PART VI.

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

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. —(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. —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. —(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. —(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. —(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;

(ii) the Minister may cause such guiding wall to be altered or removed and, if he does so, the expenses incurred by him in so doing shall be recoverable from such occupier as a simple contract debt in any court of competent jurisdiction.

(3) If the occupier of a fishing weir or fishing mill dam in a river makes such use of any island or natural obstruction in the river as secures to him the advantage he would have obtained by attaching to such fishing weir or fishing mill dam a guiding wall contravening paragraph (a) of subsection (2) of this section, he 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 a further fine not exceeding five pounds for every day on which he makes use of such island or natural obstruction.

(4) If any fishing mill dam is used partly for the purpose of sustaining water for a mill or factory or for navigation, nothing contained in this section shall be construed to extend to such fishing mill dam so as to affect injuriously the necessary supply of water to such mill, factory or navigation.

20. —Section 30 of the Act of 1939 is hereby amended as follows:—

(a) there shall be inserted in subparagraph (iii) of paragraph (b) of subsection (2) and before clause (II), the following clause—

“(Ia) if the person investigating the matter agrees with the report, the Minister shall serve on such occupier a statement informing him accordingly, and such notice shall have effect as if, for the period specified therein for compliance therewith, there were substituted a period of one month commencing on the day on which such statement was served.”;

(b) there shall be inserted in paragraph (b) of subsection (2), the following subparagraph—

“(iv) if an objection is not so sent to the Minister, such notice shall have effect as if, for the period specified therein for compliance therewith, there were substituted a period of six weeks commencing on the date on which a copy of the report was served on such occupier.”;

(c) by the insertion of the following new subsection—

“(3A) Where a notice served under subsection (1) of this section has been withdrawn under subsection (2) of this section, such notice shall be deemed not to have been served.”.

21. —In section 64 of the Act of 1842, there shall be substituted for the words “any obstacle or contrivance of any nature or kind soever in or near thereto in order to deter or prevent fish” the words “any obstruction, use any contrivance or do any act whereby fish may be scared, deterred or in any way prevented”.

22. —(1) In this section—

the word “mill” includes any factory, machine, building or other work by or for which water is taken or used for any purpose, but does not include any work for the generation, by means of hydraulic power, of electricity, for distribution and supply to the public;

the expression “wheel sluices”, in relation to a mill, means the sluices which admit water to the wheels of such mill.

(2) The following provisions shall apply in relation to every mill which derives its supply of water from a salmon river—

(a) in case there is a fish pass in the dam belonging to the mill, the wheel sluices and the waste gates or over-falls shall be kept shut,—

(i) for twenty-four consecutive hours in each week between the hour of 6 o'clock p.m. on Saturday and the hour of 6 o'clock a.m. on the next following Monday, and

(ii) during any other period when the mill is not being worked;

(b) in case there is no fish pass in the dam belonging to the mill and the waste gate on the upstream side of the wheel sluices is erected in a channel suitable for the passage of fish, the wheel sluices shall be kept shut and the said waste gate kept open—

(i) for twenty-four consecutive hours in each week between the hour of 6 o'clock p.m. on Saturday and the hour of 6 o'clock a.m. on the next following Monday, and

(ii) during any other period when the mill is not being worked;

(c) if the provisions of paragraph (a) or paragraph (b) of this subsection are not complied with, the occupier of the mill shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine of not less than three pounds and not more than ten pounds.

(3) Where the occupier of a mill is charged with an offence under this section, it shall be a good defence to prove that compliance with paragraph (a) or paragraph (b) (whichever is applicable) of subsection (2) of this section would in any way have injuriously interfered with the machinery or water power of the mill.