Our right to safe water

Current safeguards around CSG extraction are inadequate, says Jennifer Elliott — and contamination of drinking and irrigation water has already occurred in NSW and Queensland.

Protection of the Environment Operations Act 1977 Part 5.3 Section 120 (Prohibition of pollution of waters) makes water pollution an offence. This can be very difficult to enforce, because of the onerous burden of evidence required. How can one prove that water has been polluted by a company, on a specific day, if no water test was undertaken by an authorised body which declared the water pristine on the previous day? In Section 122 (Defence of authority conferred by licence):

‘It is a defence in proceedings against a person, for an offence under this Part, if the person establishes that: (a) the pollution was regulated by an environment protection licenceheld by the person or another person, and, (b) the conditions to which that licence was subject, relating to the pollution of waters, were not contravened.’

So the fact that a licence has been granted can be used as a defence, even if that licence does not have adequate provisions for safeguards. These appear to be loopholes. We could argue for and against the virtues of this Act until the cows come home, but the fact remains they won’t if their drinking water becomes polluted.

An obvious conclusion is that there is no point in instituting legal proceedings under the Protection of the Environment Operations Act 1977 against a mining company, its contractors, or the Government which issued the licence, because this action is not going to restore polluted water to a pristine state. Sadly it will be too late. Even if financial compensation was an eventual outcome, protracted proceedings and the associated stress factors may not be considered worthwhile.

Residents of both NSW and Queensland have already found their safe drinking water has been polluted by Coal Seam Gas mining exploration and production activities. One instance involved a fairly large holding of around 5,000 to 6,000 acres. This was not an adequate buffer zone to protect their water from being polluted to the point where even stock would not touch it. This eventuated as a result of exploration activities on a neighbouring property. In another case, the landholders’ previously pristine bore well was rendered unusable. The mining company working in his region, Santos, delivered him a laboratory report which told him his water could no longer be used for domestic purposes. [Refer Lock the Gate Clarence Valley on Facebook.]

The following has been extracted from a Briefing paper, by the National Toxics Network, entitled “Hydraulic Fracturing in Coal Seam Gas Mining: The Risks to Our Health, Communities, Environment & Climate” by Australian Drs. Mariann Lloyd-Smith and Rye Senjen, February 2011. That report references a Cornell University study, which dispels the myth that CSG will have a positive effect on greenhouse gas emissions thus:

‘Natural gas obtained by the controversial technique of hydraulic fracturing may significantly contribute to greenhouse gas emissions, so should not be considered as a cleaner alternative to coal or oil.’

‘BTEX stands for benzene, toluene, ethylbenzene, xylene. BTEX compounds can contaminate soil and groundwater. BTEX chemicals are used in hydraulic fracturing and are found in the products used in the drilling stage of hydraulic fracturing……BTEX chemicals are hazardous in the short term causing skin irritation, central nervous system problems (tiredness, dizziness, headache, loss of coordination) and effects on the respiratory system (eye and nose irritation). Prolonged exposure to these compounds can also negatively affect the functioning of the kidneys, liver and blood system. Long-term exposure to high levels of benzene in the air can lead to leukemia and cancers of the blood…..In October 2010, traces of BTEX chemicals were found at an Arrow Energy fracking operation in Queensland….. Arrow Energy confirmed that benzene, toluene, ethylbenzene and xylene had been found in well water associated with its coal-seam gas operation at Moranbah, west of Mackay….

'Australia’s industrial chemical regulator, the National Industrial Chemical Notification and Assessment Scheme (NICNAS), has assessed only 2 out of the 23 known compounds used in fracking fluids in Australia. Yet, hydraulic fracturing in Australia involves very large quantities of fracking fluids, with almost all of them not assessed for their safety….. Environmental authorisations by Queensland regulators identified that in one CSG operation,approximately 18,500kg of additives were to be used in each well during the fracturing process, with only 60% recovered and up to 40%, i.e. 7,500kg of the fluids remaining in the formations…..In 2010, a coal seam gas-drilling site near Lismore NSW, run by Metgasco, was permitted to use fracking after supplying only a generic list of hazardous materials safety guidelines.’

The Right to Water is a joint publication of the World Health Organization, the Office of the High Commissioner for Human Rights, Water Aid, the Centre on Housing Rights and Evictions and the Centre for Economic and Social Rights, and was printed in France in 2003.

The opening statement of the first chapter, written by Former UN Secretary General, Kofi Annan, reads:

‘Access to safe water is a fundamental human need and, therefore, a basic human right. Contaminated water jeopardizes both the physical and social health of all people. It is an affront to human dignity.’

On page 21 of this document, there is a quote from a Statement to the 57^th Session of the Commission on Human Rights in 2001, by Klaus Toepfer, then Executive Director of the United Nations Environment Programme. It reads in part:

‘Human rights cannot be secured in a degraded or polluted environment. The fundamental right to life is threatened by soil degradation and deforestation and by exposures to toxic chemicals, hazardous wastes and contaminated drinking water.’

Soil degradation and deforestation have already occurred in the Pilliga State Forest in NSW. Exposure to toxic chemicals, and hazardous wastes has occurred in Tara, Qld.

[caption id="" align="alignnone" width="611"] Santos CSG project in Pilliga State Forest

Contaminated drinking water has occurred in both Tara and in Narrabri in NSW.

He continues:

“It is time to recognize that those who pollute or destroy the natural environment are not just committing a crime against nature, but are violating human rights as well”.

Page 29 of the main body of the document also contains the following, regarding Governmental obligations:

‘Duty to protect: regulating third parties

‘A government is not the only actor that can endanger or restrict the right to water. Individuals and corporations have the potential to interfere with a person’s or community’s water supply……The duty to protect requires that governments should diligently take all the necessary feasible steps to prevent others from interfering with the right to water. This will usually require a strong regulatory regime that is consistent with other human rights.’

These are strong words. It could be concluded from what is written above that both the NSW Government and the holders of Petroleum Exploration Licences in this State are morally and ethically – though perhaps not legally – in breach of the Standards recommended by the World Health Organization. Would a NSW Bill of Rights, consistent with World Health Organization human rights Standards satisfy our needs as a community State, on this and other human rights issues? Would enactment come simply too late to save our most precious resource?

We can ponder these questions and decide what action we need to take. Perhaps we need to do this before our water and land and all organisms living in and upon it, including ourselves, are so polluted and toxic that there is no turning back.

The Lock the Gate Alliance, a movement of concerned citizens from all walks of life, is having a positive impact but needs your help. See what is already happening in the Northern Rivers in the video below.

This is not someone else’s problem. The some of us are not enough to stop this toxic industry, but the sum of us has all the power to succeed.