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The Common Law Riparian Rights Doctrine and it's Applicability in Papua New Guinea [1998] MLJ 2; [1998-99] 26 MLJ 37 (1 January 1998)

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 corpus of running water.^[1] Hence the common law developed the riparian rights doctrine as a response to the peculiar characteristics of water.^[2]

The common law of England as it stood on the eve of Papua New Guinea’s Independence on 16 September 1975 was adopted as part of the underlying law of Papua New Guinea under Sch 2.2 of the Constitution, which reads:

“Sch.2.2. Adoption of a common law.

(1) Subject to this Part, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England are adopted, and shall be applied and enforced, as part of the underlying law, except if, and to the extent that -

(a) they are inconsistent with a Constitutional Law or a statute; or

(b) they are inapplicable or inappropriate to the circumstances of the country from time to time; or

(c) in their application to any particular matter they are inconsistent with custom as adopted by Part 1. ... ”

“Custom” is defined in Sch 1.2 of the Constitution to mean:

“the customs and usages of indigenous inhabitants of the country existing in relation to the matter in question ... regardless of whether or not the custom or usage has existed from time immemorial.”

Hence, subject to the conditions of Sch 2.2(1), that particular part of the English common law pertaining to riparian rights, ie the riparian rights doctrine, can apply in Papua New Guinea as part of the underlying law.^[3]

In this paper I first consider the basic tenets of the riparian rights doctrine and its associated incidents at common law, and then discuss the extent of its application in Papua New Guinea in view of the provisions of Sch 2.2 of the Constitution, as set out above. 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 Papua New Guinea.

B. The Riparian Rights Doctrine and its Incidents at Common Law

In essence, the basic tenet of the riparian rights doctrine is that any person who owns and occupies land on the bank of a natural stream acquires water use rights which are commonly known as “riparian rights” by virtue of the occupation of that land. It 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 be acquired or disposed of without the riparian land. That is the reason why riparian rights are said to be “attached to or incident to riparian land”.^[4] One of the often cited statements for the proposition that riparian rights are an incident of riparian land is that of Lord Wensleydale in Chasemore v Richards:

“The subject of rights to streams of water flowing on the surface has been of late years fully discussed, and, by a series of carefully considered judgements, placed on a clear and satisfactory footing. It has been settled that the right to the enjoyment of a natural stream of water on the surface, ex jure naturae, belongs to the proprietor of the adjoining lands, as a natural incident to the right to the soil itself, and that he is entitled to the benefit of it, as he is to all the other advantages belonging 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, quantity and quality, and to go from him without obstruction, upon the same principle that he is entitled to the support of his neighbour’s soil for his own in its natural state. His right in no way depends upon prescription or the presumed grant of his neighbour.”^[5]

For a proprietor actually to have riparian rights, it is necessary that the riparian land be in actual contact, whether laterally or vertically, with the watercourse. Hence, in Attwood v Llay Main Collieries Ltd,^[6] where the defendants claimed riparian rights on the basis that a 22-yard-wide mineral railway strip connected their land to the river, Lawrence J found that the defendants’ colliery works, where the water abstracted from the river was converted into a stream, was too far from the bank of the river to sustain the character of a riparian tenement, and accordingly, found against the defendants. With reference to this case, the late AS Wisdom pertinently observed:

“Whether a particular piece of land sustains the character of a riparian tenement is a question of fact, and must be determined according to the special circumstances. For riparian rights properly so named to arise, the land must be in actual contact with the stream, but lateral contact is as good jure naturae as 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. In the case of a tidal river, where the foreshore is left bare at low water, although the bank 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. Whilst the right of a riparian owner on the banks of a tidal navigable river exists jure naturae, it is essential to its existence that this land should be in contact with the flow of the stream, at least at the times of ordinary high tides.”^[7]

Riparian rights never accrue from the ownership of the river bed. This point is made clear by Lord Selborne in Lyon v Fishmongers Co, where he said that the ownership of the bed of a river “cannot be the natural foundation of riparian rights properly so called, because the word ‘riparian’ is relative to the bank, and not to the bed, of the stream ...”.^[8] Different presumptions of law exist concerning the ownership of river beds: generally, that in the case of a navigable tidal river, the Crown is prima facie presumed to be the owner whereas in the case of a non-tidal watercourse, the riparian proprietors are, prima facie, entitled to the soil of the bed usque ad medium aquae. These concepts are discussed later as related incidents of the riparian rights doctrine. Particularly in a navigable tidal watercourse, riparian rights are subject to the public right of navigation. This is apparent from the statement by Lord Cairns in the same case that:^[9]

“whereas in a non-navigable river all the riparian owners might combine to divert or pollute or diminish the stream, in a navigable river the public right to navigation would intervene, and prevent this being done.”

Riparian rights are only attainable in relation to water in a natural watercourse flowing in known and defined channels ex jure naturae, whether upon or below the surface of the ground.^[10] It therefore follows that the riparian rights doctrine has no application in the following situations:^[11]

(a) where a flow of surface water squanders itself over an undefined area;

(b) 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)^[12]; and

(c) plainly artificial watercourses unless the origin and purpose for which such watercourse was built is unknown and over time has acquired the character of a natural watercourse (as was the case in Bailey & Co v Clark, Son & Morland).^[13]

The classic dictum by Parke B in Embery v Owen best describes the substance and context of riparian rights, as follows:^[14]

“The 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 passes; but flowing water is publici juris, not in the sense that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably 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 abstract from the stream and take into his possession, and that during the time of his possession only. ... But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it.”

And the entitlements of a riparian rights holder are as enunciated by Lord M’Naghten in John Young and Co v Bankier Distillery Co Ltd, where it was said:

“A riparian proprietor is entitled to have the water of the stream, on the banks of which his property lies, flow down as it has been accustomed to flow down on his property, subject to the ordinary use of the flowing water by upper proprietors, and to such further use, if any, on their part in connection with their property as may be reasonable under the circumstances. Every riparian proprietor is thus entitled to the water of his stream, in its natural flow, without sensible diminution or increase and without sensible alteration in its character or quality.”^[15]

With rights, there also go obligations so that the exercise of that right must not cause hardship and injury to others. Accordingly, the obligations of riparian right holders are as stated by Lord Denman in Mason v Hill:^[16]

“[T]he 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 above and below ... [N]either can any proprietor above diminish the quantity, or injure the quality of water, which would otherwise descend, nor can any proprietor below throw back the water without his licence or grant.”

Having stated the basic tenets of the riparian rights doctrine, I now consider the extent to which riparian rights can be exercised. Before that is done, it is useful to bear in mind that a riparian proprietor is entitled: (a) to have the water flow down to the property, and (b) to enjoy it in its natural state in terms of quality and to some extent, quantity, ie “without sensible diminution or increase and without sensible alteration in its character or quality”.^[17]

1. The Exercise of Riparian Rights

A riparian proprietor is entitled to abstract, divert and/or use water for purposes which the common law has recognised as “ordinary uses” or “extraordinary uses”. In the case of ordinary use, sometimes referred to as “primary use”, of flowing water, there are effectively no restrictions. This prompted one commentator to observe that in the category of ordinary primary use, “a 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 complain”.^[18] This of course, leads to the question, what are “ordinary uses”? This question has been answered by Lord Kingsdown in Mine v Gilmour:

“By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land - for instance, to the reasonable use of the water for his domestic purposes and for his cattle; and this without regard to the effect which such use may have in case of a deficiency upon proprietors lower down the stream.”^[19]

And in relation to what is meant by “domestic purposes”, Lord Romilly MR quite unequivocally stated in Attorney-General v Great Eastern Railway that “domestic purposes unquestionably would extend to culinary purposes; to the purposes of cleansing and washing, feeding and supplying the ordinary quantity of cattle, and so on”.^[20] This entitlement to use water for ordinary uses is, however, to be exercised with reasonable care and for purposes connected with the riparian tenement.^[21]

Further 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 “extraordinary use”, provided there is not interference with the right of other riparian proprietors either above or below.^[22] In this regard, Wisdom has usefully observed that:

“Subject to this condition, a riparian proprietor may dam up the stream for the purposes of a mill, or divert the water for irrigation, but he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors and inflicts upon them a sensible injury. In the exercise of extraordinary rights ... a riparian proprietor is under considerable restrictions: - (a) the use must be reasonable; (2) the purposes for which the water is taken must be connected with his tenement; (3) he is bound to restore the water which he has taken and uses for these purposes substantially undiminished in volume and unaltered in character.”^[23]

It is conceded that the courts have not been able to set out with some degree of certainty what are extraordinary uses, but available case law indicates that purposes associated with manufacturing,^[24] irrigation,^[25] and damming of a river for milling^[26] may amount to extraordinary uses at common law. But purposes associated with supplying a town^[27] or a lunatic asylum and jail^[28] have not been found to be reasonable, since they were not connected with the riparian tenement and therefore were not found to be allowable extraordinary purposes. Since there are no certain indicators either way, each case is to be determined on its own circumstances and facts. The following three cases are given simply as illustrations.

The first is McCartney v Londonderry and Lough Swilly Railway Company Ltd.^[29] In this case, the railway company proposed to abstract 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 adjoined the stream. The railway company claimed that it had a right to abstract 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 plaintiff/appellant’s corn mill, which was lower down the stream.

The House of Lords first ruled that an “owner of a tenement adjoining 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 tenement”.^[30] Accordingly, the railway company was refused permission for its proposal as the facts showed that the purpose of the proposed abstraction was unconnected with the land where its line crossed the stream. In handing down judgment, Lord M’Naghten also pertinently observed:

“There are, as it seems to me, three ways in which a person whose lands are intersected or bounded by 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 - sometimes called extraordinary or secondary purposes - provided those purposes are connected with or incident to his land, and provided that certain conditions are complied with. Then he may possibly 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 quite the same. In the third case he has no right at all.”^[31]

The next case is Attwood v Llay Main Collieries Ltd.^[32] In this case the defendant obtained from the plaintiff a mining lease for 99 years. The land was demised by the plaintiff to the defendant to construct and maintain a mineral railway for the sole purpose of working the colliery and to abstract water from nearby streams or watercourses for purposes of working the colliery. It became apparent that the only piece of land which connected the defendant’s land to the river Alyn was a narrow strip of land with an average width of two yards abutting west on the river and extending eastward about 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 about 600,000 gallons of water a week (even though the plant was capable of extracting, at its full capacity, three times that quantity).

The plaintiff sought declarations that the defendant was not entitled to abstract water for extraordinary purposes. The court found that, on the evidence before it, “the site of the defendant’s colliery works, where the water abstracted from the river was converted into steam, was too far from the bank of the river to sustain the character of a riparian tenement”.^[33] Furthermore, the court was of the view that “even assuming the site of the defendants’ colliery works to be a riparian tenement, the diversion and confiscation of part of the water of the river by them was in excess of their right as riparian owners to the use of the water for extraordinary purposes”.^[34] Thus the rationale for this ruling seems to be that the volume of water the defendant abstracted 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 be an unauthorised extraordinary purpose.^[35]

The final case to consider here is Buckley J’s modern decision in Rugby Joint Water Board v Waters.^[36] The defendant had over 200 acres of farm land on the south bank of the Avon river, where he carried on a mixed farming business, partly arable and partly dairy farming. His farm consisted of a considerable stretch of river bank land. For irrigation, he constructed a reservoir which had a holding capacity of 250,000 gallons, with daily intake of about 30,000 to 40,000 gallons. The reservoir was fed by 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 by flooding. For purposes of his spray irrigation, he sometimes drew water from the river when he was not able to satisfy his needs from his reservoir. Traditional irrigation by flooding would have allowed the bulk of the water to be returned to the river, but 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 responsible for supplying water to the town of Rugby. Its principal source of supply was the river Avon, where it had a statutory authority to take the whole flow of the river at a certain mill down-stream from the defendant’s land. Hence, any considerable loss of water from the river was a matter of concern to it. The plaintiff was also a riparian proprietor down-stream from the defendant’s land. Therefore, as a riparian proprietor rather than as a result of any statutory powers, the plaintiff was entitled to receive the full flow of the water at its mill, save insofar as it might be diminished by permissible uses by other riparian owners.

In the plaintiff’s action seeking an injunction to restrain the defendant from abstracting water from the river for spray irrigation, the court found that spray irrigation of the kind and on the scale employed by the defendant was not an ordinary use of the river, nor was it an allowable extraordinary use. The court held that:

“... 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 substantially undiminished in quantity, and the question whether lower riparian owners had suffered any injury by such abstraction was irrelevant, since they were entitled to complain without proof of damage; and that, since the greater part of the water taken by the defendant from the river Avon 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 justified, as a riparian owner, in using the water from the river for spray irrigation.”^[37]

Further to the above, an upper riparian proprietor will not be allowed to discharge water from other watercourses to the natural watercourse so as to alter the natural character and quality of the natural watercourse. This point has been settled since the House of Lords decision in John Young And Co v Bankier Distillery Co Ltd.^[38] The appellant, without any prescriptive rights, poured into the natural riparian stream shared by the respondents a large body of water which it had pumped up from its mines, and by so doing increased the quantity and greatly altered the natural quality of the natural watercourse. The court found in favour of the respondent and upheld the decision of the lower court abating the appellant’s activity. In handing down the decision, Lord M’Naghten, in particular, observed:

“The 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 - and they argued that this watercourse is the natural and proper channel to carry off the surplus water of the district. All that may be true; but in this country at any rate it is not permissible in such a case for a man to use his own property so as to injure the property of his neighbour.”^[39]

It is also worth mentioning that a lower riparian proprietor is also under an obligation 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.^[40]

2. Riparian Rights and the Obstruction of Natural Flow

Here, I wish to consider briefly the extent of the rights and obligations of the riparian proprietor in relation to the diversion of flood water, placing erections on the river bed and the clearing of the (watercourse) channel.

In order to protect one’s land from flooding, a riparian owner on the banks of a non-tidal river has the right to raise the river banks from time to time when necessary to confine the flood water within the banks in order to prevent overflowing onto the land, provided no injury to others is caused, that is without causing actual injury to the riparian land either adjacent, above or below.^[41] However:

“Whilst a riparian owner is entitled to protect his property from flooding, he cannot for that purpose execute works of alteration to the bed of the stream which also have the effect of increasing its normal flow and diminishing that past a nearby [property].”^[42]

In a situation where the riparian proprietor is subject to an extraordinary flood, he or she is entitled to fence off the land and turn the flood away, irrespective of the consequences for the other riparian neighbours. However, in this instance, “the action taken by the riparian owner must be 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 land”.^[43]

The next issue to be considered is the extent to which a riparian proprietor can be allowed to place erections on the river bed in a non-tidal river.^[44] Generally, at common law, “each riparian proprietor prima facie has the property in the soil of the bed or alveus from his own side to the medium filum flumen, but he is not entitled to use the alveus in such a manner as to interfere with the natural flow of the water course or abridge the width of the stream, or to interfere with its natural course”.^[45] 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 injury to the interest of the other riparian proprietors. If the answer to this is in the negative, the action may be allowable. This is quite clear from the following passage:

“A riparian owner may build 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 owners; thus, an obstruction cannot be erected in a stream so as to throw back the water on to an upper riparian owner’s land and thereby flood his land or injure his mill ... subject to his right to catch fish, a riparian owner is not entitled to erect obstructions which interfere with the free passage of fish which prevent fish from reaching the upper portions of the river to the detriment of the upper owners.”^[46]

The last issue concerns the general clearing and maintenance of a (watercourse) channel. Where the channel becomes silted up or is choked with weeds and the like, as a result of natural causes, the riparian proprietor is under no obligation at common law to clear and restore the channel.^[47] In fact,

“a riparian owner cannot remove a long continued natural accretion of gravel or a shoal on the river bed so as to restore the flow of the water to its former state as to velocity, direction and height; nor is he entitled to alter the level of a river by removing obstructions which by lapse of time have become embedded and consolidated in and form part of the river bed ... ”^[48]

C. The Impact of Statute Law on Riparian Rights

There is little doubt that the principal riparian rights to abstract, impound, divert or obstruct water have been considerably modified and in some instances largely superseded by statutory controls.^[49] In Papua New Guinea, these incidents of riparian rights are now given statutory recognition in ss 21 and 22 of the Water Resources Act (Ch 205), but with some modifications in that restrictions are placed on the quantity and mode of taking.^[50] But it would be wrong to suggest that statute law, by vesting all water flow and use rights in the State and then establishing an administrative system to allocate water use rights by way of licensing, has abolished riparian rights.^[51] This reservation is based on simple logic, in that since riparian rights are an incident of property, namely riparian land, these rights cannot be abolished outright without the extinguishment of the riparian tenement in favour of the State or Crown. Since riparian rights are interests in property, they cannot be unilaterally abolished by State legislation without just compensation, nor “in the absence of clear and unmistakable language”.^[52] Hence, the preferred view is that of Fullagar J of the High Court of Australia in Thorpes Ltd v Grant Pastoral Co Pty Ltd.^[53] There, referring to the effect of s 1 of the Water Rights Act 1896 (NSW) that vested “the right to the use and flow and control of water in all rivers and lakes” in the Crown, and also in relation to NSW Full Court decision in Hanson v Grassy Gully Gold Mining Co,^[54] the judge said:

“The effect given to the statute in Hanson’s case means that a riparian proprietor has no remedy as of right if a river is damaged by an upper owner so that no water reaches him or if it is polluted and poisoned by the refuse of a factory ... The view which I am disposed to take is that the Act does not directly affect any private right but gives to the Crown new rights - not riparian rights - which are superior to, and may be exercised in derogation of, private riparian rights, but that, until those new and superior rights are exercised, private rights can and do co-exist with them.”^[55]

This view has also found favour among other respected commentators.^[56] It therefore follows that:

“even where licences have been issued to all landowners along a river, the common law riparian right will survive to enjoin an upstream diverter from taking waters in excess of his licence, to the extent that it prevents an effective exercise of the right to the use as redefined by [statutory provisions] ....”^[57]

This view has been recently vindicated by a NSW Supreme Court decision, where Cohen J held that riparian proprietors “retained their residual common law right to ‘use and take water for domestic purposes without sensible alteration in its character or quality’ ”.^[58] In that case, Cohen J drew a distinction between the riparian proprietor’s right to the flow of water on the one hand and the right to take and use water on the other, and usefully stated that the impact of statutory vesting of water rights in the Crown was that the statute vested the right to the flow in the Crown, but the riparian proprietors retained residual common law rights to the taking and use of water.^[59]

Perhaps another impact of statue law on riparian rights would be the outright abrogation of those uses known as extraordinary uses, as opposed to those known as ordinary uses which have now been given statutory basis. This view finds support in the following observation:

“Reference is still frequently made in [legislation] to riparians and riparian uses. The limits placed by [legislation] on water use by landholders on the banks of streams, means that the modern equivalent to the common law ordinary use of water permitted to riparians is restricted to specific tasks and may be suspended altogether in some circumstances. The extraordinary use that was permitted at common law to riparians has no equivalent [and] such uses are not permitted as of right.”^[60]

Consequently, in relation to the exercise of any extraordinary purposes and others not specified by statute, it appears that a riparian proprietor would be required to obtain the necessary water use permits from the relevant authority just like any other person.

D. Applicability of the Riparian Rights Doctrine in Papua New Guinea

As mentioned earlier, the principles of common law and equity in England that were found and applied by the English courts up until 16 September 1975, the date when Papua New Guinea attained independence, are adopted as part of the underlying law by virtue of Sch 2.2 of the Constitution. The manner in which the principles of common law and equity are adopted and are to be applied are as specified in Sch 2.2(1) of the Constitution, as set out above. It is obvious from that provision that the relevant principles and rules of common law and equity are to be applied in this country only in so far as they are not inconsistent with a Constitutional Law,^[61] statute law, existing customary law or where it is found that they are not applicable or appropriate to the circumstances prevailing in the country. In this regard, the cautionary remarks by Kapi J in Iambakey Okuk v Fallscheer are apt:

“In considering the appropriateness or applicability 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 be taken in rejecting these principles.”^[62]

In accordance with Kapi J’s remarks, I would now like to consider separately the factors to which the common law is subject in its applicability as part of the underlying law in Papua New Guinea.

1. Common Law and Statute Law

This category of exception is, of course, in keeping with the age old tradition of the common law that it is, in all instances, subject to statute. However, the task here is to identify and consider any statute in Papua New Guinea to which the particular rule of common law may be subject.

The Water Resources Act (Ch 205) appears to be the only statute that has not so much abrogated or extinguished the common law doctrine of riparian rights but has varied the extent of the application of the common law doctrine by making it subject to the legislation and giving most of the incidents of riparian rights associated with “ordinary use” a statutory basis. This has been effected through the following scheme. First, under s 5 of the Act, with the exception of customary water use rights and those water use rights associated with domestic use, prescribed recreational use and other prescribed purposes, all “rights to the use, flow and control of water is vested in the State”.^[63]

It is important to note that this section neither confers “ownership” of water resources on the State nor extinguishes riparian rights as they exist at common law, but merely creates a rebuttable presumption of a superior usufructuary interest in the State.^[64] Secondly, under s 22 of the Act, a riparian proprietor is allowed to take water without charge “for domestic purposes, and for watering the stock, of himself, of members of his family resident on the land and of his employees so resident”,^[65] and further to have a general right of access “for himself, those members of his family and those employees and for his and their stock to the part of the bed and bank of the watercourse or lake adjoining the land of which he is the owner or occupier”.^[66]

Other than the above, any person, including a riparian proprietor, who wishes to use water for purposes other than domestic, stock watering, customary, or fire fighting, is required to obtain a water use permit from the administrative authority, the Bureau of Water Resources, under ss 28-31 of the Act.^[67] This therefore means that the riparian proprietor’s rights for “extraordinary purposes”, as allowed under common law, are effectively curtailed, and to some extent abrogated. Apart from that, it is fair to conclude that a riparian proprietor’s rights to “ordinary use”, as known at common law, still subsist. This conclusion is based on the fact that the statute in question did not extinguish riparian rights but merely regulated, in some instances, the exercise of riparian rights by giving such riparian rights (that is, those associated with “ordinary use”) a statutory basis.^[68] This in turn means that it would be quite proper and legitimate for a riparian proprietor in Papua New Guinea to assert on the basis of his or her common law right to “ordinary use” (for domestic purposes, etc) to be entitled: (a) to the flow of water down to his or her property and (b) to have such flow of water in its natural state and, to some extent, quality.^[69]

2. Common Law and Custom

The next issue is whether the particular principle of common law is inconsistent with the custom or customary law of the indigenous inhabitants of Papua New Guinea. If the particular principle of common law is not inconsistent with custom, then the common law can be adopted and applied as part of the underlying law in Papua New Guinea.^[70]

Customary water rights and the common law riparian rights doctrine have a strikingly similar basis and incidents, in that:

(a) in both instances, the ownership of riparian land is the basis of acquiring water use rights;

(b) the lower riparian is equally entitled as the upper riparian to the flow of the water in its natural state and quality; and

(c) in a navigable watercourse, the right of navigation of all people, including non-riparians, is acknowledged and guaranteed.^[71]

It 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, observed and practised by the people indigenous to Papua New Guinea. In other words, since the common law riparian rights doctrine is consistent with customary water rights, it is capable of applying in Papua New Guinea as part of the underlying law.

3. The Circumstantial Applicability Rule

This rule exists in most, if not all Commonwealth countries and former colonies of the old British Empire. The rationale behind this rule is well expressed by Lord Denning in Nyali Ltd v Attorney-General^[72] in the following terms:

“The next proviso provides, however, that the common law is to apply ‘subject to such qualifications as local circumstances render necessary’. This wise provision should, I think, be liberally construed. It is a recognition that the common law cannot be applied in a foreign land without considerable qualification. Just as with an English oak, so with the English common law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England. It will flourish indeed, but it needs careful tending. So with the common law. It has many principles of manifest justice and good sense which can be applied with advantages to peoples of every race and colour all the world over: but it has so many refinements, subtleties and technicalities which are not suited to other folk. These off-shoots must be cut away. In these far-off lands the people must have a law which they understand and which they will respect. The common law cannot fulfill this role except with considerable qualifications. The task of making these qualifications is entrusted to the judges of these lands. It is a great task which calls for all their wisdom.”^[73]

Obviously the local circumstances which are required to be taken into consideration when deciding on the reception of the common law into Papua New Guinea would, in the main, include the socio-economic and political circumstances and structures as partly embodied in the National Goals and Directive Principles of the Preamble to the Constitution, the implications of relevant Constitutional Laws and statutes, and prevailing customs and practices.^[74]

Accordingly then, when the above factors are considered to determine the circumstantial applicability of the common law riparian rights doctrine, there appear to be no specific or particular problems of application. Hence, the common law riparian rights doctrine clearly passes the circumstantial applicability test.

E. Conclusion

It is my considered view that the common law riparian rights doctrine, as briefly set out above, greatly resembles customary water rights in Papua New Guinea in terms of their basic concepts and the incidents they share. Both concepts are based on the ownership of riparian land, and some of the incidents which they have in common relate to the equal rights to the flow and use of water in its natural state, quality and, to some extent, quantity.

Statute law, namely the Water Resources Act (Ch 205), has not extinguished the common law riparian rights doctrine in Papua New Guinea but has greatly modified the extent of its application by restricting it to those uses known at common law as “ordinary uses,” which generally include domestic and stock watering purposes. The main casualty of the impairment of the riparian rights doctrine in Papua New Guinea by this statute is the demise of those purposes known at common law as “extraordinary uses”, which generally include purposes associated with irrigation, manufacturing and damming of rivers for milling, and the like.

When the extent of the applicability of the common law riparian rights doctrine is considered against the requirement of Sch 2.2 of the Constitution, there are no impediments in terms of any inconsistencies with statute or with custom, nor any problems with the circumstantial applicability test.

Hence, it can be safely concluded that the common law riparian rights doctrine, subject to the Water Resources Act (Ch 205), exists and applies in Papua New Guinea as part of that body of law known as the underlying law. It follows that any impairment of the “ordinary (water) use” rights of a riparian proprietor (whether a leaseholder or freeholder or customary owner of the land) can be protected either under the Water Resources Act (Ch 205) or under the common law riparian rights doctrine.

^[∗]Lecturer in Law, University of PNG.

^[1]S Clark and I Renard, The Framework of Australian Water Legislation And Private Rights (Australian Water Research Council, Melbourne 1972), Vol 1 at pp 51-55.

^[2]D Fisher, Natural Resources Law in Australia (Law Book Co, Sydney 1987), at p 384.

^[3]The underlying law is, in effect, the common law of Papua New Guinea, as defined under Schedule 1.2 of the Constitution to include, in the main, judge-made law, custom and the principles of English common law as adopted under Sch 2 of the Constitution.

^[4]S Clark and I Renard, above n 1, at p 61. The consequence of this will become apparent in the ensuing discussion.

^[5][1859] EngR 894; (1859) 7 HL Cas 349, 11 ER 140 at 153. For some later cases in point, see: Swindon Waterworks Co v Wilts & Berks Canal Co (1875) 33 LT 513; McCartney v Londonderry Rly [1904] UKLawRpAC 22; [1904] AC 301; White (John) & Sons v White [1905] UKLawRpAC 73; [1906] AC 72; Stollmeyer v Trinidad Lake Petroleum Co [1918] AC 485; Attwood v Llay Main Collieries Ltd [1926] 1 Ch 444; and Rugby Joint Water Board v Walters [1967] 1 Ch 397.

^[6] [1926] 1 Ch 445.

^[7]A Wisdom, The Law of Rivers and Watercourses, 2nd ed (Shaw & Sons Ltd, London 1970), at p 82. Note that the current edition of this book, revised by W Howarth, Wisdom’s Law of Watercourses, 5th ed (Shaw & Sons Ltd, Crayford 1992), deals with this issue at p 68 but not in identical terms. I prefer to go by the original author’s work.

^[8] [1876] 1 AC 622, at 683.

^[9] [1876] 1 AC 622, at 673.

^[10]S Hobday (ed), Coulson and Forbes on the Law of Waters, 6th ed (Sweet & Maxwell Ltd, London 1952), at p 130.

^[11]See A Wisdom, above n 7, at p 85.

^[12] [1859] EngR 894; (1859) 11 ER 140.

^[13] [1902] UKLawRpCh 50; [1902] 1 Ch 649.

^[14] [1851] EngR 386; (1851) 6 Ex 353, 155 ER 579 at 585-86.

^[15] [1893] UKLawRpAC 40; [1893] AC 691 at 698. Commenting on this dictum, Gerry Bates has observed: “This means that not only may a riparian owner take action against those who pollute the water running through the land, but statutory authorities which have knowledge of pollution in the water and fail to warn the landowner may be liable in negligence.” - G Bates, Environmental Law in Australia, 3rd ed (Butterworths, Sydney 1992), at p 34.

^[16] [1833] EngR 171; (1833) 5 B & Ad 1, 110 ER 692 at 698.

^[17] [1893] UKLawRpAC 40; [1893] AC 691 at 698.

^[18] A Wisdom, above n 7, at p 86.

^[19] (1858) 3 LT 98. This statement has since been cited with approval in many subsequent cases, including French Hoek Commissioner v Hugo (1885) 54 LT 92; Swindon Water Co v Wilts Canal Co (1875) LR 9 Ch 451; Embrey v Owen [1851] EngR 386; (1851) 155 ER 579; Chasemore v Richards [1859] EngR 894; (1859) 11 ER 140; and Mason v Hill [1833] EngR 171; (1833) 110 ER 692.

^[20] (1870) 23 LT 344. This was affirmed in [1870] LR 6 Ch 572.

^[21] See Lawrence J in Attwood v Llay Main Collieries Ltd [1926] 1 Ch 445 at 458.

^[22] (1858) 3 LT 98.

^[23] A Wisdom, above n 7, at p.87.

^[24] Dakin v Cornish (1845) 6 Ex 360. See also A Hudson., “Industry As A Riparian Use”, (1959) 22 Modern Law Review 35.

^[25] Embrey v Owen [1851] EngR 386; (1851) 155 ER 579.

^[26] Belfast Ropeworks v Boyd (1887) 21 LR Ir 560.

^[27] Swindon Waterworks Co v Wilts & Berks Canal Co (1875) 33 LT 513.

^[28] Medway Co v Romney (Earl) [1861] EngR 125; (1861) 142 ER 226.

^[29] [1904] UKLawRpAC 22; [1904] AC 301 (HL).

^[30] Ibid.

^[31] [1904] UKLawRpAC 22; [1904] AC 301 at 306.

^[32] [1926] 1 Ch 444.

^[33] [1926] 1 Ch 444 at 445.

^[34] Ibid.

^[35] This case applied the earlier House of Lords decision in Swindon Waterworks Co (1875) 33 LT 513, and McCartney [1904] UKLawRpAC 22; [1904] AC 301.

^[36] [1967] 1 Ch 397 (Ch D).

^[37] [1967] 1 Ch 397 at 398.

^[38] [1893] UKLawRpAC 40; [1893] AC 691.

^[39] [1893] UKLawRpAC 40; [1893] AC 691 at 698.

^[40] See Pririe & Sons Ltd v Kintore (Earl) [1906] UKLawRpAC 26; [1906] AC 478, and Fraser v Fear (1912) 107 LT 423.

^[41] A Wisdom, above n 7, at p 95.

^[42] Ibid, where the case Provinder Millers (Winchester) Ltd v Southampton County Council [1939] 4 All ER 157 is cited as authority for that proposition.

^[43] S Wisdom, above n 7, at p 96. The case of Gibbons v Lenfestey (1915) 113 LT 55 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 Court of Australia in Gartner v Kidman [1962] HCA 27; (1961-62) 108 CLR 12 refused to follow Gibbons v Lenfestey, and Dixon CJ and Windeyer J were particularly of the view that “there is no rule forming part of the common law in Australia that a lower owner is obliged to receive on his land all surface water which flows naturally on to it from adjacent higher land”: see at 13.

^[44] Note that the common law makes a distinction between a tidal and non-tidal river. I have discussed this in L Kalinoe, Water Law and the Nature of Customary Water Rights in Papua New Guinea (Unpublished PhD Thesis, University of Wollongong 1998), at pp 20-22.

^[45] A Wisdom, above n 7, at pp 91-92.

^[46] A Wisdom, above n 7, at p 92 and the cases cited there in support of these propositions.

^[47] A Wisdom, above n 7, at p 94.

^[48] Ibid, and the various cases cited there.

^[49] For the situation in England, see W Howarth (ed), above n 7, and R Macrory, Water Law: Principles and Practice (Longman, London 1985). For the situation in Australia, see the now outdated but still useful work by S Clark and I Renard, above n 1, and G Bates, above n 15.

^[50] See also L Kalinoe, above n 44 at Ch 5, where this is discussed.

^[51] For example, see P Davis, “Nationalization of Water Use Rights by the Australian States”[1975] UQLawJl 1; , (1975) 9(1) UQLJ 1, and the earlier work by the same author, “Australian and American Water Allocation Systems Compared”, (1968) 9 Boston College Industrial and Commercial Law Review 647.

^[52] Fullagar J in Thorpes Ltd v Grant Pastoral Co Pty Ltd [1955] HCA 10; (1955) 92 CLR 317.

^[53] Ibid.

^[54] [1900] NSWLawRp 91; (1900) 21 LR (NSW) 271.

^[55] [1955] HCA 10; (1955) 92 CLR 317.

^[56] S Clark and I Renard, “The Riparian Doctrine And Australian Legislation”, (1970) 7 MURL 475; S Clark and A Myers, “Vesting and Divesting: The Victorian Groundwater Act 1969”[1969] MelbULawRw 22; , (1970) 7 M.ULR 237, and more recently in Z Lipman, “Riparian Rights Reconsidered: Van Son v Forestry Commission of New South Wales”, (1995) 12 EPLJ 215.

^[57] S Clark and I Renard, above n 56, at p 505.

^[58] Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108.

^[59] See Z Lipman, above n 56, at pp 219-220.

^[60] A Dragun and V Gleeson, “From Water Law to Transferability in New South Wales”, (1989) 29 Natural Resources Journal 645, at p 650. Whilst the authors made this statement with particular reference to the impact of the Water Act 1912 (NSW), the statement is considered to be of wider relevance since, in most common law jurisdictions, the common law riparian rights doctrine preceded statute law, which sought to change or modify the common law.

^[61] “Constitutional Law” means the Constitution, a law altering the Constitution or an Organic Law: see Sch 1.2 of the Constitution. Under s 12 of the Constitution, an “Organic Law” is a law made by Parliament on matters which the Constitution has expressly authorised and, therefore, has the same force and effect as the Constitution itself.

^[62] [1980] PNGLR 274 at pp 285-86.

^[63] Section 5(1) Water Resources Act (Ch 205 of the Revised Laws).

^[64] For support in this line of reasoning, see S Clark and A Myers, above n 56, at p 243.

^[65] Section 22 (1)(a).

^[66] Section 22 (1)(b).

^[67] See L Kalinoe L “Water Resources Management in Papua New Guinea: Law, Policy and Practice”, (1994) 22 Mel LJ 23 at pp 30-32.

^[68] See reference to Ch 205, above n 63.

^[69] In this regard, note that despite the fact that the plaintiffs in Rugby Joint Water Board v Waters [1967] 1 Ch 397 had statutory right to the maximum flow of the Avon River, they successfully relied on the common law riparian right to enjoin the defendant: see text to n 36 above. See also Z Lipman, above n 56.

^[70] Schedule 2.2(1)(c) of the Constitution. Note that in the hierarchy of laws in Papua New Guinea under s 9 of the Constitution, common law is subject to custom.

^[71] See L Kalinoe, above n 44, where these points are discussed in detail.

^[72] [1956] 1 QB 1.

^[73] [1956] 1 QB 1 at 16-17.

^[74] For example, see SCR No 4 of 1980; Re Petition of Somare [1981] PNGLR 265.