Fisheries (Statute Law Revision) Act , 1949

PART I. Preliminary and General.

1 Short title and collective citation.

1.—(1) This Act may be cited as the Fisheries (Statute Law Revision) Act, 1949.

(2) This Act shall be included in the Acts which may be cited together as the Fisheries Acts. 1842 to 1949.

2 Commencement.

2.—This Act shall come into operation on such day as shall be fixed by order of the Minister either generally or with reference to any particular Part or provision and different days may be so fixed for different Parts and different provisions of this Act.

3 Interpretation.

3.—(1) In this Act—

the expression “the Acts” means the Fisheries Acts, 1842 to 1944 and includes the Fisheries (Oyster, Crab and Lobster) Act, 1877 and the Act of 1949;

the expression “the Act of 1842” means the Fisheries (Ireland) Act, 1842;

the expression “the Act of 1848” means the Fisheries (Ireland) Act, 1848;

the expression “the Act of 1850” means the Fisheries (Ireland) Act, 1850;

the expression “the Act of 1863” means the Salmon Fishery (Ireland) Act, 1863;

the expression “the Act of 1924” means the Fisheries Act, 1924 (No. 6 of 1924);

the expression “the Act of 1925” means the Fisheries Act, 1925 (No. 32 of 1925);

the expression “the Act of 1939” means the Fisheries Act, 1939 (No. 17 of 1939);

the expression “the Act of 1949” means the Fisheries (Amendment) Act, 1949 (No. 18 of 1949);

the expression “bag net” includes a fixed engine of similar construction to a bag net;

the word “box”, in relation to a fishing weir or a fishing mill dam, includes a crib or cruive;

the word “dam” means any dam, weir, dyke, sluice, embankment or other structure built or placed in or in connection with any river for or in connection with the sustaining of water for any purpose;

the expression “fish pass” means a channel for the free run or migration of fish in, over or in connection with an obstruction in a river, lake or watercourse and includes a fish ladder or any other contrivance which facilitates the passage of fish;

the expression “fishing engine” means any engine, net or other instrument whatsoever capable of being used for the taking of fish;

the expression “fishing weir” means any erection, structure or obstruction, which—

(a) is fixed to the soil across or partly across a river,

(b) is used solely for the purpose of taking or facilitating the taking of fish,

(c) incorporates one or more openings wherein fish may be taken, and

(d) is not a head weir;

the expression “fixed engine” means any engine, being—

(a) a stake net, or

(b) a bag net, or

(c) a fixed draft net, or

(d) a head weir, or

(e) any net, implement, engine or device, fixed to the soil or secured by anchors or held by hand or made stationary in any other way and used solely for the purpose of taking or facilitating the taking of fish, not being a fishing weir or a fishing mill dam;

the expression “free gap” means a free gap in a fishing weir in accordance with section 9 of the Act of 1863;

the expression “head weir” means the fixed engine commonly called a head weir or an ebb and flow weir;

the word “heck” means a grating mounted at the upstream end of a box in a fishing weir or fishing mill dam and so constructed as to prevent the passage of fish without obstructing the flow of water;

the word “inscales” means a pair of gratings mounted at the downstream end of a box in a fishing weir or fishing mill dam and converging towards the centre in the upstream direction to form between the upstream ends a vertical gap, the effect of the arrangement being to permit the passage of fish into the box and hinder their escape therefrom;

the expression “the Minister” means the Minister for Agriculture;

the expression “salmon river” means any river frequented by salmon;

the expression “stake net” includes a stake weir and any fixed engine of similar construction to a stake net.

(2) References in this Act to any enactment shall be construed as references to that enactment as amended by any subsequent enactment.

(3) This Act shall be construed as one with the Acts.

4 Interpretation of expressions “fixed net,” and “fixed engine” in the Acts.

4.—For the avoidance of doubts it is hereby declared that, notwithstanding anything contained in section 1 of the Act of 1850, the expressions “fixed net” and “fixed engine”, where they occur in the Acts, shall be construed as excluding and as having always excluded a fishing weir and a fishing mill dam.

5 Repeals.

5.—The enactments specified in column (2) of the Schedule to this Act are hereby repealed to the extent mentioned in column (3) of the said Schedule.

PART II. Miscellaneous powers and duties of the Minister.

6 Amendment and revocation of certain definitions.

6.—(1) The Minister may by order amend or revoke any definition made under any of the following enactments—

(a) sections 22 and 27 of the Act of 1842,

(b) section 9 of the Fisheries (Ireland) Act, 1845,

(c) sections 21 and 44 of the Act of 1850,

(d) section 17 of the Act of 1863, and

(e) section 10 of the Fisheries (Ireland) Act, 1869.

(2) The provisions of subsections (2), (3), (4) and (5) of section 28 of the Act of 1925, as amended by section 10 of the Courts of Justice Act, 1936 (No. 48 of 1936), shall apply in respect of any order made under subsection (1) of this section.

7 Amendment of section 28 of the Act of 1925.

7.—In subsection (4) of section 28 of the Act of 1925, the words “twenty-eight days” shall be substituted for the words “one fortnight”.

8 Power of Minister to grant exemption permits for the purposes of artificial propagation, etc.

8.—(1) The Minister may, whenever and so often as he thinks fit, by permit in writing and subject to such conditions as he may specify in the permit authorise any named person to do at any season of the year all or any of the following things—

(a) to catch or attempt to catch and to have in his possession any specified kind of fish for the purpose of artificial propagation, transplantation, the stocking, restocking or improvement of any fishery or for any scientific purpose and for the purpose of so catching to have in his possession, erect and use any net, trap or other engine of a specified kind,

(b) to buy or sell ova and fry of any specified kind of fish for the purpose of stocking or restocking or any scientific purpose.

(2) A permit under subsection (1) of this section shall not authorise anything to be done in relation to a several fishery otherwise than with the consent of the owner thereof.

(3) Notwithstanding anything contained in the Acts, a person to whom a permit is granted under subsection (1) of this section and any other person acting under the directions of such first-mentioned person may, subject to the conditions specified in the permit, do any of the things authorised by the permit.

PART III. Boards of Conservators.

9 Right to vote at elections of conservators.

9.—(1) (a) No person shall be entitled to vote at an election of conservators in respect of the licence duty on a fishing engine, except the person whose name is contained in the licence issued in respect of such fishing engine.

(b) Paragraph (a) of this subsection shall not be construed as affecting section 93 of the Act of 1939.

(2) The holder of a fishing licence issued by a board of conservators for a fishery district shall not be entitled to vote in respect of the licence duty on the engine to which such licence relates at an election of conservators for an electoral division of such fishery district other than the electoral division specified in such licence.

(3) Any person who is, by virtue of section 14 of the Act of 1939, entitled to vote at an election of conservators for an electoral division to be held in a particular year shall—

(a) be deemed, for the purpose of the choosing of the chairman to preside at the meeting for such election, a person who has paid licence duty for such year in such electoral division, and

(b) be eligible to be chosen as chairman of such meeting.

PART IV. Licences for fishing for salmon, trout and eels.

10 Rescinding of resolution under section 12 (2) of the Act of 1925.

10.—A board of conservators may by resolution rescind any resolution passed by them under subsection (2) of section 12 of the Act of 1925, and such first-mentioned resolution shall come into operation on the expiration of the year during which it was passed.

11 Licences for certain fishing engines to be issued in electoral divisions in which engines situate.

11.—Where an application is made to a board of conservators for a licence for a fishing engine (being a fixed engine, a box in a fishing weir or a fishing mill dam or an eye, gap or basket for taking eels in or on a fishing weir or a fishing mill dam) such licence shall be issued in the electoral division in which such engine is situate.

12 Amendment of section 23 of the Shannon Fisheries Act, 1935.

12.—There shall be inserted at the end of section 23 of the Shannon Fisheries Act, 1935 (No. 4 of 1935), the following subsection—

“(3) Where a person is convicted of an offence under the Fisheries Acts, 1842 to 1949, or this Act or any instrument made thereunder, such person shall not be entitled to any preferential right to obtain a licence under this section.”

PART V. Regulations as to Nets.

13 Salmon nets not to be used at mouths of narrow rivers or within half a mile seaward or inwards of mouths of rivers.

13.—(1) It shall not be lawful for any person (other than the owner of a several fishery within the limits thereof) to shoot, draw, or use any net for taking salmon at the mouth of any river or within half a mile seaward, or half a mile inwards or along the coast from the mouth of any river.

(2) It shall not be lawful for any person (other than the owner of a several fishery in the whole of a river and its tributaries within the limits of such several fishery) to shoot, draw, or stretch any net entirely across the mouth or across any other part of a river.

(3) If any person contravenes any of the preceding subsections of this section, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine of not less than one pound and not more than ten pounds and a further fine of five shillings for every fish taken by means of any net used in the commission of the offence.

(4) Where a person is convicted of an offence under this section every net in respect of which the offence was committed shall, as a statutory consequence of conviction, stand forfeited.

(5) Where the mouth of any tributary river has been defined under section 21 of the Act of 1850 references in the preceding subsections of this section to the mouth of any river shall be construed as including references to the mouth of such tributary river.

PART VI. Fixed Engines, Fishing Weirs, Fishing Mill Dams and other obstructions to the passage of fish.

14 Amendment of section 33 of the Act of 1939.

14.—Section 33 of the Act of 1939 is hereby amended in the following respects—

(a) the following subsection shall be substituted for subsection (1)—

“(1) It shall not be lawful for any person (other than the Electricity Supply Board in respect of a fishing weir erected for the capture of eels) to erect in the freshwater portion of any river or lake any fishing weir, fishing mill dam or fixed engine”;

(b) in subsections (2) and (3) the words “fishing weir, fishing mill dam or fixed engine” shall be substituted for the words “weir or other fixed engine” where the latter words occur.

15 Amendment of section 34 of the Act of 1939.

15.—(1) Section 34 of the Act of 1939 is hereby amended in the following respects—

(a) the following subsection shall be substituted for subsection (1)—

“(1) It shall not be lawful for any person to use in the freshwater portion of any river or in any lake any fishing weir, fishing mill dam or fixed engine, unless such fishing weir, fishing mill dam or fixed engine was in existence and was lawfully used during the open season of one or more of the three years 1936, 1937 and 1938.”;

(b) in subsections (2) and (3) the words “fishing weir, fishing mill dam or fixed engine” shall be substituted for the words “weir or other fixed engine” wherever the latter words occur.

(2) Nothing in section 34 of the Act of 1939 shall apply to the use by the Electricity Supply Board of a fishing weir erected by the said Board for the capture of eels.

16 Amendment of section 29 of the Act of 1939.

16.—Subsection (3) of section 29 of the Act of 1939 is hereby amended by the deletion of the words “Where a notice has been served under subsection (1) of this section on the occupier of a fishing weir, and such occupier has not complied with the requirements of such notice, the following provisions shall have effect, that is to say:—” and the substitution in lieu thereof of the following—

“Where—

(i) a notice has been served under subsection (1) of this section on the occupier of a fishing weir, and

(ii) either—

(I) such occupier has not duly made, in relation to the notice, an application under subsection (2) of this section, or

(II) such occupier has duly made, in relation to the notice, an application under the said subsection, but the application has been refused, and

(iii) such occupier has not complied with the requirements of the notice,

the following provisions shall have effect, that is to say:—”.

17 Penalties for fishing in or near free gaps in fishing weirs and obstructing free gaps.

17.—(1) If any person—

(a) uses any fishing engine in a free gap, or

(b) uses any fishing engine (not being a rod and line) within fifty yards above or below any part of a fishing weir, or

(c) places any obstruction in the free gap of a fishing weir, or

(d) uses any contrivance or does any act whereby fish may be scared, deterred or in any way prevented from freely entering and passing up and down a free gap at all periods of the year, or

(e) places any bridge, board, cloth or any other thing whatsoever in, over or across a free gap in a fishing weir, except a temporary bridge or board during the time only when the persons engaged in the fishing of the said weir are passing over the free gap,

such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to—

(i) in the case of a first offence under this section, a fine of not less than five pounds and not more than twenty pounds, and,

(ii) in the case of a second or any subsequent offence under this section a fine of not less than ten pounds and not more than fifty pounds.

(2) Where—

(a) the owner or occupier of a fishing weir is charged under subsection (1) of this section with the offence of placing an obstruction in the free gap in such fishing weir, and

(b) it is proved that such obstruction was placed in such free gap,

it shall be presumed, until the contrary is shown, that such obstruction was placed in such free gap by him.

(3) Where a person is convicted of the offence of placing an obstruction in the free gap in a fishing weir, the Minister may cause such obstruction to be removed and any expenses incurred by the Minister under this subsection shall be a debt due by such person to the Minister and may be recovered as a simple contract debt in any court of competent jurisdiction.

18 Rules as to boxes in salmon fishing weirs and fishing mill dams.

18.—(1) In this section the expression “salmon weir” means any weir being—

(a) a fishing weir used for taking salmon, or

(b) a fishing mill dam used for taking salmon.

(2) The following rules shall be observed in relation to the construction and use of boxes in salmon weirs—

(a) the surface of the floor of the box shall be level with the natural bed of the river,

(b) the inscales and the heck of the box shall be capable of being removed and opened up,

(c) the bars of the heck of the box shall be placed perpendicularly,

(d) the inscales and the heck of the box shall be so constructed that no bar or part of a bar is nearer to any other bar or part of a bar than two inches,

(e) the box shall not be built over or in any other manner hidden from public inspection.

(3) Where the Minister is satisfied that sea trout form the principal part of the fish caught in a salmon weir, he may, if he thinks fit, by order declare that paragraph (d) of subsection (2) of this section shall, in relation to such salmon weir, have effect as if the words “one and a quarter inches” were substituted for “two inches”.

(4) If any person uses or constructs any box in a salmon weir in contravention of subsection (2) of this section, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds.

(5) Where a person is convicted of an offence under this section in relation to any box in a salmon weir, the Minister may cause the parts of the said box in respect of which the offence was committed to be removed and may recover the expenses incurred in such removal from such person as a simple contract debt in any court of competent jurisdiction.

19 Construction of guiding walls appurtenant to fishing weirs and fishing mill dams.

19.—(1) In this section, the expression “guiding wall” means any spur or tail wall, leader or outrigger.

(2) (a) There shall not be attached to any fishing weir or fishing mill dam in a river any guiding wall (other than one connecting the boxes of such fishing weir or fishing mill dam with the bank of the river) of greater length than twenty feet measured from the upstream or downstream face of such fishing weir or fishing mill dam along the centre line of such guiding wall.

(b) There shall not be attached to any fishing weir any guiding wall which has the effect of narrowing up or preventing the ingress and discharge of water through or from the free gap in such fishing weir.

(c) If any fishing weir or fishing mill dam has any guiding wall in contravention of paragraph (a) of this subsection or any fishing weir has any guiding wall in contravention of paragraph (b) of this subsection, the following provisions shall apply—

(i) the occupier thereof shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds and also a further fine not exceeding five pounds for every day during which such guiding wall is allowed to remain;