CO885-(16-18) — Page 798

PUBLIC RECORD OFFICE

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Reference :-

C.O.885

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

18 PUBLIC RECORD OFFICE, LONDON

Fifteenth Day.

14 May 1907.

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In October of that year the autumn herring fishery on the west coast commenced, when it was found that American fishermen were determined to ignore the provisions of the Bait Act as well as the Foreign Fishing NEWFOUNDLAND Vessels Act of 1905. The position was further aggravated by their refusing to comply with our Customs and Revenue Laws and to enter and clear and pay light dues as they had ever done heretofore.

FISHERY.

(Sir R. Bond.)

Out of deference to the wishes of His Majesty's Government my Government abstained from enforcing local, statutes against American citizens on the Treaty coast, during the autumn fishery of 1905 thereby occasioning themselves very considerable embarrassment. They were led to adopt this course believing that during the period that would elapse before the next fishing season come round a special effort would be made by His Majesty's Government to arrive a satisfactory solution of the difficulties that had arisen by reason of the action of the United States fishermen, and failing such solution that His Majesty's Government would strictly confine the United States to the privileges accorded its inhabitants by the Treaty of 1818.

In the session of 1906, I introduced a Bill to amend the Foreign Fishing Vessels Act of 1905, by declaring that the first part of section 1 and the whole of section 3 thereof do not apply to foreign fishing vessels resorting to Newfoundland waters in the exercise of Treaty rights. This was done at the request of His Majesty's Government in order to meet objections that had been raised to the measure by the Government of the United States.

This Bill also contained the provisions :-(1) that it should be unlawful for a resident of the Colony to leave it for the purpose of engaging in foreign fishing vessels intending to fish in the waters of the Colony; and (2) that it should be unlawful for the master, owner, or agent of any foreign_fishing vessel to engage British subjects to fish for them within the territorial waters of the Colony. These provisions were rendered necessary because while the Bait Act of 1887 declared that no man should take bait fishes within the jurisdiction of the Colony without a license, and the Foreign Fishing Vessels Act of 1905 declared that any master who attempted to engage any person to form part of the crew of any foreign fishing vessel in any port or in any part of the coast of this island should have his vessel confiscated, in the autumn fishery of 1905 the Americans deliberately proceeded to aid and abet our fisherineu in violating the Bait Act by engaging them through agents in Bay of Islands as part of their crew, taking them outside the 3-mile limit to formally ship and enter their service, and returning with them inside our jurisdiction to fish.

It will be observed that whereas the Foreign Fishing Vessels Act of 1905 penalised the master of any foreign fishing vessel for engaging any person to form part of the crew of said vessel within the jurisdiction of the Colony, the amending Act of 19906 penalised the master, owner, or agent of such vessel who should engage British subjects, either outside or inside our jurisdiction, and utilise them within our jurisdiction to fish for them.

The machinery for a complete control over our own people so as to prevent them from aiding the Americans in catching such fishes was thus provided by the Legislature, but this machinery was rendered inoperative by the modus vivendi entered into between His Majesty's Government and the Government of the United States of America in October 1906, the terms of which may be summarised as follows, viz. :~~

1. Permission to the Americans to use purse seines during the ensuing season, the use of which instruments of capture the law of the Colony prohibited and penalised;

2. Permission to the Americans to ship Newfoundland fishermen outside the 3-mile limit, which, by the law of the Colony, was prohibited and penalised;

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3. The undertaking on the part of His Majesty's Ministers not to bring Fifteenth Day. 14 May 1907. into force the Foreign Fishing Vessels Act of 1906, an Act regarded by the Legislature of the Colony as essential in order to control the conduct of British fishermen and effectively enforce the provisions NEWFOUNDLAND of the Bait Act of 1887;

4. An undertaking on the part of His Majesty's Ministers to limit the operation of a law of the Colony (the Foreign Fishing Vessels Act, 1905) by the non-enforcement of the first part of section 1 and the whole of section 4.

With the validity of the modus vivendi of 1906, I do not propose to deal. Suffice it to say that the Supreme Court of Newfoundland has decided that it could not override local statutes as intended. With the humiliating circumstances that attended its enforcement I shall not trouble this Conference. I shall content myself by stating that the concessions contained in the modus vivendi were placed there to satisfy the demands of the Government of the United States of America.

The contentions of the American Government were as follows:-

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1. That there should be no interference on any grounds by officers of

the Newfoundland Government with American fishermen.

2. That the Convention of 1818 justifies no interference.

3. That the fishing laws of the Colony are not binding upon United

States fishermen.

4. That American fishermen are not obliged to conform to our Revenue

and Custom laws.

Now I would draw attention to the fact that the assertion of the United States Government "that the Convention of 1818 justifies no interference on any grounds with American citizens exercising a right to a fishery in common with His Majesty's subjects," is equivalent to a declaration that American citizens can do as they please and violate our fishing and other laws with impunity.

In answer to that position, I would refer to the opinion of the Law Officers of the Crown, Messrs. W. Atherton and Roundell Palmer, who, on the 6th January 1863, declared as follows :---

"That, in our opinion, inhabitants of the United States, fishing within waters in the territorial jurisdiction of the Legislature of New- foundland, are bound to obey, and are legally punishable for disregarding, the laws and regulations of the fisheries enacted by or under the authority on the provincial Legislature. The plain object of the Treaties above referred to was to put the inhabitants of the United States as regards the 'liberty to take fish' within the parts described of the British Dominions on the same footing as 'subjects of Ilis Britannic Majesty' 'in common with whom under the terms of the Treaty, such liberty was to be enjoyed. The enactments subsequently passed would not confirm the Treaties and provide for the suspension during the operations of those Treaties of such laws, &c., as were or would be inconsistent with the terms and spirit of the Treaty, which "terms and spirit" are, it appears to us, in no respect violated by the regulations bonâ fide made by the Government for the conduct of the fishery and and applicable to British subjects so employed."

My contention is that the Colony (subject to the King) is the Sovereign Power, and that the Sovereign Power has the right to enact bona fide legisla- tion for the preservation of its fisheries, and also all legislation inherent in its

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FISHERY.

(Sir R. Bond.)