ANGLERS' RIGHTS

New Zealand Herald, Volume LXXIV, Issue 22819, 28 August 1937, Page 14

ANGLERS' RIGHTS

LAKE ROTO AIRA DECISION IN TEST CASE INFORMATIONS DISMISSED DEFECTIVE REGULATIONS Both informations in tho test case involving tho right of Europeans to fish for trout in Lako Koto Aira, in tho Taupo district, were dismissed yesterday in a reserved judgment by' Mr. C. It. Orr Walker, S.M., in tho Magistrate's Court. Eight prominent Auckland sportsmen were charged with two breacher, under tho Taupo trout fishing regulations, 1929, and the magistrate held that tho section affecting one broach was void, and that tho regulations covering tho other breach had omitted to provide for tho circumstances that had arisen.

Tho caso brought by tho Department of Internal Affairs against Cecil A. Whitney, Auckland, merchant, was taken as a test caso. It was alleged that ho fished for trout in Lako Roto Aira on March 28 last in breach of the regulations made with respect to the taking of trout in that lake, and that, being the holder of a licence entitling him to fish in any part of tho Taupo district, as defined by regulation, except in Lako Roto Aira, he fished for trout there. Department's Contention The department, for which Mr. V. R. Meredith appeared, contended that the sole rights of fishing in Lako Roto Aira were reserved to members of the Ngati Tuivharetoa tribe. The other defendants were Harold Erix Barrowclough, Auckland, solicitor (counsel for the defence); William W. Dove, Auckland, merchant; William Hollis Cocker, Auckland, solicitor; John Russell Gray, Auckland, solicitor; Ernest Astley Harding, Dargavillc, farmer; Bruce McLeod, Colyton, Fielding, farmer; and John Reeco Morris, Auckland, headmaster.

It was admitted, the magistrate stated, that the first regulation alleged to have been broken was also referred to in tho Taupo trout fishing regulations Ordcr-in-Council. These purported to have the authority of tho Native Land Claims Adjustment Act, 1921-22, granting tho Governor-General permission to make regulations authorising the Ngati Tuwharetoa tribe to take trout or other fish in Lako Roto Aira subject to conditions he thought fit to impose. A Regulation Ultra Vires

"The Governor-General made certain regulations under this Act," tho magistrate continued. "He made it lawful for any native of tho tribo to take trout from tho lake, without a licence or payment of any fee. Ho then gave power to any one of the tribe to authorise in writing any other native to take trout. Such power seems to be in direct conflict with the provisions of tho Act.

"The Governor-General then, provides that, except as provided in theso regulations, no person is entitled to fish in the lake, notwithstanding that he may be the holder of a licence to fish in any acclimatisation district, or of a licence to, fish only in the Rotorua district. There is 110 express power to make this regulation, and it is therefore ultra vires and void. There arc no penalties provided by the section in question, and it is difficult to understand why tho provisions of the regulations were not made statutory,."

No General Power of Prohibition Counsel for defendant had contended that there was on power in the Fisheries Act wholly to prohibit fishing in any particular waters within • the boundaries of the proclaimed district, such as Lake Koto Aira. Power was given entirely to prohibit fishing in certain waters for limited periods and in special circumstances, the magistrate said. However, oxccpt for these special purposes there was no general power to prohibit fishing in any particular lake. Referring to the second information, the magistrate said it was admitted that defendant was the holder of a licence issued under the regulations of the Taupo trout fishing district, which, for some reason that was not apparent, had been defined to include Lake Roto Aira, when it could have been excluded if its exclusion was really intended by the Legislature. The form of licence did not exclude or refer to Li-ke Roto Aira. It was ostensibly a licence to fish in any part of the Taupo district, subject to tho regulations in force. No Offenca Disclosed "It appears to mo that on the facts, and in view of tho terms of the licence he held, defendant had no right to fish in Lake Roto Aira," the magistrate added. "The question is whether in addition* to trespassing he also has committed a breach of any regulation and rendered himself liable to a penalty. I fail to see that the information discloses an offence under the regulations. "In my view a regulation was necessary containing appropriate words to the effect that a licence-holder shall not fish in any waters expressly excluded froni or not included in that licence," said tho magistrate. "Other than the regulation I. have held to bo ultra vires, there is no prohibitory clause against fishing in Lnko Roto Aira. If it was intended simply to prohibit fishing by Europeans in Roto Aira and to penalise such persons, then tho regulations have omitted to provide for tho circumstances that have arisen in this case. _ "The intention has not been carried into effect, and the Court cannot supply tho omission. The Court »must see that there are words to meet tho supposed offence before tho penalty clause can be applied." Drafting legislation

Dismissing both informations, the magistrate said-that -if his decision were sound, it would not be difficult to draft a provision for insertion in the appropriate Statute absolutely prohibiting all persons except natives 'of the Ngati Tuwharetoa tribe from, fishing in Lake Roto Aira. .Sections covering the matter had never done more than provide for members of the tribe having a right, and not tho solo right, to take fish from tho lake. "Parliament has never shown an intention to go further than this," said the magistrate. "The Executive has by Order-in-Council attempted, in ■ nxy opinion, unsuccessfully to enact a law giving the free right to fi,sh in the lake to certain other natives than members of that tribe and to prohibit Europeans from fishing there, a law entirely outside tho ambit of the Statutes."' " At the request of counsel for the department, tho magistrate agreed to iix costs as security for appeal. ,