1531/94.
No. 49.
(CANADA.)
LAW OFFICERS to INDIA OFFICE.
MERGUI PEARL FISHERIES.
Case for the Opinion of the Law Officers of the Crown.
The facts on which the opinion of the Law Officers is requested appear from the accompanying papers, but they may perhaps be usefully summarised as follows
The Mergui Archipelago consists of a large number of islands lying for many miles along the coast of Burmah. Their distances from the shore and from one another are in many cases considerable, far over three or six miles. In the belt lying between the outermost islands and the mainland of Burmah lie pearl oyster banks.
The Government of Burmah in 1891 granted a concession of the exclusive right of fishing on these banks. The validity of this grant was disputed by Messrs. Moylan and Eddis, acting as the legal advisers of a gentleman from Australia who desired to fish on the banks, and claimed the right to do so, alleging them to be in the high seas outside the territorial waters.
It is claimed, and it may for the present purpose be assumed, that the islands them. selves are British territory, and subject to the Government of Burmah. That Government contends that its jurisdiction extends to a distance of three miles beyond the outer edge of the Archipelago, and includes all waters lying between that line and the mainland, and on this ground they seek to support their concession of an oxclusive right of fishing.
The Government of India has been advised that territorial waters extend only to a listance of three miles from the mainland, and to a distance of three miles round each of the islands together with any waters lying inter fauces terræ, and that such a con- cession as that granted could only be valid within those waters.
The Secretary of State is desirous of obtaining the opinion of the Law Officers upon the question,
Whether the jurisdiction of the Government of Burmah and its power to grant exclusive fishing right extends over all waters lying between the mainland of Burmah and a distance of three miles beyond the outer edge of the Mergui Archipelago, or whether it is limited in the manner stated by the legal advisers of the Government of India, or otherwise.
Opinion of the Law Officers.
The extent of territorial jurisdiction is correctly stated in paragraph (a) in the opinion of the Advocate-General and Standing Counsel of the 26th January 1893.* It follows that the Government have no power to grant exclusive fishery rights except in waters within the extent of jurisdiction so described.
It would be possible to legislate so as to bind British subjects beyond those limits, but it would not be possible to bind foreigners, or to exclude them.
The Australian Pearl Fishery Acts are limited in their operation to British subjects, and we assume that, in the case of the pearl fisheries in the Mergui Archipelago, there has not been, as in the case of the Ceylon fisheries, an immemorial claim to the pearl oyster fishery beyond the usual territorial waters asserted by successive rulers, and acquiesced in.
Royal Courts of Justice, 19th December 1893.
(Signed)
C. RUSSELL. JOHN RIGBY.
79871.-1.
25.--2/94.
• No. 28A.
+
PUBLIC RECORD OFFICE
Reference :-
TC.O.885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHICA
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