High Court dismisses challenge to Fisheries Act renewal clause due to lack of locus standi and public interest.

Neutral Citation Number: [2010] IEHC 281

THE HIGH COURT

2007 810 P

Between:

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

Plaintiffs

-And-

DANNY BRADLEY AND ROBERT IVERS

Defendants

Judgment of Mr. Justice Eamon de Valera dated the 29th day of June 2010

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.

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 in Moore 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.

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.”

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.”

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…”

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.

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.

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.

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.

The defendants state that they will rely on the facts set out in the Supreme Court judgment in Moore 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.

The Defendants’ Submissions

The defendants claim that the Moore 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.

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.

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.

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.

The Attorney General’s Submissions

Section 19A(4) extends the life of a particular licence pending the completion of an application for renewal. The section does not

provide for the granting of a licence, rather it provides for a temporary extension of a licence. The Attorney General submits that the

enactment of a statutory provision that extends the life of a particular licence pending the completion of an application for the

renewal of that licence offends no constitutional principle pleaded by the defendants in these proceedings. It is the temporary

extension of the licence and not the granting of the licence that is catered for in the impugned section and the Attorney General

submits that it has not been explained how the mere extension of the licence is said to constitute an unjust attack.

The Attorney General submits that it is not clear which aspects of s. 19A(4) give cause for grievance on the part of the defendants.

It is further submitted that the constitutional validity of the scheme under which aquaculture licences are granted is not challenged,

as the only statutory provision which is sought to be declared unconstitutional is s. 19A(4).

The Attorney General submits that it is significant that the defendants have never sought to impugn the validity of the licence

granted by the Minister to the plaintiff in 1994, nor have they ever sought prohibition, mandamus or any other relief against the

Minister since 1994 in respect of the continuation in force of that licence after 2004 with a view to opening up the area of foreshore

to them or to the public at large. This fact, the submit, should deprive the defendants of the reliefs sought.

The Attorney General submits that a legislative provision is presumed to be constitutional unless shown otherwise. It is therefore, it is

submitted, not sufficient for the defendants to show that the operation of the section might give rise to an unjust attack on their

constitutional rights. In order to succeed in a claim of unconstitutionality, the defendants must be able to show that the subsection

in question is incapable of a construction which renders it unconstitutional. In East Donegal Co-operative Life Stock Mart Limited v.

The Attorney General [1970] I.R. 317, the Supreme Court held that where two possible interpretations of a particular legislative

provision are open to a court, one of which renders it constitutional and the other unconstitutional, then the former approach must be

taken. Also, the Attorney General drew the Court’s attention to Loftus v. The Attorney General [1979] I.R. 221, where O’Higgins C.J.

held, at pp. 238 – 241, that a statutory provision is entitled to a presumption:

“… that what is required is allowed to be done, for the purpose of its implementation, will take place without breaching

any of the requirements, express or implied of the Constitution… if [the donee of the power] exercised his discretion or his

powers capriciously, partially or in a manifestly unfair manner it would be assumed that this could not have been

contemplated or intended by the Oireachtas and his action would be restrained and corrected by the courts.”

Furthermore, any failure to operate an Act in a manner consistent with the Constitution will leave the relevant State authority subject

to the supervisory jurisdiction of the court and an affected person’s rights can be vindicated by Order of the court. It is not

necessary in those circumstances, however, to strike down the relevant statutory provision for constitutional invalidity. The only way

therefore that these defendants can succeed in their challenge is if they establish, clearly, that the subsection in question cannot be

applied constitutionally. The Attorney General submits, furthermore, that if there was an issue about or a complaint to be made about

the Minister’s handing of an application for the renewal of a licence, whether on grounds of delay or otherwise, it would have been

open to the defendants or any other affected party to bring judicial review proceedings to seek such relief. The appropriate approach

here could have been by way of judicial review and it is not now open to the defendants to claim a breach of their constitutional

rights when they could have taken action much sooner to prevent any such breach but did not do so.

As for the defendants’ purported reliance on Moore, the Attorney General says it is difficult to see what application that case can

have here. In Moore, the plaintiffs had sought a declaration that they were in ownership of a private fishery in tidal waters in

Donegal. Under English law, as a result of Magna Carta, such fisheries could not be created in tidal waters unless they existed prior to

the death of Henry II (1189). The plaintiffs relied, ultimately, on certain crown grants of fisheries made on various dates between

1603 and 1639. Crown grants of private fisheries were not lawful, by reference to Magna Carta. However, in Moore, statutes had

been passed which validated in general terms all crown grants in plantation lands in Ireland.

The essential question in Moore was whether the foreshore in question constituted plantation lands or not. If they did, the statutes in

question would have validated the otherwise unlawful grant because Magna Carta was capable of repeal by statute. It was found, as

a matter of fact, that the foreshore in question did not constitute plantation lands. Consequently, the statutes did not govern the

matter and the plaintiff’s claim failed. It was implicit in the reasoning in Moore that a public statute could exclude the public from tidal

waters notwithstanding the Magna Carta.

In light of the findings in Moore, the Attorney General submits that far from assisting the defendants, it is abundantly clear that

Magna Carta is capable of repeal by statute and if the modern statute in question in these proceedings is inconsistent with Magna

Carta, then the statute prevails. In any event, it is submitted that the Magna Carta was repealed by the Statute Revision (Pre-1922)

Act, 2005.

The Attorney General also argues that the defendants’ claim is incompatible with Article 10 of the Constitution, which provides as

follows:

“1. All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and

Government established by this Constitution and all royalties and franchises within that jurisdiction belong to the State,

subject to all estates and interests therein for the time being lawfully vested in any person or body.

2. All land and all mines, minerals and waters which belonged to Saorstát Éireann immediately before the coming into

operation of this Constitution, belonged to the State to the same extent as they then belonged to Saorstát Éireann.

3. Provision may be made by Law for the management of the property which belongs to the State by virtue of this Article

and for the control or the alienation, whether temporary or permanent, of that property.”

As regards the defendants’ claim that their constitutional rights are being infringed, the Attorney General states that nothing was

taken away from the defendants by the extension of the licence pursuant to the impugned subsection because there was no

evidence before the Court of their having fished the grounds the subject matter of the licence between the years 1994 and 2004. In

those circumstances, the position is either that the defendants did not fish those grounds at the relevant time and so have lost

nothing by not fishing them now or that the defendants did participate in fishing in that area but did so contrary to statutory

provisions which they did not and still do not challenge. In either event, the Attorney General submits that no claim of any loss of

constitutional rights has been made out by the defendants in this case. In relation to the defendants’ claim of a breach of their right

to earn a living, it was submitted that there was no evidence before the Court in either the principal trial or the supplemental hearing,

of any impact on the income or assets of the defendants. The Attorney General referred the Court to the judgment of the Supreme

Court in Casey v. Minister for Arts, Heritage, Gaeltacht and the Islands [2004] 1 I.R. 402, where Murray J. (as he then was) held as

follows:

“It seems to me that the appellant has misconceived the nature and ambit of the right to earn a livelihood. To engage in

such a lawful business activity for the purpose of earning a livelihood is something which a citizen is entitled to do as a

right. It is self-evident that the right to carry on such a business does not entitle the citizen to have access, as a right,

to the property of third parties and use it for business purposes. It does not matter whether the property, in this case a

national monument, is privately owned or owned by the State. It is true that the respondent is required, pursuant to s.

16(1) of the Act of 1930, subject to the limitations in that section, to permit members of the public to have access to the

national monument. That is purely a statutory obligation directed at entitling members of the public, individually or as

visitors, to view a national monument. Manifestly it does not confer a right on individuals or business enterprises to land

customers for their own business purposes on that property and indeed it must be said that the appellant did not seek to

advance such an interpretation of that section.”

Overall then, the Attorney General submits the defendants lack locus standi to bring this challenge. They submit there is a clear public

interest in the control of the exploitation of tidal waters. Such controls are, they submit, commonplace in all Member States of the

European Union. It is self-evident that considerable mischief could be caused, if, in the period between the termination of an existing

aquaculture licence and the granting of a new one, the bed in question was opened to uncontrolled fishing. The Attorney General

submits that the subsection and the power it confers is therefore necessary to protect the interests of the common good.

Decision

As regards the defendants’ submission that there was no possibility of challenging the operation of the section by bringing judicial

review proceedings, I accept the Attorney General’s submission that if there was an issue about the Minister’s handing of the licence

renewal application, it was at all times open to the defendants to challenge any such matter by way of judicial review and that it is

not now open to the defendants to claim a breach of their constitutional rights when they could have taken that approach to prevent

any such breach from arising in the first place but failed to do so.

I believe the decision in Moore is of no assistance to the defendants in this case and I accept the Attorney General’s submission that

it was implicit in the reasoning in that case that legislation was capable of excluding the public from tidal waters notwithstanding the

Magna Carta. The reason the plaintiff’s claim in Moore succeeded was because the lands in question were found, as a matter of fact,

not to be plantation lands and in those circumstances the relevant statutes did not apply. If the area in question had been found to

be plantation lands the outcome would have been entirely different, and the outcome turned on the classification of the lands, not on

the effect or superiority of the Magna Carta on subsequent legislation. The facts in the present case are distinguishable from Moore

and the decision in that case cannot assist the defendants in the challenge they seek to make here.

I do not accept the defendants’ argument that their constitutional rights, including their right to earn a living, have been breached by

the matters complained of in these proceedings. I agree with the Attorney General’s submission that the defendants lack locus standi

to challenge the relevant section on any such basis given the decision of the Supreme Court in Casey v. Minister for Arts, Heritage,

Gaeltacht and the Islands, particularly the following section:

“It seems to me that the appellant has misconceived the nature and ambit of the right to earn a livelihood. To engage in

such a lawful business activity for the purpose of earning a livelihood is something which a citizen is entitled to do as a

right. It is self-evident that the right to carry on such a business does not entitle the citizen to have access, as a right,

to the property of third parties and use it for business purposes.” (Emphasis added)

For all of the above reasons, I reject the defendants’ application and refuse the reliefs sought.