THE SILVERSTREAM

Otago Daily Times, Issue 22070, 28 September 1933, Page 2

THE SILVERSTREAM

CHARGE OF POLLUTION ACTION BY ACCLIMATISATION SOCIETY DAIRY FACTORIES CONVICTED Mr J. R. Bartholomew, S.M., Rave his decision yesterday morning in the case brought by Mr David, ranger of the Otago Acclimatisation Society, against the Silverstream Dairy Company and the Mosgiel Co-operative Dairy_ Factory Company for allowing liquid injurious to fish to flow into the Silverstream. His Worship convicted each defendant in respect of the discharge on March 29. Mr P. S. Anderson appeared for the informant, Mr W. L. Moore for the Silverstream Dairy Company, and Mr E. J. Anderson for the Mosgiel Co-opera-tive Dairy Company. The judgment read as follows:

Each defendant is charged that on various dates set out in the respective informations it did allow to flow into a stream in which trout exist, namely, the Silverstream, liquid that was injurious to fish, contrary to Regulation 6 made under “The Fisheries Act, 1908." Mr David, the ranger for the Otago Acclimatisation Society, stated that on February 22 he saw about 180 dead fish between the Silverstream Dairy Factory and the Mosgiel septic tanks. There was a white milky liquid being discharged into the stream by the Silverstream Company, and the stream was extremely low and discoloured with a milky discolouration below the Silverstream Factory. He took a sample of the effluent mixed with water just below the discharge pipe and another sample 30 yards lower down, which ho took with dead fish to the Medical School. The gravel in the bed of the stream had a greyish fungus growth extending from the factory down nearly to the septic tankjj, which were not discharging that day, and the water above the factory was as clear as crystal and the gravel very clean, with weeds at the edge of the bank. On March 14 he made another visit, and again, found the discharge coming from the factory. On March 17 he found the stream polluted below the Silverstpeam Factory and also below the Mosgiel Factory. He saw a few trout in the stream below the Silverstream Factory, but they were in a lethargic condition. He took a sample of water above the Silverstream Factory and out of the effluent mixed with water about 50 yards below the point of discharge. On March 29 he took a sample of the crude effluent as it came from the pipe at the Silverstream Factory and also one from the Mosgiel Factory. On March 14 he caught 25 fish above the Silverstream Factory and placed them in a container which he took down below the Mosgiel Factory, and also took three gallons of fresh water in a bucket. He filled up two glass jars with the fresh water into each of which he put six live fish. He then filled a jar from the stream about 100 yards below the Mosgiel Factory, into which he placed six fish. He then stirred up the gravel with his feet and filled a jar with the polluted water, into which he also placed six fish. The fish in this latter jar died in three minutes, and the fish in the jar of water from the stream died in about ten minutes. The fish in the jars of fresh water showed no signs of distress after 30 minutes, and he liberated them above the Silverstream Factory and they swam away. On March 15 he made similar experiments. The fish put in the discoloured water taken from the stream died in three minutes. Fish liberated from the fresh water into the stream 100 yards below the factory swam about in an erratic way and died in a short time. The ranger says that the Silverstream is of great use to the society as a natural nursery for small trout, which are taken for liberation elsewhere.

Mr Maconie corroborates the ranger’s evidence as to the'condition of the stream on February 22 and as to the conditions and experiments on March 14. Mr fl. D. Purvis, research chemist at the Medical School, analysed sample taken by the ranger on February 22, and found it contained 1.14 grams per litfe of fat. This witness made tests of the effect of dairy waste on fish, and says he was satisfied that the damage was caused by depletion of the oxygen contents of the water. The tests made, being those recommended by the Royal Commission, showed that in a sample of water taken above the factories the oxygen consumed in five days was three parts per million by weight, and in the sample taken 50 yards below Silverstream Factory 280 parts per million, and in the sample taken 100 yards below the Mosgiel Factory 210 parte per million. The sample of crude effluent taken from the Silverstream Factory on March 29 ■ contained 7860 parts solids and 5910 parts organic and volatile per million, and the oxygen consumed in five days was 7200 parts per million. The Mosgiel Factory sample taken the same day contained 3320 parte solids and 2380 parte organic and volatile per million, and oxygen consumed in five days was 3700 parts per million. This witness says the Royal Commission recommended that the standard discharge into non-tidal rivers should contain not more than 30 parts per million of solids, and should not take up in five days more than 20 parte per million of dissolved oxygen. On March 27 this witness determined the oxygen content of the stream above the factory as being 9.76 parts oxygen per million, 50 yards below the Silverstream Factory the oxygen was reduced to 5.30 parts per million, and 100 yards below the Mosgiel Factory to 2.05 parts per million. Dr Hercus, professor of bacteriology, made a post-mortem examination of fish handed to him by the ranger on February 23. He found in the stomach and intestines a turbid fluid. He examined all the organs, which were perfectly healthy. He visited the Silverstream on March 17, and above the factory found active signs of fish and insect life—green algae in the stream and the bed clean and water clear. Below the Silverstream Factory there was a striking change, and a pollution carpet was extremely evident immediately below the discharge point; fish life was present,.but there was no green plant life, . and this has every significance with regard to the oxygen content of the water. Dr Hercus says the samples of the effluents are extremely rich in organic matter, and three hundred times more concentrated than they should have been according to the British standard, and that the samples from the stream 50 yards below the Silverstream Factory and 100 yards below Mosgiel Factory are stronger than the standard for crude effluents. Reduction of the oxygen content of 9.76 above the factory to 5.3 below Silverstream Factory would affect the vitality of the fish, and reduction to 2.5 below Mosgiel Factory is dangerous to fish. Young fish are much more susceptible. The oxygen demand of fry or small trout is approximately 7.5 parts per million, and below this is emphatically dangerous to small fish ilife. In cross-examination Dr Hercus said that the discharge of dairy products was not inherently dangerous to fish if there was a proper flow of water, but that it would need to be three hundred times greater than at the time of his investigation. Mr Dyer, of the Silverstream Factory, says the factory has been discharging into the Silverstream for 28 years. The cheese making season extends from October to May, and the whey is mostly carted away, but in December and January there may be 200 gallons surplus whey weekly not carted away. In February there may be 50 gallons surplus weekly. This surplus, together with the washings from the vessels, is discharged into the stream together with 10,000 gallons of water daily which is obtained from a well. During the last two years the Silverstream hag been exceptionally low, and on March 9 he found dead fish above the factory. Mr Hendry, manager of the Mosgiel Factory, says his company has been discharging into the Silverstream for 17 to 18 years. They wash down, using 20002500 gallons of -well water per day. Perhaps once a week 100 gallons of whey are discharged into the stream, and the rest is carted away. Several dairy_ factory managers and a Government inspector gave evidence that there are over 500 dairy factories in New Zealand, and that all these factories except those situated in cities discharge into streams in the same manner as defendant companies. These witnesses also depose that trout frequent the vicinity of the drains and feed on the factory waste, and some state that it is a recognised fact that the best fish are obtained at the drains. This evidence is not inconsistent with that of Dr Hercus, who stated that dairy products are not inherently dangerous, and if there is a proper flow of water

the dairies are giving the fish something to feed on, but he said that the water of the Silverstream at the date of inspection was grossly inadequate to receive the strength of the material being put into it. It is clear from the foregoing evidence that in the extremely low condition of the • Silverstream in February and March the discharge of dairy waste was injurious to fish. Dr Hercus, in fact, states that the flow of water required to be three hundred times greater to avoid danger by the discharge. It is contended for the defendants that the words “ any other liquid that is poisonous or injurious to fish ” are to be read as ejusdem generis with the preceding specific words of the regulation, and relate only to liquid that is inherently dangerous or noxious. Maxwell, sixth, p. 683, discussing the ejusdem generis principle of construction, states: "But the general word which follows particular and specific words of the same nature as itself takes its meaning from them, and is presumed to be restricted to the same genus as those words unless, of course, there is something to show that a wider sense was intended.” And at page 592: "Of course, the restricted meaning which primarily attaches to the general word in such cases is rejected when there are adequate grounds to show that it was not used in the limited order of ideas to which its predecessors belong.” And at page 696: “The general principle in question applies only where the specific words are all of the same nature. Where they are of different genera the meaning of the general word remains unaffected by its connection with them.” The whole question is exhaustively dealt with by M’Cardie J. in Magnhild v. MTntyre, 1920, 3 K. 8., 321, where the learned judge states: “It is interesting to contrast the presumption of restriction apparently indicated by Maxwell with the following words of Lord Selborne in Attorneygeneral v. Mercer, 8 Appeal Cases 764: ‘lt is a sound maxim of law that every word ought prima facie to be construed in its primary and natural sense unless a secondary or more limited sense is required by the subject or the context.’ ” The learned judge further states: “At the root of many cases involving the applicability or not of the ejusdem generis rule there might well appear to be a question as to whether a presumption exists that general words are prima facie limited by preceding Words.” “ In Thomson v. Dowgati Steamship Company, 1910, 1 K. 8., 410, considerable discussion arose as to whether the presumption of law is that general words are general until they can be shown to be particular or whether general words are ejusdem generis with the particular words until they can bej shown to be general without any limitation. If any presumption exists one way or the other, it might substantially affect the interpretation of many documents. Nowhere perhaps has it been definitely and authoritatively laid, down that any presumption exists. It is difficult to see how it could satisfactorily exist. For a fundamental rule of construction is that every part of a document must be fully considered ere any portion of such document be interpreted. Tf so it results that general words which are sequent to specific words cannot well be subject to any presumption at all, inasmuch as they cannot be considered separately from the preceding words without violating the fundamental rule." “ But, the rule of ejusdem generis cannot be applied at all unless there be some broad test for the ascertainment of genus. So far as I can see, the only test seems to be whether the specified things which precede the general words can be placed under some common category. _ By this I understand that the specified things must possess some common and dominant feature.” It is contended in the present case that the specific "receding words in Regulation 6 refer to substances inherently dangerous. I am doubtful whether sawdust and flaxmill refuse can be so described; it appears to me to he rather a question of quantity or degree before such substances become injurious. Assuming, however, that they are inherently dangerous, and can be so regarded as constituting a genus, it is to be noted that the following words are not mere general words, but are qualified, to wit, “or any other matter or liquid that is poisonous or injurious to fish, and themselves create a genus or category.. In considering the words of the whole regulation, the proviso excluding mining debris is significant—the implication being that without this exclusion mining debris would come within the category of “matter or liquid injurious to fish. I am unable, therefore, to accept the limited construction submitted for defendants. In my opinion, the discharge of dairy waste in the circumstances above detailed was that of a liquid injurious to fish, in contravention of Regulation 6. The further question raised was as to the applicability of the Fisheries Act to the Silverstream, the channel of which is partly natural and then a diversion was made from the natural channel > by an artificial cut from the Black Bridge to the Taieri River through which all the waters of the Silverstream were diverted. This artificial channel or cut is the portion in question in the present proceedings. This cut was put in by the settlers very many years ago, stated to be in the ’sixties. By the Taieri Land Drainage Act, 1907, the Silverstream was included in the Taieri Drainage District, and was subject to the provisions of the Land Drainage Act, 1904. The Taieri Land Drainage Act, 1910, abolished the > Taieri Drainage District, and a new district, the West Taieri Land Drainage District, was constituted- excluding the Silverstream, and by Section 6 of this act two commissioners , were to be appointed “ whose duty shall be to construct such works as* may be necesary for the opening up of the Silverstream to the Taieri River and for cheeking the travelling gravel therein.” Said Section 6 (2) stated; “For the purpose of such construction the said commissioners shall have all the powers and authorities of a drainage board constituted under the Land Drainage Act, 1908.” This section came under review in Brodrick, v. Blackie, 1916, G.L.R. 35, when Sim, J., stated: “The duty imposed on the commissioners is to construct such works as may be necessary for the specified purposes. When the Act of 1910 was passed the Silverstream was an existing watercourse, and the works required to be done may not he all of the nature of construction. It is obvious, therefore, that the word ' construct ’ is here used in the wider sense of execute or carry out. In order to enable the commissioners to carry out the specified purposes, they are clothed with all the powers and authorities of a Drainage Board under the Land Drainage Act. This involves the power to maintain the works authorised to be done, for otherwise the whole object of the legislation would be defeated. The result of the legislation, therefore, is that for the specified purposes the commissioners are empowered to execute, construct, and maintain such works as a drainage board is empowered to construct, and maintain.” The Taien River Improvement Act, 1920, abolished the commissioners, and section 22 (2) stated: "The Taieri County Council shall have and may exercise in respect of the Silverstream all the powers conferred upon the said commissioners by the said section 6 of the Taieri Land Drainage Act, 1910, and also all the powers of a River Board under the River Boards Act, 1908.” Counsel for defendants contended that the Silverstream is a “ drain ’’ or “ public drain,” into which drainage from residences, factories, etc., may be discharged. Counsel referred to section 5 of the Land Drainage Amendment Act, 1920, conferring the same power to make bylaws as are possessed by County Councils. The Counties Act, 1920, section 178, confers the following powers:—“The council may from time to time make by-laws (a) to regulate the use of any constructed drain unaer the control of the council: (b) to determine the conditions on which other constructed public and private drains may be connected or continue to be connected with any constructed drain under the control of the council, including in such conditions the payment to the council of any annual or other charges.” Reference may also be made to the Public Works Act, 1928, section 205 (m) empowering the County Council ..." generally to do all such, things as may he necessary for the efficient drainage of the lands and houses within the county.” Counsel contended that the County Council was empowered, therefore, to deal with not only surface water, but discharge from private drains as it thought fit, and that in the discharge of such functions it was not controlled by the Fisheries Act. . I assume for the purposes of counsel’s contention that the above statutory provisions cover more than land drainage or surface waters, though this is open to question. The two defendants, the Mosgiel Borough, the Mosgiel Woollen Factory, a slaughteryard, and some private dwellings discharge or have discharged into the Silverstream. Counsel contended that this was done with the express or tacit consent of the County Council. There

was no evidence whatever before me on this point beyond such inference as might be drawn from the prolonged and notorious discharge by the defendants. Section 25 of the Land Drainage Act was also referred to under which it is the duty of the controlling authority to construct and keep the dram so that it will not be a nuisance or injurious to public health, and properly cleared and cleansed and maintained in proper order, and it was submitted that any complaint as to the condition of the Silverstream must be directed to the controlling authority—the County Council. In my opinion this argument misconceives the powers which were conferred on the commissioners, and later on the County Council. As stated by Sim, J., in Brodrick v. Blackie: “The result of the legislation js that for the specified purposes the commissioners are empowered to execute, construct, and maintain such works as a Drainage Board is empowered to execute, construct, and maintain,” and the “ specific purposes ” are as stated in section 6 of the Taieri Land Drainage Act, 1910, “to construct such works as may be necessary for the opening up of the Silverstream, and for checking the travelling gravel therein." It is only for the discharge of such specific functions that the powers of a Drainage Board are conferred on the County Councih “ Control is acquired so far only as is necessary for the proper exercise of the statutory powers or duties of the local_ body ” (Brodrick v. Blackie), and the Fisheries Act can only be limited or affected in respect of the due exercise of such statutory powers. In case the above view is erroneous, I will deal further with counsel’s contention. • The first Fisheries Act, in the Salmon and Trout Act, 1867, section 2 of which provides for regulations “ for preventing lime or any other matter or liquid deleterious to fish being put into any river, or stream in which young trout, trout fry, or spawn is deposited or placed.” The records of the Acclimatisation Society show that young trout have been liberated in the Silverstream since 1869, and that between 1869 and 1901 48,027 young trout wore liberated in the Silverstream. The artificial cut in the Silverstream was made by the early settlers, subsidised by the Provincial Government, and there was no;, evidence that it was made by any statutory authority. It is merely the diversion of a stream from part of its natural course, which was the position in 1907 when the Taieri Drainage .District was constituted, and comes within the definition of “waters” in the Fisheries Act, 1908. “ Drain,” as defined in the Land Drainage Act, 1908, and also in the Public Works Act, 1928, includes all waters other than a navigable river. So, if the contention of defendant’s counsel is correct, the Fisheries Act would be completely nugatory except in the case of navigable waters. Obviously —the Fisheries Act dating from 1867 such a construction would be avoided if possible, and in my opinion tha express provisions of a special Act—the Fisheries Act are not controlled by the general and somewhat indefinite provisions of Acts dealing primarily with land drainage except in connection with the exercise of statutory powers in the 4 course Of construction or maintenance. A further argument was based on the fact that the waters of the Silverstream are vested in fee simple in the Dunedin City Corporation. By proclamation dated November 22, 1882 (New Zealand Gazette, November 23, 1882), the waters of the several streams specified in. the schedule thereto were vested in fee simple in the Dunedin City Corporation for the purposes of water works. The schedule included, inter alia, Silverstream River, “ main or east branch,” and Silverstream River, “west branch.” The land had been vested in the corporation by an earlier proclamation, I do not see that this affects the case. The City Corporation could no doubt impound and divert, all the waters of the Silverstream, but this has not been done, and water since that date appears to have flowed continuously down the whole length of the Silverstream and through the artificial channel to the Taieri River. The Silverstream, at all events that portion below the City Corporation, property, is “ waters ” within the meaning of the Fisheries Actf Defendants will therefore be convicted. Each information alleges discharges on several different dates which amount to several distinct offences. There can, however, be only one offence in respect of each information. Each defendant is convicted in respect of the discharge on March 20. . . His Worship stated that the minimum penalty was £2, and as the case was a test one he did not intend to impose a greater penalty than the minimum.. Mr E. J. Anacreon said the question of an appeal might be raised, and Ins Worship increased the amount of tne fine to £5 Is in respect of each defendant. . Court costs were fixed at. 10s m each case, solicitors’ fee £3 3s similarly, and witnesses’ expenses at £3 6s in each case.