THE term “riparian rights” has suddenly come to the fore, thanks to Penang deputy chief minister ll P. Ramasamy.

Responding to Kedah Menteri Besar Muhammed Sanusi Md Nor’s suggestion that the PAS-controlled state impose payment on Penang for the use of water for Sg Muda, Ramasamy assertively said that Penang is entitled to draw upon water from its side, as Kedah can use water from its side.

“Under the principle of riparian rights, the right to use water on its side is something that cannot be denied to Penang,” he added.

Ramasamy is right.

The term can in fact be found in the Federal Constitution. The Ninth Schedule (Legislative Lists) lists out water, control of silt and riparian rights as state matters.

So, what does the term mean?

In simple words, the term refers to a bundle of rights of land owners whose land runs into a body of water such as a stream, river or lake or ocean. A riparian owner is a person – which includes a state – who owns land that runs into a river.

Since the doctrine is clearly recognised by the Constitution, a brief look at it at common law is necessary. A lucid explanation of the doctrine can be seen in the judgment of Justice Virtue in the Canadian case of Western Irrigation District v. Trobst (1990) as follows:

“At common law, the owner of land on the banks of a natural stream or watercourse is entitled to the enjoyment of what are commonly known as riparian rights. A riparian owner has a right to the ordinary use of the water which adjoins his land, as a natural incident of the ownership of the land itself, which does not depend upon the ownership of the land covered by the water…. Ordinary use, includes the reasonable use of water for domestic purposes, without restriction.”

An old English case of Embrey v Owen [1851] states in no uncertain terms that a riparian owner has a right to have a stream “flow in its natural state without diminution or alteration.”

This means that a riparian owner – which includes a state – has the right to receive a natural flow of water in its usual quantity and quality. Therefore, water should not be taken out of the watercourse if it would lead to a shortage of water for those who need it downstream.

So, it’s no joke for anyone – let alone a state chief – to suggest blocking a stream or river by asking villagers to put sandbags to dam the river, and redirecting its waters away from land owners downstream.

This is not to say that a stream or river may not be dammed or diverted by a riparian owner. It may be done so long as the regular flow of the water is not interrupted and the lawful use of the water by other owners not disrupted.

Which is why the bundle of rights is said to include responsibilities and liabilities. As indicated above, these include the obligation not to interfere with the riparian rights of other upstream and downstream land owners, who will have a right of action should their rights be interfered with.

As decided by another old English case of John Young & Co v Bankier Distillery Company [1893], one riparian owner is entitled to remedies in the courts should his or her riparian rights to the natural flow of the water be disrupted by another riparian owner, causing actual damage.

Furthermore, a riparian owner has the responsibility not to undertake any activity on its land that could pollute the water and lead to a reduction in the water quality within the stream or river.

Which is why states should be reminded that rare earth mining and processing, which are not only the most environmentally harmful processes compared to other types of mining, can pollute streams and rivers leading to court actions by riparian owners, among others.

Any mining activity for that matter is a high-pollution risk.

And this one is no joke. – December 17, 2020.

*Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.