NETTING IN TIDAL WATERS

Manawatu Herald, Volume XXVIII, Issue 3723, 17 November 1906, Page 3

NETTING IN TIDAL WATERS

THE TOKOMAIRIEO INFORMA TIONS DISMISSED.

Mr G. Crnickshank, S.M., delivered liis reserved decision (writes t!io Milton correspondent of the Otago Witness) in the cases of the Otago Acclimatisation Society against Alexander Campbell, D. Harris Hastings, Thomas McGill, and John McGill, for fishing with a net at the month of the Tokomairiro River: — These are four informations all heard together by consent against Milton residents for netting in the Tokomairiro River. Tlu facts are admitted to be correctly sst out in a report by Mr Deans sent into the Acclimatisation Society at its meeting in Dunedin. The water in wh'ch the defendants were netting was a part of the river in which the tide ebbs and flows, and I take it that the water at that part of the estuary would be brackish. Having thus settled the facts, we turn to the law. Now, at common law, every river in which the tide ebbs and flows is an arm of the sea as high up the river as the tide flows and reflows “ The common people of England have regularly a liberty of fishing in the sea, creeks and arms thereof, on navigable rivers within the tides. This extends not only over the open sea, but over all bays, creeks, ports, havens, arms of the sea, and tidal rivers up to the ■reach of the tide’’ (see “Hill on Sea Shore”). The right to fish in the territorial waters of the colony is vested by common law in the public of the colony, but such right may be modified and restricted b3 r statute, so that the fish can only be taken at certain seasons and in certain ways. The statute law must therefore be closely scrutinised to sec how far this j common law has been abridged, j There are. a-number of statutes deal-I mg with the matter, and I will now | set them out section by section. The first statute is “ The Fisheries Conservation Act, 1884,” which I will refer to as the ’B4 act. This act originally dealt with fishing in both the territorial saltwater in the colony and also in the rivers—with both deep-sea fish and oysters, and seals, and also with the imported trout. Water was defined as meaning any “ salt, fresh, or brackish water in the colony or on the coasts or bays thereof.” By section 5 the Governor may make regulalations which j shall have force and effect only in any waters specified therein .... prohibiting alto-

gcfcher the use of nets of any sort. On the 7th of September, 1892, regulations were made thereunder, and one of these provisions is made against netting, as follows :

13. No person shall put, throw, drag, draw, and place any net of any description (except a landing net) in any of the rivers and streams in the said district, or within half a mile of the mouth or entrance of any Such waters. ,*•

In the year 1894 a change was made in the law. It was decided to work the sea fishing under a different law to angling, and so “ The Sea Fishing Act, 1894.” was passed. By the act “waters’’ mean all salt or brackish water in the colony or in any tidal river or creek. “ Tidal waters ’’ mean any part of a river or creek which is within the ebb and flow of the tide at ord'uary spring tides. The 'B4 act is repealed in so far as the same relates to sea fishing, without prejudice, however, to any proclamation, Ordor-in-Council, rule, or regula. tion, subsisting at the commencement of this act. This proviso would therefore apply to the regulations of ’92. The next statute to be considered is “ The Statutes Repeal Act, 1902.” This act did not really carry the law any further than the ’94 act had done, but it expressly repealed in detail what had only been done in a general way previously. The definition of “ waters” in the ’B4 act was altered to mean “ any fresh water in the colony. ’ This is now the law, the latest expression of the intention of the Legislature. The Governor, therefore, has power to make regulations which shall have force and effect only in any fresh waters specified therein, prohibiting altogether the use of nets of any sort. On the 21st September, 1904, new regulations were made. These did not expressly repeal the ’92 regulations, but with lazy draughtsmanship they profess to repeal all previous regulations at variance therewith. Regulations 13 and 14. in point, are as follows ;—(13) “No person shall fish with or use any net

in any river or stream within the district, or at the mouth or entrance of any such river or stream.” (14) “ The mouth of every such river or stream shall be deemed to include every outlet of the same and the seashore between such outlets, and shall extend over a radius of 500 yards from the point or line where the waters of such river or stream meet those of the sea or any harbour at low water." I hold that these regulations impliedly repeal regulation 13 of the '92 regulations. I do not therefore need to trouble as to' whether the old regulations were ultra vires or not, and whether it was preserved by the saving clause in the ’94 act or in the Amending Act of 1902. My reason for holding that the old regulation 13 is repealed is that it is at variance with the new regulations 13 and 14, and deals with the same question. The law on the point Is laid down in the case of Fortescue v. St. Matthew Bethnal Green, 1891 (2 Q. 8., 117), decided by Lord Coleriflge, O.J. Matthew Give, Smith Charle., J.J., where limy said ; “ Now it cannot be denied that both these sections cover the off ce with which the appellant is charge!, but be l itter statute differs fro u the earlier, both as the penally which may be imposed and as to the conditions under which

it may be recovered. It appears to us, under tliese circumstances, to be clear that the appellant can only be dealt with, under the latter statute. It is true that the earlier act is not repeated expressly, but it is a well-re-cognised principle that any act describing the quality of the offence, or prescribing a particular punishment for it is impliedly repealed by a later act altering the quality of the offence or prescribing another punishment for it. The defendant can therefore only be convicted if lie comes within regulation 13 of the 1901 regulations) which orffy j apply to rivers or streams of fresh water. The Governor has no power to make regulations dealing with either salt or brackish water or any tidal river. Regulation 14 seems to me to be ultra vires. I do not quite see how the line can be drawn where the river ends and the sea begins. It seems to be ultra vires for the regulations to prohibit netting for 500 yards on the seaward side of this line, when the ’Bl act confines the Governor’s powers solely to fresh water. I under stand that the Chief Justice has given a decision on a case somewhat similar to this, arising from the Picton regulations, but I have not been able to get a copy of it, much to my regret. As therefore the netting is only prohibited in fresh water, and as the defendants were netting in what is admittedly brackish tidal waters, to do which they have a right by common law and by the ’9l act. the informations must be dismissed.’’