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1 1980

FISHERIES ACT, 1980

PART V

Aquaculture and Salmon Levy

Aquaculture.

54. —(1) (a) It shall not be lawful for any person at any place to engage in aquaculture save under and in accordance with a fish culture licence, an oyster bed licence, a licence granted by the Minister under this section or an oyster fishery order.

(b) Any person who engages in aquaculture in contravention of this subsection shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500.

(2) (a) Subject to the following provisions of this section, the Minister may by order designate an area specified in the order to be an area within which it shall be lawful to engage in aquaculture pursuant to and in accordance with a licence granted by the Minister under this section.

(b) An order under this section which designates an area which is wholly or partly comprised of an area of the sea, or an order amending such an order under this section, shall not be made without the consent of the Minister for Tourism and Transport.

(c) An area specified in an order under this subsection may be wholly or partly comprised of any waters which by virtue of section 10 (9) of this Act may be included in a fisheries region.

(3) Whenever the Minister proposes to make an order under this section or to amend such an order the following provisions shall apply:

(a) he shall deposit and keep deposited, at such place or each of the places as he shall determine for such period (being a period of not less than three weeks beginning on the date of publication of the notice referred to in paragraph (b) of this subsection) as he shall determine, such plan or plans or other documents as will show clearly both the area and the waters therein to which the proposed order is to apply;

(b) he shall publish in the Iris Oifigiúil and in at least one daily newspaper published in the State notice of the nature of the intended order, and in addition to the foregoing such notice shall state that—

(i) representations and objections as regards the proposed order may be made in writing to the Minister during the said period (which representations and objections are hereby authorised to be made), and

(ii) copies of the documents deposited pursuant to this section may be inspected at any reasonable hour during the said period, and the place or places at which such documents may be so inspected.

(4) (a) The Minister, having regard to any representations or objections made under subsection (3) of this section, may, if he thinks fit, appoint a person to hold an inquiry and report to him in writing in regard to the proposed order.

(b) Where the Minister appoints under this subsection a person to hold an inquiry, every person by whom an objection to or representation as regards the proposed order is made shall be entitled to appear and be heard (either in person or through counsel or a solicitor) at the hearing.

(5) (a) Where the Minister, having complied with the requirements of subsection (3) of this section and having considered any report made to him under subsection (4) of this section, or in case no such report is made, any representations made under the said subsection (3) and any objections so made which are not withdrawn, is of the opinion that, notwithstanding the existence of any public right to fish in the waters to which the proposed order if made would relate, it would be in the public interest were an order under this section to be made, he may make such an order in the form originally proposed or with such variation or amendment as in the circumstances of the case he considers appropriate.

(b) In case the Minister makes an order under this section he shall, as soon as may be, publish notice of the making thereof in the Iris Oifigiúil and in at least one daily newspaper published in the State.

(6) The Minister shall not revoke an order made under this section unless he is satisfied that it is in the public interest so to do.

(7) Any person who is aggrieved by the making of an order under this section may, within the period of twenty-eight days beginning on the day on which notice of the making of the order is published pursuant to this section in the Iris Oifigiúil, appeal to the High Court against the order and a decision of the High Court on such an appeal shall be final and not appealable.

(8) An order under this section shall come into force—

(a) in case no appeal in respect thereof is taken under this section, on the expiration of the period during which such an appeal may be taken,

(b) in case such an appeal is taken, on the day next following the day on which the order is confirmed on appeal, or in case the appeal is withdrawn, on the expiration of the period mentioned in paragraph (a) of this subsection or on the day next following the day on which the appeal is withdrawn, whichever is the later.

(9) (a) Subject to subsection (10) of this section the Minister may, whenever and so often as he thinks fit, on payment to him of the prescribed fee (if any), by licence (in this section referred to as an “aquaculture licence”) authorise, subject to such conditions as he thinks fit and specifies in the licence, a person specified in the licence to carry on at a place or in waters so specified, being a place or waters situated within a designated area, such operations in relation to aquaculture as may be so specified, and in addition to the foregoing the Minister may, if he thinks fit, specify in an aquaculture licence, by means of a map or otherwise, the boundaries or limits of the place or waters in relation to which the licence is granted.

(b) The Minister may, with the consent of the Minister for Finance, prescribe fees payable in respect of licences granted by the Minister under this section (other than licences under subsection (15)).

(c) Every fee received by the Minister under this section shall be paid into, and be disposed of for the benefit of, the Exchequer in such manner as the Minister for Finance shall direct.

(10) (a) An aquaculture licence shall not be granted to engage in aquaculture within the limits of any oyster bed or oyster fishery which is either an oyster bed or oyster fishery described in section 245 (2) (b) of the Principal Act or one to which an oyster bed licence or oyster fishery order relates, without the consent of the person who for the time being is beneficially entitled to the oyster bed or, as the case may be, oyster fishery.

(b) An aquaculture licence to engage in aquaculture within the limits of a several fishery shall only be granted—

(i) to the owner of such fishery, or

(ii) with the consent in writing of such owner.

(c) An aquaculture licence shall not be construed as taking away or abridging any right on, to or over any portion of the seashore which is enjoyed by any person in any manner described in section 267 of the Principal Act or any right of several fishery, without the consent of the person who is beneficially entitled to the right.

(d) Where an aquaculture licence is granted with the consent of any owner and a period is specified in such consent, the licence shall remain in force only for that period.

(e) Subject to paragraph (d) of this subsection, an aquaculture licence shall, as may be specified therein, be perpetual or terminable and shall be binding on the State and on all persons whatsoever and shall operate to enable the person to whom it is granted, his heirs, executors, administrators and assigns, to carry on, in accordance therewith, such operations as are therein specified, free from all prior or other rights, titles, estates or interests (if any), and in addition to the foregoing the person who is, for the time being, entitled to the benefit of the licence shall, by virtue of the licence, be entitled, within the boundaries or limits specified in the licence, to the exclusive right to conduct the operations so specified and in exercise of that right, may, subject to any condition specified in the licence in that regard—

(i) at any season deposit, propagate, collect or take any thing,

(ii) at any season take or remove any thing and deposit or place it where he thinks fit, and

(iii) do, make or maintain any thing in connection with or for the purposes of any such operation.

(f) The Minister may amend any aquaculture licence so as to give effect to any agreement or undertaking which, subsequent to the date of the licence, may have been given or entered into by or on behalf of any person entitled to the benefit of the licence with any other person.

(g) Sections 263 and 264 of the Principal Act shall with the necessary modifications each apply to any operation carried on pursuant to a licence under this section as they apply to an oyster fishery granted under an oyster fishery order.

(h) The Minister shall not after the commencement of this section either grant an oyster bed (1959 Act) licence or make an oyster fishery (1959 Act) order and sections 245 (1) and 256 of the Principal Act shall each be construed and have effect subject to the foregoing provisions of this paragraph.

(11) Notwithstanding anything contained in the Principal Act or any instrument thereunder, a licensee and any person acting under the directions of a licensee may, subject to the conditions specified in the licence, do any of the things authorised by the licence.

(12) (a) Subject to subsection (14) of this section, the Minister may revoke or amend an aquaculture licence if he considers that it is in the public interest so to do.

(b) Without prejudice to the generality of paragraph (a) of this subsection (but subject to subsection (14) of this section), the Minister may revoke an aquaculture licence if he is satisfied that there has been a breach of any condition specified in the licence or that the aquaculture fishery to which the licence relates is not being properly maintained.

(13) Where the Minister proposes to make an order under this section, a person may during the period specified in a notice published pursuant to subsection (3) of this section inspect at any reasonable hour any document deposited pursuant to the said subsection (3) in relation to the proposed order.

(14) The following provisions shall apply in relation to the amendment or revocation of an aquaculture licence—

(a) the Minister shall not amend or revoke the licence unless and until he has given by post to the licensee at least twenty-eight days notice in writing stating that the Minister has under consideration the amendment or revocation, as the case may be, of the licence,

(b) the notice shall also state—

(i) in case it states that the Minister has under consideration the amendment of the licence, the specified amendment under consideration and the grounds on which it is so under consideration, or

(ii) in case it states that the Minister has under consideration the revocation of the licence, the grounds on which such revocation is so under consideration,

(c) the Minister shall consider any representation in relation to such amendment or revocation, as the case may be, made to him by the licensee before the expiration of the notice,

(d) where pursuant to subsection (12) (a) of this section the Minister revokes an aquaculture licence, the licensee shall be entitled to be paid by the Minister compensation for any loss suffered by him by reason of the revocation, and in default of agreement the amount of such compensation shall be determined under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919.

(15) (a) A person who immediately before the passing of this Act was engaged in aquaculture may apply to the Minister for a licence under this subsection and the Minister shall if he is satisfied that the person was lawfully so engaged authorise, subject to such conditions as the Minister considers appropriate and specifies in the licence, the person to carry on at the place or in waters at or in which the aquaculture was so carried on (which place or waters shall be specified in the licence) the operations in relation to aquaculture in which the Minister is satisfied that the person was so engaged (which operations shall be so specified).

(b) (i) Subsection (10) (a) of this section shall apply to a licence under this subsection as it applies to an aquaculture licence.

(ii) Subsection (10) (e) of this section shall apply to a licence under this subsection but for the purposes of the foregoing shall be construed as if for “Subject to paragraph (d) of this subsection, an aquaculture licence shall, as may be specified therein be perpetual or terminable” there were substituted “a licence under subsection (15) of this section shall be perpetual”.

(c) Any person who is aggrieved by a decision of the Minister for a licence under this section may, not later than thirty days after the day on which the decision is given, serve on the Minister a notice of appeal to the Arbitrator against the decision, and the Arbitrator may on such appeal confirm the decision with or without modification or reverse the decision.

(16) In case the Minister makes an order under this section, then for so long as the order remains in force the Minister shall not grant any fish culture licence as regards any place situated within the area specified in the order.

(17) Where—

(a) a person by trespass, fishing or otherwise interferes with anything done pursuant to an aquaculture licence, and

(b) such interference is carried on without the permission of the licensee,

notwithstanding the existence of any public right to fish the person so interfering shall be guilty of an offence and shall be liable—

(c) on summary conviction thereof, to a fine not exceeding £500, or at the discretion of the court, imprisonment for any term not exceeding six months or both such fine and such imprisonment,

(d) on conviction thereof on indictment, to a fine not exceeding £2,000, or at the discretion of the court, imprisonment for any term not exceeding two years or both such fine and such imprisonment.

(18) This section shall come into force on such day as the Minister shall therefor fix by order.

(19) In this section—

aquaculture”, except in “aquaculture licence”, means the culture of any species of fish, aquatic invertebrate animal of whatever habitat or aquatic form of any food which is suitable for the nutrition of fish;

aquaculture licence” means a licence granted by the Minister under this section;

designated area” means an area standing designated for the time being by an order under this section;

fish culture licence” means a licence granted under section 15 of the Principal Act;

licensee” means the person to whom a licence under this section is granted or the person who by virtue of subsection (10) (e) of this section is for the time being entitled to the benefit of the licence;

oyster bed licence” means an oyster bed licence within the meaning of Part XIV of the Principal Act;

oyster fishery (1959 Act) order”, “oyster bed (1959 Act) licence” and “oyster fishery order” have the meanings assigned to them, respectively, by Part XIV of the Principal Act.

Salmon levy.

55. —(1) In this section—

first or only sale” does not include a first or only sale by the licensee under a fishing licence which is made bona fide to a person for his personal use;

the Moville Area” has the meaning assigned to it by the Foyle Fisheries Act, 1952 ;

salmon” does not include salmon preserved and contained in tins, bottles, jars or similar containers holding portions of fish or products of fish.

(2) (a) Subject to subsection (5) of this section, the Minister may from time to time by order provide for the payment to the Minister of a levy at the prescribed rate on every first or only sale of salmon.

(b) The said levy shall be calculated at the prescribed rate and be assessed either on the price fetched on the first or only sale or in such other manner as may be prescribed.

(c) In the foregoing paragraph of this subsection the reference to the price on the first or only sale shall, where the purchaser is a purchaser outside the State, be construed as a reference to the price which, in accordance with the regulations under subsection (3) of this section, is to be attributed to such sale.

(d) Subject to subsection (5) of this section, the levy under this section shall be paid—

(i) in case the first or only sale is by the licensee under a fishing licence to a licensed salmon dealer or to the proprietor of any hotel, guest house, restaurant or other premises or place in the State at which board and lodging or meals are provided for reward, by such dealer or proprietor, and

(ii) in any other case, by the person who is the seller on the first or only sale.

(3) (a) The Minister may from time to time, after consultation with the Minister for Finance, by regulations prescribe the rate to be paid under this section on every first or only sale of salmon and the manner of payment and, in the case of sales where the purchaser is a purchaser outside the State, the prices to be attributed to such sales.

(b) Different rates of levy under this section may be prescribed for different periods and, in the case of sales where the purchaser is a purchaser outside the State, for different classes of sales.

(c) Different manners of assessment under this section may be prescribed for different classes of sales where the purchaser is not a purchaser outside the State.

(d) When preparing regulations to be made under this section prescribing prices to be attributed to sales the Minister shall take into account the market prices then current in the State for first or only sales of salmon.

(4) Any moneys received by the Minister under subsection (2) of this section shall be paid into the Salmon Conservancy Fund.

(5) (a) Unless an order under this section expressly states that it applies to first or only sales in the Moville area of salmon, the order shall not be construed as so applying.

(b) An order under this section which contains the provision referred to in paragraph (a) of this subsection may, if the Minister thinks fit, also provide for either or both of the following:

(i) that moneys payable on foot of levy under this section and which relate to first or only sales in the Moville area of salmon shall be paid to a prescribed person,

(ii) that such moneys when duly received shall be disposed of in a prescribed manner.

(c) Where an order under this section which applies to first or only sales in the Moville area of salmon is for the time being in force, the provisions of this section, in so far as they apply to that area, shall be construed and have effect subject to such modifications (if any) as are necessary having regard to the terms of the order.

(6) The Minister may make regulations requiring any person by whom levy under this section is payable, or any person who is of a prescribed class or description, to—

(a) keep in the prescribed manner records of the weight of salmon handled in the course of his business together with—

(i) in case such salmon is purchased by him, records of the price paid by him therefor, and

(ii) in case such salmon is not so purchased, records of the price received by him therefor, and

(iii) in either such case, such other particulars (if any) as may be prescribed,

(b) afford such facilities for the inspection of such records and to furnish to the Minister or other person as may be prescribed such returns as may be prescribed.

(7) Where—

(a) the Minister is not satisfied that a price recorded in relation to particular salmon in purported compliance with regulations under this section is the price fetched on the first or only sale of the salmon, and

(b) he reasonably believes that a price higher than that so recorded would have been obtainable on such sale, he may determine in writing such higher price,

and in case such a higher price is so determined, then for the purposes of this section the higher price so determined shall be taken to be the price fetched on the first or only sale of the salmon to which the determination relates.

(8) Any person who contravenes, whether by act or omission, any regulation under this section shall be guilty of an offence and shall be liable on summary conviction thereof to a fine not exceeding £500.

(9) Every sum payable by a person for or on account of levy under this section shall be a simple contract debt due by that person to the person to whom it is payable under this section or under regulations made under this section and shall be recoverable accordingly in any court of competent jurisdiction.

(10) In any legal proceedings against a person for any money claimed to be due by the person in respect of levy under this section a certificate under the seal of the Minister or, in case the levy is payable in respect of salmon sold in the Moville area, under the hand or seal of the person prescribed by the Minister pursuant to subsection (5) (b) (i) of this section, certifying that the person was liable to pay levy under this section of a specified amount and that a specified sum is due and unpaid by the person on foot of the levy, together with a certificate under the said hand or seal certifying that the sum has not been paid by the person, shall be prima facie evidence as to the liability for and amount of levy and as to the sum which is due and unpaid by the person in respect thereof.

(11) The provisions of subsection (6) of this section are in addition to and are not in substitution for the provisions of section 163 of the Principal Act.