The Scottish Government

SFFF 7-4: Access to Salmon and Freshwater Fisheries in Scotland

1. Partnership Agreement Commitment 345:

We will continue to promote access for anglers to watercourses and the removal of prohibitive restrictions; promote the local management of watercourses and a proper balance between exploitation and conservation of freshwater species; and seek enhanced access whenever public investment improves fisheries.

2. Partnership Agreement Commitment 345 is clearly centred on improving access for anglers. It does not state how this will be achieved. It therefore falls to us to develop proposals that will help to bring this commitment into effect.

3. It has been assumed that part of the reasoning behind this commitment has been the perception that there is great dissatisfaction with the system of Protection Orders currently in force, previously under the provisions of the Freshwater and Salmon Fisheries (Scotland) Act 1976, and now under the provisions of section 48 of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 (except for the Tweed and Eye Protection Order - as this falls entirely within the Tweed District, it is not subject to the provisions of the 2003 Act, but will be subject to provisions in the Tweed Order when made). Following the feedback from the Forum, and the Steering Group, however, it seems much less clear that there is a widespread dissatisfaction with the Protection Order system. There are clearly problems in some places with:

• the withdrawal of permissions;
• the easy availability of permits;
• the lack of local and central monitoring of how the system is operating;
• the lack of recognition of the conservation needs of fish.

However, it seems possible that, with the appropriate will and new mechanisms to ensure compliance, these issues can be resolved. Therefore, whether there is a need for complete repeal of the Protection Order provisions should be resolved as quickly as possible. If it is the consensus of the Group that the Protection Order system should not be removed, then Ministers will have to be informed, and alternatives proposed.

4. One of the fundamental issues that conditions any moves to promote access is how to ensure this complies with the underlying provisions relating to ownership of fishing rights. Fish themselves, except in a few special cases e.g. privately stocked garden ponds, are wild animals, and therefore are not owned until captured, and then they are owned by the captor. However, the rights to fish, and therefore the ability of a person lawfully to capture fish, are privately owned.

5. This is often held to be something of an anachronism and a peculiarity of property and ownership in Scotland. It is, however, instructive to examine the situations in other countries. The following notes reflect descriptions available from the EIFAC Report of the Symposium on Fisheries and Society - Social, Economic and Cultural Perspectives of Inland Fisheries.

• Norway: Most fishing rights are privately owned by the landowners, and permission is required before fishing can be undertaken. There are some areas of Crown land where fishing may be enjoyed, but these still require permits. In addition to any permits that may be granted, a fishing licence is required.
• Finland: The National Board of Forestry administers some 85 fisheries, which it manages mainly by re-stocking. A licence is required, and further permission must be obtained from the owners of local fishing waters. Rivers flowing through to or more countries (e.g. crossing the Finnish/Swedish, or Finnish/Norwegian borders) are subject to special rules, involving the purchase of permits in both countries for those parts of the rivers through which the national boundaries pass.
• Iceland: Fishing rights go with the ownership of the land adjacent to the rivers. All the owners of fishing rights in a river system form a fishery association, which manages the exploitation of the fish stocks, within the legal framework established by the Government. Usually, the association will rent or lease fishing rights to angling clubs or directly to anglers.
• Denmark: Fishing rights in natural lakes and rivers are nearly always private, but are often let to local angling associations.
• Germany: In addition to the requirement for an angling licence, a permit from the owner or lessee of the fishing is needed.
• Holland: A national fishing document is required.
• Belgium: Waters fall into three categories: closed water, not subject to fishing laws; public or navigable water, belonging to the State; preserved or non-navigable water belonging to landowners. Waters in the latter two categories are subject to the fisheries legislation and anyone fishing them must possess a current licence.
• France: Waterways are divided into navigable public rivers, where fishing rights are owned by the State, and private waters, where they belong to the riparian owners, fishing association or local authority. Even on public rivers, however, anglers must belong to an angling and fish-breeding association and pay a tax based on the method of fishing adopted. Trout and salmon fishing rights are nearly always privately held.
• Italy: Fishing in private waters requires the owner's permission. Fishing in all other waters requires membership of the Italian Angling Federation. About 10% of waters in Italy are privately owned.
• Austria: Many waters are controlled by the two principal fishing associations, the Austrian Fishing Association and the Association of Austrian Workers' Fishing Clubs. Two permits are usually required to fish, a general licence issued by the State, and a private permit from the local owner.

Moving closer to home:

• Ireland: A state Licence is required to fish for salmon and sea trout, but that does not entitle an angler to fish. Permits or permission from fisheries owners must be obtained. In the case of trout fishing, permission should be sought from fishery owners or clubs, which may impose their own regulations on fishing methods and close times.
• England and Wales: Each angler over the age of 12 must have a valid rod licence. In addition, salmon and freshwater fishing rights in England and Wales are private, so permission must be obtained before fishing, but this need not be written permission. Unauthorised fishing is not covered in the fisheries legislation, but is covered under provisions in the Theft Act. People fishing without permission can be, and are, prosecuted. An owner of fishing may elect to prohibit fishing on his/her waters.

In both USA and Canada, licences must be obtained. The situation varies a bit between States/Provinces, but generally the licence permits fishing.

6. Thus, some sort of permission is required in almost every country. In most countries both a licence and a permit are required.

7. The commitment in Partnership Agreement 345 to promote access for anglers to watercourses and the removal of prohibitive restrictions should not be seen to be a removal of regulation. The object of the exercise must remain the promotion of sustainable fisheries, and unrestricted fishing pressure is not compatible with this aim.

8. The Group has suggested that promotion of coherent local management may be best served by the development of local "Unitary Bodies" with responsibility for the management of fisheries for all species, and this approach found general favour with the Forum. Given that establishment of these "Bodies" is likely to be some way off yet, however, interim measures to promote sustainable fisheries are necessary.

9. The situation with regard to salmon and sea trout fishing is already fairly well established, with the availability of fishing quite well known by the bulk of anglers, permit outlets well known, and an increasing use being made of website booking facilities. In this fishery, statute law requires that an angler has the legal right or written permission form a person having such right. In the main, that system seems to be well understood and accepted.

10. The availability of fishing for trout and other freshwater fish presents different problems, however, not least being that in many instances, the owner/operator of the fishing rights may not be known, or difficult for an angler to identify. Ideally, the owners or operators of fishing rights should be identified - these will generally be riparian owners, angling clubs/associations, local authorities, utility companies etc. When that has been established, a possible approach would be that it is mandatory for an angler to obtain permission to fish for any species in any water, but that there is a presumption that permission will be given unless there is a sustainable case for refusal, such as where a maximum number of permits has been agreed and has been reached on any given day; where an incident has occurred to deplete stocks and time is required for recovery.

11. Permits should be made easy to obtain. Outlets might include tackle shops, other local shops, post offices, hotels, filling stations, tourist information offices, sports centres, from bailiffs/wardens on river banks (although there is the issue of cash handling/security/safety to consider). In some places easy access to permits is already the norm, and in some it is claimed to be the case, but in practice, permits may only be available at certain places and certain times. Efforts should be made to ensure that permits can be obtained as widely as possible, and not just from the farmer's door at odd hours. Following this route would mirror closely the situation in England and Wales, where it seems to work well.