This is a guest post by Liam Grealy and Kirsty Howey*
On 19 April 2018, the Northern Territory (NT) Department of Health (DOH) issued a precautionary drinking water advice to Garawa 1 and Garawa 2 camps in the remote NT township of Borroloola.
Routine testing had revealed elevated lead and manganese in the water supply above safe levels. Residents were told not to drink, cook, or brush their teeth with the water, while assured that the contamination was only a short-term problem. The issue proved persistent, however, with the precautionary advice for Garawa 1 not lifted until 15 June 2018.
Although still not publicly confirmed, brass fittings in the decades-old reticulated piping connecting the water supply to the houses in the town camps were attributed responsibility, with the acute problem resolved by a combination of water flushing and spot replacement of fittings at the most stubborn points. It was, according to the authorities, a minor incident.
But over the past two years there have been multiple incidences of water under-supply or contamination in remote Aboriginal communities in the NT – at Yarralin, Ngukkur, Yuelamu and elsewhere. These incidents collectively illustrate the precarity of reliable drinking water supply in these places, where people’s health, as elsewhere, depends on the availability of water that is safe to drink, of adequate supply, and distributable to homes.
As the world continues to heat and water supply becomes more vulnerable, these impacts may become more pronounced.
Prompted by these incidents, and the links between housing, drinking water, and human health, the Housing for Health Incubator has asked the question: what legal protections and governance regimes do exist for drinking water in the NT?
To summarise, under the legislation that applies to drinking water in the NT, there is no general provision or power to reserve water for current and future drinking water supply against other uses. Further, there are no mandated minimum standards set for water quality across the NT. Finally, different legal regimes govern how drinking water is supplied depending on residence in the NT, privileging urban and town populations over Indigenous communities and outstations located on Aboriginal land.
The Water Act 1992 (NT), which deals with the allocation, management, and assessment of water resources across the NT, has only fragmented application with respect to drinking water. Allocations for drinking water do exist in declared Water Control Districts where a Water Allocation Plan has been finalised. However these areas currently account for a small proportion of the NT’s landmass, focused on major population centres, such as Katherine.
There is no legislative power to reserve water for current and future public water, meaning that an adequate drinking water supply is not reserved to residents across much of the NT.
Further, the NT has not set minimum standards for water quality anywhere in the NT, despite there being power to do so in the Water Act (s73), the Water Supply and Sewerage Supply Act 2000 (NT) (s45), and the Public and Environmental Health Act 2011 (NT) (s133).
Instead, a now expired (as of 2015) but still apparently applied Memorandum of Understanding (MOU) between the DOH and Power and Water Corporation (PAWC) states that while “no minimum standards for drinking water quality have been set”, the Australian Drinking Water Guidelines (ADWG) “will be used as the peak reference”.
A regime of water testing, incident reporting and response, and public reporting of drinking water quality is outlined in this MOU – although in strict legal terms, this regime is unenforceable and compliance appears inconsistent. For example, despite a requirement that annual drinking water quality reports be published annually, as of May 2019 no drinking water quality report for Indigenous communities located on Aboriginal land has been published since 2016. Moreover, it is unclear which government agency is directly answerable to residents for water quality issues under these arrangements.
Finally, the Water Supply and Sewerage Supply Act 2000 (NT) regulates the provision of public water supply in NT “water supply licence areas”. Power and Water Corporation (PAWC) is licensed and regulated by the Utilities Commission under this legislation.
However, it currently only applies in the NT’s 18 gazetted towns. For the 72 larger Indigenous communities and 66 of the approximately 500 outstations located on Aboriginal land under the Land Rights Act, the Water Supply and Sewerage Supply Act does not apply.
They are serviced by Indigenous Essential Services Pty Ltd (IES), a not-for-profit subsidiary of PAWC. Unlike PAWC, IES is a private company and its operational structure is relatively opaque, with no legislation mandating licensing of its operations or particular levels of service to residents against which IES can be held accountable.
In the 450 or so other outstations on Aboriginal land, there is no regulation and neither IES nor PAWC operate. Water infrastructure in these areas appears to be maintained either privately, via funding provided to outstation resource centres, or not at all.
To be clear, the absence of legislated protections for standards, duties, accountability, and transparency does not mean PWC and IES are not testing the water in areas where they operate. In their radio interviews with ABC Darwin last week, DOH and PAWC noted this, while emphasising the difficulty of supplying safe drinking water across the NT.
However, in South Australia, which experiences many of the same geographic, geological, and infrastructural challenges in supplying drinking water, guarantees for water supply and minimum water quality are contained in the Safe Drinking Water Act. There is thus an alternative to the patchwork of differentiated forms of attention evident in the NT, which would require that all drinking water providers be registered and comply with minimum standards.
The Incubator is advocating for the introduction of a similar Safe Drinking Water Act in the NT. 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. Such legislated standards are necessary to reduce the likelihood of such incidences and to protect drinking water for all residents of the NT.
*Liam Grealy is a postdoctoral fellow at the Housing for Health Incubator at Sydney University. Kirsty Howey is a PhD Candidate at the University of Sydney.