Who Is the Law For? Drinking Water Governance and Climate Justice in Northern Australia

Many remote Australian communities regularly experience water contamination and supply failures, shortfalls which are often excused with localised factors like droughts or infrastructural damage. However, Kirsty Howey and Liam Grealy argue that this “archipelagic” water governance is symptomatic of a wider climate justice issue that privileges certain populations over others.

On 5-6 March in Mparntwe (Alice Springs), on the unceded traditional lands of the Central Arrernte people, a coalition of First Nations people and organisations, activists, researchers, health professionals, and social justice workers met to discuss climate justice for Northern Territory communities, and to workshop possible solutions. A statement was published at the end of the summit emphasising that climate solutions must be grounded in principles of justice and equity, and outlining a number of urgent priorities to achieve climate justice for Northern Territory communities.

A climate justice lens focuses attention on the historical and social genesis of climate change, examines its unevenly distributed impacts, and attempts to engage solutions that support those who have been traditionally marginalised and most affected (see Schlosberg and Collins 2014). The Housing for Health Incubator at the University of Sydney was honoured to present recent research which frames the drinking water legal regime in the Northern Territory – one that privileges certain populations over others – as a climate justice issue.

That safe and adequate drinking water is essential for life is a given. Yet Indigenous residents of remote NT communities have long been aware of the growing precarity of drinking water where they live. The NT has just suffered through two of its hottest and driest wet seasons on record, with aquifers running close to dry in some areas. A number of remote Indigenous communities, including Yuelamu, Yuendumu, Yarralin, Borroloola, and Kakadu’s largest homeland of Mudginberri, have experienced water contamination or supply problems in recent years. These impacts may be exacerbated as temperatures rise and rainfall patterns become more erratic.

Such events are typically narrated through their immediate causes – drying aquifers, algal blooms, failing treatment equipment, and corroding infrastructures – and prospective techno-fixes – sinking new bores, new water treatment facilities, groundwater surveys, and so on. Such explanations give little consideration to major forces that set the stage for water insecurity, including competing ‘consumptive uses’, such as by pastoralism and the extractive industries.

“Drying aquifers, algal blooms, failing treatment equipment, and corroding infrastructures […] Such explanations give little consideration to major forces that set the stage for water insecurity, including competing ‘consumptive uses’, such as by pastoralism and the extractive industries.”

While some attention has been given to water security through recent reforms to the Water Act 1992 (NT), prompted by the Scientific Inquiry into Hydraulic Fracturing in the NT, and the NT Government’s ongoing Water Regulatory Reform consultation process, this legislation has very limited geographic application in relation to drinking water. These discussions have also given little consideration to who is responsible for the provision of drinking water.

We therefore asked the question: if you live in a remote community, who is legally accountable for supplying you with safe and adequate drinking water? And if something goes wrong: who does the law say is responsible and must take action to fix it? The answer to this question led us to a quite different diagnosis of the problem: and to laws that do not tend to feature prominently in discussions about water justice.

The Water Supply and Sewerage Services Act 2000 (WSSSA) regulates the provision of public water supply in the NT, and requires that the provision of “water supply services” in “water supply licence areas” be licensed by the Utilities Commission, a government-established regulator which oversees essential services provision in the NT. Power and Water Corporation (PAWC) is the current and sole licensee, and is subject to a range of provisions regarding asset management plans, licence compliance reports, and service plans. In contrast with many other Australian jurisdictions, however, the NT has not set minimum standards for water supply (including water quality). Instead, the Department of Health and PAWC have entered into a Memorandum of Understanding that says that the Australian Drinking Water Guidelines “will be used as the peak reference” regarding drinking water quality. Further, this legislation only applies in 18 gazetted towns in the NT, including Darwin, Alice Springs, Katherine, and Tennant Creek, where the vast majority of the NT’s non-Indigenous population lives.

Outside these towns, and specifically in the 72 Indigenous communities, and roughly 500 remote outstations generally located on Aboriginal-owned land, water supply is neither licensed nor indeed regulated at all. A regime of water testing, incident reporting and response, and public reporting of drinking water quality in some of these places is outlined in the MOU referenced above – although in strict legal terms, this regime is unenforceable. In the vast majority of outstations or homelands, there is no systematised regime of water testing conducted by the authorities. The absence of legal requirements outside of towns in the NT means that failures to test and report water quality are often discovered in moments of crisis, where local residents have no alternatives.

We call this fragmented system of water governance “archipelagic” following Canadian geographer Karen Bakker. The NT is fragmented into multiple governance islands that are hierarchically differentiated.

Yet the challenges of infrastructural and service provision in remote places has not precluded other jurisdictions from establishing protections. South Australia’s Safe Drinking Water Act 2011, administered by the Department of Health, requires all suppliers of drinking water to be registered, to have approved risk management plans (including monitoring programs and incident protocols), to be subjected to regular audits, to report results, and to comply with the minimum water quality standards in the Australian Drinking Water Guidelines. In short, it makes drinking water providers legally accountable, uniformly, across South Australia.

We suggest that, heading into the 2020 Northern Territory general election, major parties work collaboratively with Indigenous communities and commit to passing a safe drinking water act that would guarantee adequate and potable drinking water for all residents. The NT government could also amend the Water Act to include a general power to reserve water for public supply purposes across the NT, and to prioritise public drinking water supply above other human uses.

When the next incident of water contamination surfaces, it is important that there are clear public standards for testing, reporting, and remediation with direct lines of legal accountability to residents. As a matter of climate justice, such legislated standards are one important means to protect drinking water for all NT residents, wherever they live.

Liam Grealy is the Housing for Health Incubator postdoctoral research fellow, in the Department of Gender and Cultural Studies at the University of Sydney. His Incubator research examines housing and infrastructure policies in northern Australia and southeast Louisiana.

Kirsty Howey is a PhD candidate in the Department of Gender and Cultural Studies at the University of Sydney. She is a former Chair of the Environmental Defenders Office (NT) and was a land rights and native title lawyer for a decade prior to commencing her studies.