A question has arisen between the German and British Governments regarding the Papuan Ordinance⁽¹⁾ relating to pearl shell and beche-de-mer fishing.

It is claimed by Germany that the provision of this measure which limits the right to engage in such fishery to British subjects is in contravention of the Anglo-German Declaration of 1886⁽²⁾, which provides that in certain regions of the Pacific (within which Papua and its adjacent waters are included) the subjects of both nations shall be free to resort to the possessions and protectorates of the other and engage in all de-scriptions of trades and professions and agricultural and industrial undertakings.

The German Government ask that the Ordinance may be withdrawn from effect so far as German vessels are concerned.

The Ordinance of 1911 is a consolidating measure and the part in question is merely a repetition of the provisions of an Ordinance of 1904⁽³⁾ against which no pro-test was ever made by Germany.

Both the Colonial Office and the Foreign Office are of opinion that the German claim should be opposed on the ground that the Declaration does not extend in terms to fisheries. It is argued that treaty rights to fisheries do not pass under a general grant of national or most favoured nation treatment in treaties of commerce and navigation, but only under an express grant, and that it is important to maintain this view, not only on the ground that experience points strongly to the desirability of not adding to the number of cases in which foreigners have the right of fishing in British waters, but also because a contrary decision would raise the question of fishery rights in numerous existing treaties in which there is no special reservation or exception of fishery rights, but in which it has never been suggested that fishery rights are included.

The Minister for External Affairs asks to be advised on the matter.

I must confess that, looking at the text and the history of the Declaration, I was disposed to concur with the view expressed by Mr Attorney-General Isaacs in 1905⁽⁴⁾, and also held, it appears, by former Secretaries of State, that the Papuan Ordinance was in conflict with the Declaration.

I see however the force of the argument now raised in favour of the non-application of general words to fisheries. I do not think it necessary to express an opinion on this question, which is primarily one for the consideration of the Imperial Government; and in view of their definite desire that the matter should be contested, I think that there is no objection to the course suggested by the Secretary to the Department of External Affairs in his minute of 12 February, namely, that, as the question raised may have an important bearing on political considerations affecting other parts of the Empire, the Secretary of State for the Colonies be informed that the Commonwealth has no desire to contest the point raised by the German Government, but that they will raise no objection to the matter proceeding to arbitration if the German Government so desire if, in the opinion of the Secretary of State, the interests of the Empire elsewhere render it desirable that the contentions of the German Government should be resisted.

[Vol. 11, p. 80]

(1)Pearl, Pearl-Shell and Beach-de-mer Ordinance 1911 (Papua).

(2)Dated 10 April 1886.

(3) The Pearl-Shell and Beach-de-mer Fishery Ordiance Amendment Ordinance of 1904(B.N.G.).

(4)In a mintue dated 23 November 1905,filed with Department of External Affairs, General Correspondence File (Australian Archives,CRS A 1 item 05/7670).The minute reads.

'I think the Ordiance is in conflict with the Declaration between Great Britain and Germany relating to the Western pacific (Hertslet Vol. 17,p.443) and dated April 10,1886. But as Germany has,by giving the jaluit Company exclusive privilages , ignored the Declaration, the Ordinance does not seem to me be matter of complaint'.

(5)This opinion is unsigned in the Opinion Book,but it is attributed to Mr Hughes.