No. 4/1935:

SHANNON FISHERIES ACT, 1935

ARRANGEMENT OF SECTIONS

PART I PRELIMINARY

1 Short title.

2 Definitions.

3 Expenses of the Minister.

PART II COMPENSATION FOR INJURIES TO FISHERIES

4 Compensation for injuries to fisheries.

5 Power to purchase in lieu of paying compensation.

6 Transfer of fisheries by the Minister.

7 Transfer of fisheries by the Commissioners of Public Works.

PART III MANAGEMENT OF THE SHANNON FISHERIES

8 Duties of the Board in relation to the Shannon fisheries.

9 Powers of the Board in relation to the Shannon Fisheries.

10 Application of the income of the Board from the Shannon fisheries.

11 Power to sell salmon and trout without licence.

12 Appointment of ex-officio members of boards of conservators.

PART IV MISCELLANEOUS AND GENERAL

13 Advances by the Minister for Finance.

14 Assessment of compensation or price.

15 Compensation to certain fishery employees.

16 Officers and servants of the Board.

17 Obligation of the Board to keep accounts.

18 Obligation of the Board to furnish reports and statistics.

19 Closing of free gap in weirs in the waters of the Shannon fisheries.

20 Discharge of water through Parteen Villa weir.

21 Membership of the Board of Conservators for the Limerick Fishery District.

22 Alteration of weekly close season.

23 Restriction on number of certain fishing licences.

24 Prohibition of snap nets.

25 Prohibition of taking fish with a net.

AN ACT TO MAKE PROVISION FOR THE MANAGEMENT OF THE FISHERIES OF THE RIVER SHANNON BY THE ELECTRICITY SUPPLY BOARD AND FOR THAT PURPOSE TO PROVIDE FOR THE PAYMENT OF COMPENSATION IN RESPECT OF SUCH FISHERIES BY THE SAID BOARD AND THE ACQUISITION OR TRANSFER OF SUCH FISHERIES BY OR TO THE SAID BOARD, AND TO MAKE PROVISION FOR OTHER MATTERS RELATING TO SUCH MANAGEMENT OR TO SUCH FISHERIES.

[19th February, 1935.]

BE IT ENACTED BY THE OIREACHTAS OF SAORSTÁT EIREANN AS FOLLOWS:—

PART I PRELIMINARY

1.—This Act may be cited as the Shannon Fisheries Act, 1935 .

2.—In this Act—

the expression "the Minister" means the Minister for Industry and Commerce;

the expression "the Board" means the Electricity Supply Board;

the expression "the Act of 1925" means the Shannon Electricity Act, 1925 (No. 26 of 1925);

the expression "the Act of 1927" means the Electricity (Supply) Act, 1927 (No. 27 of 1927);

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;

the expression "the waters of the River Shannon" means the River Shannon from the source to an imaginary line drawn from the Ordnance Trigonometrical Station at Kilconly Point in the townland of Kilconly North, in the Parish of Kilconly, Barony of Iraghticonnor, and County of Kerry, to Kilcredaun Point in the townland of Kilcredaun in the Parish of Moyarta, and County of Clare, and every river and stream tributary to the River Shannon above the said imaginary line, and every lake, pond, and canal on or connected with the River Shannon above the said imaginary line, or on or connected with any such tributary, river, or stream;

the expression "the waters of the Shannon fisheries" means all waters in which there exists a fishery or fishing right for the time being included in the Shannon fisheries;

the expression "the Shannon hydro-electric works" means the works constructed (whether before or after the passing of this Act) by the Minister or the Board under statutory authority on, in, or in the neighbourhood of the River Shannon for or in connection with the production and generation of electricity by means of hydraulic power.

3.—All expenses incurred by the Minister in the execution of this Act shall, to such extent as shall be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART II COMPENSATION FOR INJURIES TO FISHERIES

4.—(1) Every person who has suffered loss or damage (whether before or after the passing of this Act) by reason of injury to a fishery or fishing right owned or held by or vested in him and situate in or exercisable over the waters or any part of the waters of the River Shannon shall be entitled to be paid by the Board compensation, assessed under and in accordance with this Act, in respect of such loss or damage if, but only if, such injury was caused by the operation of the Shannon hydro-electric works, whether by the operation generally of those works or by any particular mode or course of or negligence in the operation of the said works.

(2) Every application for compensation under this section shall be made in writing to the Board and, in the case of an injury alleged to have happened or begun before the passing of this Act, shall be made within one year after the passing of this Act and, in every other case, shall be made within three years after the injury is alleged to have happened or begun.

(3) No compensation shall be payable under this section in respect of an injury to a fishery or fishing right which is acquired by the Board under this Act nor in respect of an injury in relation to which no application for compensation is duly made under and in accordance with and within the time limited by this section.

(4) No action shall lie or be deemed ever to have lain against any person and no compensation under the Act of 1925 shall be or be deemed ever to have been payable in respect of any loss or damage or any injury in respect of which either compensation is payable under this section or compensation is expressly declared by this section not to be payable under this section.

5.—(1) Whenever an application is made to the Board for compensation under this Part of this Act in respect of injury to a fishery or fishing right, the Board may, at any time before the assessment of such compensation, give to the person by whom such application was made and to all other persons (if any) who appear to the Board to be interested in such fishery or fishing right or any such land, way-leave, or other right as is hereinafter mentioned a notice in writing declaring the intention of the Board to acquire such fishery or fishing right and any land, way-leave, or other right which, in the opinion of the Board, is ancillary to or necessary for the enjoyment of such fishery or fishing right.

(2) Every notice given by the Board under the foregoing sub-section of this section shall specify, as fully as reasonably may be, the fishery or fishing right, land, way-leaves, and other rights to which such notice relates.

(3) Whenever the Board has given a notice under the foregoing provisions of this section, the Board shall be entitled to purchase, and shall purchase and all owners, lessees, and other person, interested shall sell to the Board the fishery or fishing right and any land, way-leave, or other right specified in such notice.

6.—(1) The Minister may by order transfer to the Board any fishery or fishing right in the waters of the River Shannon or any part thereof which was acquired by him (whether before or after the passing of this Act) under the Act of 1925, and also any land, easement, way-leave, water-right, or other right which was so acquired by him and is ancillary to any such fishery or fishing right so transferred.

(2) An order made under this section shall operate to vest in the Board, without any further or other conveyance, every fishery and fishing right and all lands, easements, way-leaves, water-rights, and other rights purported to be transferred to the Board by such order.

7.—(1) The Commissioners of Public Works in Ireland may by order under their seal transfer to the Board, on such terms and conditions as shall he agreed upon between the said Commissioners and the Board with the sanction of the Minister for Finance, all the estate and interest of the said Commissioners in any fishery or fishing right in the waters of the River Shannon or any part thereof which is in the possession or occupation of the said Commissioners at the passing of this Act and also any land, easement, way-leave, water-right, or other right which is so in the possession or occupation of the said Commissioners and is ancillary to any such fishery or fishing right so transferred.

(2) An order made under this section shall operate to vest in the Board, without any further or other conveyance, every fishery and fishing right and all lands, easements, way-leaves, water-rights, and other rights purported to be transferred to the Board by such order.

PART III MANAGEMENT OF THE SHANNON FISHERIES

8.—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.

9.—(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-a-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 water-way, or water-course;

( f ) subject to the provisions 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 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 toad 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 Eleven of the Constitution applies for any period exceeding ninety-nine years or with a provision for renewal.

(3) No demise by lease nor letting by way of licence of the whole or any part of the Shannon fisheries nor any agreement for any such demise or letting shall be made by the Board under this section unless the Board shall, at least twenty-one days before making such demise, letting, or agreement, have published at least once in each of two newspapers circulating in the neighbourhood of the fishery or fisheries which is or are the subject matter of such demise, letting, or agreement, a notice stating the intention or desire of the Board to demise or let such fishery or fisheries and inviting offers to take such demise or letting.

10.—The income of the Board derived from the performance of the duties in relation to the Shannon fisheries imposed on the Board by this Part of this Act, after discharging all expenses incurred by the Board in the performance of the said duties and properly chargeable to income, shall be applied to the following purposes in the following order, that is to say:—

( a ) payment of all interest payable in the current year or owing in respect of any previous year to the Minister for Finance on advances made for the purposes of this Part of this Act by the said Minister to the Board under this Act;

( b ) setting aside such sums as the Board, with the approval of the Minister, shall think proper for reserve fund, extensions, and other like purposes relating to the performance of the said duties;

( c ) payment of all moneys payable in the current year or owing in respect of any previous year to the Minister for Finance on account of the repayment of advances made by the said Minister to the Board under this Act;

( d ) appropriation for any other purpose which the Board shall think proper.

11.—Notwithstanding anything contained in Part III of the Fisheries Act, 1925 (No. 32 of 1925), it shall be lawful for the Board to sell, expose for sale, and keep for sale salmon and trout without being licensed in that behalf under that Act.

12.—(1) Section 6 of the Fisheries (Ireland) Act, 1848, as amended by section 7 of the Fisheries Act, 1925 (No. 32 of 1925), shall not apply in respect of any fishery for the time being included in the Shannon fisheries and in lieu thereof it is hereby enacted that—

( a ) if and so long as the Board is the owner, lessee or occupier of a fishery which was on the 1st day of January, 1931, a several or exclusive fishery within the meaning of the said section 6 and was on that day valued under the Valuation Acts at not less than fifty pounds the Board shall be entitled to nominate one person to be an ex-officio member in respect of such fishery of the board of conservators of the district in which such fishery is situate, and

( b ) if and so long as the Board is the owner, lessee, or occupier of a number of fisheries situate in the same fishery district which were on the 1st day of January, 1931, several or exclusive fisheries within the meaning of the said section 6, and were on that date owned, held, or occupied by the same person, and were on the said date valued under the Valuation Acts at valuations amounting in the aggregate to not less than fifty pounds, the Board shall be entitled to nominate one person to be an ex-officio member in respect of such fisheries of the board of conservators of the district in which such fisheries are situate.

(2) Where the Board is entitled under the foregoing sub-section of this section to nominate two or more ex-officio members of a board of conservators, the Board may, in lieu of nominating such two or more members, nominate one person only to be an ex-officio member of such board of conservators, and in such cases such one person shall have and may exercise at meetings of such board of conservators a number of votes equal to the number of ex-officio members of such board of conservators which the Board is for the time being entitled to nominate under the said foregoing sub-section.

(3) A person nominated by the Board under this section to be an ex-officio member of a board of conservators shall, subject and without prejudice to the next foregoing sub-section of this section, have and may exercise as such member all the rights and privileges which are conferred by section 6 of the Fisheries (Ireland) Act, 1848, on a person who is an ex-officio member of a board of conservators under that section.

PART IV MISCELLANEOUS AND GENERAL

13.—(1) The Minister for Finance may (subject to the provisions of this section) advance out of the Central Fund or the growing produce thereof to the Board, as and when requested so to do by the Board, all such sums as the Minister shall from time to time certify to be reasonably and properly required by the Board for any purpose arising in the performance of its functions under this Act.

(2) All advances made to the Board under this section shall, for the purposes of section 1 of the Electricity (Supply) (Amendment) Act, 1934 (No. 6 of 1934), but for no other purpose, be deemed to be advances made under section 3 of the Electricity (Supply) (Amendment) Act, 1931 (No. 32 of 1931), and the said section 1 shall apply accordingly.

(3) Sub-sections (4) and (5) of section 12 of the Act of 1927 shall apply in relation to advances made to the Board under this section as if such advances were made under the said section 12.

(4) All advances made to the Board under this section shall, for the purposes of sections 13, 14 and 16 of the Act of 1927 as amended by any subsequent enactment, be deemed to be made under that Act, and those sections as so amended shall apply in respect of such advances accordingly.

(5) All moneys payable by the Board to the Minister for Finance under or by virtue of this section shall in so far as such moneys relate to advances made under this section for the purposes of Part II of this Act, be defrayed out of the income of the Board derived from the performance of its functions under the Act of 1927, and, in so far as such moneys relate to advances made under this section for the purposes of Part III of this Act, be defrayed out of the income of the Board derived from the performance of the duties in relation to the Shannon fisheries imposed on the Board by the said Part III.

14.—(1) The amount of any price or compensation payable by the Board under this Act shall, in default of agreement, be fixed under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919, as modified by this Act, and, in the case of compensation, in like manner as if such compensation were the price of land compulsorily acquired.

(2) When the price to be paid by the Board for any property is being assessed in pursuance of this section, no regard shall be had to anything which was done or occurred in relation to such property on or after the 1st day of October, 1929, whereby the value of such property was increased, decreased or otherwise affected.

(3) When the price to be paid by the Board for a fishery or fishing right is being assessed in pursuance of this section and it is shown to the satisfaction of the arbitrator that the owner of such fishery or fishing right or a person entitled to a portion of such price by virtue of his having an estate or interest in such fishery or fishing right worked such fishery or exercised such fishing right personally by his own skill and labour and that the profits derived from such working or exercise formed the whole or a substantial part of the livelihood of such owner or person, the arbitrator shall add to and include in the price so payable to such owner or to the portion thereof so payable to such person (as the case may be), as assessed under the provisions of this Act other than this sub-section, such sum as appears to the arbitrator to be a reasonable compensation for the whole or partial (as the case may be) loss of livelihood suffered by such owner or person in consequence of the acquisition of such fishery or fishing right by the Board, regard being had to the likelihood of such owner or person being able, in the circumstances of his case, to transfer his skill and labour to some other profitable occupation.

(4) Sections 69 to 83 of the Lands Clauses Consolidation Act, 1845, shall apply to any compensation payable by the Board under this Act, and to the price to be paid by the Board for any property purchased by the Board under this Act, and the conveyance to the Board of such property, and for the purpose of such application the Board shall be deemed to be the promoter of the undertaking.

15.—(1) Whenever a fishery or a fishing right is acquired (whether compulsorily or by agreement) by the Board under this Act, every person who proves to the satisfaction of the Board or of the arbitrator all the following matters, that is to say:—

( a ) that during the whole or substantially the whole of each of the three complete open fishing seasons next before such acquisition, he was constantly and regularly employed at a weekly wage in or about the working of such fishery or the exercise of such fishing right, and

( b ) that he was so employed by a person or the predecessor in title of a person entitled to receive the price or a portion of the price payable by the Board in respect of such acquisition, and

( c ) that the wages received by him in respect of such employment formed the whole or a substantial part of his livelihood while he was so employed, and

( d ) that his said employment related exclusively to the working of such fishery or the exercise of such fishing right, and

( e ) that he was not regularly employed outside the open fishing season by the person by whom he was so employed during the open fishing season,

shall (subject to the provisions of this section) be entitled to be paid by the Board compensation in respect of his loss of employment by reason of the said acquisition of such fishery or fishing right by the Board.

(2) The compensation payable to any person under this section shall be calculated as follows, that is to say, for every complete open fishing season during which such person complied with all the conditions mentioned in the next preceding sub-section of this section, such person shall receive a sum equal to four times the average weekly wage received by such person in respect of such employment during the complete fishing season next before the said acquisition of the said fishery or fishing right by the Board, but subject to the overriding limitation that such compensation shall not in any case exceed fifty-two times the said average weekly wage.

(3) A person shall not be entitled to any compensation under this section in relation to the acquisition of a fishery or a fishing right by the Board where it is shown to the satisfaction of the arbitrator that by reason of an undertaking by the Board to continue the employment of such person or for any other reason such person will suffer no loss or diminution of employment in consequence of such acquisition.

16.—The duty of appointing officers and servants which is imposed on the Board by section 8 of the Act of 1927, shall extend to and include the appointment of officers and servants for the purposes of this Act, including the performance by the Board of the duties in relation to the Shannon fisheries imposed on the Board by Part III of this Act, and the said section 8 shall apply to every officer and servant so appointed.

17.—(1) The obligation imposed on the Board by section 7 of the Act of 1927 to keep accounts of money received or expended by the Board shall extend to and apply in respect of moneys received or expended by the Board under this Act or received or expended by the Board in the performance of the duties in relation to the Shannon fisheries imposed on the Board by Part III of this Act, but subject to the modification that separate and distinct accounts shall be kept under the said section 7 in relation to the moneys to which that section is applied by this section.

(2) All the provisions of section 7 of the Act of 1927 shall apply to the accounts kept by the Board under that section in relation to moneys to which that section is applied by this section.

18.—(1) The report required by section 32 of the Act of 1927 to be made by the Board in each year shall extend to and include the proceedings of the Board under this Act during the year to which such report relates, including the proceedings of the Board in the performance of the duties in relation to the Shannon fisheries imposed on the Board by Part III of this Act.

(2) The obligation to furnish statistics and returns imposed on the Board by section 32 of the Act of 1927 shall extend to and include statistics and returns in relation to the proceedings of the Board under this Act.

19.—(1) The Minister for Agriculture may, if he thinks fit, at any time by order authorise the Board, for the purpose of acquiring statistical information and the purpose of carrying out scientific investigations or for either of those purposes, to close, at such times, during such periods end in such manner as he may specify in such order, the free gap in any specified weir in the waters of the Shannon fisheries.

(2) Whenever the Minister for Agriculture by order under this section authorises the Board to close the free gap in any weir in the waters of the Shannon fisheries, the following provisions shall have effect, that is to say:—

( a ) notwithstanding anything contained in the Fisheries Acts, 1842 to 1925, it shall be lawful for the Board to close such free gap under and in accordance with such order;

( b ) section 10 of the Fisheries (Ireland) Act, 1845 shall not apply in respect of any obstruction placed in such free gap by the Board under and in accordance with such order.

20.—The Board shall not, without the previous consent of the Minister, permit the rate of discharge of water through the weir at Parteen Villa to be less at any time than ten cubic metres per second.

21.—The number of members of the Board of Conservators for the Limerick Fishery District to be elected in each of the two tidal electoral divisions of that district at the triennial election of such members held next after the passing of this Act and at every subsequent such election shall be three members and no more, and the number of members of the said Board of Conservators shall be modified accordingly as from the commencement of the term of office of the members of the said Board of Conservators elected at the said triennial election held next after the passing of this Act.

22.—(1) Section 20 of the Salmon Fishery (Ireland) Act, 1863, shall have effect in relation to the tidal waters of the River Shannon within the meaning of the Fisheries Acts, 1842 to 1925, as if the words "the succeeding Tuesday morning" were substituted in that section for the words "the succeeding Monday morning" now contained therein.

(2) The Minister for Agriculture may by order vary as he shall think proper, in respect of the said tidal waters of the River Shannon, the weekly close season fixed in respect of those waters by the said section 20 of the Salmon Fishery (Ireland) Act, 1863, as amended by this section, but shall not by any such order increase the said weekly close season to more than seventy-two hours nor reduce the said weekly close season to less than forty-eight hours.

23.—(1) The number of licences for fishing with drift nets in the tidal waters of the River Shannon within the meaning of the Fisheries Acts, 1842 to 1925 which shall be issued under those Acts in the first year in which the open season for such fishing commences after the passing of this Act or in any subsequent year shall not exceed seventy, and the number of licences for fishing with draft nets or seines in the said waters which shall be issued under the said Acts in any such year shall not exceed twenty-five.

(2) The Minister for Agriculture may make regulations in relation to the issue of such licences as are mentioned in the foregoing sub-section of this section for the purpose of securing to persons who held such licences in the year 1934 a preferential right to purchase such licences before the commencement of the open season for fishing under such licences in any year in which the number of such licences is limited by this Act.

24.—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.

25.—(1) It shall not be lawful for any person (other than a person and the successors in title of a person who, during the period of twelve mouths immediately preceding the passing of this Act, has lawfully exercised a right of fishing with nets or a net in the fresh waters hereinafter mentioned) to fish for catch, or take or attempt to catch or take fish (other than eels) with a net of any kind in the fresh waters of the River Shannon within the meaning of the Fisheries Acts, 1842 to 1925.

(2) The foregoing sub-section of this section shall not apply to or render unlawful the use of a landing net solely as an auxiliary to lawful angling with rod and line or the use of a landing or other net for the purpose of lawfully removing fish from a lawful fishing weir.

(3) Every person who fishes for, catches or takes or attempts to catch or take fish in contravention of this section shall be guilty of an offence under this section and shall be liable on summary, conviction thereof to a fine not exceeding twenty pounds, or at the discretion of the Court, to imprisonment for any term not exceeding two months, and shall also in either case forfeit every net, boat and other instrument used in the commission of such offence.

(4) An offence under this section may be prosecuted at the suit of the Board or of the board of conservators within whose district the offence is committed.