AN ACCLIMATISATION DISPUTE

Southland Times, Issue 17735, 13 August 1917, Page 3

A N ACCLIMATISATION DISPUTE

societies in supreme court. OTAGO VERSUS SOUTHLAND. At the Dunedin sitting of the Supremo Ctourt on Friday, his Honour Mr Justice Sim presiding, there was heard, in Banco, the case Otago Acclimatisation Society v. Southland Acclimatisation Society, being a motion for an injunction restraining the le.tter Society from taking trout or trout ova from the Mairirua stream,a left bank tributary of the Mataura, and consequently in the plaintiff society’s district. Mr W. 0. MacGregor. K.C., with him Mr Allan, appeared for the plaintiff society, while Mr Eustace Russell defended. Probably an insight into the events Avhich led'up to the Court proceedings will enable readers to more readily understand the position. Briefly the facts arc these; For some years past the Southland Society has been drawing its chief supplies of trout ova from the Mairirua stream which offered the double advantage of being a good source of supply and within short distance of the society’s hatchery at Mataura. The Otago Society formerly drew its supplies of ova from the Water of Leith. On March 28, 1910, the Otago society wrote to the Southland society in these terms: “We had a good deal of trouble last year in getting a sufficient quantity of ova from the Leith to satisfy our requirements. Nowadays this stream is usually too low to allow the fish to run up from the Harbour, and this year it will be necessary for us to go to the Mairirua creek for ova.” The reply to this said: “We shall be' very pleased to leave our traps in the creek when we have finished collecting our ova, as was clone last year, if this nail be of any assistance to you.” On May 10 the Otago society again wrote, the principal sentences of their letter being; "I should feel obliged if you will kindly ask your curator to leave the Mairirua stream for our use this season, as we shall require this stream for collecting ova for ourselves. We trust this will not unduly inconvenience you.”

The attitude of the Southland society was fully set forth in its reply, dated June 21, to the above, in which the secretary of the local society stated: “I am instructed to inform you that the Mairirua was used by our late curator (Barr) for the purpose of procuring ova as fur back as July, 1909, and his successor (Friend• has continued the practice. The latter has facilitated access to the fish traps by the erection of a gateway. Your curator apparently did not know the possibilities of this stream until July, 1913, when Friend allowed him not only to use our traps but co-operated in every way. This assistance was further assured by our letter of April 14 last. I trust, therefore, that the above-mentioned facts will dispel the feeling which, I am informed, exists among your members, and acquit us of any luck of courtesy towards your society. We have yet to learn that any acclimatisation society has any property in the fish in the rivers or streams of its district. Your society Is welcome to collect ova from any river or stream in the Southland district. We neither can, nor would, object. We claim to exercise the same right on the Mairirua stream, but would not interfere with any collecting operations elsewhere. In view, however, of the difficulty of ova procuring mentioned in your letter, we have instructed our curator to allow your ranger free use of our traps, alternating weekly with our own use, for the remainder of the stripping season.” This offer was accepted. The matter rested at this point until February 28, 1917, when the Otago society notified the Southland society that it would require all its own streams for ova collecting purposes until such time as its requirements were fulfilled. On March 5 there was made an Order in Council reading; ‘•■No Acclimatisation Society shall, during the close season take any trout for the purpose of pisciculture from the waters of any river or stream within the boundaries of any other acclimatisation district, without the consent of the acclimation society from within whose rivers and streams it is proposed to take trout being first obtained in writing.” Then followed the present Court proceedings. Mr MacGregor, in his opening, drew attention to the Order in Council, adding that the plaintiff society had stocked the Mairirua stream with trout and ova, and since June the defendant society had taken trout and ova from this stream. The defendants denied this, but on the same terms they admitted that their curator had taken trout from the stream without the consent of the plaintiffs. Both societies were anxious to have an authoritative adjudication on the mutter. Mr MacGregor contended that, irrespective of the Order in Council, the defendant society had no right to take ova from the district of another society. Further, he held that the property in the trout, as well as the birds and animals, in the plaintiff society’s district was vested in the society. Counsel also read the correspondence outlined above. Mr Allan directed attention to the regulations made empowering acclimatisation socitirs to fix their own districts.

Mr Russell raised two defences: (1) That, under section 88 (b) of the Fisheries Act, defendants were lawfully entitled to procure ova from trout taken in any district. (21 That the regulation was ultra vires in that (a) there was no specific statutory authority authorising it, and (hi it was had inasmuch jus it was left to the caprice of any society to grant or refuse consent to any other desiring to take ova from the district of the first. Counsel contended that there was no property in either fish or streams vested in any society. In this respect the Fisheries Act differed from the Animals’ Protection Act where the property in the birds and animals was vested in the local society. Section 88 (bi of the Fisheries Act was fatal to the plaintiff's case. This section was headed, “Persons, etc,, exempted from the Act,” and read “Nothing in this part of the Act, or the regulations thereunder, shall apply to any person, with the written permission of any Oliver or person duly authorised by regulation hereunder to grant such permission, taking fish or ova for the bona fide purpose of ascertaining and verifying the existence or increase of such fish, or of removing them to stock other waters.” Ail the trout taken on behalf of the defendant society from the stream in question had been taken by Curator Friend, who was a fisheries’ officer appointed under the Act, which appointment was a dominion one. Mr Russell quoted two cjuses under the Fisheries’ Act where the regulations hail been held by the Supreme Court to he ultra vires. He also pointed out that, if the plaintiff society’s contention were correct, then the defendant society, whose hatchery was situated in the Otiigo district, could not lawfully strip ova from its stock fish at the hatchery, without the written permission of the Otago society. In reply Mr MacGregor argued that while the appointment of a fisheries’ officer did not, on the face of if, appear to be restricted to any one district, their functions were really limited by section 80 of the Fisheries Act to the district for which they had been appointed. The section empowered such officers to exercise the powers and authorities of a constable within the district for which he was appointed. His Honour reserved his decision.