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Another View of the Public Right to Fish ± and The SCOTT : ANOTHER VIEW OF THE PUBLIC RIGHT TO FISH : (2008) 19 WATER LAW 37 ANOTHER VIEW OF THE PUBLIC RIGHT TO FISH ± AND THE QUESTION OF REGULATION OR OWNERSHIP Are there limitations on fishing methods that may damage the benthic fauna or flora? PETER SCOTT Partner, Parkinson Wright LLP, Worcester Tom Appleby's article `Damage by fishing in the UK's WHELAN v HEWSON Lyme Bay ± A problem of regulation or ownership?'1 is The emphasis Appleby places on Whelan v Hewson an interesting analysis, albeit from a somewhat both in this article and in his submission to the partisan standpoint, of the scope that exists for European Commission justifies particular considera- state bodies to take measures to limit damage to tion of the extent to which this authority, if accepted as benthic fauna or flora of nature conservation interest persuasive in the English and Welsh courts, supports caused by a particular method of fishing, and by the proposition of a qualified right of public fishery. fishing in general. This article represents an alternative The decision is of particular interest to those practising viewpoint. in areas involving pollution and other activities Appleby argues that there are intrinsic common law injurious to fisheries because of the engagement of limitations to the right to fish, irrespective of statutory the special damage rule of public nuisance. This is prohibitions or restrictions on the public right. The controversial in common law jurisdictions: authorities implications of this are that the exercise or purported in Canada and Australia suggest that those who exercise of the public right to fish by particular exercise the public right of fishery cannot maintain methods may constitute a civil tort actionable by the an action in nuisance because, fishing qua members of owner of the seabed; that where that owner is a state the public, their loss is in theory no different from that body, there may be a specific obligation to take action of other persons. Other Canadian and US authorities against the tortfeasors, and the existence of the civil have not followed this principle in relation to inter- tort may then render other provisions of criminal law ferences with the rights of common fishery and of applicable against the tortfeasor. navigation. Appleby specifically suggests, by analogy with private Whelan v Hewson happened to uphold the right of law doctrines in relation to easements and profits aÁ action of a person exercising the public right of fishery prendre, that there can be exceedence of the public in a licensed fishery; ie where the class of persons who right. He also discusses the possibility that collateral could exercise the right of fishery was artificially environmental damage from fishing operations may be restricted by statute through a licensing system. considered ancillary to the public right of fishery. However, the judgments do not expressly determine this point, and the judgment of the Chief Baron relied The public right of fishing is Appleby's central concern. upon the suffering of special damage in the exercise of He argues in this article, and indeed elsewhere that, on the public right. the basis of the Irish case of Whelan v Hewson2 and the Canadian case in relation to boundaries Attorney It would be more precise to state that the appellate General for Canada v Attorney General for Quebec:3 court did not disturb the action of the trial judge, who `Under the public right, fishing is limited to what is allowed the question of particular and individual legal, reasonable and to activities which do not damage to be decided by the jury. Consequently the interfere with the rights of the owner of the ``solum'' plaintiff was determined by the jury to be able to or seabed'. Appleby then prays in aid reasonableness maintain an action. in the interpretation of what is legal and activities The defendant, interestingly, was purporting to exer- interfering with the rights of the owner of the cise the public right of fishery but in an area where the foreshore or fundus. exercise of the public right was prohibited, except where it was carried on under a right of several, or private, fishery. It was held that the defendant's fishing operations were illegal, not because of the nature of the nets used but because he was fishing in an area 1 (2007) 18 WL 30. The full text of this article is available on prohibited under the fisheries code. Therefore when www.lawtext.com. Appleby advances on the authority of Whelan v 2 Whelan v Hewson [1872] IR VI 283. 3 Attorney General for Canada v Attorney General for Quebec (1921) Hewson the view that: `Under the public right, fishing 56 DLR 358. is limited to what is legal, [and] reasonable . .', it would THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED WWW.LAWTEXT.COM 38 (2008) 19 WATER LAW : SCOTT : ANOTHER VIEW OF THE PUBLIC RIGHT TO FISH seem the first part of the proposition is effectively a mobile means employed to capture fish, or to make tautology, and the second is not supported by the them more amenable to capture. Fishing techniques particular authority cited. using mobile equipment (gears) have developed over centuries, and more recently over decades and even during the last few years. At no point has there been a ATTORNEY-GENERAL FOR CANADA v requirement for the manner of the exercise of the right ATTORNEY-GENERAL FOR QUEBEC to be evidenced by custom or long user, and the proposition that the nature of this exercise of the In Attorney-General for Canada v Attorney-General for public right can be qualified according to the manner Quebec, the issues principally concerned the extent to of its exercise at any particular time is not supported which the particular principles of French law, which by any authority. The analogy Appleby seeks to draw constitutes the common law of Quebec, were applic- with the prescriptive acquisition of profits-aÁ-prendre is able in relation to fisheries in place of the English not appropriate. If anything, the analogy would be common law, and the relationship between the with public rights of way. Once the public has a Dominion and provincial authorities in the grant of vehicular right of way, the intensity of its use and the fisheries. The only relevance of the judgment to the weight or speed of vehicles able to use it are unlimited issue of the conflict between the right of fishery and by common law. The invention of the first steam rights associated with the soil refer to the rights of the carriages and then vehicles powered by internal owner of soil to install and/or licence fixed engines, ie combustion engines did not give rise to any exceed- fishing structures. ence of the public right. As to the rights of the owner of the soil, which in Appleby's view conflict with the manner of the exercise of the public right, the judgment of the court ACCESS AND THE RIGHTS OF THE OWNER OF acknowledges: THE SOIL It is true that the public right of fishing in tidal waters does A fisherman needs to get to a position from which fish not extend to a right to fix to the solum kiddles, weirs or can be taken. This may be achieved by the right of other engines of the kind. That is because the solum is not navigation of vessels, by swimming in the waters vested in the public, but may be so in either the Crown or private owners. (interestingly, seemingly without the benefit of any right whatsoever), or by proceeding across the fore- In so far as the soil is vested in the Crown in right of the shore on foot (which is accepted as ancillary to the Province, the Government of the Province has exclusive public right of fishery). The use of land-based vehicles power to grant the right to affix engines to the solum, so upon the foreshore to access a fishery or to remove far as such engines and the affixing of them do not fish taken from it is not ancillary to the public right, interfere with the right of the public to fish, or prevent the regulation of the right of fishing by private persons although various attempts have been made to license without the aid of such engines. such vehicular use as ancillary. The use of amphibious vehicles which can be grounded as ancillary to the The last comments, expressed in the actual decision right of navigation for the more effective exploitation on the case, in fact acknowledge the opposite of a fishery gives rise to more interesting questions. principle to that propounded by Appleby, namely that Such vehicles are frequently used in France in the rights of the owner of the soil may not be connection with licensed mollusc culture. exercised in such a way as to interfere with the right of the public to fish. Vehicular access to a fishery forms one of the purported ancillary aspects of fishing which does Neither of the authorities upon whom Appleby constitute an infringement of the rights of the owner principally relies in support of his thesis of the of the soil, unless the access is with the owner's qualified right to fish seems to support the qualifica- consent. It may also be a criminal offence under the tions for which he argues. Consequently, it is appro- Road Traffic Act 1964 s 34. priate to turn the question on its head, and to consider the issues from the perspective of the fisheries Other infringements of the rights of the owner can comprised in the public right.
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