Riparian Rights in Paua New Guinea
-
Upload
clydemutua -
Category
Documents
-
view
219 -
download
0
Transcript of Riparian Rights in Paua New Guinea
-
8/10/2019 Riparian Rights in Paua New Guinea
1/24
The Common Law Riparian Rights Doctrine And
Its Applicability In Papua New Guinea
Lawrence Kuna Kalinoe
A! Introduction
Given the wandering and transcendent nature of water, to some extent
akin to elements such as air, wind and light, neither the civil law nor common
law acknowledged private property in the corpusof running water.2Hence the
common law developed the riparian rights doctrine as a response to the
peculiar characteristics of water.3
The common law of England as it stood on the eve of apua !ew
Guinea"s #ndependence on $% &eptem'er $()* was adopted as part of the
underlying law of apua !ew Guinea under &ch 2.2 of the Constitution,which
reads+
"#ch!$!$! Adoption o% a common law!
$-&u'ect to this art, the principles and rules that formed,
immediately 'efore #ndependence /ay, the principles and rules of
common law and e0uity in England are adopted, and shall 'e
applied and enforced, as part of the underlying law, except if, and to
the extent that 1
a- they are inconsistent with a onstitutional aw or a statute4
or
'- they are inapplica'le or inappropriate to the circumstances of
the country from time to time4 orc- in their application to any particular matter they are
inconsistent with custom as adopted 'y art $. 5 6
1ecturer in aw, 7niversity of !G.
2& lark and # 8enard, The Framework of Australian Water Legislation And Private Rights
9ustralian :ater 8esearch ouncil, ;el'ourne $()2-, ook o, &ydney $(?)-, at p 3?@.
-
8/10/2019 Riparian Rights in Paua New Guinea
2/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
Austom6 is defined in &ch $.2 of the Constitutionto mean+
Athe customs and usages of indigenous inha'itants of the country
existing in relation to the matter in 0uestion ... regardless of whether
or not the custom or usage has existed from time immemorial.6
Hence, su'ect to the conditions of &ch 2.2$-, that particular part of the
English common law pertaining to riparian rights, ie the riparian rights
doctrine, can apply in apua !ew Guinea as part of the underlying law.@
#n this paper # first consider the 'asic tenets of the riparian rights doctrine
and its associated incidents at common law, and then discuss the extent of itsapplication in apua !ew Guinea in view of the provisions of &ch 2.2 of the
Constitution,as set out a'ove. This approach is necessary in order to assess the
impact and other implications that the common law riparian rights doctrine will
have on the existence and incidence of customary water rights in apua !ew
Guinea.
! The Riparian Rights "octrine and its #ncidents at Common Law
#n essence, the 'asic tenet of the riparian rights doctrine is that any person
who owns and occupies land on the 'ank of a natural stream ac0uires water userights which are commonly known as Ariparian rights6 'y virtue of the
occupation of that land. #t is important to note at the outset that the right to
water is attached to, or appurtenant to, the riparian land. Therefore, riparian
rights cannot 'e ac0uired or disposed of without the riparian land. That is the
reason why riparian rights are said to 'e Aattached to or incident to riparian
land6.*Bne of the often cited statements for the proposition that riparian rights
are an incident of riparian land is that of ord :ensleydale in Chasemore v
Richards+
4The underlying law is, in effect, the common law of apua !ew Guinea, as defined under
&chedule $.2 of the Constitutionto include, in the main, udge1made law, custom and the principles
of English common law as adopted under &ch 2 of the Constitution.
5& lark and # 8enard, a'ove n $, at p %$. The conse0uence of this will 'ecome apparent in the
ensuing discussion.
2
-
8/10/2019 Riparian Rights in Paua New Guinea
3/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
AThe su'ect of rights to streams of water flowing on the surface has
'een of late years fully discussed, and, 'y a series of carefully
considered udgements, placed on a clear and satisfactory footing. #t
has 'een settled that the right to the enoyment of a natural stream of
water on the surface, e$ %ure naturae, 'elongs to the proprietor of the
adoining lands, as a natural incident to the right to the soil itself, and
that he is entitled to the 'enefit of it, as he is to all the other
advantages 'elonging to the land of which he is the owner. He has the
right to have it come to him in its natural state, in flow, 0uantity and
0uality, and to go from him without o'struction, upon the same
principle that he is entitled to the support of his neigh'our"s soil for
his own in its natural state. His right in no way depends upon
prescription or the presumed grant of his neigh'our.6%
=or a proprietor actually to have riparian rights, it is necessary that the
riparian land 'e in actual contact, whether laterally or vertically, with the
watercourse. Hence, in Attwood v Lla& 'ain Collieries Ltd,) where the
defendants claimed riparian rights on the 'asis that a 221yard1wide mineral
railway strip connected their land to the river, awrence C found that the
defendants" colliery works, where the water a'stracted from the river was
converted into a stream, was too far from the 'ank of the river to sustain the
character of a riparian tenement, and accordingly, found against the defendants.
:ith reference to this case, the late 9& :isdom pertinently o'served+
6$?*(- ) H as 3@(, $$ E8 $@D at $*3. =or some later cases in point, see+ (windon Waterworks
Co v Wilts ) erks Canal Co$?)*- 33 T *$34'cCartne& v Londonderr& Rl&$(D@F 9 3D$4
White *+ohn ) (ons v White$(D%F 9 )24 (tollme&er v Trinidad Lake Petroleum Co$($?F 9
@?*4Attwood v Lla& 'ain Collieries Ltd$(2%F $ h @@@4 andRug-& +oint Water oard v Walters
$(%)F $ h 3().
7$(2%F $ h @@*.
3
-
8/10/2019 Riparian Rights in Paua New Guinea
4/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
A:hether a particular piece of land sustains the character of a
riparian tenement is a 0uestion of fact, and must 'e determined
according to the special circumstances. =or riparian rights properly so
named to arise, the land must 'e in actual contact with the stream, 'ut
lateral contact is as good%ure naturaeas vertical, that is to say, a man
has as much right to water flowing past his land as he has to water
flowing over his land. #n the case of a tidal river, where the foreshore
is left 'are at low water, although the 'ank is not always in contact
with the flow of the stream, it is in much contact for a great part of
every day in the regular course of nature, which is sufficient
foundation for a natural riparian right. :hilst the right of a riparian
owner on the 'anks of a tidal naviga'le river exists %ure naturae, it is
essential to its existence that this land should 'e in contact with the
flow of the stream, at least at the times of ordinary high tides.6?
8iparian rights never accrue from the ownership of the river 'ed. This
point is made clear 'y ord &el'orne in L&on v Fishmongers Co, where he said
that the ownership of the 'ed of a river Acannot 'e the natural foundation of
riparian rights properly so called, 'ecause the word riparian" is relative to the
'ank, and not to the 'ed, of the stream ...6.(/ifferent presumptions of law exist
concerning the ownership of river 'eds+ generally, that in the case of a
naviga'le tidal river, the rown is prima facie presumed to 'e the owner
whereas in the case of a non1tidal watercourse, the riparian proprietors are,
prima facie, entitled to the soil of the 'ed us.ue ad medium a.uae. These
concepts are discussed later as related incidents of the riparian rights doctrine.
articularly in a naviga'le tidal watercourse, riparian rights are su'ect to the
pu'lic right of navigation. This is apparent from the statement 'y ord airns
in the same case that+$D
89 :isdom, The Law of Rivers and Watercourses, 2nd ed &haw &ons td, ondon $()D-, at p
?2. !ote that the current edition of this 'ook, revised 'y : Howarth, Wisdom/s Law ofWatercourses, *th ed &haw &ons td, rayford $((2-, deals with this issue at p %? 'ut not in
identical terms. # prefer to go 'y the original author"s work.
9$?)%F $ 9 %22, at %?3.
10$?)%F $ 9 %22, at %)3.
@
-
8/10/2019 Riparian Rights in Paua New Guinea
5/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
Awhereas in a non1naviga'le river all the riparian owners might
com'ine to divert or pollute or diminish the stream, in a naviga'le
river the pu'lic right to navigation would intervene, and prevent this
'eing done.6
8iparian rights are only attaina'le in relation to water in a natural
watercourse flowing in known and defined channels e$ %ure naturae,whether
upon or 'elow the surface of the ground.$$#t therefore follows that the riparian
rights doctrine has no application in the following situations+$2
a- where a flow of surface water s0uanders itself over an undefined area4
'- in the case of underground water which merely percolates through the
strata in unknown and unidentified channels as was the case in
Chasemore v Richards-$34 and
c- plainly artificial watercourses unless the origin and purpose for which
such watercourse was 'uilt is unknown and over time has ac0uired the
character of a natural watercourse as was the case in aile& ) Co v
Clark, (on ) 'orland-!01
The classic dictum 'y arke > in 2m-er& v 3wen 'est descri'es the
su'stance and context of riparian rights, as follows+$*
11& Ho'day ed-, Coulson and For-es on the Law of Waters , %th ed &weet ;axwell td,
ondon $(*2-, at p $3D.
12&ee 9 :isdom, a'ove n ), at p ?*.
13 $?*(- $$ E8 $@D.
14 $(D2F $ h %@(.
15 $?*$- % Ex 3*3, $** E8 *)( at *?*1?%.
*
-
8/10/2019 Riparian Rights in Paua New Guinea
6/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
AThe right to have a stream flow in its natural state, without
diminution or alteration, is an incident of property in the land through
which it passes4 'ut flowing water is pu-lici %uris, not in the sense
that it is a -onum vacans, to which the first occupant may ac0uire an
exclusive right, 'ut that it is pu'lic and common in this sense only,
that all may reasona'ly use it who have a right of access to it, and
that none can have any property in the water itself, except in the
particular portion which he may choose to a'stract from the stream
and take into his possession, and that during the time of his
possession only. 5 >ut each proprietor of the adacent land has the
right to the usufruct of the stream which flows through it.6
9nd the entitlements of a riparian rights holder are as enunciated 'y ord
;"!aghten in+ohn 4oung and Co v ankier "istiller& Co Ltd, where it was
said+
A9 riparian proprietor is entitled to have the water of the stream, on
the 'anks of which his property lies, flow down as it has 'een
accustomed to flow down on his property, su'ect to the ordinary use
of the flowing water 'y upper proprietors, and to such further use, if
any, on their part in connection with their property as may 'ereasona'le under the circumstances. Every riparian proprietor is thus
entitled to the water of his stream, in its natural flow, without sensi'le
diminution or increase and without sensi'le alteration in its character
or 0uality.6$%
:ith rights, there also go o'ligations so that the exercise of that right must
not cause hardship and inury to others. 9ccordingly, the o'ligations of riparian
right holders are as stated 'y ord /enman in'ason v 5ill+$)
16$?(3F 9 %($ at %(?. ommenting on this dictum, Gerry >ates has o'served+ AThis means
that not only may a riparian owner take action against those who pollute the water running through
the land, 'ut statutory authorities which have knowledge of pollution in the water and fail to warn
the landowner may 'e lia'le in negligence.6 1 G >ates,2nvironmental Law in Australia, 3rd ed
>utterworths, &ydney $((2-, at p 3@.
17 $?33- * > 9d $, $$D E8 %(2 at %(?.
%
-
8/10/2019 Riparian Rights in Paua New Guinea
7/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
ATFhe possessor of land through which a natural stream runs, has a
right to the advantage of that stream, flowing in its natural course,
and to use it when he pleases, for any purposes of his own, not
inconsistent with a similar right in the proprietors of the land a'ove
and 'elow ... !Feither can any proprietor a'ove diminish the
0uantity, or inure the 0uality of water, which would otherwise
descend, nor can any proprietor 'elow throw 'ack the water without
his licence or grant.6
Having stated the 'asic tenets of the riparian rights doctrine, # now
consider the extent to which riparian rights can 'e exercised. >efore that is
done, it is useful to 'ear in mind that a riparian proprietor is entitled+ a- to
have the water flow down to the property, and '- to enoy it in its natural state
in terms of 0uality and to some extent, 0uantity, ie Awithout sensi'le
diminution or increase and without sensi'le alteration in its character or
0uality6.$?
1. The Exercise of Riparian Rights
9 riparian proprietor is entitled to a'stract, divert andIor use water for
purposes which the common law has recognised as Aordinary uses6 orAextraordinary uses6. #n the case of ordinary use, sometimes referred to as
Aprimary use6, of flowing water, there are effectively no restrictions. This
prompted one commentator to o'serve that in the category of ordinary primary
use, Aa riparian proprietor is under no restriction, and if in the exercise of his
ordinary rights he exhausts the water altogether, a lower riparian owner cannot
complain6.$(This of course, leads to the 0uestion, what are Aordinary uses6J
This 0uestion has 'een answered 'y ord Kingsdown in'ine v 6ilmour+
A>y the general law applica'le to running streams, every riparian
proprietor has a right to what may 'e called the ordinary use of the
water flowing past his land 1 for instance, to the reasona'le use of the
water for his domestic purposes and for his cattle4 and this without
18$?(3F 9 %($ at %(?.
199 :isdom, a'ove n ), at p ?%.
)
-
8/10/2019 Riparian Rights in Paua New Guinea
8/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
regard to the effect which such use may have in case of a deficiency
upon proprietors lower down the stream.62D
9nd in relation to what is meant 'y Adomestic purposes6, ord 8omilly
;8 0uite une0uivocally stated in Attorne&76eneral v 6reat 2astern Railwa&
that Adomestic purposes un0uestiona'ly would extend to culinary purposes4 to
the purposes of cleansing and washing, feeding and supplying the ordinary
0uantity of cattle, and so on6.2$This entitlement to use water for ordinary uses
is, however, to 'e exercised with reasona'le care and for purposes connected
with the riparian tenement.22
=urther to the riparian proprietor"s right to use water for ordinary uses, he
or she is also entitled to use flowing water for any other purpose which the
common law has referred to as Aextraordinary use6, provided there is not
interference with the right of other riparian proprietors either a'ove or 'elow.23
#n this regard, :isdom has usefully o'served that+
A&u'ect to this condition, a riparian proprietor may dam up the
stream for the purposes of a mill, or divert the water for irrigation,
'ut he has no right to interrupt the regular flow of the stream, if he
there'y interferes with the lawful use of the water 'y other
proprietors and inflicts upon them a sensi'le inury. #n the exercise of
extraordinary rights ... a riparian proprietor is under considera'le
restrictions+ 1 a- the use must 'e reasona'le4 2- the purposes for
which the water is taken must 'e connected with his tenement4 3- he
is 'ound to restore the water which he has taken and uses for these
purposes su'stantially undiminished in volume and unaltered in
character.62@
20 $?*?- 3 T (?. This statement has since 'een cited with approval in many su'se0uent cases,
includingFrench 5oek Commissioner v 5ugo$??*- *@ T (24 (windon Water Co v Wilts Canal
Co$?)*- 8 ( h @*$42m-re& v 3wen$?*$- $** E8 *)(4 Chasemore v Richards $?*(- $$ E8
$@D4 and'ason v 5ill$?33- $$D E8 %(2.
21 $?)D- 23 T 3@@. This was affirmed in $?)DF 8 % h *)2.
22 &ee awrence C inAttwood v Lla& 'ain Collieries Ltd$(2%F $ h @@* at @*?.
23$?*?- 3 T (?.
249 :isdom, a'ove n ), at p.?).
?
-
8/10/2019 Riparian Rights in Paua New Guinea
9/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
#t is conceded that the courts have not 'een a'le to set out with some
degree of certainty what are extraordinary uses, 'ut availa'le case law
indicates that purposes associated with manufacturing,2* irrigation,2% and
damming of a river for milling2)may amount to extraordinary uses at common
law. >ut purposes associated with supplying a town 2?or a lunatic asylum and
ail2(have not 'een found to 'e reasona'le, since they were not connected with
the riparian tenement and therefore were not found to 'e allowa'le
extraordinary purposes. &ince there are no certain indicators either way, each
case is to 'e determined on its own circumstances and facts. The following
three cases are given simply as illustrations.
The first is 'cCartne& v Londonderr& and Lough (will& Railwa&
Compan& Ltd!89#n this case, the railway company proposed to a'stract water
from a natural stream at the point where the railway line crossed the natural
stream. That point was the only area where the property adoined the stream.
The railway company claimed that it had a right to a'stract the water via a pipe
along its railway line to a distant tank then used to work their locomotive
engines along the whole of their railway. The railway company"s proposed
activity would have adversely affected the plaintiffIappellant"s corn mill, which
was lower down the stream.
The House of ords first ruled that an Aowner of a tenement adoining a
natural stream has no right to divert the water to a place outside the tenement,
and there consume it for purposes unconnected with the tenement6.3$
9ccordingly, the railway company was refused permission for its proposal as
the facts showed that the purpose of the proposed a'straction was unconnected
with the land where its line crossed the stream. #n handing down udgment,
ord ;"!aghten also pertinently o'served+
25"akin v Cornish$?@*- % Ex 3%D. &ee also 9 Hudson., A#ndustry 9s 9 8iparian 7se6, $(*(- 22
'odern Law Review 3*.
262m-re& v 3wen $?*$- $** E8 *)(.
27elfast Ropeworks v o&d$??)- 2$ 8 #r *%D.
28(windon Waterworks Co v Wilts ) erks Canal Co $?)*- 33 T *$3.
29'edwa& Co v Romne& *2arl$?%$- $@2 E8 22%.
30$(D@F 9 3D$ H-.
31#-id.
(
-
8/10/2019 Riparian Rights in Paua New Guinea
10/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
AThere are, as it seems to me, three ways in which a person whose
lands are intersected or 'ounded 'y a running stream may use the
water to which the situation of his property gives him access. He may
use it for ordinary or primary purposes, for domestic purposes, and
the wants of his cattle. He may use it for some other purposes 1
sometimes called extraordinary or secondary purposes 1 provided
those purposes are connected with or incident to his land, and
provided that certain conditions are complied with. Then he may
possi'ly take advantage of his position to use the water for purposes
foreign to or unconnected with his riparian tenement. His rights in the
first two cases are not 0uite the same. #n the third case he has no right
at all.632
The next case is Attwood v Lla& 'ain Collieries Ltd!88 #n this case the
defendant o'tained from the plaintiff a mining lease for (( years. The land was
demised 'y the plaintiff to the defendant to construct and maintain a mineral
railway for the sole purpose of working the colliery and to a'stract water from
near'y streams or watercourses for purposes of working the colliery. #t 'ecame
apparent that the only piece of land which connected the defendant"s land to
the river 9lyn was a narrow strip of land with an average width of two yards
a'utting west on the river and extending eastward a'out half a mile, which was
used to construct the mineral railway. The defendant had erected a pumping
plant at the spot where the mineral railway crossed the river and extracted
a'out %DD,DDD gallons of water a week even though the plant was capa'le of
extracting, at its full capacity, three times that 0uantity-.
The plaintiff sought declarations that the defendant was not entitled to
a'stract water for extraordinary purposes. The court found that, on the
evidence 'efore it, Athe site of the defendant"s colliery works, where the water
a'stracted from the river was converted into steam, was too far from the 'ank
of the river to sustain the character of a riparian tenement6.3@
=urthermore, thecourt was of the view that Aeven assuming the site of the defendants" colliery
32$(D@F 9 3D$ at 3D%.
33$(2%F $ h @@@.
34$(2%F $ h @@@ at @@*.
$D
-
8/10/2019 Riparian Rights in Paua New Guinea
11/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
works to 'e a riparian tenement, the diversion and confiscation of part of the
water of the river 'y them was in excess of their right as riparian owners to the
use of the water for extraordinary purposes6.3*Thus the rationale for this ruling
seems to 'e that the volume of water the defendant a'stracted was excessive in
view of the fact that its riparian tenement was a mere narrow strip of land that
was used for the construction of a mineral railway. Hence the defendant"s use
of water was found to 'e an unauthorised extraordinary purpose.3%
The final case to consider here is >uckley C"s modern decision in Rug-&
+oint Water oard v Waters!8:The defendant had over 2DD acres of farm land
on the south 'ank of the 9von river, where he carried on a mixed farming'usiness, partly ara'le and partly dairy farming. His farm consisted of a
considera'le stretch of river 'ank land. =or irrigation, he constructed a
reservoir which had a holding capacity of 2*D,DDD gallons, with daily intake of
a'out 3D,DDD to @D,DDD gallons. The reservoir was fed 'y surface water and
water percolating through the soil and a natural ditch. He then installed a
system of spray irrigation and used spray irrigation mainly during the summer
months- rather than the traditional method of irrigation 'y flooding. =or
purposes of his spray irrigation, he sometimes drew water from the river when
he was not a'le to satisfy his needs from his reservoir. Traditional irrigation 'y
flooding would have allowed the 'ulk of the water to 'e returned to the river,'ut with spray irrigation, only a small proportion of water was ever returned to
the river due to direct evaporation into the atmosphere or from growing crops.
The plaintiff corporation was responsi'le for supplying water to the town
of 8ug'y. #ts principal source of supply was the river 9von, where it had a
statutory authority to take the whole flow of the river at a certain mill down1
stream from the defendant"s land. Hence, any considera'le loss of water from
the river was a matter of concern to it. The plaintiff was also a riparian
proprietor down1stream from the defendant"s land. Therefore, as a riparian
proprietor rather than as a result of any statutory powers, the plaintiff was
35#-id.
36This case applied the earlier House of ords decision in (windon Waterworks Co $?)*- 33 T
*$3, and'cCartne& $(D@F 9 3D$.
37$(%)F $ h 3() h /-.
$$
-
8/10/2019 Riparian Rights in Paua New Guinea
12/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
entitled to receive the full flow of the water at its mill, save insofar as it might
'e diminished 'y permissi'le uses 'y other riparian owners.
#n the plaintiff"s action seeking an inunction to restrain the defendant
from a'stracting water from the river for spray irrigation, the court found that
spray irrigation of the kind and on the scale employed 'y the defendant was not
an ordinary use of the river, nor was it an allowa'le extraordinary use. The
court held that+
A... a riparian owner was not entitled to take water from a stream for
extraordinary purposes without returning it to the stream from which
it came su'stantially undiminished in 0uantity, and the 0uestion
whether lower riparian owners had suffered any inury 'y such
a'straction was irrelevant, since they were entitled to complain
without proof of damage4 and that, since the greater part of the water
taken 'y the defendant from the river 9von for spray irrigation,
which was not an ordinary use, evaporated either directly from the
soil into the atmosphere or indirectly through the medium of growing
crops, the defendant was not ustified, as a riparian owner, in using
the water from the river for spray irrigation.63?
=urther to the a'ove, an upper riparian proprietor will not 'e allowed to
discharge water from other watercourses to the natural watercourse so as to
alter the natural character and 0uality of the natural watercourse. This point has
'een settled since the House of ords decision in +ohn 4oung And Co v
ankier "istiller& Co Ltd!8; The appellant, without any prescriptive rights,
poured into the natural riparian stream shared 'y the respondents a large 'ody
of water which it had pumped up from its mines, and 'y so doing increased the
0uantity and greatly altered the natural 0uality of the natural watercourse. The
court found in favour of the respondent and upheld the decision of the lower
court a'ating the appellant"s activity. #n handing down the decision, ord
;"!aghten, in particular, o'served+
38$(%)F $ h 3() at 3(?.
39$?(3F 9 %($.
$2
-
8/10/2019 Riparian Rights in Paua New Guinea
13/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
AThe appellants urged that working coal was the natural and proper
use of their mineral property. They said they could not continue work
unless they were permitted to discharge the water which accumulates
in their mine 1 and they argued that this watercourse is the natural
and proper channel to carry off the surplus water of the district. 9ll
that may 'e true4 'ut in this country at any rate it is not permissi'le in
such a case for a man to use his own property so as to inure the
property of his neigh'our.6@D
#t is also worth mentioning that a lower riparian proprietor is also under an
o'ligation to ensure that the natural flow of a river is not interfered with to
such an extent that it affects the free passage of fish up the river to the upper
riparian owner.@$
2. Riparian Rights and the Obstruction of Natural Flow
Here, # wish to consider 'riefly the extent of the rights and o'ligations of
the riparian proprietor in relation to the diversion of flood water, placing
erections on the river 'ed and the clearing of the watercourse- channel.
#n order to protect one"s land from flooding, a riparian owner on the 'anks
of a non1tidal river has the right to raise the river 'anks from time to time when
necessary to confine the flood water within the 'anks in order to prevent
overflowing onto the land, provided no inury to others is caused, that is
without causing actual inury to the riparian land either adacent, a'ove or
'elow.@2However+
A:hilst a riparian owner is entitled to protect his property from
flooding, he cannot for that purpose execute works of alteration to the
'ed of the stream which also have the effect of increasing its normal
flow and diminishing that past a near'y propertyF.6@3
40$?(3F 9 %($ at %(?.
41&eePririe ) (ons Ltd v
-
8/10/2019 Riparian Rights in Paua New Guinea
14/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
#n a situation where the riparian proprietor is su'ect to an extraordinary
flood, he or she is entitled to fence off the land and turn the flood away,
irrespective of the conse0uences for the other riparian neigh'ours. However, in
this instance, Athe action taken 'y the riparian owner must 'e in respect of
warding off a common danger and not merely to transfer to some other
person"s land a danger which exists on his own land6.@@
The next issue to 'e considered is the extent to which a riparian proprietor
can 'e allowed to place erections on the river 'ed in a non1tidal river.@*
Generally, at common law, Aeach riparian proprietor prima facie has the
property in the soil of the 'ed or alveusfrom his own side to the medium filumflumen, 'ut he is not entitled to use the alveusin such a manner as to interfere
with the natural flow of the water course or a'ridge the width of the stream, or
to interfere with its natural course6.@%The important issue here is whether the
activities of the riparian proprietor on the alveus,such as placing weirs or fish
traps, will interfere with the natural flow of the river, and whether such
interference will cause inury to the interest of the other riparian proprietors. #f
the answer to this is in the negative, the action may 'e allowa'le. This is 0uite
clear from the following passage+
A9 riparian owner may 'uild an erection on his land though covered
with water, so long as it does not interfere with any rights of
navigation, or with the rights of other riparian owners4 thus, an
o'struction cannot 'e erected in a stream so as to throw 'ack the
water on to an upper riparian owner"s land and there'y flood his land
or inure his mill ... su'ect to his right to catch fish, a riparian owner
is not entitled to erect o'structions which interfere with the free
44& :isdom, a'ove n ), at p (%. The case of 6i--ons v Lenfeste&$($*- $$3 T ** is usually cited
for the proposition that it is within an upper riparian proprietor"s right to throw natural water on the
lower land since that is a natural right inherent in property. However, the High ourt of 9ustralia in
6artner v
-
8/10/2019 Riparian Rights in Paua New Guinea
15/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
passage of fish which prevent fish from reaching the upper portions
of the river to the detriment of the upper owners.6@)
The last issue concerns the general clearing and maintenance of a
watercourse- channel. :here the channel 'ecomes silted up or is choked with
weeds and the like, as a result of natural causes, the riparian proprietor is under
no o'ligation at common law to clear and restore the channel.@?#n fact,
Aa riparian owner cannot remove a long continued natural accretion
of gravel or a shoal on the river 'ed so as to restore the flow of the
water to its former state as to velocity, direction and height4 nor is he
entitled to alter the level of a river 'y removing o'structions which
'y lapse of time have 'ecome em'edded and consolidated in and
form part of the river 'ed 5 6@(
C! The #mpact of (tatute Law on Riparian Rights
There is little dou't that the principal riparian rights to a'stract, impound,
divert or o'struct water have 'een considera'ly modified and in some instances
largely superseded 'y statutory controls.*D #n apua !ew Guinea, these
incidents of riparian rights are now given statutory recognition in ss 2$ and 22
of the Water Resources Acth 2D*-, 'ut with some modifications in that
restrictions are placed on the 0uantity and mode of taking. *$>ut it would 'e
wrong to suggest that statute law, 'y vesting all water flow and use rights in the
&tate and then esta'lishing an administrative system to allocate water use rights
'y way of licensing, has a'olished riparian rights.*2This reservation is 'ased
on simple logic, in that since riparian rights are an incident of property, namely
479 :isdom, a'ove n ), at p (2 and the cases cited there in support of these propositions.
489 :isdom, a'ove n ), at p (@.
49#-id,and the various cases cited there.
50=or the situation in England, see : Howarth ed-, a'ove n ), and 8 ;acrory, Water Law=Principles and Practice ongman, ondon $(?*-. =or the situation in 9ustralia, see the now
outdated 'ut still useful work 'y & lark and # 8enard, a'ove n $, and G >ates, a'ove n $*.
51&ee also Kalinoe, a'ove n @@ at h *, where this is discussed.
52=or example, see /avis, A!ationaliLation of :ater 7se 8ights 'y the 9ustralian &tates6, $()*-
($- >?L+$, and the earlier work 'y the same author, A9ustralian and 9merican :ater 9llocation&ystems ompared6, $(%?- (oston College #ndustrial and Commercial Law Review%@).
$*
-
8/10/2019 Riparian Rights in Paua New Guinea
16/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
riparian land, these rights cannot 'e a'olished outright without the
extinguishment of the riparian tenement in favour of the &tate or rown. &ince
riparian rights are interests in property, they cannot 'e unilaterally a'olished 'y
&tate legislation without ust compensation, nor Ain the a'sence of clear and
unmistaka'le language6.*3Hence, the preferred view is that of =ullagar C of the
High ourt of 9ustralia in Thorpes Ltd v 6rant Pastoral Co Pt& Ltd!@1There,
referring to the effect of s $ of the Water Rights Act0;B !&:- that vested
Athe right to the use and flow and control of water in all rivers and lakes6 in the
rown, and also in relation to !&: =ull ourt decision in 5anson v 6rass&
6ull& 6old 'ining Co,@@the udge said+
AThe effect given to the statute in5anson/scase means that a riparian
proprietor has no remedy as of right if a river is damaged 'y an upper
owner so that no water reaches him or if it is polluted and poisoned
'y the refuse of a factory ... The view which # am disposed to take is
that the 9ct does not directly affect any private right 'ut gives to the
rown new rights 1 not riparian rights 1 which are superior to, and
may 'e exercised in derogation of, private riparian rights, 'ut that,
until those new and superior rights are exercised, private rights can
and do co1exist with them.6*%
This view has also found favour among other respected commentators.*)#t
therefore follows that+
Aeven where licences have 'een issued to all landowners along a
river, the common law riparian right will survive to enoin an
upstream diverter from taking waters in excess of his licence, to the
53=ullagar C in Thorpes Ltd v 6rant Pastoral Co Pt& Ltd$(**- (2 8 3$).
54#-id.
55$(DD- 2$ 8 !&:- 2)$.
56$(**- (2 8 3$).
57& lark and # 8enard, AThe 8iparian /octrine 9nd 9ustralian egislation6, $()D- )'>RL@)*4
& lark and 9 ;yers, A
-
8/10/2019 Riparian Rights in Paua New Guinea
17/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
extent that it prevents an effective exercise of the right to the use as
redefined 'y statutory provisionsF .56*?
This view has 'een recently vindicated 'y a !&: &upreme ourt
decision, where ohen C held that riparian proprietors Aretained their residual
common law right to use and take water for domestic purposes without
sensi'le alteration in its character or 0uality" 6. *(#n that case, ohen C drew a
distinction 'etween the riparian proprietor"s right to the flowof water on the
one hand and the right to take and usewater on the other, and usefully stated
that the impact of statutory vesting of water rights in the rown was that the
statute vested the right to the flowin the rown, 'ut the riparian proprietors
retained residual common law rights to the taking and use of water.%D
erhaps another impact of statue law on riparian rights would 'e the
outright a'rogation of those uses known as e$traordinar& uses,as opposed to
those known as ordinar& useswhich have now 'een given statutory 'asis. This
view finds support in the following o'servation+
A8eference is still fre0uently made in legislationF to riparians and
riparian uses. The limits placed 'y legislationF on water use 'y
landholders on the 'anks of streams, means that the modern
e0uivalent to the common law ordinary use of water permitted to
riparians is restricted to specific tasks and may 'e suspended
altogether in some circumstances. The extraordinary use that was
permitted at common law to riparians has no e0uivalent andF such
uses are not permitted as of right.6%$
onse0uently, in relation to the exercise of any e$traordinar& purposes
and others not specified 'y statute, it appears that a riparian proprietor would
58& lark and # 8enard, a'ove n *%, at p *D*.
59an (on v Forestr& Commission of New (outh Wales$((*- ?% GE89 $D?.
60&ee M ipman, a'ove n *%, at pp 2$(122D.
619 /ragun and < Gleeson, A=rom :ater aw to Transfera'ility in !ew &outh :ales6, $(?(- 2(
Natural Resources +ournal %@*, at p %*D. :hilst the authors made this statement with particular
reference to the impact of the Water Act0;0D !&:-, the statement is considered to 'e of wider
relevance since, in most common law urisdictions, the common law riparian rights doctrinepreceded statute law, which sought to change or modify the common law.
$)
-
8/10/2019 Riparian Rights in Paua New Guinea
18/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
'e re0uired to o'tain the necessary water use permits from the relevant
authority ust like any other person.
"! Applica-ilit& of the Riparian Rights "octrine in Papua New 6uinea
9s mentioned earlier, the principles of common law and e0uity in England
that were found and applied 'y the English courts up until $% &eptem'er $()*,
the date when apua !ew Guinea attained independence, are adopted as part of
the underlying law 'y virtue of &ch 2.2 of the Constitution. The manner in
which the principles of common law and e0uity are adopted and are to 'e
applied are as specified in &ch 2.2$- of the Constitution,as set out a'ove. #t iso'vious from that provision that the relevant principles and rules of common
law and e0uity are to 'e applied in this country only in so far as they are not
inconsistent with a onstitutional aw,%2statute law, existing customary law or
where it is found that they are not applica'le or appropriate to the
circumstances prevailing in the country. #n this regard, the cautionary remarks
'y Kapi C in#am-ake& 3kuk v Fallscheerare apt+
A#n considering the appropriateness or applica'ility of the common
law principles to the circumstances of this country, one must not take
it for granted that these common law principles should apply, or on
the other hand, care must 'e taken in reecting these principles.6%3
#n accordance with Kapi C"s remarks, # would now like to consider separately
the factors to which the common law is su'ect in its applica'ility as part of the
underlying law in apua !ew Guinea.
62Aonstitutional aw6 means the Constitution, a law altering the Constitutionor an Brganic aw+
see &ch $.2 of the Constitution. 7nder s $2 of the Constitution, an ABrganic aw6 is a law made 'y
arliament on matters which the Constitutionhas expressly authorised and, therefore, has the same
force and effect as the Constitution itself.
63$(?DF !G8 2)@ at pp 2?*1?%.
$?
-
8/10/2019 Riparian Rights in Paua New Guinea
19/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
1. Common aw and !tatute aw
This category of exception is, of course, in keeping with the age old
tradition of the common law that it is, in all instances, su'ect to statute.
However, the task here is to identify and consider any statute in apua !ew
Guinea to which the particular rule of common law may 'e su'ect.
The Water Resources Acth 2D*- appears to 'e the only statute that has
not so much a'rogated or extinguished the common law doctrine of riparian
rights 'ut has variedthe extent of the application of the common law doctrine
'y making it su'ect to the legislation and giving most of the incidents of
riparian rights associated with Aordinary use6 a statutory 'asis. This has 'een
effected through the following scheme. =irst, under s * of the 9ct, with the
exception of customary water use rights and those water use rights associated
with domestic use, prescri'ed recreational use and other prescri'ed purposes,
all Arights to the use, flow and control of water is vested in the &tate6. %@
#t is important to note that this section neither confers Aownership6 of
water resources on the &tate nor extinguishes riparian rights as they exist at
common law, 'ut merely creates a re'utta'le presumption of a superior
usufructuary interest in the &tate.%*&econdly, under s 22 of the 9ct, a riparian
proprietor is allowed to take water without charge Afor domestic purposes, andfor watering the stock, of himself, of mem'ers of his family resident on the
land and of his employees so resident6,%%and further to have a general right of
access Afor himself, those mem'ers of his family and those employees and for
his and their stock to the part of the 'ed and 'ank of the watercourse or lake
adoining the land of which he is the owner or occupier6.%)
Bther than the a'ove, any person, including a riparian proprietor, who
wishes to use water for purposes other than domestic, stock watering,
customary, or fire fighting, is re0uired to o'tain a water use permit from the
administrative authority, the >ureau of :ater 8esources, under ss 2?13$ of the
64&ection *$- Water Resources Acth 2D* of the 8evised aws-.
65=or support in this line of reasoning, see & lark and 9 ;yers, a'ove n *%, at p 2@3.
66&ection 22 $-a-.
67&ection 22 $-'-.
$(
-
8/10/2019 Riparian Rights in Paua New Guinea
20/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
9ct.%? This therefore means that the riparian proprietor"s rights for
Aextraordinary purposes6, as allowed under common law, are effectively
curtailed, and to some extent a'rogated. 9part from that, it is fair to conclude
that a riparian proprietor"s rights to Aordinary use6, as known at common law,
still su'sist. This conclusion is 'ased on the fact that the statute in 0uestion did
not extinguish riparian rights 'ut merely regulated, in some instances, the
exercise of riparian rights 'y giving such riparian rights that is, those
associated with Aordinary use6- a statutory 'asis.%(This in turn means that it
would 'e 0uite proper and legitimate for a riparian proprietor in apua !ew
Guinea to assert on the 'asis of his or her common law right to Aordinary use6
for domestic purposes, etc- to 'e entitled+ a- to the flow of water down to his
or her property and '- to have such flow of water in its natural state and, to
some extent, 0uality.)D
2. Common aw and Custom
The next issue is whether the particular principle of common law is
inconsistent with the custom or customary law of the indigenous inha'itants of
apua !ew Guinea. #f the particular principle of common law is not
inconsistent with custom, then the common law can 'e adopted and applied as
part of the underlying law in apua !ew Guinea.)$
ustomary water rights and the common law riparian rights doctrine have
a strikingly similar 'asis and incidents, in that+
a- in 'oth instances, the ownership of riparian land is the 'asis of
ac0uiring water use rights4
'- the lower riparian is e0ually entitled as the upper riparian to the
flow of the water in its natural state and 0uality4 and
68&ee Kalinoe A:ater 8esources ;anagement in apua !ew Guinea+ aw, olicy and
ractice6, $((@- 22'el L+23 at pp 3D132.
69&ee reference to h 2D*, a'ove n %3.
70#n this regard, note that despite the fact that the plaintiffs in Rug-& +oint Water oard v Waters
$(%)F $ h 3() had statutory right to the maximum flow of the 9von 8iver, they successfully relied
on the common law riparian right to enoin the defendant+ see text to n 3% a'ove. &ee also M ipman,
a'ove n *%.
71&chedule 2.2$-c- of the Constitution. !ote that in the hierarchy of laws in apua !ew Guinea
under s ( of the Constitution, common law is su'ect to custom.
2D
-
8/10/2019 Riparian Rights in Paua New Guinea
21/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
c- in a naviga'le watercourse, the right of navigation of all people,including non1riparians, is acknowledged and guaranteed.)2
#t is safe to conclude that the common law doctrine of riparian rights is not
inconsistent with the relevant custom relating to water use rights as known,
o'served and practised 'y the people indigenous to apua !ew Guinea. #n
other words, since the common law riparian rights doctrine is consistent with
customary water rights, it is capa'le of applying in apua !ew Guinea as part
of the underlying law.
". The Circumstantial #pplicabilit$ Rule
This rule exists in most, if not all ommonwealth countries and former
colonies of the old >ritish Empire. The rationale 'ehind this rule is well
expressed 'y ord /enning in N&ali Ltd v Attorne&76eneral: 8 in
the following terms+
72&ee Kalinoe, a'ove n @@, where these points are discussed in detail.
73$(*%F $ N> $.
2$
-
8/10/2019 Riparian Rights in Paua New Guinea
22/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
AThe next proviso provides, however, that the common law is to
apply su'ect to such 0ualifications as local circumstances render
necessary". This wise provision should, # think, 'e li'erally
construed. #t is a recognition that the common law cannot 'e applied
in a foreign land without considera'le 0ualification. Cust as with an
English oak, so with the English common law. Oou cannot transplant
it to the 9frican continent and expect it to retain the tough character
which it has in England. #t will flourish indeed, 'ut it needs careful
tending. &o with the common law. #t has many principles of manifest
ustice and good sense which can 'e applied with advantages to
peoples of every race and colour all the world over+ 'ut it has so
many refinements, su'tleties and technicalities which are not suited
to other folk. These off1shoots must 'e cut away. #n these far1off
lands the people must have a law which they understand and which
they will respect. The common law cannot fulfill this role except with
considera'le 0ualifications. The task of making these 0ualifications is
entrusted to the udges of these lands. #t is a great task which calls for
all their wisdom.6)@
B'viously the local circumstances which are re0uired to 'e taken into
consideration when deciding on the reception of the common law into apua
!ew Guinea would, in the main, include the socio1economic and political
circumstances and structures as partly em'odied in the !ational Goals and
/irective rinciples of the ream'le to the Constitution, the implications of
relevant onstitutional aws and statutes, and prevailing customs and
practices.)*
9ccordingly then, when the a'ove factors are considered to determine the
circumstantial applica'ility of the common law riparian rights doctrine, there
appear to 'e no specific or particular pro'lems of application. Hence, the
common law riparian rights doctrine clearly passes the circumstantialapplica'ility test.
74$(*%F $ N> $ at $%1$).
75=or example, see (CR No 1 of 0;9E Re Petition of (omare$(?$F !G8 2%*.
22
-
8/10/2019 Riparian Rights in Paua New Guinea
23/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#
2! Conclusion
#t is my considered view that the common law riparian rights doctrine, as
'riefly set out a'ove, greatly resem'les customary water rights in apua !ew
Guinea in terms of their 'asic concepts and the incidents they share. >oth
concepts are 'ased on the ownership of riparian land, and some of the incidents
which they have in common relate to the e0ual rights to the flow and use of
water in its natural state, 0uality and, to some extent, 0uantity.
&tatute law, namely the Water Resources Act h 2D*-, has not
extinguished the common law riparian rights doctrine in apua !ew Guinea
'ut has greatly modified the extent of its application 'y restricting it to those
uses known at common law as Aordinary uses,6 which generally include
domestic and stock watering purposes. The main casualty of the impairment of
the riparian rights doctrine in apua !ew Guinea 'y this statute is the demise
of those purposes known at common law as Aextraordinary uses6, which
generally include purposes associated with irrigation, manufacturing and
damming of rivers for milling, and the like.
:hen the extent of the applica'ility of the common law riparian rights
doctrine is considered against the re0uirement of &ch 2.2 of the Constitution,
there are no impediments in terms of any inconsistencies with statute or withcustom, nor any pro'lems with the circumstantial applica'ility test.
Hence, it can 'e safely concluded that the common law riparian rights
doctrine, su'ect to the Water Resources Acth 2D*-, exists and applies in
apua !ew Guinea as part of that 'ody of law known as the underlying law. #t
follows that any impairment of the Aordinary water- use6 rights of a riparian
proprietor whether a leaseholder or freeholder or customary owner of the land-
can 'e protected either under the Water Resources Acth 2D*- or under the
common law riparian rights doctrine.
23
-
8/10/2019 Riparian Rights in Paua New Guinea
24/24
&&'(&&)T*+C,--,NLA.RIPARIANRIG*T#