Oyster Fisheries Act of 1884 No 23a (NSW)

No. 6. 48̂ ̂VIC. 1884.

Oyster Fisheries.

No. VI.

otstee pisheeiks An Act for the amendment of the “ Fisheries Act 1881” the promotion of Oyster Culture and the Regulation of Oyster Fisheries. [21̂ ̂July, 1884.]

Preamble.

HEREAS in many tidal waters of the Colony the supply of

Oysters hotli on the deep water-beds and on foreshores has by

overdredging and other causes been either exhausted or greatly

impaired And whereas the encouragement afforded to oyster cmlture

by the existing law has been found to be insufficient and it is necessary

to amend the “ Eisheries Act 1S81 ” Be it therefore enacted by the

Queen’s Most Excellent Majesty by and with the advice and consent

of the Legislative Council and Legislative Assembly of New South

Wales in Parliament assembled and by the authority of the same as

follows :— .

Short title and

1. This Act may be cited as the “ Oyster Eisheries Act of 1884 ” and for the purposes thereof the expression “ Commissioners” means the Commissioners of Eisheries—“ Governor ” means the Governor with the advice of the Executive Council—“ High-water-mark ” means the mean line between high-water at sjning and at neap tide—“ Prescribed” means prescribed by this Act or by regula­ tions made thereunder—“ Eoreshore ” means the portion of Crown Lands situate between the line of high- and of low- water-mark— “ Oyster ” means every kind of oyster together with the spat brood and ware thereof—“ Leased area” means any portion of land leased for oyster culture under this Act or the Acts liereby in part repcahA— and “ Lawful authority ” means an authority the nature and effect whereof must be proved by the person who sets it up by way of exemption.

interpretation.

Bepeal of enact­

ments.

2. The enactments specified in the Schedule shall to the extent therein indicated be repealed but no act done offence committed or proceeding commenced before the passing of this Act under any such enactment shall (save as is hereinafter expressly enacted) be affected by the repeal thereof All regulations and proclamations made under the authority of any of such repealed enactments shall be and until rescinded by the Governor as hereinafter provided continue to be of the same force and effect as if this .?Vct had not been passed And all dredging licenses issued before the passing of this Act shall subject to the leasing provisions of this Act have the like force and effect during

then’ currency. _

to applications for

Special provision as 3. Notwithstanding the repeal effected by the last preceding

_____ ____	section all applications for leases of Crown Lands for oyster culture made
leases made under

repealed enactment*, before thc passing of this Act and provisionally recommended by the Commissioners to be carried into effect shall be dealt with under thc enactments hereby repealed so far as the same are applicable to the issue of such leases but all such leases shall as to payment of rent royalty and all other obligations and conditions be held under and subject to the provisions of this Act and the regulations made there­ under Provided that all such applications shall be subject to the following directions and conditions namely ;—

(l.) In any case where two or more persons have applied for the

same area the application to be first dealt with shall be that

which was first lodged and if several such applications were

lodged

1884 48° VIC. No. 6. 39

Oyster Fisheries.

lodged at the same time the right to priority sliall be determined by lot in such manner as the Commissioners shall direct If after tlic satisfaction of any application entitled to priority any residuary area remains such area may he allotted to the applicant next in order of time and so on.

(ii.) Any application may lie withdrawn by the applicant who made it whereupon any sum deposited as payment of rent in advance shall he returned to the applicant.

(ill.) I t shall not he an objection to the issue of a lease of Crown lands to any such applicant that the area applied for contains one or more natural oyster-beds. within thc meaning of the Acts hereinbefore in part repealed if such bed or beds bo not situated on any public oyster reserve notified under the thirty-third section of the “ Eisheries Act 1881 ” or under this Act.

(iv.) Where the area applied for abutted at the date of application on Crown land above the line of high-watcr-mark which since such date has been alienated by the CroAvn thc appli­ cation shall not thereby be prejudiced nor shall the right of thc applicant he det'eated by the holder of thc land so alienated.

(v.) I t shall not he an objection to thc issue of a lease to any applicant that such applicant Avas not at the date of his application either an OAvner lessee or occupant of thc land abutting on or hounded by the area applied for within the meaning of the “ Eisheries Act 1881 ” as amended by the “ Eisheries Act Amendment Act 1883 ” unless the OAvner or agent lessee or occupant of the land abutting on that d(!scrihed in tin; application for such lease shall Avithin sixty days after the passing of this Act himself apply for a lease of thc same under.the fourth section of this Act.

(vi.) Before any lease is issued to any such applicant or any authority is granted to him Avhei’eby he may he put in possession of the ground applied for there shall ho lodged Avith the Commissioners by or on behalf of such applicant a Treasury receipt for the payment in advance of thc full amount of the first year’s rent pursuant to the respective enact­ ments hereby repealed And for thc purposes of computing such payment the term shall Ik; taken to have commenced on the day of the passing of this Act.

4.                 Oyster culture leases of CroAvn Lands in any tidal AAntc;rs Leases of Crown

or in any lake or lagoon communicatiiig therewith may be granted by ^

thc Governor Sucli leases shall be subject to the conditions and

provisions folloAving ;—

(i.) Tlic term of any such lease shall not exceed fifteen years rencAvable from time to time on thc application of thc lessee during the twelfth year of thc term if the GoA êrnor shall be satisfied after report by an Inspector to thc Commissioners that thc area leased is fairly stocked with oysters and has been properly Avorked in accordance; Avith the conditions of the lease and thc regulations.

(ii.) No leased area measured along the foreshore shall exceed two thousand linear yards unless upon sjiecial recommendation of the Commissioners tin; Governor sliall think fit to enlarge such length But nothing in this section contained shall prevent the Governor from granting leases according to pre­ scribed dimensions and areas provided that no such area sliall exceed tAV(;nty-five acres or be leased at a less annual rental than two iiounds per acre.

( I I I . )

No. 6. 48° VIC. 1884.

Oyster Fisheries.

(ill.) The annual rent sliall he at the rate of twenty shillings for every linear hundred yards ineasnred along the foreshore in tlie prescribed manner and in any case wlierc tlic fore­ shore on both sides of a tidal Avatcr is included in a lease such foreshore shall he measured on both sides for the purpose of ascertaining thc rent Such rent shall he paid at the times and places and to the persons prescribed.

(iv.) Such leases may he granted on ajiplication or he disposed of by auction or tender as thc Governor may from time to time direct and shall be held subject to the payment of a royalty to Her Majesty of three shillings per hag containing not more than three bushels of oysters.

(v.) Occupation under any such lease shall not gHc any right to the lessee to occupy or use any portion of Crown lands abutting on hut not included in his lease except for such purposes and during such times as may 1ic prescribed.

(vi.) Any leased area may he described in the lease by reference to posts stakes buoys marks or natural features showing the limits of such leased area in a manner sufficient to alloiv of their identification.

(vii.) Ea 'ciw such lease shall vest in the lessee his executors administrators and assigns the exclusi\'c right during the currency of the lease of laying and planting oysters on and of dredging and taking oysters from the area leased hut subject always to the right of any inspector or authorized officer to enter npon such area for any authorized purpose,

(viii.) The Governor may if recommended by the Commissioners accept a surrender after the third year of its currency of any lease granted under tliis section in any case Avherc it shall appear to thc satisfaction of the Commissioners that oyster culture cannot be carried on npon the leased area Avith any reasonable hope of success or Avhere from any other reason the Commissioners shall report in favour of such surrender,

(ix.) Every snch lease shall be subject to such conditions and provisions as may he prescribed by the regulations or approved by the Governor.

Every leased area shall he subject to all reclamation rights conferred by thc ninth section of the “ CroAvn Lands Alienation Act of 1861 ” or any Act amending the same. ProA'ided that thc OAvner or his agent lessee or occupant of the land abutting on that described in any application for a lease or in any notice offering a lease for disposal by auction or tender shall have priority of claim if he shall Avithin sixty days after the passing of this Act himself apply for a lease hereunder.

Notice before	5.	Before any such lease applied for after thc passing of this
granting lease.

Act shall be granted thc Commissioners shall cause a notice of the application to he inserted in the Gazette and in some newspaper circulating in thc Police District Avithin AA'hich the land applied for is situated And any person may by memorial to the Commissioners within thirty days after the date of such notice pray that the lease applied for be not granted on grounds to be therein stated.

Penalties in i-cspect 0. I t shall not he lawful for any person other than the lessee

to leaseT

his agcnts and servants Avithin the limits of any leased area to do any

of the following acts viz.:—

(i.) To take or in any Avay disturb or interfere with any oysters

Avithout tlic consent of tlit' holder of thc lease

(i i .) To deposit any stone ballast rulibish or substance

(ill.) To dredge or drag Avith any implement unless by direction

of tlie Commissioners or the proper officer of thc Department of Harbours and Bivers or the Marine Board and in any sncli case on payment of compensation for damage done (if anv)

' ( i v . )

1884. 48“ VIC No. 6.

Oyster Fisheries.

(iv.) To use any iinplement of fishing except a lino and hook	‘
(v.) To place any implement or thing likely to injure oysters except for a lan ful purpose of navigation or anchorage

And if any person does any act in contravention of this section he shall

he liable for thc first olfcncc to a jienalty not exceeding five pounds and

-

for thc second offence to a penalty not exceeding ten nor less than five pounds and for a third or subsequent offence to a penalty of twenty pounds And shall he liable to make compensation to thc lessee for all damage sustained by such lessee hy reason of such person’s unlawful act and in default of payment the same may be recovered by thc lessee in any Court not incompetent hy statute in respect to thc amount or nature of the claim and whetlu'r such person has been convicted of an ollencc under tliis section or not.

7. If it shall appear to thc Commissioners tliat any lessee has Commiesionors

not within a ])criod of two years from the date of his lease taken nroner

measures to carry out the conditions of his lease or that upon any in certain cases,

such inspection as is mentioned in thc fourth section of this Act the condition of thc leased area is such as to disentitle thc lessee to a renewal of thc lease they may recommend thc Governor to revoke the lease And thc Governor shall have power to revoke thc same accordingly by notification in thc Gazelle and upon thc puhlication of such notifica­ tion all rights and privileges granted hy such h'ase and thc unexpired term thereof shall cease and determine Provided always that before making such recommendation the Commissioners shall cause a notice in writing stating their intention to make such recommendation to he served on thc holder of thc lease or in case such person cannot be found they shall cause such notice to be inserted at least three times in a newspaper circulating in the Police District nearest to thc area leased and also to be published once in thc Gazette No sficli recom­ mendation shall be made until after the expiration of one calendar month from service or thc publication of such notice in thc Gazette. -

8. Thc Governor by notification in thc Gazette may declare aiiy Portions of certain

portioir of Crown Lands whether applied for bf'forc the passing of this i»ay be Act as an oyster lease or not containing deposits ot oysters to be a or bAu-ciarea public

public oyster reserve and to be exempt from thc power of leasing	reserves,
conferred liy tiiis Act citlicr absolutely or for a limited period and on the recommendation of the Commissioners in like manner may cancel any such notification wholly or in part.

9. If any person Avithout lawful authority shall dredge for or penalty for unlawful

otherwise take from any puhlic oyster reserve or leased area any oysters tirecigitg for oysters,

or shall be found dredging for or attempting to take oysters Avithin thc

limits of such reserve or leased area he shall incur apenalty not exceeding

tAventy pounds and not less than five pounds and all oysters found in his

possession shall be deemed to be oystcrsunlaAvfullytakcnbyhimand shall

on his conviction he forfeited to the use of Her Majesty or be returned

to thc rightful OAAUicr as the circumstances of thc case shall require.

10. If any person shall dredge for or take oysters from any Oysters uot to bo leased area or from aiiA" beds or deposits on Crown Lands at any time ‘̂ reiigod between betwettn sunset and sunrise except under special permit he shall incur

a pcnaltv for cA’crv otl'encc not exceeding fift pounds. J. O J

11. All oysters Avithin thc limits of any leased area shall be thc Property in oysters

absolute property of thc lessee and shall for all purposes AAdiatsocver be deemed to be in thc actual possession of such lessee And all oysters removed Avithout biAAfiil authority hy any ptn’son from any such area shall be deemed to be thc property of such lessee and he shall be deemed to have thc right to thc possession tliereof for all purposes Avhatsocver Oysters on a public oyster reserve or on CroAvn Land not under lease and oysters taken therefrom Avithout laAvfid authority shall be deemed to be thc property of Her Majesty.

S’ 3L2,

No. 6. 48̂ VIC. 1884.

Oyster Fisheries.

Penalty on burning	12. Every person who shall gather or burn live oysters for the purpose of converting their shells into lime shall whether he be the holder of a lease under this Act or not incur for every such offence a penalty not exceeding fifty pounds.
lire oysters for lime.
As to collection of
Royalties.	13. All Eoyalties to be collected under the authority of this Act or the Regulations shall be collected and the payment thereof enforced by thc Collector of Customs in the same manner as any Customs duty imposed by law.
Wtien natural	11. Whenever the Commissioners report that any bed or deposit of oysters on Crown Lands not under lease has by over-dredging or from any other cause been reduced to such a state that the taking of oysters therefrom ought to be suspended thc Governor may prohibit by proclamation in the Gazette for any term not exceeding three years the taking of oysters from the bed or deposit And if any person shall without lawful authority at any time during the period mentioned in such proclamation take or attempt to take oysters from any bed or deposit described in such proclamation such person shall incur a penalty not exceeding twenty pounds nor less than five pounds And all oysters and the hags containing them together with all dredging or other appliances for the taking of oysters found in the possession of any person so offending may be seized and upon conviction of the offender shall be forfeited to Her Majesty And the Governor may in like manner rescind any such proclamation or any proclamation made under the hereinbefore in part repealed Acts relating to thc opening or closing of oyster-beds.
oyster-beds may be
closed.
Limitation of	15. Nothing in this Act shall rcmhu’ liable to a penalty any person who takc's oysters from the foreshore abov(i low-Avater mark from CroAvn Lands not leased under this Act for his own consumption and not for the purpose of sale.
penalty.
Regulations may be	16. The GoA'ernor may from time to timê m ale regidations for the purpose of giA'ing effect to tin; provisions of this Act in all matters of detail whatsoever And among such purposes shall be included the following namely :—
made and rescinded.

(i.) Eor taking oysters from Crown Lands not under lease under such limitations as to number of licensed dredgers as the Commissioners shall deem fit and subject to thc payment of the prescribed license fees and royalties and inspection and for the seizure and disposal of oysters unlawfully remo ed from Crown Lands

(ii .) Eor marking the boundaries of and periodically inspecting public oyster reserves and leased areas *Vnd to give due effect to the intent of this sub-section every inspector and every officer duly authorized by the Commissioners shall have a right of entry on all lands Avliatc er for purposes of survey or of erecting and maintaining beacons or other marks for or in connection Avith the boundaries of leased areas or Public Oyster Reserves

(ill.) Eor the allotment or sale of young or foreshore oysters on public oyster reserves to the holders of leased areas

(iv.) Eor determining the size of marketable oysters and the

penalties for selling or exposing for sah' undersized oysters

and for disposing of or sidling oysters seized or forfeited under

' this ^Vet

(v.) Eor the protection and regulation of Public Oyster Reserves for the limitation and regulation of dredging by divers on such resei'A'CS and for the protectioji and regulation of all boundary beacons buoys or other marks

, - ̂ (VI.)

1884 48*̂ VIC. No. 6.

Oyster Fisheries.

(vi.) Eor compelling lessees and other persons to return all undersized oysters together Avith all dead shells cultch and substances drcalged up from beds in such a manner as may be most beneficial for the preservation of such beds

(vii.) Eor preventing the destruction of oysters hy refuse from saiv-mills paper-mills gas-AA"orks or hy any other deleterious matter and for prohibiting such matter from being deposited in tidal AA'̂ aters

(viii.) Eor prescribing thc amount of jienaltics for breaches of

any such regulations

(ix.) Eor prcA^enting lessees and others from disposing oE cultch or any dredged refuse so as to impede the access hy Avater to CroAvn or prwate land abutting on leased areas.

Provided that no such penalty shall exceed fifty pounds And all

such regulations shall he published in thc Gazette and Avhen so

published shall have the force of laAV and a copy thereof shall he laid

before each House of Parliament Avithin fonrtceen days after the

]naking thereof if Parliament he then in session and if not then	'
Avithin fourteen days after thc commencement of the then next ensuing session Hie Governor may in like manner rescind any regulatio]! made or purporting to he made under the authority of any of the enactments hereiuhefore repealed Avhich he may consider incon­ sistent Avith tlie meaning or intent of this Act.

17. The ndjudieating J ustices shall liaA C poAver to aAvard to thc Appropriation of

informer seizing officer or prosecutor an amount out of every penalty fine or forfeiture not exceeding in thc aggregate thereof one moiety

and thc remainder shall be paid into the Consolidated Pevenue Eund and the Commissioners may orden* that oysters seized and forfeited shall he laid doAim upon a puhlic oyster reserve.

18. Thc sections and parts of sections of the “ Eisheries Act Application of

1881” hereunder specified shall be applied to this Act Avith as M l

effect as if they had been herein specially enacted—namely as to pro- issi.”

cedurc and appeal—sections fifty-eight and sixty—as to the ])rotection

of officers and others in the execution of their duty section sixty-one—

as to the apprelumsion and disposal of offenders section sixty-tAvo—as

to assistance to officers in the ('xeention of their duty section sixty-

four—as to evidence section sixty-six—and as to the search for and

scizui’c of oysters section sixty-seven .b id Avherever in the sections

so declared to he applied the Avords “ this Act ” occur such Avords

shall he taken to include this present Act and any regulations made

under it.

SCHEDULE.

Year and number of j Extent of Ecpeal.

Act. I

11 Vic. Xo. 2G So inucli of section 2 as defines the words “ 03'ster” and “ Natural

Oyster-bed ’ So inneh of section 9 snb-section ( i a a ) as relates

to oyster-dredging Thc whole of suh-seetions (v.) (in .) ( a 'IT.)

(t i u .) ( ix ) (x .) ( xt.) and (x i i i . ) Thc whole o f sections 26 28

29 30 31 32 33 31 35 36 37 38 39 10 11 12 13 11 15 16 and 47 except so far as any of such sections relate to private fisheries or oysters being therein or taken therefrom.

46 Vic. No. 25 The whoht of sections 3 and 4.

No. VII.