In Special Committee, a certain amendment was carried which, although not exactly as I would have wished, I undertook to have examined with a view to seeing if it could be made more acceptable to the administration. I think that if these slight amendments were made in the amendment, as adopted by the Special Committee, it would be quite workable. It is proposed, in the first instance, to delete from the amendment as passed by the Special Committee the words "constructed or being maintained." I was advised that these words would make the provision rather difficult to administer. By removing these words, the provision is left very wide. I do not think that any Senator would have any objection to the deletion of these words. My remarks would also apply to amendment No.3.
Public Business. - Fisheries Bill, 1938—Fourth and Fifth Stages.
I move amendment No. 2:—
In page 16, Section 29, sub-section (1), to delete the word "may" in line 3 and substitute therefor the word "shall."
This amendment is necessitated by an oversight of mine in drafting the proposal which I put before the Special Committee. I overlooked the wording of the original section. After we had heard the debate at the Special Committee, we realised that it would be advisable to substitute the word "may" by "shall." The Minister made it quite clear on a number of other points that, if decisions were left to him, he would be placed in an extremely uncomfortable position. That might be brought about in the present instance and, if we put in the word "shall," the Minister will have no option but to rectify matters in connection with these particular weirs. It is not necessary to go deeply into the question but, for the information of the members of the House who were not present at the Special Committee, I may explain that the reason for the amendment was simply to ensure that henceforth there would be an open passage at all times for fish, through obstructions in the river, to the upper waters.
The necessity for the amendment has arisen by reason of the fact that, although in the year 1863 the British authorities made an attempt by law to correct abuses which had been going on for generations, means have been found since then to render the legislation, in certain circumstances, entirely and absolutely abortive, to the great disadvantage of other users of the river and of fishermen. This is an excellent opportunity to do away with these abuses, which have been kept going by large interests amply supplied with money as against the conservators. I hope the House will agree to make this small alteration in the amendment that was passed a fortnight ago after very careful and extremely friendly discussion.
Ba mhaith liom cupla focal do rá ar an leasú so. I was recently in County Kerry and some members of the Board of Conservators of the Roughty river called attention to the fact that within the past few years a weir had been constructed at the confluence of the Awbeg and Roughty rivers. The Roughty is a prominent fishing river, and naturally the people in the district object to a weir being constructed across it for the purpose of obstructing the free passage of fish. We all know that weirs are constructed for certain purposes, such as to provide water for turning mills but, on the Roughty river, the weir constructed within the past four or five years fulfils no purpose except to obstruct the passage of fish and also, as has been suggested to me, in order to keep the fish in the interests of a certain riparian owner in that portion of the river over which he has fishing rights. The weir is convenient to Ardtully Castle, which was formerly owned by the Orpen family. During the fight for freedom the castle was destroyed and the surrounding land distributed amongst local uneconomic holders, but the fishing rights evidently were acquired by a gentleman from Dublin who has some interest in property near Kenmare on the Roughty river. The local conservators are very much upset at the obstruction being allowed to remain in the river, and they say that it has destroyed one of the best spawning beds. Immediately above the weir, where the water at one time flowed freely, a pool has been turned where fish will not spawn. They asked me if anything could be done in connection with the matter and I feel it my duty to call the Minister's attention to it. I am quite satisfied, from the facts put before me, that the weir was constructed for the purpose of obstructing the free passage of fish in the area in which this individual has some fishing rights. If that is the case I suggest that such an obstruction should be removed.
The case mentioned by Senator Healy does not exactly come within this section and certainly does not come under this amendment. That matter has been dealt with by the Department and I think the Senator may be assured that the law will be enforced as far as the obstruction is concerned. This section deals with a free gap in a weir, wherever a weir is legally entitled to exist but, as far as the amendment goes, we are only concerned whether we should have the word "may" or "shall." Legally, I believe "may" means "shall," and that "shall" means "may" in certain cases, and the draftsman has asked me to have the wording left as it is, as otherwise the Bill would not be uniform. For instance, Section 44 has the same word. The word "may" remains there and has exactly the same effect. Apart from any legal knowledge, by reading the section it will be found that wherever the Minister is satisfied a proper gap does not exist he may serve a notice. The amendment is not going to strengthen the hands of the Minister because he must first satisfy himself. He is not going to say that he is satisfied unless he is going to do something. Therefore, to have the words "may" or "shall" does not matter a whole lot, and I appeal to the Senator to withdraw the amendment in the interests of the drafting of the section.
I am quite satisfied to withdraw the amendment if we have an assurance from the Minister that when he leaves the House he would satisfy himself on the matter, and immediately examine weirs in the country which do not conform to the spirit of the Act of 1863, and forthwith have them put in proper order. If we had that assurance I would be satisfied.
The Senator may take it that when I agreed to accept the amendment that was put in by the Special Committee I accepted it in good faith, and that all such weirs will be examined as soon as possible.
Arising out of the Minister's remarks, I understand the Department did compel the individual I was referring to to make a free gap at the weir but that does not satisfy the local people. In my opinion that weir should be taken away.
That can be seen to.
I move amendment No. 3.
In page 16, Section 29, to delete sub-section (2) (being the new sub-section (2) inserted in Special Committee).
I move amendment No. 4.
In page 16, Section 29, sub-section (2), to delete in lines 14 and 23 the word "construct."
This is to bring the section into line with an amendment removing the word "constructed," which is unnecessary in the amendment put in by the Special Committee.
I move amendment No. 5.
In page 17, Section 29, before sub-section (9), to insert the following new sub-section:—
(9) This section shall not apply in respect of any fishing weir which was the subject of an order under Section 11 of the Salmon Fishery (Ireland) Act, 1863.
I should explain that most of the weirs dealt with in the Act of 1863 come under Section 9. Section 11 deals with narrow rivers under 40 feet wide and, in that case, no provision was made for a gap in the weir, but the weekly close season was extended to three days. In fact, the amendment that was inserted would not apply.
I move amendment No. 6.
In page 38, Section 67, in sub-section (2), to delete paragraph (a) and substitute therefor the following paragraph—
(a) the arbitrator shall have regard primarily to—
(i) in case such fishery was used during the transition period, the profits of such fishery during the transition period,
(ii) in case such fishery was not used during the transition period, the sum which in the opinion of the arbitrator would have been the profits of such fishery if such fishery had been used during the transition period.
A matter was raised by Senator Sir John Keane before the Special Committee with regard to a special case he had in mind, that of an owner who desisted from netting and thereby enhanced the value of his angling on this particular river, and he asked me if we had provided for such cases in the matter of compensation. This is an attempt to meet the case the Senator had in mind, or any such case that may arise. It is provided here in subparagraph (ii)
"in case such fishery was not used during the transition period, the sum which in the opinion of the arbitrator would have been the profits of such fishery if such fishery had been used during the transition period;"
and that is about as near as we can go to it, I think.
I have been in consultation with the particular interests concerned and I am glad to say they are satisfied with the amendment and they thank the Minister very much for meeting them in the way he has done.