LETTERS: I go through with fascination Salleh Buang’s belief piece “Acquiring payment for the genuine problem in Kedah-Penang h2o dispute.”
Like Salleh, there are a lot of who could also sense the sarcasm in the statement of Kedah Menteri Besar, Muhammad Sanusi Md Nor, for what sounded like a risk to dam Sungai Muda.
But, there may perhaps be as lots of who would not hesitate to tick off the Menteri Besar.
Certainly, a handful of have since less than the law, Penang has the rights to use the h2o within just the state borders for its personal intake.
The Kedah and Penang (Alteration of Boundary) Act 1985 places pen to paper the agreed altered boundaries among the two northern states.
But, it is not the Act that defines Penang’s rights – and Kedah’s legal rights for that make a difference. It is a hundreds of years-outdated doctrine identified as the riparian rights doctrine. The doctrine can in simple fact be identified in the Federal Structure.
The Ninth Timetable (Legislative Lists) lists out h2o, control of silt and riparian legal rights as State matters. So, what does the doctrine imply?
Only, it refers to a bundle of rights of land entrepreneurs whose land operates into a physique of water this kind of as a stream, river or lake or ocean. A riparian owner is a person – which contains a state – who owns land that runs into a river.
Because the doctrine is clearly recognised by the Constitution, a short appear at its origin at common law is needed.
A lucid clarification of the doctrine can be seen in the judgment of Justice Virtue in the Canadian situation of Western Irrigation District v. Trobst (1990) as observe:
“At typical law the proprietor of land on the banking institutions of a normal stream or watercourse is entitled to the enjoyment of what are generally identified as riparian legal rights.
A riparian proprietor has a right to the normal use of the drinking water which adjoins his land, as a natural incident of the possession of the land itself, which does not rely upon the ownership of the land lined by the water…. Regular use, incorporates the reasonable use of drinking water for domestic functions, without having restriction.”
A definitive examine of drinking water rights at typical legislation by Joshua Getzler identifies an aged English case of Embrey v Owen (1851) stating in no unsure conditions that a riparian operator has “the appropriate to the usufruct of the stream which flows by way of it” and to have the stream “stream in its all-natural point out with out diminution or alteration.” The scenario is stated to be “the authority ultimately settling the widespread regulation riparian legal rights doctrine.” [Getzler, J, A History of Water Rights at Common Law (2005)]
This indicates that a riparian operator – which includes a state – has the ideal to acquire a pure circulation of water in its regular quantity and good quality. Therefore water need to not be taken out of a purely natural stream, river or watercourse if it would direct to a scarcity of water for those people who will need it downstream.
Getzler identifies how the popular regulation was influenced by Roman legislation which was “been given, re-invented, used, discarded, simplified and tailored until eventually a serviceable framework of doctrine emerges in the later nineteenth century.”
Roman legislation texts point out that rivers, seas, and the seashore belong to all people and that a single simply cannot block navigation on the Tiber. The texts also condition the policies relating to diversion of drinking water.
So, the regulation on water legal rights has an ancient origin. 1 may well also incorporate that rights to water are also contained in the Majallat al-Ahkam al-Adliyyah (1869), the civil code of the Ottoman Empire in the late 19th and early 20th generations – the to start with endeavor to codify a component of Islamic regulation of the Ottoman Empire.
Historical or modern day, it is no joke for any individual to propose blocking a stream or river by asking villagers to put sandbags to dam the river and redirecting its waters away from land homeowners downstream.
This is not to say that a stream or river may well not be dammed or diverted by a riparian proprietor. It may perhaps be completed so extensive as the regular move of the drinking water is not interrupted and the lawful use of the water by other proprietors not disrupted.
Which is why the bundle of legal rights is explained to include things like duties and liabilities. As indicated over, these incorporate the obligation not to interfere with the riparian legal rights of other upstream and downstream land entrepreneurs, who will have a ideal of motion should really their rights be interfered with.
As made a decision by a further aged English scenario of John Younger & Co v Bankier Distillery Enterprise in late 19th century (1893), a person riparian proprietor is entitled to solutions in the courts ought to his or her riparian legal rights to the normal movement of the h2o be disrupted by a different riparian operator, resulting in actual destruction.
On top of that, a riparian operator has the responsibility not to undertake any action on its land which could pollute the drinking water and lead to a reduction in the h2o high-quality within just the stream or river.
So, there is a issue of referral in phrases of the Kedah-Penang water concern, that the rights to drinking water are established in the maximum regulation of the land – the Federal Constitution.
Bukit Baru, Melaka
The sights expressed in this posting are the author’s individual and do not essentially reflect those of the New Straits Occasions
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