Vol. 54 No. 1
I move amendment 1:—
In sub-section (1) (f), page 5, line 15, after the word "approval" to insert the words "and restriction."
This amendment is consequential on amendment 2, which is necessary in consequence of certain provisions of the Constitution.
I beg to move amendment 2:—
In sub-section (2) (f), page 5, line 45, after the word "Finance" to add the words "nor to make any such demise or letting of a fishery to which Article 11 of the Constitution applies for any period exceeding ninety-nine years or with a provision for renewal."
I would like the Minister to explain the meaning of the final words, "with a provision for renewal", joined on to what precedes them by the word "or".
That is a provision restricting them from making a letting of State property for a period exceeding 99 years or with a provision for renewal.
Then no lease containing a provision for renewal for any period can be given?
No.
Is that what is forbidden by the Constitution?
Not quite.
Then this goes considerably beyond the constitutional provision?
Yes.
Is there any reason for it?
No, except that we consider it desirable that the restriction should be imposed.
Why is it desirable?
For a variety of reasons.
Surely the Minister, having had the courtesy to put an amendment on the Paper, which I know is a condescension on his part—he does most of his legislation by way of decree —will be kind enough to inform the House of the variety of reasons that induced him to draft the amendment?
The main purpose is to ensure that the provisions of the Constitution shall be observed.
I understand the constitutional provision is that you cannot let for more than 99 years, and you cannot evade that provision by having a letting for 90 years, with a provision for renewal for, say, another 90 years. The amendment prohibits a letting for more than 99 years, and it also prohibits a letting with a provision for renewal. These lettings are all governed by what is in the section already, namely, that there must be the approval of the Minister and the Minister for Finance. Why tie that down in such a narrow way that no lease can be made with a provision for renewal at all? Why not cut out the earlier portions relating to the approval of the Ministers? I suggest there has been a certain amount of error in this. I suggest what is intended is that you cannot have a letting for more than 90 years, or one with such proviso for renewal as would bring the letting beyond the 99 years period.
The real purpose of the amendment is to ensure that the provisions of the Constitution shall be observed, and that there will be no letting of State property beyond the period provided for in the Constitution. I am advised that this phrase is necessary in order to ensure that the constitutional provision shall be observed.
Here is the section: "Nothing in this section shall operate to authorise the Board"—then we get down to paragraph (f)—"to make any demise by lease or any letting by way of licence of the whole or any part of the Shannon fisheries for any period exceeding one year or with or subject to any covenant or condition for renewal without the approval of the Minister and the Minister for Finance." Surely that envisages letting with a proviso for renewal. Then you go on in the new provision: "nor to make any such demise or letting of the fishery to which Article 11 of the Constitution applies for any period exceeding 99 years or with a provision for renewal." Surely that means no letting can be made with provision for renewal. There is, I think, a mistake.
I will have the matter further examined, and the amendment can be again submitted on the Report Satge.
I beg to move amendment No. 3:—
At the end of sub-section (1) to add the following words:—"Provided that the amount of any price payable by the Board under this Act for any fishing right shall be a capital sum of such amount as will equal twenty times the average annual net certified profits of the said fishing right; for the purpose of this sub-section the average annual net profit shall be determined by taking the average annual profit over the ten years ended the 1st day of January, 1934."
The object of the amendment is to provide some definite basis on which the price to be paid for fishing rights shall be determined. Section 14 as it stands does not, I contend, give us such a basis. The section says that the amount of any price or compensation shall be fixed under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919. The relevant section of the Acquisition of Land (Assessment of Compensation) Act, 1919, is Section 2 (2) which reads:—
The value of land shall, subject as hereinafter provided, be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realise; provided always that the arbitrator shall be entitled to consider all returns and assessments of capital value for taxation made or acquiesced in by the claimant.
An open market for land is one thing. There is always, even in the worst of times, a market for land. Land is continually on the market. But I suggest there is no such thing as an open market for fishery rights.
In the first place, these fishery rights are seldom, if ever, on the market. I do not suppose they go on the market once in 25 years. Leaving the section as it is, with the basis of purchase price, or compensation, to be assessed on the basis of what a willing seller would realise for the sale of his right in the open market, means leaving the thing a complete blank. There is no such thing as an open market, or any market at all, for fishing rights. That does not mean that these rights are of no value. They may be of very considerable value indeed to the proprietors. There is one group of proprietors on the Shannon, the Abbey net fishermen, who think their fishing rights so valuable that they will not agree to any basis of compensation or to any price that might be paid for those rights. They feel so strongly about it that they have created quite an agitation down in Limerick with a view to getting this whole Bill withdrawn. And apparently they are not satisfied with that. I presume other Deputies have also been circularised from America. Various bodies in America, friendly to the Abbey net men, have sent circulars to me asking me to try to have the Bill withdrawn. One can, of course, admire the persistence of the Abbey men in that attitude, while we may not all agree with them. They say that their fishing right is so valuable to them that no money will pay them for its deprivation. I do not agree. I believe that that is a ridiculous attitude to take up but that is neither here nor there. However, I believe that these men would have a distinct grievance if the Bill were allowed to remain in its present form and if the question of compensation or purchase price which they are to receive were left in this vague way. They would have a grievance if this were done and so would every fishery proprietor on the Shannon. The references to an "open market" and a "willing seller" are too vague and the proprietors are left in the dark. I presume that there will be an arbitrator to assess compensation or purchase price in these cases in accordance with the Acquisition of Land Act. I suggest that the arbitrator, too, will be left in the dark in assessing the value of fishery rights unless the Oireachtas gives him some direction. The general taxpayer may also suffer through the vagueness of this term, because the arbitrator, having nothing tangible on which to work, may assess the compensation at far too high a figure. The general taxpayer will then be mulcted. My amendment provides something on which the arbitrator can base his assessment. I suggest 20 years' purchase. The Minister may consider that too high. I have no doubt that the proprietors, especially the Abbey fishermen, will consider it much too low. I do not tie myself to the figure of 20 years. I am open to any amendment of that figure, either up or down I think that it might be equitable to treat the Abbey fishermen in a special way. For them, there might be a figure of 30 years' purchase, or perhaps more, of their net profit. The other proprietors could be treated differently.
The Minister may say—if he did, I should have to agree with him—that it would be impossible to arrive at an accurate estimate of the net profits of the Abbey men. That would not be so in the case of the other fishery proprietors. In almost all cases, they would be income tax payers and would have given each year returns to the Revenue Commissioners which would include the income from the weirs, or whatever fishery rights they have on the Shannon. The State would not be wrong in the figure which would be determined from those returns, because it may be taken for granted that nobody exaggerates one's income when making returns to the Revenue Commissioners. It would be hard to estimate the profits of the Abbey men, but I take it that the intention of the Minister will be to mollify them. They must be treated generously. One would not too closely scrutinise their estimate of net profit so long as it was not beyond all reason. Having arrived at the estimate of net profit, it would remain to determine the number of years' purchase of that profit which would be equitable. As I said at the start, these fishery rights come on the market so very seldom that it is impossible to find any recent figure by which one could compare, say, 20 years' purchase of the annual profits with the figure actually obtained on transfer by sale. However, I have got one instance. In one case, a group of six weirs on the Shannon was purchased in 1910 for £5,365. I have found that a rough estimate of the annual profit on these six weirs for eight years has been about £197 or £198. Twenty years' purchase of that profit would amount to about £4,000. That would not be over-generous to the proprietors, who would be receiving £1,365 less than they actually paid in cash for these weirs in 1910. Comparisons cannot be got easily because these rights come on the market only once in a blue moon. The Minister may, on consideration, think that 20 years' purchase is too high in the case of the ordinary proprietor. It would not be too high, or even high enough, in the case of the Abbey fishermen. All I am seeking by this amendment is that the principle should be adopted, so that the Bill will not be enacted without the Oireachtas giving some direction to the arbitrator as to the basis on which he should arrive at his assessment. I think that the members of the Oireachtas should not allow the Bill to leave the House without fixing some definite basis on which the arbitrator can proceed to work in making his assessment.
This section is similar in principle to the corresponding section in the Shannon Act of 1925.
In the course of the construction of the Shannon works, certain fisheries had to be acquired and the Act of 1925 made provision for compensating the owners of these fisheries on lines similar to those proposed in this section. That consideration has, I think, a direct bearing on the Deputy's remarks, because it means that the arbitrator acting under the Acquisition of Land Act has had quite recent experience in assessing compensation for the acquisition of fisheries and, in fact, the acquisition of fisheries upon the Shannon. It is necessary that the determination of compensation in such cases should be made by the arbitrator. The effect of the Deputy's amendment is to remove any necessity for having an arbitrator as such. The Deputy, in fact, establishes the basis of compensation by his amendment and the only matters left for determination would be such as would concern an accountant rather than an arbitrator. Also, I think on examination, he will perhaps come to the conclusion that the basis of the compensation he proposes is not quite a fair one. There are a number of factors which would be taken into account by the arbitrator in determining the compensation payable in such cases. The value of the property calculated on the willing seller and willing purchaser basis is one factor. The absence of a common standard of value in relation to fishing rights will, of course, make it essential that the arbitrator should have regard to the particular factors the Deputy referred to, namely, the actual profits realised over a number of years. There are other factors the arbitrator would also take into account. One of these factors would be compensation for disturbance.
The position is complicated by the fact that the acquisition value of certain of the Shannon fisheries has already been fixed by arbitration in connection with claims for compensation under the 1925 Act. These awards would presumably have to be reopened if this amendment were passed, with possible consequential claims for compensation as well. Also the Deputy's amendment takes no account of the provisions of sub-section (2) of Section 14. It is proposed under sub-section (2) that anything which was done, or occurred, in relation to property to be acquired on or after the 1st day of October, 1929, will not be taken into account. It was on that date the operation of the Shannon works commenced, and whatever damage was done to the fisheries would have commenced after that date, and would, presumably, have affected the profits realised from these fisheries in the interval, although in certain cases the operations from the Shannon works might have increased the profits of certain fisheries. But whether the profits were increased or decreased, I think it is a fairer basis to leave them out of account altogether and to have regard in the assessing of the amount of compensation, in any case, only to the position on the 1st October, 1929, and during the years preceding that date. On the whole, I think it is preferable to leave the section as it stands, and to allow the arbitrator, under the Acquisition of Land Act, to determine the amount of compensation to be payable in particular cases.
Reference has been made to the rather peculiar position of the Abbey net fishermen. But I think we will be able to take that peculiar position into account in an amendment necessary to Section 22, the last section in the Bill. It proposes to make it unlawful for any person to fish with nets on the Shannon in future. It is necessary to include in that section a sub-section providing for compensation to persons who are deprived from exercising that right of net-fishing and who previously exercised it lawfully. I think it will, of course, be necessary, in the circumstances of the case, to set out the actual basis of compensation to be paid, and consequently I think the position of the Abbey net fishermen will be safeguarded in this sense, that they will be awarded fair compensation not merely for the acquisition of their property, but also for the fact that their right to fish with nets is being terminated. There will be no safeguard in the sense that they will be allowed to continue to fish after the operations of the Shannon Fisheries Act, as they fished in the past. The merits of the particular amendment to the section which will be produced on Report Stage cannot, of course, be discussed by the Deputy until he has seen it. But, in so far as it is proposed to provide compensation for the termination of these rights, and to state the basis of the compensation, he will see that the position of the Abbey net fishermen, in which he is interested, is safeguarded in so far as they will get compensation for their rights as well as for the acquisition of what was owned by them. In every case where ownership is in the hands of individuals and compensation is being made, I am satisfied with the method proposed in the Bill by leaving the matter in the hands of the arbitrator under the Acquisition of Land Act. There is at present only one arbitrator acting under this Act, and he is the person who has had experience of determining the compensation to be paid under the Fisheries Act of 1925.
But for the last phrase the Minister used here I would have asked him if there was in the Bill, as introduced, any provision at all for the Abbey fishermen. In the Bill as it stood compensation is payable under Section 4 if, and only if, injury is caused by the operation of the Shannon Scheme. Clearly the net fishermen who are prejudiced here could not claim anything under this Bill as it stands.
The proposal in the Bill is that the Electricity Board shall acquire the various fishing rights along the Shannon. In so far as the Abbey fishermen are owners they would get the acquisition price, but it is proposed, in addition, to compensate them on the termination of their rights as net fishermen.
The Electricity Supply Board does not necessarily injure anybody and acquisition by them would bring about the right of compensation only under Section 4 if injuries were caused by the operation of the Shannon hydro-electric scheme. But if not connected with the flow of water to the turbines for electricity purposes, then I am putting it to the Minister that it is quite clear it was not possible to compensate the Abbey fishermen under the Bill as it stood. We proposed an amendment to bring them in. They are only here at the moment in connection with the question of damage being done. They are not here for the purpose of compensation being paid unless there is some connection between the acquisition by the Electricity Supply Board and immediate injury done to the fishermen. Let me put it in another way. Suppose the Electricity Board began under clause 22 of the Bill and that clause 22 was not in effect made operative by the regulation in regard to damage, then clearly the fishermen are not entitled to any compensation whatever.
But they may be entitled to compensation for damage done to their fisheries. If Section 22 were not there the Board could not get into the position we desire it, namely, that it will control fishing on the Shannon and will have acquired from the Abbey fishermen their rights and property over the stretch they control.
Section 22 is the one we are talking about here and it has nothing to do with the Electricity Supply Board. It is the regulation of the Legislature. This has nothing to do with the damage done by the Board because of the operation of the hydro-electric scheme.
Compensation, as far as I read Section 4, is payable only if damage is done because of the operation of the hydro-electric scheme. The Minister says he is going to tie up —I think he sees the gap as the measure stands— compensation with Section 22. Does the Minister intend to rely in the main on the provisions of Section 14, once he does tie up the damage to the Abbey fishermen with Section 22? If so, there is another consideration which arises. It is quite correct to say that the arbitrator appointed under the Acquisition of Land (Assessment of Compensation) Act, 1919, has a considerable amount of recent experience and therefore should be more alive to the points in relation to compensation to be considered in this connection than he might have been ten or fifteen years ago, but what is he tied to or how far is it open to him to take certain matters into consideration? Section 14 says that the compensation shall be fixed "in like manner as if such compensation were the price of land compulsorily acquired." That is really the gist of the terms of reference to the arbitrator.
In other words, he is to consider the acquisition of the rights of the fishermen, not on the basis of a willing sale in the open market, but on the basis of a compulsory sale. What arises for consideration on that point? Say that land was acquired formerly for the purposes of building the canal and that a man had facilities for watering his stock and that he suddenly found that the greater portion of his land was left without these facilities, and that to get watering facilities he had to drive his cattle a long way or else had to sink some sort of well. That was, naturally, taken into consideration. Again, the accommodation and the facilities which people formerly enjoyed for bringing milk to creameries, if they were separated by a long stretch of water from the creamery, were taken into consideration. But was there ever taken into the consideration of the arbitrator such a thing as that which the Abbey fishermen feel they have lost? They say they have an ancient right. They say that they are one of the oldest guilds. They say they have made a financial sacrifice by their present position. I do not believe the arbitrator appointed under Section 14 could ever pay the slightest attention to that.
I think what he could take into consideration would be the amount of fish they caught, what was the price they secured, what were the net outgoings, what the income derived from the particular occupation of theirs was, but he certainly will be precluded, as far as I can read the section, by this whole procedure from taking into account any sentimental considerations. Of course, all these are sentimental considerations to the Limerick people. There is the ancient position of these people. There is a guild system there, in the sense that there has been a trade and occupation handed down from father to son for many generations, and that particular item will not be assessed as worth a farthing unless the Minister brings into this new provision some advertence to that special point which will direct the arbitrator's attention specifically to it and unless the House gives the arbitrator leave to take that into consideration and to assess some value on it.
Although the method suggested in Deputy Lynch's amendment is purely a hit-or-miss method, at any rate it raises the price. Twenty years' purchase is something that would not be ordinarily achieved, but it is quite possible that we may find that that is not the true basis of compensation. It may not be and it should be, probably, held over until the other amendment is tabled. I do not know whether the Minister considers the sentimental side, whether he considers that the old-time occupation of these people, transmitted down through many generations, is a thing that is worth compensating. If he does think it is worth while compensating, I would certainly ask him whether it is possible to give compensation in relation to that matter at the moment.
The debate on the amendment of Deputy Lynch, and on the projected amendment of the Minister, indicates how difficult it would be to arrive at anything like a fair basis of compensation for the Abbey fishermen, who have been so frequently mentioned in this matter. Deputy McGilligan decries immediately the question of sentimental values.
I did not decry it.
At least, he indicated the difficulty arising out of it. I would suggest that a lot of the difficulty would be obviated and a good deal of satisfaction would be given generally if, instead of an amendment as a preamble to Section 22 to make compensation payable to the Abbey fishermen, the Minister would delete Section 22 completely or indicate what is the reason for its being there. It has been pointed out by Deputy McGilligan, and it was indicated also in the Second Reading, that these fishermen are not interfering in any way with the Shannon Scheme portion of the river. They operate six miles below the head-race and above the tail-race where it enters the river again. They are not interfering with the Shannon Scheme in any way. Their removal from waters which they have fished for 300 years cannot be attributed to any interference with the Shannon Scheme. They are asking for no compensation whatever, and it is very difficult to see how compensation can be reasonably arrived at. The point is that the fisheries are to be developed not on national lines, but in one particular river which happens to be incidental to a particular scheme and therefore fishing must be developed to the exclusion of fishermen. It is rather an anomalous position that the fishery must be developed to the exclusion of the men who are dependent on the industry.
There are 50 families among the Abbey fishermen affected by this proposal. The fishermen at Castleconnell are also affected. These 50 families consist in all of about 250 persons. They ask for no compensation from anybody; they simply ask to be allowed to ply their calling as they have done for centuries past. They have had constant hardships inflicted upon them since the initiation of the Shannon Scheme. If at any time the Electricity Supply Board could be induced to do their own job directly and make good the damage they have done to the fishermen, the fishermen should certainly be entitled to reap any advantages that might come their way as a result. I did hope that since the Second Reading of the Bill it had been made abundantly clear by all who are interested in the matter that there is a general desire for the preservation of the rights of the Abbey fishermen. As has been mentioned, even their friends in America have come to their assistance. We always welcome assistance from them in any matter, and they have given expression to a righteous indignation at the attempt to deprive the Abbey fishermen of their ancient livelihood. I have yet to hear what case has been put forward to the Minister by his experts to justify the removal of these men. I do not see any reason why he could not allow them to continue in waters where their activities do not in any way interfere with the Shannon Scheme. If he allowed them to continue to earn their livelihood, as they have done for centuries, he would have no difficulty in settling a basis of compensation, because no matter what the arbitrator will do it will be a very serious step to deprive 250 persons of a means of livelihood which they have always enjoyed.
I think Deputy Keyes misunderstands the position. In any event, I am not sure that the point he raised is quite relevant to this particular section or to Deputy Lynch's amendment. But, in order to ensure that the discussion upon this or subsequent sections will be relevant to the scheme as a whole, I think is is desirable to explain it. This Bill has not been introduced in any way because persons fishing the waters of the Shannon have interfered with the hydro-electric scheme. It is quite possible for the Government to take the course that the Shannon electricity scheme will proceed, and if in any way damage is done to the fisheries either by the construction or operation of that scheme, then compensation will be paid, and let the fisheries of the Shannon go any way that chance may decide— probably to disappear altogether. This Bill has been made necessary because unless some change is made in respect of the ownership of the fishing rights on the Shannon, the Shannon fisheries are going to decrease in value. It is, I think, within the knowledge of Deputies that in the past year or two various demands have been put forward for the execution of works on the Shannon, and for the adoption of other measures to preserve the fisheries. The fisheries are in danger not merely of a diminution in value but of extinction unless certain steps are taken to preserve them, and the nature of the steps which we are advised are necessary are such that they cannot be undertaken unless the ownership of all the fisheries of the Shannon is in the one hands. In order to get the salmon to proceed up the river to the spawning beds, and in order to protect the spawning beds, it is necessary that certain works should be constructed. These works cannot be constructed or, if constructed, would be of no value unless the fishing on a particular stretch of the river which the Abbey fishermen control, as well as on adjacent stretches of the river, is stopped altogether. If the Abbey fishermen are to be allowed to continue to fish in that portion of the river, or if anybody is to be allowed to fish in that portion of the river, then we might as well make up our minds at once that it would be a waste of money to spend anything on the preservation of the fisheries, and that the Shannon fisheries, which are a valuable national asset, are going to disappear within a certain period of time, be it long or short.
It is because the Shannon fisheries can be made a very valuable national asset if, and only if, there is uniform ownership of the fisheries over the whole river and that certain essential works are undertaken, that this Bill is introduced. It has not been introduced because it has been found necessary for the successful operation of the Shannon scheme. It has got nothing to do with the Shannon hydro-elecric scheme except this: that certain owners of fishery rights became entitled to compensation in consequence of damage done to those fisheries during the period when the Shannon scheme was being constructed and would also be entitled to compensation for any damage done to those fisheries through the operation of the Shannon scheme. It appears preferable, from every point of view, that the Electricity Supply Board should be given the legal authority to buy out those fisheries rather than pay compensation for damage, particularly as in some cases the fisheries have now become of little value to their owners and that the owners will be quite willing to sell.
We could have proceeded to that extent and left it at that, but it was felt undesirable that the possibility of taking full advantage of the Shannon fisheries should not be overlooked and that we should make a serious attempt to try to develop them for the benefit of the nation as a whole. Having deliberated for a long time on the matter and secured all the expert advice that could be got, we came to the conclusion that it was not possible to preserve and to develop them unless the private ownership of those rights was terminated, unless the whole of the fisheries came into the hands of one authority and unless that authority carried out certain works which the experts stated were necessary. Having come to that conclusion this Bill was introduced.
The Bill establishes, first, that the authority which is to own and operate the fisheries and to construct the works is to be the Electricity Supply Board. It was decided to put the Electricity Supply Board into that position so that we would not have any rival authorities in the Shannon, and so that the one organisation could relate the interests of the electricity scheme to the interests of the fishery development. I think that was the only possible decision. This Bill is introduced to authorise the Electricity Supply Board to do all the things that I have mentioned: that is, to acquire the fisheries, to operate the fisheries and to construct the works necessary for the development of the fisheries. Deputy McGilligan has suggested that Deputy Lynch might hold his amendment over until the amendment to Section 22 is before the Dáil on the Report Stage. I think that is a good idea. I do not want to rush Deputy Lynch into any position. This is not a controversial matter. The Bill which is before the Dáil is, in a sense, as much the product of the Party opposite as it is of this Party. I found it in an advanced stage of preparation when I came into office. I had it re-examined in detail by a Committee representative of the various interests who again advised me that, with certain alterations, the Bill which I had already found ready when I came into office still embodied the best methods of dealing with this particular problem.
The position of the Abbey fishermen presents, of course, a particular difficulty in so far as the sympathy of Deputies is naturally with them. It is not an easy matter to decide that they are to be interfered with in order that the whole of the Shannon fisheries may be properly developed. If they are to be interfered with, I think they should be adequately compensated. The purpose of any amendment which I would introduce would ensure that they did get adequate compensation, not compensation merely on the basis of the value of the property which they own, but compensation for the disturbance of their rights in the fishery which Deputy McGilligan has stated has been exercised by that particular guild for a very long period of time. The amendment which I will bring forward on the Report Stage to Section 22 will provide a basis for the assessment of compensation for the destruction of that right as apart altogether from the assessment of the value of their property which is to be acquired by the Electricity Supply Board. I think the matter might, perhaps, be left over until we have that before us.
I am quite prepared to leave the amendment over for Report Stage. There is just one point that the Minister mentioned to which I would like to refer. I think he said that the proprietors would benefit by the fact that matters like compensation for disturbance would be taken into consideration by the assessor. I think if he looks that up between this and the Report Stage, he will find that the arbitrator is precluded from doing that under the Acquisition of Lands Act. I have not the Act with me, but I am almost certain that sub-section (1) of Section 2 does preclude the arbitrator from taking into consideration the question of disturbance.
I presume there will also be left over for discussion the relevant sections which are Sections 22, 14 and 4. Section 4 is the one which says that compensation is only payable if damage is done by the hydro-electric scheme.
The purpose of Section 4 is to provide for the payment of compensation where damage is done by the operation of the Shannon works as distinct from the Act of 1925, which provides compensation for damage done by the construction of the Shannon works.
This is in the main, as the Minister has said, a Bill for the preservation of fisheries, but it also looks to damage already done through the operation of the scheme. I say that over and beyond both these things there is Section 22, which in fact— though not by any connection with the Shannon hydro-electric scheme—does interfere with a certain right to fisheries.
There are more than line fishermen involved there. The position is complicated by the fact that higher up the river a certain net fishing is carried on by people who have no right to do it, even though they have been doing it for a long number of years.
I move amendment No. 4:—
To add at the end of sub-section (3) the words: "Provided that where a fishing right has been operated by a person other than the owner whether under lease for a number of years or under tenancy from year to year during the five years prior to the passing of this Act, such other persons shall be entitled to such portion of the purchase price payable for the fishing right as the arbitrator shall deem equitable."
This amendment is in a different position, but if the Minister likes, I would be prepared to leave it over. It deals with a different matter from amendment No. 3. The object of the amendment is this: those who know the operation of those fishing weirs in the Shannon know that in a great many cases the proprietors never see those weirs. In the past they leased them, mostly for a number of years, to persons who worked the weirs and maintained them. Any money that was spent on the upkeep was spent by those lessees. They paid men for working them, and paid rent to the proprietor. Any leases that fell in during the last five or six years, or even a longer period, were not renewed by the proprietors, because some of them were clever enough to anticipate that some legislation of the type which we are considering at present would have to be enacted with regard to Shannon fisheries, and they wanted to exclude those lessees from any chance of getting compensation for their interests in the fishing right. Any leases, then, which fell in during the last six or seven years were not renewed, but in many cases the lessees were allowed to work the fishery as before, but on a year to year tenancy. I think that they would have an equitable right to some compensation. The amendment does not purport to tie the arbitrators in any way. It sets out that it is to be entirely within the discretion of the arbitrator as to what proportion of the compensation or purchase price should be paid to such tenant. The amendment merely sets out to establish the principle that those persons have a right; that they should be entitled to put in a claim for a portion of the compensation, or purchase price as the case may be, and that such a claim should be considered. It does not purport to go any further than that. It does not say that there should be any particular ratio—one-tenth or one-twentieth or anything else. It leaves that entirely in the hands of the arbitrator. I think that principle should be accepted by the Minister.
The interpretation which I placed upon the Deputy's amendment when I saw it first was somewhat different to that which I now gather from his remarks. I do not quite follow how his amendment affects the position of tenants whose leases expired during the last five years, and who have since continued on a year to year basis. The position generally is that the Deputy's amendment, I am informed, is not necessary. In fact, a lessee or a tenant of the property has an interest therein. In the case of purchase he is entitled— as one of the vendors—under the Bill as it stands to a proportion of the purchase price paid, and in the case of compensation for damage, he is entitled to a proportion of the compensation. The only effect of the Deputy's amendment is to preclude from the exercise of that right the person whose lease or tenancy was less than the five years which he specifies. In fact, any person who is a lessee or a tenant of a weir is entitled to a proportion of either the purchase price or the compensation for damage. He is one of the vendors—one of the persons having an interest in the property—and is consequently entitled to his share of the purchase price on the one hand, or compensation for damage on the other. It is not necessary to provide specifically for that. It appears to me that the Deputy has some other point in mind, and that the point really is that a person who had a lease of one of those weirs for a number of years, and who might have expected a lease for another period of years if the Shannon scheme had never been constructed and this matter never arose, but who, instead of getting that lease for a number of years, got only a year to year tenancy, should be compensated on the same basis as he would be compensated if in fact he had got a lease for a number of years. That would be a very difficult matter, and I should like to look into it before expressing an opinion.
Do I gather from the Minister that any year to year tenant of those fishing rights, who has worked a weir, will be entitled to a portion of the compensation without any specific provision being made in the Bill?
He would be. Of course a year to year tenant would probably not be entitled to the same proportion of the compensation or purchase price as a lessee for a number of years.
I agree.
That in itself might be inequitable, because a year to year tenant might have been there for a very long period of time, and might reasonably expect to be there for a further period without a lease.
If I understand the Minister rightly, my amendment would be entirely unnecessary. If it is a fact that a person who has been working those weirs for a number of years as tenant, or at any rate any tenant working a weir, would, as the Bill stands, be entitled to portion of the compensation or purchase price—in other words, that he is considered one of the vendors—my amendment is altogether unnecessary, and I am quite prepared to withdraw it.
I want to refer the Deputy to lines 1 and 2, page 4, Section 5.
Does that mean anything more than that all would have to join to give a proper conveyance? Does it mean anything more than that?
It means that they are included amongst the vendors and are consequently entitled to their proportion of the purchase price paid.
It is clear that they are included amongst the purchasers for the purpose of having compulsion brought to bear upon them to make that sale, but does it also follow from that that they will get compensation? It is quite usual in leases or agreements between different people that persons other than those in possession shall join in the conveyance for the purpose of giving a good and proper title. This is something on the same lines—"lessees, and other persons interested shall sell to the Board." Deputy Lynch's amendment goes on to another point. It is that those people having been made to sell shall partake in the compensation awarded. That is somewhat different.
Section 4 (1) says that every person who has suffered loss or damage may apply for compensation. Obviously a tenant or lessee of a weir may suffer damage and apply for compensation. Section 5 (1) says that whenever an application is made to the Board for compensation in respect of injury to a fishery or fishing right, the Board may, instead of paying compensation, acquire, and in acquiring, so acquire the right and the interest of other persons, owners, lessees, and others interested.
I am afraid it leaves it open.
Let us take the Abbey men: supposing that under Section 4 some of the Abbey fishermen are deprived of fishing rights they now have, and supposing that it can be indicated that there are other people interested in "the take"—retailers— are they to be compensated?
No.
Are they people interested? Are they people who have suffered loss or damage?
No.
Why not?
In a sense, I suppose they are, but not by reason of injury to the fishing.
The Minister cannot extend that to answer Deputy Lynch, and withdraw it when it comes to answer me.
I refer the Deputy to Section 4 (1). The claim must be in respect of injury to the fisheries or fishing right owned or held by or vested in the applicant. A person who sold fish is not, obviously, the owner of the fishing.
That is because Section 22 is not tied with Section 4, but it is going to be.
I understand that the Abbey fishermen have not claimed compensation at all.
May I take it that they are provided for?
I am advised that they are covered, but I will look into the matter to make sure.
Are the ten cubic metres per second, for the discharge of the water through the weir at Parteen Villa, agreed upon as the proper amount?
I am advised by experts that that is the minimum amount necessary for the preservation of the fisheries.
I am not clear about the meaning of sub-section (2), which says:—
The Minister for Agriculture may by order vary as he shall think proper, in respect of the said tidal waters of the River Shannon, the weekly close season fixed in respect of those waters by the said Section 20 of the Salmon Fishery (Ireland) Act, 1863, as amended by this section, but shall not by any such order reduce the said weekly close season to less than 48 hours.
I cannot see any justification for the Minister taking power to change the weekly close season by order. The weekly close season was fixed by statute, but it is now to be changed, as far as the type of waters in the Shannon is concerned. In addition, to alter the statute goes a great deal further, by giving the Minister power at any time in the future to change the close season without coming to this House, or even going to the trouble of making a bye-law. In the past, a Minister could not alter the weekly close season, even by a bye-law. Now he is to be allowed, apparently, to alter it by order. That sub-section should be dropped, or, if it is found necessary to alter the close season, it should be done by statute.
The sub-section has been inserted there really to avoid the contingency. It might be possible to revert to the status quo in respect to the weekly close season, not that it should be extended, but reduced again to the 48 hours. The section is really necessary for the purpose of avoiding the necessity for amending legislation when that particular date arrives. It is necessary at present, because of the damage done to the fisheries, to extend the close season, in so far as it affects the tidal waters. It is believed that after a certain period, when the new conditions contemplated by the Bill come into operation, the value of the fisheries will be restored, and that it will not be necessary to preserve a longer close season than the section contemplates; that it will be possible to revert. The section is there to have that done by order rather than by legislation. Possibly, it would meet the Deputy's wishes if we inserted a provision requiring that any order made should be approved by the Oireachtas before coming into force, if the object is to prevent the Minister for Agriculture further extending the close season.
I accept that. I think the sub-section should be slightly amended. The Minister says that the purpose is to bring the close season back to the status quo ante, but the fact is that he may alter it as much as he likes. Let us take an extreme case, that of some recalcitrant weir owner who is difficult to deal with. The Minister may say: “I will take it out of you.” By altering the close season four or five days he might bring him to his knees. As the sub-section stands it empowers the Minister to do that. If the intention is to allow the Minister, when conditions improve, to revert to the shorter close season, the sub-section should be changed so that the Minister would not have power to alter it by lengthening it. With such an amendment I could agree providing it was laid before the House.
I will look into that. This matter is more for the Department of Fisheries than for the Department of Industry and Commerce. As I understand it, they do not expect it will be necessary to increase further the close season, although of course there is necessity for checking depletion of the spawning stock now going on. They think that after a period that depletion will be checked, and that it will be possible to revert to the 48 hours. Possibly they may have in mind that if the increased close season provided was not operative, they might have to extend it. In any event, there should be a provision requiring the assent of the Dáil before it is done.
Either up or down?
Any change. I will have an amendment to that effect.
I move amendment No. 5:—
In sub-section (1), page 8, line 48, after the word "Shannon" to insert the words "within the meaning of the Fisheries Acts, 1842 to 1925," and in line 49 to delete the words "the Fisheries Acts, 1842 to 1925," and substitute the words "these Acts."
This is a drafting amendment.
What is the object of it? Why put in that phrase "for the tidal waters of the River Shannon"? Is that what it is sought to define?
It is to define what the tidal waters are.
Then we will have the tidal waters defined in the old Acts, and the waters of the Shannon and the waters of the Shannon Fisheries Acts defined here. Would it not be better to get a definition included? You have definitions at the beginning, "Shannon Fisheries,""Waters of the Shannon," and "Waters of the Shannon Fisheries." Apparently, we are now to have "Tidal Waters of the River Shannon," and a definition of that will depend on the old Acts.
The point is that under the old Acts these licences were provided for fishing with drift and draft nets. It is still intended that there should be such fishing, and the only purpose here is to limit the number of persons who may exercise that right to the actual number that have been using it in the past.
There must be something more, I suggest, because it is affected by the phrase "the number of licences which shall be issued under these Acts."
For fishing in these particular waters as defined by the old Act.
That is what I thought. It must be for the definition of the tidal waters.
I take it that there was in these Acts some specific definition?
Yes.
Would it not be well, in order to avoid reference from one Act to another, to carry forward that definition from the old Act into this Act?
I will see if that can be done easily. It might be difficult.
I move amendment No. 6:—
In sub-section (1), page 8, line 52, to delete the word "drift" and substitute the word "draft."
This is to change a verbal error.
I move amendment No. 7:—
In sub-section (1), page 8, line 54, to delete the word "twenty-eight" and substitute the word "twenty-five."
The proposal here, of course, is to limit the actual number of licences to those actually issued in previous years. It is to provide that anybody who has been exercising these rights in the past may continue to exercise them in the future, but that the number may not increase. The "twenty-eight" should properly be "twenty-five" which will, in fact, provide for issuing licences to everybody fishing in that form on the Shannon.
What is the test year on which the twenty-five is determined?
The test year we took was last year, but at the same time, I looked up the numbers and found that the number last year was, in fact, over the number of some of the previous years, so that you would not have a case where somebody who had just missed a year would be deprived of a licence. Anybody who fished in 1933 and 1932 can be given a licence.
You do not let in any gentleman with a capacity for forecasting who took out a licence last year and who had not one before?
I do not think so. The average has been fairly steady over all the years.
I move amendment No, 8:—
In sub-section (2), page 9, line 1, to delete the figures "1932" and substitute the figures "1934."
This is a change in consequence of the delay in enacting the measure.
Does that not introduce this possibility of forestalling? The sub-section reads:
The Minister for Agriculture may make regulations in relation to the issue of such licences as are mentioned in the foregoing sub-section of this section for the purpose of securing to persons who held such licences in the year 1932...
I assumed from all this that 1932 was the test year and the Minister now says 1934. After all, it has been known that this measure was under way. Has there been any trafficking—the Minister will know this by looking at the names— in licences or any apparent attempt to jump a claim?
I should not like to say that I had examined the names, but, examining the numbers, it is apparent that there has not been any substantial increase such as one might expect if there was forestalling of the Act.
Figures would not meet it entirely. You might have the same number but a difference in the individuals. Somebody might have been rather definitely pressed out by some gentleman who had got the idea of forestalling and had jumped a claim substituting himself for somebody else. Until an examination of the names is made, that cannot be discovered.
That examination may have been undertaken but I should not like to say so.
In other words, is anyone fishing in 1933 and 1934 who was not fishing in 1932?
Or not a lineal descendant?
It is not likely.
The Minister will look into it?
Certainly.
I move amendment No. 9:—
Before Section 22 to insert a new section as follows:—
After the passing of this Act no licence shall be issued under the Fisheries Acts, 1842 to 1925, for fishing with a snap net in the tidal waters of the River Shannon within the meaning of those Acts.
This amendment is required in order to provide against possible future development. There is, in fact, no fishing with snap nets in the tidal waters of the River Shannon at present and there never has been, but it is possible that, with the improvement of the fisheries and the altered conditions produced by this Bill, snap net fishing in the tidal waters may develop and it is necessary to prevent it.
Why do you object to snap men?
What are snap men?
We do not; we only want to prevent any increase of fishing in the tidal waters.
What are snap nets?
They are devices for catching fish.
What is the difference between snap nets, drift nets and draft nets?
And seine nets.
I am afraid it would take too long to explain.
Are we to assume that there is some good reason for the prohibition of these snap men?
The only reason for the prohibition is that we do not want to permit an increase of fishing in tidal waters.
Why not say "snap or other nets"?
We are limiting the other nets.
Are these definitions exclusive—snap, drift, draft and seine —and do they exhaust the field of fishing between them?
Possibly somebody may invent another method for catching the fish, and in that case we will have to legislate.
I move amendment No. 10:—
In sub-section (1), page 9, line 6, to delete the word "salmon" and substitute the words and brackets "fish (other than eels.)"
It is necessary in this case to delete the word "salmon" and to substitute "fish", the intention being to prohibit the use of nets in the fresh waters altogether, except in accordance with the provisions of this section.
That is precisely what you do not do. You substitute, not the word "fish", but "fish (other than eels)" once, and you substitute "fish" by itself in the second place. Why? Amendment 10 cuts out the word "salmon" and puts in "fish (other than eels)" and amendment 12 substitutes the word "fish" for the word "salmon". What is happening to eels in the second case?
It is, I think, good drafting, nevertheless, because one merely prohibits people from taking fish in a manner contrary to the section, and the other prohibits the taking of fish other than eels by nets.
There will be more than eels taken. I suggest that you should put in the phrase in the second case.
I will look it up and see if there is any drafting necessary for it.
I move amendment No. 11:—
Before sub-section (2) to insert a new sub-section as follows:—
"The foregoing sub-section of this section shall not apply to or render unlawful the use of a landing net solely as an auxiliary to lawful angling with rod and line or the use of a landing or other net for the purpose of lawfully removing fish from a lawful fishing weir."
This is an obvious amendment designed to secure that the section will not be interpreted so as to prevent the use of a landing net by rod fishermen or the use of a net in the removal of fish from a weir.
This is another scheme. This prevents fishing with what might be called landing nets.
No.
It is the subterfuge of fishing with landing nets. When you went about it in respect of snap nets, why not say "all nets."
We are going to allow them to use landing nets.
I beg your pardon; you are quite right.
I move amendment No. 12:—
In sub-section (2), page 9, line 10, to delete the word "salmon" and substitute the word "fish."
I move amendment No. 13:—
In sub-section (2), page 9, line 19, to delete the words "functional area" and substitute the word "district."
This is a drafting change.
Is there a difference between "district" and "functional area"?
I do not think there is, but it is considered that the term "district" is a more precise definition of what is intended than "functional area," and that "functional area" does not convey the proper meaning of the section.
Section 22, at a cursory glance, seems to mean that you may not fish for trout or for anything else in the fresh waters of the river Shannon. Section 22, sub-section 1, having been amended, reads:
It shall not be lawful for any person to fish for, catch or take, or attempt to catch or take fish other than eels with a net of any kind in the fresh waters of the river Shannon.
That means they may not take pike or coarse fish, or bream or any other variety of fish, in these rivers with a net.
Except eels.
Except eels.
The intention is that the whole of these fisheries will pass into the hands of the Electricity Supply Board, and that they will be responsible for the development of these fisheries to the best advantage in whatever way, on expert advice, they think they should be developed. I explained the question of compensation for persons who are being deprived of the exercise of a right that they had exercised.
So that any person deprived of the right of getting coarse fish would be compensated?
Yes, if he was doing it legally.
