Blascaod Mor Teoranta v Commissioner of Public Works

• Jurisdiction: Ireland
• Judge: Mr. JusticeBudd,Mr. Justice Declan Budd
• Judgment Date: 27 February 1998
• Neutral Citation: [1998] IEHC 38
• Date: 27 February 1998
• Court: High Court

BLASCAOD MOR TEORANTA v. COMMISSIONER OF PUBLIC WORKS

BETWEEN

AN BLASCAOD M ÓR TEORANTA, PETER CALLERY, JAMESCALLERY, KAY BROOKS AND MATTHIAS JAUCH

PLAINTIFFS

AND

THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND, THEMINISTER FOR THE GAELTACHT, IRELAND AND THE ATTORNEYGENERAL

DEFENDANTS

AND BY ORDER

THE MINISTER FOR THE ARTS, CULTURE AND THEGAELTACHT

SUBSTITUTED DEFENDANT

FOR THE FIRST AND

SECOND DEFENDANTS

[1998] IEHC 38

No.6620p/1991

THE HIGH COURT

1 Judgment of Mr. Justice Declan Budddelivered on the 27th day of February 1998

The background setting to the enactment of An BlascaodMór National Park Act, 1989

2 The Blasket Islands lie off the coast of the Dingle Peninsula in County Kerry. The seven islands and several islets and rocks are in the barony of Corca Dhuibhne on the north side of the entrance to Dingle Bay. As one looks out at the archipelago from Slea Headbelow Mount Eagle on the peninsula, Innisvickillane is to the south-west; Innisnabro to the west; and further west, behind the Great Blasket is Tiaracht, which has a lighthouse; to the north, lies Inis Tuaisceart; and off the east of the Great Blasket are Beiginis andOiléan na n Óg. The Great Blasket, or An BlascaodMór, is across the Blasket Sound from Slea Head and is a narrow island about five kilometres long by one kilometre wide. It is the largest of the islands with the remnants of a village behind the beach known as the White Strand or Tra Bn at the east end closest to the mainland. Although the island, at its closest point to the mainland, is only just more than one kilometre off Dun Mór Head, it is a sea journey of about five kilometres from the harbour at Dun Chaoin to the small breakwater below the village. The seas in the Blasket Sound can be treacherous. Access on to the cliff girt Blasket Islands, with the exception of Beiginis, is difficult.

3 In the 19th century, the population of the islands seems to have varied between about 100 in 1861 and 150 in 1901. In 1916, TomásÓ Criomhthain, in a letter to Robin Flower, wrote that there were 176 people in the islands. The islanders used currachs callednaomhóg. They lived by fishing and by hunting seals, birds and rabbits and by collecting birds" eggs. By 1939, the population had dropped to under 100 and, by 1947, there were only 50 people. The salt laden gales prevented trees growing on the islands, but the community on the Great Blasket produced an extraordinary literary legacy. Their books about their island life have been recognised as an unique and vibrant literary flowering. This included three famous autobiographies: Twenty Years A-growing by Muirís Ó Sullivan, An Old Woman's Reflections by Peig Sayers, and The Island Man by Tomás ÓCriomhthain. These writers of international renown inspired others of the islanders to write. The islands also attracted a number of remarkable scholars from abroad including Carl Marstrander, Robin Flower and George Thomson, who all encouraged the islanders to write of their own community and theworld of their archipelago. There was always much movement to and from the island from the Dingle Peninsula and indeed the islanders would cross the strait to attend mass, to purchase provisions and to bring their dead for burial. Muirís Ó Sullivan spent his earlier years in Dingle and Peig Sayers came from the mainland. There was the close contact between the folk on the island and those on the mainland which one would expect across a strait. Many of the islanders emigrated and at the time of the final evacuation of the island on 17th November, 1953 there were only some 20 people left. It is common case that the islands are places of a wild and remote beauty and that the Great Blasket in particular was the home to and source of inspiration for a remarkable literature.

4 The Plaintiffs, within the last 25 years, have become entitled to many areas of land in the village on the Great Blasket and the first four Plaintiffs are entitled to 17/25ths of the great commonage which is 1,060 acres of the 1,132 acres of the entire island. Dr. Matthias Jauch, the fifth named Plaintiff, is a lecturer at University College Cork and is a brother of the late Arne Jauch who was the owner of an undivided moiety with Muiris Cleary in two registered holdings in the village and "fine lands" along with an unregistered holding which includes a comparatively modern beehive hut and also the old post office building. Their registered holdings included 2/25ths of the great commonage. The "fine lands" are the fertile but separated plots behind the strand. The late Arne Jauch and another brother, Tilman Jauch, often stayed on the island and were both drowned while fishing in the seas off the Great Blasket in 1978.

5 On 7th June, 1989, An Blascaod Mór National Historic Park Act, 1989(No. 11 of 1989) was enacted. This "1989 Act", among other things, made provision for the acquisition, by agreement or compulsorily, of any land situated on the island. The Plaintiffs had been for some years the largest owners of the land and buildings on the Great Blasketisland. C.P.O. notices were served on the first four Plaintiffs in March 1991. The Plaintiffs promptly issued proceedings to challenge the constitutionality of a number of provisions of the Act and also the procedure incorporated into the 1989 Act whereby the Acquisition of Lands (Assessment of Compensation) Act, 1919 was made part of the 1989 Act. They also challenged the validity of the notices served by the Defendants under the authority of the Act.

6 A synopsis of the background to the passage of the Act and the history of how the Plaintiffs acquired their lands on the Great Blasket may assist in an understanding of the grounds for the challenge to the constitutionality of the Act.

7 In this century, many of the Blasket islanders left the islands for the mainland and some emigrated particularly to Massachussetts in the U.S.A. The final evacuation of the last 20 inhabitants took place with government assistance on 17th November, 1953. In the early 1970s, an American national and Irish citizen of colourful personality, Taylor Collings, began to purchase properties on the Great Blasket from the former inhabitants. He was attracted by the beauty and history of the area and the cultural traditions of the Corca Dhuibhne region. He and his wife spent a considerable amount of time, energy and money in restoring some of the houses on the Great Blasket and he was assiduous in tidying up refuse which had accumulated on the island and in trying to preserve the buildings in the village from depredation. In January 1972, Mr. Collings sold half of his interest in the properties which he had purchased on the Great Blasket to Phillips Brooks, an American diplomat, and, in September 1972, he sold his other half interest to Peter Callery and James Callery, the second and third named Plaintiffs. Phillips Brooks died in January 1975 and his interest passed to his widow Kay Brooks. Most of the property formerly held by Taylor Collings has since been transferred to the first named Plaintiff, An BlascaodMór Teoranta, which was incorporated in September 1972. The first four Plaintiffs are by far the largest owners of landon the Great Blasket, owning 17/25ths of the village property and fine lands therewith and 17/25ths of the great commonage, which is actually held in undivided shares in fee simple. The fifth named Plaintiff, Matthias Jauch, has been served with C.P.O. notices in respect of a moiety of the property which his late brother Arne Jauch owned jointly with Muirís Cleary.

8 It is specifically pleaded that the Minister for the Gaeltacht at the time of the preparation and passing of the 1989 Act had an interest himself in the Blasket Islands. The aspect which has concerned the Plaintiffs is that, in or about 1974, the island of Innisvickillane was purchased by a company under the control of Charles J. Haughey (the then Minister and Taoiseach) or members of his family. A dwelling house has since been built by them on that island. Part of the Plaintiffs' contention is that if a national park is appropriate, then it should comprise the entire of the Blasket Islands and in particular Innisvickillane should not be excluded as it has monastic remains and a role in the folklore tradition of the Blaskets. About that same time, in or about 1975, the Office of Public Works made it known that it had an interest in buying property on the Great Blasket and in fact purchased one holding from an islander known as "Kearney the Yank" and this comprised a house property in the village together with some fine lands and a l/25th interest in the great commonage. This holding has been left untouched and deteriorating since the purchase but does ensure that the State has had a property in the village.

9 The 1989 Act is confined in its operation to the Great Blasket and does not extend to any of the other islands or the adjacent mainland being all in the Corca Dhuibhne area. The Plaintiffs make a series of complaints about this Act and seek declarations that the sections of, and the entirety of, the Act are repugnant to the provisions of the Constitution. The action has given rise to three judgments, the first by Murphy J. in respect of discovery of documents, the second delivered by Kelly J. on 18th December, 1996 in respect of a series ofpreliminary issues with regard to the validity of the compulsory purchase notices; and thirdly on the 17th June, 1997, my judgment with regard to the scope of the evidence which is admissible and eligible for scrutiny by the Court in such a constitutional action. The Plaintiffs complain, inter alia, of invidious discrimination, and infringement of constitutional guarantees of equality and property rights. They also object to the role given to Fondúireacht An Bhlascaoid Teoranta ("the Foundation") which is described in the Act as "being the body incorporated for the purpose, inter alia,...