Northern Irish Vessels lose access to Irish Waters.

In a landmark decision the Supreme Court unanimously agreed that a long standing agreement which the Department thought was validly made as between the Republic of Ireland and Northern Ireland is not in fact a valid agreement as per the Constitution.

In his Judgement, delivered on the 27th of October 2016, Judge O’Donnell concludes:

‘I would accordingly allow the appeal and make a declaration that fishing by Northern Ireland vessels for mussel seed within the territorial waters of the State is not permitted by law’

The position is that Northern Irish Boats had historically believed that they were entitled to fish inside of Ireland territorial waters of twelve miles or less. This arose from an exchange of letters between the Republic of Ireland and Northern Ireland in 1965.

The position is that the Supreme Court has held that that agreement was not in fact lawfully put in place notwithstanding the intentions of the parties at the time. In addition, the Court commented about the fact that North South relationship had improved dramatically even since that time and indeed accorded some comment on the fact that the 1965 exchange of letters took place in a very difficult back drop for politicians at the time.

Notwithstanding all of the advances between the relationships the Court held that under the Irish Constitution it is only the Oreachtás that could have made such a binding agreement and could not be done by such a simple exchange of letters by the Ministers.

Accordingly, Northern Irish Vessels no longer have the right to fish inside Ireland’s twelve-mile territorial water limit. This obviously has huge impact for both Mussel dredgers and indeed Commercial Fishermen who were based in Northern Ireland, but had, over many years, exercised fishing and dredging rights.

It should be noted that in relation to the Defence of the Appeal, the State contested every single aspect of the appeal of the Mussel Fishermen. Incredibly, they argued before an Irish Court that the Mussel Seed was not a ‘natural resource’ under the Constitution.

In relying on a 1863 book; The Fishery Law of Ireland, the State contented that the Mussel seed (and fish) do not belong to anyone. The State contended that there is a public right to fish and that this extended to shell fish and therefore to mussel seed, citing Royal Fishery of the Banne case (1610)- a case over 400 years old.

If this was not inflammatory enough the Judge commented that the State said;

‘It was also argued that the act of giving permission to fish was not an alienation of any natural resource for the purposes of’ the Constitution.

The Court held that fish (and Mussel seed) are a Natural Resource in the same way that energy generation is a natural resource.

What is incredible is that this legal argument was advanced after Josephine Kelly of the Department and Seamus Gallagher of the SFPA gave evidence in the High Court to defeat the Mussel Fishermen’s argument.

The matter does not end there, in so much as this was part one of a two-part case. In due course a claim for damages will be advanced.

The fallout from this decision will no doubt take time to be fully digested but for the present course it means that any Northern Irish Vessels operating within the twelve mile limits of the State, they are committing an offence and are liable to be prosecuted.

Indeed, with Brexit looming, the capacity to negotiate anything with Northern Ireland is severally limited.

The decision of the State to defend this claim must seriously be examined. The reality is that the Court referenced a loss of €200 million to the State in relation to Mussels alone.

Unlike the brave Fishermen who took this action, the Civil Servant who decided to defend the action did not go home at night worrying about how were they going to pay for the legal costs. That is for the tax payers to take care of.

The other question which must be answered by the Minister is does his Department genuinely not think that fish are a natural resource? If the answer is no, who, in his name (and all of us), said that they were not?

Dermot Conway

Conways Solicitors