A TEST CASE

Evening Post, Volume CIX, Issue 56, 7 March 1930, Page 10

A TEST CASE

FISHING AT THE BAY

KEEPING THE WATER CLEAN

BYLAWS ATTACKED

The right of the City Council to jnake bylaws prohibiting fishermen frem using certain portions of the foreshore and navigable waters at Island Bay was attacked in the Magistrate's Court today. Four fishermen appeared to answer charges, under the bylaws, and although they admitted tho facts they contested the case in order to obtain the ruling of the Court as to the validity of the bylaws. Mr. W. H. Woodward, S.M., ■was on the Bench. ' The defendants, were four Italian fishermen —G. Formalaro, G. Moletta, G. Bonica, and G. Criseillo. The first three were charged with being in a boat in a prohibited area, and Criseillo was charged with taking fish in a prohibited area. Mr. J. Lockie appeared for the City Council, and Mr. D. B. Hoggard for the defendants, and Mr. A. B. Croker on behalf of the Island Bay Municipal Electors' Association. Mr. Hoggard said he had no objection to Mr. Croker appearing in a "watching capacity, so long as he did. Slot intervene in the proceedings. Replying to' the Magistrate, Mr. Hogfeard stated that the facts were not jtlisputed. It was his intention to fight sthe bylaw. Mr. Lockie said in that case the onus Jtvas on the defence to show in some way that the bylaw was invalid, either .because it was unreasonable, or ultra yires of the Corporation. In that case, he thought it only reasonable that Mr. Hoggard should commence in order •that he might reply to the points raised, i Mr. Hoggard agreed to this course. He said 'there were four grounds upon Which the fishermen were attacking the fcylaw. They were: (1) The council had failed to provide facilities on the island Jwhich were a condition precedent to 4he making of the bylaw; (2) the bylaw jtirent beyond the language of the Empowering Act, as it prohibited the use cjf certain waters, whereas the council's power w,as merely to regulate such fcse; (3) the bylaw was hard on the Score of unreasonableness; (4) the bylaw was hard, as it did not inflict any (penalty. In drawing up an Act, Mr. Hoggard submitted, regard should be Shad to the principles of common law Existing at the time the law was passed, and to any vested interests which fhe enactment might conceivably affect, fthe bylaw ( under consideration interfered with a common, law right of great Jsanctity. Every subject had the full Sight to sail on navigable waters. That fight was of such sanctity that the Crown itself could not deprive the subjject of it. It was not possible for the Ijishermen to use the island unless the facilities contemplated by the Legislature were provided. A MARKED DIFFERENCE. Mr. Hoggard said there was a marked (difference between the words prohibiting and regulating. The Empowering ■jAct prohibited the landing of vessels at certain parts of the foreshore, but jit regulated the use of certain areas JGf water. The bylaw, on the other hand, prohibited the entry of boats into certain defined areas of water, even for the purpose of saving life. The Act allowed the council to define certain areas of foreshore on which boats should not land, but the council had defined those portions sufficiently widely to include more than 99 per cent, of the available landing space. The council had left a ppace of nine feet, which was workable at low tide, and even in this space there jwere jagged rocks, which would very jsoon tear the bottom out of any boat. ,On another point the bylaw was totally .unreasonable. It provided that it was an offence for any fishing nets to be found on the prohibited area, no matter whether the nets had been carried inhere-by thieves or by act of God. The Empowering Act provided that the byJaws were to receive the assent of the {Marine Department, but the attitude taken up by the Department was that Jhe question as to whether the bylaw JPras unreasonable or not was one for Jfche Courts to decide. The fishing industry had been esjtablished at Island Bay for upwards of thirty, y.ears. In the days when it •was established there were at Island Bay a racecourse, a hotel, a few fishermen's huts, one or two residents, and a liermit living in a cave. The industry ihacl grown considerably in the meanjtime, and there were now engaged in ifche industry- 103 fishermen. A sumSier vOf the fishermen owned their own jtreehold homes in the Bay, and were pis'anxious as any other ratepayers to jfceep up the value of their homes. Thirty launches were used by the fishermen, jand a considerable capital was investJfed. Island Bay was the principal fsource of Wellington's fish supply, and ihe did not think the residents desired fro see the industry break down. This [bylaw, however, wouldl mean the abandonment of .Island Bay as a fishing centre. If the fishermen endeavoured to observe the bylaw there would be loss of life. EVIDENCE CALLED. The first witness called by Mr. Hoggard was Alexander Wilson, the chairman of the Cook Strait Fishermen's 'Association. He said that the launches Jised by the fishermen ranged in value |rom £600 to £2000. Cook Strait was pne of the most difficult places to fish j||ie knew, and he had fished extensively ioiind the United Kingdom. It would [Be impossible for the fishermen to carry on -under the bylaw, as they would not jhave enough beach room. His association did not object to any regulation |iimed at keeping the beach clean. Replying to Mr. Lockie, the witness aditnitted there were a number of flat {spaces at Island Bay, but dinghies |ould not be stored on them owing to Ihe necessity of crossing jagged rocks i'o reach them. The fishing ground Ixterided from Cape Campbell to Kapiti Island, and in most cases all the launches were out at the one time. The witness admitted that the fisherJbien washed out their dinghies on the jjbeach, but he did not think that praefice had any bad effect on the water p£ the bay. "You think that a few dozen scales 6nd a drop of blood would have a good £ffect, I suppose," said Mr. Lockie. "I would like to know what bad Effect' they would have," said the witness. Wilson said the fishermen had made fme effort to conform with the bylaw, knd found it absolutely impossible. No Objection had been made to the passing |f the bylaw, as the fishermen did not •know it was going through. "• Mr. Lockie asked Mr. Wilson what Jie thought of the island scheme. "I can't find words to say how |idiculous I think it is," was the witness's reply. Mr. Hoggard: "Where do you wash frour dinghies?" —On the water's page?"—" Bight in the water." "So the scales and so one are washed gut to sea?"— '■ (Yes." MR. GODFREY'S OPINION. George Crosby Godfrey, Secretary for Marine, said he and Mr. Furkert ihad acted as a Commission to inquire Into the Island Bay fishing problem. The finding of the Commission was that Ihe council should do everything possible to prevent .pollution, or should wake provision for the fishermen in the.

eastern bay. At present there was not sufficient room in the eastern bay to accommodate all the dinghies. Bathing and fishing was carried out on the same beach in other parts of the world. All the ratepayers wanted was that the beach should be kept clean, not that the fishing industry should bo curbed. The area which had been prohibited by the council was very much greater than he had been led to believe. It seemed to him that under different weather conditions the fishermen would have to be given alternative landing places, and the bylaw did not give them that alternative. George Herbert Baxter, secretary of the Cook Strait Fishermen's Association, said he had been fishing at Island Bay for six years. He agreed it would be impossible for the fishermen to obey the bylaw and carry on with their business. • Cross-examined by Mr. Loekie, the witness said the council, was making bylaws without knowing tho conditions under which the fishermen wore working. "The bylaw is an injustice and a disgrace to the British Empire," declared the witness. "And yet the Minister of Marine approved of it," said Mr. Loekie. Mr. Hoggard: "Under a misapprehension." The witness said the fishermen had to use the beach. They had to cross it - in order to get to their boats. Mr. Lockie: "Why must you cross the beach?" Witness: "Because we haven't got wings." (Laughter. The fishermen had carried out a test to show that the bylaw was unworkable, and they were prepared to repeat it in the presence of City Council officials. Mr. Hoggard asked if the Government had offered to subsidise any work that was carried out on the eastern side. Mr. Lockie objected to the question on the ground that it was not relevant. Mr. Hoggard said he had it from Mr. Godfrey that a subsidy wouia be available. Recalled, Mr. Godfrey said the bylaw made it necessary that some work should be- carried out on the eastern side. There was a grant of £1250 on the appropriations, and he had no doubt that would be.available. The Court adjourned until this afternoon.