie (2008)

 

Upstream fishlift shown ascending dam wall during initial operation in 2006.

Photo: SunWater