Seanad Éireann - Volume 140 - 06 July, 1994
Fisheries (Amendment) Bill, 1994: Second Stage.
Question proposed: “That the Bill be now read a Second Time.”
Minister of State at the Department of the Environment (Mr. Browne, Wexford) Minister of State at the Department of the Environment (Mr. Browne, Wexford)
Minister of State at the Department of the Environment (Mr. Browne, Wexford): The Irish fishing industry provides approximately 15,000 jobs, mainly in peripheral areas of the country where alternative forms of employment are difficult to sustain. The contribution of the industry to the economy as a whole has increased dramatically in recent years. For example, in 1992, landings of sea fish  were valued at £98 million and exports worldwide amounted to £175 million. Clearly, this is an industry which is worth protecting and the primary objective of the Bill is to provide that protection and to avert the reckless destruction of this valuable national asset.
Before dealing with the key provisions, I will set out the main objectives of the Bill which are to provide tougher penalties for serious fisheries offences, including the possible confiscation of vessels in the case of serious or persistent offenders; to amend the law in respect of the licensing and registration of fishing vessels to take account of considerations of economic link in the granting or refusing of licences; to strengthen procedures for the detention of fishing boats and the seizure of fish and gear where an offence is suspected; to impose certain controls on the fishing, sale and possession of eels and molluscan shellfish, and to increase the protection afforded to fisheries officers through substantially tougher penalties for assault.
The Government is seriously concerned at the problem of illegal fishing in Irish waters and, through the Minister with responsibility for both the Marine and Defence, has taken steps to bring about maximum co-operation between the services involved in fisheries pro tection so as to achieve the best possible results.
Nevertheless, experience in recent years has shown that, despite the sub stantial fines imposed by the courts, certain categories of vessels continue to flout the law. In doing so, they threaten the livelihoods of others who comply with conservation and quota management provisions that are designed to ensure the long term viability of our fisher resources. In particular, the track record of the Spanish fishing fleet has left much to be desired. More than 50 per cent of Spanish vessels boarded in Irish waters have been detained for serious fishery offences. It is against this background that it is necessary to introduce strong measures to combat illegal fishing.
Section 7 of the Fisheries (Amendment) Act, 1983, provided that, on  second conviction on indictment for a range of fisheries offences, a court could, at its discretion, order a boat to be confiscated. In practice, however, following a first conviction vessel owners systematically contrive to eliminate the possibility of confiscation by transferring the ownership of vessels to new companies. The amendments proposed in section 14 of the Bill will remedy this by permitting the court to order the forfeiture of a vessel (1) where the offence, or a combination of offences, is considered by the court to be a serious abuse of conservation measures; and (2) where the conviction is a second or subsequent conviction for an offence committed on board the same ship within three years of the date of the commission of the previous offence. Where it is suspected that a change of ownership was effected in order to evade the risk of forfeiture in the event of a further conviction, the onus of proving, to the satisfaction of the court, that the change of ownership was bona fides will rest with the defendant.
There is also a provision to protect third parties who may, in good faith, have provided a mortgage or loan in respect of the vessel. In such circumstances the court may, at its discretion, order that the boat be sold and a portion of the proceeds of the sale be paid to meet the outstanding mortgage or charge. This provision will indemnify third party investors whom the court considers would otherwise be unfairly penalised. It should be emphasised, however, that the bona fides of the loans or mortgages entered into by such investors will be carefully examined and if the level of investment or mortgage appears to be abnormally high the court will, I am sure, draw its own conclusions.
Some might perhaps feel that confiscation of fishing boats should be mandatory. Consideration was given to the introduction of mandatory penalties but having reflected on the matter the Minister has concluded that, notwithstanding the serious nature of certain offences, the imposition of penalties is best left to the discretion of the courts.
 During the preparation of this Bill the Minister also gave serious consideration to the level of fines that may be imposed by the courts. In particular, he became concerned about the considerable amount of evidence that has come to light regarding the number of vessels using hidden holds for the storage of illegal fish or undersized nets. On Report Stage, he met the wishes of the Dáil and amended the proposed penalties for hidden holds and the possession of undersize nets to £200,000 and £50,000 respectively.
These measures reflect our serious concern at the appalling damage which offences of this nature can inflict on stocks and will enable the courts to convey that concern more effectively to those convicted of such violations. The message being sent to those who cynically abuse our fisheries and see the occasional prosecution as an acceptable risk or occupational hazard is clear: the reckless destruction of a major national resource will no longer be tolerated.
The Bill also gives the Minister powers to ensure that people who are granted sea fishing boat licences have a real economic link with this country. In 1991, the European Court of Justice gave its support to the principle that member states have the right to set requirements which ensure that such a link exists between boats fishing off quotas and the coastal communities and regions that the quotas were designed to benefit.
The Bill will allow the Minister to take account of the economic benefit that the operation of a boat will have for Ireland when considering an application for a fishing licence. In particular, he will be able to consider the projected annual number of landings at Irish ports; the projected annual tonnage and value of fish landed in the State; the projected annual level of expenditure in the State on wages, fuel, supplies, equipment and services; and the projected annual level of social security and tax payments in the State in respect of employees and the operation of the boat.
This is not intended nor should it be construed as discrimination by the back door. These provisions will ensure that  Ireland's legitimate interest in securing a fair share of the commercial and economic benefits of our quotas will be safeguarded and counteract the practice of “quota hopping”, where boats from one state are registered under the flag of another solely for the purpose of gaining access to the latter's quotas.
The European Court of Justice expressed its view on the concept of economic link in the context of its ruling that the provisions in Irish law, which restricted the right to licence and register fishing boats in Ireland to Irish nationals and bodies corporate, were contrary to the terms of the Treaty of Rome, which prohibits discrimination on grounds of nationality and protects the right of establishment. Those restrictions are removed in this Bill and the right to licence and register fishing boats is extended to nationals and bodies corporate of member states. Nevertheless, I am satisfied that the requirement that applicants establish a real economic link will ensure that Irish quotas continue to be used for the benefit of this country.
The Bill also removes a legal uncertainty that exists in relation to the procedure for detaining a fishing boat in circumstances where a breach of fisheries legislation is suspected and copperfastens the powers of sea fisheries officers, naval officers and members of the Garda Síochána. In future, it will be possible for a naval officer who detains a fishing boat to transfer the custody of the vessel to a garda or sea fishery officer as soon as the boat reaches port. This will enable the naval vessel to return to patrol with the minimum of delay while the garda or fishery officer attends to the formalities of initiating a prosecution. The naval officer will, of course, have to be present at the actual trial to give evidence.
Recent years have seen an alarming increase in the number of violent assaults on fishery officers and there is a clear need to increase, as a matter of urgency, the protection offered to these officers and to strongly deter those who would commit such assaults. The Ballycotton inquiry into the tragic deaths of four fishery officers highlighted the need for  increased protection for such officers and the penalties proposed reflect that view. In introducing these proposals the Minister is taking account of recommendations made by the tribunal.
Under the new provisions, those convicted on indictment of having assaulted a fishery officer will face up to five years imprisonment and such fine as the court may deem appropriate having regard to the seriousness of the offence. The Bill also provides penalties for obstructing an officer in the course of his duties.
It is important that we recognise the essential work carried out by our fisheries officers, often in difficult and dangerous circumstances, and that we provide adequate protection for them in our law. By introducing these measures the Minister wants to clearly indicate our support for fisheries officers in their important work.
The Bill also includes provisions to tighten controls on the catching, possession and export of eels and molluscan shellfish. Increasingly in recent years licensed eel fishermen operating on midland lakes have suffered assault and have had their gear and catch stolen by armed gangs of poachers. Existing provisions have not been sufficient to deal with this problem and it is proposed, therefore, to tighten controls on fishing for dealing in and possession of eels, including eels intended for export.
Part III tightens controls in respect of the sale of eels by applying similar statutory obligations to those which already exist for salmon dealers and exporters. In future eel dealers will be required to hold a licence. Without such a licence the possession of eels will be an offence. Anyone engaged in transporting eels will have to mark clearly any packages or containers used for that purpose. Provision is also made for fines and possible imprisonment for eel fishing carried out in breach of statutory authorisations.
Of equal importance is the fact that the new controls will make it extremely difficult for criminals to profit from their activities because without the required sales permits and documentation which the Bill provides for, the prospect of  detection and prosecution will be greatly increased. In addition, the task of realising the proceeds of the crime will become more difficult.
Similar controls are being applied to shellfish. At present, the movement of molluscan shellfish within the State is subject to authorisations issued by the Department of the Marine. Nevertheless, recent outbreaks of bonomia in oysters have occurred through unauthorised movements of oysters and these have demonstrated the need for increased controls.
The Bill also addresses a number of administrative weaknesses and regulatory deficiencies in the existing law. It is proposed to amend section 373 of the Merchant Shipping Act, which relates to the registration of fishing vessels, so as to update penalties for registration offences. It is also proposed to give the Minister the power to make and amend regulations governing the operation of the fishing boat register and to provide appropriate statutory powers for the Minister to remove a vessel from the sea fishing boat register so as to deal with certain anomalies that have arisen.
The maintenance of an accurate and up-to-date fishing boat register is an important requirement for the management of fisheries at a time when there is pressure on the size of our fishing fleet. It is also important that we have accurate data on levels of catch and market activities, not only for management purposes but also for scientific research and strategic planning. To this end section 9 provides for a statutory requirement to furnish information relating to the catching or sale of fish. I know that all those involved in the fishing sector appreciate the importance of having accurate information available for the reasons I have outlined and I am confident of their continued co-operation in this area.
Section 17 simplifies statutory arrangements in relation to payments to local authorities in lieu of rates levied on private fisheries. Fisheries which yield an income to their owners are valued for rating purposes in exactly the same way  as land or other property. These rates are paid to the regional fisheries boards, however, to support their activities. In order to reimburse local authorities for the loss of this income provision is made in the Department of the Marine Vote for an equivalent amount which is paid out each year. It has become apparent that there would be a considerable administrative saving if this amount was to be included in the Department of the Environment Vote and paid to local authorities as part of the rate support grants. The revocation of section 55(7) of the 1959 Fisheries (Consolidation) Act will give statutory effect to this arrangement.
I am satisfied that the provisions of this Bill address many of the major issues facing the fishing industry and strike a fair balance between the need to comply with EU treaty obligations and the valid objective of securing a fair share of fishery resources for the Irish economy. The Bill clearly underlines our resolve to protect the rights of the communities that depend on fishing and to make sure that anyone seeking to abuse their access to our waters will think twice before engaging in illegal fishing or committing other fisheries offences.
Mr. Belton Mr. Belton
Mr. Belton: I welcome the opportunity to speak on this Bill. We are aware of the need to update legislation in light of the changes in fishing regulations emanating from the European Union. Any legislation which helps our fishermen in their difficult profession is welcome.
Serious competition in the fishing industry has emerged from the fishing fleets of Europe, especially the Spanish fleet, and legislation is necessary to stabilise that industry and to enforce regulations and procedures whereby our fishing officers and security forces can be in a position of authority to curtail illegal fishing and to deal with the people and fishing boats involved in illegal fishing. Heretofore, there were obvious areas where security officers were curtailed in dealing will illegal fishing. Legislation which introduces severe penalties, including seizure of vessels and catch, is a step in the right direction.
 The legislation also deals with inland fisheries and I welcome its provisions regarding eel fishing. Being from the midlands I am aware of the enormous potential in the eel fishing industry. It is worth noting that brown eels command a price of £3,000 per ton and silver eels are making £5,000 per ton. This is an indication of how lucrative a business eel fishing is. It also highlights the potential in that industry.
Fishing officers and the Garda Síochána are given the power to enforce the provisions in this legislation and they will be able to deal with those who fish illegally. Until now people had to be caught in the act of illegal fishing. We all know — I am not saying we all poached — that it was difficult for the gardaí to catch a person at the right time. Under this legislation people who are caught in possession of fish will have to explain the circumstances of the catch and they will be responsible for the catch. That is a helpful provision.
I wish to pay tribute to the ESB's research into and involvement with the eel fishing industry. At present it has divided the country into different regions and licences are issued on that basis. This has a twofold effect; it controls those in the fishing business and the catches can be monitored to find the areas where they are increasing or decreasing. This enables the ESB to have a constructive view of the future of the eel fishing industry.
There is a huge market for eels on the Continent and in Japan. There has been no eel processing industry in Ireland and there is great potential for such a development. Those in the ESB who work in eel fishing see this as an area where jobs can be created. Eel fishing will then be put on a basis for long term growth, which we would all like to see.
The Bill also places control on dealers. Up to now those involved in illegal eel fishing could dispose of their catches to dealers without restriction. This legislation requires dealers to register and to account for the amount of fish they sell and the origin of the fish. I welcome that aspect of the legislation also.
 The main objective of the ESB's River Shannon eel management programme is the assessment of the current status of eel in the Shannon catchment area, particularly the stocks of yellow eel and silver eel. Since the early 1980s the number of elvers intercepted at Ardnacrusha generating station for collection and release further upstream has been declining. This shows the importance of research and of having a definite policy for the development of this industry.
At present over 100 people are employed full time in the eel fishing section. I pay tribute to them for the areas being developed because this is to be encouraged by everyone. I am delighted that fishing officers, with the help of the gardaí in certain cases, can go about their duties and enforce the law, now it has been updated.
Fishing in the midlands, where I come from, has not been developed and progressed as we would like. Hundreds of English fishermen are now in the midlands and surrounding areas on angling holidays. This is a great boost to our economy. These people stay in local guest houses and hotels which provide packed lunches. The visitors will go to local entertainment. Other waterway tourists, such as those who hire cruisers, might not spend as much money but everyone benefits from the anglers — small hoteliers, bed and breakfast operators, local shops and publicans.
This section of the industry should be developed. It can improve our fishing sector as a whole and our lakes and rivers. It can also give a much needed boost to our tourism industry. The Minister should be aware of this potential. Many fishing clubs in the midlands have approached me about this issue and they are anxious that new procedures and projects be immediately put in place, such as developing river banks and feeder streams and restocking of rivers.
Stiles and crossings near rivers may also be necessary. There may be obstructions along riverbanks such as small rivers and streams, drains, walls, hedgerows, etc. Stiles and crossings have proved effective on some rivers and a limited  number are being used in my immediate vicinity. They allow easy passage along riverbanks and are an important consideration for the core of visiting anglers, who usually carry a lot of equipment. If anglers encounter fences without proper stiles or crossing areas, they are at a disadvantage.
There is also the problem of trespass. Local landowners are extremely conscious about people on their land. Ease of access to all parts of the river or lake is essential. As the farming community often points out the law regarding liability in the event of an accident on a farmer's land is at present heavily against the landowner. There is a right of way by law along river banks and landowners are not liable at law for people using the river banks. By improving access through the various bridges along the banks, the need to cross farmers' land would not arise. This area of law needs updating. Other Departments are involved but with proper thought and legislation the matter can be resolved.
We have a great market to be tapped in Britain, where the number of people involved in fishing is huge. With so many lakes and rivers in the midlands and surrounding areas, we have great potential in this area. Everyone should be encouraged. I pay tribute to angling clubs throughout the country, some of which have cleaned and restocked rivers. Their interests and ideas must be taken into consideration. Access is another important area and legislation should be introduced for the landowners and those responsible for the river banks and lake edges. The local authority and tourist board could also help to develop this area. There is great interest in local development under the Leader funds throughout the country. If we had a proper plan, Leader funds could be used to develop this industry.
I welcome the opportunity to raise these points and I welcome the Bill. It protects fishing areas and it helps those who must enforce the regulations.
Mr. Fitzgerald Mr. Fitzgerald
 Mr. Fitzgerald: I, like Senator Belton, welcome the Bill because it is time our laws were tightened. As the Minister said at the outset, the value of landings is £95 million. The only regret I have is that it is not ten times more, which it should be. We seem to have lost out in the last 30 or 40 years on the development of our sea fishing industry. That £95 million is only a drop in the ocean. An acre of sea is just as valuable as an acre of land, perhaps more so in inshore areas where there are good beds of scallops and mussels.
I am critical of what has been done for the fishing industry and of the fact that over the years we did not say to the EU that we wanted our fair share of the sea. I have a sneaking suspicion that our sea fishing industry was sold out for the agricultural sector. There is little left at present. We are tied down to quotas and boxes. We must proceed and try to make the most of it.
The Department of the Marine should be more flexible when granting licences for uncaught quotas of fish and when granting substantial money to fish for new species. They might be cheap, but there is a large volume of them. Other countries do not have any problems. They spend the amount we use to catch fish in one year for the development of their fisheries. France spent the equivalent of approximately £18 million one year ago to explore the possibilities of one type of fish, which they now land in Dingle, County Kerry. We do not have the boats, the equipment or the know-how to catch the same fish. Every time the French fishermen come to Dingle in their boats, which are only 80 or 90 feet, they land approximately £40,000 worth of fish. We should be able to catch those fish. Someone must come to terms with this situation.
Some of this legislation is not strong enough. When a man decides to build a boat and he deliberately instructs the boat builder to put secret holds in it so that he can break the law, the boat should be confiscated on the first offence because that man deliberately constructed such a boat and got an EU grant  for it. The boat yards where these boats are built are well known along the coast of Portugal and near La Coruna. I have seen them being built and I have seen the secret holds which allow them to break the law. It is not right to let that man off with a fine, regardless of the amount. The boat should be taken from him. Are the secret holds in these boats destroyed or is this man only fined £200 and allowed to go out again with the same secret hold in his boat? That is why this legislation is too lenient.
Senator Belton spoke about the value of angling. At a certain time of the year The Kerryman lists all the fines levied on people who snatch salmon from the river, although this was always done by their fathers and grandfathers. They are usually fined approximately £200. In the 1930s my next door neighbour got six months in jail for boiling an illegally caught salmon in a pot on the fire. When he left jail, he went to America, but he never came home again because he was ashamed and embarrassed. Two people were shot in Castlegregory, County Kerry for fishing offences. Our penalties for angling are too severe.
In the Bill the definition of trout is a rainbow trout. All my life I caught rainbow trout and no one asked me for a licence. Will a licence be needed by the person who lives two miles outside Dingle, County Kerry and whose ponds are a tourist attraction because one may catch fish in them and he only charges for what the person catches? Will the tourists who stop to catch fish in these ponds need a licence?
Seanad Éireann 140 Fisheries (Amendment) Bill, 1994: Second Stage.