is the fishway "suitable for the lungfish"?
102 It is now necessary to describe in some detail certain characteristics of the lungfish.
103 On this subject and apart from the evidence of Dr Mallen-Cooper, I had the singular advantage of hearing evidence in relation to the lungfish from Dr P K Kind.
104 Dr Kind is a fisheries scientist. He is the Principal Scientist, Freshwater Fisheries within the DPI. Dr Kind undertook undergraduate study in science (zoology) at the University of Queensland which led to his being admitted to the degree of Bachelor of Science with First Class Honours. His undergraduate honours thesis was entitled, "Respiratory physiology of the Queensland lungfish Neoceratodus forsteri - responses to hypoxia". He pursued post-graduate study at that university in relation to the lungfish. These studies led in 2003 to his being awarded the degree of Doctor of Philosophy (Zoology) by that university. His doctoral thesis, which formed an annexure to a report from him received in evidence, was entitled "Movement patterns and habitat utilisation in the Queensland lungfish Neoceratodus forsteri".
105 Apart from his academic studies, Dr Kind has a wealth of applied knowledge and experience in freshwater fisheries management and the development of new techniques for studying fish passage through dams and weirs gained during more than a decade of service in various positions within the DPI. His work during this time has included co-authorship (with Mr Brooks) of a report entitled, "Ecology and demography of the Queensland lungfish Neoceratodus forsteri in the Burnett River Qld". He has taken a lead role within the DPI in developing a survival strategy and recovery plan for the lungfish. He has much field experience monitoring and studying the lungfish.
106 Dr Kind was very well placed to give evidence on the suitability of the fishway at the Paradise Dam for the lungfish. I have no hesitation in accepting his evidence, which I thought was candid, careful and independent. As to the latter, though he is an employee of the State of Queensland, I have no doubt that his evidence was not influenced by whatever burden or benefit it might offer Burnett Water, as opposed to being the genuinely held views of a man who has devoted a good portion of his adult life to our better understanding, and the continued survival, of the lungfish.
107 Though he had not read Dr Kind's thesis at the time of his consultancy to the BDA, Dr Mallen-Cooper was then familiar with Dr Kind's general work and findings about the lungfish. He has since read Dr Kind's thesis. In giving his evidence as to the suitability of the fishway, Dr Mallen-Cooper took account of Dr Kind's work but expressed his own views. He was well qualified so to do. As it happens, there is no material difference between these two learned gentlemen on the subject of the suitability of the fishway for the lungfish.
108 Of all of the evidence which I received concerning whether the fishway was suitable for the lungfish, I have given that of Dr Mallen-Cooper and Dr Kind the most weight. That is because each of these gentlemen was, by reason of both qualification and experience, better placed than others to express an opinion on this subject.
109 The following findings concerning the lungfish and the suitability of the fishway for the lungfish are based on my acceptance of the evidence they respectively gave on these subjects. Some of them also draw upon points of agreement as between Dr Kind and a Mr J Tait (of whom more below) as recorded in a document which became Exhibit 82. In acting on these points of agreement I do so insofar as they record opinions of Dr Kind with which, as it happens, Mr Tait agrees, not because I regard Mr Tait as a person of commensurate expertise to Dr Kind.
110 Fish move within river systems in order to undertake migration as part of their life cycle or as a mechanism for dispersal of the population through available habitats within the river system. Migrations where species require unimpeded fish passage in order to complete their life cycle are often called "obligate" and are classified as:
(a) Potamodromous - that is, fish that migrate wholly within fresh water; and
(b) Diadromous - that is, fish that migrate between freshwater and the sea.
Examples of Diadromous fish are striped mullet, Australian bass, barramundi, and eels. Examples of Potamodromous fish are Australian smelt and Hyrtis tandan. The lungfish is also classed as a Potamodromous fish.
111 The category of "Potamodromous" traditionally refers to an obligatory migration but there is also a spectrum of obligate and facultative movement both between and within fish species. The spectrum includes:
(a) At one end, the "Potamodromous" species that have separate feeding, spawning or refuge habitats and have active seasonal migrations by the bulk of the population between these habitats.
(b) At the other end, are fish that don't move to spawn, or move between feeding or refuge habitats; essentially the bulk of the adult population moves very little with no specific migrations. There are, however, almost always, small numbers of individuals of the population that move, sometimes great distances. Immature fish also often disperse from adult spawning areas in these populations. These are important movements for gene flow and recolonisation (e.g. after droughts) and maintaining movements of these fish is an important ecological objective. Lungfish fall into this other end of the spectrum, with no major seasonal migration of the bulk of the population but with some individuals moving significant distances and the dispersal of immature fish.
(c) Within this spectrum of migration and movement are one-off refuge-seeking migrations where the majority of the population might move (e.g. in an extreme drought) or,
(d) There can be density-dependent movements. In a dense population there are greater emigration rates because there is more competition.
Such is the range of this spectrum that, in the management of freshwater fish, definitions of 'migratory' and 'non-migratory' are used less and less, and ecological objectives for whole populations are used more and more.
112 The lungfish is a long lived and generally slow growing species. In the wild they may live more than 50 years. They have a life history characterised by the longevity of adults and low adult mortality levels. These characteristics give the lungfish a resilience which counters sporadic and inconsistent recruitment success. The latter may even be normal in the lungfish as a species. Put another way, because of the adult longevity a loss of a spawning opportunity for one reason or another in a particular annual season does not present the same potentially adverse impact for species propagation as it would for a fish species whose adult reproductive life is much shorter.
113 Lungfish predominantly spawn in shallow pools and glides. Their main spawning season each year is August to December but may start as early as July and extend as late as January in the following year.
114 The major movement of lungfish in low flows in the Burnett River is upstream and the main movement downstream is when there are significant flows in the order of more than 1000 ML per day (Report of Brooks and Kind, "Ecology and Demography of the Queensland Lungfish in the Burnett River Queensland", exhibit "MMC-5", at page 108). Movements occur following the peak of moderate flow events. The ramification of this is that the downstream operating range of the fishway should include those periods when there are significant inflows which are likely to occur at higher headwater levels, as well as periods following the peak of moderate flow events. The operating range of the downstream fish transfer advice meets these requirements.
115 Lungfish movement is generally localised with low numbers of individuals moving long distances. Most lungfish in the Burnett River and its catchments (and the Mary River for that matter) occupy discrete, "home range" sections of the river. Here they spend the majority of their time. Movements by lungfish outside these sections are rare but do, exceptionally, occur. The reasons for these exceptional, longer movements are not presently known but are most likely to be related to foraging, breeding or dispersal. Insofar as this exceptional movement relates to breeding, a reason for this is probably that suitable spawning habitat is not available within the normal home range of that lungfish. Findings (which I accept and adopt) made by Dr Kind in the course of his postgraduate research and summarised by him by graphical representations in his doctorial thesis bear this out:
(a) Figure 3.17 at page 86 shows that of 113 radio tagged lungfish, the majority of them moved only plus or minus 5 kilometres from the tag site. There was the odd one, however, which moved 15 kilometres downstream and 26 kilometres upstream. It is instructive to compare this finding about lungfish movement patterns with the patterns of other freshwater fish species. Dr Mallen-Cooper opined and I find that if, for example, this graph related to Australian bass or striped mullet, the entire bar graph would be situated to the right or left because they, without question, have obligate migrations to spawn. Lungfish, in general, do not.
(b) Figure 3.18 on page 89 is a comparison of the movement of lungfish in flowing water as opposed to impoundments (dams and weirs). That graph shows that: i) in the case of flowing water, no lungfish moved more than 5 kilometres from the tag site and ii) in impoundments the majority of lungfish also did not move more than 5 kilometres while low numbers of lungfish that are looking for suitable spawning habitat will move longer distances downstream or upstream.
(c) Figure 3.20 on page 91 graphs juvenile lungfish movement. The evidence there summarised and represented indicates that, of 44 juvenile lungfish, only one moved more than 3 kilometres from the tag site with the exception not moving more than 5 kilometres upstream. These results for juvenile lungfish mirror the results of movement for adult lungfish in the radio telemetry studies.
116 Even accepting that this localised movement is a general feature of the species, lungfish in impoundments do make significantly longer movements than those in unimpounded, riverine reaches. Some of these movements can be attributed to individuals seeking out alternative suitable spawning grounds. Impoundment by its very intent will inundate areas where hitherto there were shallow pools and glides.
117 There is evidence in the form of habitat preferences of spawning lungfish that impoundment reduces the quality and availability of lungfish spawning habitat. About half of the total core lungfish habitat in the Burnett River has been subject to impoundment by water infrastructure. That proportion applies to habitat in the reach of the Burnett River which is subject to impoundment by the Paradise Dam.
118 Noteworthy though they are, this evidence of some longer movement and habitat reduction must be seen in context.
119 The fishway at the Paradise Dam affects only a small proportion of lungfish in the Burnett River and even less across the distribution of the species as a whole. In the Burnett River alone, the total lungfish population, based on extrapolation from the recapture percentile of tagged lungfish, is in excess of 100,000. While it is undeniable that the fishway does reduce opportunities for lungfish to access spawning habitat downstream of Paradise Dam to some extent, with its downstream device entry level at EL62 there are nonetheless opportunities for lungfish to move through the fishway during most years. Further, lungfish that were unable in some years to move through the downstream device in the fishway because of low water levels could still potentially access alternative spawning sites upstream of the Paradise Dam impoundment, up to the wall of Claude Wharton Weir. That weir is situated on the Burnett River at AMTD 202 km, some 70 km upstream from the Paradise Dam. Until March 2008 when a fishway was retro-fitted to the Claude Wharton Weir, the wall of that weir would have prevented access by lungfish to any potential spawning sites yet further upstream.
120 Context is also given by an understanding of the pre-development position.
121 Via what is known as Integrated Quality and Quantity Modelling (IQQM) using historical flow data and other information it is possible to derive a hydrological model of the Burnett River catchment in various pre and post water infrastructure development scenarios.
122 On the basis of IQQM flow modelling for the Burnett River, even under pre-development conditions, it is unlikely that suitable lungfish spawning would have been available in the river each and every year. On the basis of such modelling Dr Kind opined (and I find) that suitable spawning habitat may have only been available in approximately 73% of years, largely because of major flow events. A major flow event (>8 metres) scours macrophytes in the river to the extent where suitable spawning habitat would not be available to the lungfish for the following season.
123 Such major flood events aside, even before the creation of what are now seven man made barriers on the Burnett River, of which the Paradise Dam is but one, there were periods when low water levels in the river would have prevented the passage of lungfish past the site where the Paradise Dam is now located. Such periods would not have occurred more than 5% of the time.
124 The placing of the entrance to the downstream device at EL 62 does represent a break with the past. So too, in their own way, progressively, did each of the other impoundments on the river. With an entry level at EL 62 the Paradise Dam offers downstream passage about 80% (more likely about 76%) of the time. That figure is based on modelling conducted by, inter alia, Ms Fernando, an engineer with specialist expertise in hydrological modelling, who gave reliable evidence in the trial. When the dam is at or above EL 62 the likelihood is that releases of 14 ML per day for about 97% of the time.
125 Even taking the EL 62 limitation into account, it is the considered opinion of each of Dr Kind and Dr Mallen-Cooper that the fishway is suitable for the lungfish. Their opinion is, and I find, that the fishway does not need to be operable at all times to be suitable for lungfish. In expressing those opinions, each assumed the fishway would operate as designed subject to initial commissioning and maintenance. Dr Mallen-Cooper opined that commissioning of the upstream device in particular might take between 12 and 24 months after the completion of the dam.
126 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.
127 The weight of other evidence does not contradict such a conclusion but rather does much to support it.
128 Dr I Stuart is a freshwater fisheries biologist. He too, has much expertise and experience in the design and assessment of fishways. His doctoral thesis was titled, "Fishways in eastern Australia: assessment of effects on native fish and an introduced fish species". I also note that, in the course of his career, he has, inter alia, co-authored with Dr Mallen-Cooper, publications in relation to fish passage. He regards Dr Mallen-Cooper as, "the foremost fish passage and fishway expert in Australia". That accolade underscored for me the weight I ought to give to Dr Mallen-Cooper's opinions. To observe that in no way detracts from Dr Stuart's eminence in his own right.
129 Dr Stuart was called by the Conservation Council. Given his relevant qualification and experience, I found it surprising that he was not asked by the Council to express an opinion as to the suitability of the fishway as a whole or either of its component fish transfer devices. What Dr Stuart did say in evidence in relation to the fishway was that, even if neither of the devices had been operating from 2005 until trial, the impact of that on large bodied fish such as the lungfish would not be great because they are resilient and can migrate later. The lungfish may not breed every year but this is matched by a long life span. Thus, he opined that, even where a river had naturally had no connectivity for about 5 years, the impact on the species would not be great.
130 In 1999, prior to the completion of his doctoral studies, Dr Stuart co-authored with Mr Berghuis of the DPI a report entitled "Passage of native fish in a modified vertical slot fishway in the Burnett River barrage, South-eastern Queensland". This report formed part of the evidence in the case.
131 The Burnett River barrage is located near Bundaberg, far downstream from the site of the Paradise Dam. The purpose of the barrage is to act as a separator between fresh (river) and salt (estuarine) water. As already noted, the lungfish is a Potamodromous (wholly freshwater) fish. This 1999 report concerned the behaviour of lungfish in the marginal freshwater of the estuary attempting to move upstream to freshwater reaches of the river. Quite understandably, I thought, Dr Stuart stated that such lungfish "are trying to move for very, very different reasons than fish further upstream". Accordingly, behaviours described in that report are not of assistance in relation to lungfish behaviour in the freshwater reaches of the river upstream from the barrage.
132 A decade later Dr Stuart conducted what one might describe as a "desktop review" of the monitoring programme in place at the dam as a result of other approval conditions. It will be necessary to make reference to observations made in the course of that monitoring shortly. The present relevance of Dr Stuart's review lies in his complimenting the standard of that monitoring. While that adds to the confidence I have in acting on the monitoring observations, the review is not otherwise relevant. The review was but one sequel to exchanges between the Minister's department and Burnett Water in relation to compliance with the conditions of the approval under the EPBC Act. I am not engaged in a general audit of that compliance.
133 Another person with extensive experience of lungfish and fishways who was called by the Conservation Council was Mr C Broadfoot. He has been engaged in the monitoring programme which has been in place since the completion of the Paradise Dam and the fishway. The reports in respect of that monitoring were in evidence. What was not in evidence, because yet again the Council chose not to seek the same from a person with relevant expertise called by it, was whether there was anything in his monitoring observations which might lead him to believe that the fishway was not suitable for the lungfish species. What he did do was to confirm the species characteristic of sedentary, localised home range behaviour. He put the percentage of the lungfish population which undertook longer range movements as less than 5%.
134 Mr A Berghuis was another fish biologist called by the Conservation Council. He, too, has expertise in relation to fishways. He is employed within the DPI. In that capacity, he took part in the workshops which preceded his department's final approval of the fishway as found today. He has also been involved with Mr Broadfoot in the monitoring of the fishway.
135 Unlike others called by the Conservation Council, I did have the benefit of his opinion, which he was certainly qualified to furnish, on the suitability of the fishway for the lungfish. He considered that the upstream device was suitable.
136 As to the downstream device, my strong impression was that his ideal was a device which would permit a fish to move downstream any time or at least operated when there was natural flow into the river. He said as much in evidence. I am quite sure that this was his sincere view. Equally sincerely, he did believe that the design of the downstream device was suitable for the species. For him to change that belief would require more than the experience of the few years which followed the completion of the dam but rather observation of how well it performed over the longer term. Mr Berghuis was well aware that the Paradise Dam had taken about 3 years to reach the entry level of the downstream device but this awareness was tempered by his knowledge that fluctuating headwater levels were always going to be an operational feature of the dam.
137 Another with apparently relevant expertise who participated in the workshops and who might have been called (and whom the Council at one stage proposed to call) but was not was Mr Berghuis' superior in the DPI, Dr P Jackson. It is evident that, in the course of the workshop process, he was concerned to receive a cost benefit analysis of alternatives under consideration. It is likewise evident that such an analysis was undertaken and then discussed at a workshop. I have already referred to the end result of the process so far as Dr Jackson's department was concerned. I have no evidence that thereafter, Dr Jackson held a different, personal view in relation to the fishway. The onus of proving a contravention always remained with the Conservation Council. Dr Jackson's absence is, at best, neutral in terms of determining whether it has done so. I make nothing more of that absence than that.
138 That there were differing schools of thought as to what fishway to install at what is now known as the Paradise Dam will already be evident from the reference which I have made to the evidence of Dr Mallen-Cooper. Even before the workshops, there was an initial proposal to have but one passage with both upstream and downstream movement of fish. To read, as I have, evidence of the discussions at the workshops is also to appreciate the existence of differing schools of thought. The relative merits of a downstream device with an entry at EL 50 or even lower, as compared with an entry at EL 62, were debated and assessed. A distance of 12 metres does not seem very far when considered in abstract but, on the evidence before me, when translated to a vertical distance requiring gating involves a much more considerable engineering feat and a structure much taller than that which one sees today on the downstream device at the dam. In the course of workshop discussions an additional construction cost of $125,000 was suggested but the unchallenged engineering evidence before me (from Mr Murray) was that the actual cost of attempting the same even during the construction phase would probably have been much higher than this.
139 It bears repeating that this case is not about whether there were other or even more suitable fishways which might have been employed, but rather whether the fishway, downstream and upstream which was in fact employed has been proved by the Conservation Council not to be suitable for the lungfish. This it has failed to do.
140 It does not detract from this conclusion that, on the evidence, the fishway at the dam exemplifies a cost/benefit compromise. It is none the worse for that. It is pellucidly clear on the evidence that suitability for all of the fish species in the Burnett River, including the lungfish, was a factor that underpinned the design of the fishway adopted and of alternatives considered.
141 I drew attention at the outset of these reasons for judgment to the first two objects of the EPBC Act. There is no necessary antipathy between such a compromise and "ecologically sustainable development through the conservation and ecologically sustainable use of natural resources". Indeed, in many cases it may well be a feature of the meeting of this statutory object. On its face, the intent of the approval of the construction and operation of the Paradise Dam, subject to conditions including, materially, condition 3, was to conform to this object. In employing in condition 3 what I have described as a "directive control" type of condition the Minister left room for the making of a value judgement which might well entail a cost/benefit compromise, but a judgement the end result of which would fall for objective measurement.
142 Such measurement as has occurred to date does not, viewed objectively, support a conclusion that the fishway is not suitable for the lungfish.
143 Monitoring of the fishway is undertaken by the DPI pursuant to a contract with Burnett Water. Even though each of these bodies is an emanation of the State of Queensland, there is nothing on the evidence which persuades me that Burnett Water and the DPI have ever, including most recently in relation to the monitoring programme, dealt other than at arm's length with each other. To the contrary, my distinct impression, formed from a review of the affidavit and other documentary evidence authored by DPI officers and from observing those DPI officers who gave oral evidence was that the DPI had adopted a thoroughly professional attitude to the fisheries management, advisory and monitoring tasks consigned to that department. The DPI is not to be regarded as a handmaiden of Burnett Water.
144 It is obvious from the monitoring reports that the DPI plays close attention to operational issues concerning the upstream and downstream transfer devices and of associated radio telemetry devices which are used for the tracking of fish movement. Quarterly reporting is undertaken with these results consolidated into an annual report. For example, the June 2009 Quarterly Monitoring Report (the most recent in the Agreed Bundle) discloses a concern about the flow of water from the downstream fishway competing with the attraction water for the upstream fishway during times of simultaneous operation. This concern is of a general nature, not confined to the passage of lungfish. It was not suggested that I should make anything of this so far as suitability was concerned. Mr Maughan deposed (and I accept) that, as a result of the testing and monitoring by the DPI of fish movement through the fishway he has adjusted attraction flow rates, hopper positions and gate openings in accordance with the advice provided by the DPI to improve operations and ensure that the fishway simulates river conditions in both directions of the dam's wall. I have no reason to doubt, based on this evidence, that Burnett Water will do other than react responsibly to the concern which I have mentioned was identified in the June 2009 report.
145 Mr Maughan described in detail in his affidavit the operations of the fishway between November 2005 and the date of his affidavit (31 July 2009). I do not find it necessary for the purpose of determining this case to descend to that level of detail. I do though accept the accuracy of Mr Maughan's account.
146 Mr Maughan divides his description of the operations of the upstream fish transfer device between what he describes as a "Start Up/Testing Period" (November 2005 - July 2007) and the period thereafter, which he describes as "Normal Operations". Each of these is a fair description.
147 The "Start up/Testing Period" coincides with that which Dr Mallen-Cooper would expect for a fishway of this complexity. It is obvious from Mr Maughan's detailed description that a number of commissioning issues arose and were resolved during this period. Resolution did entail periods when it was not possible to operate the upstream device. Such events were only to be expected. It would be an unreasonable construction of condition 3 to regard them either individually or collectively as contraventions of that condition. Further, having regard to the authoritative evidence of Dr Mallen-Cooper and Dr Kind, these non-operational periods did not render the device unsuitable for the lungfish. The importance of a long term perspective cannot be over-emphasised. An observer of the upstream device over the "Start up/Testing Period" may well have formed the view that there appeared to be significant lengths of time when it was not operating. To extrapolate that into a threat to the species is though, on the evidence, neither to understand the species nor the challenge of commissioning complex and nationally unique machinery.
148 One issue which arose during the "Start up/Testing Period" was probably not expected and referable to a then prevailing very low reservoir level - EL 49 in about August 2006. At this level a basalt rock pimple was exposed. This occurred at a time when the BDA still had responsibility for defects rectification. That gave rise to a concern on the part of the BDA's Project Manager, Mr C Thamm, that the fish hopper might be damaged by hitting that pimple or unknown obstacles below the water level such as rocks or debris. It is to be remembered that the hopper must be lowered by the crane into the headwater in order to release its load. The greater the drop from the dam wall to the reservoir level, the more the hopper might move due to increased effects of wind. As between the BDA and Burnett Water it took about a year to resolve this concern. Once again, periods when the upstream device did not operate because of this concern are referable to what is, relatively, a short term phenomenon. The evidence is that, most of the time, the reservoir level will be above EL 62 and certainly well above the EL 49 level. Further, in the resolution of the concern identified by the BDA, Sunwater's Regional Manager (Mr D Green) came to issue (in August 2007) a direction that the upstream device was to be operated when:
(a) the dam storage level was between EL 44.4 and EL 66.6; and
(b) adequate releases were being made from the dam that allowed fishlift operation (which may be less than that specified in the governing resource operations plan (ROP)).
This direction entails a level of risk assumption by Burnett Water's parent in relation to the operation of the upstream device in the event that the reservoir level were again to fall to such a low level. Its minimum level coincides with the lowest headwater operating range of the upstream device. Viewed in the context not only of the likely predominant headwater levels over the long term at the dam but also of resolving a problem quite literally first exposed by an unusually low headwater level, the associated periods of non-operation of the upstream device did not constitute a breach of condition 3. Also in this case, such periods of non-operation did not, taking the long term view, render the upstream device unsuitable for the lungfish. Taking the long term view, water level conditions over the life of the approval will more likely than not be such that the upstream device will operate for the proportion of the time Dr Mallen-Cooper and Dr Kind consider will be suitable for the lungfish.
149 From around late 2007, the upstream device has generally operated on a 24 hour cycle when releases are required under the governing ROP, subject to downtime for maintenance events, fault issues and the like.
150 As soon as the storage level in the dam reached EL 62 the downstream device operated as designed. Thereafter, no significant problems have been experienced with its operation. It is a much simpler device than the upstream device. It does not have as many moving components or sensors. Apart from Burnett Water's own monitoring, any issues concerning the operation and improvement of this and the upstream device are subject to regular, independent monitoring by the DPI.
151 Apart from the monitoring of the fishway itself, the DPI is also engaged in the monitoring of the lungfish as required by condition 6 of the approval. A ten-year (2006 - 2016) is presently in place. Tagging and the use of radio telemetry form part of that programme. Dr Kind and another DPI officer, Mr Brooks, are responsible for this monitoring programme. In my respectful opinion, that monitoring programme is in good hands. Dr Kind summarised the position with respect to that monitoring programme as at the end of the two year mark (the years 2006 and 2007) thus:
Our findings … were that the population structure of the lungfish was similar to previous surveys carried out prior to construction and filling of the dam with comparable length, frequency, relationships and sex ratio. We found an unusually high egg mortality rate during 2007 which, in my view, was most likely attributable to the ongoing drought conditions which contributed to the deterioration in the quality of spawning habitat.
As with other observations and opinions furnished by Dr Kind, I have no hesitation in accepting them. So doing offers no support for a conclusion that the fishway is not suitable for the lungfish. The "before and after" structure of the lungfish population was similar. It is ongoing drought, not the effects of the dam, which is affecting egg mortality.
152 It was put on behalf of the Conservation Council that lungfish are relatively slow going and that adverse impacts to the species by reason of the dam with the fishway as designed and operated may not be apparent in the short term from the monitoring which has occurred. This theory is not supported by the evidence of Dr Kind or Dr Mallen-Cooper, each of whom regard the fishway as suitable.
153 Some further reference should be made to the ROP. Condition 4 to the approval makes reference to and requires compliance with a number of State instruments. One of these is the Resource Operation Plan (Burnett Basin) 2003 (the 2003 ROP).
154 A number of points should be made about these State instruments. Condition 3 does not, in terms, require compliance with any of them. Yet, for example, the nature of the upstream device is that some release of water is necessary for fish attraction. The conditions of the approval were, as I have observed, presumably intended to operate harmoniously. It does not necessarily follow that flows sufficient to comply with an ROP, and to this extent, condition 4 will be sufficient to make the upstream device "suitable for the lungfish". However, the ROP was prepared to meet the objectives of another of the State instruments referred to in condition 4, the Water Resource Plan (Burnett Basin) 2000 (Qld), and these objectives included maintenance of habitat for the lungfish (Ex DRC 3 to Mr Charles' affidavit, p 3).
155 Though condition 4 refers to the 2003 ROP it is to that ROP as a whole to which regard must be had and that ROP makes provision for its amendment. Burnett Water submitted, and I accept, that this lends an ambulatory quality to the reference. The reference to the 2003 ROP is to be read as that ROP is amended from time to time. That is not without relevance in this case because, in the period following the initial making of the 2003 ROP it was amended so as to include, in para 2.8.4, rules for the operation of the fishway. These rules require the fishway to be operated when the headwater level is between EL 62 and EL 67.9 and releases or overflows of greater than 14 megalitres per day are being made from the dam. Releases at other times so as to operate the fishway may also occur when Burnett Water is permitted by the ROP to make releases. It was apparent from Mr Maughan's evidence that, before the amendment of the 2003 ROP, there was some uncertainty as to the requirements of the ROP in relation to releases. That uncertainty has been resolved. The position now is that, subject to maintenance requirements, the upstream fishway operates on a 24 hour cycle when releases permit. Further, preferential treatment is given to the fishway in relation to water releases.
156 Dr Mallen-Cooper and Dr Kind do not suggest that the upstream device must be in continuous operation or even 95% of the time operation in order to be "suitable for the lungfish". In this regard it is important to recall that the views of Dr Kind are of a man who has a particular involvement in and responsibility for recovery planning in respect of the lungfish. The Conservation Council has not proved that it must be so operated to achieve this end. There is no reverse onus of proof in this case. As it happens, the weight of the expert evidence, insofar as either party sought to elicit the same, leads to a conclusion that it is more likely than not that the fishway is suitable.
157 The Conservation Council's adoption of an at least 95% operational requirement for the fishway drew upon a pre-development connectivity figure for the Burnett River derived by Mr Burgess using IQQM modelling. It is important to note that pre-development means before any impoundments or water infrastructure came to be erected on that river. Mr Burgess was a mathematician and statistician who certainly had the expertise to utilise IQQM modelling to derive outcomes. What he did not have was the expertise in fish biology, particularly in respect of the lungfish, or in fishway design so as to interpret the ramifications of those outcomes in terms of whether the fishway was suitable for the lungfish. For those who did have expertise, knowledge that there had never been continuous connectivity in the Burnett River and yet the lungfish had survived there for millions of years was a marker of the resilience of that species. Mr Winders, an engineer with experience in hydrology, seemingly drew upon the 95% pre-development connectivity figure derived by Mr Burgess but not to the end of expressing an opinion, for example, about the feasibility and cost of lowering the entrance to the downstream device to EL 50. He had no expertise in fish biology or fishway design. The evidence of Messrs Burgess and Winders did not advance the Conservation Council's case.
158 Mr Burgess' modelling outcomes did highlight the possibility of occasional over-topping events at the dam. Just how this rendered the fishway unsuitable for the lungfish was not though supported by expert evidence. Dr Kind did comment upon lungfish movement in such circumstances. He opined that in circumstances where the dam filled to the point of over-topping it was likely that lungfish would move over the dam wall regardless of the operation of the downstream device. His further opinion was that it was not possible to say whether an operating downstream device would reduce the risk of that spillway passage. His further opinion was that there was insufficient evidence (even taking into account a 2008 monitoring report of Mr Broadfoot) to conclude that lungfish would accumulate against the dam wall should there be an over-topping event. Nothing in this proved that the downstream device was not suitable for the lungfish.
159 Much reliance, in relation to the question of fishway suitability, was placed by the Conservation Council on the evidence of Mr Tait. For reasons which I gave in the course of the trial, I ruled that a report prepared by him, in the form sought to be tendered, was not admissible: Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 5) [2009] FCA 1320. Mr Tait also gave oral evidence.
160 Mr Tait has expertise in fish biology and in environmental planning. His expertise in fish biology is not specific to the lungfish. He has, through a family connection with the Burnett River, had occasion to view that species in that environment but he has not undertaken field work or species specific research in relation to the lungfish. His knowledge and experience of the species was far inferior to that of Dr Kind and, for that matter, even to that of other DPI officers who gave evidence. The same applies in relation to theoretical and applied knowledge and experience in relation to fishways. Whatever knowledge and experience he had in this field was far inferior to that of Dr Mallen-Cooper and Dr Stuart.
161 I thought that a telling indication of his inadequacy of knowledge in relation to the lungfish, as well as his reliability generally, was his choice of source for a view that there were but a few thousand lungfish in the Burnett River. It emerged that the source was nothing more than a media report. If that report had any foundation in scientific data Mr Tait did not seek it. Rather, he seems to have accepted it at face value. That approach is in marked contrast to that of Dr Kind, whose population estimate is based on extrapolations from field research and a deep understanding of the species. That Mr Tait's selection of such a population figure may not have been just a product of relative ignorance or an absence of scientific rigour was highlighted by views he expressed not in court but rather in a "blog". He acknowledged in cross-examination that, in the blog he had expressed the view that the lungfish had proven itself to be a resilient and adaptable species and that it was something of a sidetrack to consider it, as opposed to what he regarded as really threatened species. Absent this evidence, I may have been inclined just to dismiss references which were proved to have been made by him in exchanges with the Council's solicitors to "our case" and to "building a picture of threats to lungfish in the catchment" just as infelicity of language. Considered though in the context of the comments which he made in the blog, I was not in the end satisfied that Mr Tait had brought to the task of giving expert evidence the degree of dispassionate detachment that the Court expects from those called to give expert evidence. Thus, apart from relative weight, I am not in any event inclined to place any reliance on Mr Tait's opinions where these are uncorroborated.
162 The only reference by the Conservation Council in its written closing submission to what remained of Mr Tait's evidence after the exclusion of his report was inferential in the references to the joint experts' report prepared by him and Dr Kind. The weight to give to the views expressed there though derived from Dr Kind, not Mr Tait.
163 Reference was made in the course of submissions to the "precautionary principle". For the purposes of the making of certain Ministerial decisions, the EPBC Act, s 361(2) defines that principle thus, "The precautionary principle is that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage". To the extent that it is possible so to do consistently with other provisions of that Act, s 361(1) obliges the Minister to take that principle, as defined, into account when making those decisions which are listed in a table under s 361(3). The approval of an action under s 133 of the EPBC Act is one such decision. The decision to grant Burnett Water an approval, subject to conditions, in respect of the construction and operation of the Paradise Dam was subject to this requirement. There is no issue in this proceeding that this requirement was not observed.
164 The condition precedent to the question of whether to grant injunctive relief is proof of a contravention. The "precautionary principle", as defined, has no role to play in deciding whether or not a contravention has been proved.
165 Neither does this statutory requirement does not attend a decision as to whether or not, as a matter of discretion, to grant an injunction in the exercise of the power conferred on the court by s 475 of the EPBC Act. Were a contravention proved, the exercise of the discretion would necessarily be informed not only by the circumstances of the particular contravention as proved but also by the subject matter, scope and purpose of the EPBC Act and, in a case such as this of the approval as conditioned. Other discretionary factors might also intrude, for example in terms of the time for or manner of remedial compliance. Were a contravention proved, another factor which it may well be relevant to take into account in deciding whether to grant injunctive relief would be a need to order the taking of remedial action as a precaution even though there was not scientific certainty as to the position if such relief were not granted. In that sense, a factor akin to the "precautionary principle" as defined in the EPBC Act may become relevant in the circumstances of a particular case.
166 Here, the Conservation Council, for the reasons given above, has not proved the contravention pleaded. Its case was characterised by a want of persuasive expert evidence directed to the pleaded and particularised contravention and also by a related failure to appreciate that it was necessary to view in context the occasions when the fishway had not been not operating. Further, for the reasons given, its view as to the meaning of condition 3 to the approval is, with respect, mistaken.
167 For completeness, I should add the following. Even if, contrary to the conclusion which I have reached, the Conservation Council ought to be regarded as having proved the pleaded contravention, if only on the particularised basis that the upstream device did not commence when the dam became operational, I should not, as a matter of discretion grant any injunctive relief. That is because, on the evidence I have preferred and taking the long term view, such periods when that device did not operate after December 2005 were attributable to what may aptly be described as transitory commissioning events. The influence of these events has passed. The weight of the evidence is that, as presently operated, the upstream device is suitable for the lungfish.
168 It follows that the application must be dismissed.
I certify that the preceding one hundred and sixty-eight (168) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.