Water law and the nature of customary water rights in Papua New Guinea

Author

Lawrence Kuna Kalinoe, University of Wollongong

Year

1998

Degree Name

Doctor of Philosophy

Department

Faculty of Law

Recommended Citation

Kalinoe, Lawrence Kuna, Water law and the nature of customary water rights in Papua New Guinea, Doctor of Philosophy thesis, Faculty of Law, University of Wollongong, 1998. https://ro.uow.edu.au/theses/1862

Abstract

Majority of the indigenous people in Papua New Guinea (about 87 per cent) live on their customary land by engaging in fishing, hunting, gathering and subsistence agriculture for their daily sustenance. Water is obtained directly from rivers, lakes, and other watercourses.

At present, Papua New Guinea is undergoing rapid economic growth in forestry, agroforestry, mining, and petroleum development activities. Most (if not all) of these natural resources development activities are conducted on customary land and in and around the environment in which the majority of the indigenous peoples live and on which they rely for their subsistence way of life. Many of these natural resource development projects have caused stress on the water resources: indeed in some instances, the projects have so impaired the quality of the water and water resources as to render such resources unsuitable for human consumption, and thereby adversely affecting the indigenous peoples' subsistence way of life.

This has in turn prompted many indigenous peoples to aggressively assert their customary rights as customary right holders to the land and water resources. The now abandoned law suit by the customary water rights holders of the OK Tedi river discussed in Chapter 13 of this thesis stands as a pre-eminent example of this response.

The law in Papua New Guinea allows for the customs of the indigenous peoples of the country to be pleaded and applied as law. In keeping with this, statute law on water resources management does not extinguish customary water use rights but allows for coexistence with statute based water use rights. Whilst on the one hand statute based water use rights are elaborately specified, on the other hand, customary water rights are left unspecified and hence remain vague. The challenge therefore is to ascertain the nature of customary water rights. That challenge is the focus of this thesis.

To properly meet that challenge, it is imperative that we understand the customary regime by studying the customs, practices and perceptions of the owners of customary land adjacent to rivers, lakes and other watercourses about their rights over water and water resources (as holders of customary water rights).

This thesis attempts to do that by first exploring and presenting, by way of introduction in Part I, the general and basic water law principles pertinent to indigenous water use rights at common law and secondly in Part II, by scrutinising the statutory water law regime in Papua New Guinea to ascertain the possible impacts on the exercise of customary water rights. Thirdly and more importantly, Part III presents and discusses empirical field work data on the customs, practices and perceptions of customary water rights holders. Finally Part IV, attempts to ascertain the nature in law of customary water rights and the modes of establishing and enforcing customary water right at Papua New Guinea law.

In the final analysis, it is asserted in this thesis that customary water rights as they currently exist in Papua New Guinea are rights in the nature of property rights and therefore capable of enforcement by the holders of those rights in the event of breach. Customary water rights as they occur in Papua New Guinea are not mere water use rights but rather encompass and include not only the right to the take and use of water per se, but also the access rights to all of the other water resources, both living and non living which occur in the rivers, lakes and other watercourses which the indigenous people have rights over.