Local actors, global lessons in safeguarding rivers: implementing the advice in the National Water Reform 2020 Inquiry Report

ABSTRACT

The Australian Government has committed to water reform, including safeguarding the Murray Darling Basin, providing an opportunity to examine legal responses to water scarcity and environmental degradation that are developing globally and being used to influence how rivers are managed or protected. Using a conceptual framework that links socio-legal analysis to theories of ‘institutional work’, this paper analyses the development of transnational water norms like The Human Right to Water and Rights for Rivers, highlights the institutional work of local actors and the role of transnational water norms in that work, and uses the Productivity Commission’s National Water Reform 2020 Inquiry Report to examine opportunities for water reform in Australia.

KEYWORDS:

• Water law
• transnational law
• National Water Initiative
• Murray Darling Basin
• Public trust

Acknowledgments

This research was supported by an Australian Government Research Training Program Scholarship. An early version of the paper was presented at the 2021 Law and Society Association Global Meeting on Law and Society and I thank the organisers and panelists for their feedback. I am grateful to my supervisors, Professor Lee Godden and Associate Professor Rebecca Nelson, for their support of the broader doctoral project from which this paper is drawn, and for their ongoing academic guidance. I would also like to thank my colleagues in the PhD program at Melbourne Law School, including Sanam Amin for her helpful feedback on an early draft of this paper, and the anonymous peer reviewers for their insightful comments and feedback.

Disclosure statement

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

Notes

1. See, e.g. Holley and Sinclair (2018); Hart (2016); Hart (2016).

2. Basin Plan 2012 (Cth).

3. Committee on Economic, Social and Cultural Rights, General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant), 29th sess, UN doc E/C.12/2002/11 (20 January 2003); United Nations General Assembly, The human right to water and sanitation, 3 August 2010, A/RES/64/292.

4. see for example, Lyda et al. v City of Detroit and Others No 13–53846 (Bankr. E.D. Mich. Setp. 29.

2014).

5. For a history of this movement, see Macpherson (2020); O’Donnell and Talbot-Jones (2018).

6. Many of these ‘local’ organisations may also have transnational or international links, see, e.g. Kauffman (2017).

7. Drewes Farms Partnership v. City of Toledo, N.D. Ohio Case No. 3:19 CV 434, 2019 WL 1,254,011 (March 18, 2019).

8. Centro de Estudios para la Justicia Social ‘Tierra Digna’ and Others v the President of the Republic and Others,Corte Constitucional, Sala Sexta de Revision [Sixth Chamber] (Colombia) No T-622 of 2016.

9. Orange County Code, codified through Ordinance No (2022–07). - Right to clean water, standing and enforcement (arts (1) and (2)) <https://library.municode.com/fl/orange_county/codes/code_of_ordinances&gt;. On 6 July 2022 a Circuit Court judge found that state legislation had pre-empted the County amendment <https://insideclimatenews.org/news/07072022/two-lakes-two-streams-and-a-marsh-filed-a-lawsuit-in-florida-to-stop-a-developer-from-filling-in-wetlands-a-judge-just-threw-it-out-of-court/&gt;.

10. For a detailed history of the development of the field of transnational law against changing historical, social and political contexts, see Canfield, Dehm, and Fassi (2021).

11. On October 8, 2021, the United Nations Human Rights Council adopted Resolution 48/13 recognising the human right to a clean, healthy and sustainable environment, followed by the United Nations General Assembly recognition of a human right to a clean, healthy and sustainable environment in July 2022 (A/RES/76/300).

12. UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples : resolution/adopted by the General Assembly, 2 October 2007, A/RES/61/295.

13. Article 26; The Commission also references articles 25 and 32(2).

14. See for example organisations listed on page 11 of Supporting Paper D (Productivity Commission, Supporting Paper D 2021a).

Additional information

Funding

Roanna is the recipient of a Research Training Program Scholarship, University of Melbourne.

Notes on contributors

Roanna McClelland

Roanna McClelland is a PhD candidate at Melbourne Law School University of Melbourne and a Graduate Researcher in the Centre for Resources, Energy and Environmental Law. Her research focuses on water law, environmental law, international and transnational law, and empirical methods. Prior to commencing her PhD, Roanna worked in water and environmental policy, and as a political and media adviser. Roanna holds a Bachelor of Laws (Hons) from the University of Adelaide, a Bachelor of Behavioural Science from Flinders University, and an LLM from the University of Sydney.