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?@.


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&&'(&&)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


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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


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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.

@


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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?%.

*


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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 %(?.

%


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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 ?%.

)


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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.?).

?


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#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.

(


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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


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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 /-.

$$


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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


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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


14/24


#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


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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%@).

$*


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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


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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.

$)


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'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?%.

$?


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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 $-'-.

$(


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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


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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$


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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


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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.

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riparian rights in paua new guinea

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