Dáil Éireann debate -
Friday, 25 May 1934

Vol. 52 No. 14

Fisheries (Tidal Waters) Bill, 1934—Second Stage.

Minister for Agriculture (Dr. Ryan)

I move: "That the Bill be now read a Second Time." The object of this Bill, as disclosed in the Long Title, is to make provision for the regulation and control of the public right of fishery in tidal waters in which formerly a several or exclusive fishery was believed to exist, and was enjoyed as of right, and to make provision for other matters relating to or connected with the matters aforesaid. The Bill deals with fisheries in tidal waters where, as in the case of the River Erne, a private claim of exclusive right to fish existed, but where the courts have decided that no such claim did in fact exist. I think the various sections of the Bill are very clear, but the easiest way to explain what the Bill contains is to go through them. Under Section 2, this Bill may be applied by order to any tidal water that would come under the provisions of the Bill. As the law stands at present any person proposing to fish for salmon, or to use a net for the catching of trout, must have a licence from the board of conservators, and must pay the duty specified in the Fisheries Act, 1925. The conservators have that income. In addition to that, in cases such as the River Erne where you had a private ownership, there was a rate paid on the valuation of the fishery also to the conservators. From those two sources the conservators got their revenue. In the case of the River Erne also, I should like it to be known that the income from the rates on the private property was very substantial. The Ballyshannon Conservators were able, as a consequence, to look after some other small rivers in their district as well as the River Erne. Now that the fishery of the River Erne has become public property of course that rate is no longer collectible, and we must, therefore, provide another income for the conservators in that district. Section 4 provides that instead of the ordinary fishery licence that would be got under the 1925 Act there will be a special local licence. The special local licence is introduced in order to make up for the loss of the income from the owners of the estuary of the River Erne. In that way we hope to make good, in part at any rate, the loss of income to the conservators in that district.

There is, of course, an additional cost also on the conservators in that district. They have now not only to carry out the duty they carried out previously, but they have also to protect the fishery which was a private fishery and is now a public one. When that fishery was a private one, the owners, of course, looked after the protection of it to a great extent.

Sections 5 and 6 merely provide machinery for the issue of special local licences. Section 7 provides penalties for fishing in tidal waters by unlicensed persons. The penalties are severe, because in a case like this it is found from experience that, where the public get a right to property for the first time, it is rather hard to maintain the law for some time. Section 8 deals with the regulation of these public fisheries. If you take rivers where there is a long tradition of public fisheries, such as the Boyne and the Slaney, there is a sort of self-regulation amongst the fishermen on those rivers. There is a sort of tradition amongst themselves as to how the fishery should be regulated: who should fish first; what hours they should fish; the number of boats that might go out at one time, and so on. There is no such thing on the River Erne for the present, and, therefore, it may be necessary for an officer of the Fishery Department to regulate the times and the hours at which the different boats may fish; the number of boats which may be allowed to fish at one time, etc. Section 8 provides the machinery for that purpose.

Section 9 is the usual section giving authority to an officer of the Department to ask any person fishing in the district, or having any instrument or engine for the purpose of fishing, to produce his licence. Section 10 only provides for the making of returns. Section 11 provides for the forfeiture of the licence in case of an offence. Section 12 is necessary, because the holder of an ordinary licence has a vote at the election of Conservators and it is necessary to give the same right to the holder of a special local licence as the holder of an ordinary licence would have in regard to voting for the Board of Conservators.

Section 13 provides that the Board of Conservators, having collected the special local licence fee, will be entitled to keep what would be the ordinary licence fee if this Bill had not been introduced. The difference between that and the total licence fee paid, that is the extra amount, will be paid over to the Minister for Fisheries. The Minister will pay that into the Exchequer. Then the next section provides that the Minister may pay to the Conservators the amount that will be required by them to carry on and protect the fisheries. The two sections combined, at any rate, have this effect, that we may levy on the fishermen a certain amount over the ordinary licence fee that they would pay if they were fishing in any other river towards the expenses of the conservators, but the conservators are not entitled by right to that extra amount. They may get more or they may get less from the Minister. They will get what they will require in the ordinary way to protect the fisheries.

Section 16 provides for a condition that exists on the River Erne, at any rate, and may exist on certain other rivers. In the South of Ireland, for instance, the same board of conservators would protect a river from its source to the mouth. The River Erne, however, crosses the Border, and the Ballyshannon Board of Conservators, therefore, can only protect the river as far as the Border. The Enniskillen Conservators, who are inside the Border in the Six Counties, are responsible for the protection of the upper part of the river. It is very important that the Enniskillen Conservators should protect this river because, if they withdrew the protection from the upper reaches of the River Erne, our salmon fisheries would naturally be very much injured. Under the present law, the conservators on the Free State side have no authority to contribute anything to the conservators on the other side of the Border in the Six Counties. This section gives the conservators on the Free State side authority to pay a certain amount to the conservators on the Six Counties side of the Border towards the protection of the River Erne in their territory. That was provided for up to this in another way. The people who claimed to own the River Erne paid out of their own funds a certain amount per year to the Enniskillen Conservators for the protection of the River Erne inside the Six Counties Border.

The only other matter that I need draw attention to is the last section, which provides that this Bill will expire at the end of 1935. The reason for that is that we hope to have a report from the Commission now sitting by the end of this year or the beginning of next year and we hope, therefore, to be in a position by the end of 1935, at any rate, to have a more comprehensive Bill dealing with inland fisheries in general passed by the Oireachtas. It will not, therefore, be necessary to continue this Bill. I hope, beyond the end of 1935.

Mr. Costello

I did not hear the beginning of the Minister's explanation of this Bill. While I think that some such Bill is necessary to meet the situation which has arisen in connection with the fisheries on the River Erne, owing to the recent decision of the Supreme Court, I have more than a little doubt as to whether this Bill not merely is the proper way of meeting that particular situation, but whether it meets it at all. I do not know whether the Minister has taken the advice of his legal advisers with reference to the impact of this Bill on Article 11 of the Constitution. The decision in the Erne fishery case by the Supreme Court had the effect of declaring void a private interest which existed by way of a several fishery in the Erne over a very considerable number of years. The result of that decision was to vest, in accordance with Article 11, the right of fishing, that had hitherto been worked, exercised and enjoyed by private owners, in the State.

The effect of the decision, having regard to the provisions of Article 11 of the Constitution, is not to give the right of fishery which previously existed in private individuals to particular individuals claiming to be members of the public and happening to live near the river or the fishery in question. I think, subject to what the Minister may say—and so far as I know he did not say anything about this aspect of the matter in his opening statement on the Bill—that this Bill does not adequately meet that situation. Under Article 11 of the Constitution all the waters of the Irish Free State and the natural resources of the Irish Free State are, subject to any valid private interest subsisting therein, vested in the State. They belong to Saorstát Eireann, to use the precise words of Article 11. That put into ordinary language means that they belong to the State. Under the arrangement, so far as I can see that exists, the only effect of the Bill if it becomes an Act will be to enable the local board of conservators to issue licences to local people, to fish in public. The right of fishery, the public right of fishery, using that expression as it exists in our State now, is something entirely different from what the public right of fishery was before the establishment of the Irish Free State because of the provisions of Article 11 of the Constitution.

Coming therefore within the provisions, as I think this right of fishery does come within the provisions, of Article 11 of the Constitution, all the public of the Free State have a right to some interest in this fishery. I do not say that everybody from Cork to Donegal has the right to fish in this river, not by any means, but in accordance with Article 11 of the Constitution the natural resource which belongs to the Irish Free State in this river, namely the right of fishing, must be controlled and administered in accordance with regulations that may be from time to time prescribed by the Oireachtas for the benefit of the State. I do not see the State as a whole getting anything out of this Bill. The only provisions I have been able to read into the Bill giving any right to the public or to the State, are the provisions contained in Section 13. In other words the Minister for Finance may or may not get some little surplus from the licence duties that the board of conservators may charge over and above what would be ordinarily chargeable by them for licences to fish in some other sort of salmon fishing river. I understand from what the Minister stated a few moments ago that even that increased licence duty may be given back by the Minister for Finance to the local board of conservators so that, in the result, it appears to me that the only effect of the Lough Erne fishery decision in the Supreme Court is to give the local board of conservators the right to issue licences to some local people. I do think that that particular result was certainly not the one contended for in that case nor is it the result which should flow from that case.

I think the Minister should seriously consider whether, having regard to the provisions of Article 11 in the Constitution, the provisions of this Bill in the first place meet the situation and, in so far as they purport to meet the situation, are they constitutional having regard to the provisions of Article 11. I do not raise this point in any carping spirit whatever. I was accused, I understand late last night, by the President, of not putting my legal information and knowledge at the disposal of the House. If I had had an opportunity of replying to that particular charge, I would have said that I am tired of warning the Government of the illegal actions they are taking and the consequences thereof and that I propose in future to sit tight and take advantage of their mistakes, if and when I see fit. As the President last night did make that particular charge against me, I am putting my knowledge of Article 11 of the Constitution at the disposal of the Minister. I do not think that he or his legal advisers can have had any regard to Article 11 because, if they had, this Bill would have been drafted in an entirely different way. It recognises in no single word of the Bill, so far as I have been able to ascertain from the Bill, the right of the State to the fishery which was got as a result of the Supreme Court decision. I think that is an aspect that requires the most serious consideration from the Government.

Inevitably, there will be disputes amongst the local fishermen about their rights in this river. Naturally the people who fought the case think that, having won the case in the Supreme Court as against Mr. Moore, the private right of fishery which was previously vested in the plaintiff in that case, has by virtue of that decision passed to the local fishermen around Ballyshannon. I think that is a position that is going to cause very considerable trouble for the Government. I look upon that with a spirit amounting to equanimity, I must say, but I think, at the same time, that attention should be directed to it and that some steps should be taken in the matter. Some sort of Bill is absolutely necessary to meet the situation created by the Lough Erne decision. Again I reiterate that in my opinion the Minister has not taken the proper steps to meet that situation. I do not think that sufficient advertence has been given to the effect of Article 11 on the Supreme Court decision.

The Minister has referred to Section 16 which gives power to the board of conservators to enter into arrangements with the Northern Ireland Board with a view to the protection of the spawning beds which are situated in Northern Ireland and which to a considerable extent I think feed this particular fishery. That is a very important provision in the Bill but, again, I wonder if it is going to meet the situation. I am not a fisherman, but when I occupied a place on the other side I had a certain amount to do in connection with problems akin to this, if not with this particular one, and my recollection in connection with this particular fishery in the Erne is, that the most valuable spawning beds are situated over the Border and if adequate arrangements are not made to protect these spawning beds the fishery in the Erne near Ballyshannon, which was the subject of the litigation which gave rise to this Bill, will be worth nothing to anybody. That is a matter of fact about which I have not any very detailed knowledge. I have not been in touch with anybody on this Bill or with anybody interested in this fishery. I am speaking on this Bill because I have had the misfortune to carry on the case from the start until near the finish to-day. I cannot be accused of in any way putting forward any reactionary views on the matter as the case was fought on my behalf in the courts and the public rights upheld in the courts at my instance. I was accused in the hearing of the case by one of the Supreme Court judges of trying to bring pressure to bear on the judges such as existed in the old Stuart days because I had the temerity to apply on behalf of the local fishermen in case they were compelled to appeal—the only person who could appeal being the Attorney-General—for an extension of the time to appeal, which was granted.

I am mentioning that as a prelude to certain observations I want to make now. I do not want it to be said that the remarks I am going to make are being made in any reactionary spirit, or in favour of any particular individual. Section 16, if my facts are all right, is the most important provision in the Bill, if the fishery is to have any value whatever. Again, and I am speaking subject to the correctness of my facts, I believe the upper reaches of the fisheries in Northern Ireland belong to the persons who were defeated in the action in the Supreme Court. As the Minister stated, these persons, out of their own private moneys, spent a considerable sum each year in preserving the spawning beds and the fry in the portion of the river situate in Northern Ireland. They are not, going to do that in the future unless there is some very substantial quid pro quo. It is mere futility to put Section 16 into this Bill, giving powers to the boards of conservators in the Irish Free State, to enter into arrangements with the Enniskillen Board of Conservators, for the protection of the spawning beds in Northern Ireland. When the Minister considers the matter impartially he will come to the conclusion that there is not the slightest chance of getting amicably and satisfactorily a settlement which will result in the protection of this public right over the fisheries which have now come into the hands of the State, unless there is some very adequate quid pro quo. I suggest for the Minister's consideration that it would be worth his while to do that, and that, in addition, it would be, perhaps, a generous act. The persons who have, as a result of the Supreme Court decision, been deprived of what they regarded as their valuable private right, for which they paid a very big sum of money—I forget the precise amount, but it was something in the neighbourhood of £45,000—that any lawyer, previous to the Treaty, after five minutes' perusal of the title deeds, would have told them was an absolutely indefeasible and valid title.

The point was raised in our courts for the third time, and the fishermen of Ballyshannon won the case on the technical point and on the evidence of historians. Looking at the matter impartially, apart altogether from any bias, a certain amount of injustice was done by that decision; a certain amount of inequity accrued to the owners of the property as a result of that decision. It would be a generous act on behalf of the Government, if they would consider, merely as a matter of grace, compensating the owners of that several fishery, not perhaps to the full extent of the amount which they paid for the several fisheries but, to some extent, at least. I believe it will have the effect of softening down considerably the amount of ill-feeling which will result across the Border in consequence of this decision. I need not refer to the very serious controversy that exists in another place arising out of fisheries also. The Minister and his colleague, the Attorney-General, will realise what I am referring to from documents in their possession. In addition to appeasing that ill-will, to a certain extent, it will enable Section 16 to have some effect and will enable the fishery which has accrued to the State, as a result of the Supreme Court decision, to be of some considerable value to the State.

Having raised that point, I want to come back to my original point, that the Supreme Court decision does not mean that some few local fishermen in Ballyshannon are to get the sole benefit of the several fishery, which has come to be the property of the State, by virtue of Article 11 of the Constitution, but that the right which came to the State belongs to the State as a whole. I am afraid this Bill, drafted as it is, means nothing more or less than that these fishermen up there will have the exclusive right of fishing in this river and that the only result of what litigation has taken place will be to transfer a valuable right of fishery from one set of private individuals to another; from one set of private individuals who took considerable pains—naturally in their own interests—to preserve that right of fishery to another set of private individuals, whose only purpose will be to get as much salmon as they can out of the river, in the shortest possible space of time, for their own pecuniary advantage.

Mr. Lynch

I regret I did not know this Bill was coming on to-day, as I am at a disadvantage at not having heard the Minister's opening statement. should like to endorse Deputy Costello's remarks, with regard to Article 11 of the Constitution, because I think that is exactly what will happen under the provisions of this Bill. The result of the Erne fishery decision is coming to this, that instead of the Irish Society or their lessees, Messrs. Moore, etc., being proprietors, you have now a small group of persons, the Kildoney fishermen. Owing to that decision there had to be some Bill to regulate the fisheries on the Erne, if the river was not to be completely ruined. As Deputy Costello pointed out, this is not the best way of dealing with the matter. Still, it is one way of dealing with it. I see what the Minister has in mind in the way of regulations, that he hopes to limit the number of persons fishing there, presumably by considerably enhanced licence fees. He has it in mind to limit the number of fishermen, and to get licence fees which would be some substitute for the rates paid when these were a valuable fishery. The rates must have amounted to a considerable sum. I am sure the rates paid by Major Moore to the local board of conservators were £600 or £700. These rates must have been a very substantial portion of the funds of that board and presumably increased licence fees are to be some substitute for the loss of rates. The Bill provides for something more than the Erne Fishery. Naturally, the Minister knows that the result of the Erne fishery decision has been challenged by very many of the several fisheries in tidal waters all over the country. In section 2 (b) he contemplates other decisions on similar lines to the Erne decision, or otherwise of persons abandoning their rights to fisheries in tidal waters, because they may not be in a position to fight them in the courts, because of the cost, if those rights are challenged.

I should like to endorse what Deputy Costello says, and in an extended way. It was in 1869 that a sum of £45,520 was paid by the Erne Fishery Company or the Irish Society for this fishery. Of course, the Supreme Court decision is the law of the land and, as Deputy Costello pointed out and as the Attorney-General knows, one of the things that every law student learns is that a landed estate court's conveyance is a perfect root of title. Everyone going through a course of law has to learn that. There was a landed conveyance which gave what would be considered, prior to the Treaty certainly, an absolute title to the fishery. A sum of £45,000 was paid for that so late as 1869. Apart from that, where a right has been exercised for several hundred years or even for 100 years and where it has now been discovered that that had no basis in history and, therefore, no legal basis—as happened in this case—I think the State ought to consider making some compensation in these cases because the alternative, even though it may be perfectly legal, is in its essence confiscation.

It may be fisheries to-day, but it may be something else to-morrow and I think the State ought to consider dealing with this whole problem of several fisheries in tidal waters from a national point of view just as the land was dealt with in the past. Big tracts of land in the past were in the hands of private individuals, landlords. There was a certain way of dealing with them through the Land Purchase Acts. I think, in justice to these persons who, undoubtedly, have a property in these tidal waters—I am referring now to the persons who are being challenged outside the Erne fishery proprietors—the State ought to consider introducing a Fisheries Purchase Bill to deal with the matter. That strikes me as being the equitable thing to do. I think, from the point of view of general respect for property, it would be a very good thing to do.

I referred to the rates on valued fisheries as affecting this position on the Erne very seriously. I would like to remind the Minister that I think the provision of the 1925 Act is due to expire one of these days and he will require an extension of that if rates are to be collected on valued fisheries by the boards of conservators. It was a provision of the 1925 Act and the most we were able to get at the time was for a period of nine years. That is due to expire and if there is not a Bill introduced to cure the situation those rates will again come back to the ordinary local authorities, county councils and so on. I was reminded of that when I saw in this Bill that the Minister was making provision for the loss of rates on the Erne. I thought it would be a good thing to put in a provision by which he would extend that provision of the 1925 Act. This is not quite relevant to the Bill under discussion, except in so far as the loss of rates from the Erne Fishery Company is one of the big problems that has to be dealt with in the situation that has arisen as a result of the Supreme Court decision.

With Deputy Costello, I agree that the Bill is probably not drafted in the way I should like best to have it dealt with; but since the fisheries must be regulated in the area, and since this is one way of doing it and it may save the fisheries to some extent, I intend to support it.

Mr. Anthony

I would like the Minister or the Attorney-General to clear up a doubt that exists in my mind in relation to this Bill. The impression I gathered from the speech of Deputy Costello, whom we all regard as an authority in these matters, was that this measure has been introduced to meet a situation created by a recent High Court decision. From statements made in both Houses of the Oireachtas and statements made up and down the country, I feel that a little more is due, not alone to this House but to the public outside, by way of explanation of this measure. If it is a Bill intended to deal with the Erne Fisheries it should be clearly and specially so stated. The Title of the Bill says:—

An Act to make provision for the regulation and control of the public right of fishery in tidal waters in which formerly a several or exclusive fishery was believed to exist and was enjoyed as of right and to make provision for other matters relating to or connected with the matters aforesaid.

There are several fisheries already in the possession of the State and the State has the right to let those fisheries and to derive a revenue from them. We know also that there are several fisheries in the country in private hands and that many of those people let the fisheries from year to year and derive some profit from them.

I want to know the position in relation to fisheries all over the country. I suggest that the Title does not convey that it is a Bill to deal with the Lough Erne Fishery particularly, but rather that it is a Bill which will make provision for the regulation and control of the public right of fishery in tidal waters all over the country. You must have regard to the fact that the people who will read this discussion, and especially the speech of the ex-Attorney-General, will probably gather the impression that I gathered, that this is just the beginning of a kind of nationalisation of the fisheries of the country. Deputy Lynch has suggested that a better and perhaps a more comprehensive way of dealing with this matter of fisheries would be by introducing a Fisheries Purchase Bill. I do not know how far that suggestion would meet with favour in the country. It is the subject of considerable difference of opinion as to whether or not it would be a wise or a prudent thing to nationalise fisheries. There is a big difference between nationalising land and nationalising fisheries. If we could have a good civic spirit cultivated in the country, such as they have in Canada and New Zealand where the fisheries are nationalised and where a very big revenue is drawn from them by the State, possibly my view and the views of other people would change in relation to fisheries as a national asset. From what we know, however, and human nature being as it is, we are aware there is a lot in the circumstances related by the ex-Attorney-General. Certain people living at the top of the river where the salmon spawn will certainly not allow many salmon to go up the river, across the Border. These salmon will be killed and even the fry will be killed unless some compensation is given to the persons who lost the case in the Law Courts.

I would suggest that for the edification of the public, as well as ourselves, as there is considerable doubt, that the Attorney-General should make clear what exactly this Bill means. Is the Bill only to deal with the Erne Fisheries or is it one that will have general application? The Minister himself said that it would be operative up to 1935, but I take it that it will be the forerunner of some larger and more comprehensive measure dealing with the whole fishing industry. I suggest that here, where you have vested interests—and I have not a wonderful regard for all vested interests—they might very easily become an asset. Anyone who knows anything about hatcheries knows that if a river is poisoned at its source, or if too many of the spawning fish are taken out the whole fishery, even if it was the biggest, would be ruined. I suggest that the Minister, or the Attorney-General, should make the position clear. It will cause a good deal of poaching and destruction if the position is not made quite clear. I am wholeheartedly with the Minister in any effort he may make to preserve, as far as possible, the fishing industry of the country. I suggest that in dealing with vested interests in the fisheries there is no comparison between vested interests in land and vested interests in fisheries.

General Mulcahy

One aspect of this matter might, I think, help to throw a little light upon the whole position. I would like to get back to the Erne position, stripping it of all the past whether arising out of the interpretation of the law or the taking over of the property now by the State or not. It seems that there is a valuable property in the Erne, taking the part in the Free State, and the complementary part from the point of view of salmon fishing across the Border. Deputy Lynch, I think, indicated that the tidal waters were bought by a private owner at one time for something like £45,000, so that there is evidence that at one time it was considered to be a valuable property. I asked the Minister if the position is that the Erne Fisheries are a valuable property, and whether he can give any idea of the number of persons, other than the owners up to the present, who have been earning their living from the property in its present state of development and, approximately, what amount of money annually came to the owner himself? Now that the ownership of this property has been divided, what does the Minister think is a business proposition? Putting the case now, where you have an eastern owner and a western owner each owning part of the property which has valuable economic potentialities, what does he think should be derived by the joint owners, and what kind of arrangement should be made between the eastern and the western owners in order that there should be the fullest possible development of the industry? If the eastern owner is going to make any income by keeping, even in its present state of development, or developing further, the property in his own hands, what income is he likely to get? What would it be worth for the western owner to pay to the owner of the property in order that he might get an adequate income from his property? If these simple questions could be answered they would throw a certain amount of light upon the questions raised as to what income ought to be earned annually by the State themselves as owners of the part of the fishery in the Free State. What does the Minister think the owner of this fishery ought to pay to the owner of the eastern part in order to have continued a type of development or maintenance that would be necessary in order to make the property, which the State now possesses here, a valuable property?

Mr. McMenamin

I am afraid we are somewhat in the dark in this matter. As I understood Deputy Mulcahy he said there was an eastern and a western owner. Unfortunately, there is this complication: that there is another owner. I believe the estuary has been declared to belong to the public. From there up to the boundary belongs to Mr. Moore, and from that to the source is in the Six Counties. Recently a bye-law was made declaring that for half-a-mile westward and seaward from the falls there was no right to fishing. From the falls of Assaroe the entire stretch of the river proper belonged to the Erne Company and the hatchery is in the County Fermanagh. The whole future turns in keeping these things in view. Provision is taken in the Bill to make arrangements with those in Northern Ireland for the development of this river. In this connection I would press the suggestion made by Deputy Costello with regard to paying some compensation to the owners of the Erne river, from the falls at Assaroe to Beleek. I am not very concerned whether this is done or not, but if there is any use in passing this measure these provisions should be enacted in it. It is utterly useless to pass this measure unless something is done to conciliate and compensate the owners of the river from the falls at Assaroe to the source. It is utterly useless to enter into an arrangement with the people of the Six Counties unless you make further arrangements with the owners of the river from the actual falls at Assaroe to the source of the river. This river is a great source of wealth, but that source lies in the estuary, and not in the river itself, except in so far as the river is essential to produce the young fish. I do not quite agree with Deputy Costello that the estuary is going to be vested in a few men. I think I am correct in saying, and perhaps the officials in the Fisheries Department will agree with me, that this river benefits fishermen as far round the coast as Tory Island where the fish come in from the deep sea. The benefits, so far as the people of the Saorstát are concerned, are not confined to the estuary of the river. They extend round to Tory Island. The sum of £700, approximately, comes in to the conservators from rates on the estuary and river. It may well be that from licences we will get, say, a sum equal to that for six years, but if the river is not preserved, and if some arrangement is not entered into with the owners of the River Erne—I mean the river strictly so called—then after the period of six years the fishing will be worthless for the reason that no fish will be hatched up the river and no fish will come into the estuary. There will be no licences taken out and there will be no revenue for anybody. That, in my opinion, is the real point of importance in the suggestion made by Deputy Costello.

It is a matter for the State to consider whether they are determined to maintain this river as a valuable asset for the State and its citizens. But there is no use in this House thinking, or in this or any Government thinking, that this river is going to be an asset unless some arrangement is made with the owners of the actual stream. Some arrangement should be made with the owners to benefit them and benefit them substantially. Otherwise, they cannot be asked to protect the river, the fishing and the spawning beds and all that unless they are compensated. The river itself is of no use except for rod fishing. The owners of the river never cast a line themselves on it. They make a charge at the rate, I think, of £1 a day for the right to fish in the river. The revenue derived from that source is very small. The main source of revenue lies in the estuary. So far as the owners are concerned the river itself is practically worthless. They have no interest in developing this river, in increasing the supply of fish or in the protection of the spawning beds. The value of the suggestion made by Deputy Costello lies in this: that it is for this House and the Government as representing the citizens to consider whether or not they will make any compensation to the owners of the actual stream.

Mr. Cosgrave

This Bill had a Second Reading this morning without notice and with no indication whatever from the Government as to when it was going to be taken. For the last week or two we have been engaged on financial business, the study of which takes up a considerable amount of time. To introduce a measure such as this at a moment's notice, before Deputies have been given an opportunity of making a study of it, is not treating the House fairly. In my opinion the Minister's speech introducing the measure was not at all equal to the importance of this Bill. The Bill has perhaps one saving feature in it, and that is that it is to expire on 31st December, 1935. The Minister glossed over the one important section—Section 16—in the Bill. Surely, the House was entitled to hear something from the Minister as to the reasons which have led to the introduction of this Bill. We did not get that information. From what we have heard this morning some person, about 60 or 70 years ago, paid £45,000 for certain rights. Assuming now that we are dealing only with the one river, the river Erne, we ought surely to have been told whether the property is worth that much to-day or whether it is worth much more. The main consideration for this House is to preserve the property and see that it is not going to be reduced in value. In so far as the Bill purports to do that, then I must say that the provisions in Section 16 do not appeal to me.

As Deputy McMenamin has pointed out, if steps are not taken to have sufficient protection on the upper reaches of the river then in a few years' time this property will not be worth anything. Nobody wants that. It is the desire of everyone, I think, that the property, no matter whose it is, should be preserved for the State. That, to my mind, should be the overriding consideration. A board of conservators, with the approval of the Minister, may enter into certain arrangements; but if those arrangements are not entered into the property may be very seriously damaged. It is unlikely that it will be destroyed altogether, but it would be a more businesslike arrangement if some agreement had been entered into before the Bill was introduced. I am not so sure that as the Bill is drawn the people concerned will be as likely to enter into a firm arrangement with the conservators long as the phrase "with the sanction of the Minister" is contained in the Bill. Why not have added to the board of conservators for a short period someone nominated by the Minister so as to have a firm arrangement made and the job finished? From what we have heard this morning, Section 16 is the most important in the Bill.

The next question that arises is that a certain ownership, which has been acknowledged for a great number of years, has been terminated. The question of the ownership now is, of course, not as important a consideration as the preservation of the property, but so far as this measure is concerned, and so far as the Minister's explanation went, no indication has been given either to the House or to the country as to who has derived any benefit in respect of the court proceedings. I presume that the fees charged for licences will be the same as if there had been an acquisition of the property by the State. But who is benefiting? Is it the State or local individuals? It does not appear from the measure itself, or from anything the Minister said, that any person is benefiting by it, but we can gather from what we have heard here this morning that there is a danger of the property deteriorating in value. Under the provisions of the 1925 Act the board of conservators is brought into the picture through the votes of persons paying certain licence fees. Does it follow from that that if a given number of people band themselves together and take out licences they can dominate the board? I think that in all reason the Minister might consider giving an explanation to the House as to what benefits, if any, have accrued through the action taken: who are likely to derive benefits, and what are the safeguards that these benefits are going to be maintained in the future. Would he also say what the general policy is to be at the conclusion of this period in December, 1935?

If the Minister has the view that there are other cases likely to arise, then the major consideration is the preservation of the fishery. Fortunately for quite a number of citizens of this State, there are people sufficiently wealthy who can afford to indulge in this sport of salmon fishing. They do so at considerable cost to themselves, certainly at a cost far beyond the actual value of the catches they make. That is sport. For the preservation of that asset, and apart altogether from the benefit that hotel keepers and others derive from it, those who indulge in this sport of salmon fishing at, as I have said, considerable cost to themselves, must watch with care what steps we are taking to ensure that there will be sport for them when they do come here. The general question, the main proposition in connection with this Bill is the preservation of property and ensuring that after a certain number of years there will be fisheries there for somebody.

The Attorney-General

I did not intend to go into the question as to whether it should be intended that compensation ought properly be payable to the people claiming former ownership in this fishery. That is a question upon which some reasons have been advanced from the opposite benches, reason which, I dare say, will be taken into account by the Minister. But I should like to help to make the House clear on what exactly the position is. First of all, there is an urgent situation created by the decision in the Erne fishery case. It is necessary that some provision should be made to enable some control to be exercised over the fishing in the River Erne. The effect of that decision is not quite clearly apprehended by some of the speakers on the Opposition Benches. That arises not perhaps so much from a misunderstanding of the effects of the decision as a misunderstanding of the terms used.

The effect of the decision is that the public, not the State, are entitled to a right of fishing in the Erne. In the debate on this Bill, Deputy Cosgrave, or some other speaker, said Article 11 was not adverted to. The effect of Article was considered in the drafting of the Bill and the provisions of Article 11 were kept clearly in mind. The Bill is designed to enable the Minister so to regulate matters on the Erne that there will not be complete and utter confusion during the next two years or until this Bill expires. It must be realised that the Kildoney fishermen or any other fishermen have no more right than I have to go on fishing on the Erne. Every single member of the public of this State has a right to go and fish on the Erne, that is the effect of the decision.

Mr. McMenamin

Is the Attorney-General suggesting to the House that the public have a right to fish on the River Erne?

The Attorney-General

When I said the River Erne I was referring to that part of the estuary which is the subject matter of the decision. I am referring now merely to the tidal waters. This was concerned only with fishing in the tidal waters. It was claimed by the former owners that they had a right to a several fishery in the tidal waters, and it does not affect the inland waters at all. If I have suggested anything else I want to clear that up. I am sure that everybody in the neighbourhood of Ballyshannon realises what is the stretch of water affected by that decision.

Deputy Anthony asked what was the scope of this Bill. If he looks at Section 2 he will see pretty clearly what the scope of the Bill is. It covers the Erne. It is also, I think, fairly clear that the decision in the Erne fishery affects any other estuary in Donegal. The Minister has power, by order, to make the Bill affect any other estuary in which the right of a several fishery is claimed and in which a similar decision has been given as was given in the Erne case.

Mr. Anthony

Does that mean that one would have to take legal proceedings to establish that right before this Bill, when it becomes law, would become operative in relation to the tidal waters? That was the doubt I had in my mind.

The Attorney-General

I suppose the Deputy means that proceedings must be taken, as were taken in the Erne case, on behalf of the public. The effect of the decision is accepted and admitted. The Minister will await the decision in the court before applying the Act to any particular river. It may be that a person who claimed for a several fishery may realise that it applies to the tidal waters in which he hitherto considered he had a right of a several fishery. In that case, if they surrender without fighting, if they agree that the judgment does not affect them, the Minister may step out and make the Act apply to that particular estuary. At the moment it is clear from the judgment of the courts that the public have a right of fishery in the tidal waters in the County Donegal. That seems undoubtedly to be the effect of the decision. There is no doubt at all about it that the effect of the decision was to disturb persons who were in enjoyment of what they considered to be a right of fishing for a long number of years on the tidal stretch, and that they had this right back for centuries, and this was declared to be invalid. I think Deputy Costello is going too far when he suggests that they were entitled to rely on the Landed Estates Court conveyance to which some other Deputy referred.

It was suggested that this decision has in some way weakened the position of the Landed Estates Court conveyance and that that has been shaken by the judgement. I do not think that is so at all. I was not here when Deputy Cosgrave was speaking but I heard what Deputy Lynch said. If Deputy Lynch looks at the judgment he will see that the effect of it is not what he suggests. The fact that the court held was that under the Landed Estates Court conveyance the purchaser who paid £45,000 got exactly what the previous owner had. I have here a typed copy of the joint judgement of Chief Justice Kennedy and Justice Murnaghan. In that judgment Judge Murnaghan said:

"The granting of the right, measured by reference to the former title, is quite at variance with the idea of a grant made with the full exercise of the authority of the court and having the full sanction of the statutory title. I am, therefore, of opinion that the Landed Estates Court took the middle course of granting the fishery rights so far as they had legal existence and that the purchaser was well aware that he had obtained a title not guaranteed under the full force of an incontestable conveyance but one which could only be founded upon the validity of the title previously enjoyed."

Further on in the judgement on page 5 of my transcript he says:—

"It may well be that for excellent reasons the court may qualify the description of that subject in such a way as on the one hand to prevent the conveyance from taking away the rights of the third parties who have never been put upon proving them or establishing them and against whom probably no claim whatever has been made and to whom therefore no notice was necessarily given and on the other hand taking away from the purchaser any portion of these rights which Mr. Connolly might have been able to give him."

Mr. Connolly was the previous owner. Then it goes on to say:—

"Accordingly, the plaintiffs have acquired under the Landed Estates Court conveyance any fishery rights to which Thomas Connolly could have made title."

The court dealt with that particular point right in the opening of their judgment. I want to draw the attention of Deputies to the fact that there has been no change in the law. This judgment in no way alters previous decisions respecting the effect of Landed Estates Court conveyances. It merely held that, when they examined the previous title of Thomas Connolly, they found he had not the title which it was alleged he purported to convey. They also pointed out that examination of the document itself at the time would have made quite clear to anybody that he was "not getting a title to the fishery guaranteed under the full force of an incontestable conveyance but one which could only be founded upon the validity of the title previously enjoyed."

Mr. Cosgrave

Would that be a likely decision 60 years ago?

The Attorney-General

It was shown by the research of the solicitor in this case, as referred to in the course of the judgement, that that particular point had previously been decided in the same way in this case. I do not think it is right to suggest that, on that particular point, there would be a different decision at any time since the effect of Landed Estate Court conveyances came up for consideration by the courts.

Mr. Cosgrave

I am not going to argue law with the Attorney but, following certain cases in connection with charitable dispensations, there has been a remarkable alteration in the decisions of the courts down through the decades.

The Attorney-General

In putting the question, does the Deputy refer to the decision in the Erne case or to decisions on the point with which I am dealing at the moment?

Mr. Cosgrave

The point with which the Attorney-General is dealing at the moment.

The Attorney-General

I think that it will be quite clear to anybody who reads the judgement that there has been no alteration whatsoever in the law. This decision in no way differs as to the effect of a Landed Estate Court conveyance from the previous decisions referred to by Deputy Lynch. It is plain commonsense that, whatever the Landed Estates Court conveyance purported to convey, it could not give any more than the previous owner enjoyed.

Mr. Cosgrave

In the normal course, if a lawyer were advising on that title, would he have advised the purchaser that it was not a good title? I take it that, at whatever time this man bought, he must have had advice regarding his title.

The Attorney-General

The question which the ex-President asks is answered by the fact that this particular property, as it was thought to be, passed from hand to hand over a long number of years and that, until this particular case, nobody thought of challenging the title.

Mr. Cosgrave

The Attorney will admit that somebody must have got legal opinion as to the title when spending £40,000 or whatever the sum was.

The Attorney-General

What I have said is in support of what the Deputy contends—that until this particular case the title was accepted. Doubtless, the title in a property for which such valuable consideration passed was examined at each transfer by competent counsel and, as he says, was never challenged until this case. I should go so far as to say that nobody would blame any lawyer for having passed the title. I need hardly refer to the second point in the case as it has been before the public. The effect of it is clearly understood. The court having held that the plaintiffs acquired, under the Landed Estates Court conveyance, any fishery rights to which Thomas Connolly could have made title, proceeded to the second branch of the case—as to whether Thomas Connolly had title to a several fishery in these waters. They examined the whole history of this property and considered whether the public had been excluded from these waters before Magna Charta. Finding that the waters had not been put in defence before Magna Charta, they held that no several fishery had ever been created and that the title was not sound.

A third point was examined—the effect of the Plantation statutes. That takes up a great part of the judgement. Eventually, the court came to the decision that neither the statutes referred to nor the Letters Patent gave any statutory authority to over-ride the provisions of Magna Charta in respect of the several fisheries the subject matter of the action and, accordingly, that the grant of these several fisheries under these Letters Patent did not bind the public. They pointed out that this decision follows a decision given in the year 1863. The law stated in Davies' Reports up to that had been accepted. The House of Lords, in 1863, reasserted the provisions of Magna Charta in Malcolmson v. O'Dea. Up to that date, the court suggest that, as the law had been interpreted by the courts, the title was a good one but that when, the House of Lords in 1863 reasserted the provisions of Magna Charta in Malcolmson v. O'Dea, the foundations upon which the plaintiffs' title could have been said to rest disappeared. The decision adds:

"If we must state our opinion to be that the plaintiffs' claim is invalid, it is the decision of the House of Lords in Malcolmson v. O'Dea which has produced the result."

The effect of the judgement is to declare that the public are entitled to fish in the estuary of the Erne by reason of the fact that hitherto it had been closed to the public and in private ownership. That decision has created a situation which demands—I am sure that none of the Deputies opposite will contest this—some form of control so that the matters mentioned by some of the Opposition speakers may not result from unrestricted and uncontrolled fishing in the waters. It is obvious that it is the duty of the Minister to preserve this fishery, and to see that it is not destroyed by being over-fished or that persons are not allowed to render it of no value by acting in such a way that the fisheries there would be ruined.

I am sure that all those considerations that were mentioned by Deputy McMenamin are present in the Minister's mind, and that those considerations which the ex-President mentioned are also present in his mind. I do not know sufficient about that particular fishery or about fisheries in general to know how far it is necessary to take steps to negotiate with the owners of the fisheries in the upper waters of the Erne, but I am quite sure that the Minister has that in mind. It is his duty to preserve this fishery for the public, and even if it becomes necessary or essential, as Deputy McMenamin suggests it is, to make an arrangement with the owners of the fishery in the upper waters, I am sure that the Minister will bear all that in mind. At the present moment all we are concerned with here is an attempt to deal with a new situation and to deal with it in such a way that Article 11 will not be outraged in any way, and that the steps to be taken under this Bill are really to secure to the public as a whole that they shall be able to enjoy this fishery and that it shall be preserved for them in the future.

Minister for Agriculture (Dr. Ryan)

I think that Deputy Cosgrave was wrong in saying that this Bill was brought on for Second Reading without notice. I understand that there was consultation between the Whips of the different Parties on the point and that, at any rate, Deputy Cosgrave's Party was informed that the Bill would be taken to-day.

Mr. Cosgrave

At what time?

Dr. Ryan

I think it was to be taken as the first business.

Mr. Cosgrave

At a quarter past ten this morning?

Dr. Ryan

Yes. I do not wish to make a point of it, and I only want to say that I understood that that was the agreement. Deputy Cosgrave also said that my introductory speech was inadequate.

Parliamentary Secretary to the President (Mr. Little)

I understand that the suggestion is that there was no notification given that this Bill was to be taken this morning. As this Bill was so urgent, it was necessary that it be taken as quickly as possible, and an agreement was come to that it should be taken this morning.

Mr. Cosgrave

I heard it only this morning.

Mr. Little

We had consultations about it both yesterday and the day before.

Mr. Cosgrave

We understood that the Constitution (Amendment No. 24) Bill was down for consideration this morning and that it would be taken first.

Mr. Little

That is an entirely wrong statement of the facts. Yesterday I had an interview with Deputy Mulcahy, and I did not contradict it afterwards, that this Bill was to be taken this morning. It was an understanding that this Bill was so urgent that it should be put down first in order to be dealt with to-day even at the inconvenience of the Government.

Mr. Cosgrave

Perhaps I have misunderstood the case, but as the Constitution (Amendment No. 24) Bill was to have finished last night but did not finish. I expected that it would be taken first this morning.

Mr. F. Lynch

The first that I learned of this Bill being first on the Order Paper was at 25 minutes to 11, at home.

Dr. Ryan

As I was saying, with regard to Deputy Cosgrave's other point, that my introductory speech was inadequate, I think that I did give an adequate explanation. I do not see why the Erne decision should come in for discussion in this Bill at all. We have not referred in any way to the point of whether or not the Erne decision was a just decision—although I suppose it was just—or whether there was a certain amount of inequity to the people who were there before, and so on. This Bill has nothing to do with that. We have not referred in any way as to whether or not it was a public or State fishery. We have not tried, as was suggested by speakers on the opposite side, to get this fishery back into the hands of an exclusive group. We have kept it a public fishery, and I did not think it was necessary to refer to the Erne decision or to the former group of people who believed they owned the fisheries. In my introductory speech I only set out to explain the Bill section by section. It was not necessary, I think, to refer to the £45,000 that was paid by these people for the fisheries. Deputy Cosgrave suggested that there might possibly be a plot among those applying for licences to capture the board of conservators. There is no change, so far as that situation is concerned, nor is there any likelihood that what Deputy Cosgrave suggests is likely to occur—that any group of persons in any district could go in and apply for licences and capture the board of conservators in that way. As a matter of fact, in the case of a local river it would be much more expensive to do that, because this special local licence would be more than the ordinary licence. Necessarily, it will be more.

Mr. F. Lynch

If I might be permitted, I should like to intervene to say that I do not believe your special local licence can affect election to the board of conservators, if a man takes out an ordinary draft net licence for that area as distinct from what the other licence may be, unless you are consolidating the two into one licence for the area.

Dr. Ryan

They are consolidated.

Mr. Cosgrave

I should like to say that I have no information, good, bad or indifferent, that there was any actual plot, but it struck me that it could be effected and that if this place was worth £45,000 60 years ago, and is worth anything of that sort now, it appeared to me that £2,000 would be a fair annual sum.

Dr. Ryan

The ordinary licence and the special local licence are being consolidated into one licence. So that the holder of a special local licence has a vote as he would have had with an ordinary licence and as he would have had if this Bill had not been introduced. With regard to the point made by Deputy Lynch that the provision of the 1925 Act will shortly expire, that position is being watched and, if the Minister for Local Government and Public Health agrees, we propose to ask for an extension of that provision. It is quite true that this Bill may be applied to other rivers besides the River Erne. It can be applied by Order, but there must be conditions similar to the conditions existing in the estuary of the Erne at the present time; that is to say, there must be a private ownership claimed there previous to January, 1933, and the owners must have surrendered as a result of a court decision, on the River Erne or elsewhere, before this Bill could apply. For instance, in the case of the Owenea the Minister surrendered any claim he had to the river.

Mr. Anthony

How would it apply to the River Laune, running into the lakes of Killarney, the lower portion of which is vested in the State? That is one of the cases I have in mind.

Dr. Ryan

I do not think the Deputy is right. The State has no ownership there, but I think that action is being taken there similar to that taken in respect to the River Erne by private individuals. I was asked by Deputy Mulcahy what the value of the River Erne is and what is the employment given. The former owners employed about 30 men, including bailiffs and fishermen, and the value of the fishery from Belleek to the sea was £950. The part that has been taken over as a public fishery was valued at £745 out of that £950, and the income of the conservators, therefore, was about £690, so that that amount has to be made good to the conservators. Deputy Lynch asked why we did not deal with this matter of compensating the owners and taking over the fisheries somewhat on the lines of the Land Acts. That is a question that would naturally be considered by the Commission now sitting, and we would not attempt to deal with the question of taking over the fisheries at present privately owned and making them either State fisheries or public fisheries or giving them to any other people, such as the riparian owners, until this Commission had reported. We hope to have that report in time to bring in legislation to replace this Bill by the end of 1935. There are, of course, many other questions to be considered by that Commission besides ownership, but the Commission was set up principally for the consideration of ownership.

Deputy McMenamin was right in saying that not only is it necessary to preserve the fisheries of the River Erne for the sake of those who are fishing on the river, but also for the sake of the sea fishermen, who are affected to a great extent. He is probably right in saying they are affected as far as Tory Island, because the salmon coming back to the River Erne were bred there at one time, and if we destroy the fisheries in the River Erne, the men fishing in the sea in three, four or five years' time will find their fisheries gone, so that it is not alone the 30 or 40 men who might be deriving a livelihood from the River Erne who are concerned but a large number of sea fishermen who are also dependent on the protection of the river.

The point about the Border is an important one, and it is claimed by some of the speakers on the opposite side that it is the only point of real importance in the Bill. That is not true, I believe. It is important that we should have some understanding with the conservators who are in charge of that part of the river which is in the Six Counties. A large majority of the salmon spawning beds are inside the Six Counties. There are some on this side, but I do not see that there is the cause for anxiety, as suggested by Deputy Costello, that although there was naturally a certain amount of friendship between the two boards in the past, there might now be cause for friction between them. The owners of the River Erne are the same, from the falls of Assaroe to the Border, as they were before this action was taken, and they naturally still have a very great concern for the protection of the river on the other side of the Border and we will be dealing with the same people as those with whom we were dealing before. In fact, the conservators now will be practically the same as they were before on both sides and they will be dealing with one another. I do not see that there is any great cause for friction at all, because they will have the same interest and the owners who own the estuary still own the portion from the falls to the Border.

Mr. McMenamin

What is it worth? Nothing.

Dr. Ryan

It is worth something, at any rate. It may be worth half what it was worth before, or less, but that remains to be seen. At any rate, while they may not be just as anxious, they are, I suppose, very anxious, to see that the salmon are protected in the River Erne on account of the property they still hold and they will do their best, so far as they can, to see that the river is protected. One point made by many speakers on the other side, and which was dealt with to some extent by the Attorney-General, was that this Bill was an attempt to create new owners in the estuary of the River Erne. It is no such thing. It was pointed out by the Attorney-General that if any man living in Dublin, Cork or elsewhere were to go to the estuary of the River Erne and apply to the conservators for a licence, either under the present Act or under this Bill, when it becomes an Act, he cannot be refused and he has a right to fish there just the same as if he were one of those who won the action. These men who won the action won it for the whole public and not for themselves, and we cannot, under our present powers, or under the powers which this Bill will give us, give any preference to any citizen, whether from Ballyshannon, Cork or anywhere else, and we do not seek to do so by this Bill. The only thing we seek to do in this Bill is to regulate the order in which they will fish and the number that will be allowed to fish at one time. We could not give any special preference to those Ballyshannon men above any other man who came to fish there and I want to make that very clear. These Ballyshannon men who won the case won it, as I say, for the whole public and not for themselves. It may be rather unfortunate for them now that they did not win it for themselves, but we cannot give them an exclusive right in any way under this Bill.

The urgency of this Bill is that, first, we have, as I pointed out, no rights of regulation and if 40 or 50 boats went in there at present and said they were going to fish, nobody could stop them, unless they did something against the public peace, when, of course, the Civic Guards could interfere. Otherwise, we have no power to interfere and they might all go into that estuary at the present time and create utter confusion. That is the first point—that we are seeking powers under this Bill to regulate the fisheries to deal with a situation of that kind. The second point is the point emphasised very much by speakers on the opposite side, too, that we must, if possible, raise some revenue for the conservators in that area and it would appear fair that, where the public are getting a very valuable fishery, as it has proved itself in the past to be, there is no reason why we should not charge a special local licence fee more than the ordinary licence fee and, out of the proceeds, finance the conservators so that they may protect the River Erne in time to come.

Question put and agreed to.

Committee Stage ordered for Tuesday, 29th May.