ANGLERS' RIGHTS

Hawke's Bay Herald-Tribune, Issue 194, 2 September 1937, Page 8

ANGLERS' RIGHTS

Regulations Held To Be Defective FISHING IN ROTO AIRA Both informations in the test case involving the right of- Europeans to fish for "Irout in Lake Eoto Aira, , in the Taupo district, were dismissed in a reserved judgment by Mr. C. R. Orr Walker, S.M., in the Magistrate'a Court. Eight proaiinent Auckland sportsmen were charged, with' two breaches under the Taupo trout fishing regulations, 1929, and the magistrate held that the sectiou affecting oue breach was void, and that the regulations covering the other breacb had omitted to provide for the circumstnnces that had arisen, The case brought by the Departmens of Internal Affairs against Cecil A, Whitney, Auckland, merchant, was taken as a test . case. It was alleged that he fished for trout in Lake Eoto Aira on March 28 last in breach of the regulations anade with respect to the taking of trout in that lake, and that, being tbe holder of a licence entitling him to fish in any part of the Taupo district, as defined by regulation, except in Lake Eoto Aira, he fished for trout there. It was * admitted, . the •magistrate stated, that the first regulation alleged to have been broken was also referred to in the Taupo trout fishing regulations Order-in-Council. These purported to.have the au.thority of the Native Land Claims Adjustcnent Act, 1921-22, granting the Governor-General permission to make regulations authorising the Ngati Tuwharetoa tribe to take trout or other fish in Lake Eoto Aira subject to conditions he thought fit to im£Ose. ^ • A Regulation Ultra Vires "The Governor-General made certain regulations under this Act," the magistrate continued, "He made it lawful for any native of the tribe to take trout from tbe lake, without a licence or payment of any fee. He then gave power to any one of tbe tribe to autborise in writing any otber native to take trout. Such power seems to be in difect conflict with tbe provisions of -tbe Act, "Tbe • Governor-General then provides that, except as provided in these regulations, no person is entitled to fish in the lake, notwithstdnding that he may be tbe .bolder of a licence to fish in any acclimatisation" jdistrict, or of a licence to. fish only Inj|the Eotorua district.- There ;is no express power to make this regulation, a.mi . it is there•fore ultra vires and void/, There are no penaltiea provided by the section in question, and xt xs • difiicuit to undcrstand why the provisions' of.- the regulations were not made statutory. 3 ' . Counsel for: defendant had contended that tbere was no power in the Eisheries Act wholly to prdhibit fishing in any particular waters within the boundaries of the proclaimed district, such as Lahe Eotoi.Aira, Power was ^ven - entirely ;'to"prehibit fishing in certain waters for limited pefiods. aind in' special circumstances, the magistrate said."> However, except' f or 'these special purposes \there was- no general power to- prohibit fishing in any particular laike^ Eeferring to the second information, the magistrate said it was admitted that defendant was holder of a licence issued under the regulations of the Taupo trout fishing district, which, for some xeason that was not apparent, had been defined to includo ' Lake Eoto Aira, wben it could bave been excluded if its exclusion was really intended by tbe Legislature, Tbe form of licenoe did not exclude or xefer to Lake Eoto Aira, It was ostensibly a licence to fish in any part of the Taupo district, subject to tbe regulations in force. . "In cny view a regulation was necessary containing appxopriate words to tbe effect that a licence-bolder shall not fish in any waters expressly excluded from or not included in • tbat licence," said tbe magistrate. "Otber than the regulation I have held to be ultra vires, there is no prohibitory clause against fishing in Lake Eoto Aira. If it was intended simply to prohibit fishing by Europeans in Eoto Aira and to penaliso such persons, then the regulations havei omitted to provide for the circumstances that bave arisen in this case. "The intention has not been carried into effect, and the Court cannot supply the omission. The Court must see that there are words to meet the supposed offence before the penalty clause can be applied." Drafting Legislation Dismissing both informations, the magistrate said that if his decision were sound, it would not be difiicult to draft a provision for insertion in tbe appropriate Statute absolutely prohibiting all persons except natives of tbe Ngati Tuwharetoa tribe from fishing in Lake Eoto Aira. Sections covering the matter had never done more than provide for members of the tribe having a right, and not tho sole right, to take fish from the lake. "Parliament has never shown an intention to go furthor than this," said the magistrate. "The Executive has by Order-in-Council attempted, in my opinion, unsuecessfully to enact a law giving the free right to fish in the lake to certain other natives than members of that tribe and to prohibit Europeans from fishing there, a law entirely outside the ambit of the Statutes." At the request of counsel for the department, the magistrate agreed to fix costs as security l'or appeal.