Barlow v Minister for Agriculture: Natural resource means every natural source of wealth

285-02Here, the Supreme Court held that, “on the plain meaning of Article 10 of the 1937 Constitution, the regulation of fishing for mussel seeds at least, when carried out in the territorial waters of the State, is the regulation and management of a natural resource, and therefore property belonging to the State which must be provided for by law, which must mean public legislation adopted by the representative of the People in the Oireachtas” [66].

 

Background

Barlow challenged the legality of a reciprocal administrative scheme, between the Irish and Northern Irish ministers with responsibility for marine issues, that has been in operation since 1965, which allows for Irish and Northern Irish fishing fleets to fish in each others territorial waters.

The National Development Plan 2000-2006 emphasised the need to develop aquaculture. It envisioned that Ireland’s production of wild mussels would increase from 29,500 ton in 2005 to 44,000 ton in 2015. Barlow purchased a purpose built fishing vessel for the harvesting of mussels. However, instead of increasing, the national harvest of mussels decreased to 13,000 in 2010 and to 2,500 by 2013. Barlow alleges that this reduction is due to mismanagement by SMAC (Seed Mussel Administration Committee), an all-island administration body, and to aggressive over-fishing by foreign boats registered in Northern Ireland.

In the High Court, Barlow argued that mussels are a natural resource and, therefore, under Article 10 of the Constitution, the Minister can only manage or alienate the harvest of mussels as prescribed by law; that the agreement between the Minister and his Northern Ireland counterpart is an administrative arrangement not provided for in law; that the arrangement is contrary to s 10 0f the Sea-Fisheries and Maritime Jurisdiction Act 2006; and that the mismanagement of the mussel harvest breached his rights, interests and legitimate expectations.

Birmingham J (here) dismissed the action. He held that wild mussels held the same legal status as wild beasts, fowl and fish: they are nullius in bonis–no one’s property. Therefore it is not a natural resource as envisioned by Article 10 of the Constitution. Citing the authority of State (Gilliland) v Govenor of Mountjoy [1987] IR 201, he held that the Constitution permits the creation of an administrative type international convention or agreement without Dail approval [29]. And that s 10 of the 2006 Act cannot be read in isolation, and s 8 0f the Act permitted the administrative arrangement in place.

 

Article 10 of the Constitution:

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.

 

Sea-Fisheries and Maritime Jurisdiction Act 2006

S 8 (statute) makes it unlawful for a foreign fishing vessel to enter Irish waters except, among other things, for purposes recognised by an “arrangement”. S 10 makes it an offence for a foreign fishing vessel to fish in Irish waters, except where it is provided for in law.

 

Supreme Court

O’Donnell J wrote the judgment for the Court. He accepted that there was an agreement in place between the Irish Government and the UK Government to allow reciprocal fishing by Irish and Northern Irish fishermen in each others’ territorial waters; that the agreement was, likely, no more than a gentleman’s agreement and unenforceable in law [40]; that, as the agreement was of an administrative nature, it was not contrary to Article 29 of the Constitution [41]; and that the issue was whether fishing for mussel seed constituted the management, control or alienation of a natural resource.

On reading the Irish text, O’Donnell J held that natural resource in Article 10 must be interpreted broadly, as every natural source of wealth [43]. Therefore, “Article 10 extends to air and water and in particular to the capacity to extract potential energy from either source, or indeed any source within the State” [65].

O’Donnell J stated:

It is sufficient for this case to conclude that on the plain meaning of Article 10 of the 1937 Constitution, the regulation of fishing for mussel seeds at least, when carried out in the territorial waters of the State, is the regulation and management of a natural resource, and therefore property belonging to the State which must be provided for by law, which must mean public legislation adopted by the representative of the People in the Oireachtas [66].

In conclusion to this case, O’Donnell J held that, although “agreement” in s 8 of the 2006 Act is broad enough to include the administrative agreement between the Irish and UK governments, s 8 only permits entry into Irish waters. It does not permit fishing. And s 10 prohibits fishing by foreign vessels except where provided for by law. As the administrative agreement between the Irish and UK governments is not law created by the Oireachtas, it is not lawful for Northern Irish registered vessels to fish for mussels in Irish territorial waters.

Denham CJ, McKechnie J, Clarke J, MacMenamin J and Laffoy J all concurred. The late Justice Hardiman also sat on the panel at hearing.

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