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Fiji Legislation |
LAWS OF FIJI
Rev Edition 1985]
CHAPTER 136
RIVERS AND STREAMS
TABLE OF PROVISIONS
SECTION
1.
Short
title
2.
What waters shall be open to the
public
3.
Easement on the banks of waters open to the
public
4.
Public rights of way already existing or powers of Crown not to be
affected
5.
What streams shall be open to the
public
6.
Upper courses of rivers to be deemed
streams
7.
Persons living near rivers shall have same rights as public and may be granted
other rights
8.
Where temporary water-rights may be
granted
9.
Individual rights to be subordinate to the preservation of public
rights
10.
Application to be made to the Director for authority to erect wharves,
etc.
11. Director may grant or refuse application
12.
Application, if granted, to be forwarded to Registrar of Titles for
registration
13.
Provisions of this Act not to extend to rivers and streams in certain
cases
14.
Water-rights and licences not to be of
nature of
personalty
15.
Fees
16.
Grantee of water-right to have right of easement on adjoining lands where
necessary
17.
Water-rights to be described and
defined
18.
River boards
---------------------------------------
Ordinances
Nos. 14 of 1880, 10 of 1925, 2 of
1945,
12 of 1962,
37 of 1966, 66 of
1968,
Legal
Notices Nos. 112 of 1970, 118 of 1970
AN
ACT TO DEFINE THE PUBLIC RIGHTS IN
THE
RIVERS AND
STREAMS OF FIJI
[11 March 1882]
Short title
1.
This Act may be cited as the Rivers and Streams Act.
What waters shall be open to the public
2. All waters in Fiji which the natives have been accustomed to traverse in takias or canoes, whether the same be navigable for vessels built on the European model or not, and whether the tide flows and reflows in the river or at the particular part thereof navigable by takias or canoes or not, which are hereinafter styled "rivers", and also those waters which are included by the term "rivers" by the law of England, shall, with the soil under the same, belong to the Crown and be perpetually open to the public for the enjoyment of all rights incident to rivers.
Easement on the banks of waters open to the public
3.
The banks of the said rivers to the breadth of 20 feet from the ordinary
water-line in the wet season and the highest spring tide
shall be subject to an
easement in favour of the public for all purposes necessarily incident to the
free use of the rivers:
Provided
that, if, in any area constituted under section
5
of the Town Planning Act as a town
planning area, any land on the bank of a river which is subject to the easement
created by this section be scheduled in
a town planning scheme for any use other
than use by the general public, or if interim development permission is granted
in respect
of such land for any use other than use by the general public, the
easement created by this section shall thereupon
cease.
(Cap.
139.)
(Amended by
Ordinance 12 of 1962, s. 2; Legal Notice 118 of 1970.)
Public rights of way already existing or powers of Crown not to be affected
4.
The provision in
section
3 shall not be construed-
(a) as impairing the public right in any path or right of way along the said banks to a greater breadth than 20 feet where any such right existed prior to 11 March 1882 or which hereafter may be created; or
(b) so as to limit the power of the Crown to take any greater breadth of adjacent land for the construction of public highways for land traffic under any reservations in Crown grants or by virtue of any Act, or otherwise.
What streams shall be open to the public
5.
All streams, whether forming the effluents and feeders of rivers and streams or
themselves flowing directly to the sea, with the
bed thereof belong to the
Crown, to be perpetually open to the public for all purposes for which streams
may be enjoyed.
Upper courses of rivers to be deemed streams
6.
The upper courses of rivers above the portions navigated or navigable by takias
or canoes shall be considered as streams for the
purposes of section
5.
Persons living near rivers shall have same rights as public and may be granted other rights
7.
Proprietors of land or towns and villages or inhabitants adjacent to rivers or
streams shall not only have the fullest enjoyment
of the same as part of the
public but they may also be granted by the Director of Lands and
Surveyor-General* (hereinafter in this
Ordinance referred to as "the Director")
special rights to lead off, for purposes of irrigation, industry, agriculture or
domestic
use or other uses beneficial to their property, such portion of water
as may be agreed on, the water remaining after the special
purpose is served for
which the water-right is granted being, in all cases, restored to the river,
stream or water-course:
Provided
that the Director shall not grant any special right for a term exceeding 25
years without the prior approval of the
Minister.
(Amended
by Ordinance 12 of 1962, s. 3; Legal Notice 112 of
1970.)
*See
Legal Notice No. 60 of
1978.
Where temporary water-rights may be granted
8.
In seasons of drought, a temporary water-right of the nature described in
section
7
may be allowed by an officer authorised in writing for this purpose by the
Director to any proprietor adjacent to the river or stream,
upon such terms as
he may think proper, but no such temporary right shall exist for a period longer
than one year, and the granting
thereof shall be reported by the authorised
officer without delay to the Director.
Individual rights to be subordinate to the preservation of public rights
9.
In the granting of such permanent or temporary water-rights, due regard shall be
paid to the wants of other proprietors and of towns,
villages or residences on
the banks of such river or stream lower down than the property for which the
water-right is prayed for,
any private right or benefit to be deemed secondary
and subordinate to the public use of the river or stream.
Application to be made to the Director for authority to erect wharves, etc.
10.-(1)
Where any proprietor or lessee of land adjacent to any river desires to
establish a wharf, pier, landing-place or any building
or erection of a
permanent character, for the purposes of his property, upon the bank within the
extent of the 20 feet mentioned
in section
3,
or wholly or partially within the waters of such river, so as to interfere with
or encroach on the free public right thereto or
to the easement of the banks of
rivers hereinbefore provided for, an application shall be made to the Director
for a licence so to
do.
(2) The
applicant shall advertise such application in a manner approved by the Director
as being sufficient to bring the nature of
the licence applied for to the notice
of those members of the public concerned, in 2 consecutive issues of the Gazette
and in 2 consecutive
issues of a newspaper circulating in Fiji.
(3) Any person wishing to
object to the grant of such licence shall, within 30 days of the date of the
latest advertisement, submit
the grounds of his objection to the
Director.
Director may grant or refuse application
11.-(1)
The Director, after hearing the applicant and any person opposing the granting
of the licence applied for, and after any further
or additional intimation which
may seem desirable, may grant or refuse such licence as shall seem meet, with a
due regard to the
encouragement of private enterprise, the public necessities
and convenience and the preservation of the public rights in such
rivers.
(2) The decision of the
Director, together with a brief summary of the reasons therefor, shall be
conveyed in writing to every applicant
and every objector, and every applicant
and objector shall have a right of appeal to the Minister against such
decision.
(Inserted
by Ordinance 12 of 1962, s. 6; amended by Legal Notice 112 of
1970.)
(3) Every appeal shall be
submitted to the Director for onward transmission to the Minister within 30 days
of the receipt of the notification
of the Director's
decision.
(Inserted
by Ordinance 12 of 1962, s. 6; amended by Legal Notice 112 of
1970.)
(4) The decision of the
Minister shall be
final.
(Inserted
by Ordinance 12 of 1962, s. 6; amended by Legal Notice 112 of
1970.)
(5) If an appeal is lodged,
no licence shall be issued by the Director until the Minister has given his
decision.
(Inserted
by Ordinance 12 of 1962, s. 6; amended by Legal Notice 112 of 1970.)
Application, if granted, to be forwarded to Registrar of Titles for registration
12.-(1)
As soon as any water-right or licence has been granted under the provisions of
section
7,
it shall be the duty of the Director to transmit a copy thereof, together with
plans or diagrams relating thereto, to the Registrar
of Titles, who shall enter
a record thereof in a register to be styled the "Register of River
Rights".
(2) When such water-right
or licence has been granted, it shall be conclusive in all questions which may
thereafter be raised in any
court of law as to the right of the person to whom
authority has been so granted as between himself and other riparian proprietors
or other proprietors or members of the public
whomsoever.
(Section
amended by Ordinance 12 of 1962, s. 7; subsection (1) amended by Ordinance 66 of
1968, s. 2.)
Provisions of this Act not to extend to rivers and streams in certain cases
13.
The provisions of this Act shall not apply to any river or stream which rises,
flows and falls into any other river or stream or
into the sea wholly within the
island or property belonging to a single proprietor which, unless the same be
navigable in the meaning
of the law of England, shall not be subject to the
public rights and uses by this Act recognized and defined, but,
if-
(a) the said island or property shall, at any time hereafter, be divided among more proprietors than one so that the river or stream shall cease to flow wholly through the property of the one proprietor; or
(b) towns, villages or residences be established on the banks of any such river or stream,
then
the same shall cease to be excepted from the provisions of this Act and the law
applicable to other rivers and streams of Fiji
shall be applicable
thereto.
Water-rights and licences not to be of nature of personalty
14.
Water-rights granted under the provisions of section
7
and licences granted under the provisions of section
11,
when granted in connection with any specified property or residence, shall not
be of the nature of personalty but shall be real
rights attached for the time
they are granted to the property or residence in respect of which they are given
and, in all transfers,
transmissions and certificates of title of the lands,
they may be referred to after the description of the lands and by reference
to
the entry made thereof in the Register of River Rights as transferred. or
transmitted with the lands themselves, and all transfers
and transmissions of
river rights shall be duly recorded in such
register.
(Amended
by Ordinance 12 of 1962, s. 8.)
Fees
15.
The Registrar of Titles, with the approval of the Ministers shall prescribe the
fees to be charged by him or by the Director under
the provisions of this
Act.
(Substituted
by Ordinance 37 of 1966, s. 47; amended by Ordinance 66 of 1968, s. 2; Legal
Notice 112 of 1970.)
Grantee of water-right to have right of easement on adjoining lands where necessary
16.-(1)
When a right to water has been granted which cannot be conveniently enjoyed by
the grantee, unless he have power to take the
quantity of water granted at a
point higher up the river than the property or residence in respect of which the
grant is made, the
grantee shall have the right to the easement of taking the
water in pipes or otherwise under or above the surface, as may be arranged
with
the proprietors of the lands above, through the properties of such proprietors
as may lie between the property or residence
in respect of which the water has
been granted and the point at which the water may be most beneficially taken
from the river for
the purpose for which it is
granted.
(2) Any dispute or
difference in relation to the mode of taking the water or the point from which
it may most beneficially be taken
shall be determined by the
Director.
(Amended
by Ordinance 12 of 1962, s. 10.)
Water-rights to be described and defined
17.
The Director, in granting a water-right, shall describe and define it either by
the size of the pipe through which the water is to
be carried or the number of
cubic inches of water per hour which is granted or by any other more improved
method which may be in
use for the time being for defining such right, and the
dams, works, apertures or pipes necessary for the carrying off of the definite
quantity granted shall be executed under the direction of the Director or his
authorised agent.
River boards
18.-(1)
The Commissioner of each Division may appoint river boards within such Division,
to consist of 3 persons, who shall have power
to make regulations, subject to
the approval of the Governor in Council and not inconsistent with this Act or
any regulations made
under the Marine Board Act or the Harbour Act, generally
for the maintenance of facilities for traffic and the safety of traffic
upon
rivers and streams and may prescribe penalties for the breach
thereof.
(Inserted
by Ordinance 10 of 1925, s. 2; amended by Ordinance 2 of 1945, s.
12.)
(Cap. 183.) (Cap. 184.)
(2) Every such river board
shall, in the month of January in each year, render to the Commissioner a brief
annual report, together
with the accounts of the board for the preceding
year.
(Inserted by Ordinance 2 of 1945, s. 12.)
Controlled by Ministry of Lands, Energy and Mineral Resources
------------------------------------------
Subsidiary
Legislation
CHAPTER 136
RIVERS AND STREAMS
________
SECTION
15-RIVERS
AND STREAMS (FEES)
REGULATIONS
________
TABLE
OF PROVISIONS
________
REGULATION
1.
Short
title
2.
Fees
Schedule-Fees
________
Regulations 12 August 1966
Short title
1.
These Regulations may be cited as the Rivers and Streams (Fees)
Regulations.
Fees
2.
The fees specified in the Schedule shall be charged by the Registrar of Titles
or the Director, as the case may be, in respect of
the several matters specified
in the Schedule.
SCHEDULE
(Regulation
2)
________
FEES
$ c
1. Filing application for
water-right or wharf licence ..............................................
2.00
2. Preparation of water-right or
wharf licence (exclusive of plan) .......................... 6.30
Provided that, where special clauses are required, this fee
may, at the discretion of the Director, be increased to an
amount not exceeding $12.60.
3.
For plan drawn on the water-right or wharf licence
..........................................
10.50
4. For plan if photostat copies
are attached to water-right or wharf
licence......................................................................................................................
4.20
5. Application for consent for
transfer or transmission of
water-right
or wharf licence
.......................................................................................................
2.10
6. Certified copy of lost or
destroyed water-right or wharf licence.........................
4.00
7. Registering authority for
wharves, etc., under the provisions
of
section
10
of the Act and first certificate copy of
register....................................... 6.00
8. Registering water-rights granted
under the provisions of the Act
and
first certificate or certified copy of register
...................................................... 1.00
9. Subsequent certificate copy from
register showing existence
of
authorities and water-rights
.....................................................................................
2.00
10. Registering of transfer or
transmission of water-rights .....................................
1.00
11. Search of register
...............................................................................................
0.50
Controlled by Ministry of Lands, Energy and Mineral Resources
----------------------------------------------
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