Lough Swilly Shellfish Growers Co-Operative Society Ltd & Atlanfish Ltd v Bradley & Ivers

• Jurisdiction: Ireland
• Judge: Mr. Justice Eamon de Valera
• Judgment Date: 29 June 2010
• Neutral Citation: [2010] IEHC 281
• Docket Number: Record No. 810P/2007
• Court: High Court
• Date: 29 June 2010

[2010] IEHC 281

THE HIGH COURT

Record No. 810P/2007

Lough Swilly Shellfish Growers Co-Operative Society Ltd & Atlanfish Ltd v Bradley & Ivers

Between:

LOUGH SWILLY SHELLFISH GROWERS CO-OPERATIVE SOCIETY LIMITED AND ATLANFISH LIMITED

Plaintiffs

-And-

DANNY BRADLEY AND ROBERT IVERS

Defendants

FISHERIES (AMDT) ACT 1997 S19A(4)

MARITIME JURISDICTION ACT 2006 S101

MOORE v AG 1934 IR 44

FORESHORE ACT 1933 S3

SEA FISHERIES (AMDT) ACT 1997 S75

FISHERIES & FORESHORE (AMDT) ACT 1998 S3

CONSTITUTION ART 40(3)(1)

CONSTITUTION ART 40(3)(2)

FISHERIES (CONSOLIDATION) ACT 1959 S249

CONSTITUTION ART 2

EAST DONEGAL CO-OP LIFE STOCK MART LTD v AG 1970 IR 317

LOFTUS v AG 1979 IR 221

CONSTITUTION ART 10

CASEY v MIN FOR ARTS & ORS 2004 1 IR 402

FISHERIES

Aquaculture licence

Presumption of constitutionality - Equality - Good name - Property rights - Right to earn living - Proportionality - Public fishery - Extension of licence - Public interest - Common good - Whether s 19A(4) constitutional - Whether s 19A(4) fails to defend and vindicate defendant's rights - Whether extension of licence constituted unjust attack - Whether defendants could establish that subsection could not be applied constitutionally - Whether defendant has locus standi to challenge section - Moore v Attorney General [1934] IR 44; East-Donegal Co-Operative Livestock Mart Ltd v Attorney General [1970] IR 317; Loftus v Attorney General [1979] IR 221 and Casey v Minister for Arts, Heritage, Gaeltacht and the Islands [2004] 1 IR 402 considered - Fisheries (Amendment) Act 1997 (No 23), ss 19A(4) and 75 - Sea-Fisheries and Maritime Jurisdiction Act 2006 (No 8), s 101 - Foreshore Act 1933, s 3 - Fisheries and Foreshore (Amendment) Act 1998 (No 54), s 3 - Constitution of Ireland 1937, arts 10 and 40 - Application rejected (2007/810P - De Valera J - 29/6/2010) [2010] IEHC 281

Lough Swilly Shellfish Growers Co-operative Society Ltd v Bradley

Mr. Justice Eamon de Valera

1 This matter comes before the Court by way of an application by the defendants for a Declaration that s. 19A(4) of the Fisheries (Amendment) Act,1997 ("the Act") as inserted by s. 101 of the Maritime Jurisdiction Act, 2006, is unconstitutional. The Attorney General opposes the defendants' application.

2 At the hearing of the constitutional component of the proceedings, the defendants' position was clarified and it was confirmed that their reliance on the Supreme Court decision inMoore v. Attorney General [1934] I.R. 44 was confined to a factual determination made by the Court in that case that the tidal waters of Donegal, including Lough Swilly, constituted a public fishery. The defendants also challenged the failure of the Minister to make a decision on the renewal of the aquaculture licence the subject of the dispute and the resulting continuation of a private fishery in public waters.

3 Section 19A(4) of the Act provides as follows:

"A licensee who has applied for renewal or a further renewal of an aquaculture licence shall, notwithstanding the expiration of the period for which the licence was granted or renewed but subject otherwise to the terms and conditions of the licence, be entitled to continue the aquaculture or operations in relation to aquaculture authorised by the licence pending the decision on the said application."

4 The Foreshore Act,1933 (as amended) regulates the State's dealing with the foreshore, which is defined as:

"… the bed and shore, below the line of high water of ordinary or medium tides of the sea and of every title river and title estuary and of ever channel, creak and bay of the sea or of any such river or estuary."

5 Under s. 3 of the 1933 Act, the State may grant licences in respect of the foreshore subject to conditions. The licence authorises the licensee to:

"… place any material or to place or erect any articles, things, or structure or works in or on such foreshore, to remove any beach material from such foreshore, to get and take any minerals in such foreshore and not more than 30 feet below the surface thereof, or to use or occupy such foreshore for any purpose…"

6 The Fisheries Act of 1980 created a new type of licence, "an aquaculture licence". The Sea Fisheries (Amendment) Act,1997 created a new catch-all aquacultural licence and by s. 75 of that Act and s. 3 of the Fisheries and Foreshore (Amendment) Act, 1998, a fish culture licence and a foreshore licence for aquaculture purposes were deemed together to constitute an aquaculture licence under the 1997 Act.

7 The plaintiff in this action succeeded in its primary action in trespass against the defendants and obtained injunctive relief against them and an award of damages. That claim arose from the trespass by the defendants on an area of foreshore identified in a map attached to the Statement of Claim over which the plaintiffs were exclusively licensed to cultivate shellfish.

8 The plaintiff's licence expired in 2004. However, it was extended by virtue of the operation of s. 19A(4) of the Fisheries (Amendment) Act,1997 as inserted by s. 101 of the Maritime Jurisdiction Act, 2006, the impugned section in these proceedings.

9 The defendants claim that s. 101 of the Maritime Jurisdiction Act, 2006 breaches the right to equality under Article 40 of the Constitution, that it breaches the obligation of the State to defend and vindicate the rights of the defendants and has failed to protect their good name, property rights and their right to earn a living and that s. 101 is neither rational nor proportional nor does it increase the common good and it should be struck down under Articles 40 and 40(3)(1) and (2) of the Constitution.

10 The defendants state that they will rely on the facts set out in the Supreme Court judgment inMoore v. Attorney General, that Lough Swilly was always a public fishery, that those who had a traditional right to fish based on use would have such right in perpetuity and that the grant of exclusive rights to one private individual constituted a breach of the aforesaid constitutional provisions.

11 The defendants claim that theMoore case established that Lough Swilly was a public fishery. They submit that in granting the ten year licence to the plaintiff, the Department of the Marine overlooked the provisions of s. 249 dealing with oysters and oyster licences and awarded a licence without a consideration of what it might mean for customary public rights in Lough Swilly.

12 The licence continued until 2004 after which time the defendants believed they had a right to fish in Lough Swilly and the plaintiff sought and obtained an injunction. Not only did the Minister award to the private individual a licence over the public fishery which the defendants say he had no right to do, but they claim he prolonged or extended same in circumstances where he had no right to do so. They claim the failure to properly renew the licence compounded the situation and that s. 19A has developed an unconstitutional life of its own. The defendants submit s. 19A has been used to extend an unlawful licence in a manner that renders any challenge impossible and that the events complained of have interfered with the defendants' rights to equality, to earn a living and to constitutional fairness.

13 As regards the presumption of constitutionality and how this operates in favour of s. 19A, the defendants submit that the Minister was using the section for an unlawful purpose and that such action drained the section of both legitimacy and constitutionality.

14 They submit there was no possibility of challenging the operation of the section by judicial review. They say that if they had done that, they would have been accepting that the licence was lawful but that the Minister simply had delayed in making a decision. Above all, they submit, judicial review would have legitimised the Minister's power to award private licences over customary public fishery rights.

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