3 minute read
YOU (PROBABLY) DO
Dr Erin O'Donnell
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UNIVERSITY OF MELBOURNE
Water is life [1] Water is essential for life. Water is a human right; access to water is a United Nations sustainable development goal; and water is increasingly recognised in settler state law as life. [2] Yet for all that, water is largely absent from the way we teach and practice law. Do you know who is responsible for the water coming out of your tap? What would you do if the water came out brown, or made you sick? What would you do if nothing came out? For days? These are (sadly) all questions that communities across Australia have had to ask the courts, and sometimes the answer is that the law has not made anyone responsible for supplying safe, affordable, drinking water.
[3] Do you live near a river? Do you know who would be responsible if the river dried up and stopped flowing? Do you know whose job it is to protect you from floods? Do you know that irrigation water rights in rural Australia are now worth over $30 billion? What happens if you own a right to water, but someone steals the water that should be yours?
If you ’re interested in the way that the law shapes the world, you need to pay attention to the law of water.
Climate conscious (water) lawyering The climate catastrophe is making it impossible to ignore the headlines: rivers in Europe are running dry, fires in water catchments in the USA are making water undrinkable, and in Australia, people in NSW have been devasted by multiple “ unprecedented” flood events in the same year. The values and decisions that water law facilitates can make these catastrophes more (and less) easy to live with. Justice Brian Preston invited all of us to become ‘ climate conscious’ lawyers, and that means understanding the way in which law empowers us, or limits us, in protecting ourselves and the world around us from the existential threat of climate change. Water law is an essential pathway to climate conscious lawyering.
[4]
Truth-telling and the myth of aqua nullius Since the Mabo decision, Australians have increasingly recognised that terra nullius (the myth that when the British invaded, the land was empty and belonged to no one) was an unjust foundation on which to build a colony and a country. However, there has been no corresponding legal acknowledgement of the myth of aqua nullius. Every state and territory water statute is built on the assumption that the right to control the flow of water is vested in the Crown, and this is the illegitimate foundation on which all water law rests. As settler Australia moves forward on our long-overdue journey to acknowledge unceded Indigenous sovereignty, we have to tell the truth about water law. First Nations have never ceded their rights to lands or waters, and water may play a significant role in future treaties between the settler state and First Nations. Rivers with a right to life All around the world, as well as here in Australia, rivers, lakes and wetlands are being recognised as living entities, legal persons, and legal rights holders. A river in Aoteaora New Zealand could take you to court. A river in Melbourne requires public agencies to acknowledge it as a living entity. The transnational movement to recognise the personhood of rivers is transforming the foundations of settler state legal frameworks. Water law has been founded on the premise that water is a resource over which we have dominion, and living rivers are challenging that idea on a profound level.
[5] [6] Water law goes mainstream Water law is no longer merely a niche, technocratic field of law that focuses on the exercise of power by Ministers (or their delegates) to allocate and govern water resources. Water law is the way in which we shape and govern our relationship with water, a relationship that we cannot live without.
Footnotes
Image of Birrarung by Dr Erin O'Donnell
[1] Seed Mob, Water is Life: National Call to Action <https://www.seedmob.org.au/waterislife>
[2] Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic).
[3] Erin O’Donnell and Kirsty Howey,
‘Time to Speak up: Water Apartheid Is Australia’s Dirty Secret’ , Canberra Times (Canberra, ACT, online) <https://www.canberratimes.com.au/story/7 804335/time-to-speak-up-waterapartheid-is-australias-dirty-secret/> .
[4] Brian Preston,
‘Climate Conscious Lawyering’ (2021) 95(1) Australian Law Journal 51.
[5] Mabo and Others v Queensland (No. 2) (1992) 175 CLR 1
[6] Virginia Marshall, Overturning Aqua Nullius: Securing Aboriginal Water Rights (Aboriginal Studies Press, 2017).
