Tairgim, go léifear an Bille seo don tarna h-uair.
Fearacht gach uile íascaireacht ínbhir den tsaghas céanna in Éirinn bhí iascaírí na h-abhann seo, An Feabhal, ariamh i gcoinne ceart leithleach iascaigh.
Breitheann na cearta leithleacha seo ar dhlí ghallda agus chomh fada is a bhaineas siad le h-iascach ins na h-inbhir níl feidhm dlí—fiú amháin dlí gallda—leo marar bunaíodh iad roimh aimsear na Cairte Móire. Bhí an chúis seo os comhair chúirte go mínic. Gach uile uair ariamh bhraith an t-únaer-mar-dhóigh-dhe, 'sé sin, "Cumann Éireannach na nGoibhearnóir is na gCúntóir, Lundain den Phlanndáil Nua in Uladh taobh iastigh de Ríoghacht na h-Éireann" ar an gCáirt Ríoga a tugadh dóibh tar éis Teicheadh na n-Iarla. I ngach cúis mar í seo tá stair agus dlí fighte fuaighte, ach níor cuireadh an oiread sonntais i stair maidir leis an gcúis seo ís a cuireadh inntí an iarraidh dheireannach.
Nuair a léiríodh an dlí ó thaobh na staire dhe ní rabh tacaíocht le fáil ag cáil an Chumainn le ceart leithleach iascaigh, ach a mhalairt ar fad.
Pléadh an chúis dheireannach faoi'n bhFeabhal i mbliain a naoi gcead déag dachad a h-ocht. Teaspáradh nár tháinig dlí gallda í bhfeidhm i dTír Chonaill (mar tugadh ar an limistéar sin san am sin) go dtí tús na seachtú h-aoise dhéag, 'sé sin le rá, tar éis Teicheadh na n-Iarla. D'fhág sé sin nárbh fhéidir roimh aimsear na Cáirte Móire ceart leithleach ín inbhear a dheonadh ar aon duine san limistéar sin tré Cairt Ríoga Shasanach. Dúradh gur cleachtadh an ceart anallód, ach, ina choinne sin, míníodh nár leor é sin le ceart a bhaint den phobal fré chéile.
Rínneadh iarracht annsín ar son an Chumainn a thaisbeáint gur deonadh an ceart leithleach faoi na Dlithe Bhreithiúnacha agus go dtáinig an teideal anuas go dtí an Cumann ó phébrí duíne ar leís é í dtosach báire. Chinn ar na staírithe a chruthú gurbh fhéidir a leithéad de cheart a bheith ann faoí na Dlíthe Bhreithiúnacha. Bhain an ceart sin leis an bhFeodacht agus bhí chuile cosúlacht ar an scéal nach rabh an Fheódacht í réim in Éirinn ariamh roimh theacht na nGall.
Is léir ón méad sin thuas nár sheas dlí Shasana le cáll an Chumainn le ceart leithleach sa bhFeabhal, agus ní rabh aon tacaíocht le fáil aige, ach an oíread, ó Stair na h-Éireann.
The background of the Foyle fisheries problem is by now well known to Deputies but it may not be out of place to give a very brief review of the events leading up to the situation which has given rise to this Bill.
The salmon fisheries of the River Foyle—an extremely valuable asset— which were declared forfeit to the British Crown following the Flight of the Earls were, along with certain lands in the then Counties of Donegal, Tyrone, Armagh and Coleraine, entrusted to a body styled "The Society of the Governors and Assistants London of the new plantation in Ulster within the realm of Ireland" which in later years has come to be known simply as the "Irish Society." This body, drawn from the merchant guilds of London, had no easy task it would seem in carrying out its undertakings as in the course of time, particularly in the past century, it has figured in many legal disputes concerning its claim to an exclusive right of fishery in the Lough and River Foyle. The latest and, as it happened, final challenge which the society had to meet developed in the early twenties of the present century. At that time the fishermen of the Donegal shore commenced a vigorous campaign to establish their right to fish in the Foyle waters, both lough and river. The lessees from the Irish Society in possession at the time—the Foyle and Bann Fisheries Company—resisted the intrusion and serious scenes of violence were of frequent occurrence and local feeling ran high against the lessees.
The existence of this state of affairs was viewed with grave concern by the fishery authority in view of the grave danger of irreparable harm being done by indiscriminate exploitation to the productivity of the river. The fishery authority had no power, however, to intervene in a dispute as to title—even for the preservation of a fishery in the national interest—and when appeals for intervention came from time to time from either side only one course of action could be recommended—recourse to the courts. Claims to several fisheries in other parts of County Donegal were also challenged about the same time and in 1934 the Erne fishermen obtained a declaration from the High Court of the existence of a public right of fishery in the estuary of that river. Legislation passed in that year—the Fisheries (Tidal Waters) Act, 1934—provided the fishery authority with the necessary powers to administer in the public interest any fisheries so declared public. But the powers so provided could be invoked only where the courts declared that a several fishery no longer existed or where a voluntary surrender was made by the quondam claimants of exclusive rights.
With substantial increases in the market price of salmon, incursions on the Foyle fishery from the Donegal shores grew more intensive and by 1947 the Foyle and Bann Fisheries Company found itself powerless to preserve those waters for their own use. At length, that company, as lessees in possession, decided to join with the Irish Society claiming ownership in reversion in seeking a declaration by the High Court, Dublin, to establish exclusive title to a several fishery in that part of the River Foyle called the branch stream, which lies entirely in County Donegal. The Attorney-General and certain local fishermen were named as defendants in the action. It is not necessary for our present purpose to recount the course of the action or the considerations which weighed with the plaintiffs in making the branch stream the subject of their application. By judgment given in the High Court in October, 1948, Judge Gavan Duffy found in favour of the defendants on all three grounds of claim. The plaintiffs in the action gave notice of intention to appeal to the Supreme Court, but it was already evident to both sides that a protracted legal battle could result only in barren victory for the contestants and that, while the courts deliberated, the fishery would be reduced to ruin. The régime appropriate to a public fishery in tidal waters was duly established for the branch stream by means of Orders made under the Fisheries (Tidal Waters) Act, 1934 and, as a corollary, certain areas of sanctuary were created within the waters under our jurisdiction and other restrictions as to type and length of net were imposed by bylaws made in 1949 and 1950. It had to be admitted that such measures could have no more than partial success so long as the river remained in divided jurisdiction.
The practical difficulties of fisheries administration in border areas has long been recognised, and an early, but unhappily, abortive attempt was made to deal with them under the Council of Ireland provisions of the Government of Ireland Act, 1920. When, therefore, it was learned early in 1949, through the medium of discussions between the Attorneys-General in Dublin and Belfast respectively, that the Irish Society was prepared to enter into negotiations for a settlement of the legal proceedings and that the Belfast Government would be willing to join in a scheme for State acquisition of the fisheries, the late Government authorised the undertaking of the necessary negotiations. There ensued a series of negotiations in two spheres, firstly, that of finance in seeking agreement between the Irish Society and the two Governments on a fair consideration for transfer of the property, and, secondly, that of administration, in which the problem of co-ordinating the two jurisdictions within the fishery had to be solved. It is in no small measure due to the goodwill and sympathy displayed on behalf of the Irish Society that the Governments found themselves in July, 1950, in a position to announce that agreement had been reached providing for the acquisition on behalf of the public of all fishing rights in the tidal waters of the Foyle held by the Irish Society. The further intimation that it was proposed to set up a new joint authority with responsibility for the regulation and conservation of fisheries within that water-shed marked the attainment of a considerable measure of agreement between the two Governments on broad principles of joint administration of the fishery.
On this aspect of the matter, too, it is right to pay tribute to the ability and resource displayed by representatives of the two fishery authorities in evolving the scheme to which the present legislation is designed to give effect.
It may be asked why this legislation is only now before the House. The answer is that, although the first draft had been signed with the Belfast authorities when the first Foyle Fisheries Bill was introduced by the late Government in May last, I found on taking over the measure that the Belfast authorities would not be in a position to proceed with their Foyle legislation until certain enabling powers had been granted by the West-minister Parliament. This enabling legislation has been enacted only within the past month or so and circulation of the Dublin and Stormont Bills has been effected at the earliest date consistent with simultaneous release in both Legislatures. I might mention that the last six months have by no means been wasted; on the contrary they have afforded an opportunity of revising the draft Bills in certain material aspects with results which I am satisfied will inure to the better administration of the fisheries in the Foyle area.
Coming to the Bill itself, I take it that Deputies will have gathered from the explanatory memorandum which has been circulated with it that despite its 83 sections and five Schedules, most of the matter contained therein exists already in the general fisheries code, and at this stage I propose to confine my remarks to those provisions in which new ground is broken.
Section 8 authorises the Minister to enter into an agreement (jointly with the Ministry of Commerce for Northern Ireland) with the Irish Society, the terms of the agreement being set out in the Second Schedule. On execution of the agreement the section will operate to vest in the Minister and Ministry an absolute and indefeasible title to all rights of fishing in the tidal portions of the Lough and River Foyle and of its tributary, the River Faughan. There will also be acquired certain buildings and land necessary to the operation of a fishery. The financial commitment entailed in this agreement may be summarised as follows:
Consideration agreed with Irish Society for fishing rights
Buildings, lands, etc., detailed in the annexe to the draft agreement
The Green Brae Fishery recently purchased by the Irish Society at the request of the Governments
Interest at 3% on £102,485 from 1st March, 1951 to date of the agreement, say
One half payable by each Government being
I might mention here that, as part of the settlement with the Irish Society, that body withdrew its appeal to the Supreme Court and agreed to pay the costs of the Attorney General and of the special defendants in the High Court action, just as if they had not lodged notice of appeal and the court had proceeded to award costs against them as unsuccessful plaintiffs.
The total sum disbursed by the Irish Society in this way is not within my knowledge, but it is safe to say that it goes a long way to offset the sum of £55,115 which is being contributed on behalf of the public on the Donegal side of the river. I have mentioned a sum of £4,400 as being that part of the total acquisition price attributable to the Green Brae Fishery. These waters had for long been fished as part of the Irish Society's property. That body had not, however, succeeded in establishing exclusive rights in that stretch and, by paying certain rents, acknowledged claims thereto by superior interests. It was open to the Governments to exclude this particular fishery from the scope of the vesting agreement, and had it been so excluded the commission would have had the responsibility of regulating fishing operations therein without having powers of management as it will have over the vested fishery. This was, of course, to be avoided if at all possible and it was, accordingly, put to the Irish Society that they should buy out these superior interests with a view to having the Green Brae Fishery transferred under the agreement. The price of £4,400 indicated is the outcome of negotiations in which the fisheries administrations in Dublin and Belfast took part. I understand that the formal conveyance of this fishery to the Irish Society is in course of being concluded.
The tenancy of the Foyle and Bann Fishery Company in these tidal waters ended on 30th September, 1950, and in recognition of the fact that the Irish Society had abstained from making a further letting so as to facilitate acquisition by the Governments, interest as from an agreed date—1st March, 1951—is being paid on the main purchase consideration of £102,485 for fishing rights, buildings, lands, etc.
Finally, Section 8 contains provision for compensation with a right of recourse to arbitration in respect of any fishing rights other than those claimed by the Irish Society, which may be extinguished. So far as is known, however, no such rights exist.
Section 11 establishes the Foyle Fisheries Commission, with constitution, powers and duties as set out in the Third Schedule. The commission will, in general, be vested with all the powers of the two fishery authorities in Dublin and Belfast which are required for the conservation, protection and improvement of the fisheries in the Foyle area generally. In this respect the commission may be said to be a projection of the two Departments concerned, so that the administration of the fishery laws in the entire area will be in the hands of a single organisation, with powers derived from both legislatures. This is the answer evolved by the law officers to the problem of how to administer the law in an area in which there are two jurisdictions, the precise extent of which, in the Lough and River Foyle, has never been determined with finality.
The Bill provides for a commission of four—two from the Dublin Department and two from Belfast. Each Department will nominate a senior and junior member and the commission will itself select which of the two senior members is to be first chairman. He will hold office for the first year, and the other senior member for the second year, and so on. In the case of an equal division of votes at a meeting of the commission at which all the members are present and voting, the chairman will have a casting vote.
The commission is, by Section 13, given power to make regulations for the conservation and protection of the fisheries in the Foyle area, and by means of such regulations will seek to administer the acquired fishery for the benefit of the public on both sides of the river with due regard for the necessity for maintaining an adequate spawning stock of salmon in the river system. Generally speaking, it is possible to control intensity of fishing by imposing restrictions such as areas of sanctuary, length of net, distance between nets shot at the same time, and so on, such regulations being recognised by the fishing community to be ultimately to their own interest. The position that has grown up on the Foyle, however, is that year by year increasing numbers of persons have ventured on the river, many of them lacking the experience and appreciation of the well-being of a fishery which one associates with the professional netsman.
In short, the salmon of the Foyle have tended to become the victims of short-term exploitation. This being so, the Governments have agreed that the commission should be given specific authority to impose a limit from time to time on the number of licences which may be issued for fishing by commercial methods, that is by means other than rod and line. The effect of Section 14, therefore, is that the commission may prescribe a maximum number of licences from time to time and, like all other regulations under the preceding section, the regulation as to maximum number of licences will require the approval of the Minister and Ministry and will be laid before each house of the Oireachtas, where it may be annulled by resolution.
At this stage, it is appropriate to refer to the special powers to be given to the commission for a transitional period of three years by Article 3 of the Third Schedule. The effect of this provision is that the commission will be enabled to deal at its discretion with that part of the Foyle which flows entirely through the County of Derry, and which it is considered should for an initial period continue to be worked as a private fishery. For this purpose, it is intended that the commission should make annual lettings which will be open to public tender.
This special arrangement, it will be observed, is intended to operate for a transitional period only, and it is expected that, by the end of that period, the commission will have found an acceptable solution of the problem as to how this portion of the river can best be administered on a public basis within the framework of the general scheme.
Of the remaining provisions in Part II it will suffice, at this stage, to refer to Section 19, whereby the Moville Board of Conservators will be dissolved, and Section 22, which provides for the establishment of an advisory council in accordance with the terms as set out in the Fourth Schedule. The establishment of this advisory council on the basis of elective and ex officio members similar to that which applies to boards of conservators will ensure for the benefit of the commission the continuance of the system of local representation in regard to fishery matters which operates throughout the country through the medium of boards of conservators.
As to the subsequent provisions of the Bill, I would refer Deputies to the explanatory memorandum, from which it will readily be seen that these provisions consist, in the main, of an adaptation of the general fisheries code to the requirements of the Foyle area. The relationship of the various sections to the corresponding provisions of the Fisheries Acts is set out in the form of a table appended to the explanatory memorandum, and I do not propose at this stage to go into further detail in the matter, save to draw attention to the somewhat unusual procedure provided for in Section 62—apprehension of offenders.
The procedure proposed here is in effect the answer to the problem of the offender who breaks the law in one jurisdiction and takes refuge outside that jurisdiction in order to avoid the consequences. The intention here is to provide machinery whereby such a person can be dealt with in the jurisdiction in which he normally resides. A complementary provision in the Foyle fisheries legislation which has been introduced at Stormont secures full reciprocity with the Belfast Administration in this matter.
In conclusion, I would recommend to the House that this Bill is deserving of the strongest support. It can be fairly said to be the outcome of most cordial negotiations with the Belfast Administration. I have great pleasure in presenting to the House a measure which represents the outcome of a concerted move by the fishery authorities to preserve a national asset.