CO885-(11-13) — Page 173

11554.

PUBLIC RECORD OFFICE

Reference :-

C.O. 885

11 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

No. 867.

(NEWFOUNDLAND.)

LAW OFFICERS to FOREIGN OFFICE.

OPINION of LAW OFFICERS of the CROWN on queries submitted to them respecting Newfoundland Fisheries, October 22, 1873.

1. We concur in the opinion given by the Law Officers on March 24, 1859, "that "the fisheries in rivers are not within the scope of the treaties or declarations made "with or to the French Government by the Government of Great Britain and that the "French have no right to the fishery in rivers, their rights being limited to fishing in "the sea and on the coast for all kinds of fish; and that the French have certainly

"C

no right to interrupt or molest any British subjects fishing for salmon or any other "fish whatever in any river in Newfoundland."

At the same time we are of opinion that British fishermen have not the right to interfere with the French fishermen by running their salmon nets out from the shore into the sea, so catching the fish as they pass along the shore, a practice, which, from the papers transmitted to us, seems to prevail and which interferes with the French sea fishery.

As we understand the facts, the concession said to have been contemplated, by which the French were to be allowed to fish a certain distance up the rivers, was never actually made. But if it had been, or were made, we should be of opinion that the concession was but a license to the French to fish as the British fishermen do, and would not warrant the French in claiming an exclusive fishery in those river waters, or the right to use their own means for catching fish in the rivers.

Apart from this concession, and it seems to us that since the French claims are made to rest on treaty rights, they cannot rely upon the concession, the French pretensions, good to any extent at all, go to the exclusive right of salmon fishing, however far the rivers may run into the heart of the country. The words of the treaties and of the engagements made by this country seem to us to give the French a right of uninter- rupted fishery of all kinds of fish along the sea coast: but do not give them any right of fishery in any of the rivers.

In answer, therefore, to the first question we are of opinion that the salmon fishery on the Ponds river, having regard to the place where it is carried on, is in excess of the rights of fishery which the French can properly claim under the several engage- ments entered into by this country.

And with respect to the means employed by the French, we are of opinion that the French, having no right to fish at all in rivers, must, if they obtain any leave or license to fish, employ only those means which are allowed by the laws of Newfoundland.

2. The second question is rather a matter of policy than of legal rights, but since your Lordship has called our attention to and desired our opinion upon the subject, we submit, for your Lordship's consideration, the following reasons why a special remonstrance should at once be made by Her Majesty's Government to the French Government.

A. Her Majesty's Government should not, we humbly conceive, suffer without immediate remonstrance, the rights of Her Majesty's subjects and a part of Her Majesty's dominions to be violently disturbed and forcibly occupied by the subjects of a foreign power.

B. If, however, the disturbance of the rights and the occupation of the soil has been from any motive submitted to for some time, a special remonstrance is the more urgently required, that the mischief may be put an end to, and at least not extended further.

C. Supposing no remonstrance to be now made, other rivers may be occupied by the same means and in the same manner as the Ponds river. The French will thus have their title, such as it is, strengthened both by lapse of time and extended pos sessions.

0 16278.-897.

25.--5/86.

2