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§ 173. “Fisheries.”

A fishery, at common law, is a right incidental and annexed to the lordship or ownership of the soil over which the waters, the habitat of the fish, flow. On the sea coast, within three miles of the shore, and in the bays, arms, rivers, and creeks connected with the sea and within the tidal pulsation, fisheries are presumed to belong to the Crown, which can dispose of the right to private persons by license or lease. In non-tidal waters it is presumed that the fisheries belong to the persons who own the riparian lands over which the waters flow, or the land adjacent thereto. (Murphy v. Ryan, 1868, Ir. Rep. 2 C.L. 143.) At common law, therefore, the right of the public to fish


  ― 569 ―
under the supervision and protection of the Crown extends to all tidal waters within the territorial limits. (Pearce v. Scotcher, 1882, 9 Q.B.D. 162.) Private persons, however, may, by either an express or an implied grant from the Crown, acquire the exclusive right of fishery in the tidal waters. (Wilson v. Crossfield, 1885, 1 Times L.R. 601.)

Fishery laws may be defined as general laws for the regulation and conservation of the fishing trade; such as laws for the protection and preservation of fish; forbidding fish to be taken in an improper manner, as by objectionable appliances or noxious substances; prohibiting unnecessary waste and destruction of fish, and the taking, buying, or selling of fish in certain seasons; providing that fishermen, fishing boats, and ships shall be licensed and registered; and regulating the employment of labour in connection with such boats and ships.

It has been held in Canada that in order to determine the nature of laws which the Dominion Parliament may pass in relation to “sea coast and inland fisheries” it is necessary to look to the laws in relation to fisheries which the provincial legislatures were before, and at the time of federation, in the habit of enacting. (The Queen v. Robertson, 6 S.C.R. [Can.] pp. 52, 121.)

The right to regulate fisheries does not imply or convey a right to prejudice or invade private property. Thus it has been decided in Canada that the British North America Act, in assigning to the Parliament of Canada the right to legislate with respect to “sea coast and inland fisheries,” did not give authority to deal with matters of property and civil rights, such as the ownership of the beds of the rivers, or of the fisheries, or the right of individuals therein. (The Queen v. Robertson, 6 S.C.R. [Can.] 52, followed and confirmed by the same Court in Re Provincial Fisheries, 26 S.C.R. [Can.] 444.)

The Merchant Shipping Act, 1894, contains elaborate regulations relating to fishing boats and fishermen employed on the waters surrounding the British Islands. Among these may be mentioned sec. 399, in which special provisions are made for trawlers of 25 tons and upwards. The skipper of every trawler of that tonnage going to sea from a port in England or Ireland must make an agreement with his crew (not including sea-fishing boys) under a penalty of £5. This agreement must be in a form approved by the Board of Trade, dated at the time of its first signature, and signed first by the skipper; it must contain the nature and duration of the voyage or engagement, the number and description of the crew, the time for beginning work, the capacity in which each seaman serves, his remuneration, the scale of provisions, and regulations as to conduct on board, fines, allowance of provisions, and punishments for misconduct approved by the Board of Trade and adopted by the parties, who may add stipulations at their will, if not contrary to law, with regard to advance and allotment of wages. (Sec. 400.) Similar agreements may be made by the owner or registered managing owner instead of the skipper, in the same way as by the skipper.

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