NSW Government Faces Legal Action Over Murray-Darling Water Plan

First case of its kind in Australia

5 Dec 2021 by The Water Diplomat
SYDNEY, Australia

The Nature Conservation Council of New South Wales (NSW), Australia, has started legal proceedings to have the Border Rivers Water Sharing Plan 2021 ruled invalid, alleging it was made without properly considering the future impacts of climate change.

“As a consequence,” says Chris Gambian, Nature Conservation Council Chief Executive, “too much water has been allocated for extraction and too little for the environment and downstream communities on the Barwon and Darling-Barka Rivers.”

The case is the first of its kind in Australia – and possibly the world. The action comes after whole sections of the river system have completely dried up.

“The Menindee Lakes until recently were a dustbowl and the Macquarie Marshes and other wetlands across the state are on the brink of ecological collapse,” continued Gambian.

“This is a challenge for public administrators right now, and we believe the NSW Government has failed in its duty to meet that challenge. Climate change is not some abstract phenomenon that may occur in the distant future. River communities in NSW are bearing the brunt of that change every day, right now.”

Legal proceedings are being taken against the Water Minister Melinda Pavey, who approved the plan, and the Environment Minister Matt Kean, who provided concurrence.

Emma Carmody, the lawyer acting on behalf of the Nature Conservation Council, says that her client alleges that, by relying on historical climate data for the catchment, NSW Government ministers have failed to comply with their own laws.

“Our client will ask the court to find that the Border Rivers Water Sharing Plan is invalid and must be replaced by a lawful plan,” said Carmody.

If the case is successful, it will likely mean that future water sharing plans will have to take climate change into account, in particular in relation to the setting of catchment-wide extraction limits and environmental flow rules.

“Climate models used to predict climate change and its impacts are sufficiently robust and we claim they must be taken into account in determining the allocation of water,” added Gambian.

“If we fail to keep our rivers alive as a first priority, it doesn’t really matter what our second priority is. We will have lost the fight.”