The Botswana Court of Appeal Decision

In a precedent-setting decision today, the Botswana Court of Appeal upheld the Kalahari Bushmen’s right to water by quashing a 2010 decision that denied the Bushmen access to a borehole on their ancestral lands.

“This is a major win, it’s the first test case of the right to water resolution at the United Nations,” says Maude Barlow, Council of Canadians chairperson and former Senior Advisor on Water to the President of the UN General Assembly. The UN General Assembly and UN Human Rights Council passed resolutions last year recognizing the right to water and sanitation.

A Bushman spokesman said, ‘We are very happy that our rights have finally been recognized. Like any human beings, we need water to live.'”

The Bushmen’s Long Standing Battle

The Kalahari Bushmen have been embroiled in a 30-year battle for their right to ancestral lands and the right to water. After diamonds were discovered in the late 1980s, the Bushmen were cleared from their lands in a wave of forced evictions in 1997, 2002 and 2005. A court ruled that they were allowed to return in 2006. However, they were denied access to a borehole, their main source of water. The Bushmen had been resorting to rainwater, melons and roots for drinking water. Although the Bushmen were denied access to their borehole, the government allowed Gem Diamonds to drill new boreholes for their mining project. The government also permitted Wilderness Safari to build a tourist camp which included swimming pools on the Kalahari reserve.

The UN Resolutions on the Right to Water

On July 28, 2010, the UN General Assembly (GA) unanimously passed a resolution recognizing the right to water and sanitation. 122 countries voted in favour of the resolution, no country opposed the resolution and 41 countries abstained. The countries that abstained included: Australia, Botswana, Canada, Croatia, Denmark, Greece, Iceland, Japan, Lithuania, Netherlands, New Zealand, Poland, Republic of Korea, Sweden, the UK and the US. Several countries that abstained expressed regret for lack of consensus at the GA vote and hoped for consensus through the Human Rights Council (HRC) process.

At the end September, the HRC passed a resolution recognizing the right to water and sanitation. This second resolution recognized the right to water as already entrenched in international law. The UN Independent Expert on human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, noted the significance of the HRC resolution and said that “this means that for the UN, the right to water and sanitation is contained in existing human rights treaties and is therefore legally binding.

The Significance of the Decision

The Botswana Court of Appeal ruling quotes a UN Committee on Economic, Social and Cultural Rights report as well as the UN’s recognition of water as a fundamental human right. The Kalahari decision is particularly significant because Botswana was one of 41 countries that abstained from the GA vote on July 28, 2010. The report on the vote noted that:

“The representative of Botswana said his delegation had been unable to vote in favour of the text in its present form, and voiced regret over the absence of consensus. The Geneva process should been given time to mature, and the work on water and sanitation should have continued under the auspices of the Human Rights Council, he added.”

Since the HRC passed a resolution recognizing the right to water, it could be inferred that Botswana recognized the right to water after the HRC passed their resolution. This morning’s court ruling affirms Botswana’s recognition of this right.

Anil Naidoo Blue Planet Project Organizer commended the decision and notes that this decision “serves as a precedent for all countries regarding respect for the human right to water in domestic law.”

What Does This Mean for Canada?

Canada has taken the longstanding position that the right to water does not exist. The report on the GA vote noted that: “The representative of Canada said his delegation had joined the consensus on the resolution that had created the mandate of the independent expert. The work of that mechanism was expected to further promote study of the issue of access to water and sanitation as a human right and, as such, the text was premature. The non-binding resolution appeared to determine that there was indeed a right without setting out its scope. Since there was no consensus on the matter it was premature to declare such a right in the absence of clear international agreement, he said, adding that he had abstained from the vote.”

The Canadian government has falsely argued that if Canada recognizes the right to water, the US will have the ability to take Canada’s water. However, a look at the lack of clean drinking water on First Nation reserves provides better insight into why the Canadian government has denied that the right to water exists.

It is often noted that First Nation communities in Canada live in third world conditions. As of December 31, 2010, there were 117 First Nation Communities in Canada under water advisories. In March 2010, 49 First Nations water systems were classified as “high risk”. Even worse, because Indian and Northern Affairs Canada bases their classification of risk on the water quality from treatment plants, communities that lack taps and treatment plants are not flagged as “high risk.”

However, since the HRC and the Independent Expert have clarified that the right to water does exist and is legally binding, Canada can no longer deny there is a right to water. The decision upholding the Kalahari Bushmen ‘s right to water sets a powerful precedent to Canada and other countries around the world that water is justiciable, fundamental human right.

For more information on the Kalahari Bushmen, visit Survival at http://www.survivalinternational.org/tribes/bushmen#main

 

Emma Lui - Fraser River

Emma Lui

Emma Lui is an activist, writer and researcher. She is co-founder of the La Pêche Coalition for a Green New Deal and a member of Cooperative Biblioterre, the Ottawa Water Study/Action Group and the...