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Seanad Éireann debate -
Wednesday, 19 Mar 1952

Vol. 40 No. 13

Foyle Fisheries (No. 2) Bill, 1951—Second and Subsequent Stages.

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

Is feasach don saol Fodhlach go raibh iascach an Fheabhail, idir inbhear agus abhainn, ina cnámh spáirne ar feadh na mblianta fada idir na h-iascairí agus Comhlucht an Fheabhail agus an Bhanna, dream a raibh léas acu ón "gCumann Éireannach." Ba é an cumann sin "Cumann Éireannach Goibhearnóirí agus Cúntóirí Lundain den Phlandáil Nua in Uladh taobh istigh de Ríocht na h-Éireann," agus fuaireadar cairt ríoga ó rí Shasana i dtosach na seachtú aoise déag, tar éis Teicheadh na n-Iarlaí.

Sheas An Cumann agus An Comhlucht ar an gcairt sin gach uile uair ariamh dá raibh an chúis ós comhair cúirte, agus an fhad is a bhí réim Shasana i bhfeidhm abhfus ba leór leis an gcúirt an chairt ríoga céanna sin le ceart leithleach iascaigh a dheonú ar an gCumann. Ba chuma leis an gcúirt nárbh fhéidir—fiú amháin faoi dhlí Shasana—ceart leithleach a dheonú in inbhear ó aimsear Na Cairte Móire i leith, agus nach rabh dlí Shasana i bhfeidhm roimh an am sin i dTír Chonaill. Fágadh faoi Chúirt Éireannach, faoi réim féin—rialtais, leis an dlí gallda a léiriú go cruinn.

Chinn ar na stairithe a chruthú go rabh a leithéad de cheart ann in Éirinn faoi na Dlithe Bhreithiúnacha. Bhain an ceart sin leis an bhFeodacht, agus do réir tuairim na saineolaithe ba iad na gaill a bhunaigh í sin abhfus.

Fógraíodh achomharc in aghaidh breithiúnas na hÁrd-Chúirte, ach idir an dá linn socraíodh go n-aistreofaí an iascaireacht chun an dá Rialtas ar mhaithe le pobal na h-Éireann fré chéile.

Chun an socrú sin a chur i gcrích tá an Bille seo ós comhair an tSeanaid anois.

This Bill represents the outcome of negotiations initiated in 1949 and conducted since then in a spirit of cordiality and mutual understanding by representatives of two successive Governments in Dublin, the Government in Belfast and the Irish Society, London. The object of these negotiations has been truly a worthy one—the preservation in the national interest of one of the most prolific salmon fisheries in Europe, namely, that of the River Foyle. This river, which has its head waters partly in County Donegal and partly in County Tyrone, forms the boundary between County Donegal and the Six Counties from Lifford to the sea.

In that area of divided and uncertain jurisdiction, an exclusive right of fishery has been claimed by the Irish Society since the early seventeenth century. A claim to exclusive rights of fishery in tidal and navigable waters at any time is particularly vulnerable to challenge by the public, and the claim by the Irish Society in respect of the Foyle has proved to be no exception in this regard. Sporadic challenges were met from time to time as they arose throughout the centuries, and when, following an intensive campaign of incursion by the Donegal fishermen over the past 25 years or so, the lessees in possession—the Foyle and Bann Fishery Company—found themselves virtually powerless to carry on fishing in County Donegal waters, it was decided to seek a declaration from the courts as to title, which, if secured, would have served as an estoppel against the public. This action, which was confined to the three-mile stretch of water flowing entirely between Donegal banks and known as the Branch Stream, was fought out in the High Court before the late Judge Gavan Duffy, who, in October, 1948, gave judgment in favour of the Attorney-General, representing the public, and his co-defendants. The plaintiffs gave formal notice of intention to appeal to the Supreme Court, but recognising, no doubt, that the fishery stood in peril of suffering irreparable injury while a protracted legal battle was being fought out, they also took steps to intimate to the Governments in Dublin and Belfast their willingness to negotiate a transfer of the fishery to State control.

This projected transfer, while recognised by all Parties as a highly desirable object, presented many problems in the domain, both of finance and of administration. That these problems were solved in broad outline by July, 1950, when the Governments announced that agreement had been reached with the Irish Society in the matter, must stand as a tribute not only to the goodwill of the Irish Society but also to the ingenuity and resource displayed by the negotiating officers who worked out the scheme on behalf of the two fishery authorities.

The agreed plan entailed the passing of legislation in Dublin and Stormont authorising the Governments to enter into an agreement with the Irish Society. Certain of the matters to be authorised by legislation were considered to be outside the jurisdiction of the Stormont Legislature, and accordingly the authority of the Westminster Parliament had to be obtained. The requisite enabling legislation was recently enacted at Westminster and since then no time has been lost in bringing the present measure before the Oireachtas, and a close counterpart of it before the Legislature at Stormont.

The general scheme of the Bill has been explained in the explanatory memorandum circulated with it, and despite its apparent length, the salient features may be described fairly briefly. The Bill falls into three main divisions, namely, Parts I and II which deal with the preliminaries and with the acquisition of the Foyle fishery rights, by means of an agreement in the terms set out in the Second Schedule, on execution of which Section 8 operates to vest in the Minister and the 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.

The total cost of acquiring the fishery and of certain ancillary property is set out in the agreement at £106,885. To this must be added interest on £102,485 from 1st March to the date of the agreement, making a grand total of, say, £110,230, the contribution of each Government being one-half, or £55,115. The part of the purchase cost on which interest has not been calculated, namely, £4,400, represents a reimbursement to the Irish Society in respect of their buying out of certain superior interests in the Greenbrae fishery. This fishery was not included in the original terms of the agreement, and I understand that the conveyance of this fishery to the Irish Society is only now in course of being concluded.

With regard to the provision in sub-section (8) of Section 8 for compensation for loss of any interest in a several right of fishing by a person other than the Irish Society, I may say that, although this clause has been included in accordance with usual custom wherever there is a possibility of expropriation, no such rights or interests are known to exist.

The second main division of the Bill is Part III, whereby a body, to be known as the Foyle Fisheries Commission, is established and provided with powers to enable it to discharge, on behalf of the two fishery authorities in Dublin and Belfast, the functions of conservation, protection and improvement of the fisheries of the Foyle area. The commission will consist of four members—two nominated by Dublin and two by Belfast. The members will themselves decide which of the two senior members is to be the first chairman. He will hold office for one year and the senior member appointed by the other Government will be chairman for the second year, and so on in rotation. Similarly, the office of secretary to the commission will alternate between the junior members, so that in each year the chairman will be the nominee of one Government and the secretary the nominee of the other.

As the commission represents the conjoint authority of the two Fishery Departments, and is charged with the management of a fishery owned jointly by the two Governments, it is appropriate that it should be declared by Section 12 to be exempt from rates and taxes. The local authorities who are at present entitled to receive rates out of the properties in question will not, however, suffer as sub-section (3) of that section will enable payment to be made out of voted moneys to the Donegal County Council of such sums as that authority would have been entitled to receive in respect of rates, were the commission not exempt.

It may be well to explain here the position as regards fishery rating which is dealt with under Part IV. The commission will itself be the rating authority in succession to the Moville and Derry Boards of Conservators and, accordingly, rates revenue will henceforth be leviable only in respect of the fishery properties in the Foyle area which are not in the occupation of the commission. The revenue to be obtained in this way will be but a small part of what the commission requires to maintain its protection services, and it would be rather unrealistic for the commission to go through the form of striking a rate which would have but little relation to its total requirements. Provision is, accordingly, made for the collection of a fixed rate of 20/- in the £ on the rateable fisheries; so far as the Moville area is concerned, this represents a slight reduction on the rate at present being paid by the ratepayers concerned.

To return to Part III, the bulk of the powers required by the commission will be derived from the authority given by Section 13 to make regulations for the conservation and protection of the fisheries in the Foyle area. Such regulations may be compared to fishery by-laws which are made by the fishery authority, and by conferring on the commission the power of making such regulations the Minister and Ministry signify that the commission is to have the widest possible measure of discretion in regard to the administration of the Foyle fisheries. All regulations made by the commission will, of course, be laid before each House of the Oireachtas and before the Stormont Legislature, where it may be annulled by resolution. It has not heretofore been customary to regulate by by-law the number of fishing engines which may be employed in any given waters. In the special circumstances of the Foyle area, it is clear that such power may be required by the commission, and, accordingly, specific authority to restrict the issue of licences in the tidal waters of the area is provided by Section 14.

One other special power conferred on the commission should be referred to, namely, that provided by paragraph 3 of the Third Schedule, whereby the commission will be enabled to deal at its discretion with that part of the Foyle which flows entirely through the County of Derry. This fishery lends itself to operation as a separate unit, and it is considered desirable that it should, for an initial period, continue to be worked as a private fishery. The intention is that the commission should make annual lettings, after advertisement for tenders. It is intended that this special treatment of the Derry stretch should continue for a transition period only.

As the commission will take over the duties of conservation which at present rest on the Moville Board, the latter body is to be dissolved by Section 19. As from the establishment of the commission, the employees of the Moville and Derry Boards will, under paragraph 16 of the Third Schedule, be transferred to the staff of the commission. Section 22 provides for the establishment of an advisory council to watch over the interests of the holders of fishing licences and the occupiers of fisheries in the Foyle area. As will be seen from the provisions of the Fourth Schedule, the advisory council will in many respects be a counterpart of the board of conservators, with the difference that its functions will be purely advisory and not executive.

The final division of the Bill— Parts IV to VIII—is in effect a reenactment in concise form, with certain adaptations, of the general fisheries code as applicable to the protection of fisheries in the Foyle area. The enactment of this miniature code is considered to be the best solution of the problem as to how the commission could fairly enforce the law throughout the area of its jurisdiction, when that law had in many respects developed differently over the past 30 years under the Dublin and Belfast administrations respectively.

As will be seen from the table appended to the explanatory memorandum, the provisions of Parts IV to VIII can readily be related to the corresponding provisions of the Fisheries Acts, which, by the operation of Section 4, are to be suspended in their application to the Moville area. One section, in particular, however, namely, Section 62, contains a novel and noteworthy provision, which has been designed to deal with the problem of the offender who breaks the law in one jurisdiction, and seeks to avoid the consequences by flight to the other jurisdiction. The procedure laid down in Section 62 is to secure that such a person can be dealt with in the jurisdiction in which he normally resides. A corresponding provision in the Stormont Foyle Fisheries Bill secures reciprocity with the Belfast administration in regard to this important matter.

I have great pleasure in recommending this Bill to the favourable consideration of Seanad Eireann. It is, I think, worthy of record that so lengthy a measure should be brought before the Oireachtas and before the Stormont Legislature simultaneously, and in virtually identical terms. I believe that the spirit of harmony which has prevailed amongst all Parties in bringing the measure to its present stage should augur well for the settlement of any difficulties that may arise in the future.

Níl aon duine sa Seanad is lú eolas ar iascaireacht ná mise ach pé eolas a bheadh ag duine, ní bheadh de dhánaíocht ann chur i gcoinne an Bhille seo. Tá Rialtas Lonndúin, Rialtas Bheál Feirsde agus Rialtas Bhaile Átha Cliath ar aon fhocal agus ar aon intinn mar gheall air. Mar sin, in áit aon ní a rá in a choinne, ba chirte dúinn, mar deintí fadó, trí gártha ar chnoc a thabhairt agus suí síos.

I would like to say that no matter what others know about fisheries, I know nothing. It would be difficult to attack a Bill which has the support, not only in principle but in detail, of London, Belfast and Dublin. Instead, therefore, of discussing it we should do perhaps what they used to do in the old Irish stories, give three shouts of joy and sit down. Perhaps it might be disorderly to give the shouts. The Parliamentary Secretary gave a full explanation of the Bill, which reflects great credit upon him, upon his predecessors in office, and upon the people in Westminster, in Belfast, and here who have been discussing it. I suppose it is another example of how people, instead of using long-range oratorical artillery, can sit down together and solve difficulties which otherwise appear to be insuperable. Therefore, the Bill should have a very easy passage here this evening.

Question put and agreed to.
Agreed to take the remaining stages to-day.
Sections 1 to 7, inclusive, put and agreed to.
SECTION 8.
Question proposed: "That Section 8 stand part of the Bill."

On the section, I think the Parliamentary Secretary probably knows the point I intend making. It was made in the Dáil in relation to this section. It is in connection with sub-section (8), and I understand representations regarding this sub-section were made by the Incorporated Law Society, and received some consideration from the Department.

The matter was raised further in the Dáil and the Parliamentary Secretary indicated that be was not averse to reconsidering the framing of the sub-section. He felt, however, that it might be necessary to secure agreement with the people in the North if the matter were being pressed.

I do not want to press it unduly, but I think the Parliamentary Secretary knows the point involved. There is fear that the sub-section as worded at the moment will not give a person whose rights are being acquired any right to be indemnified against the costs of the acquisition. I believe the Parliamentary Secretary holds the viewpoint that this is purely academic, that it is very unlikely that such acquisition will take place, but should there be acquisition it seems that the sub-section as it stands does not give the persons whose right is being acquired, what I might call usual indemnity against the cost of the acquisition, which might possibly be quite considerable.

I understand that this is the view of the Incorporated Law Society, that if this sub-section goes by unchallenged it will be used as a precedent and that a bad principle will thereby be established. I want to make it quite clear to the Senators who are not members of my profession that this point does not affect the actual costs that solicitor or counsel would get. It merely affects the rights of the clients to be indemnified by the State in respect of those costs.

The solicitor would get the costs in any case.

Yes. Our anxiety is only on behalf of the client. I would be glad if the Parliamentary Secretary would say if he has had the question further examined since the discussion in the Dáil, and I should like to have his point of view in regard to the question of representations being made. When representations are made by a body such as the Incorporated Law Society I feel that whatever Government is in power should rather go out of their way to meet the objection if it can be met without seriously upsetting either the implementation or the general effect of the Bill. I would speak in similar terms when representations were made on another Bill by another body, for instance, the Medical Council, in relation to a Medical Bill.

As I say, I do not want to press the matter unduly but I would urge on the Parliamentary Secretary, if there is no grave objection, that he would take the matter up with his counterpart in the North and see if the objection in principle which was made could be met.

This question was raised by Deputy Sweetman in the Dáil and I think everybody was satisfied that it was merely a point of academic interest. But the fact is that this particular form is already incorporated in the Local Authorities (Works) Act and in the Land Reclamation Act; therefore, if it is something that is objectionable it is not being created as a precedent in this Bill. However, we had the matter referred to the parliamentary draftsman and he informed us that it was a form that had not been questioned until the matter was raised in the Dáil. If the unexpected were to happen it is inconceivable that the commission would stand upon the letter of the law as it has been interpreted now by Senator O'Higgins, and I imagine that there would be a very generous approach on the part of the commission in meeting such a case if it were to arise.

While the point is of interest, I feel it is of purely academic interest in so far as this Bill is concerned. In any event the fisheries authority will have the point brought to official attention for general application in relation to matters of this sort in the future. I will undertake to have the point brought to the notice of the Government.

I feel I should point out that it is not quite fair. Section 5, sub-section (3) of the Local Authorities (Works) Act, and Section 6, sub-section (3) of the Land Reclamation Act contain clauses which provide for the compensation to be assessed if the land were compulsorily acquired. There is no question of title involved under the sub-section. It seems under this Bill that the questions of investigating title and making out title, if they arose, might all come within the jurisdiction of the arbitrator, and the subsequent increase in the costs could be dealt with, whereas that would not come within the jurisdiction of the arbitrator in the other case at all.

I would like to say to Senator O'Higgins that the matter is the subject of consultation between the parliamentary draftsman and the Incorporated Law Society. I imagine that some permanent solution for this point will emerge.

I am quite satisfied now, and I do not wish to press the matter.

I wish to support the point made by Senator O'Higgins. Of course, I accept fully what the Parliamentary Secretary has told us. I just want to make the point perfectly clear in case we would hear about a pigeon-hole from which a similar draft might later on be produced. I want to make it quite clear that this clause dealing with a point such as this will not be taken as a precedent in a year's time or two years' time. If what we have been told here was by any chance forgotten, we might be referred to the Foyle Fisheries Bill as containing a section which the Minister was now bringing into a new Bill. So long as it is made clear that the section in this Bill will not be used a precedent for a similar case, I am perfectly satisfied. With all due respect to the parliamentary draftsman this is a most unusual point dealing with compensation and costs. However, I am satisfied from what I have heard, that this will not be used as a reference with regard to any future measures. The point is of some importance because, although it may be purely academic in this case, it is of interest to people whose property might be compulsorily acquired. Therefore, every precaution should be taken to make sure that the public are not being prejudiced.

Question put and agreed to.
Sections 9 to 84, inclusive, the Schedules and Title, agreed to.
Bill reported without amendment.
Bill received for final consideration and passed.
The Seanad adjourned at 4.50 p.m until 3 p.m. on Wednesday, 26th March, 1952.
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