Barlow v Minister for Agriculture

JudgeMr. Justice O'Donnell
Judgment Date27 October 2016
Neutral Citation[2016] IESC 62
Date27 October 2016
Docket Number[S.C. No. 466 of 2014],Appeal No: 466/2014
CourtSupreme Court
Paul Barlow, Woodstown Bay Shellfish Ltd.,
Michael Crowley, Riverbank Mussels Ltd.,
Gerard Kelly, Fresco Seafoods Ltd.,
Tardrum Fisheries Ltd., Alex McCarthy,


Halcome Merchants (Ireland) Ltd., T/A Alex McCarthy Shellfish
The Minister for Agriculture, Food and the Marine,
The Registrar General of Fishing Boats, Ireland,


the Attorney General

[2016] IESC 62

O'Donnell Donal J. & Clarke J.

Denham C.J.

O'Donnell J.

McKechnie J.

Clarke J.

MacMenamin J.

Laffoy J.

Appeal No: 466/2014


Fisheries – Mussels – Entitlement to fish – Fishing by vessels registered in North – Whether such fishing in breach of Constitution

Facts: As part of longstanding practice, fishing vessels registered in the North of Ireland were permitted to fish for mussels. Concerns were raised by the plaintiffs as to the impact of the activities of these vessels. The High Court had rejected the plaintiffs' claim that the activities of the vessels offended the Constitution, and further stated that he doubted that mussel seed was a natural resource for the purposes of Art 10 of the constitution. The matter now came on appeal.

Held by Mr Justice O'Donnell, the other Justices concurring, that the appeal would be allowed. The matter before the Court was a narrow point but one of importance. Having considered the historical background to the matter, as well as the legislative and case law authorities, the Court was persuaded that the fishing of mussels by the vessels in question offended the Constitution insofar as the legislation required to permit such fishing had not been enacted. The Court declined to give opinion on the merits of the plaintiffs' general objections to the fishing.

Clarke J also gave a judgment in the matter.

Judgment of Mr. Justice O'Donnell delivered the 27th of October 2016

Mussels are now a familiar item on menus, from different cuisines around the world. In a less appetising form they have engaged the attention of these courts on a number of occasions in recent years: Lett & Company Limited v. Wexford Borough Council and ors [2014] 2 I.R. 198, Lough Swilly Shellfish Growers Co-operative Ltd & anor v. Bradley & anor [2013] 1 I.R. 227, Cromane Foods Ltd & anor v. Minister for Agriculture, Fisheries & Food & ors [2016] I.E.S.C. 6, and Dunmanus Bay Mussels Ltd. v. Aquaculture Licences Appeals Board [2014] 1 I.R. 403. This proliferation of litigation is a consequence no doubt of developments in commercial aquaculture and the complexities and restrictions of the fishing regime of the European Union. But, as the case law surveyed so extensively in this case demonstrates, disputes about the entitlement to take fish, including shellfish from the sea or tidal rivers (and elsewhere) for sustenance, or as a commercial enterprise and way of life, have been the subject of contention in Ireland both before and after independence. Indeed the consideration of the question of the legality of fishing in particular waters may involve questions as to the terms of Magna Carta, its reception in Ireland, the position in any locality as of the 12th and 13th centuries, and in some cases the terms of Brehon law and the organisation of pre-plantation Gaelic society.


At first sight, the issues for resolution in this case are of much more recent origin. For the last 50 years and, it seems likely, since the foundation of the State, fishermen resident in Northern Ireland have fished waters which, from time to time, have been designated as the territorial waters of the State. This fishing has been carried out with the knowledge and approval of the authorities here and, it appears in circumstances where reciprocal facilities were afforded to Irish fishermen in the waters adjoining the coastal area of Northern Ireland. This case raises the question of the legality of the practice of what may be described in general terms at this stage, as Northern Ireland fishermen, fishing in Irish territorial waters. This question arises in the context of mussel harvesting, which for a number of reasons has become much more commercially significant in recent times. For reasons which it will be necessary to set out at some length, I have concluded that the current practice of fishing or harvesting of mussel seed by Northern Ireland registered boats in the territorial waters of this State is not lawful, as it constitutes the exploitation of a natural resource which must by Article 10 of the Constitution be provided for by a law enacted by the Oireachtas. I conclude that there is no such law at present. It follows however from this conclusion however that there is no insuperable constitutional objection to making provision by law for such fishing. This is the narrow conclusion of the large issue in this case.


The plaintiffs are individuals and companies, involved in what is called bottom mussel fishing, which is to be distinguished from rope mussel fishing traditionally practised in the west of Ireland. In the 1990s bottom mussel fishing was located mainly in the Wexford area and in Cromane, County Kerry, and carried out traditionally by a small number of families. However, a number of factors appear to have led to the increased commercial exploitation of mussel fishing. It appears from the evidence and submissions, that among the critical factors influencing recent developments has been the fact that mussel cultivation has been recognised as providing an important opportunity for commercial aquaculture, ranking, in recent years, second only to salmon. At the same time, mussel harvesting is not, as yet controlled by the complex EU fishing regime. One further consequence of this is that this dispute is to be determined by the provisions of domestic law, some of it of considerable antiquity.


The familiar common mussel was first defined ( Mytilus Edulis) by the Swedish botanist and zoologist Linnaeus in 1758 but was known long before that. Shell middens are indeed an important evidence of early human settlement in a number of locations in Ireland. The technique of bottom mussel fishing has changed little over time. It involves the collection of mussel seed at sea, and its transport to sheltered areas which have proved to be productive mussel beds, where the mussels can grow and where they can in due course be harvested. The nature of the mussel, and the features which allow it first to develop as a seed, be found at sea, and later to attach itself to the mussel beds and grow to maturity, was described in the evidence of Dr Julie Maguire, a witness on behalf of the plaintiff which I will attempt to synopsise. Mussels are bivalves, and unusually are male and female. They spawn at sea in an unusual way. They are not attracted to each other for purposes of fertilization, and instead must hit off each other at random. Fertilisation produces larvae which are carried in the sea for some weeks. However particularly in the Irish Sea, they do not travel far, indeed rarely more than 100 metres from their point of origin, or indeed from each other. At some point they lose energy and settle. Once that process begins, they start to produce a shell and then byssal threads which can attach to seaweed, mother mussels or a mussel bed.


Mussel cultivation is a simple, and as far as it goes, reasonably natural process, since the only human intervention is the harvesting of the mussel seed, and its transport to the mussel beds. Perhaps as a result it has rarely been subject to detailed legal consideration. The practice is however somewhat precarious. It is dependent upon an adequate source of mussel seed, the vagaries of the weather, and the quality of the water. Since at least the turn of the 21st century, the plaintiffs have become increasingly concerned at the depletion of mussel stocks. In particular, they blame practices of vessels registered in Northern Ireland which they consider have adopted a particularly aggressive and invasive method of mussel fishing. The problem is exacerbated by the fact that the traditional Northern Ireland mussel fisheries have been closed for some time because of infestation by a predator limpet. Not only does this close a potential fishery to the plaintiffs, but it tends to force the Northern Ireland boats to fish in the territorial waters of the State. The plaintiffs also suggest that the descriptions, 'Northern fishermen' and 'Northern Ireland boats', are somewhat misleading: the plaintiffs assert that the vessels may be registered in Northern Ireland, and may be owned by companies which are incorporated there, but where the ultimate shareholding is owned by substantial foreign interests. In that sense, it is I think suggested that the permitted fishing by Northern Ireland registered vessels is not the maintenance of a historical practice predating partition or serving any modern interest of cross-border communication and reconciliation, but rather is being used as a flag of convenience for access by large foreign businesses to mussel fisheries from which they could, and should, otherwise be lawfully excluded.


I should emphasise that the Northern Ireland fishing interests of whom the plaintiffs complain, have not been party to these proceedings, nor has anyone given evidence on their behalf. Accordingly, I recite these matters merely as background to the complaints made by plaintiffs rather than as findings made by the Court. The justice, merit or accuracy of the complaints made by the plaintiffs is not a matter which is to be determined in these proceedings. The motivation of the plaintiffs in bringing these proceedings is a matter for them, and not the Court. The simple fact is that the undoubted decline in the mussel fisheries has led to a focus upon the Northern Ireland registered vessels, and to the plaintiffs raising the question of the legality of their continued fishing. That is the only matter...

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