Court considers metaphysical arguments on the nature of natural resources


On Tuesday (17 Nov), a seven judge panel heard argument from the Plaintiff in Barlow v Minister for Marine. That argument, for a large part, took the form of, what the justices themselves described as, a “metaphysical” discussion on the nature of natural resources as envisioned by Article 10 of the Constitution.

The background to this case is outlined in an earlier post (here). And the Irish Times has additional information here. Briefly though, Barlow is a fisherman who is challenging the legality of an agreement that allows fishing boats registered in Northern Ireland to fish for wild mussels in Irish territorial waters. His counsel argued that, contrary to the decision of the High Court, wild mussels are a natural resource; as such, the State can only alienate that resource by means of law–a specific law that is easily discoverable; and that the administrative agreement relied upon by the State is insufficient for that purpose, as it is based on letters of agreement between civil servants referencing terms and conditions that are no longer applied.

At the base of that argument, though, is the assertion that wild mussels are a natural resource. Article 10 of the Constitution states:

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 belong 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 of the alienation, whether temporary or permanent, of that property.

4 Provision may also be made by law for the management of land, mines, minerals and waters acquired by the State after the coming into operation of this Constitution and for the control of the alienation, whether temporary or permanent, of the land, mines, minerals and waters so acquired.

In the High Court, Bermingham J held that because fish and wild animals move freely no one can assert ownership over them: they are nullius in bonis–no one’s property. However, before the Supreme Court, Barlow’s counsel argued that air moves more freely than fish, wild animals and birds. And under Article 10 the State claims ownership of the air and waters. Therefore the High Court erred in finding that the State could not own fish and wildlife.

The justices, naturally, wanted to tease out the implications of that submission. McKechnie J asked how can the State own tidal waters that flow and change? Counsel answered that the State can own the water and air that is within its territory at any given time without owning specific air and water. And likewise, it can own any fish that are within our waters at any given time–even though it may not own specific fish. To that, O’Donnell J asked, does the State own the seabed and water within our territory or just have jurisdiction over it? His understanding was that the foreshore is the land between high and low tide marks. From her demeanour, it was evident that Laffoy J knew the answer to that. But she did not deny counsel the opportunity to inform those members of the Court who may not have known that the Foreshore Act 1933, as amended (2005), fixes the outer limit of foreshore at 12 nautical miles.

MacMenamin J asked, if a child takes a crab from the sea is it taking a natural resource owned by the State? Or if someone with a cottage in the West of Ireland sets a lobster trap and takes lobsters to sell, are they taking and selling a natural resource? Counsel answered yes to both. In the first instance, though, the child may be exercising a “limited public right” to fish for personal use. Whereas, it is likely that the second example is covered by legislation, as fishing is so highly regulated. Pressing further, MacMenamin J asked if there could be a “limited public right” for Northern Ireland registered boats to fish in Irish waters? Counsel rejected that proposition on grounds that the Sea Fisheries and Maritime Jurisdiction Act 2006 prohibits fishing by foreign boats, except where there is an arrangement in law.

Clarke J asked, is all wildlife is a natural resource? With Hardiman J asking, is a wild rabbit a natural resource? They can be distinguished from mines and minerals. Counsel answered that it likely is; that the State claims ownership of “all natural resources” subject to rights, etc. Hardiman J then asked is there authority for the submission that all wildlife is a natural resource? After which there was some discussion of law going back to the Magna Carta and the right of sovereigns over wildlife. The conclusion of that discussion seemed to be that there is no case law as authority that wildlife is a natural resource, but that it was open to the State on becoming a republic to claim ownership of wildlife as a natural resource.

Narrowing the discussion, O’Donnell J brought it back to mussels. Counsel explained that, unlike some other sea fish, mussels do not move in and out of the State’s territorial waters. They only seed and mature within six miles of the coastline. The mussels in question are unique to Irish waters. And the State has described mussels as a natural resource in many official reports, of which examples were submitted, But pressing further, O’Donnell J asked is it necessary to establish that mussels are a natural resource for Barlow’s case to succeed? Counsel admitted that it was not necessary, as she was submitting that the impugned arrangement falls foul of the statutory prohibition on foreign registered vessels fishing in Irish waters in the absence of a legal arrangement. But she was pushing for a determination that mussels are a natural resource.

As could be expected, numerous other issues were discussed, including standing, and the history of the arrangement, which is detailed in the High Court judgment.

The Court reserved judgment. If it does determine that the arrangement allowing Northern Ireland registered fishing boats to fish in Irish waters is not an arrangement in law, Barlow could possibly succeed on the statutory point without the Court having to determine the constitutional issue. And given the Court’s policy of not making a determination on a constitutional issue where it is not necessary to do so, it is possible that the issue on whether wildlife is a natural resource is not addressed in the Court’s judgment at all. But given that the case bypassed the Court of Appeal, and as the Court believed that the points of law involved warranted determination by seven justices, if the justices believed strongly that the High Court erred in finding that wildlife is not a natural resource, it would seem likely in those circumstances that the issue will be determined with finality.

We’ll have to wait and see.


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  1. Outstanding judgments carried over into the new legal year | SCOIRLBLOG

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