Supreme Court: NI fishing vessels cannot fish or harvest mussel seed in State waters

About this case:

• Judgment:
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Despite the acquiescence of State authorities for a number of decades, and the reciprocity afforded to Irish vessels in NI waters, Justice O’Donnell found that the matter was an issue for the Oireachtas as it constituted the exploitation of a natural resource.

Four plaintiff fishermen – Paul Barlow, Michael Crowley, Gerard Kelly, Alex McCarthy – and their relevant companies were becoming increasingly concerned at the depletion of mussel stocks, blaming the practices of vessels registered in Northern Ireland adopting a particularly aggressive and invasive method of mussel fishing in the waters of the State.

Among the critical factors influencing recent developments – mussel cultivation has been recognised as providing an important opportunity for commercial aquaculture, ranking second only to salmon.

The EU fishing regime does not control mussel harvesting, however since the foundation of the State, fishermen resident in NI have fished waters designated as the territorial waters of the State. This fishing has been carried out with the knowledge and approval of the Irish authorities and, reciprocal facilities were afforded to Irish fishermen in the waters adjoining the coastal area of NI.

The State defendants (The Minister for Agriculture, Food and the Marine, the Registrar General of Fishing Boats, Ireland, and the Attorney General) contended that the exchange of correspondence in 1965 (set out in full from paragraph 12 of the judgment) evidenced a voisinage arrangement – i.e. an arrangement between neighbouring states under which fishermen had fished in each other’s waters.

Depleted stocks

The issue if depleted stocks was exacerbated by the fact that NI mussel fisheries have been closed for some time because of infestation by a predator limpet – not only did this close a potential fishery to the plaintiffs, but it forced the NI boats to fish in the territorial waters of the State.

Notably, the plaintiffs also suggested that the descriptions, “Northern fishermen” and “Northern Ireland boats”, were misleading – and asserted that the vessels may be registered in NI and owned by companies incorporated there; but the ultimate shareholdings are owned by substantial foreign interests.

What followed was the suggestion that the permitted fishing by NI registered vessels was “not the maintenance of a historical practice predating partition or serving any modern interest of cross-border communication and reconciliation”, but instead was being used as a flag of convenience for access by large foreign businesses to mussel fisheries from which they would otherwise be lawfully excluded.

Constitutional consideration

Delivering the judgment of the six-judge Supreme Court, Justice O’Donnell concluded that the current practice of fishing or harvesting of mussel seed by NI registered boats in the territorial waters of the State was not lawful, as it constituted the exploitation of a natural resource which must – by Article 10 of the Constitution – be provided for by a law enacted by the Oireachtas.

While there is no such law at present, Justice O’Donnell was satisfied that there was “no insuperable constitutional objection to making provision by law for such fishing”.

In the absence of EU and domestic legislation, Justice O’Donnell stated that the case had to be determined by the provisions of considerably antiquated domestic law.

In summing up, Justice O’Donnell emphasised that “success in these proceedings may bring no practical benefit to the plaintiffs” as it may “transpire that the depletion of mussel stocks is not caused by the fishing practices of the NI registered vessels”, and that “similarly foreign interests might acquire Irish companies or Irish registered vessels, and conduct the same type of fishing”.

That being said, the narrow question for the Supreme Court was not whether the fishing for mussels in Irish territorial waters by boats registered in NI was beneficial or harmful, but whether it was lawful.

The objections to fishing by NI vessels “resolve themselves as matters of constitutional procedure”, which if correctly followed, there would be “no reason why Northern Ireland vessels may not be permitted to fish for mussel seed in specified portions of the exclusive areas of Ireland’s territorial waters”.

Conclusion

Justice O’Donnell indicated that there was “much to applaud in North-South cooperation in this area, and in indeed any area of fishing still capable of being regulated by national law”.

However, “the voisinage agreement cannot be said to be law for the purposes of Article 10.3; yet it contains the specific provisions which permit the exploitation of a natural resource. Those provisions cannot become “law” for the purposes of Article 10.3 merely by a statutory reference to fishing in accordance with an arrangement, and still less by the attempted reading of section 10 in conjunction with section 8 as suggested by the State in this case”.

Accordingly, the Supreme Court was unanimous in allowing the appeal, and made a declaration that fishing by NI vessels for mussel seed within the territorial waters of the State was not permitted by law.