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The human right to water

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Matt Smith:

In the Western world we take water for granted. We have it on demand from a tap, we buy it in bottles which cost more per litre than petrol, but it isn't the same everywhere. I'm Matt Smith and you're listening to a La Trobe University podcast. My guest today is Dr Francine Rochford, from the School of Law at La Trobe University. She's today to explain the tricky legal side of use and ownership of water.

Francine Rochford:

It really does depend on where you are in an economic state of development. As you say, in most affluent Western civilisations, you are talking about reticulated water systems where most of your social and domestic needs are met. But your primary need for water to drink is second only to the need for air. If you then look a little bit further and look at food production, water is integral to all food production, so you've got drinking and eating reliant on water. You also have what the UN considers one of the basic human rights and is contiguous to rights of dignity, questions of hygiene are usually reliant on clean water, although not necessarily potable water. You also then have the right to wash your clothing and all of those other ancillary rights and of course if you are getting into a relatively rich water environment, you also have recreational rights, recreational uses of water. So, it's difficult to think of a situation in which water isn't an absolutely human right. It's allied to the right to life, to dignity and to carrying on all of our economic activities.

Matt Smith:

Has the Western world become desensitised then to the rights of water and is there a lack of understanding because of our easy access to it?

Francine Rochford:

I don't think you can make that generalisation. Certainly in urban areas, up until the last five years, even areas such as Bendigo, which you would normally think of as a rural city, have easy access, but certainly the limitations on water access in rural communities in the whole of Australia are very well understood. The constitutional conventions in the 1890s were very heavily premised on the problems of water supply security. There were arguments even then very similar to the arguments that were going on prior to this common flood period, about access to water between states and between communities. The consciousness of lack of water is very, very strong in rural communities. There are people who think of very little else because their capacity to make an economic future for themselves depends on their access to reliable water.

Matt Smith:

You can own a piece of land that has a river but you can't own the water that flows through it. So what sort of considerations are taken into account to sort out the use of water.

Francine Rochford:

The ownership of what they call the riparian right to water when you are the owner of land contiguous to a river is an English Common Law concept which is probably itself derived primarily from the Roman law. In Australia there was some idea of a riparian right to water but very early on it was acknowledged that the Australian continent, being so much drier than the English continent, couldn't sustain a riparian system. So in Victoria, at the outset, and later in the other states, the state assumed control of all water in a waterway. That was the work of Deakin. He went over to the western United States, which have a very similar geography and climate to the Murray-Darling Basin in Australia, and had a look at the solutions to the water situations that they had developed over there. And the riparian system had been adopted in the eastern states of the United States, because they're relatively water rich, but in the western states you have a very similar climate to Australia, very large problems with water security and they had developed their own system of prior appropriation, which is heavily reliant on judicial decision. And he came back to Australia and said, there is no way that we would want to develop a system like that. We want to develop a system which minimises the input of law and lawyers. So, in Victoria we have a system whereby water in its running state, is owned by the state, and the state then licenses the extractions from those waterways. Of course, now we also have state ownership of underground water and under the COAG arrangements, we also have a cap on any further extractions. The big problem I suppose we've got now is what to do and how to manage flood plains, because of course we want to maintain flood plains as much as possible, but the extraction of, or interception of flood plain flows is quite difficult to measure, so it really depends on where the water is. If it's in a waterway, and sometimes in Australia that's quite difficult to work out, because sometimes water flows in an ephemeral creek and it will come and go, but if your waterway is defined, then the water in it belongs to the state and you can't access it except for minimal stock and domestic use, as a matter of right.

Matt Smith:

Now, it's getting into a bit diplomatic areas here, but what about with a river like the Nile, where it's a crucial water source to a number of countries?

Francine Rochford:

It's very interesting because co-riparian states and communities along some of these very important water sources like the Nile have led in fact to problem solving which is better in the instance of water than it is in a lot of other instances, because water is so important to life. So for instance, Israel and Palestine are more likely to reach consensus on water, because the outcome of failing to reach a consensus is catastrophic. There are international laws dealing with trans-boundary water conflicts. There is an international common law dealing with trans-boundary water conflicts, and of course there is a growing scholarship in relation to this area, because there are some vulnerabilities, but they are primarily economic ones, so you're basically dealing with problems where one country has a very well developed economy and has the capacity to deal with water extraction greater than say, a downstream community. So you might find one country has the capacity to dam or to divert water, which has an impact downstream where they are only developing that capacity. So it's really a political, a social and an economic question, as well as a legal question. This has been one of the areas where people do have to learn to deal with the problem. There are multiple conventions, bilateral agreements and so on between countries with trans-boundary water issues, even down to the Colorado River in the United States and Mexico – they have agreements between countries as to how much of the flow is to go downstream. The United States can't capture the entire Colorado River and prevent Mexico from getting the flow, but the other issue in relation to that is, of course, the infrastructure may be down to one economic community's investment. So America has the money to build a Hoover Dam and a Lake Mead, and that flattens out the water shortage problem. Mexico also gets the benefit of that reserved water. That's an issue between Australian states as well. If you look at South Australia for instance which has very little in the way of its own water reservoirs, it has the benefit of the huge reservoirs funded by Victoria and New South Wales. All of these matters have to be dealt with inter-governmental agreements and that's been the case right from the early 1900s. There's been a River Murray agreement between the states of Australia in relation to apportioning the costs and the maintenance, and the construction of, these large reservoirs, such as the Hume and Eildon, Dartmouth, those sorts of things.

Matt Smith:

It sounds like that water could also be used as a bargaining chip, particularly if you're upstream then.

Francine Rochford:

Absolutely. One of the problems that brought on the centralisation of water resources in the new Water Act 2007, the Federal Water Act, was the fact that some of the upstream states were consistently not complying with the cap on extractions, and the reason for that was the perfectly sound argument from their perspective, that they didn't have the economic development. They hadn't developed the extraction of water to the same degree that New South Wales and to a slightly less extent, Victoria, had. In other words, New South Wales had already over-extracted, created these economic opportunities, and because the cap was an historical figure, Queensland hadn't had the opportunity to do the same thing. And that's a problem from the perspective of developing countries as well, and it's a very common problem when it comes to economic discourse. Who are you to say that I am not to develop my water resources, or my riparian rights for the benefit of my community, just because you've over-extracted yours in the past?

Matt Smith:

So, is water a valuable commodity for trade?

Francine Rochford:

The actual trade in water itself is relatively minimal. There are some instances, Canada for instance, trades water with the United States – in fact, it doesn't have a choice because under the various trade treaties, they can't really restrict trade in water once it's been identified as a commodity. So there is the capacity to trade water downstream in a river system, but water itself is very heavy. The carbon cost of trading actual water is problematic. There is a concept called "virtual water" and that is the water which has been encapsulated in other economic goods, so this figure is used when we talk about exporting cattle for instance, because there are figures for how many litres of water it takes to create a kilogram of beef, or wheat, or rice. In terms of the global trade in water, there is that physical problem. Of course, trade in water between individual farmers, or between states on a single river system, is not only possible, but is actually happening all the time in Australia. It's happening to a lesser extent in other countries. We've managed to create a market which is, depending on your perception, the envy or the terror of the rest of the world. I mean, we are considered the great experiment in water reform, and that's primarily down to the marketisation of the water resource.

Matt Smith:

How do you go about teaching such a tricky subject?

Francine Rochford:

Normally when developing a syllabus in an area like this, you adopt a fairly linear approach to enable the student to understand the context of what they're learning. So, normally, I would put in at the outset our international obligations, both our environmental obligations and our obligations under world trade organisation treaties, which limit the choices that we have in relation to the management of this, once we've identified it as a commodity. The course that I'm developing in this area will be primarily directed towards students who are going on to practise law, so it will be based on Victorian water law – Victoria is one of the most forward jurisdictions in relation to the development of a water market and the area of law that's developing now in relation to negotiation of the water cap under the Murray-Darling Basin Plan and the way that that intersects with our environmental flow obligations, our catchment management obligations, our flood plain obligations, and the market system itself, is going to be an area which has a lot of governance issues as well. We'll contextualise it from an international perspective, then have a look at the historical development of water law in Victoria, look at the centralisation of water authorities, which is a very political issue, and then have a look in a more specific sense at Victorian water law, the environmental trading, and economic, social and other aspects of that.

Matt Smith:

That was Dr Francine Rochford, from the School of Law at La Trobe University. If you have any questions, comments or feedback about this podcast, or any other, then send us an email at podcast@latrobe.edu.au.