In the remote community of Laramba in the Northern Territory, residents have long faced the reality of unsafe drinking water. The prevalence of uranium in drinking water has by some measurements reached three times the recommended maximum safe level under the Australian Drinking Water Guidelines.
Last week, an NT Supreme Court decision (Pepperill and Anor v CEO Housing  NTSC 90) found in favour of the applicants, Laramba residents Joanne Pepperill and Jamesie Stafford, represented by Australian Lawyers for Remote Aboriginal Rights. The decision handed down by Justice Peter Barr determined that the landlord of housing at Laramba, the NT Chief Executive Officer (Housing), is responsible for ensuring safe drinking water at those premises.
Determining who is responsible for inadequate and failing essential services infrastructure in remote communities is one of the key obstacles to contesting their neglect, and the associated impacts on residents’ health and wellbeing. Under the existing Water Act and Water Supply and Sewerage Services Act, there is no legally enforceable minimum standard for drinking water in remote communities in the Northern Territory. This Supreme Court decision has significant implications for the Aboriginal residents of remote communities across the Territory.
The most recent decision followed two decisions made by the NT Civil and Administrative Tribunal (NTCAT) in 2020 and 2022. Those cases considered the obligation of the landlord of Laramba housing under the Residential Tenancies Act 1999 (NT). Section 48 of the RTA states that the landlord’s responsibilities include ensuring that the premises and ancillary property related to a tenancy agreement are ‘habitable’ and ‘meet all health and safety requirements specified under an Act that apply to residential premises or the ancillary property’.
At NTCAT, Presiding Member Mark O’Reilly found that the landlord’s obligations under the RTA applied to household water infrastructure (pipes, sinks, taps), but not to water supply or quality. O’Reilly determined that ‘the landlord’s obligation for habitability is limited to the premises themselves’  and characterised water quality as an ‘external factor’. On review, this view was upheld by Tribunal Members Robert Perry and Ron Levy.
The NTCAT decisions explored the complicated web characterising essential services provision in NT remote communities. The government-owned Power and Water Corporation is responsible for providing drinking water, which it does via its subsidiary Indigenous Essential Services (IES). IES is itself funded by the Department of Territory Families, Housing and Communities, which manages the maintenance of remote community housing. The CEO Housing is a corporation sole established under the Housing Act, a legal entity distinct from the Department, which operates as landlord while the NT government holds the housing precinct sublease at Laramba.
Despite the involvement of all these government entities, the NTCAT decisions did not determine who, if anyone, was responsible for supplying safe drinking water to Laramba residents.
Justice Barr found otherwise. In his Supreme Court decision, Barr determined that while it may be true that the CEO Housing is not itself obligated to provide safe drinking water, it does have an obligation to ensure that safe drinking water is provided to the houses of which it is landlord, in order that they are habitable.
‘In my judgment’. Barr writes, ‘it is no answer to the applicants’ claims that water to their home is provided by an external provider’ . ‘In circumstances where the respondent is required to ensure that the applicants’ residence is habitable, and that includes ensuring that water is supplied to their residence, it would make no sense if the respondent were not required to ensure that the water supplied is safe to drink. It is a matter of “health and safety” as it bears on habitability’ .
This is a significant decision, especially in remote communities that are excluded from the limited protections applicable within NT water supply licence areas. It means that even though the CEO Housing is not a drinking water provider, it must ensure that the water flowing from the kitchen tap does not compromise the habitability, and/or the health and safety conferring capacity, of the houses for which it is landlord. The infrastructural consequences could be extensive.
At Laramba, alongside this ongoing litigation, the Department of Territory Families, Housing and Communities has installed a community-level water treatment plant designed to remove uranium from the local water source. However, the nearby communities of Willowra and Wilora also experience a high prevalence of uranium in their drinking water. This situation will continue without infrastructural intervention. The prevalence of heavy metals and other contaminants in drinking water at many remote communities across the Northern Territory has undermined the willingness of the NT government to legislate minimum drinking water standards, despite recently committing to a plan to develop new safe drinking water legislation.
This decision, while focused on the situation at Laramba, has potentially significant implications for the liability of the NT government across the 73 remote communities and leased town camps. It has found that residents of those communities have a right to habitable housing, that this includes safe drinking water, and that it is the CEO Housing’s job to ensure this right is met.
Lora Chapman, Jun 2023
Government approaches that frame young street-walkers as ‘anti-social’ individuals who have followed the wrong ‘path’ are inherently divisive.