Guiry v. Minister for the Marine [1997] IEHC 131 (24th July, 1997)

Judgment of Miss Justice Laffoy delivered on the 24th day of July 1997 1. On 16th January, 1997, the Minister of State at the Department of the Marine ("the Minister") made the Salmon and Trout Conservation (Close Season and Close Time) Bye-law No. 729, 1997 ("Bye-law No. 729"), which came into operation on that day and remains in operation for a period of one year. Bye-law No. 729 applies throughout the State and its provisions affect both drift-net fishing and draft and other net fishing, although not to identical effect. In the case of drift-net fishing, the effect of its provisions is the deferment of the commencement of the open season until 1st June, 1997, and to limit fishing to Mondays, Tuesdays, Wednesdays and Thursdays between 4.00 a.m. and 9.00 p.m. during the open season. Bye-law 729 was published in Irish Oifigiuil on 21st January, 1997. 2. The relief claimed by the Applicants in these proceedings, which were initiated by Special Summons which issued on 17th February, 1997, is a declaration that Bye-law 729 is invalid with regard to the provisions of the Constitution. 3. Bye-law 729 was made by the Minister pursuant to the powers conferred on him by Section of the Fisheries (Consolidation) Act, 1959 ("the 1959 Act"), as amended by Section 3 of the Fisheries (Amendment) Act, 1962 ("the 1962 Act"), which empowers the Minister to make such bye-laws " as are in his opinion expedient for the more effectual government, management, protection and improvement of the fisheries of the State ". Amongst the matters specified in Section 9 which the Minister is specifically empowered to make bye-laws in relation to are:- (i) the times and seasons at which the taking of the several species of fish shall commence and cease, (ii) the description and form of nets to be used in the fisheries and the size of the meshes thereof, (iii) the prohibition of the use of nets, and (iv) the imposition of prohibitions or restrictions of an emergency character on the taking by any specified engine or engines of the several species of fish or of any of those species for a specified period not exceeding one year in duration where, in the opinion of the Minister, such prohibitions or restrictions are necessary. 4. The matter referred to at (iv) above is specified in paragraph (gg) of Section 9 (1) inserted by Section 3 of the 1962 Act. 5. The powers conferred on the Minister by the 1959 Act, as amended, including the power conferred on him by Section 9 (1)(gg), may be exercised only within the boundaries of the stated objects of the 1959 Act, as amended, and they are powers which cast upon the Minister the duty to act fairly and judicially and in accordance with the principles of constitutional justice ( East Donegal Co-operative -v- Attorney General [1970] I. R. 317). Moreover, in exercising those powers, the Minister may not infringe the constitutional rights of any citizen ( Duff -v- The Minister for Agriculture [1993] 2 C. M. L. R. 969). 6. The Applicant, Michael Guiry, and the members of the Blackwater Fisherman's Association are drift-net salmon fishermen who fish in the estuary of the River Blackwater under licence. It is necessary to refer to two further bye-laws made by the Minister pursuant to the powers conferred by Section 9 of the 1959 Act, as amended, which affect the Applicants, although not in issue in these proceedings. The first is the Use or Possession of Monofilament or Multistrand Monofilament Nets Bye-law No. 728, 1997 ("Bye-law No. 728"), which was published in Irish Oifigiuil on 28th January, 1997 and which revoked an earlier bye-law thereby permitting the use of monofilament or multistrand monofilament nets in fishing for salmon or trout during the open season and open times throughout the State. The second is the Southern Fisheries Region (River Blackwater) (Drift-Netting in Tidal Waters) Bye-law No. 736, 1997 ("Bye-law No. 736") which was made on 9th May, 1997 and was published in Irish Oifigiuil on 13th May, 1997. As regards the tidal waters of the River Blackwater, Bye-law No. 736 has a twofold effect. It relaxes Bye-law No. 729 in deferring the commencement of the open season to 13th May, 1997 rather than to 1st June, 1997 and in removing the restriction on night fishing. It negatives the effect of Bye-law No. 728 in prohibiting use of monofilament or multistrand monofilament drift-nets. Section of the 1959 Act contains provisions in relation to any instrument to which the section applies, including a bye-law made under the 1959 Act, and paragraph (d) of subsection (1) provides as follows:- "(d) any person aggrieved by such instrument may, within 28 days after the publication in the Irish Oifigiuil, appeal against such instrument to the High Court, and the following provisions shall apply in relation to any such appeal - (i) the appeal may be heard by one or more judges of the High Court as may be convenient, (ii) the High Court may on the appeal confirm or annul such instrument, but if such instrument is annulled such annulment shall be without prejudice to the validity of anything done under or in pursuance of such instrument before such annulment, (iii) the decision of the High Court on the appeal shall be final and conclusive...". 7. The nature of the appellate jurisdiction of the Court under Section 11 was considered in Dunne -v- Minister for Fisheries [1984] I. R. 230. In his judgment, Costello J., as he then was, outlined certain features which a construction of the 1959 Act without the help of authority yielded in the following passage at page 240:- "First, it seems to me that the Oireachtas must have intended that the Court's jurisdiction on an appeal should be wider than its powers when exercising its inherent jurisdiction at common law. Secondly, the right of appeal is not expressly limited to an appeal on a point of law which, for example, is the limitation imposed on an appeal under Section 45 of the Social Welfare Act, . Thirdly, the Court's power to confirm or annul an instrument to which Section 11 of the Act of 1959 applies can arise, as I have already pointed out, in a number of different circumstances; in some of them the party aggrieved may have had an opportunity to present a case to the Minister before the impugned instrument was made, and in some of them he may not have had that opportunity. To be effective, therefore, the Court may well have to allow an appellant to give evidence and then decide the matter on material which was not available to the Minister. This would indicate that, in cases where new evidence is given and also in cases where the appeal is decided on the same material as was before the Minister, the Court is empowered to annul a bye-law or other instrument if the Court reaches a decision on the merits which is different to that of the Minister." 8. Costello J. then stated his conclusion as to the nature of the appellate jurisdiction of the Court and some practical difficulties which the Court may encounter in exercising that jurisdiction in the following passage:- "Therefore, I conclude that, in hearing this appeal, I have jurisdiction to annul the bye-law of 1981 if, in my opinion, the bye-law is not expedient for the more effectual government, management, protection and improvement of the fisheries of the State. I should add that, where an appeal relates to a bye-law which has been preceded by a public enquiry, as a general rule it is desirable that the appeal should be heard (a) on the evidence given before the public enquiry and (b) on all the other materials which the Minister had before him when making the bye-law. However, the Court has power, if it thinks fit, to hear additional evidence either by way of Affidavit or oral testimony. I think the Court should exercise this power if the Minister declines (as happened in this case) to make available to the Court the report of the inspector who held the enquiry and the other material on which the opinion of the Minister was based. While not suggesting that the onus of proof rests on the appellant, it seems to me that the Court should be slow to substitute its own opinion for the opinion of the Minister in cases in which his department's experience and knowledge of the matter in issue would be an important element in reaching its formulation." 9. The procedure to be followed in bringing an appeal under Section 11 (1)(d) of the 1959 Act is set out in Order 93 of the Rules of the Superior Courts, 1986, wherein it is provided that such appeal shall be brought by Special Summons, which shall state the bye-law appealed against and the grounds of appeal. 10. As I have indicated above, the relief sought by the Applicants on the Special Summons is a declaration that Bye-law No. 729 is invalid with regard to the provisions of the Constitution. In opening the case, the Applicants' Counsel referred to Order 93. The Respondents' response has been on the basis that the Applicants were pursuing an appeal under Section 11 (1)(d) of the 1959 Act. Moreover, Counsel for the Respondents acknowledged that, on the authority of Dunne -v- Minister for Fisheries and the more recent decision of this Court (Murphy J.) in Needham -v- The Western Regional Fisheries Board & Others , in which judgment was delivered on 6th November, 1996, the Court's function is to conduct an appeal sought under Section 11 (1)(d) on the merits. Notwithstanding the terms in which the relief sought by the Applicants is framed in the Special Summons, I am treating this application as an appeal under Section 11 (1)(d). 11. The grounds of appeal relied on by the Applicants as set out on the Special Summons are as follows:- (1) that the Minister acted in an arbitrary or capricious manner towards the fishermen in the tidally dependent fisheries of the River Blackwater by restricting their fishing rights in an identical manner as in fisheries which are not tidally dependent; (2) that the Minister imposed excessive restraints upon the Applicants' right to work or earn a livelihood, contrary to Article 40.3 of the Constitution; (3) that the Minister acted ultra vires his powers by purporting to delimit by law the property rights of the Applicants without reconciling the exercise of these said rights with the exigencies of the common good or social justice, contrary to Article 43 of the Constitution; (4) that the Minister failed to take proper account of the report ("the Report") of the Salmon Management Task Force ("the Task Force"); (5) that the Minister failed to observe natural justice in failing to effect any or any proper communication with the Applicants in advance of introducing Bye-law No. 729; and (6) that the Minister did not act bona fide in purporting to interfere with the property rights of the Applicants without seeking to establish a fair balance between public and private rights. 12. The Applicants' claim is grounded on the Affidavit of Michael Guiry sworn on the 14th February, 1997. In that Affidavit, Mr. Guiry averred that there are 101 licence holders entitled to fish on the River Blackwater. With the exception of a small number of weir, draft-net and snap-net licences, the fishermen on the River Blackwater are traditional drift-net fishermen and the type of fishing vessel generally used is a salmon yawl on average 18 ft. in length. The annual outgoings of a licence holder in relation to his fishing enterprise, covering the licence fee, net maintenance and the provision of an outboard motor, aggregate about £500. The total number of people dependent on fishing on the Blackwater is approximately 300. While nobody is totally dependent on the fishing income, it is a crucial element of family income and the majority of the participants have to rely on social welfare payments during the close season. In relation to the variation of the close season and the close times introduced in Bye-law No. 729, Mr. Guiry contrasted the prevailing regime in force prior to the coming into force of Bye-law No. 729, when fishing was permitted on a 24 hour, five day week basis for a period of four and a half months, with the varied regime under Bye-law No. 729, which limits drift-net fishing to daylight hours four days per week and for two months only. Mr. Guiry averred that when regard is had to the effect of tidal changes in the River Blackwater the 66 hours per week fishing permitted under the varied regime is further reduced to approximately 35 hours per week. Mr. Guiry then asserted the various grounds set out in the Special Summons and exhibited the Report. 13. A replying Affidavit sworn by Niall McCutcheon, a Principal Officer in the Department of the Marine, on 25th June, 1997 was filed in response. In this Affidavit, a number of international and national reports and scientific papers on salmon conservation were exhibited, namely:- (a) The 1995 and 1996 reports of the North Atlantic Salmon Conservation Organisation. (b) A report published by the Department of the Marine in 1994 on "Exploitation and Survival of River Shannon Reared Salmon". (c) A paper published by the Department of the Marine on "High Seas and Home Water Exploitation of Irish Reared Salmon Stock". (d) A paper entitled "National Report for Ireland - 1996 Salmon Season" presented to the North Atlantic Salmon Working Group of the International Council for Exploration of the Sea. 14. The overall thrust of Mr. McCutcheon's Affidavit is that Bye-law No. 729 was an emergency measure introduced pursuant to Section 9 (1)(gg) of the 1959 Act, as amended, and was intended as a first stage in the implementation of the recommendations of the Task Force, which had been set up by the Minister in October 1995 and had presented the Report to the Minister in June of 1996. Government approval had been obtained in September 1996 for the implementation of the Report's main recommendations. However, the only element of the Task Force recommendations which could be introduced by the Minister for the 1997 season were the conservation measures referred to at page 37 of the Report and these were partly implemented in Bye-law No. 729. 15. In response to the assertion in Mr. Guiry's Affidavit that the restraints imposed by Bye-law No. 729 are excessive and their natural and foreseeable consequence is the destruction of a traditional means of earning a livelihood, Mr. McCutcheon in his Affidavit averred that the reason for the reduction in fishing income experienced by salmon fishermen is twofold: the reduction in the catch; and an increase in the quantity and quality of farm salmon which has reduced the price which fishermen can achieve for their product. The first reason has been addressed and measures introduced by the Minister, including those contained in Bye-law No. 729, are designed to conserve sea salmon and thereby reverse the reduction of the catch in the long term. Mr. McCutcheon also took issue with Mr. Guiry's assertion that there was no proper or adequate communication with the Applicants in relation to the introduction of Bye-law No. 729. He averred that the degree of consultation held by the Task Force and the Minister was at an unprecedented level and the Task Force invited and received 232 written submissions and also received oral submissions at six regional public meetings, which were held at Waterford, Cork, Donegal, Dublin, Killarney and Westport. Before introducing the recommendations in the Report, the Minister consulted with the interested parties and met with representatives of the sectoral interests, commercial and recreational fishermen. 16. No further Affidavits were filed in the proceedings. Neither side sought to adduce oral evidence at the hearing and neither side sought to cross-examine the other's deponent on his Affidavit. Accordingly, the totality of the evidence before the Court is Mr. Guiry's Affidavit and the Report exhibited in it and Mr. McCutcheon's Affidavit and the various reports and papers exhibited in it. 17. The issue for determination by this Court is whether, having regard to the evidence before the Court, Bye-law No. 729, which regulates the duration of the open season and the days and times of fishing during the open season for one year, is expedient for the more effectual government, management, protection and improvement of the fisheries of the State. 18. The membership of the Task Force comprised a Chairman, Noel P. Wilkins, Associate Professor of Zoology in University College Galway and five ordinary members with special expertise in salmon fishery, including Mr. McCutcheon. Amongst the 232 written submissions it received were submissions from national organisations as diverse as various regional fisheries boards, the Irish Fisherman's Organisation, Bord Failte, the National Anglers' Representative Association and Bord Iascaigh Mhara. It also received written submissions from international organisations such as the North Atlantic Salmon Conservation Organisation and the Ministry for Agriculture, Fisheries and Forestry in the United Kingdom. On the basis of the evidence available to it, the Task Force concluded that salmon stocks are below optimum abundance in the North East Atlantic area. It also concluded that the stock of adult salmon available to Ireland is in serious decline relative to the period of 1970-1980 and concluded that the major cause of this decline is reduced survival in the sea. In its report, the Task Force stated that the first challenge it faces is to ensure that the resource is protected, sustained and enhanced. The strategy proposed by the Task Force is an integrated approach involving - (i) securing and augmenting spawning stocks, (ii) managing on a catchment basis, (iii) encouraging community driven initiatives, (iv) ensuring equitable sharing of the resource, and (v) implementing the strategy within a national framework under the guidance of a national Salmon Management Commission. 19. Having regard to the case made by the Applicants in the Special Summons and in the grounding Affidavit and in the submissions made on their behalf by Counsel, it is the issues involved in the equitable sharing of the resource which are of most concern to them. Underlying the approach of the Task Force to these issues is the recognition that the maintenance, and in due course the augmentation, of the spawning escapement share at the best practically achievable level is the most fundamental, inclusive and necessary demand on the resource and that all other shares must be subservient to this. Recognising also that the harvestable surplus is a finite quantity, the Task Force recommended that this quantity be expressed as the Total Allowable Catch (TAC) for any given year and that the setting and altering of the TAC should be carried out in a transparent manner by an objective authority with representation of all interests and using the best available scientific principles and management advice. The Task Force further recommended that the allocation of shares in the TAC between the legitimate interests should be by quota and that the apportionment of quota between the catching sectors, and its rebalancing from time to time, if that proves necessary, would be a matter of policy to be decided by the Minister acting on the advice of the national Salmon Management Commission. However, the Task Force recommended that the fundamental criterion to be applied in arriving at the balance between the various legitimate interests should be one of fairness, giving due recognition to certain subsidiary criteria outlined in the Report. Assuming that the quota regime would be introduced before counter data are available and before the national Salmon Management Commission is operating, the Task Force recommended that the TAC in the first year be 900 tonnes and that the quotas for the different sectors, expressed as percentages of the TAC be 64% to the drift-net fishery, 18% to draft-nets and other engines including traps, and 18% to recreational rod fisheries. 20. The regulation of salmon fisheries by quota would constitute a change from the current method of regulation by effort limitation (involving limiting the length, depth and type of gear, the length of season and days of fishing, etc.) to catch limitation. The Report envisages that, working within quota, a fishery could use the gear of its choice, subject only to mesh size regulations. However, in order to distribute the TAC over the whole run season, which is biologically essential and commercially desirable, the Task Force recommended that drift and draft-net fishing be restricted to four days each week fishing from 4.00 a.m. to 9.00 p.m., so as to leave three clear days in each week for fish to enter fresh water. Moreover, in order to ensure better escapement of early running fish, the Task Force recommended that no drift-net fishing be permitted before June 1st and that no draft-net fishing be allowed to start before May 15th in any year, but recommended that drift and draft-netting be permitted to continue until August 31st, subject to quota. The Task Force also recommended that the maximum permitted number of drift and draft-net licences be restricted permanently to the actual numbers allocated in 1995. 21. As to progressing the implementation of the recommendations of the Task Force, Mr. McCutcheon averred in his Affidavit that primary legislation will be required to introduce the quota system and that this matter has been referred to the Marine Institute to prepare a draft report to be submitted to the Minister shortly. The recommendation that management of salmon fisheries be organised on a local catchment basis has been referred by the Minister to the regional fisheries boards which have been asked to take the lead in facilitating discussions between local commercial fishermen and angling groups with a view to developing local catchment plans. 22. In relation to the element of the Task Force recommendations which have been implemented and, in particular, the measures embodied in Bye-law No. 729, Mr. McCutcheon, in his Affidavit, explained that these measures deviated from the recommendations of the Task Force in two respects. First, the Task Force recommended that drift and draft-net fishing be restricted to the hours of 4.00 a.m. to 9.00 p.m. daily on open days, but following representations on behalf of draft-net fishermen who fish in estuaries and are already restricted by the tides to fishing at particular hours, the Minister decided not to apply this restriction to draft-net fishing. Since these proceedings were initiated, the Minister has extended this exemption to estuary drift-net fishermen in the Blackwater estuary, subject to them not using monofilament nets, in making Bye-law No. 736. Secondly, given that the quota system is not in place, the Minister did not follow the recommendations of the Task Force to extend the open season into August. 23. The proposals in the Report of the Task Force which the Applicants allege that the Minister failed to take proper account of, as particularised in the Special Summons, are as follows:- (i) that the regulation of salmon fisheries change from largely effort limitation to catch limitation, (ii) that due cognisance be given to the socio-economic needs of remote communities, (iii) that the aims of fairness and balance require that no section should be eliminated in favour of another, and (iv) that all sectors be given an assurance of their legitimacy and continuance by recognising that no sector will be involuntarily eliminated or abolished in favour of another. 24. It emerged during the hearing that the Plaintiffs are agreeable in principle to a quota system but they want the quota to be allocated fairly and on the basis of proportionality. Their contention is that the measures adopted by the Minister, pending the introduction of the quota regime, are undermining their position. It emerged that the gravamen of their stance is that they object to monofilament net fishing outside estuaries and they contend that permitting the use of monofilament nets at the mouth of harbours is allowing the salmon resource to be more effectively killed before reaching the spawning rivers and destroying their livelihood. This allegation cannot be addressed in these proceedings, which are concerned only with whether Bye-law No. 729 should be confirmed or annulled. 25. On the evidence before the Court, I am not satisfied that the Minister has failed to take proper account of the Report of the Task Force, as alleged by the Applicants. It is clear from the evidence that the Minister does intend to introduce the quota regime and has taken preliminary steps towards that end. The Task Force recommended that cognisance be given to the importance of salmon fishing to the socio-economic needs of island and other remote communities in the context of the regulation and review of the maximum number of available licences. No issue in relation to "capping" licences arises under Bye-law No. 729. On the evidence, I am satisfied that Bye-law No. 729 does not reflect any deliberate policy to eliminate any sector or, indeed, to favour any sector over another. Insofar as Bye-law No. 729 may have given draft-net fishermen fishing in estuaries an advantage over drift-net fishermen such as the Applicants, who fish in estuaries, I am satisfied that the giving of such advantage was inadvertent and the Minister has been prepared to address the issue. I express no view, however, in relation to the validity of Bye-law No. 736 which, as I understand the position, is the subject of a separate appeal under Section 11 of the 1959 Act in this Court by the Applicants. 26. While the Task Force recommendations in relation to the duration of the fishing season and the permitted times of fishing were made in the context of the quota regime being in place, in my view, the introduction of Bye-law No. 729 as an emergency measure for one year, in advance of the putting in place of the quota regime, is not in any sense inconsistent with the overall thrust of the recommendations of the Task Force. Indeed, the restrictions imposed in Bye-law No. 729 would seem all the more necessary for protection of salmon fisheries in the absence of a quota regime and pending its introduction. On the basis of the evidence, I could not come to any conclusion other than that Bye-law No. 729 is expedient for the more effectual government, management, protection and improvement of the fisheries of the State and, that in making it, the Minister acted within the ambit of the stated objects of the 1959 Act, as amended. 27. The Applicants do not contend that Section 9 of the 1959 Act, as amended, is invalid having regard to the provisions of the Constitution. In any event, they could not advance such a contention in this unique type of proceeding, which is an appeal on the merits and which produces a decision which is unappealable. However, the Applicants contend that, in making Bye-law No. 729, the Minister infringed their constitutional rights and that he abrogated the duty cast upon him to act fairly and in accordance with the principles of constitutional justice. 28. While it is well settled in the jurisprudence of this Court and of the Supreme Court that among the unenumerated personal rights guaranteed by Article 40.3 of the Constitution is the right to earn a livelihood and that certain rights associated with the right to earn a livelihood are property rights which the State is obliged to protect under Article 40.3.2, it is also well settled that these rights are not absolute rights but are subject to legitimate legal restraint and their exercise may be restricted, where that is required, by the exigencies of the common good. The evidence before the Court, in my view, is not sufficient to found an allegation of infringement of the Applicants' personal rights under Article 40.3 and this ground of challenge to Bye-law No. 729 must fail. 29. It was submitted on behalf of the Applicants that, given that there is a definite number of licence holders and that they tend to live in remote areas of the country, the requirement that the Minister act fairly and in accordance with the principles of constitutional justice necessitated that the licence holders be notified individually of the proposal to make the Bye-law No. 729. I reject this submission. The Minister complied with the requirements of the 1959 Act in publishing Bye-law No. 729 in Iris Oifigiuil and the Applicants became aware of it in sufficient time to exercise their right of appeal under Section 11 of the 1959 Act. 30. Accordingly, I confirm Bye-law No. 729. 31. I am acutely conscious of the fact that this judgment does not address the Applicants' real concern, namely, permitting offshore fishing with monofilament nets. However, as I have indicated, that concern cannot be addressed in these proceedings. © 1997 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII