Some people might argue that this fish lift gets the lungfish up and over, but any queuing fish have to stick around for the next lift, which could take up to an hour, if it's working and if the little ones don't get scoffed by bigger fish while they’re waiting.
Photo © Jim Tait

Update by Lee K. Curtis and Emma-Kate Currie

On October 7, 2008 the Wide Bay Burnett Conservation Council (WBBCC) began legal proceedings against the operators of the Paradise Dam, Burnett Water Pty Ltd (now controlled by Sunwater Ltd, a corporate entity of the Queensland Government). WBBCC believed that the dam’s fish ladder was inadequate and a potential threat to the wellbeing and survival of the threatened lungfish. WBBCC's concerns were confirmed after the Federal Environment Department undertook an audit of the dam to determine if it was complying with the approval conditions under the Environment Protection and Biodiversity Conservation Act 1999 for the Queensland Lungfish. The audit found the dam to have a ‘partial compliance’ rating. WBBCC believed this represented a contravention of the EPBC Act conditions and sought legal advice, which confirmed that the Conservation Council had grounds to file legal action in the Federal Court.

During the trial it was revealed that between 2005 and 2009 only three juvenile lungfish had succeeded in using the upstream component of the fish transfer device to migrate upstream of the dam wall and none had used the downstream fish transfer device resulting in the complete inability of the population of lungfish upstream of the dam to migrate downstream for breeding and feeding purposes.

The fish transfer device consists of two components. The 'downstream' device is a vertical slot in the storage side of the dam wall, situated at 67m EL, which is connected to an internal channel that deposits the fish in the river at the bottom of the dam. The 'upstream' device consists of a mechanical cage, known as the 'hopper', which is electronically winched up the dam wall on cables and is lowered into the dam to release the fish. The fish are attracted to the device with flows that are released from the irrigation channel and enter the hopper via an inlet channel.

On March 4, 2011, Justice John Logan dismissed the Conservation Council's application in the Federal Court and ruled in favor of Burnett Water Pty Ltd. In the ruling, Justice Logan finds the fish transfer device to be suitable for the threatened Queensland Lungfish, based upon evidence provided by expert witnesses for Burnett Water Pty Ltd. These experts claim that it is not relevant whether the devices provide fish passage or not, because the Lungfish is still able to migrate further upstream or downstream (depending on which side of the dam wall the fish is located) to breed and feed.

On March 22 the legal parties returned to court to deal with the issue of legal costs. Burnett Water Pty Ltd made an application to the court asking for costs incurred during the trial. Justice Logan returned a decision on June 10 and ruled that WBBCC must pay Burnett Water Pty Ltd $1,040,031.50. The Conservation Council is now awaiting the order to be served upon them and expects to be involuntarily wound up as an Incorporated Association due to the inability to meet the costs order.

After filing the legal action, WBBCC discovered through a Right of Information application lodged in late 2010, that 61 lungfish were destroyed during the March and September spills at Paradise Dam in 2010. Further to this information, Queensland's Environment Minister, Kate Jones, confirmed to WBBCC on March 4 2011, that a total of 117 Lungfish were killed during the March and September spills. It is assumed that the Lungfish were destroyed after being swept over the stepped spillway constructed at Paradise Dam. The spillway consists of 62 concrete steps which the Conservation Council has nicknamed 'The Shredder'. The 117 Lungfish fatalities do not include the extreme spill event during the floods of January 2011. The Conservation Council is awaiting confirmation from the Department of Environment and Resource Management on the number of fatalities from that event.

Due to the fact that the Federal Court has ruled the Fish Transfer Device at Paradise Dam to be 'suitable', the Conservation Council will make no further comment on the operation of the device.

While Justice Logan's decision was disappointing to the WBBCC and its many supporters who have for many years worked to protect the Lungfish in the Burnett River, the Paradise Dam court case effectively brought to light the importance of the survival of the Federally listed threatened species and the risks the species face from major water infrastructure and impoundments. The case may have influenced the then Federal Environment Minister, Peter Garrett's decision to veto the Traveston Crossing Dam because it posed 'an unacceptable risk to threatened species such as the Queensland lungfish.'

Why all the fuss about a fish?

Besides the fact that it has been around for 200 million years, the Australian Lungfish (Neoceratodus forsteri) is truly a 'living fossil', the longest surviving vertebrate species on this planet. In the words of Professor Jean Joss, Australia’s primary lungfish expert, '…the Australian lungfish provides the only opportunity to study the development and physiology of the aquatic predecessor of all land vertebrates – including ourselves. Its significance cannot be overstated. Australia is the custodian of the source of this invaluable library of information for the rest of the world.'

The Australian lungfish, previously more widespread throughout the continent, is now restricted to the Mary and Burnett River systems, the latter of which used to offer the most suitable spawning sites. Despite having survived this long, and boasting a life span of 80 to 100 years, the Australian lungfish takes 15 to 20 years to reach maturity and is very picky when it comes to the conditions under which it will spawn. According to Prof Joss, the lungfish is faithful to its spawning sites, 'favouring shallow sand banks with dense weed mats, such as those found on the Burnett River.'

Since the construction of the Paradise Dam, these favoured sites have been flooded on several occasions and have also undergone permanent change. As a result, the faithful lungfish return every year but do not spawn and reabsorb their gametes because the conditions are no longer acceptable to them.

The ruling of the legal case may have been the opposite of what the Conservation Council and the broader community had hoped for, but it will leave a lasting impression in legal text books across Australia. It was a test case and a very unique one at that. It showed the nation that it is possible for a not-for-profit group to take the big league to court, they may not have won but they have increased the awareness of our very own living fossil at the cost of their own organisation because that is what conservationists do.

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