A groundbreaking case has been filed against the New South Wales government seeking to invalidate an important water sharing plan in the Murray-Darling basin, on the grounds that decision-makers have failed to properly consider climate change.
The case, which is the first of its kind in the world, will be watched closely by countries such as the US which are also trying to grapple with allocating scarce water resources between agriculture and the environment, in a world that is being affected by climate change.
It could also, for the first time, force states and the Murray-Darling Basin Authority to deal with the consequences of an expected 40% fall in inflows into the river system that nurtures Australia’s major food bowl.
“Our rivers and the ecosystems they support are in crisis,” said Chris Gambian, the chief executive of the Nature Conservation Council of NSW, the environmental group bringing the case.
“We are on the frontline of climate change impacts, and we say the government has an absolute duty to ensure the allocation of water ensures the health of the environment. If keeping the river alive as our first priority isn’t met, it doesn’t really matter what our second priority is.”
The NSW NCC is represented by the Environmental Defenders Office (EDO), which has filed a case in the NSW land and environment court challenging the validity of the Border Rivers water sharing plan (WSP).
One of Australia’s best-known silks Bret Walker SC – who chaired the South Australian royal commission into the Murray-Darling basin plan – has agreed to represent the environmental group.
The Border Rivers catchment sits along the NSW-Queensland border and includes the Macintyre and Severn rivers. The catchment is home to endangered species such as the eel-tailed catfish, Australian painted snipe and curlew sandpiper.
Both the NSW water minister, Melinda Pavey, who approved the WSP and the NSW environment minister, Matt Kean, who provided concurrence, are named as respondents.
“Our client alleges that under their own laws, NSW government ministers are required to properly consider climate change, including future climate change, when drawing up a water sharing plan,” the managing lawyer at the Environmental Defenders Office, Emma Carmody, said.
“By relying on historical climate data for the catchment, we argue that they have failed to do this, including in relation to the calculation of the catchment-wide limit on extractions from the river.”
She said the NCC would ask the court to look at the impacts beyond the Border Rivers, including surrounding flood plains, downstream rivers and communities, notably the Barwon-Darling/Barka River. This is because some of its flows come from the Border Rivers catchment.
“Our client will further argue that the rights of children and future generations to enjoy and benefit from healthy, functioning river systems requires the minister to properly consider climate change and to devise a water sharing plan that reflects the likelihood of a hotter, drier future,” Carmody said.
The lawyer said there was ample evidence the rivers and flood plains of the northern Murray-Darling basin were over-extracted.
“This is now being exacerbated by climate change, which is making it hotter and drier,” she said. “We can’t afford to make decisions about our precious water resources which ignore this reality. Indeed, our client alleges that the law requires it.”
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Gambian said climate change was not some abstract phenomenon that may occur in the future.
“It is happening now, and our river communities in NSW are feeling the brunt of it every day,” he said.
“Just 18 months ago numerous NSW towns were entirely dependent on bore water or water that had to be trucked in. Other towns came perilously close to running out of water. This is a challenge for public administrators right now. We believe the NSW government failed in their duty to meet that challenge.”
The NCC wants the court to find the plan is invalid and force the government to make a new one.
The EDO says the government has extensive climate change modelling which is referred to in the recent NSW water strategy, but it did not use that work when making the Border Rivers water sharing plan.
The case could have a major impact on all future water sharing plans in the Murray-Darling. Comment has been sought from the water minister and the environment minister.
Courts have become increasingly willing to insist that policymakers take account of climate change and activities that contribute to it.
In 2019 in the Rocky Hill case, the NSW land and environment court ruled planning authorities could block mine developments based on emissions from coal extracted by the project.
In response, the NSW government announced plans to limit the powers of the Independent Planning Commission and said it would legislate to stop consideration of scope 3 emissions for mining projects.
In August 2021, in a case brought by a group of bushfire survivors, a NSW court compelled the state Environment Protection Authority to take stronger action to reduce greenhouse gas emissions.