Public Business. - Shannon Fisheries Bill, 1934—Committee Stage.
Section 1 agreed to.
Question proposed: "That Section 2 stand part of the Bill."
I want to raise a point on this section. I am referring to the paragraph which reads:—
"... the expression ‘the Shannon fisheries' means all fisheries and fishing rights which are for the time being vested in the Board in or over the waters of the River Shannon or any part thereof;"
With that definition in mind, it appears to me doubtful, after reading a later section, whether the Bill is giving effect to what the Minister desires. I am calling attention to the definition for the purpose of asking the Minister to give consideration to it in his own interests, and not in the interests of the plea I intend to make. If he will refer to Section 8, it will be seen that the duty which is imposed on the Board is that of "managing, conducting, and preserving the Shannon fisheries," that is to say, the fisheries which have been vested in the Board. Then in Section 9 the duties in relation to the Shannon Board are referred to as the main function of the Board in this matter, and incidentally and ancillary to these duties are certain other provisions, which include interference with rights of fishing and otherwise, giving power to acquire, and so on. All these, I take it, are incidental to the performance of the duties in relation to the fisheries which have been vested in the Board, so that unless the Board has already certain fisheries vested in it, it would have no power to act under this Bill, until either Section 5, which empowers the Board to purchase, or Sections 6 and 7 become operative. It is rather a case of the house that Jack built. Until the initial transfer of fisheries to the Board is given effect to, the Board has no power whatever, because the Shannon fisheries are defined as fisheries which have been vested in the Board.
"Which are for the time being vested".
The time being has not arrived until they have been vested. I draw the Minister's attention to that. It may not be a defect; it may be part of an ingenious plan, but it struck me as being a matter that was perhaps worth looking into.
I will have the matter looked into.
Section 2 agreed to.
Sections 3, 4, 5 and 6 agreed to.
Question proposed: "That Section 7 stand part of the Bill."
I want to deal with Section 6 and Section 7 together but the more important point rests on Section 7. These two sections refer to the transfer by the Minister who has acquired certain fishing rights under the Act of 1925, that is, the Electricity Supply Act, 1925, in the first case and, in the second case, by the Commissioners of Public Works to the Board certain fisheries and fishery rights by order. What is questioned here is whether these powers which are sought to be given are in conflict with Article 11 of the Constitution. That Article prohibits the alienation of rights in land and water, etc. The point arises as to whether the Electricity Supply Board is a department of State or is a corporation, not a department of State. If it is a department of State, no doubt these two sections are in order, but if it is not a department of State, I think the proposals conflict with Article 11.
While all the purposes of these two sections could be achieved under the provisions which empower the Board to lease for 99 years any rights which they have been possessed of, the sections which transfer State property to a private corporation, and particularly property which was not acquired since 1922, seems to me to run in direct conflict with Article 11 of the Constitution, which, it is pretty well known, is definitely designed to prevent the alienation to a private corporation of State properties. I think that, examining the Act of 1925, it will be agreed that it is not strictly a department of State and if that is so, it is a private corporation and these two sections should not be in the Bill because they would, I think, be in conflict with Article 11.
The speech made by Senator Johnson shows how closely he has studied this Bill and, at first sight, it would appear that Section 7, subclause (1) is in conflict with the Constitution. In fact, in my copy of the Bill, I have a query to that effect, but when the matter is more closely examined—I do not know what the Minister thinks of this but I will state what I think about it—it will be found that the Commissioners of Public Works in Ireland hold certain fisheries in the Shannon not as a State property. That is the thing which, I think, was in the mind of the draftsman and it must have been in his mind for the reason, that if you refer to Clause 9 (1) (d)—
"Nothing in this section shall operate to authorise the Board to acquire any property belonging to the State compulsorily or otherwise land in accordance with the law for the time being regulating or restricting the disposition of such property—"
you will realise that the draftsman had fully before his mind Article 11 of the Constitution, so that in relation to State property provision is made that the Electricity Supply Board shall not acquire State property——
Compulsorily, yes— except in accordance with the law for the time being regulating the disposal of State property. When we read that and then go back again to Section 7 sub-section (1) and see that the Commissioners of Public Works have the right to transfer by Order all the estate and interest of the Commissioners in any fishery or fishing right, I think we must come to the conclusion that these fisheries or fishing rights which are mentioned in Section 7 are fisheries or fishing rights which the Commissioners of Public Works hold not as State property. There are several such fisheries in the Shannon and elsewhere and the Board of Works has certain property, and a considerable amount of property, throughout Ireland which they hold as Commissioners of Public Works and not as State property coming within the scope of Article 11 of the Constitution. I happen to know this, because for many days I argued the contrary and was overruled.
Whatever argument Senator Comyn put up on that occasion, I am afraid it does not quite meet the case raised by Senator Johnson. The fact is that the properties held by the Commissioners of Public Works in relation to fisheries are State properties and come within the scope of Article 11 of the Constitution, but the point he raises was considered and it was held, not merely on this but on a previous occasion, that the Electricity Supply Board is a State Department for the purposes of Article 11 of the Constitution, and that the transfer of property from the Commissioners of Public Works or the Minister for Industry and Commerce to the Electricity Supply Board does not affect Article 11 of the Constitution, the Electricity Supply Board being held to be a State Department for the purpose.
Will the Minister give us the reference to that—where was it held?
It was held by the legal advisers of the Government.
I do not think the matter ever came before the courts.
The other thing was held by the courts in the case of the Commissioners against Anthony Mackey, a well-known man who had a fishery on the Shannon.
I am not contesting the point that the Commissioners of Public Works may be the custodians of property which is not legally State property within the meaning of Article 11; but the particular fisheries referred to in Section 7 are State property.
I cannot understand Senator Comyn's argument that property held by the Commissioners of Public Works is not State property.
Certain property, I said.
Even certain property. Surely they cannot hold private property as they are a Department of State. On the other hand, I cannot understand the Minister when he states that it has been decided by somebody that the Electricity Supply Board is a State department. We have been told in this House, and it has been my feeling all the time, that the Electricity Supply Board is an independent Board. They come to us for money at different times; but it has to be paid back. We have been told by a previous Minister that he had absolutely no control over the Board. I remember that distinctly. I cannot, therefore, understand the way in which the Electricity Supply Board and the Commissioners of Public Works are getting mixed up between private property and public property. Anyway, I think, the less we encourage the Electricity Supply Board to go in for trading of any sort, whether we call them a Government body or a municipal body, the better. That is the reason I should like a little more explanation than has been given by Senator Comyn or the Minister.
I should make it clear that the fact that the Electricity Supply Board has certain functions conferred upon it by statute which it can exercise independently of the Executive Council or the Minister for Industry and Commerce does not make it cease to be a State department for such purposes as Article 11 of the Constitution. The transfer of property to the Electricity Supply Board as proposed in Sections 6 and 7 here, does not mean that property is transferred from the ownership of the State. In fact, in the Bill itself the Electricity Supply Board is prevented from disposing of such property otherwise than in accordance with Article 11 of the Constitution.
Question put and agreed to.
Section 8 put and agreed to.
(1) It shall be lawful for the Board to do all such things, carry out all such transactions, and fulfil all such functions as shall be necessary or proper for or incidental or ancillary to the due performance of the duties in relation to the Shannon fisheries imposed on the Board by this Part of this Act, and in particular and without prejudice to the generality of the foregoing powers, it shall be lawful for the Board to do all or any of the following things, that is to say—
(a) acquire, either permanently or temporarily and either compulsorily or by agreement, any fishery or fishing right in or over the waters of the River Shannon or any part thereof, and any land, way-leave or other right ancillary to or necessary for the enjoyment of any such fishery or fishing right so acquired;
(b) acquire, either permanently or temporarily and either compulsorily or by agreement, land (including land covered by water) and also easements, profits-à-prendre, and other rights over or in relation to land or water;
(c) acquire, either permanently or temporarily and either compulsorily or by agreement, any weir, dam or bridge in or across the waters of the Shannon fisheries;
(d) terminate, restrict, or otherwise interfere with, either permanently or temporarily and either compulsorily or by agreement, any easement, way-leave, water-right, fishing-right, or other right over or in respect of any land or water;
(e) divert, close, remove, or otherwise interfere with, either permanently or temporarily and either compulsorily or by agreement, any private road or way, or any canal or other artificial waterway, or water-course;
(f) subject (where applicable) to the approval and restriction mentioned in the next following sub-section of this section, demise by lease or let by way of licence the whole or any part of the Shannon fisheries to such persons for such period, at such rent, and on such terms and conditions as the Board shall, subject (where applicable) to such approval as aforesaid, think proper.
(2) Nothing in this section shall operate to authorise the Board—
(a) to do anything compulsorily without paying compensation therefor, or
(b) to acquire or interfere with any public road or way or any bridge carrying a public road or way, or
(c) to acquire or interfere with (otherwise than by agreement) any property belonging to a railway company, or
(d) to acquire any property belonging to the State compulsorily or otherwise than in accordance with the law for the time being regulating or restricting the disposition of such property, or
(e) to construct or erect any work or structure on tidal lands below the line of high water of ordinary or medium tides without the consent of the Minister or otherwise than in accordance with the terms and conditions of such consent, or
(f) to make any demise by lease or any letting by way of licence of the whole or any part of the Shannon fisheries for any period exceeding one year or with or subject to any covenant or condition for renewal without the approval of the Minister and the Minister for Finance, nor to make any such demise or letting of a fishery to which Article 11 of the Constitution applies for any period exceeding 99 years or with a provision for renewal.
I move amendment No. 1:
Section 9, sub-section (1). After the word "Shannon" in line 51 to insert the words "above the Shannon hydro-electric works constructed under and in pursuance of the Act of 1925 as amended or extended by subsequent legislation."
There are two amendments in my name on the Order Paper and I would ask leave to bring forward my arguments for both amendments when speaking on the first one, otherwise, as the two matters are interrelated to a considerable extent, I should only be repeating myself and taking up the time of the House unnecessarily; so that the arguments which I shall use on the first amendment will to a large extent be concerned with amendment No. 3. The effect of the first amendment is to confine the powers of the Electricity Supply Board in the matter of fisheries to that part of the Shannon affected by the operation of the electrical works. "Fisheries" is rather a misleading word in this connection, because it really means fishing and that is what I mean; not special fishing of any particular kind. "Fisheries" is a grand-sounding word; but it really affects every kind of fishing. Those waters are affected by the works. They have been already affected to a very considerable extent in some cases and I understand are liable to be still more affected if alterations are made in the methods at Ardnacrusha.
My reasons for the amendment are that it does not appear to me that there is any justification for making such a body as the Electricity Supply Board into a fishery owner and authority any more than is unavoidable; and certainly not in the case of waters which, as far as I can see, are in no way affected by the electrical works. An Electricity Supply Board is not a very suitable kind of body to be a fishery authority. So far as I am aware, they have not got any particular technical qualifications in that respect, and, naturally, they would be liable to be an unsympathetic body, because the interests of the two are opposed. That is not all out of my own head because if you take Section 8 it illustrates what I mean very completely. Section 8 states:
In addition, but subject and without prejudice to, the primary function of maintaining, working, and developing the Shannon hydro-electric works under and in pursuance of the Act of 1927 as amended or extended by subsequent legislation, the Board shall have and perform the duty of managing, conducting, and preserving the Shannon fisheries under and in accordance with this Act.
That is only a secondary consideration —"subject and without prejudice to the primary function." For that reason, I do not see why it is desirable that the Electricity Supply Board should be made a fishery authority any more than can be helped.
The Bill gives power to the Board to acquire compulsorily any rights and property in fisheries in the largest catchment basin in Ireland. While the waters affected by the works may be affected in such a way as to be spoiled or deteriorated in the matter of fishing, they may possibly be made very much better than they were before. There, naturally, the question of compensation arises, on the one hand, or possibly what is known as unearned increment on the other. There is justification there for the Electricity Supply Board coming into the matter of fisheries. The Board are given powers to compensate and to acquire compulsorily and in case of such waters that is justifiable, but to what extent I do not know, because I do not know to what extent all this vast quantity of water is going to be affected. I do not know whether anybody does. Even the Minister himself cannot say what is going to be done in the future. I do not like the idea of the Electricity Supply Board being made into a fishing authority and owner. It seems to be wrong in principle. I could not draft the amendment in any other way, because I did not know where to stop, than to make it above the works. I do not know what is or what is not the principle affected, so I shall confine my amendment to the waters below.
With the possible exception of some parts of the river below the works where the course of the river has been actually altered as a result of the works, I do not really see what the Electricity Supply Board has got to do with the matter. It does not seem to me to be the suitable authority. The less the Electricity Supply Board has to do with the fisheries affected by these works the better. This Bill may well be used as an instrument of tyranny. Fishing is a form of occupation and a matter of great amenity to some people. It is a very sentimental amenity. An enormous number of owners of the water frontage are affected in this matter, some large, some small. Under this Bill very large powers are given to dispossess those people of their right of fishing. The Minister may say that they are to be compensated. They will, I expect, but no compensation would make up for the loss of these fishing rights to the owners. More than that, men's privacy is affected. It would be easy for anyone to understand that there are innumerable cases in which a man lives really on the bank of the River Shannon or some tributary of the Shannon. His house is just right on the river. Under this Bill the right to fish there can be taken from him and given to somebody else. Other people, strangers, will have the right, not only to fish there, but to come up right to his house and garden. It seems to me to be a very tyrannical gift to give to this body. It may be unavoidable above the City of Limerick, but surely, it is not below the City of Limerick. Very wide powers are given in this Bill. I think that it would be much better if the Minister confined himself to the river above the works. For that reason, I hope the Minister will accept the amendment put down by me; if not in the form in which I put it down, perhaps he would be able, on Report Stage, to bring in a form of words which would cover the points I am raising. In this way, he would not interfere with the fisheries except to such an extent as might be made unavoidable by the construction of the works.
I am afraid I do not gather what, precisely, Senator Bagwell hopes to achieve by this amendment, nor do I understand the relationship to which he referred between this amendment and the second amendment down in his name on the Order Paper. His purpose, according to the amendment, is to confine the Electricity Supply Board to acquiring fisheries above the Shannon works. But the Shannon works, when the particular scheme now about to start will be completed, will spread from Lough Allen to the City of Limerick. Any fishing above the Shannon works can only be for pinkeens or things of that kind. If the Senator means the works at Parteen Villa, I might mention that a large part of the fisheries above that have been acquired. Those above that are not important fisheries. In the fisheries below the Shannon works, damage has been done by the construction of these works. It is to the owners of those fisheries that most damage has been done. It is to effect those, so as to preserve the value of the river as a fishing river, that the Bill is necessary.
I can quite follow that, but what I am concerned with is that the word "fisheries" covers fisheries above to an extent of thousands of miles. If it is necessary for the Electricity Supply Board to deal with fisheries such as the Minister is dealing with, then the scope of the Bill is very much greater because it affects fisheries throughout a large part of Ireland. I raised this question on the Second Reading and the Minister replied that he did give this power in the Shannon basin——
Yes, to any fishery in the Shannon and its tributaries affected by this Bill. The purport of the Bill is to enable the Electricity Supply Board to acquire such of these fisheries as they are advised are necessary to enable the reorganisation of the fisheries to be effected, and to enable certain essential works to be constructed so that the fisheries may be preserved and developed. The fisheries which it is essential that it must acquire before any works can be constructed or reorganised are those below the Shannon works—the fisheries particularly in the fresh waters and also those in the tidal waters. They may or may not acquire fisheries above the Shannon works, but I imagine that it would be much less important to acquire fisheries above than below. The fisheries above, in as far as they have not been completely destroyed, have not been damaged. The fisheries between Parteen Villa and Killaloe have been acquired. They will be transferred to the E.S.B. when this Bill will have been enacted. But the whole purpose is to enable the Board to acquire those fisheries below the works so that the necessary measures for the preservation and development of the fisheries can be undertaken.
Is it not a fact that the Shannon works extend below the Lax weir? If the owners of the Lax weir have a right to fish there and five miles down the river, then do not the Shannon works extend into that fishery? For that reason I think that this amendment as it stands is quite unreasonable.
I should like if the Minister would take this opportunity to give us more information about the general intentions and the things that are sought to be promoted by this Bill; if he would tell us what these works are and where they are to take place. Perhaps he would tell us what fishery it is intended to interfere with or take over. If we knew what was in the mind of the Ministry, the Electricity Supply Board, the Conservators or the Lax Weir Company or whoever else is concerned, it would enable us to understand the relations of the whole to these intentions, as we could if we knew what was contemplated in regard to these matters. As the Bill stands, the powers that have to be handed over are so wide, according to one interpretation and so narrow with regard to another interpretation, that it is difficult to reconcile the whole with the intention of the Minister. If the Minister would tell us the class of works to be undertaken, where these works are, and if he would tell us what are the fisheries that are likely to be acquired, I think, perhaps, it would ease the discussion and enlighten Senators, so that the Bill would be made understandable.
The Shannon fisheries had a very different value—I am not saying anything as to the manner in which they were worked—before the Shannon scheme was started. There is a belief on the part of those who are competent to express an opinion in this matter that, with uniform ownership and control, the value of the Shannon fisheries can be considerably increased. Apart from that, there is the fact that at the present time the fisheries are being destroyed by reason of the works that are being constructed. The flow of the water below the weir has been considerably diminished and the river from there to the sea has been over-fished. It is necessary to introduce a Bill of this kind which gives to the Electricity Supply Board power to acquire ownership of all the fisheries for certain purposes. One is to reduce the number of engines in the estuary, to reduce the number of stake weirs that are there, following their acquisition, and by constructing certain works—I cannot describe these works in any detail—in the river to secure that injury to the fisheries, resulting from the decreased flow of water, will be removed, and to mitigate the other conditions which have reacted against the success of the fisheries up to the present, knowing the tendency of the fish to go into the tail race. It is not possible to say precisely what the nature of the work will be. That will be largely determined by experts who will have to consider the matter in considerable detail, bearing in mind that, I think, the sum total of human knowledge about the habits and characteristics of the salmon is itself limited, and that to some extent the works undertaken must be experimental. There are a number of ground sills to be constructed; a fish pass is to be put up at Ardnacrusha and screens are to be put into the head race. There are other works of that kind which are designed to facilitate the passage of the fish up the river to spawn, and to ensure that the whole conduct of the industry will be undertaken scientifically and with the intention of producing the best results.
What the Minister has said considerably modifies my views. I understand his attitude better now but we never had the information which he has given us before. We now have it that the Board are only going to deal with fisheries with which they really must deal to correct the situation. I still think that the powers given in the Bill for that purpose are quite unnecessarily large and touch upon a number of fishery interests which I do not think are affected by the works. I do not think that the Electricity Supply Board is a suitable authority to deal with these fisheries. I would ask leave to withdraw my amendment because it does not fit the case in any event.
Amendment, by leave, withdrawn.
I move amendment No. 2:
Section 9, sub-section (1). To delete in line 7 the words "fishing right, or other right" and to substitute therefor the words "private fishing right or other private right."
This amendment deals with sub-section (1), Section 9, paragraph (d). The paragraph gives powers to the Board to "terminate, restrict, or otherwise interfere with, either permanently or temporarily, and either compulsorily or by agreement, any easement, way leave, water right, fishing right or other right over or in respect of any land or water." Those are pretty extensive powers as I have read them. I again put this point to the Minister and the House, that that paragraph and the other paragraphs in the section from (a) to (f), have to be read as subordinate to the performance of the duties in relation to the Shannon fisheries imposed on the Board and until the Board has acquired the fisheries and can prove that those works or interferences with rights are necessary to the due performance of these duties, I question whether, in the form in which this section stands, the Board can operate the powers which the Minister desires to give to them. I suggest to the Minister that as the section stands it may be competent for any person to challenge the Board in the courts as to whether these interferences are necessary to the due performance of the duties of the Board in respect to the fisheries which they have acquired. It may entail on the Board the necessity of proving before the Law Courts whether these are incidental or ancillary to the larger purposes which are provided for in the first part of the sub-section.
Irrespective of that, there comes the question of whether the rights which may be terminated, restricted or interfered with by the Board, include any public rights. Probably the lawyers will say that inasmuch as they are ancillary to the performance of the duties of the Board in respect of their private rights, any fisheries with these rights referred to in the paragraph are only private rights. But there are certain public rights of fishery which are only capable of being interfered with by Parliament and I think we should be very careful to make it impossible for this Board, under the authority given by this Bill, to take upon itself powers which are otherwise reserved to Parliament in respect of interference with public rights of fishery. If the Minister is satisfied, on competent legal advice, that this paragraph only deals with private rights I cannot conflict with him but it seems to me that there would be no harm, even as a precautionary measure, in inserting the word "private" before "rights" so that we shall be quite sure that no public rights are being interfered with or can be interfered with by the Board and that that is something which can only be interfered with specifically by the Oireachtas. It is for that reason that I ask that the amendment should be carried, to ensure, as I say, that public rights shall not be interfered with under the authority of this section.
Before the Minister replies to Senator Johnson I should like to ask him a question with regard to the section. I am not quite clear whether Senator Johnson wishes to deal only with fishing rights, because it would seem to me that the section would apply to other rights referred to in paragraph (d), if his case is a good one. I should like to ask the Minister whether the section would give the Board power to remove bridges upon, say, the Grand Canal altogether. Under the definitions I think I am right in saying that the Board have control of all waters flowing into the Shannon. Their jurisdiction, therefore, would extend even to Portobello on the Grand Canal, as it does not seem to be specifically exempted, because it does not belong to a railway company. It would seem to me that that is going further than anybody would consider necessary.
Senator Johnson's amendment is not necessary, because the Bill does not confer upon the Board, in any part, any power to interfere with a public right. Section 9 defines the power that is to be conferred on the Electricity Supply Board. The section confers no power whatever on it to interfere with any public right. The Bill does interfere with certain public rights, but that is precisely what Senator Johnson defended. It is proposed to ask the Oireachtas to interfere with certain public rights, such as the extension of the close season, the prohibition of a certain kind of net fishing at certain times and in certain parts of the river, and so forth. These sections will represent, when passed, the decision of the Oireachtas to interfere with certain public rights, but neither Section 9 nor any other part of the Bill confers upon the Board the power to interfere with a public right. The only rights the Board can interfere with are those which are not public— rights which they may acquire either compulsorily or by agreement. Senator Douglas will note that sub-section (1) of Section 9 confers powers on the Board for the purpose of enabling it to "fulfil all such functions as shall be necessary or proper for or incidental or ancillary to the due performance of the duties in relation to the Shannon fisheries."
"And in particular and without prejudice to the generality of the foregoing powers, it shall be lawful for the Board to do all or any of the following things that is to say, (a) acquire either permanently or temporarily and either compulsorily or by agreement any fishery or fishing right in or over the waters of the River Shannon." If the Electricity Supply Board were able to make the case that, for the preservation of the Shannon fisheries, it was necessary to remove Portobello Bridge, I expect they would attempt it.
That is prohibited under Section 2 (b). But it is correct to say that the waters of the River Shannon now legally extend to Portobello Bridge.
I do not think so. Part of the canal belongs to the railway company.
I should like to point out to Senator Johnson that the public rights of fishing are protected by the Constitution, so that the Electricity Supply Board could not get the power he suggests even by implication.
That is open to question. I am prepared to accept the Minister's assurance that it is private rights that are referred to in the Bill. I myself thought so but I have to be cautious in these things.
Amendment by leave withdrawn.
I move amendment No. 3:—
Section 9, sub-section (1). After the word "proper" in line 20 to add the words "Provided always that in exercising such power of demise or letting the Board shall give to the owner or owners from whom the Board has acquired any fishery or fisheries the option of accepting a demise or letting thereof on such terms and conditions as the Board shall, subject (where applicable) to such approval as aforesaid, think proper."
This amendment has to do with the renting of fisheries which have been acquired compulsorily or otherwise by the Electricity Board. The idea is to temper the wind to the shorn lamb in so far as the former owner is concerned and to enable him—particularly in cases where the fishing rights were compulsorily acquired—to resume the enjoyment of an amenity which, perhaps, he and his forebears have enjoyed for generations. My suggestion is that the former owner should be given the first option to take the fishing rights.
The former owner of the fishery or fishing rights gets his compensation in the form of a cheque. His rights are acquired either compulsorily or by agreement, and he gets their value. It is not proposed to give him any rights in respect of the fishery in addition to the compensation paid. Once the Board has purchased for full value the fishing rights, they must, if they desire to lease or let them, be at liberty to get the best rent possible in respect of such letting. If the former owner makes the best offer, doubtless the Board will prefer his offer to others. If, however, he were put in a position in which he would have to get the letting in any event, then, obviously, the powers of the Board to do its business properly would be restricted. I appreciate that the Senator's amendment—though he may not realise it— would, in fact, leave the position unchanged, because the approval which is referred to in the section is the approval of the Minister for Finance. I can assure the Senator that the Electricity Supply Board would not get the approval of the Minister for Finance to any letting unless the rent was the best obtainable. In fact, there would be no change made by the enactment of the amendment, but the principle is wrong. The former owner of the fishery or fishing rights is entitled to fair compensation. If he cannot get that by agreement, he goes before the arbitrator, and the arbitrator gives him what he deems to be fair compensation. After that the fishery or fishing right is the property of the Electricity Supply Board and, if it is to be let, the Board must be at liberty to get the best rent possible.
I think that the point raised by Senator Bagwell is one which the Minister does not appreciate, though his criticism of the exact terms of the amendment may be right. I think that nobody would maintain for a moment that a man who has been compensated at a proper rate is entitled to some specific monetary privilege in addition. But if a private fishery is acquired, if afterwards the Electricity Supply Board find they can let that right and they fix a rent which they deem to be adequate, would it not be reasonable to offer the letting, in the first place, to the former owner? If it happens to be adjoining his property and if it was compulsorily taken from him. he should have the preference if he is willing to pay the rent which is determined by the Electricity Supply Board. Beyond that, I should not be inclined to go but I think that that is what Senator Bagwell is seeking to effect by this amendment.
It would be very unusual if the Electricity Supply Board were to make a letting of a fishery in that way. I take it that the ordinary practice would be resorted to and that the letting would be advertised. If the former owner chose to make an offer for the letting, he would be quite at liberty to do so. If the fishery would be of more value to him than to anybody else, his offer would probably be higher than any other offer received.
I think that there is an important precedent in support of this amendment. If I remember rightly, there is a precedent in connection with the fishing rights on rivers running through lands purchased under some of the Land Acts. In one particular instance, the tenants got the option of renting these rights after the purchase, although the rights had been originally acquired under the Land Purchase Acts.
I suggest to the Minister that he is raising a bogey for the purpose of knocking it down. I have not suggested that any former owner should get special treatment. I have not suggested that he should get any monetary or other advantage. My suggestion is that he should get the opportunity of taking over these rights but not at less money than the Board can get for them. He should be given the option of renting the rights. Suppose the Board had been made an offer, I think it would not be unreasonable that they should say to the former owner "Will you improve on this offer"? This is not a case of a man's rights being bought out with his consent. They may be acquired against his will. He might rather that he was not compensated. He may think that nothing would compensate him for the loss of an amenity which may be right in front of his house. His house may be on the bank of the river. It would be hard lines if he were not in these circumstances to get the opportunity of acquiring the fishery as against a stranger. This amendment does not give the former owner a double advantage at all. It merely provides that the fishery will not be let under his nose without his having an opportunity of his taking it himself.
The Senator gave an illustration of a person who owns the house and land adjoining a fishery and who may wish to rent that fishery. He says that such an owner would make an offer for it if he got the opportunity. There is the converse case where the owner of the land and house was not the former owner of the fishery— where the former owner was an absentee, a person resident outside the country, and where the owner of the house and land might be very glad to get the opportunity of renting the fishery for the first time if the Electricity Supply Board desired to let it.
Perhaps I should have said the former owners and occupiers.
I would imagine the Electricity Supply Board would be very reasonable in the matter, and that in the majority of cases the best offer they would get would come from former owners.
Would the Minister allow me to confer with him between this and the Report Stage, and see if we could draft an amendment?
Amendment, by leave, withdrawn.
I move amendment No. 4:—
Section 9, sub-section (2). To insert before the sub-section a new sub-section as follows:—
(2) Nothing in this section shall operate to authorise the Board to acquire compulsorily until after the 1st day of January, 1938, any fishery or fishing right from any person or the successors in title of any person who during the period of twelve months immediately preceding the passing of this Act has lawfully exercised a right of fishing with nets or a net in the fresh waters of the River Shannon within the meaning of the Fisheries Acts, 1842 to 1925.
If, after the 1st day of January, 1938, the Board proposes to acquire compulsorily any fishing right or rights from any person referred to in the preceding paragraph of this sub-section, the Board shall submit its proposals to the Minister for his approval and the power to acquire such fishing right or rights compulsorily shall not operate without the sanction of the Minister.
Before giving his sanction to the compulsory acquisition of any fishing right referred to in this sub-section the Minister shall be satisfied, after considering any objection made by or on behalf of the persons whose rights it is proposed to acquire, that such acquisition by the Board is necessary for the preservation or improvement of the salmon fisheries of the River Shannon or for the maintenance, working or development of the Shannon hydro-electric works.
This proposed new section raises again the question of the Abbey fishermen. I thought I might have drawn from the Minister some information as to whether the works that are proposed to be set going by the Electricity Supply Board, under this Bill, will necessarily interfere with the fishing practices—I leave out the word "rights" for the moment—of the Abbey fishermen. But I got nothing to enlighten me on that point, so whether they would have anything to do with the Lax weir or not I do not know. I do not know whether the new works will interfere with the Lax weir.
What I am seeking to do in the new section is to allow time to pass long enough to enable us to decide whether there has been any destruction because of the practice of the calling of the Abbey fishermen that cannot be altered otherwise than by the acquisition of their property. The Minister said we do not know much about the habits of salmon and it is still less clear as to what are the causes of the variations or the seasonal successes or failures of the Shannon fisheries at times. Up to date it is not clear at all to what extent the destruction of the salmon season, through the Electricity Supply Board works, has interfered with the fishery. The reports that have been published show that the year 1927 was a very good salmon year. The captures of the snap nets in that year were 6.5 per cent. of the whole of the fishing on the Shannon and the number of fish was 4.8 per cent. The year 1929 was not a good year. Again, the fish captured by snap nets mainly used by the Abbey fishermen was only 3.5 per cent of the total fish caught in the Shannon. In 1931 only 4.7 of the total of the fish taken in the Shannon fishery was caught in snap nets; so that the proportion of the fish caught by this form of fishing is very small as compared with the total catch every year. It has to be proved, but it has not yet been shown to the House—whatever private Committees may have at their disposal, certainly neither the Dáil nor the Seanad has information which would prove that the Abbey fishing above the Lax Weir has had any permanent detrimental effect upon the Shannon fisheries. The latest evidence comes from the reports of the inspectors. I have two such reports here, one for the 14th December and one for a later date, the 11th January. I will read those in regard to the rivers above the Abbey fishermen fisheries, and will give case after case showing where the fish are plentiful. "The River Mulkear and all its tributaries are heavily stocked, and in my opinion considerably exceed last year's stock." That is miles above the Abbey fishermen fisheries.
Another report says:—
"The general spawning season is practically at an end and has been a very successful one in many ways....
"The following are the principal districts and rivers in which the bulk of the spawning took place: The River Mulkear, from the new Bridge, Pallas, to Cappamore, fairly heavily stocked; from Cappamore to Bilboa Bridge, heavily stocked; from Bilboa Bridge to Kilcommon, heavily stocked. The Ballyvoreen tributary to the River Mulkear fairly well stocked; the River Kilmastulla, fairly heavy stock between Killaloe road-bridge and Shalee Railway Station; the River Newport from its junction with Mulkear to the upper reaches of Killoscully is fairly heavily stocked," and so on.
Some of the tributaries below the Abbey fishermen's fisheries are not so heavily stocked. The facts show that the fisheries above the Abbey fishermen's fisheries show signs of being revived considerably this year and prove that the Abbey fishermen's fishing has not impeded the course of the salmon up the river in a year which has been exceptionally dry.
I am not an expert on the habits of salmon any more than the Minister, but I know enough to say that it is not possible to arrive at a conclusion regarding fisheries and the prospect of the fisheries by an experience of one, two or three years. I am suggesting in this amendment that at least there should be time granted to enable tests to be made over a reasonable period after the Shannon works come into operation. I am suggesting three years from now, which would be from 1927 to 1938 and would leave a space of 11 years which would enable some judgment upon competent evidence to be given as to whether the Shannon fisheries have been damaged to such an extent by these particular works or not and whether other action that would be taken by a board such as is outlined would not be sufficient to save the fisheries without interference with others or with old established rights and practices of the fishermen. Then I want to leave the judgment of that matter to the Minister or authority set up by him as to whether they are satisfied that the case for the acquisition of these fisheries has been made. If, in that case, having sufficient evidence and having allowed a sufficient time to elapse for a proper judgment to be arrived at, the Minister is satisfied that these fisheries have to be acquired and killed, then I suppose there is nothing to be said. I do make the plea again, however, that until it is definitely proved that there is no other way to save the fisheries than destroying this very old-established right of working fishermen, the acquisition should not take place.
I think that is, in outline, the whole of the case I have to make. The drafting of this section may not be competently done but in the main it is following the drafting of the Bill in other parts. The intention, however, is that there should be a postponement of any action regarding the acquisition of such rights for three years, and that then evidence ought to be presented to the Minister, and an opportunity given for examination of that evidence by the persons whose rights are to be acquired, before a decision, confirming the intentions of the Board to acquire, shall be given by the Minister.
I am in favour of the section as drafted, because it covers much more than the operations of the Abbey fishermen. I would not like to see postponed until 1938 measures which are necessary for the preservation of the fisheries of the Shannon, which fisheries are worth, at a low calculation, £5,000,000. If this proposed section, as drafted, were passed, it would prevent the Board from putting some contrivance at the outfall of the Shannon Works, such as a contrivance that would lead the salmon up past the tail-race. The reason why I say that is this: where the tail-race joins the Shannon there is a separate fishery belonging to the owners of the Lax Weir. They have a separate fishery both at the weir itself and five miles down the river. As I understand the geography of it, the outfall of the Shannon works is below the Lax Weir and, therefore, nothing could be done to prevent the salmon from going up the tail-race, as they do now, and dropping their eggs to rot in the tail-race. Accordingly, I think that this amendment would be very destructive.
Senator Johnson used the argument that the Mulkear river is heavily stocked and that the Newport river also is heavily stocked. That shows me that the fisheries are interfered with, because the fish which escape the Lax Weir—a permanent structure more than half way across the river— have not enough water and run into the Mulkear and Newport rivers. I know that there are good spawning grounds in the Mulkear river but I should like to know what are the conditions in the spawning grounds in the tributaries higher up the Shannon. The fact that the Mulkear river and the Newport river are heavily stocked shows that the Shannon fisheries, so far as salmon are concerned, are very much interfered with. I do not like to say one word against the Abbey fishermen, but certainly as regards the Lax Weir, which is infinitely bigger and which is a permanent structure half way across the river and more, and other fisheries which I will not particularise, I think it would be very wrong to postpone the operation of this Act for three years more. By that time, I think that the Shannon fisheries would be effectually destroyed, and when that is done it might be hard to re-stock the river again. Moreover, this Bill provides for a number of things. I should say that what the Minister has said is perfectly right —that too many fish are killed, especially in the lower reaches. I do hope that what the Minister said will be carried out and carried out soon, namely, that a good many of the stake nets will be removed so as to give the fish a chance of coming up, and that that great barrier across the river of the Lax Weir—a permanent structure —will be curtailed to a considerable extent also. The Abbey fishermen— 40 or 50 of them—have had a fishery there for a long time, and they are fishing very well in the three or four miles of the river that they have above the Lax Weir. I hope that if any new leases of the fishing in that river are made they will be considered, but at the same time I think that in dealing with the fisheries of the Shannon, a very valuable national asset which, I say without hesitation, is worth more than £5,000,000 at the present time, the Board or some central authority should be given power to deal with the whole thing in the interests of the fishing of the Shannon itself.
I am afraid that Senator Johnson's amendment could not be accepted, because it would defeat the whole purpose of the Bill, which is to permit of the immediate acquisition of the fisheries of the Shannon and the immediate construction of the works necessary for the preservation of these fisheries. Neither do I think that the Senator would be able to sustain his argument that the construction and operation of the Shannon works have, in fact, done little or no damage to the fisheries. The fact that we are being pressed by a large number of complainants for compensation and that a number of them have already forced us to arbitration is proof to the contrary. The claim of the Lax Weir, to which the Senator has referred, was a huge one and, unfortunately, has been substantiated already before the arbitrator. That is, therefore, conclusive proof that very serious damage was done to the fisheries in that portion of the river. In fact, the Lax Weir has been virtually abandoned in recent years.
The Senator stated that we do not know a very great deal about the habits of the salmon. There is enough known about them, however, to enable certain conclusions to be drawn. Salmon are attracted by rapidly flowing water and, where a choice is offered them, they will prefer, as a general rule, to follow the strongest part of the stream. The tail-race in the Shannon meets it at a point below the Lax Weir, and the salmon meeting the strong current out of the tail-race almost invariably turn into the tail-race and make their way up towards the power house. They are unable to get beyond the power house and they lie in the tail-race for an indefinite time. In fact, it is claimed by some that they remain for the entire fishing season. In any event, the number of salmon passing up the river during the fishing season has decreased considerably and the fisheries above the tail-race have been injuriously affected. Various suggestions have been made from time to time for dealing with the situation, including the suggestion that a grating be put across the entrance to the tail-race, the carrying out of which would present considerable engineering difficulties. Apart from that, if there were a grating there it is doubtful whether a flow of ten cubic metres of water per second down to the old river would be sufficient to attract the salmon, and it is much more probable that they would lie in the river below the Lax Weir and in the deep pools in the Abbey fisheries. The nets operating there would capture a very large proportion of the salmon entering the river and very few of them would reach the spawning beds, with the result that in a few years the stock of salmon would become extinct. The tail-race has for the time being acted as a sanctuary for the salmon. It is problematical whether the fish will lie in the tail-race until the autumn no matter what steps are taken to improve the position there for them.
The choice appears to be either to destroy these fisheries, including the Abbey fishery, immediately, or destroy all the fisheries on the river ultimately. The position appears to be that there is no choice so far as the Abbey fishery and the Lax Weir fishery are concerned, but to acquire them. The proposal in the Bill is to acquire them and to enable those various measures to be taken which will permit the whole of the fisheries to be properly developed. We could not afford to wait for three years to do that, because damage is being done now. The measure of the damage is to be found in the claims for compensation already received and in the fact, about which there can be no dispute, that the spawning beds were during the periods of dry weather exposed, left high and dry, and the spawn was destroyed by birds. The effect of that very considerable destruction of the spawn will be noticeable on the fisheries in any event during the next two or three years. The damage is proceeding progressively, and it is necessary to take steps at once in order to prevent it recurring. That is why the Bill is necessary, so that the works can be begun in the earlier portion of this year.
I suppose it is very little use trying to press upon the Minister the desirability of reconsidering this point. Apparently his mind is very definitely made up, but he has enlightened us on one point, and I have been waiting for that enlightenment, and that is that it is intended also to acquire the Lax Weir. Whether it is intended that the Lax Weir fishing shall be destroyed also, or whether that will go on as part of the work under the auspices of the Board, and that only the Abbey fishermen shall be deprived of their fishery, remains to be seen. I take it from what has been said that really the plan of the scheme is that the Abbey fishermen shall be deprived of their rights, and that the fisheries of the Lax Weir will thereby be benefited and that that fishery will become the property of the Board. I take it that is roughly the intention?
Yes. The Lax Weir has been abandoned as a fishery.
It is going to be revived, I take it?
If it is revived, at any rate, it will be for the Board?
There is not much use in trying to persuade the Minister on this point, but I have done my share in urging him to adopt that course.
I can assure the Senator that it was only under considerable pressure that I was moved to bring forward this Bill. It is obviously not a popular measure.
I hope it will be possible to do something for the Lax Weir fishermen.
Amendment put and negatived.
I beg to move amendment No. 5:—
Section 9, sub-section (2). Before paragraph (a) to insert a new paragraph as follows:—
(a) to interfere with any public right of fishing in the tidal waters of the River Shannon.
This really is a corollary of an earlier amendment dealing with private rights and I am inclined to think there is not much use in asking that this interference with public rights should be formally inserted in the Bill, if the Minister is thoroughly satisfied that the Bill does not give any right of interference with the public rights.
I will not press this amendment.
Amendment, by leave, withdrawn.
Sections 9 to 13, inclusive, agreed to.
I beg to move amendment No. 6:—
Section 14, sub-section (4). To insert before the sub-section a new sub-section as follows:—
(4) In any case where a fishery or fishing right is being acquired by the Board, either by agreement or compulsorily, the following provisions shall have effect, that is to say: compensation shall be payable by the Board to every person who, for a period of not less than three months during the twelve months immediately preceding the date of acquisition, was employed by the owner of the property which is being acquired and whose earnings from such employment during that period formed the whole or a substantial part of the livelihood of such person. The amount of the compensation to be paid under this sub-section shall be such sum as, in the case of a property which is being acquired compulsorily, the arbitrator, or, in the case of a property which is being acquired by agreement, the Minister (or a person nominated by him), shall consider reasonable having regard to the loss of livelihood suffered by the aforesaid employed person in consequence of the acquisition of such fishery or fishery right by the Board, regard being had also to the likelihood of such person being continued in the employment of the Board.
This deals with another body of men who are interested, not the Abbey fishermen. It is competent for the Board under the Bill to acquire fisheries which are owned, let us say, by absentee landlords or owned by persons who have merely a proprietary right, and who employ other persons to do the work. Now it is proposed in the Bill to compensate the persons whose property is being acquired, but there is no assurance that the men who are to be disemployed as a consequence will be compensated, will be recompensed, out of the compensation money. This is a proposal to ensure that the persons who have been fairly regularly employed on these fishings will be compensated for the loss of their employment just as well as the owner of the property who has a profit interest in the fishery. It also provides that where the Board is proposing to take over the work and to continue the employment of those men—well, compensation does not follow. The general intention is that where men lose their employment as a consequence of the acquisition that the compensation will go to them as well as to the owners of the property. This is a case that has been argued many times in other circumstances, but I put it forward again very seriously in the hope that the Minister will agree to this amendment, or some other form embodying the same intention.
I think it should be clearly understood that the abolition of private fishing rights on the Shannon does not mean the abolition of Shannon fishing.
On the contrary, the whole purpose of the Bill is to increase considerably the value of the Shannon fisheries by a more scientific operation of them than is possible at present with the divers ownership of the fisheries.
The adoption of Senator Johnson's amendment would involve the acceptance of a new principle in these matters which might have very considerable reactions, namely, the principle of compensátion for consequential loss. The Government, in cases of this kind, accepts the principle that the acquiring party should pay compensation for the loss of rights. The Bill provides for the payment of compensation to any person who has a private right to fish in the Shannon and who is deprived of that right or may be prevented from exercising it. The right then passes to the Electricity Supply Board and will be exercised by the Electricity Supply Board. In so far as employment was given through the exercise of that right by the previous owners to persons, there is no reason to anticipate that substantially less employment, on the whole, will be given by the Electricity Supply Board in the exercise of that and other rights although no undertaking in that respect can be given, because, obviously, the plan of operations has not yet been determined and is not embodied in the Bill. The acceptance, however, in this Bill of that principle of compensation for consequential damage would have possible reactions upon the whole of the Government's programme and might produce an embarrassing situation in the future which would prevent useful public works being undertaken because of the necessity of acting in a similar manner in those cases as is proposed here. Therefore, I think the amendment must be resisted.
The Minister is not correct surely when he says that the acceptance of this amendment would involve the adoption of a new principle in Bills of this kind. It would merely mean the acceptance of what is a well understood and quite ancient principle —compensation for loss of employment as a result of the acquisition of services in the public interest. This principle has been adopted without any opposition whatever in the case of the Railways Acts of 1923 and 1924, of the Road Transport Act of 1933 and of numerous other measures. Indeed, in the Act establishing the Electricity Supply Board itself, the principle of the payment of compensation for loss of employment was accepted. It is a very serious consideration to acquire compulsorily certain rights or services and to accept the principle of compensation for the owners of those rights or services and throw to the winds the rights of those who earned a livelihood from the previous employers. I see no argument that could be advanced against that that could not, with equal force and with equal justice, be advanced against the payment of compensation to owners. In the Road Transport Act compulsory powers of acquisition were given as regards certain road transport services. The Act provided for compensation to the owners of those services by the acquiring authority, but at the same time it provided for compensation for any of the employees who were not absorbed in the new employment.
I agree that, as far as the road transport services were concerned, the compensation was entirely inadequate, largely due to the fact that they were new services and that none of the employees had long continuous service with any of the employers. But, in the case of the Railways Acts which were of a more important character, particularly the Act of 1924, we did certainly lay down definite terms of compensation and of absolute protection in all respects in regard to the future employment, prospects and rights of those employed. The people concerned in this amendment may not represent a very influential body. They may have no great power or influence, but these or any other fishermen who are likely to be affected in their employment as a result of the operations of this measure have the same rights as the railway men and the road transport workers had. I do not know exactly how many are likely to be affected, but it is quite likely, in view of the suggestion that there should be less fish caught and on certain reaches of the river a curtailment of operations, that a number of men will lose their employment. Therefore, I think that we would be doing a grave injustice if we did not make some provision for compensation to these men for the loss of their means of livelihood.
Would the Minister say whether the Abbey fishermen will get, in addition to compensation for any property that is taken from them, compensation for disturbance as well?
The Abbey fishermen are not affected by this amendment.
Will they get compensation for disturbance?
The Abbey fishermen are covered by sub-section (3) of Section 14.
Like Senator O'Farrell, I am astonished at the Minister objecting to this on principle. The principle has been accepted and embodied in legislation even on his own initiative and under his authority. In fact, this Bill itself embodies the principle of compensation for loss of employment in the case of the Abbey fishermen in addition to compensation for loss of their ownership rights. But there may be other men who are going to be disemployed as a consequence of the acquisition and probable closing down of the fishery by the Electricity Supply Board. I cannot say where they are, but this Bill gives such wide powers that one has to take time by the forelock. I do not know what is the position, for instance, with regard to the Lax Weir. The Minister informed us this evening that it is practically closed down. Supposing that it is wholly closed down, that there are some men employed by it who will not be employed henceforth, surely they have some right to consideration. If there is going to be given to the Lax Weir owners the amount of compensation they have put in a claim for, or supposing that the property is bought by the Electricity Supply Board, surely there is some claim in respect of the men who were employed by the Lax Weir Company and who did the work, such as it was, of running the fisheries. I do not know what the position of the Lax Weir is in regard to the men who were employed there, but I can see right through this Bill very wide powers being given to the Electricity Supply Board to acquire fisheries which they may or may not use. The exercise of such power may mean the stopping of the fisheries and the disemployment of certain men who are employed as wage earners. I think it is only reasonable to ask that when compensation is to be given to the owners that the workmen who lose their means of livelihood should also be compensated. I am astonished that this should be opposed as a matter of principle.
I would ask the Senator to leave the matter over until the Report Stage, so that I may have an opportunity of seeing what is involved in it.
Amendment postponed for Report Stage.
Question proposed: "That Section 14 stand part of the Bill."
In regard to this section, the Minister has informed us that the Electricity Supply Board is a public authority, a Government Department. If he is quite satisfied on that point the section as it stands is all right, and can be worked but, if it is not a public authority, the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919, cannot be applied because that Act can be applied only in the case of compensation payable by a Government Department or any local or public authority. I understand there is no judicial decision that the Electricity Supply Board is a Government Department or a local or public authority. On the other hand, I see by looking at the Shannon Electricity Acts of 1925 and 1927, that there is a special proviso that the Electricity Supply Board shall be regarded as a local authority for the purpose of ascertaining compensation under the Act of 1919. Since that Act was passed, I presume the Minister has got advice, on which he is prepared to act, that the Electricity Supply Board comes within that definition of a Government Department or a public or local authority. If he is satisfied on that I have nothing to say. But I would like to call his attention to it, particularly at the present time, so that there may be no catastrophe, such as would happen if in any case it was found that compensation could not be assessed at all. Reverting to Section 7, to which Senator Johnson called attention, the power of the Commissioners of Public Works to transfer to the Electricity Supply Board arises from the fact which I stated originally, rather than from the consideration that the Electricity Supply Board is a public authority.
I will have Senator Comyn's point looked into.
Question put and agreed to.
Sections 15 to 19, inclusive, agreed to.
Question proposed: "That Section 20 stand part of the Bill."
Perhaps the Minister would give some explanation of this section. As he may have done so elsewhere, perhaps he would repeat it, dealing with the necessity for lengthening the weekly close season, or the possibility of lengthening it. There are apprehensions on the part of drift net fishermen from some parts of the river with regard to that question. Formerly the season was simply from Saturday morning until Monday norning. Now it may be from Saturday morning until Tuesday morning which would be much more serious. That is the representation, from the point of view of the fishermen, and I should like if the Minister would give some explanation as to the necessity for taking this power.
The case is that those who are the expert advisers of the Government in these matters have come to the conclusion that, under present circumstances, in a long estuary like the Shannon, there is reason to believe that the existing close season is not long enough to allow a fair proportion of the fish to escape the estuary nets. They propose, therefore, that the time be increased by 24 hours. It is recognised at once that it may be possible to reduce again the weekly close season to the present 48 hours, when the Shannon fisheries have been acquired by the Electricity Supply Board, and the stake weirs in the estuary have been reduced. Having regard to the run of fish at present, the general conclusion concerning the salmon fisheries has been formed that the existing close season is too short to permit a fair number of fish to get up the river. Power is taken in the section to permit a reduction of the close season again to the existing 48 hours, as soon as the Minister for Agriculture is satisfied.
That is, it would be contemplated if the measures taken under the Bill are reasonably successful that the old close season will be reverted to. Apparently the old close season was not too short formerly.
Question put and agreed to.
Question proposed: "That Section 21 stand part of the Bill."
I should like the Minister to give a little more explanation of this section. It is understood that the intention for the first year is that the number of drift nets licensed to fish shall not exceed 70, and in the case of draft nets shall not exceed 25. The explanation has been given that these are the numbers that have been fishing in the last year, and the number of licences issued. The Minister stated that it is because the estuary of the river is over-fished that this Bill is necessary.
I stated that there are too many stake weirs.
That it is over-fished. I have the notion that the operation of this section, coupled with the next section, is to make quite sure that by Parliamentary action the public right of fishing will be interfered with. Hitherto licences have been issued on application and definite limitation has not been possible. Now, limitation is specifically put forward in the Bill. In Section 22 there is reference to snap nets. We have not merely a limitation of numbers but an actual prohibition of snap nets in the tidal waters, so that all types of fishing are intended to be maintained except snap nets. I should like if the Minister could give some more light on the general policy involved in that.
The whole purpose of these two sections is to prevent any increase in net fishing in the estuary. The numbers set out there for drift and draft nets permit of the issuing of licences in the future to the same extent as in the past. The number of drift net licences issued last year was, I think, 64 or 68 and the number in the previous year was the same, and there is even a slight margin there which permits of an increase in the number. The number of draft net licences was about the same, 25 or under. There have been no snap net licences issued for fishing in the estuary in recent years at all. The most recent of such licences issued were in 1927, in which year two such licences were issued, but, since, there have been none issued, so that, in fact, nobody is being injured by the restrictions which are being imposed by these two sections. They will permit of the issuing of licences to everybody who has been engaged in one or other of these kinds of fishing in the estuary of the Shannon in recent years but will not permit of any increase in their number—an increase which might otherwise occur in consequence of the restriction on the private right of fishing in fresh waters which the Bill imposes.
Section 21 agreed to.
After the passing of this Act no licence shall be issued under the Fisheries Acts, 1842 to 1925, for fishing with a snap net in the tidal waters of the River Shannon within the meaning of those Acts.
I move amendment No. 7:
Section 22. To add at the end of the section the words "provided that this section shall not apply for a period of three years after the passing of this Act to any person or the successors in title of a person who during the period of twelve months preceding the passing of this Act has lawfully exercised a right of fishing with a snap net in such tidal waters."
This follows immediately on what the Minister has said. My information is that, as a matter of fact, the licences which have been issued hitherto to the Abbey fishermen have included licences to fish in the tidal waters. The Abbey fishermen licences —12 in number—issued to them every year always entitled them to fish in tidal waters, and I understand that the Lax Weir people also had certain licences to use snap nets in the tidal waters. I suspect that in this case the purpose of putting this section in the Bill has nothing to do with the use of snap nets because they would be affected otherwise, but that it has to do with the prohibition of the use of snap nets in tidal waters, because there has been a legal controversy between the alleged rights of the Lax Weir people to certain fishing in the tidal waters and the claim that the Abbey fishermen have put forward as to their immemorial rights to this fishing. If this right is taken from them by this Bill in this form and if there is an increase in the compensation to be given to the Lax Weir people, because of the alleged right they have over certain tidal waters, the position of the Abbey fishermen in respect to their compensation will be detrimentally affected.
It has not been suggested that the Lax Weir people are going to get compensation for any right the existence of which they cannot prove to the satisfaction of the arbitrator. Whatever rights they have are being acquired, but it is for the arbitrator to determine what are their rights. This particular Section 22 has no relation whatever to the situation of the Lax Weir Company. It arises entirely out of the fact that no snap net licences have, in fact, been issued and it is desired to prevent any increase in that form of fishing in the tidal waters of the Shannon and this section is put in in order to prevent any such increase taking place.
The position, of course, is that the Abbey fishermen's compensation will have something to do with the possibility of their transferring their skill and labour to some other profitable occupation. They are being deprived of their fishing rights with snap nets in the fresh waters and now in the tidal waters, and by the limitation of the number of licences for drift or draft nets, they will not be enabled to follow the occupation of fishing in any other waters of the Shannon.
The rights on the tidal waters were public rights.
Yes, they were public rights of fishing but—I do not know what the wording of the licence may have been—it seems to be clear that the licences that were issued entitled these Abbey fishermen to fish in the tidal waters, so that these snap net licences have, in fact, been issued to the Abbey fishermen in recent years. That is definitely a matter of conflict between the Minister's information and the information I have, but it is clear that this particular section is directed against the Abbey fishermen's rights. They make the claim, I understand, that they have certain rights of fishing in the tidal waters—certain legal rights to fish in the tidal waters, by pre scription or otherwise—and if this Act deprives them of any other right as a matter of law, any property they may have in that right goes automatically.
I may be misunderstanding the position, but what I do understand is that they claim to have certain legal rights in respect to their fishing in tidal waters in the neighbourhood of their fisheries. If that is so, and if this is enacted, that right is removed at once by law, so that there is a treble deprivation of certain rights which these Abbey fishermen have enjoyed.
I am not aware of any such legal right. The net fishing in the tidal waters was a public right, and no doubt the Abbey fishermen could exercise that public right the same as others.
Does the Minister know whether it is a fact that the Lax Weir people claim to have a private right in those waters?
Not that I am aware of. Perhaps I should not answer that without examining the matter more fully, but in fact there have been, as the Senator knows, a large number of licences for drift and draft net fishing in those waters issued every year—up to 100 altogether—but in recent years no snap net licences have been issued at all. They could, however, have been issued if applied for, because it was a public right.
I shall make further inquiry into this.
If they had not such a right, your amendment would not affect them at all. They must have lawfully exercised a right to fishing with snap nets.
And if they had not the right, it would not affect them in the slightest degree, and if they had, they ought to get it.
Of course, the "lawful exercise" point is in Section 23.
Section 22 and 23 agreed to.
Title agreed to.
Bill reported to the House.
Report Stage ordered for Wednesday, 23rd January.