Barlow v Minister for Agriculture
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 28 October 2014 |
| Neutral Citation | [2014] IEHC 471 |
| Court | High Court |
| Date | 28 October 2014 |
[2014] IEHC 471
THE HIGH COURT
BETWEEN
AND
Fishing – Irish Waters – Sea Fisheries and Maritime Jurisdiction Act 2006 – Legislative Change – Jurisdictional Issues
Facts: This case concerned mussel seed fishing in Irish waters. The corporate plaintiffs were the owners of Irish licensed sea fishing vessels, which were purpose built mussel seed vessels, and all the plaintiffs had a history of involvement in the bottom grown mussel industry. Each of the individual plaintiffs with the exception of the third named plaintiff who was the general manager and company secretary of the fourth named plaintiff as well as being the skipper of the Hibernia fishing vessel owned by the fourth named defendant, was a director of one of the corporate plaintiffs. The plaintiffs contended that mussel seed fishing in Irish waters by Northern Ireland vessels, as permitted by the Irish authorities, was harming the industry and causing them loss and damage. The essential case made by the plaintiffs was that the defendants, in permitting fishing by Northern Irish boats, were acting unlawfully and indeed unconstitutionally. The core contention was that Northern Irish vessels could not be permitted to fish in Irish waters unless provisions were made for that by law and that there was no law making provision for that. The plaintiffs stated that the requirement which they said existed for an express legal authorisation for Northern Ireland fishing stemmed from the express provisions of the Constitution, from the constitutional order of the State and from statute. The plaintiffs sought: (i) A declaration that Northern Ireland fishing boats fishing for mussel seed within Irish territorial waters were not authorised by law to so fish within the meaning of s. 10 of the Sea Fisheries and Maritime Jurisdiction Act 2006; (ii) a declaration that the exchange of letters (those that are alleged to constitute the Voisinage agreement) do not constitute an arrangement within the meaning of s. 8(1)(a)(iii) of the Sea Fisheries and Maritime Jurisdiction Act 2006; (iii) a declaration that s. 8 of the 2006 Act was unconstitutional having regard to Article 15.2 and Article 29.6; (iv) an existing arrangement was memorialised by the exchange of letters, a declaration that at all material times, the existing arrangement no longer existed; (v) an existing arrangement was memorialised by the exchange of letters, a declaration that this was not covered or within the terms of the London Fisheries Convention [1966]; (vi) If the defendants were entitled to rely upon an agreement and/or arrangement and/or a memorandum of understanding as a legal basis for mussel fishing by Northern Ireland fishing boats in territorial waters, a declaration that the same was justiciable and that the plaintiffs were entitled to rely on the legal effects of same; (vii) A declaration that the defendants acted contrary to Article 15 of the Constitution in adopting S.I. 311/2006 - The Mussel Seed (Fishing) Regulations 2006. The defendants claimed that: (i) The Voisinage arrangement was not justiciable at the suit of the plaintiffs; (ii) The Voisinage arrangement was a memorandum of understanding of a technical and administrative character not requiring either to be laid before the Dáil or to be approved by the Dáil; (iii) The Voisinage arrangement was recognised under the Common Fisheries Policy as an arrangement under existing neighbourhood relations between Member States. As such it was directly effective and conferred rights and/or privileges on Northern Ireland fishermen independently of the provisions of domestic law; (iv) Fishing by Northern Ireland mussel seed fishermen in the territorial waters of Ireland was not unlawful under s. 10 of the Sea Fisheries and Maritime Jurisdiction Act 2006, as properly construed; (v) Statutory Instrument 311/2006 did not confer, though it did recognise, rights to fish under the Voisinage arrangement. Therefore, there was no question of the Statutory Instrument being either ultra vires or unconstitutional; (vi) The plaintiffs were not entitled to a declaration to the effect that the existing arrangement no longer existed at all material times; and (vii) Further or in the alternative, the plaintiffs were not entitled to seek to enforce the terms of the Voisinage arrangement and were not entitled to and never had any legitimate expectation in relation to the observance of same and have no entitlement to damages.
Held by Justice Birmingham that the fishing by Northern Ireland vessels was authorised pursuant to the terms of the Voisinage agreement. He concluded that he was surprised that arrangement"s which had been in place for almost half a century were being challenged and that the challenge came at a time when relations between Britain and Ireland had never been closer and when north-south relations had never been better. In the opinion of the court, it was determined that all the available evidence and statutory provisions, proved that the all island dimension was entrenched to the extent that it was inconceivable, having regard to the doctrine of separation of powers, that a court would set aside an arrangement so well established. Justice Birmingham in dismissing the plaintiffs claim stated that, change, if it was to come, was for the executive and/or the legislature to decide.
JUDGMENT of Mr. Justice Birmingham delivered the 28th day of October 2014
1. This case concerns mussel seed fishing in Irish waters (i.e. waters within twelve nautical miles of the Irish coast). The corporate plaintiffs are the owners of Irish licensed sea fishing vessels, which are purpose built mussel seed vessels, and all the plaintiffs have a history of involvement in the bottom grown mussel industry. Each of the individual plaintiffs with the exception of the third named plaintiff who is the general manager and company secretary of the fourth named plaintiff as well as being the skipper of the Hibernia fishing vessel owned by the fourth named defendant, is a director of one of the corporate plaintiffs.
2. Central to the current proceedings is that the plaintiffs contend that mussel seed fishing in Irish waters by Northern Ireland vessels, as permitted by the Irish authorities, is harming the industry and causing them loss and damage. The essential case made by the plaintiffs is that the defendants, in permitting fishing by Northern Irish boats, are acting unlawfully and indeed unconstitutionally. There are a number of aspects to the plaintiffs' claim, but the core contention is that Northern Irish vessels cannot be permitted to fish in Irish waters unless provisions are made for this by law and that there is no law making provision for this. The plaintiffs say that the requirement which they say exists for an express legal authorisation for Northern Ireland fishing stems from the express provisions of the Constitution, from the constitutional order of the State and from statute.
3. Before turning to the legal issues, it is necessary to provide a little information about the mussel industiy and to say something about the history of that industry. It appears that prior to the 1980s only a very limited amount of mussel fishing took place in Ireland involving a small number of families with a tradition of involvement in the mussel industry. In the 1990s bottom mussel fishing, which is what this case is about, as distinct from the rope mussel fishing industry on the west coast was largely centred in Wexford and in Cromane in Kerry.
4. In the late 1990s and the early years of this century, there were significant developments in relation to the bottom mussel seed industry and indeed the wider aquaculture industry. In that context, the National Development Plan 2000 to 2006 placed an emphasis on the potential for development of the aquaculture sector and financial assistance referred to as Financial Investment for Fisheries Guidance (FIFG) was made available. It is of significance that the plaintiffs received FIFG to support them in purchasing purpose built mussel vessels at a cost of between €3.4 and €3.795 million per vessel. The plaintiffs place emphasis on the fact that those seeking FIFG support were required to submit detailed business and aquaculture plans. These plans were based on mussel seed allocation requirements. However, the plaintiffs say that there has been a marked disparity between the allocations that were contemplated during the grant approval process and the actual allocations that they have received. The mussel industry involves wild mussel seed being dredged from natural mussel seed beds by specially designed vessels and then the second stage sees the seed transferred from the area where it was dredged to an aquaculture site where they are relayed and allowed mature. Typically the aquaculture sites where maturing takes place are situated in sheltered waters.
5. Maturing takes twelve to eighteen months. Mussel seed is a naturally occurring substance. Annual production levels are not constant, but levels vary appreciably. However, the trend in recent years has been very clear. In 2005, by way of illustration, Ireland produced 29,500 tons of bottom mussels, the National Development Plan envisaged that this would rise to 44,000 tons by 2015. However, in 2010, the figure had dropped to just over 13,000 tons...
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