Adalah Appeals Water Commissioner's Refusal to Provide Water Access for Hundreds of Arab Bedouin Living in Unrecognized Villages in the Naqab

On 20 April 2005, Adalah filed an appeal to the Haifa District Court (sitting as a Water Tribunal) on behalf of 767 Palestinian Bedouin citizens of Israel living in the unrecognized villages in the Naqab (Negev) against decisions of the Water Commissioner denying their requests for access to sources of clean drinking water. In the appeal, Adalah argued that the Water Commissioner's refusal to grant water access points infringes the villagers' rights to water, health and dignity, discriminates against them on the basis of their nationality and also violates basic principles of administrative law. Adalah Attorney Marwan Dalal filed the appeal.

The villages concerned are not recognized by Israel and therefore they are not connected to the national water network. Most inhabitants are forced to obtain their drinking water from water access points located several kilometers from their villages via improvised plastic hose connections or by transporting the water in unhygienic metal containers by vehicle or donkey. For example, the Arab Bedouin living in Tla' Rashid rely on a water access point located seven kilometers from their village, but, due to the heavy use of this source, the supply of water is intermittent and frequently stops. In addition to the problem of physical access to drinking water, the inhabitants are also exposed to health risks associated with the poor quality of their drinking water. The appeal includes an expert opinion of Prof. Michael Alkan of Ben-Gurion University, whose research into water access concluded that Arab Bedouin living in unrecognized villages in the Naqab were at risk of dehydration, intestinal infections and other diseases associated with poor hygiene such as dysentery, as a result of the poor quality of their drinking water.

In May 2001, on behalf of the residents of seven Arab unrecognized villages in the Naqab, four NGOs, and in its own name, Adalah filed a petition to the Supreme Court of Israel against the Water Commissioner, the Israeli Water Company and relevant government ministers. (See H.C. 3586/01, The Regional Council for the Unrecognized Villages in the Naqab, et. al. v. The Minister of National Infrastructure, et. al.) The petitioners claimed that the respondents maintained a policy of denying clean and accessible water to thousands of Arab Bedouin living in unrecognized villages, and sought the connection of these villages to the national water network. The Supreme Court dismissed the petition in February 2003, but referred the petitioners to a new Water Committee, established pursuant to the petition. The Court decided that Arab Bedouin living in the unrecognized villages should bring their concerns about water access to this committee, which is under the control of the Israel Lands Administration (ILA), in groups of at least ten families.

The filing of the current appeal arises from motions submitted by Adalah before the Water Committee in 2003 and 2004 on behalf of 15 families (100 individuals) from Tel al-Maleh; 11 families (39 individuals) from Gatamat; 34 families (172 individuals) from Umm al-Hieran 40 families (247 individuals) from Tel Arad; 18 families (115 individuals) from Tla' Rashid; and 10 families (94 individuals) living to the south of the main road between Beer el-Sabe (Beer Sheva) and Arad requesting water access points.

In October 2004, the Bedouin Development Authority (BDA), which operates within the framework of the ILA, issued letters to representatives of the villagers, informing them of the Water Commissioner's decisions. The ILA's land policies in the Naqab have created tension between the state and Arab Bedouin citizens of Israel claiming title over their ancestral lands. In relation to four of the six aforementioned villages, the letter sent by the BDA stated that the Water Commissioner had denied the villagers' requests, and access to drinking water would only be provided if the villagers agreed to relocate to one of the existing government-planned towns established for the Arab Bedouin. For example, in a letter dated 19 October 2004 regarding Umm al-Hieran, the BDA acknowledged that the current arrangements for obtaining drinking water were inadequate, but stated that the dwellings were illegal and that access to drinking water and other utilities would only be made available if the villagers relocated to the recognized town of Hura.

The Water Commissioner's decisions regarding the two remaining villages offered inadequate remedies. In a letter dated 27 October 2004, the Water Commissioner's decision regarding Tla' Rashid referred residents to a newly planned water center; however there is no evidence that such a water center is being constructed and the letter does not include any timescale for its completion. Finally, in a letter dated 27 October 2004, the families living near the main road between Beer el-Sabe and Arad were informed that a water access point would be provided, but the individual in whose name the water access point is due to be registered is not one of the petitioners who brought the motion, and the families still remain without access to clean drinking water.

Adalah raised three main arguments in the appeal. Firstly, Adalah argued that the Water Commissioner's decisions violate the villagers' rights to water, health and dignity under both Israeli law (e.g. the Water Law of 1959) and international human rights law (e.g. Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights, which Israel ratified in 1991). Secondly, Adalah argued that the decisions unlawfully discriminate against the Arab Bedouin villagers on the basis of their nationality. The appeal emphasized that, while thousands of Arab Bedouin citizens of Israel living in the unrecognized villages are deprived of adequate access to water, individual Jewish families living on expansive ranches, or "individual settlements" in the Naqab are promptly provided with water access, often prior to obtaining planning permission for their dwellings. This disparity of treatment was noted in the Concluding Observations of the UN Committee on Economic, Social and Cultural Rights on Israel from May 2003, which state, in paragraph 27:

Despite measures by the State party to close the gap between the living conditions of Jews and Bedouins in the Negev, the quality of living and housing conditions of the Bedouins continue to be significantly lower, with limited or no access to water, electricity and sanitation. Moreover, Bedouins continue to be subjected on a regular basis to land confiscations, house demolitions, fines for building "illegally", destruction of agricultural crops, fields and trees, and systematic harassment and persecution by the Green Patrol, in order to force them to resettle in "townships."

Finally, Adalah argued that the Water Commissioner's decisions breach several basic principles of administrative law. The Water Commissioner has taken into consideration factors that are outside the scope of his authority, such as matters related to the policy of resettling Arab Bedouin in the Naqab into existing townships; has failed to consider or give proper weight to factors which he is obliged to consider as Water Commissioner, such as the violation of the villagers' basic human rights, including the right to water and the right to health; and has failed to exercise his own independent discretion by effectively allowing the Water Committee and the BDA to decide upon matters within his mandate. Adalah emphasized that the BDA has not taken any steps to improve the social and humanitarian situation of the Arab Bedouin, but instead is exerting pressure on them to leave their lands by failing to provide them with basic services.

D.C.H. Appeal 609/05, Abdallah Abu Msaed, et. al. v. Water Commissioner (Haifa District Court).