Securing supply: governing drinking water in the Northern Territory

ABSTRACT

This article considers the spatial and material implications of drinking water regulation in the Northern Territory (NT) of Australia. Responding to water contamination and scarcity events in remote NT communities, we argue that the politico-bureaucratic edifice of uniform drinking water governance and service provision across the NT is a state-curated fiction. The article outlines the available legislative protections for drinking water supply in the NT, which include minimum quality standards, water allocation mechanisms, testing regimes, and so on. These are shown to vary significantly between geographic locations and we argue that this produces a racialised ‘archipelago’ of differentiated islands of drinking water governance (Bakker 2003. “Archipelagos and Networks: Urbanization and Water Privatization in the South.” The Geographical Journal 169 (4): 328–341). Using the Gulf country town of Borroloola as a case study, the article then examines the colonial and land rights bases of this spatial variegation, and its significance for drinking water infrastructure provision and remediation. In doing so, we consider how the entropic materialities of ageing infrastructures work to further confound effective drinking water regulations and their practical enactments. The article argues that it is crucial to understand the limits of drinking water regulation in the NT, in order to elucidate the racialised distribution of potential environmental harms, and to mitigate further toxic inheritances.

KEYWORDS:

• Water
• governance
• geography
• infrastructure
• law
• materiality

Acknowledgements

This work was supported by a Sydney Social Science and Humanities Advanced Research Centre and Marie Bashir Institute for Infectious Diseases and Biosecurity seed grant. We would like to thank two anonymous reviewers at Australian Geographer for their insights and Tess Lea for feedback on early drafts. We would also like to thank Billee McGinlay who designed the ‘Drinking Water Regulation in the Northern Territory’ map for the Housing for Health Incubator.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes on contributors

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 policy in northern Australia and southeast Louisiana. See www.hfhincubator.org.

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.

Notes

1 While the NT, like other states and territories, has legislative jurisdiction over water allocation and management, institutional arrangements in relation to water management are more complex than can be done justice in this article. Of note, the NT is a signatory to the 2004 COAG Intergovernmental Agreement on a National Water Initiative (NWI), which aims to create a national approach to water resource management where governments commit to prepare comprehensive water plans, expand trade in water rights and sustainable water use. Though foreshadowed, the NT has not fully implemented measures in the NWI (for example, there is no trade in water entitlements).

2 These include the ‘First-in-first-served’ Policy, the Northern Territory Water Allocation Planning Framework (the 80:20 Rule), the Strategic Aboriginal Water Reserve Policy Framework and the Darwin Rural Area Licensing Policy.

3 Australian law recognises that (where native title exists) this extends to a native title right to take and use water for domestic, social and cultural purposes. However, these rights are not equivalent to property rights in water and are subject to the state’s superior right to validly make and amend water management legislation and issue water licences/permits and construct facilities for services to the public (ss24HA and 24KA of the Native Title Act). Following the High Court’s decision in the Timber Creek case (Griffiths v Northern Territory of Australia [2016] FCA 900), any extinguishment as a consequence of such actions would likely give rise to a right of compensation, which may give native title holders leverage with respect to negotiating future water governance arrangements, although any such claims are at this stage hypothetical.

4 Australia has ratified the International Covenant on Economic, Cultural, and Social Rights, which recognises the universal right to an adequate standard of living, including food, water and housing. To the extent this implies a universal right to adequate, clean and sufficient drinking water, it has not been enshrined in Australian legislation. However, Australian anti-discrimination laws may impute a right of non-discrimination in relation to access to drinking water.

5 Until November 2018 mining and petroleum activities were exempt from the Water Act’s licensing requirements. Removing this exemption was one of the recommendations of The Scientific Inquiry into Hydraulic Fracturing in the Northern Territory (Pepper 2018).

6 Under the Water Act (S90), license applications are considered against criteria such as the availability of the water resource and the current and future demand for water for domestic purposes. It is not clear how these criteria are assessed given a proportion of water extraction is exempt from licensing and therefore unknown to authorities.

7 ‘Water supply services’ means supplying water to paying customers (including operating water supply infrastructure and distribution infrastructure) and includes retailing water supply services (S4).

8 Safe drinking water legislation exists in South Australia (Safe Drinking Water Act 2011), Victoria (Safe Drinking Water Act 2003), NSW (Water Industry Competition Act 2005) and Queensland (Water Supply [Safety and Reliability] Act 2008).

9 Aboriginal land is held as inalienable fee simple title by Aboriginal land trusts, administered on behalf of traditional Aboriginal owners by Northern Territory Aboriginal land councils. Approximately half of the land in the NT is owned under the ALRA. Land councils are not tasked with essential service provision responsibility under the ALRA, although they control access to Aboriginal land. Land council functions include to negotiate and facilitate the grant of property interests (including leases and licences to government entities) and to grant permits to enter Aboriginal land. However, the ALRA does not displace the legislative jurisdiction of the NT Parliament, including under the Water Act or (should water supply licence areas be extended to Aboriginal land) the WSSS Act.

10 Since Figure 2 was published in November 2019, two new Water Allocation Plans have been declared for Ti Tree and for the Oolloo Dolostone Aquifer.

11 64 of the 72 communities are located on Aboriginal land. IES also services 66 outstations.

12 540 of the 612 outstations are located on Aboriginal land.

13 We note that the terminology ‘town camps’ does not reflect the permanence and stability of such living areas, which is better reflected by the description of ‘community living areas’. This article uses ‘town camps’ as the most commonly used terminology by government and utility providers.

14 The High Court’s recognition of native title in Australia in its 1992 Mabo decision and subsequent Native Title Act 1993 enabled traditional owners to claim in 2003 that native title existed within the Borroloola township. See Rrrumburriya Borroloola Claim Group v Northern Territory [2016] FCA 776; 255 FCR 228; 339 ALR 98. As noted in footnote 3, while these rights include a right to take and use water for domestic, social and cultural purposes, this is effectively subordinate to superior state rights in relation to water allocation/planning and public supply.