In July 2010, the United Nations General Assembly explicitly recognised the human right to water and sanitation and acknowledged that clean drinking water and sanitation are essential to the realisation of all human rights.

“The takeaway there is that it is a relatively newly recognised right at international law. And essentially, what was recognised there was that everyone has a right to a sufficient quantity of safe, affordable, and accessible water to meet their basic needs and that governments have obligations to protect, respect, and fulfil this right,” Dr Clark said.

“But in the detail, when we talk about basic needs, the obvious parts are things like drinking and cooking and washing, but recognised that there is also the right to water for cultural purposes as well.

“So, you might think about religious ceremonies, but also a lot of cultures, and this is particularly the case for First Nations cultures, have really significant relationships with water. And that’s probably something that wasn’t initially considered in detail in those sorts of first early years of recognising the human right to water, but has really come to the forefront perhaps in the last few years, 2017 being a bit of a landmark shift in that respect.”

From a legal perspective, Dr Clark said it’s implied from the International Covenant on Economic, Social, and Cultural Rights that the right to water is subject to the standard of progressive realisation.

This recognises the fact that sometimes, limited resources will affect people’s capacity or a country’s capacity to enable the immediate realisation or protection of rights, and it imposes a standard of progressive realisation.

“Now, that might seem as though they’re just saying that it’s not enforceable and that it’s just saying the nice things and it goes off into the distance. But over time, a lot of work has been done to create a real jurisprudence around the meaning of progressive realisation,” she noted.

VIEW ALL

“What that means is that first of all, progressive realisation means that you need to keep going forward. So, retrogressive steps or backwards steps are considered to be a breach in the same way that you could say censorship being a breach of freedom of expression, for example.

“Additionally, there are immediate implications. So, things like non-discrimination are really important in relation to the standard of progressive realisation. And so, in relation to the right to water, what this means is that while governments may legitimately, due to resource constraints or other things that they’re dealing with, not be able to immediately ensure everybody is supplied with really cheap or free water at really high levels of availability.

“It does mean that they’re obliged to protect people from contamination of their water sources, and it does mean that things like water disconnections and cut-offs could be considered to be a breach, and it does mean that they should be prioritising and working towards increasing people’s access, building the infrastructure, creating the right sorts of subsidy levels, creating the right sorts of regulation.”

One of the really hot-button issues in the first five years of the human right to water being recognised and definitely in the lead-up to its recognition was the issue of privatisation, according to Dr Clark.

“It became a bigger issue than it was a reality on the ground, it has to be said, but it stood in for a whole bunch of ideas around the role of government in this realisation,” she said.

“The theory was that the private sector could do a better job and that the private sector had the money to come in and actually fund that, whereas it wasn’t going to happen throughout the public sector. It has to be said there’s some truth to that, but the concerns that were raised and the concerns that were very much borne out was that the private sector is motivated by profit and access to water is fundamental,” Dr Clark noted.

“For the poorest people, they don’t have any flexibility. There’s no elasticity in their capacity to pay, and so if you charge more, they will go without or they will go without something else such as food or medicine. So, there were some fairly controversial issues that occurred in some of those early privatisations and some big bankruptcies and things of that nature. This fed into those initial debates around the right to water and, well, what’s the role of government if it does privatise?

“Some people have argued that if you recognise the right to water, you can’t privatise your water system because it’s a breach to do that. You’re no longer controlling it. But at the UN level, what was eventually negotiated and recognised is that if you do, you haven’t outsourced your obligations. So, the obligation to regulate, the obligation to ensure that the right policy settings that are in place, to ensure that subsidies are working properly remains with the government, even if they’re using the private sector as part of that delivery.”

In the Australian context, Dr Clark noted it was a little bit different as Australia doesn’t have a human rights charter as everybody would know at the Commonwealth level.

“Even the extent that we do focus on human rights, say in terms of discourse, in terms of our state and territory human rights act, although that’s changing a little, and in terms of the Commonwealth law we do have like anti-discrimination law, it’s very focused on civil and political rights,” she said.

“So, the human right to water doesn’t get much attention in Australia at any of those levels in terms of discourse or in terms of law. There hasn’t been much that you could say in terms of the real impact of international law on expectation, legitimacy, or in fact, law in Australia.”

Dr Clark said the previous discourse on this issue had moved very slowly given its lesser impact on the majority of Australians.

“In Australia, the real issue in relation to the human right to water is borne by indigenous communities. So, we do see many indigenous communities in Australia that lack access to safe water today,” she said,

“Some of these are indeed remote communities and small, but this also includes Walgett, for example, which is a town of over 6,000 people near the Barwon and Namoi Rivers. And 43 per cent of that population is indigenous, mostly Kamilaroi, and for many years now, they’ve experienced water shortages and water contamination issues.

“We’ve seen some real failures of regulation, we’ve seen the corrupting influence of big business in relation to extraction, and we’ve seen a plan that was made relatively recently that deliberately omitted to calculate the impact of climate change on water availability for things like environmental flow or for town access such as Walgett. So, it’s a real representation of some of those issues that we see in relation to failures of water governance in Australia.”

“It’s also the case that First Nations people control less than 1 per cent, I think it’s less than 0.1 per cent, of the water in the Murray-Darling basin. We are actually seeing an increasing issue of dispossession and of disempowerment of indigenous communities in relation to water in Australia. So really, I think the reason that we’re not seeing sufficient attention to this issue is that it forms part of another issue that doesn’t get enough attention and that doesn’t have enough political power.”

Dr Clark observed that historically, the right to water hadn’t been viewed through a relational human rights lens, but Australia’s increased susceptibility to fires and floods in recent years has increased the level of consciousness on the issue.

“I think we haven’t viewed it through a human rights lens, and I also think that we suffer from a colonial relationship with the land. So, we see it as a place to extract resources and that we float on top of and control and dominate. All of those things lead to this idea of almost that we’re a little bit at war with those natural forces, but that means that no one’s responsible as well,” Dr Clark explained.

“I do think that’s changing. I think it’s changing partly because these issues are being exacerbated by climate change. It’s much harder to run with it when you see the sorts of devastating floods that occurred in Brisbane and Lismore recently, in Lismore, just a few years after another devastating flood that was supposed to be a one in a hundred.

“You can start to see this idea of if this is the new normal, this is actually not something that we can continue to cope with, and there’s been a shift in consciousness because of the impacts of climate change. I think there’s been a shift in consciousness as we become more globalised and we do tap into changes in human rights norms. You’re seeing socioeconomic rights continue to gain traction at the international level and become more normalised in Australia.

“We’re starting to see that even in law. So, we do have three human rights acts in Australia. There’s Queensland, Victoria, and the ACT, and the newest one, Queensland, has a number of socioeconomic rights. ACT also has some, and this year, the ACT is debating, and it has a private member’s bill before the legislative assembly, to include the right to a healthy environment. And it’s already discussed in relation to this right that this would include things like rivers.

“So, this idea of the need to shift our relationship and to view this through a human rights lens, but not as an individualistic, competitive human rights lens but a relational human rights lens, is definitely entering law and discourse in Australia.”

The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with Dr Cristy Clark, click below: