Developing an Indicant: An Epistemic Landform, Agriculture &amp; Water Resource Assessment to help Courts determine Land-use Conflicts
Creators: name: Sutherland, Neil
Publisher: name: The Australian National University
Year: 2023

description: Litigated land-use conflicts are expensive, lengthy, and complex. They are mostly highly technical and courts often seek opinion-based help from experts. Whilst all experts must comply with rigid rules for preparing evidence, they must also collect adequate data on which to base their opinions. Here there is an inherent tension: even in specialist environmental jurisdictions, courts might be unable to recognise the suite and quality of data required to build a sound opinion. In the absence of a guide to the required data and its quality, decisions risk being influenced by the theatre of the presentation - the performance, rather than the epistemic substance of the underpinning assumptions, information, data and assessments. This work examines the hypothesis that a systematic Indicant or guide to the critical measures and attributes relating to the assessment of landform, agricultural and water resources will improve the efficiency and reliability of court decisions in land-use conflicts. This research, as a first step in providing courts, adjudicators or any other assessors with a scientifically-based Indicant system to: i. identify critical indicators and attributes relating to the assessment of landform, agricultural and water resources, ii. enunciate critical indicators and attributes of data sufficiency, so that evidence can achieve minimum standards of objectivity, sufficiency, completeness and analysis, iii. employ those indicators and attributes to objectively compare the substance of assumptions, information, data and assessments in five land-use conflicts between 1999 and 2020 in the Australian jurisdictions of Queensland and New South Wales; and iv. rank evidence. To test the thesis and validate the Indicant, four recognised court experts together with a third-year undergraduate student in Agricultural Science were briefed with case materials and asked to use the Indicant. These materials were from three additional legal matters between 2011 and 2017, also in Queensland and New South Wales. The results indicate that, for all eight land-use conflicts, there were shortfalls in the datasets for all participating parties. Statistical analyses were completed qualitatively, through a User Engagement Survey and quantitatively, using descriptive statistics and Kendall's Coefficient of Concordance (W). Within individual areas of expertise, the validation results were not statistically significant. However, the summed results indicated that in all three validation matters, all four validators were in strong agreement under all six conditions (W = 1, p (less than) .05, df = 1.) The p-value in all three data sets (p (less than) .05) demonstrated that there was a significant statistical difference amongst the ranked scores. What this means is that all validators came to the same outcome irrespective of their areas of expertise. This means the Indicant dominates the assessment not the assessor, The research has shown that: i. an Indicant, using critical indicators and attributes in the areas of expertise tested, can objectively compare the assumptions, information, data and assessments underpinning expert evidence, ii. the comparisons may be ranked iii. because the undergraduate student validator yielded the same outcome as the experts, the ranking can be used by others with limited expertise; and. iv. use of the Indicant would decrease the time involved in court assessments of expert opinions in land-use conflict cases. The implications of such an Indicant for the use of court-appointed experts, concurrent evidence and the Joint Expert Process are explored and discussed. The Indicant's limitations, identified in the statistical analysis and during the validation process, are documented together with issues for future research.