Australian Court Allows Climate Evidence In Water Sharing Plan

On the 8th of June, the Land and Environment Court of New South Wales (NSW) admitted scientific findings on climate change to a legal review of a water sharing plan for the first time.

The case was submitted to the NSW Land and Environment Court by the Environmental Defenders Office (EDO) on behalf of the Nature Conservation Council on October 6th, 2022, as part of a review the presentation of climate evidence in a legal challenge to the validity of the Border Rivers Water Sharing Plan.  EDO lawyers had argued that when the plan was drawn up, the government of NSW had failed to consider future climate change.

In her judgement, Justice Pain agreed that expert evidence is required to understand the complexities of climate science, hydrology and freshwater ecology. The decision was welcomed by EDO’s lawyer Andres Kwan, who stated that this was a significant ruling, given that the admission of expert evidence of this kind is uncommon. However, he said, EDO had recently had a number of successes in ensuring that climate evidence is heard before the courts, creating an important legal precedent.

The respondents were the Minister for Water Property and Housing and the Minister for Energy and Environment. The respondents had argued that evidence and documents that were not part of the record of the original decision maker should not be admissible in subsequent judicial proceedings. Additionally, the respondents argued that in earlier decisions, Justice Pain had stated that expert evidence has to be reasonably required to resolve the issue in the proceedings, and that the experience of the court generally was that expert evidence was of little assistance.

Nevertheless, Justice Pain ruled that the climate evidence could be submitted. However, while the court is allowing the expert evidence to be heard, the admissibility of the evidence remains a matter for the trial judge.