On 4 March 2011, Justice Logan of the Federal Court of Australia handed down his decision in Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 8)  FCA 175. The case provides a recent example of public interest litigation being instituted by an "interested person" under the Environment Protection and Biodiversity Conservation Act's (EPBC Act) broad standing powers in relation to compliance with a condition on an approval.
The dam and the rare fish
The case concerned a condition attached to the construction of Paradise Dam on the Burnett River. The Burnett River is one of the few rivers in Australia inhabited by the Queensland lungfish, Neoceratodus forsteri.
The construction of the dam constituted, and its operation continues to constitute, a controlled action under the EPBC Act. Approval by the Federal Environment Minister for the construction and operation of the dam was granted on 25 January 2002.
In August 2003 the approval was amended with the consent of both parties, to include, amongst other things, the condition that:
"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."
The Conservation Council alleged that Burnett Water had contravened this condition and sought an injunction requiring Burnett Water to comply with the condition.
The alleged contraventions
The Conservation Council argued that Burnett Water had contravened the condition by not installing a fish transfer device which was "suitable" for the lungfish. This was because Burnett Water had:
installed the downstream fishway with an operation range of water levels in the dam reservoir between EL 62.0 m and EL 67.9 m, such that it was not suitable for lungfish when water levels in the dam reservoir were beneath EL 62.0 m because it could not be operated and lungfish were unable to enter it;
failed to commence to operate the downstream fishway when the dam became operational in or about November 2005;
failed to operate the downstream fishway continuously, subject only to minor interruptions for repairs and maintenance and environmental flows, after the dam became operational in or about November 2005.
Standing of the interested person
In relation to standing under EPBC Act, the court observed that, "in the field of public law, there has never been such universality of standing for the prevention, in the public interest, of illegality."
The Court compared this to standing under the Crimes Act 1914 (Cth), which allows any person to institute criminal proceedings against another but is "tempered though by the ability of the Commonwealth Director of Public Prosecutions to take over and decline to carry on any such proceeding." Justice Logan observed that there may be some value in a similar power being conferred on the Minister.
The construction of the condition
The Court found that the general construction of the condition left it to Burnett Water to "use its discretion, good sense and judgment as to how to achieve the specified result," in ensuring that the fishway was "suitable."
The Court rejected the submission of the Conservation Council that in order to be "suitable" the fishway must "maintain similar opportunity for lungfish movement as existed prior to the construction of the dam." Rather,
"the fishway which must be 'suitable' for the species is one which takes into account the needs of the species in the context of the impact of the approved dam as constructed. Such considerations flow naturally from recalling that the condition must be construed in the context in which is appears."
In considering whether the fishway was "suitable," the Court accepted evidence that under pre-development conditions it was unlikely that suitable lungfish spawning conditions would have been available in the river every year, to the extent that some years, water levels would have been so low as to prevent the passage of the lungfish past the dam site. The Court found that:
"As designed, the fishway still provides considerable opportunities for lungfish to move past and access habitat downstream. In these circumstances, the existence of the Paradise Dam with this fishway is not likely to result in serious or irreversible harm to lungfish populations in the Burnett River or across the distribution of the species."
The Court acknowledged that there was a three-year period between the completion of the dam and the fishway becoming operational because of the time it took for the dam to reach EL 62, the water level required for the fishway to work. Notwithstanding this, the Court found that the device was ready for use in 2005.
In the alternative, if the fishway did not commence when the dam became operational, the judge stated that he would not have granted the injunction as the period when the device did not operate was, from a long-term perspective, a transitory commissioning event that had now passed, making the fishway presently suitable for the lungfish.
Burnett Water was not found to have contravened the condition and the injunction was not granted.
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