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Seanad Éireann debate -
Wednesday, 6 Jun 1934

Vol. 18 No. 24

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

Question proposed: "That the Bill be now read a Second Time."

The object of this Bill is very clearly set out in the Long Title, namely, "To make provision for the regulation and control of the public right of fishery in tidal waters in which formerly a several or exclusive fishery was believed to exist, and was enjoyed as of right, and to make provision for other matters relating to or connected with the matters aforesaid." Senators are aware that some time ago, according to a court decision, the tidal waters of the River Erne which were believed by certain people to be owned by them were declared to be a public fishery. As a result of that decision the public have a right to fish there. It has been found necessary to bring in this Bill in order to regulate those fisheries as well as to provide an income for the conservators to protect the River Erne or other rivers that may come under that decision either as a result of further litigation or because of their surrender by the present owners due to that decision. Provision is also made in the Bill so that certain arrangements may be entered into between the conservators on the Free State side of the Border and on the Northern Ireland side of the Border.

I think the Bill can best be explained by referring to its sections. Section 2 of the Bill provides that this Bill can be applied to any tidal waters which were believed to have been privately owned but are now declared to be a public fishery. As the law stands, any person proposing to fish for salmon or for trout with a net must purchase a licence from the local board of conservators.

He must pay the appropriate licence for the particular class of fishing that he is about to engage in. These licences provide part of the income of the board of conservators. In addition, in the case of a fishery like the River Erne—the same applies, of course, to other fisheries—there are rates levied on the value of fisheries privately owned. These rates also go to the board of conservators and provide them with part of their income.

These were the two principal sources of income that the conservators had. Out of that income they have been able, up to this, to protect the fisheries. The amount of rates received from private owners was considerable. Out of that income, received from the sources I have indicated, the conservators were not only able to protect the River Erne but also some of the smaller rivers which came under their jurisdiction. Now that the private ownership has been removed from the River Erne, the board of conservators is left very badly off, so that some provision has to be made to supplement their income in addition to what they get from ordinary licences. That is necessary so that they will have the funds required to protect the fisheries under their control. Under Section 4, instead of the licence that would be applied for on an ordinary river, we are substituting what is called a special local licence. Senators may find it difficult to understand the method by which we are trying to get the amount necessary for the conservators through those special local licences. If we estimate, for instance, that £600 will be required in the case of the River Erne for the conservators, and take it that 12 boats would be likely to apply, then, in that case, we would make the special local licence £50 for each boat for a full year. In that way we try to arrive, if possible, at a sufficient income for the board of conservators. The amount of the special local licences will vary according to the type of fishery, according to the district, the river or the tidal waters concerned. I am taking the River Erne as an example because this Bill does not apply to that river only. The River Erne, however, is the first river that will be dealt with under the Bill, but this measure may apply to other rivers as well. In the case of the River Erne I would like to mention that the conservators will require rather a larger income than they had when the private ownership existed because the private owners did a certain amount of protection themselves apart altogether from what was done by the conservators. In the future the conservators, in addition to carrying on the protection that they were in the habit of giving up to this, will have to take the place of the private owners so far as giving protection is concerned. Sections 5 and 6 simply provide the machinery for the issue of special local licences.

Section 7 provides penalties for fishing in tidal waters by unauthorised persons. Section 8 provides for the making by the Minister of regulations settling the time and the hours at which the different boats may fish; the number of boats which may be allowed to fish at the one time and so on. We were not sure on the 1st May how these fisheries would be regulated. In the case of other tidal waters around the coast, the fishermen make certain regulations of their own as it were. There is a sort of tradition among them as to how the fishery should be regulated; who should fish first; what hours they should fish; the number of boats that might go out at one time and so on. But here we had the possibility of boats coming from any part of the coast and in all probability coming long distances to fish in these public waters in which there was a great reputation, at any rate, for salmon. We could not be sure whether these men would agree to regulate the time of fishing among themselves, or whether there would not be a certain amount of trouble amongst them. At any rate, we thought it well to have power to regulate the fisheries in such cases. If things go smoothly the Department of Fisheries would not be inclined to interfere at all.

Section 9 contains the usual clause empowering a duly authorised officer to demand of any person fishing in such tidal waters the production of his special local licence, and for a penalty in case he does not respond. Section 10 provides for the making of regulations. Section 11 provides that, in addition to other penalties, the holder of a special local licence convicted of an offence under the Fishery Acts may have such special local licence forfeited. Section 12 confers on the holder of a special local licence the same voting power as if he held an ordinary licence. It does not take from the holder of the special local licence any of the privileges given him, but gives him no privilege that he would not have when holding an ordinary licence. Section 13 provides that the conservators will pay to the Minister the difference between the ordinary licence and the special local licence. Section 14 enables the Minister to pay the conservators whatever they may be short, or whatever deficiency he considers reasonable, as put up by them in their income in relation to the ordinary licence. Sections 13 and 14 might appear rather cumbersome and unnecessary, because Senators might be inclined to ask: "Why not let the conservators collect the special local licences and let the Minister keep out?" It is thought that it would be almost impossible to strike at the beginning of the year an estimate of what the special local licence would amount to. It is better that the conservators should have a regular income and that if there is anything over it would go to the Exchequer, or if there was anything short, the Exchequer should stand the deficiency. As far as possible, taking it on the whole, the Department does not intend to make any profit out of this Bill.

Section 16 deals with a situation to which I have already referred, the case of rivers where the source might be in Northern Ireland and the outlet in the Free State. It is very important that there should be an understanding between the conservators at each side of the Border, because salmon going to spawn inside the territory of Northern Ireland will need protection from poaching, and the conservators on that side of the Border might very well say that it was no concern of theirs because they got nothing out of it. In such a case it is made possible for the conservators on the Free State side to contribute a certain amount to the conservators on the Northern Ireland side, to help them to protect the waters. That was provided for in another way in the past. The conservators on the Free State side of the border of the Erne had no power to make contributions to the conservators in Northern Ireland, but the owners of the River Erne did contribute to the conservators on the Northern Ireland side. It is to make up for that that this clause has been introduced. Section 17 is self-explanatory. Section 18 limits the duration of the Act to two years, roughly, to the end of December, 1935. It is hoped by that time to have a more comprehensive Bill to deal with inland fisheries as a whole, as a result of a report expected from the Commission now sitting dealing with fisheries. The Seanad may take it, therefore, that this is a temporary Bill to meet an emergency. As far as possible we are trying to avoid entering into any controversy, or getting up against any big principle, such as State ownership or private ownership. We have tried to leave things as they are, and to deal with the regulation of things as they are until the Commission on Inland Fisheries has reported.

I am glad this Bill is in the hands of the Minister for Agriculture, and I am sure he will act reasonably in regard to all the interests concerned. I see that in addition to the persons who, for a number of years, enjoyed as a fact the several fishery on the Erne he contemplates that there might be a great number of other people who enjoyed as a matter of fact the several fisheries in other rivers, and who may be inclined to surrender them in view of the decision given in the Lough Erne case. The Minister is wise in not entering into any controversial matters in the measure now before the House, which, as he says, is an emergency measure, to deal with the special circumstances arising from the decision given in the Lough Erne case. The fishermen who contested the right of private owners in that case imagined that they were contesting for their own benefit when, in point of fact, they were making a case, not merely for themselves but for the public throughout Ireland. The same thing would apply, of course, in the case of all other rivers, in respect of which there was not a title going back beyond legal memory. I hope when the more comprehensive measures come forward that some plan will be devised, whereby some compensation might be given to people who have enjoyed in fact exclusive rights of fisheries, although in view of the decision they may not be entitled to that enjoyment as of right. I think the result of a generous gesture on the part of the Government would be that, perhaps, a great number of several fisheries, which are now enjoyed in fact, though the right to enjoyment might be doubtful, would be surrendered to the State, and that a more comprehensive scheme for the regulation of inland fisheries might be rendered possible. In view of that consideration, I am glad the matter is in the hands of the present Minister, because I am sure he will be reasonable and, as far as he can, will be fair to every interest concerned.

Senator Comyn touched on a point with which I was going to deal, that is the matter of compensation for people whose rights have been taken or will be taken.

They had no legal rights in fact.

I refer to the case of persons who enjoyed fishing rights.

Not rights.

They enjoyed these rights for at least a century and a half, and they were paid for. I would like to know what constitutes a right, if that does not, where the property was in their possession for 150 years, was paid for but is now to be taken without any compensation. That is a serious matter. Does the Minister stand for absolute confiscation of property without any compensation? I am glad at the introduction of this Bill, as a whole. I am interested in fisheries, but I want to see that there will be no irregularities or inconvenience caused to people with their rights established. It seems to me that these rights are to be taken without compensation. It is an exceedingly dangerous principle if property of any kind can be confiscated without compensation. Another matter that is disturbing the public mind is the Commission that was constituted by the Government to inquire into the inland fisheries.

Cathaoirleach

Does that come into this Bill?

I think so. It was discussed in the Dáil. The personnel of that Commission has given rise to a great deal of uneasiness in people's minds. One of the commissioners actually contested a matter concerning fisheries. This matter ought not to be allowed to pass, especially as regards confiscation. For the honour of the country the Government should not allow everyone to say that they stand for confiscation of fisheries, land or anything else. We know that some members of the Government have stated openly, with regard to land, that anyone who does not carry out their fads will have their land taken——

There was no compensation.

——and it was to be given to someone who would carry out the Fianna Fáil fads. I do not like that.

This Bill is a difficult one to understand. It is based largely on the result of the Erne fisheries case, which has been going on for several years, and on which a decision was only pronounced recently. That case dealt with a fishery over which there were supposed to be people with rights extending over a long period, I believe some centuries, and the court decided against the individuals who considered themselves to be the owners and gave public rights over the river. From the remarks made by the Minister it would appear that the Government was anxious to take over, or rather to claim rights over, the tidal waters of the rivers of Ireland. When one comes to think of it that is a very large question. Ireland is blessed with a great number of rivers, nearly all of them fishing rivers, and, as far as I am aware, practically all of them have fishing rights. That being so, is it the intention of the Government under Section 2 to take over jurisdiction on all these rivers, without any judicial decision? There was a judicial decision in the Erne case which was argued at great length. Is it the intention of the Government to step in now, on the strength of the Erne decision, to introduce regulations for the control of private property, which is undoubtedly the position in which these fisheries in tidal waters are? It is, to my mind, very difficult to ascertain for certain that that is the intention of the Government, and I should like the Minister to tell us if it is so.

Again the Minister speaks of conservators of fisheries and says that they require additional funds which, I am sure, is quite correct. The funds that he asked for are mainly in connection with the Erne fishery. If the other fisheries throughout the country are to be taken over and declared public property, as the Erne fishery has been, the conservators will require a very large sum of money to enable them to control them as they should be controlled. A case was made as I believe by the Minister, only for the Erne, but there are hundreds of rivers, tidal waters, all along the coasts of Ireland. If these rivers are to be properly looked after by the conservators, it will mean a very large expenditure and there is no provision in the Bill, so far as I understand it, for that. No doubt, as the Minister has told us, this is merely a Bill for one year. It is provisional and a much larger Bill will be introduced later on. Possibly in that larger Bill all these points will be finally and properly settled, but in the meantime I think it is important that we should know whether it is the intention of the Government to take over all the tidal waters and to manage and control them in the same way as the waters of the Erne will now be controlled as a result of the judicial decision.

I think Senator Guinness has completely misunderstood the intention of the Bill. As I understand it, the intention of the Bill is to achieve in effect what he wishes to have done. It is only in so far as a judicial determination has been made, as in the Erne case, or in a case where the supposed owner renounces his rights, or what he believes to be his rights, that the Minister can come in.

Then it requires a judicial decision or a relinquishment of the owner's rights?

It is a surrender of the claim. There might be no right but there might be an assumed right.

Cathaoirleach

We ought to leave something to the Minister to explain in concluding the debate.

I thought the Minister had explained the matter.

I merely wished to answer Senator Guinness's query.

There is one point with which the Minister has dealt, but I should like an amplification of it. It has reference to Sections 13 and 14 in regard to the financing of the board of conservators. Is there any check upon the amount of money which that board may spend inasmuch as Section 14 throws upon the Minister an obligation to make up the difference between what he expends and what he receives? I do not think that under this Bill, though perhaps there may be under some other Act, there is a check upon the amount the conservators may expend. If there is not, this Bill seems to give to the conservators a free hand and an assurance that the Minister will make up the difference between what is received and what is spent.

With regard to the point raised by Senator Guinness, Senator Johnson is quite right. This Bill can only apply, first of all, where a public right of fishery was claimed for at least 20 years before 1st January, 1933, and where since 1st January, 1933, either it has been determined in a competent court of jurisdiction that that right does not exist, or where the person claiming it has surrendered his rights. The question has been asked who would be likely to surrender his rights. As a matter of fact, there is one such case, the River Ownee, in County Donegal. That river was owned by the Department of Fisheries and the Department took the court decision in the Erne case as governing the legal position of the Donegal rivers and immediately surrendered the ownership of that river. That is the only case that I know of where a public right was actually surrendered. If we did not have this Bill, and any owner did come along to surrender his rights, we might be put to the trouble of saying to that person: "We will have to bring you to court first before we can take it over. We will have to have the matter determined in court." It is to avoid the necessity of doing that that clause (b), sub-section (1), is inserted. We cannot interfere with tidal waters except in such cases, or where a court decision is given as in the case of the River Erne.

Senator Miss Browne raised a point about compensation for those who enjoyed the fishery rights. As I explained in introducing the Bill, it was such questions we tried to avoid when drafting this Bill. We tried to avoid any reference to the owners, whether they were right or wrong, because that is a matter for the court to decide. I think it is not right that Senator Miss Browne or any other Senator should refer to the court decision as confiscation. The courts, after all, are competent to decide these matters. If the court decides that a person has not got a right that that person claims, we ought not to refer lightly to such a decision of the Supreme Court as confiscation. It is true, of course, in some cases the law is severe and may lead to injustice although the position is quite legal, but that is a different matter. It is not confiscation, at any rate. If those people who claim to have a public right to the River Erne come along and make a case to the Government that they have been badly treated, that they paid a certain amount of money for the fishery, instead of going around threatening us and saying that they do not care about our courts, that they will go to the Privy Council—well, if they choose the Privy Council, let them have the Privy Council. As long as they put their faith in the Privy Council, I do not see that anybody here should have any sympathy with them.

Why did you not do something for them?

I would let them try the Privy Council first and let them see how they got on.

Nobody mentioned the Privy Council.

I want to protest against the term confiscation being used by Senator Miss Browne. The Government had nothing to do with this case. It was the Supreme Court decided it and I do not think the judges of the Supreme Court should be accused of confiscation. In the first place, the Supreme Court has to decide every matter according to law and in the second place, the judges are not here to defend themselves. I was asked if I stood over this confiscation. There is no necessity to answer that question because there was no confiscation.

Senator Johnson drew attention to Clause 13 and inquired if the conservators would have a free hand in the spending of money. They have not of course. The estimates of the boards of conservators must be submitted to the Minister each year and approved of by the Minister. We compare them, first of all, with the expenditure during the previous year and, secondly, compare them with the expenditure, under similar circumstances, of other boards. Other things are taken into consideration such as the rate that is struck on the exclusive fisheries; the amount received for licences and whether they have sufficient money for adequate protection. All these things having been taken into account, the estimates are approved or not, as the Minister may decide. The conservators have not a free hand to spend money as they like. It is more or less laid down as a guide that they will be permitted to spend roughly something about the same amount as they had been spending.

That check is under another Act?

What I have been referring to already is under the 1925 Act. I do not think any other question was raised.

Question put and agreed to.
Committee Stage ordered for Wednesday, 13th June.
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