Dáil Éireann debate -
Thursday, 30 Apr 1953

Vol. 138 No. 8

Committee on Finance. - Fisheries (Amendment) Bill, 1953—Committee.

Section 1 agreed to.

SECTION 2.

Mr. McMenamin

I move amendment No. 1:—

In sub-section (1) to delete paragraph (b), lines 21 and 22.

On the Second Stage of the Bill I was opposed to this section altogether because I thought it was a complete reversal of the policy of the two Governments of this State for the last 25 years. The whole object of that policy was to eliminate net fishing in the fresh waters of the State. It is startling to me to see a section of this kind now introduced and, even after hearing the case that was made for it, it does not satisfy me. What I particularly object to in the section is that the consent of the riparian owners must be obtained. My objection is based on the fact that any given applicant, a man who desires to get fishing on the lake, has only to have somebody in the neighbourhood who dislikes him —he need not necessarily dislike himat all; he need only be a person who wishes to throw the heavy end of the fishing into the hands of one or two men—to render that application nugatory.

If this House is going to confer a right, it should be an absolute right, subject only to any authority or limitation vested in the Minister. I profoundly object to giving an opportunity to anybody to carry on the practice of blackmailing or blackballing some man who would otherwise be entitled to certain rights under the Bill. If this House is conferring rights they should be absolute rights. I think the Minister would be very unwise to include in the Bill the restriction which I have indicated.

Mr. Morrissey

I am afraid it is rather difficult to understand my colleague's point of view. Like him, I was very concerned about the section and the adverse affect which it might possibly have if this draft netting were to be allowed on a number of lakes as it could conceivably under the section. It seems to me, however, that the two particular lines which Deputy McMenamin's amendment proposes to delete are the real safeguard there. I think it would be difficult, if not impossible, in the case of a lake or lakes of the size which have been dealt with under this Bill for any applicant, first to discover all the owners of a fishery around a lake of that size and secondly to satisfy the Minister that they were owners who held a proper title to the fishery rights. It seems to me that if anything would nullify that section, it would be the retention in it of these two lines. Even if permission were sought, of course discretion would still be in the Minister's hands to grant or not grant it. That is one of the reasons that personally I would say that the two lines which the Deputy proposes to have deleted should be left there. I want to make it as difficult as possible for anybody to use nets in this country for the killing of either trout or salmon.

Parliamentary Secretary to the Minister for Agriculture (Mr. Bartley)

I think that Deputy Morrissey has expressed my point of view on thematter. We wish, as both Deputy McMenamin and Deputy Morrissey said, to restrict this form of fishing as much as possible. I indicated on Second Reading that we wanted to repair a specific injustice that was done to islanders living in Lough Ree. Deputy Morrissey indicated that we might have done that in a different way by mentioning the lake itself. There are other lakes of that name in the country besides this particular one. I suppose we could take steps to identify it. However, this particular method of general reference was thought to be the better way of doing it.

It would be, I think, trifling with the House to bring in a proposal of this sort if I had not taken the precaution to consult the particular several owner in question, namely, the E.S.B. I have been assured by the E.S.B. that they will give the permission to use these nets in Lough Ree if that particular method of fishing is legalised by this Bill. The E.S.B., as the owner of the fishery, can grant the permission or refuse it as they, in their absolute discretion, think fit. This Bill does not compel the E.S.B. to give the permission. It is a measure permitting a kind of fishing that was abolished and sub-section (2) makes it quite clear that the E.S.B. will have the power to grant the permission to net for trout on Lough Ree when this measure becomes effective.

Mr. Morrissey

The real trouble is that they can give that permission in respect of lakes other than Lough Ree and this enables them to do that.

Mr. Bartley

That is so. The only other lake that they would have jurisdiction over would be Lough Derg. The only lakes, that is, lakes with a minimum area of 30 square miles, to which this section would apply would be Loughs Ree and Derg in the Shannon system.

Mr. Morrissey

What about Lough Corrib? Would the Corrib come in under this section from the point of view of size?

Mr. Bartley

The E.S.B. has nothing to do with that.

Mr. Morrissey

They may in the future and that is what I am afraid of.

Mr. Bartley

As a matter of fact, in respect of any place that the E.S.B. takes over and to which this section could apply the question of their granting permission would arise. It would be one for decision by the E.S.B. itself and not by the Fisheries Branch.

Mr. Morrissey

The danger I see is that, without intending to do so, we may be conferring on the E.S.B. powers to be used in the future that we would not desire to see used. I suppose that at some time in the future, and in the not too distant future either, if the E.S.B. had vested in them for some reason or another Lough Corrib, under this section they would have the right, once it is vested in them, to permit the use of draft nets on Lough Corrib or Lough Mask. I do not think the Parliamentary Secretary would desire to see that happening. I am suggesting that we are making that possible. Certainly that was one of the doubts I had in mind from the beginning. It is not what the E.S.B. have vested in them at the moment. As time went on and as the E.S.B. spread its network, more and more fishery waters of this country have become vested in them.

Mr. Bartley

That is so. I take it that Deputy Morrissey will agree with me that a responsible semi-State body like the E.S.B. would apply this provision with the utmost caution.

Mr. Morrissey

The Parliamentary Secretary should remember that as far as fishing is concerned it is a purely secondary consideration with them. That is as it should be from their point of view.

Mr. McMenamin

Of course, it is.

Mr. Bartley

Application has to be made in any event and a by-law has to be made. The fishing authority will have to make the by-law. Therefore, it does not rest entirely for decision by the E.S.B. The decision the E.S.B. would have to give would bethe granting of permission to use nets if, in fact, a by-law was made by the Minister or the Parliamentary Secretary administering the fishery laws. There are two or three fences to be jumped before you can apply this section at all.

Mr. Morrissey

I want to make this point clear again. I have no objection in the world to the Minister trying to do in this Bill what he wants to do in connection with Lough Ree but I am concerned that we do nothing particular under this section that will enable the E.S.B. or any other body, either alone or in conjunction with another body, to avail of this section to net other lakes in this country.

I am not satisfied either that the section, as it stands, gives us the right to limit the number of draft nets that may be used and the periods at which they may be used in the lakes. Let us get this into our mind. This Bill is not confined to Lough Ree. Any lake in this country of a certain area—I will not put it any stronger than that—may come under this section. I am only concerned that the Parliamentary Secretary would look at the matter as closely as he can and see if he cannot plug whatever holes there are and make it, as far as he can, impossible for this to be used other than to provide what he wishes to provide in relation to Lough Ree.

Mr. McMenamin

The Parliamentary Secretary does not specify Lough Ree or any lake. So far as the section is concerned there is no limit at all.

Mr. Morrissey

There is a limit. The lake must have an area of 30 square miles.

Mr. McMenamin

I know that is a limit but it merely refers to the area of the lake. I do not know whether the Minister is satisfied, but if he is well and good. I certainly have very strong objections to it. I think it would be wiser for the Parliamentary Secretary to protect himself and the Department because, if they are led into a local squabble about the provisions of this clause, then the fun will begin and the lakes of Ireland will becomethe subject for another Post Office affair.

Mr. Bartley

The only several owner known to the Department is the E.S.B. whose ownership applies to two bodies of water which come within the lake dimensions laid down here. The two lakes are Lough Derg and Lough Ree. There are no other lakes that we know of in respect of which the element of several ownership can be established in relation to a claim to apply this permission to the use of draft nets. I would direct the attention of Deputies to the wording of sub-section (1) which says:—

"Where the Minister, if he thinks fit, may make by-laws permitting the use of draft nets for such capture, subject to such conditions as he thinks proper."

I think that form of words should allay the fears of any Deputy concerning the possible abuse of this particular provision.

Mr. McMenamin

We want to save the Parliamentary Secretary from being put in a net of that kind under pressure.

Mr. Bartley

All that this section does is that it legalises a particular instrument for the taking of trout, but that legislation, so to speak, cannot be availed of unless the owner of the fishery permits it to be applied. There are, therefore, two stiff fences to be surmounted, and, consequently, I do not think that the fears which have been expressed can possibly materialise because of the difficulty of surmounting these two fences.

Mr. Morrissey

The Parliamentary Secretary will understand that what I am concerned with is, what could happen. I am not saying that it will happen. What could happen immediately this Bill becomes law is that Lough Derg could be put in the same position in relation to the use of draft nets as Lough Ree will be in when the Bill becomes law. I say that could be done. That is what we have to concern ourselves with here when we arepassing Bills, and not with what we ourselves desire to be done—not what we think will be done, but rather what we are making it possible for people to do in the future. The Parliamentary Secretary says, and I accept it, that the only several fishery owner that could possibly be covered by this Bill, and that is known to his Department, is the E.S.B.

I am accepting that, although I must confess it rather surprises me. I accept that without question. The position, as he says, at the moment is that the only two lakes, having regard to the area of water, which up to the present are vested in the E.S.B. and which could be affected under this Bill, are Lough Derg and Lough Ree. I want, again, however, to put this point to him, that neither he nor I nor anybody else has any guarantee that in the future the E.S.B. might not have vested in them the Corrib or the Mask or any other lake that we have in the country which might come within the area defined in the section. What worries me about this section is that we can do what the Parliamentary Secretary says he wants to do, and what I think the House is prepared to do, without leaving the position open to the dangers which I have mentioned. We can give the Parliamentary Secretary all the authority he requires to restore to the Lough Ree fishermen whatever rights they have had in relation to the use of draft nets in Lough Ree without, however, leaving the door wide open.

I am sure the Parliamentary Secretary appreciates that in our discussion on this Bill we are not trying to score points. We are really trying to do what he wants to do without making it possible for somebody in the future to take advantage of the powers given by this Bill and do something which none of us desires to see done. I would ask him to have another look at this before the Report Stage, or before the Bill goes to the Seanad.

Mr. Bartley

I am afraid there has not been sufficient advertence to the fact that the Minister must first make a by-law. By-laws, as Deputies know, are subject to review in the HighCourt if anybody challenges them. I think that that safeguard, in itself, is a protective one. If one succeeds in jumping that fence, there is a further fence to be jumped in so far as that the owner of the fishery has to grant permission. Suppose we make a by-law covering Lough Ree. The E.S.B. have informed me that they will grant permission to those people who have exercised a right there in the past. They will grant this permission to them to begin to exercise their rights again in Lough Ree. But suppose, for example, you make a by-law legalising the netting of trout in both Lough Ree and Lough Derg, I am quite satisfied that while the E.S.B. would give permission to the fishermen in Lough Ree, they would not give permission to any fisherman to fish in Lough Derg.

It would have been fatuous on my part to bring in a Bill of this kind if I had not previously consulted the only known owners of the several fishery as to what their reactions to it would be. I have consulted them. I explained to them the injustice that was being inflicted on a number of fishermen in Lough Ree. I indicated to the board that I was very anxious to have this injustice removed. I did consult the board. The board, having deliberated on the matter, intimated to me that they would be prepared to co-operate with me in restoring these rights to the islanders in Lough Ree in respect of fishing in Lough Ree. That was the utmost extent to which they indicated a willingness to go. I cannot see the E.S.B. going any further than to restore these rights in Lough Ree. I do not think that there is anything more that I can say. I have given to the House every bit of information that is available to us in the Fisheries Branch on this matter. I think I have answered the two points made.

Mr. Morrissey

I do not for a moment question the bona fidesor good intentions of the Parliamentary Secretary, but I would like to remind him that boards and Ministers change from time to time. Neither I, nor anybody else, can confine himself to what is the position at the moment when dealingwith this Bill. We do not know what the position may be in six to 12 months' time. We are not legislating for a period of six or 12 months. It is quite conceivable—I do not want to put it any stronger—that for some reason that might not be apparent to any of us at the moment, the Minister of the day and the E.S.B. in the future might come to the conclusion that it was desirable to have draft net fishing in Lough Derg just as you are going to authorise it in Lough Ree now.

That is the situation that I want to make provision against. If the Parliamentary Secretary is seeking in this Bill to deal only with Lough Ree, and with the restoration to the fishermen in Lough Ree of the rights which they had there, that, I suggest, could be met in a simple way without leaving the door open to the dangers which I think are inherent in this section. Frankly, I can see no reason why the Parliamentary Secretary cannot confine the effects of this part of the Bill, dealing with draft net fishing, to Lough Ree. The fact that he is not doing so makes me wonder.

Mr. Bartley

As a matter of fact, I have no strong views at all on that particular point. It seemed to us that the more desirable of the two choices was the one we adopted, providing the solution by this general reference.

If I thought that Deputy Morrissey really was as apprehensive as his words seem to suggest he is, I would concede the point that he is making. I, too, want to secure that the position he has outlined will be, in fact, the position created by this measure. I feel that I have achieved that in this section, but to get agreement on it, if Deputy Morrissey, speaking for the Opposition, thinks that we have not achieved that and if his suggestion now—one that we have considered already—is one that would bring unanimity, I would be prepared to concede it and amend the section accordingly. However, I would like to suggest to him that, if he can find the time to give a little more attention and consideration to this measure, he will find that the point I am makingreally is accurate and the section does achieve what both he and I wish to achieve.

Mr. Morrissey

I do not dispute that. Frankly, I am apprehensive of what may happen or could happen in the future. My fears may be entirely groundless, but I feel we are opening the door to an unnecessary width, as we are going far beyond what the Minister wants to achieve. The main reason for introducing this Bill—as a matter of fact, the only reason so far as draft netting on lakes is concerned —was to settle the position of Lough Ree. If we do that, we have discharged the obligation and we have secured that if at any time anyone wants to do any netting of any description on any other lake in the country, they will have to come here and get specific permission to do that, whether it is the E.S.B. or any number of citizens.

I am obliged to the Parliamentary Secretary for agreeing to look at it again to see if he can bring in something that will put this in a form on which we can have unanimity. I would be most anxious to have that.

Mr. Carter

I do not think the Parliamentary Secretary should adopt the course that Deputy Morrissey suggests. I think there is ample protection against the risks that Deputy Morrissey envisages. First of all, the E.S.B. are the only owners of such lakes as Lough Ree and Lough Derg, they are the only people who exercise control over large expanses of water. Not alone that, the people concerned must have the permission of the E.S.B. to fish with draft nets. They have to make application to the Minister and the Minister has to be satisfied. There is also provision in the section where there can be a public inquiry if the E.S.B. are not satisfied. That should satisfy Deputy Morrissey. I think he is putting a rather hypothetical argument as to what may happen in the future—we may be all dead in a week's time. I do not think there is any danger in the section and I would encourage the Parliamentary Secretary to resist the suggestion.

Mr. Morrissey

Of course, that only helps to make me what I have been trying to reject from my mind, a wee bit suspicious. Does Deputy Carter want anything in this part of the Bill other than what will restore to the people of Lough Ree the rights they had before? If he wants only that, what I am suggesting and what the Parliamentary Secretary has agreed to consider gives him all he wants. I am prepared to support the Parliamentary Secretary and Deputy Carter in so far as the Bill will be directed towards giving to the people of Lough Ree the rights which were taken from them, but I am not prepared to agree, under the cloak of doing that, to make it possible in the future for anybody to put draft nets upon any other freshwater lake in this country.

Mr. Carter

They cannot do it.

Mr. Morrissey

Of course they can.

Mr. McMenamin

I would direct the Parliamentary Secretary's attention to the Title of the Bill. Why was the word "lakes" put into it, the plural instead of the singular, if only Lough Ree was intended?

Mr. Bartley

The minimum dimensions being 30 square miles, I take it that the qualifying lakes would be in the plural anyway, as there would be at least four of them.

Mr. Morrissey

Yes. Some of the best lakes in the country can be covered and caught in this section. I do not say that is the intention, but it could happen. However, if the Parliamentary Secretary is prepared to look at it again to see if he can tighten it, I am prepared to let it go now.

Mr. Bartley

I am anxious to get unanimity, as there was an appeal from all sides of the House to have these rights restored. There was no one so vocal as Deputy MacEoin of the Opposition, the Independents also made a strong appeal and members of this side also. Therefore, there cannot be any question of there being a general and unanimous desire to have this fishing right restored to these particular people. None of us on any sideof the House wants to go any further than that. I take it that the best way to achieve that restoration is to do it by a unanimous decision of the House and, if we cannot get it on this measure, I am prepared to consider the alternative. Do I take it now from Deputy Morrissey, speaking on behalf of the Opposition, that he does not accept this particular form in sub-section (1)?

Mr. Morrissey

I do not, as I do not think it is necessary in this form, to give the Minister what he wants in regard to Lough Ree. I want to restate that I have no objection to the restoration of rights on Lough Ree, but I want the Bill confined to them.

Mr. Bartley

Very well, then. I will agree to have it considered.

Amendment, by leave, withdrawn.

Section 2 agreed to.

SECTION 3.

Question proposed: "That Section 3 stand part of the Bill".

Mr. Morrissey

There was something the Minister said on the Second Stage regarding these free gaps. Maybe I misunderstood him, but it seemed to convey to me that what he was thinking of by free gap and what I was thinking of by free gap were completely different things. Does he mean a gap in the weir or a gap in time in the week?

Mr. Bartley

I was referring to the statutory gap, the gap that must be there in a fishing weir. It is provided in the Fisheries Acts, for the passage of fish. It is the passage. One must comply with certain requirements laid down in the Acts as to its dimensions and its location. I do not know of any other sort of gap in this particular connection.

Mr. Morrissey

Unless I am misinformed, there is a weir or a trap in operation in this country on a river which is operated by the E.S.B. or is likely to be operated by them within the near future.

Mr. Bartley

Of course, a gap is quite the reverse of a trap. A gap gives freedom to the fish to get away.

Mr. Morrissey

I know, but there is no freedom at all in the matter about which I am talking. However, I can make the point at another and more appropriate time. Sub-section (1) says:—

"The Minister may by Order authorise the operation of a specified fishing weir belonging to the Minister or the E.S.B. ..."

Do I gather from that that any fishery in the country which is in the hands or under the control of the Department of Fisheries can be caught under that sub-section? The Parliamentary Secretary, when talking about this, talked mainly about the position which arose regarding the harnessing of the Erne and the new fish pass there, but I am rather concerned as to whether this section is not of much wider application than the Parliamentary Secretary intended, or could not have such a wider application.

Mr. Bartley

In an ordinary fishing weir, it is possible to have a gap which will permit of fish going up beyond the obstruction and ascending to the upper reaches of the river. That is not possible in the type of work carried out by the E.S.B. for the generation of electricity. They so effectively dammed the river that some other device had to be thought out. I do not know if Deputy Morrissey has inspected the fish pass at Ballyshannon. I am sure Deputy McMenamin has seen it.

Mr. Morrissey

I saw it also.

Mr. Bartley

There is a very effective fish pass running up by the side of the hydro-electric works. The law provides that you may not take fish from a fish pass and that particular provision has to be modified, if the E.S.B. is to be allowed to exploit this fishery to recoup some of its capital outlay in the acquisition of the fishery. The fishery authority is concerned to see that fishing will not be carried on in such a way as to preclude the ascentof a sufficient quantity of spawning stock. The E.S.B. has installed a device whereby the number of ascending fish can be precisely counted and an agreement will be made between the board and the fishing authority as to the number of fish they may take and the number they must let up for spawning.

This is a more satisfactory arrangement, in fact, than the old method of the gap, which was haphazard. Nobody could estimate accurately what quantity of fish ever ascended the rivers through these gaps. Now the position will be that the E.S.B. will have an accurate recording apparatus and will be able to report down to the last fish how many have gone up. We feel that it is a very big improvement on the old system and we think that the arrangement now come to, quite apart from the impossibility of arranging matters in the old way, and the device erected by the E.S.B. is an excellent one from every point of view.

Mr. Morrissey

I quite agree with the Parliamentary Secretary in what he is trying to do, in so far as it will be confined—this is the point about which I am worried and on which I should like some guidance—to rivers or weirs in the control of or operated by the E.S.B. for the purpose of generating electric current, but the sub-section says:—

"The Minister may by Order authorise the operation of a specified fishing weir belonging to the Minister or the E.S.B. without a free gap, subject to such conditions as to the release upstream of a sufficient number of the fish entering the weir as he thinks proper..."

That sub-section, it appears to me, does not confine the power the Minister is seeking to the E.S.B. It could—I may be entirely wrong in this and I shall be glad to be put right, if I am —operate on any weir or fish pass under the control of the Minister, as distinct from the E.S.B.

Mr. Bartley

That is so. It is in anticipation of the application of Part V of the Fisheries Acts, 1939, under which the transferable fisherieswill be acquired and operated by the fisheries authority. This type of device will then probably be installed by the fishery authority for the better scientific observation of the fisheries.

Mr. Morrissey

We have a completely different situation now. Apparently I was not entirely wrong.

Mr. Bartley

That is something in the future. We are dealing now with something which exists.

Mr. Morrissey

That is one of the reasons why I do not want to give it to the Minister in the present. I should prefer to wait until he is doing something about Part V.

Mr. Bartley

The Erne device is already in existence.

Mr. Morrissey

So long as this is confined to the Erne device, or to any river or weir or fish pass operated by the E.S.B. I do not object, but what I object to is the fact that the Minister in sub-section (1) is taking power to apply it in the same way to any other river which may be under the control of his Department. I can see the desirability of doing it where the E.S.B. have, so to speak, done away with the river, as in the case of the Erne, and I think that what they are doing there, speaking without very much experience, is very wise, but the Minister here is seeking far more power than he needs at the moment. When he is in a position to put Part V of the Fishery Act into operation—and we all hope it will be soon—he will find that he will get every co-operation.

Mr. McMenamin

Why should the Minister take power to do it?

Mr. Bartley

In sub-section (5) of Section 3 there is the safeguard that this House can annul any Order bringing any such device into operation.

Mr. McMenamin

The House will never know anything about it.

Mr. Bartley

If we have Deputies like Deputy McMenamin and Deputy Morrissey in the House taking as keen an interest when this is being proposed as they are now taking in the Bill, Ihave no doubt that nothing will possibly slip through.

Mr. Morrissey

We have been too long in the House to be satisfied with that. I am concerned about sub-section (1). Speaking from years of experience of Orders laid on the Table over a long period, I do not think that that is any definite safeguard. The Minister is very definitely taking more power under the section to do something completely new than he needs to give whatever authority is necessary to the E.S.B.

Mr. Bartley

If Deputy Morrissey accepts the statement that the arrangement now in operation on the Erne at Ballyshannon is much better than anything we have had heretofore, on what ground does he object to the extension of that plan of fish passes in the future?

Mr. Morrissey

Because what is suitable and very desirable in the complete change brought about on the Erne from the fishery point of view might not necessarily be at all suitable or desirable on some of the other weirs or rivers under the control of the Department. It does not follow that, because it is suitable and desirable in the very special conditions of the Erne, it will be suitable in every case. I do not think it will.

Progress reported; Committee to sit again.