I move that the Bill be now read a Second Time.
The salmon and trout fisheries of this country have been the subject of a long series of enactments dating back to the earliest periods of legislative history, and now that we are about to examine and discuss another Bill on the subject we may, perhaps, with advantage advert as briefly as possible to the principal fishery statutes enacted during the past century, as well as the circumstances in which these additions to the fishery code came to be made.
Up to the opening of the 19th century our salmon and trout fisheries were divided as to ownership or exploitation among, broadly speaking, three classes. There were those persons who operated several or exclusive fisheries under charters or grants of ancient standing, there were the ordinary local netsmen who worked in the tidal waters of most of the salmon rivers and there were the upper water proprietors. It was apparently left to the last mentioned and the chartered fishery owners to protect their interests as best they might at their own expense. The State passed many relevant laws, but does not seem to have troubled much about the enforcement of them. There was some sort of responsibility cast upon the Admiralty, but this was rather indefinite in its nature.
Between the years 1714 and 1837 some 18 Acts dealing mainly with salmon fisheries were passed, showing that the matter was deemed by the Legislature to be of some consequence. We also find that in the period 1810-1838 all parties concerned in these fisheries had been in a state of turmoil over the introduction, about 1808, of the contrivances known as Scotch weirs or stake weirs, and that during the following 20 years such engines were being constantly prostrated by the ordinary netsmen and were also being abated by rulings of the law courts.
Matters became so serious that Parliament found it necessary to intervene; and following a parliamentary inquiry set up about 1837-'38, it was decided to draft a comprehensive measure dealing with the Irish salmon fisheries and there was duly passed the Fisheries Act of 1842. This measure repealed all the enactments then in force relating to our fisheries, enactments dating back to the reign of Edward IV (circa 1470). It was a very well drawn piece of legislation running to 115 sections and contained salutary provisions for the preservation of the salmon fisheries. Unfortunately, however, the framers of this Act overlooked providing adequate machinery for the enforcement of its provisions. While the Act authorised the supervision by the Commissioners of Public Works of the salmon rivers of this country as a whole, it was far from clear how the supervision was to be made effective. It is true that water bailifs might be appointed by the proprietors of fisheries or by other persons interested. Some assistance was also to be given by officers of the navy and by the local coastguard, but there such provisions ended. In one important respect this Act of 1842 broke new ground. That was, that by its 18th and 19th Sections it legalised the use under certain conditions, of those fixed engines (i.e., stake weirs) already referred to. While severe restrictions on their use were imposed, subsequent events seem to have proved that even limited legislation on stake nets was far from being an unmixed blessing.
In the year 1844 an amending Act was passed, the main purpose of which was to empower the constabulary to participate in the enforcement of the fishery laws. Unfortunately the police, like the Commissioners of Public Works, had many other matters to attend to which, in practice, were given priority over the calls of fishery protection.
In the following year another measure amending the foregoing Acts was passed. It provided for the appointment of additional commissioners with special responsibility for the fisheries work as distinguished from the general work of the Office of Public Works.
In 1846 yet another Act was passed to amplify certain provisions of the earlier statutes. It had now become obvious that all these provisions contained in the statutes from 1842 onwards, while good in themselves, were really inoperative in character; and the absolute need for some method of ensuring the application of these provisions became apparent to all concerned.
In such circumstances there was passed the Fisheries Act of 1848 which provided for the division of the country into fishery districts, each of them to be controlled by a board of conservators by whom a tax in the form of a licence duty would be levied upon every fishing engine operated within their district. The proceeds were to be devoted to the payment of officers and water-bailiffs employed by the board under this Act for the protection of the fisheries in their district. The overriding authority for fishery administration was still left in the hands of those special commissioners already appointed under the earlier Act to work with the Commissioners of Public Works.
In 1850 an Act of 46 sections was passed which contained many much needed amplifications of the earlier Acts, but introduced no new principle into our fishery code.
By 1862 we find that fixed nets had rapidly increased in number while, on the other hand, the legal free gaps in weirs were not being maintained. It seems to have been due mainly to the ability and perseverance of a Mr. McMahon, then M.P. for Wexford, that after several years of struggle on his part the Act of 1863 reached the Statute Book. The chief provisions of this Act are those relating to fixed engines, free gaps in weirs, close seasons and the regulation of fishery licences. It provided for the appointment of three special commissioners to whom were transferred all the powers and duties with regard to salmon fisheries that had previously attached to the Commissioners of Public Works.
These special commissioners, whose appointment was dated October, 1863, were authorised to investigate the working of any fixed net and every weir, were given the status of judges, and appeals from their decisions were generally heard by a full court, consisting of four judges of the Queen's Bench, beyond whom no further appeal lay. The commissioners got to work immediately and would seem to have discharged their duties with great competence. At the close of the year 1865 they had inquired into the legality of over 280 fixed engines and had issued certificates in favour of not more than 24 of them. At that date there were some important appeals from their rulings still pending, and in many cases their decisions were reversed by the Appellate Tribunal. Their successors (the inspectors of Irish fisheries) found themselves constrained in the early seventies to issue a number of certificates in cases where the appellate decision applied. At the present time the total number of certificated fixed engines in the whole of Ireland is just 200, as against the many times that number which had been in use prior to 1863.
It seems, therefore, fair to suggest that but for the Act of 1848, which set up local boards of conservators, and the Act of 1863, which created the special commissioners with the duty to take action on their own initiative, our salmon and trout fisheries could scarcely have managed to survive as an asset.
Incidentally to the discharge of their duties the special commissioners found it necessary to lay down formula for the definition of estuaries, as well as of river mouths, and of tidal and fresh water boundaries, all points of great importance subsequently in fisheries administration.
In May, 1869, an Act was passed, the purpose of which was the replacement of the special commissioners by three officers styled the "inspectors of Irish fisheries." In August of the same year a further Act was passed making more clear the duties and responsibilities of these inspectors. It combined for the first time in the one authority the supervision of the sea and the inland fisheries. Previously the sea fisheries had been dealt with by another authority which relied very largely upon the assistance of the coastguards.
That Act also provided for the holding of inquiries by the inspectors of fisheries and the making of general by-laws, as well as the definition of river mouths and estuaries, or the revision of existing by-laws and definitions. Here for the first time mention is made of the right to appeal to the Lord Lieutenant in Council (i.e., the Privy Council) in respect of the definition just mentioned. That right already existed under Section 92 of 5 and 6 Vic., Cap. 106, so far as the ordinary by-laws were concerned. This appeal arrangement continued until 1922; and at present the High Court is the Appellate Tribunal in these matters. In their report for the year 1870 the inspectors of fisheries suggested that as soon as a few short Bills remedying obvious defects had been enacted arrangements should be made for consolidating the fishery code. That consolidation was never attempted. It is, therefore, contemplated that, once this Bill has been disposed of, the consolidation of our fishery statutes shall be definitely undertaken.
During the following 25 years, while no attempt at consolidation seems to have been made, there were passed (in addition to four statutes dealing with sea fisheries) six Acts dealing with the following matters:—
An Act passed in the year 1870 relating to the export of unseasonable salmon. That Act will be repealed and the essential provisions thereof re-enacted in this measure.
An Act passed in the year 1876 on the subject of the prevention of the pollution of rivers.
An Act passed in the year 1877 prohibited the use of dynamite or explosives for the purpose of catching or destroying fish in public fisheries.
An Act in the year 1881 further regulating the close season for fishing for pollan in Ireland.
An Act passed in 1891 for the provision of better preservation of the pollan fisheries in Ireland.
An Act passed in 1895 to make good a rather curious omission in the earlier statutes, namely, provision for an appeal against close season orders. It is well to record that this Act of 1895 was itself subsequently repealed by the Act of 1909 (9 Edw. 7, Cap. 25) whichinter alia provided that the right of appeal with regard to close season orders should be the same as that given with regard to by-laws, under Sections 91-93 of the Act of 1842.
In 1899 was passed an Act establishing the Department of Agriculture and Technical Instruction in Ireland to whichinter alia were transferred all the powers and duties of the inspectors of Irish fisheries.
The organisation of the new Department consisted of a fourfold grouping of its responsibilities, namely, an Agricultural Branch, a Technical Instruction Branch, a Veterinary Branch and a Fisheries Branch. The last-mentioned branch was placed in the immediate charge of the inspectors of fisheries, and there was added to it a much-needed laboratory and technical staff under the supervision of a scientific adviser. As a result it became possible to fill subsequent vacancies for the post of inspector by the appointment of persons who were fully trained ichthyologists.
In 1909 there was passed a short Act (already referred to) which dealt with the holding of inquiries in response to applications for changes in existing by-laws or close season orders, etc.
There were no further additions to the Statute Book in the shape of fishery legislation until after the change of Government in 1922.
During the régime of the Provisional Government in the 12 months ended 6th December, 1922, the inland fisheries administration was carried on by the Fisheries Branch of the Department of Agriculture and Technical Instruction. The Minister for Fisheries, who was appointed in December, 1922, really acted upon an agency basis for the Minister for Agriculture for,inter alia, the powers and duties appurtenant to the Fisheries Branch aforesaid.
It was in March, 1924, that the Fisheries Act, 1924, was passed as a check upon the serious increase in fishery offences which had then arisen. Certain of the penalties imposed by that Act may possibly have erred somewhat on the side of severity. The moral effect of that Act was, however, very considerable, as it demonstrated to all actual and potential offenders that the fishery authority was determined to suppress the threatened development of illegal fishing.
In the following month, April, 1924, there was enacted the Ministers and Secretaries Act, 1924, which, among other things, regularised the whole position of the fishery administration by giving legal existence to the Department of Fisheries.
In July, 1925, there was added to the fishery code the Fisheries Act, 1925. It dealt with the constitution of the boards of conservators and introduced many much needed improvements in the then existing system. It also provided that during the ten years next following there were to be paid to the boards of conservators the rates upon all fishery assessments, instead of the small income previously derived by these boards from what was known as the 10 per cent. rate on fisheries. There was also a provision giving the local authorities (county councils and other bodies) a claim upon the Exchequer for a refund or recoupment of the amount, above a certain figure, by which a loss in local rates was sustained by reason of this diversion of payment in favour of conservators. The net result to the boards was an increase in their total income of about £15,000 per annum without which they could not possibly have maintained an adequate number of water bailiffs or river watchers. That Act further compelled persons engaging in the purchase and sale of salmon and trout to keep records. It also prohibited absolutely any further addition to the number of those fixed engines to which reference has been made.
In view of the administration difficulties that were caused by the political border it became necessary to re-define certain of the fishery districts. That portion of the former district of Derry, or Londonderry, which was physically within the jurisdiction of our Government was constituted as the new district of Moville; and the periphery of the former Ballyshannon district was modified so as to accommodate the working of it to the new conditions. There are now 23 boards of conservators functioning within the jurisdiction. In addition to the conservators elected in the ordinary course by the persons who have paid licence duty, the owner, occupier, or lessee of a fishery valued for rating purposes at £50 or upwards is entitled to sit and act as conservatorex-officio for the district in which such fishery is situated. The composition of the existing boards may be taken as:—
Representatives of tidal electoral divisions
Representatives of freshwater electoral divisions
Rated occupiers of fisheries have not yet been given voting powers in respect of the rates which they pay, but that anomaly is dealt with in this Bill.
The Ministers and Secretaries (Amendment) Act, 1928, expanded the responsibilities of the Minister for Fisheries who, under its provisions, became the Minister for Lands and Fisheries and took charge of the work of the Land Commission.
In November, 1933, the Minister for Lands and Fisheries relinquished his responsibility for the fisheries service, and, as the Minister for Lands, took over charge of the Forestry service, which until then had been under the Minister for Agriculture. The Minister for Agriculture took over fisheries.
Following the decision given by the Supreme Court towards the end of 1933 in the important case of "Moore v. the Attorney-General" (usually referred to as "the Erne Fisheries decision"), the estuary of the River Erne at Ballyshannon became open to the public at large, and, with a view to regulating the fishing operations at that place—with the ultimate object of conserving the stock of the river— there was passed the Fisheries (Tidal Waters) Act, 1934. That Act provided,inter alia, for the issue in respect of the Erne estuary of special local licences, the duty on which was assessed at a figure calculated to produce for the board of conservators the equivalent of the fishery rate which up till then had been paid by Messrs. Moore while operating the estuary as a several fishery. This Act which had to be put through hurriedly, in view of the near approach of the fishing season, was made to run for one year only.
The Fisheries (Tidal Waters) (Amendment) Act, 1935, extended for a further two seasons the provisions of the Act of 1934.
There was passed the same year the statute known as the Fisheries Act, 1935, by which was extended for a further two years the then expiring provision in the Fisheries Act of 1925 (No. 32 of 1925) regarding the payment of fishery rates direct to the conservators.
The Fisheries (Tidal Waters) (Amendment) Act, 1937, again extended for another two years the general provisions of aforesaid Act No. 24 of 1934, but with the addition of a special provision for the payment by approved instalments of the special local licence duty in respect of drift nets.
The Fisheries Act, 1937, extended for a further period up to the end of the year 1949 the rating provisions of the Fisheries Act of 1925. At the time when this Act was under discussion (November, 1937) it had become evident that there would still be considerable delay before the comprehensive measure in contemplation could be introduced. It was, therefore, decided to extend the Act dealing with tidal waters for two years and then to incorporate the general regulations on that subject in the new Bill. On the other hand; the rating provisions as originally settled by the Fisheries Act, 1925, had better, it was thought, be treated separately.
In addition to the statutes directly concerned with inland fisheries administration which I have dealt with, it is well to record that the following four Acts also have an indirect bearing on that subject:—
The Shannon Electricity Act, 1925, (No. 26 of 1925);
The Electricity Supply Act, 1927 (No. 27 of 1927);
The Shannon Fisheries Act, 1935 (No. 4 of 1935);
The Shannon Fisheries Act, 1938 (No. 7 of 1938).
These four statutes deal with the hydro-electric scheme and its consequential results upon the fisheries of the Shannon system. From the fisheries viewpoint, the aim of these statutes is to enable the Electricity Supply Board to develop and exploit to the best advantage the fisheries of the Shannon so far as may be consistent with the maintenance at the requisite standard of efficiency of the hydro-electric scheme. The fishery authority for the Shannon remains as heretofore in the Limerick Board of Conservators, and through them in the Minister for Agriculture.
Coming to this Bill, it will be noted that it has been drawn in six separate divisions or parts. Part I, styled "Preliminary and General," is self-explanatory, calling for no special comment by me. Part II and Part III contain certain much-needed amendments of the existing fishery code, and these will require a fair amount of commentary. Parts IV and V have reference to the proposed acquisition by the Minister of privately held estuarine and weir fisheries; and, here again, it will be necessary to have a reasonably complete and considered statement of the policy underlying the scheme. Part VI of the Bill deals with miscellaneous matters none of which, except perhaps the item covered by Section 96, would appear to require anything by way of special explanation. I will now proceed to discuss the contents of Part II.
Section 6.—This provides in effect that the name on the fishing licence shall be that of the person actually paying the licence duty. It is designed to obviate misunderstandings and confusion which have in the past arisen by reason of the holder of a licence being merely a deputy or "dummy" for the actual payer of the duty.
Section 7.—Here again the intention is to regularise the method of issuing rod licences so that the franchise may be fairly exercised at the election of boards of conservators.
Section 8.—By a curious oversight, no penalty was mentioned in the Fisheries Act, 1848, for failure to comply with the terms of Section 21, which oblige a person setting up, for fishing purposes, any instrument or device other than those enumerated in the Schedule to that Act to notify the fact to the conservators, so that a suitable licence duty may be assessed on the said instrument or device. This present section now makes good the omission in question.
Section 9.—The proposed imposition of a licence duty of 5/- on every trout rod is admittedly a matter open to controversy. On the whole, however, the arguments in favour of introducing this duty are very much stronger and more convincing than anything which can be urged against it. We are being constantly reminded of the potential value of our brown trout fisheries. Its importance is stressed in the report of the Inland Fisheries Commission of 1935; and we are having persistent requests for assistance in the preservation and development of this branch of our inland fisheries. If the State is to be expected to assist in this matter by the development of hatcheries and so forth, those directly interested in this sport of brown trout angling must be prepared to demonstrate that they are willing to do something on their part. The duty proposed is very small. In view of the concurrent legislation dealing with tourist development it is of much consequence that our brown trout fisheries should receive particular attention. While, therefore, commending the section to the support of Deputies, I am quite willing to consider such views as they may care to express about its provisions.
Section 10.—Up to 1925 the licence duty charged for a rod for salmon and sea trout was £1; and such a licence taken out in any one fishery district was valid for all districts. The Fisheries Act, 1925, raised the duty to £2 for a licence to be available only in the district in which it was taken out, but transferable to any other district on payment of an additional 10/-. A board of conservators might, if they so wished, by special resolution put in force a £1 rod licence valid for a fortnight only and not transferable. This arrangement has proved suitable for the requirements of short-trip tourists and holiday anglers.
It has been suggested that there should be for sea trout rods a duty separate from and lower than that for salmon rods. The most valuable salmon angling is for spring-run fish: whereas sea trout (except in one or two districts) run altogether in the summer and autumn. The salmon which run in summer and autumn are in general much smaller than the spring fish. It is, therefore, proposed to provide for the issue of a £1 licence, to cover salmon and sea trout angling from the first of July to the end of the open season, which would be available for use in another district upon payment of an endorsement fee of 10/-. The conservators may pass a resolution putting such a form of licence in force, and at the same time may decide whether they will issue 14-day licences prior to the 1st July. It is believed that any reduction in receipts as computed on the former basis would be well offset by the larger number of licences taken out during the second half of the year under the new system.
Section 11.—The case of the greater including the less is obvious.
Section 12.—The proposal here is to increase the licence duty on draft nets or seines from £4 to £5 and the duty upon drift nets of any length from £3 to £5. A little consideration of this Bill as a whole will, I think, show that this proposal is in nowise inequitable. The members of the Inland Fisheries Commission, 1935, were almost unanimous in recommending that all netting for salmon should be abolished, and that a system of trap-weirs worked by a central fishery board be substituted. Having weighed carefully the pros and cons of this recommendation, the Government decided that its adoption was undesirable. The Bill, moreover, does more than merely to secure the position of netsmen operating in tidal waters or the open sea, because, as will be seen from Section 37, the number of persons who may engage in such netting shall not be greater than those so operating during the "appointed period." That is to say, that in a specially favourable season, it will not be open to "casuals" to come along and thereby reduce the average earnings of the regular fishermen. Furthermore, it will be observed from Section 35 of the Bill that the use of nets in the fresh water portion of any river will be prohibited. Obviously this abolition of netting in the upper reaches of our rivers will result in a considerable increase in the number of fish left for spawning, and this in turn will mean an expansion in the stock carried by each river. (The money derived from this licence duty is, of course, expended upon protection of the breeding fish upon which the river stock and the ultimate earnings of the netsmen are dependent.) It follows, therefore, that those working drift nets, draft nets and seines in the sea or the tidal waters of a river will have their earning power considerably increased. They will have the "first shot" at the enhanced stock of salmon that will be running in future years. I submit that the proposals in this section are reasonable and worthy of support by every Deputy.
Section 14.—The produce of rates derived from fishery assessments has, under the Fisheries Act, 1925, provided the various boards of conservators with the greater part of their funds for protection work; and it is reasonable that those paying such rates should have some voice in the election of the local board, apart from their voting power as licence holders. At present we have the anomaly of persons who individually contribute a considerable amount by way of rates, but whose power as individual electors is restricted to a single vote in respect of a rod licence. The voting power set down in this section as drawn is on the same basis as that for licence duty; but on reconsideration of the position I feel that some modification is needed in this plan. It is to be borne in mind that the larger ratepayers obtained a valuable concession under the 1925 Act inasmuch as the right to a seat as anex-officio conservator was thereby conferred upon every person whose fishery assessment or valuation was £50 or over, as against the standard of £100 which had previously prevailed. While, therefore, a good case exists for the grant of voting power to those paying fishery rate amounting to £1 or more, but whose assessment is under £50, it does not seem equitable that those already entitled to a seat ex-officio should have further voting power in addition to that for their licence duty. I, therefore, propose to introduce an amendment into this section excluding from its provisions persons in the last-mentioned category.
Section 15.—The purport of this section is to stop an undesirable development which has been growing. Certain parties, with the object of securing control of the new board, purchase licences immediately prior to an election in the names of persons who vote as "dummies" and as directed by those who paid for such licences.
Section 16.—This section secures for brown trout rod licensees a reasonable measure of representation on the boards of conservators.
Section 17.—While on the whole the various boards of conservators discharge the duties entrusted to them with zeal and efficiency, instances have occurred which indicate the need for the Minister being empowered to hold an inquiry into the conduct of its business.
Section 18.—The provisions herein are the logical outcome of those in the preceding section. While it is necessary and desirable that such a power should be conferred upon the Minister, it is to be hoped that he will rarely, if ever, find reason to exercise it.
Section 19.—It is quite illogical to have as a member of a board charged with the preservation of fisheries a person who has actually been convicted of contravening the fisheries protection code. This section will disqualify such a delinquent from membership of a board.
Section 20.—The existing statutory provision whereby the person described as the "owner, lessee or occupier" of certain property valued as a rateable hereditament for fishery purposes becomes entitled to act as anex-officio member of a board of conservators has not always worked satisfactorily. From time to time cases have occurred in which considerable doubt arose as to who in fact was the party entitled to exercise this privilege. It is to resolve all such doubts in future that the change of description to that of “rated occupier” is here proposed. Such a person will always have documentary evidence of his identity. The disability imposed by sub-section (2) is purely temporary and can be discharged at any time by the person concerned clearing up his liability for fishery rate.
Section 21.—This section provides for the continuance in office of the clerk and other employees as between the departure from office of a board of conservators and the election of a new board. That new board will, of course, have the right either to confirm the appointment of such employees or of engaging other persons for the posts.
Section 22.—Some boards of conservators have been experiencing considerable difficulty in the collection of fishery rates in cases where the persons assessed have pleaded inability to pay, and where sometimes the sheriff has reportednulla bona. In some cases it is believed the persons assessed had, in fact, made lettings of the fisheries. It is to deal with cases of that kind that this section has been drafted. Legal opinion indicates that without such legislative authority the occupier could not be made liable.
Section 23.—This section does not contain anything new in principle. It is nothing more than an attempt at consolidation of various provisions contained in three or four of the earlier statues prohibiting the use of the devices specified. The only expansion has been to make the prohibition applicable to "on or near the banks" of a river or lake, as well as to the river or lake itself. This addition is logical and necessary.
Section 24.—I think there can be no objection to the proposal in this section which prohibits the having of an illegal net in any lake, river or estuary or on or near the banks thereof. Sub-section (3) provides ample protection for a person summoned in what may appropriately be described as a borderline case.
Section 25.—We have here a provision which is of the greatest consequence in the interest of our salmon and trout fisheries. Numerous complaints have been reaching the Department on this subject of river pollution by factory effluents and so forth: and investigations by the Departmental inspectors have generally disclosed that such complaints were well-founded. Given the necessary spirit of goodwill, there is no reason why any difficulty should be experienced by those in charge of factories, etc., in making compliance with the very reasonable requirements of the fishery authority in this connection.
Section 26.—The object aimed at is the completion or consolidation of provisions contained in some of the earlier Acts regarding poisons and explosives. There is nothing new in principle.
Section 27.—Salmon and sea trout may, in mild seasons, begin to spawn in October. Their value for eating or for sport is at its lowest. Many have reached the small tributaries and upper waters where they are relatively easily poached and, of course, the existence of lawful angling at this time keeps open a potential market for poached fish. On the assumption that at least one-half the total run of salmon into our rivers is captured by fishermen during the open season, these October fish are at least twice as valuable for the maintenance of the stock as they were at the beginning of the season. Any increase in the stock of fish due to increased spawning must clearly benefit all fisheries both commercial and sporting. These remarks apply equally to the case of brown trout.
The most valuable brown trout fisheries are in the large lakes and the rivers flowing into them. In the lakes the trout, as the spawning season approaches, gather in the bays at the mouths of rivers, and by September many of them are in the rivers on their way to the actual spawning grounds. At this time the trout will take almost any fly or bait and they are not fished for by genuine sportsmen.
A large number of Angling Associations maintain small hatcheries, with aid from State funds. The closure of October would, in the case of any river affected thereby, result in an increase of natural spawning equal to the produce of a good-sized hatchery, and some of the money now spent on purchasing ova might be diverted to the protection of the total stock of spawning fish.
The Inland Fishery Commission (1901) strongly urged the closure of the month of October and it could not be said that the personnel of that commission was prejudiced against anglers!
Section 28—The provision made in reasonable expansion of that in the this section is nothing more than a earlier statute of 1850. That statute, in turn, refers to the Act of 1842 which enacts that during the weekly close time (now Saturday morning to Monday morning) there shall be left in every fishing weir and such-like contrivance a free passage or gap of specified dimensions to enable the fish to run during the said weekly close time. It is to clear all doubt as to responsibility for non-compliance with the law, as between the actual occupier and third parties (whether employees or otherwise), that this Section 28 is needed.
Section 29.—The Fisheries Act of 1863, which ordained that there should be a free gap in every fishing weir, provided a penalty for failure to put such a gap in any weir existing at the passing of that Act; but by a curious oversight provided no penalty for failure to make the gap in a weir erected subsequent to that date. This section does the needful in that respect, and indemnifies the Minister from liability for action taken by him in enforcing its provisions. The rules 2, 3 and 4 set out in sub-section (6) contain a penalty for not maintaining the gap once it has been made, also a penalty for interfering with the river bed so as to reduce the flow of water through the gap, and also a penalty for affixing any contrivance or obstruction of any kind in a free gap once made, or doing anything to scare fish from passing it.
Section 30.—Sub-section (1) is a statement of the existing law on this subject of fish-passes in dams or walls for the retention of water for power or navigation purposes, which law is spread somewhat indefinitely over some of the earlier statutes. Sub-section (2) breaks new ground. The leaking away owing to faulty construction of a dam or embankment of water which would otherwise be, and which should be, available for the passage of fish up the river has constituted for the fishery authority a problem increasing in seriousness every year. It is essential, therefore, in the interest of the fisheries that there be conferred upon the Minister the very reasonable powers here proposed. The remaining sub-sections are purely consequential.
Section 31.—In this section we are concerned with abandoned or disused dams and such-like constructions of which the owners or occupiers may often not be traceable. The power proposed to be conferred on the Minister is that of requiring the owner or occupier (when found) to demolish any or all of such work or make such alterations or additions in it as may be necessary to allow fish to pass freely and to protect them from illegal destruction. Alternatively the Minister would be empowered to carry out the work by his own agents and to recover as far as possible the cost thereof from the owner or occupier.
Section 32.—This section provides for a logical and necessary extension of the earlier statutes, which were not sufficient to meet all the requirements of modern industrial conditions.
Section 33.—This section falls in with the general policy of the Bill, namely, that the run of fish to the spawning grounds in the upper reaches of a river, shall be facilitated and not retarded. The exception in sub-section (1) in favour of the Electricity Supply Board in respect of an eel weir does not affect the general principle, because that board has acquired an exclusive proprietary interest in the fresh waters of the River Shannon and will naturally not do anything that might cause a reduction in the stock of fish.
Section 34.—This section prevents the erection of a weir in fresh water on the plea that it is merely a revival of some such structure which existed in former years. No such revival or reconstruction of a weir or other fixed engine will be permitted except where such was in existence and lawful use during the open fishing season of one or more of the three years immediately prior to the coming into force of this section.
Section 35.—Each of the three commissions that reported on the inland fishery question in 1901, in 1911 and in 1935 recommended that this netting of fish in the fresh water portion of rivers should be abolished. Such abolition must naturally increase the number of fish available for spawning and, consequently, the stock of our rivers. There is also the biological fact that salmon are not really in a suitable condition for capture by nets in the fresh water as compared with their prime condition while still in the tidal waters.
Section 36.—This section is the logical consequence of the provision set forth in the preceding section.
Section 37.—With regard to those netsmen who operate in public fisheries situated in tidal waters, there shall be adopted a "standard year" defined in sub-section (3); and then during an "appointed period," which shall not be less than three years or more than ten years, the Minister shall fix the number of licences for nets of the kind used in the standard year which may be issued in each year throughout the appointed period. That number shall not be greater in any year than the number of such nets so used in the standard year, nor shall it be less than 50 per cent. thereof. For the last year of the appointed period and for each year commencing after that period the number of licences to be issued for such nets shall not be more than 80 per cent. nor less than 50 per cent. of the number issued during the said standard year. The method for regulating the priority with regard to the issue of licences is indicated very clearly in the context of this section. As I mentioned earlier, this plan is, from the netsmen's viewpoint, much more acceptable than the adoption of the suggestion for the abolition of all such netting upon a compensatory basis.
Section 38—As the result of the previous efforts, the traffic in poached salmon and trout has gradually been diminished, but, unfortunately, some of the earlier provisions on the subject left a few loopholes. It is believed that this section will considerably help those concerned with fishery protection work.
Section 39—The provision contained herein is the outcome of the biological fact that trout is not fit for consumption as food during the months of January and February, and that all dealings in this fish during that period represent an entirely useless waste of potential breeding stock.
Section 40—What is proposed here is simply a slight verbal amendment to Section 16 of the Fisheries Act, 1925. It was held that the expression "preserved and sold in tins" did not cover bottles, jars, or similar containers.
Section 41—This section re-enacts in simple language the provisions of two short Acts passed in 1863 and 1870, but which visualised the area of operation as that of the "United Kingdom."
Section 42—The provisions of the Fisheries Act, 1925, with regard to the registration of, and the keeping of records by, persons engaging in the purchase and sale of salmon and trout have worked satisfactorily. The said provisions were held to be not applicable to the export of salmon or trout, as distinguished from the sale of such fish within the country. It is to provide the necessary powers in that connection that this Section 42 has been introduced.
Section 43—The powers proposed to be conferred by this section are entirely consequential to the provisions of the two immediately preceding sections.
Section 44.—The machinery herein provided for the issue of licences to exporters of salmon and trout, and the conditions attaching thereto, are nothing more than a repetition, suitably modified, of the machinery and conditions already contained in the Fisheries Act, 1925, with regard to the sale of salmon and trout within the country.
Section 45.—The contents of this section are clearly consequential to those of the sections immediately preceding it.
Section 46.—Some years ago there appeared in this country a disease of salmon and trout which had been known on the Continent for a long time previously. That disease is believed to be contagious, but the manner of its transmission is unknown. It died out for a while, but reappeared later, and severe epidemics occurred in some of our rivers. There is not on the fishery establishment any staff available for research in such directions, but the identity of the disease was ultimately established following the examination of dead fish at the Veterinary College.
There is reason to believe that the disease in question is fairly prevalent in fish from across-Channel and on the Continent. Under the provisions of the Fisheries Act, 1842 (Section 73) and the Fisheries Act, 1925 (Section 32), it is unlawful to purchase or have in possession the eggs or fry of salmon or trout save with a permit from the Minister. When such permits are issued they contain an express condition that the eggs or fry must not be imported. Eggs and fry, however, are probably less dangerous, on the whole, than yearling fish imported during the open season, the import of which there has been so far no power to stop. Accordingly, there has been inserted in the Bill this section to prohibit, under a penalty, the importation of any species of live fish or other aquatic animals or the eggs or fry thereof, save upon such conditions as may be specified by the Minister in an order.
Section 47.—This is simply the correction of a drafting error in Section 87 of the Fisheries Act, 1842, wherein reference is made to the detention of an offender for a "period of 24 hours" and, a few lines further on, is mentioned the "said period of 12 hours".
Section 48.—Many representations have from time to time been made to the fishery authority as to the desirability of dropping the title "water bailiff", and the Inland Fisheries Commission Report of 1935 has also a recommendation to that effect. This section proposes to substitute the expression "water keeper" and contains provisions accordingly.
Section 49.—The effect of this section is to make quite clear something that has been virtually settled already by Section 28 of the Fisheries Act, 1925, namely, the right of appeal to the Lord Lieutenant against an order made under the Oyster Cultivation Act, 1884, and incidentally the confirmation of such an order by the same authority. This present section taken in conjunction with the repeal set out in the fifth item of the Schedule to this Bill makes the position clear beyond all doubt.
Section 50.—What is here proposed is merely a matter of ordinary administrative routine, namely, the delegation to selected officers by the Minister of certain powers and duties formerly exercised in person by the inspectors of fisheries, but which, in the terms of the legislation of recent years, have come to repose in the Minister himself as the fishery authority.
I now come to Part III of the Bill. I wish to repeat that it is the intention, as soon as this Bill has been enacted and put into general operation, to have a consolidating measure prepared in respect of the various statutes, more than 30 in number within which our fishery code is now contained. This course was very properly recommended by the Inland Fisheries Commission in their report of 1935, as it was clear to the members that the existing arrangement is hopelessly complicated and confusing; so much so, that none save persons with years of experience can claim to comprehend the system (or rather lack of system) prevailing. This Part III of the Bill is another example of consolidation.
Sections 51 to 56.—I have already referred to the Fisheries (Tidal Waters) Acts, 1934 to 1937. These Acts were temporary. The idea all along had been to make the arrangement permanent as soon as the general measure dealing with inland fisheries came to be drafted. That, therefore, is all that is being now done in these Sections 51 to 56, inclusive, and by the consequential inclusion in the Schedule of "enactments repealed" of part of the Fisheries (Tidal Waters) Act of 1934 and the whole of the Amending Acts of 1935 and 1937, respectively.
This brings us to Part IV of the Bill which, it will be observed, comprises just a single section—Section 57—but this section is one of major importance. In order to provide a satisfactory basis for the proposed acquisition by the Minister of those estuarine and weir fisheries now held by private persons, it is necessary to ensure that once such fisheries have been taken over, upon a compensatory basis, there shall be left no room for doubt as to the indefeasibility of the Minister's title to the property so acquired by him and paid for from public funds. It is, accordingly, being provided that where an order has been made by the Minister (under the provisions of Section 59) fixing the "appointed day" for any fishery district any such privately held fishery in tidal waters within such district that has been valued as a rateable hereditament for 60 years ending on 31st December, 1932, shall be deemed thenceforth to be an exclusive or several fishery in such tidal waters, save, of course, in those cases where, prior to January, 1938, it had been determined by a court of competent jurisdiction that a several or exclusive fishery did not in fact exist. Having regard to the provisions of the Prescription Act and other statutes in which a term of 20 years or so is laid down with regard to the settlement of ownership in other property, the span of 60 years specified in this section would seem to be reasonable for all concerned.
The reference made in Section 57 of this Bill to "any case in which a court of competent jurisdiction had judicially determined that a several or exclusive fishery did not exist" in the tidal waters of a particular river or estuary brings to mind immediately the decision of the Supreme Court (in 1933) in what has come to be known as the Erne Fishery case. I propose now to say something about Messrs. Moore who were the plaintiffs in that case. Many Deputies will doubtless recall that, when the Fisheries (Tidal Waters) Bill was under discussion here in May, 1934, the debate centred not so much upon the merits of the Bill itself as on the position of Messrs. Moore, who by the legal decision in question had been ousted from ownership of a valuable fishery that had been in their hands for many years and on the purchase of which they were said to have expended something like £45,000. The debate disclosed a certain amount of confused thinking about the case, and this perhaps was not surprising in view of the many highly technical matters discussed in the said decision. Deputies, however, had the whole question clarified for them by the Attorney-General in a speech marked by lucidity and candour. He explained in the clearest terms that while undoubtedly Messrs. Moore had acted in perfect good faith regarding the acquisition and subsequent working of this fishery, they certainly got nothing more under the Landed Estates Court conveyance (upon which they relied as their root of title) than any fishing rights to which their predecessor, Thomas Connolly, could have made title. The Attorney-General went on to say that, although the Supreme Court had decided that neither Thomas Connolly nor anyone else was in a position to make legal title to a several or exclusive fishery in the waters in question, it was quite reasonable to assume that the title in a property for which such valuable consideration passed had been examined at each transfer by competent counsel, and had never been challenged until there arose the incidents that led to these law proceedings. He further stated "I should go so far as to say that nobody would blame any lawyer for having passed the title."
There is now no question as to the true legal position, that matter having been settled finally by the Supreme Court decision; but it has been recognised all through by those who devoted thought to the case that, admitting the truth and weight of the decision in law, there remains the aspect of equity; and I wish to say that that aspect has been much exercising the Government. After mature consideration, it has been decided to introduce at an early date a Special Estimate to enable an interim grant to be paid to Messrs. Moore, who make no secret of the fact that the loss of their property has placed them in a serious plight financially. At the moment I am not in a position to indicate the amount of the proposed interim payment, and there are reasons why a grantex gratia in full settlement could not at this stage be proposed. There would be, for instance, the obvious objection to setting a standard for compensation in respect of the fisheries to be acquired under this Bill. I felt, however, that the present was an opportune time at which to make the House and the public aware of the Government's intentions in the case.