Malicious Damage to Fisheries.-The Malicious Damage Act, 1861 (n), as amended by the Salmon Fisheries Act, 1873 (o), made it a criminal offence to put lime or other noxious substances into private fisheries or into salmon rivers with intent to destroy fish (p). This has been replaced by sect. 9 of the new Act (q). The Salmon Fishery Act, 1861.-Until the passing of the new Act the principal enactment dealing with pollution of fisheries was the Salmon Fishery Act, 1861 (r), sects. 5, 6, and 7. This is now replaced by sect. 8 of the present Act. Sect. 5 of the old Act was as follows: 66 Every person who causes or knowingly permits to flow, or puts or knowingly permits to be put, into any waters containing salmon, or into any tributaries thereof, any liquid or solid matter to such an extent as to cause the waters to poison or kill fish, shall incur the following penalties; that is to say (1) Upon the first conviction a penalty not exceeding five pounds; (2) Upon the second conviction a penalty not exceeding ten pounds, and a further penalty not exceeding two pounds for every day during which such offence is continued: (3) Upon a third or any subsequent conviction a penalty not exceeding twenty pounds a day for every day during which such offence is continued, commencing from the date of the third conviction : But no person shall be subject to the foregoing penalties for any act done in the exercise of any right to which he is by law entitled, if he prove to the satisfaction of the court before whom he is tried that he has used the best practical means, within a reasonable cost, to render harmless the liquid or solid matter so permitted to flow or to be put into waters; but nothing herein contained shall prevent any person from acquiring a legal right in cases where he would have acquired it if this Act had not passed, or exempt any person from any punishment to which he would otherwise be subject, or legalize any act or default that would but for this Act be deemed to be a nuisance or otherwise be contrary to law." Sects. 6 and 7 provided for an appeal to the High Court on the question of fact of the cost of remedying the pollution, and it seems that if the defendant could prove that a permanent remedy would cost more than 100%., the complainant's action was stayed. (n) 24 & 25 Vict. c. 97, s. 32. (q) Infra, p. 39. Under the Act of 1861 the prosecution was faced with three difficulties: (1) To prove that the waters contained salmon; (2) To prove that the polluting matter had poisoned or killed fish ; (3) In cases where the defendant established a right to pollute, to combat the contention that he had used the best practical means within a reasonable cost to render the liquid or solid matter harmless. This was the more difficult if the defendant, as was usually the case, alleged that the expense involved would exceed 1007., because the complainant was then compelled to submit to the uncertainty, delay, and heavy expense of High Court proceedings, or else to abandon his action. In practice the result was to impose a 1007. limit on proceedings under sect. 5. The Act of 1923.--The general effect of the new provisions (s) is as follows: (1) Protection is given not only to fish but also to the spawning grounds, spawn, or food of fish. (2) The prosecution is now only required to prove (a) that the waters contain fish, and (b) that the liquid or solid matter complained of has caused the waters to be injurious to fish, spawn, or food of fish. (3) It will still be open to a defendant, who can prove that he has a right to pollute, to show that he has used the best practical means within a reasonable cost to prevent the matter complained of doing injury to fish, etc. But the old High Court procedure is abolished, and it is now for the magistrates having regard to the circumstances of the case to decide what may be regarded as reasonable expense. (4) The penalties are increased to 50l. and 5l. a day. (5) Notice of future works is required. (6) Proceedings may only be instituted by a fishery board or a person certified by the Minister to have a material interest in the waters in question. (7) Persons who are continuing a manufacturing process in operation at the date of the passing of the Act are allowed to set up the defence open to those who can establish a legal right to pollute, viz. that they have used the best practical means within a reasonable cost to prevent injury to fish, etc. (s) See notes to s. 8, infra, p. 36. General Result of the Act of 1923.-So far as concerns pollution the Act is admittedly a compromise, but it is one which is considered satisfactory by representatives of fishery interests. It is hoped that without causing serious hardship to those interested in industry it will be possible materially to improve the condition of our rivers and other waters now that proceedings can be brought without exaggerated expense, and by those persons and public bodies who are most concerned to protect fisheries from pollution. CHAPTER VI. THE SALMON AND FRESHWATER FISHERIES ACT, 1923. THIS chapter contains a reproduction of this Act as it appears in the Stationery Office copies with the omission of the marginal notes. SALMON AND FRESHWATER FISHERIES ACT, 1923. [13 & 14 GEO. 5, CH. 16.] ARRANGEMENT OF SECTIONS. PART I. PROHIBITION OF CERTAIN MODES OF TAKING AND DESTROYING FISH. Section 1. Prohibition of fishing with lights, spears, &c. 2. Prohibition of using roe. 3. Prohibition of taking unclean and immature fish. 4. Prohibition of disturbing fish spawning. 5. Saving for acts done for artificial propagation or scientific purposes. 6. Prohibition of certain modes of working nets. 7. Prohibition of use of certain nets. 8. Protection of waters containing fish from poisonous matter and trade effluents. 9. Prohibition against using dynamite, and noxious substances for destruction of fish. 10. Amendment of the Malicious Damages Act. PART II. OBSTRUCTIONS TO PASSAGE OF FISH. 11. Prohibition of placing or using fixed engines for taking or obstructing salmon or migratory trout. 12. Prohibition of using certain dams for taking salmon or migratory trout. Section 13. Rules for fishing weirs. 14. Rules for fishing mill dams. 15. Regulations as to boxes and cribs in weirs and dams. 16. Power of fishery board to acquire obstructions or fisheries. 17. Restriction on taking salmon or trout above or below an obstruction, or in mill races. 18. Supply of water to dams and fish passes. 19. Penalty for making obstructions without fish passes. 20. Power for fishery board to construct and alter fish passes. 21. Approval of fish pass by Minister. 22. Penalty for injuring or obstructing fish pass or free gap. 23. Erection of gratings to prevent the ingress of salmon or migratory trout into artificial channels. 24. Power for fishery board to place gratings in watercourses. 25. Limitation on the time for claiming compensation. PART III. TIMES OF FISHING AND SELLING, AND EXPORTING FISH. Salmon and Trout. 26. Annual close season for salmon. 27. Weekly close time for salmon. 28. Removal of fixed engines during close season and close time. 29. Penalty for obstructing salmon in close season. 30. Prohibition on selling salmon at certain times. 31. Close season and close time for trout. 32. Prohibition against sale of trout. 33. Provisions as to exportation of salmon and trout. 34. Restrictions on the consignment of salmon or trout. Freshwater Fish. 35. Close season for freshwater fish. 36. Prohibition on using eel baskets, &c., at certain times. 42. Consents in case of Crown and certain other foreshore and land. 43. Application of Part IV. to River Lee. PART V. PROVISIONS AS TO FISHERY BOARDS. 44. Application of Act to fishery boards and districts. |