2. What are the ‘Facts in Issue’? The Central Role of Relevance in Climate Litigation in Australia

The decision in Environment Council of Central Queensland Inc v Minister for the Environment and Water^[3] (the ‘Living Wonders’ case) provides reasons for three evidential rulings made in the context of two judicial review proceedings brought against the Minister for the Environment and Water. For context,^[4] and for those with limited knowledge regarding the Environmental Protection and Biodiversity Conservation Act 1999 (Cth), Jacqueline Peel’s case analysis offers a short but comprehensive overview of the judicial review proceedings.^[5]

One ground of the review was that the Minister’s decision not to revoke decisions enabling the expansion of coalmines in New South Wales was ‘affected by irrationality, was not logical or was unsupportable on the material before her’ (Living Wonders case, para. 3). The applicants challenged the Minister’s conclusion that she was not satisfied that the proposed action ‘will cause’ any net increase in global greenhouse gas emissions, and that if they did so, the increase would not be a substantial cause of adverse impacts on protected, World Heritage listed areas such as the Great Barrier Reef. The applicants argued that the ‘complexity of the variables, and the improbability of reasoning in this way’ undermined the Minister’s approach.

The applicants sought to support their arguments by reference to expert evidence, including an expert in modelling global scenarios to address the impacts of climate change. Importantly, this evidence had not been available to the Minister for the Environment when she made her decision. The respondent therefore objected, arguing that ‘the receipt of evidence that was not before a decision-maker in a judicial review proceeding is irrelevant and therefore inadmissible’.^[6] As the cited Waterford v Commonwealth case articulates, there is no error of law simply in making a wrong finding of fact. Therefore, an appellant cannot adduce new evidence to demonstrate an error of fact. However, McElwaine J noted that irrationality (as argued in the present case) presents an exception to this rule.^[7]

From [31]–[36], McElwaine J discusses whether it is open to him to receive the evidence as relevant. The following extracts contain interesting reflections on provisional relevance, expert evidence and judicial reviews:

[31] On the authorities that I have referred to, it is open to me to receive the evidence as relevant evidence pursuant to s 55 of the Evidence Act 1995 (Cth) if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in this proceeding. Conceptually, that gives rise to a difficulty: what is the fact in issue? This is not a case where I am required to find whether the Minister was or was not correct in forming the view that she did as the correct or preferable conclusion on the material before her: indeed it would be quite impermissible for me to do so as it would involve an excursion into the merits. The issue is whether the Minister’s reasoning is affected by legal unreasonableness or irrationality. That requires me to form a view about whether the Minister made a decision that no reasonable Minister would have made, if properly instructed as to the facts and the law.

…

[32] It seems to me that this is the most significant hurdle faced by the applicant on the admissibility question. When I raised this in argument, an answer provided by Mr Nekvapil is that a rational Minister, in making a decision that turns upon a substantial body of scientific material, cannot ignore the fact that this material does not allow for probabilistic assessments of outcomes in modelling the likely impacts of climate change, because there are simply far too many variables.

[33] I have concluded that the evidence of Dr Gidden should be received as provisionally relevant pursuant to s 57 of the Evidence Act because its relevance depends on my conclusion about the applicant’s argument that as a matter of construction, the Act did not permit the Minister to reason in the way that is impugned by ground 6 [the ground of review alleging irrationality]. In the event that the applicant’s contention is accepted, the evidence may rationally affect my assessment of legal unreasonableness or irrationality. [emphasis added]

Notably, at [34] McElwaine J rejected one expert, Ms Rachel Wilson, on relevance grounds, finding that her disagreement with a report that was before the Minister was not relevant to determining whether the Minister proceeded or concluded irrationally. As the judge noted, engaging in a resolution of competing opinions, which concerned energy market models, would risk sliding into an impermissible merits review.

This climate litigation case makes a key point about evidence law. It combines interesting reflections about the role of judicial review in climate cases, while at the same time offering a concise overview of the type of situation in which a judge might make a provisional finding of relevancy. The exclusion of Ms Wilson’s expert evidence is a further example of the links between relevancy and the facts in issue, with the judge’s determination of the nature of the dispute shaping his willingness to accept expert evidence.