The following (lengthy) letter was sent by email to the Minister almost two months ago and has still not been acknowledged and, as of this weekend, when Rep. Ireland vessels have zero access to Northern Irish seed mussels but Northern Irish vessels and shellfish farms will have full access to Rep Ireland resources, it would appear that the Minister and his Dept of Marine have no intention of dealing with this issue:
TO: Mr Charlie McConalogue, TD, Minister for Agriculture, Food and the Marine;
CC: Ms Bridget Collins, Executive Officer, Department of Agriculture, Food and the Marine;
CC: Mr Paul Gallagher, Attorney General.
Re: URGENT: Ireland intent on breaching EU Regulation and UN Law in relation to Illegal Unreported and Unregulated (IUU)Fishing
22nd July 2021
Dear Minister,
The purpose of this letter is to ensure that the Minister and other relevant parties are fully aware of the seriousness of Illegal Unreported and Unregulated (“IUU”) fishing and highlight that steps to facilitate fishing by Northern Irish fishing boats / Aquaculture Site Operators (‘UK/NI Operators’) outside of the strict requirements set down by the Supreme Court 1, EU Regulation (EU) 2017/2403 and UN Law (UNCLOS2), will result in the facilitation by you of IUU fishing.
Given the severity under the EU Regulation and UN law with which IUU is treated, it is of the utmost and urgent importance that you engage with the contents of this letter and consider your obligations in light of the “Barlow” judgment and the consequences of the UK’s departure from the EU.
This letter also suggests how the bottom Mussel fishery may be operated in a manner that complies with Ireland’s international and domestic legal obligations and explains how this will have little (if any) impact on the main whitefish, prawn and potting sectors in Northern Ireland.
Introduction – Brexit, the TCA and Legal Implications
I note Bridget Collins’ comments in her recent communication (2021 EoI Cover Letter) that the “mussel seed fishery is managed on an all-Island basis” and “the operation of the Voisinage arrangements mean that sea-fishing boats that are owned and operated in Northern Ireland may fish or attempt to fish while the boat is within the area between 0 and 6 nautical miles as measured from the baseline of the State.”
In response to this, I bring to your attention the following facts:
1. The UK has now left the European Union and the Common Fisheries Policy (CFP);
2. The UK (including Northern Ireland) is now a Third Country and Ireland is legally obliged under EU REGULATION (EU) 2017/2403 and UNCLOS Articles 62 (sections 2 & 3) to comply with its legal commitments in relation to IUU fishing in its dealings with Third Countries, including in relation to fishing activities by Northern Irish vessels.
In the matter of Barlow v Minister for Agriculture, Food and the Marine [2016] IESC 62. Hereafter “Barlow”, Ireland’s Supreme Court confirmed that alienation (exploitation, management etc,) of Ireland’s natural resources (including specifically mussel seed) may only take place in accordance with law.
This law must be set out and approved by Ireland’s elected representatives. See extract from the decision in Appendix (i) 2 The United Nations Law of the Sea. Hereafter “UNCLOS”.
If it is your intention to operate the bottom mussel sector on the same basis as prior to ‘Brexit’ “you will place Ireland in clear and substantial breach of its obligations in relation to such IUU fishing.
The basis for this conclusion is as follows:
Background
Illegal Unreported and Unregulated fishing
Ireland has an obligation under Irish law, EU Regulation and UN Convention to act to prevent IUU activity in its waters.
Ireland’s obligations are formal and legal in nature. They are also specifically designed to prevent IUU fishing taking place due to “political expediency”.
1. The Trade & Co-operation Agreement (TCA) defines the fisheries agreement between the EU and the UK;
2. In 2019 Ireland legislated for vessels “Owned, Operated and Registered” in Northern Ireland to access Ireland’s 0-6 mile zone for the purpose of fishing.
The 2019 Legislation (at most) provides a basis on which existing fishing rights under the TCA (and previously the CFP) may be extended into Ireland’s 0-6 mile zone.
It does not claim to create a ‘stand-alone’ right to fish. It is a unilateral provision, not an international agreement and contains none of the management, allocation or effort control provisions essential to such an agreement.
3. There is no provision in Irish law (or the TCA) that permits the UK to create mussel quota that can only in reality be fished in Ireland’s 0-6 mile zone;
4. Ireland is obliged under Article 33 of EU Regulation (EU) 2017/2403 and Article 62(2) and (3) of UNCLOS to establish a surplus before opening a fishery to a third country;
5. Appendix 1. Part (a) sets out in detail why neither the TCA nor the 2019 Act can possibly exempt Ireland from its obligations to establish such a surplus.
Illegal pooling of mussel stocks.
Northern Ireland has a very modest mussel seed resource of perhaps 1,000 tonnes annually but has created mussel fishing quotas (“allocations”) of approximately 20 times this amount.
Ireland has a significantly greater mussel seed resource than Northern Ireland (ranging from triplicate in recent years to 30x historically) but the Irish fleet is more than capable of utilising the mussel seed stock. No surplus exists for exploitation by a Third Country.
Any form of pooling of the two distinct mussel fisheries into a common pool from which both states may then permit fishing will clearly (and irrefutably) result in a net exploitation of Ireland’s mussel seed resource by UK/NI Operators.
This obvious and substantial ‘alienation’ of Ireland’s natural resources by a Third Country is required by law (as set out by the Supreme Court in Barlow) to be subject to legislative provision.
The 2006 Act contains NO legal provision permitting the Minister to enter into any form of ‘joint licensing’, ‘joint management’, ‘stock pooling’ or the granting of authorisations to Third Country vessels - in other words, there is no legal basis for what is colloquially referred to by Ms Collins as “joint management” contained in the 2006 Act.
Also, there is no legal basis that provides for the Minister to (and therefore the Minister would be breaching a Supreme Court direction if he so does) to:
1. Authorise fishing by an Irish registered fishing vessel of mussel seed on the basis of an allocation made by the UK/ NI authorities (either to an aquaculture site in Northern Ireland or that part of the Foyle area over which sovereignty is disputed);
2. Authorise a NI registered fishing vessel to fish an allocation of mussel seed made to an Irish aquaculture site;
3. Authorise the chartering of a NI fishing vessel by an Irish aquaculture operator;
4. Purport to make new law through the use of a Statutory Instrument and in particular to create or permit to be created a fishing right that has not been explicitly provided for under legislation passed by the Oireachtas.
Furthermore there is nothing in the TCA or indeed the 2019 Act that gives the Minister any legal right to recognise an allocation made by a UK authority to make an allocation that fulfils a role reserved for the Minister of the State or for a UK authority to make an allocation that may be used by a Third Country to fish outside the law set down by the Oireachtas in the 2006 Act.
The Way Forward
I appreciate that there are political sensitivities around this matter but draw to your attention important differences in the legal provisions applicable to the bottom mussel seed fishery than are applicable to the traditional prawn, whitefish and potting sectors post Brexit:
1. The TCA includes detailed provisions in relation to joint management of the fisheries in the areas outside of each party’s 12-mile limit and on a limited basis, in the band between their 6- 12 limits;
2. The terms of the TCA include limits on fishing activity (method, stocks, quantities, times, etc.).
It is arguably the case that the 2019 Act serves to extend the rights exchanged and managed in the TCA (as it pertains to the UK and Ireland case rights beyond 12 miles) into the 0-6 mile zone. This may be sufficient to facilitate the traditional whitefish, prawn and potting fisheries but crucially, not the bottom mussel fishery;
3. I bring to your attention that no such mussel allocation (or quota) arises outside of the 12-mile limit and so does not arise in the area covered by the TCA. It is therefore impossible for it to transfer back inside the 0-6 mile zone under the 2019 Act;
4. Furthermore, under Section 13 of the Sea Fisheries and Maritime Jurisdiction Act 2006 a fishing boat engaged in fishing for mussel seed in Irish waters must hold an authorisation to fish mussel seed, which is limited by quantity (and other criteria), issued by the Minister.
It is not sufficient to simply hold a fishing boat licence as may be the case for some “non-quota” species such as crab.
My position therefore is that the current legal structures may be adequate to support the ‘voisinage’ arrangements for the tradition fisheries covered in the TCA or fisheries where a licensed fishing boat is sufficient of itself but crucially not the bottom mussel fishery, where an authorisation to fish an allocation of mussel seed must also be held.
What is legally permitted in terms of “joint management”?
“Joint management” which does not involve the exploitation of Ireland’s resource by a Third Country most likely does not require the legislative process set down in Barlow.
It is unlikely that anyone would have a substantial problem with steps such as cooperation in marketing, animal husbandry, research and development etc. This is what cross Border Co-operation involves in other sectors.
“Joint Management” for the bottom mussel sector has become a means whereby the entire EU and Irish system designed to match fleet size with available resource could be bypassed by registering a vessel in a separate legal jurisdiction and then “somehow” creating a mussel seed quota that will inevitably be fished in our waters.
As no legal basis exists for a net alienation by NI fishing boats and/or aquaculture sites, then any alienation must be on a tonne for tonne basis. I.e., if NI fishing boats and/or aquacultures sites take 1,000 tonnes of mussel seed from Irish waters, then Irish operators must in turn take an approximately equal amount.
If, for some unfathomable reason, the Minister wishes to continue with essentially unlimited exploitation by UK vessels of our bottom mussel seed resource, then he needs to pass the legislation to do this through the Oireachtas.
In summary
The departure of the UK from the EU and consequently the CFP has fundamentally changed the legal landscape in relation to fishing.
The UK is now a Third Country for fishing matters and subject therefore to the provisions of EU Regulation (EU) 2017/2403 which sets out definitive measures that EU States must take to prevent IUU fishing.
As set out herein, the required surplus does not exist for the seed mussel fishery and there is no legal agreement (in accordance with the standards set down by the Supreme Court) in place that would exempt Ireland from the need to establish such a surplus before allowing the UK fleet to participate in Ireland’s bottom mussel seed fishery.
To the extent that a combination of the Common Fisheries Policy and the 2019 Act ever “somehow” provided a (disputed) legal framework for recognition of NI mussel seed allocations far in excess of the NI resource, that legal framework was fundamentally undermined by the UK’s withdrawal from the EU and the CFP.
EU and UN law consider IUU fishing to be of the gravest seriousness. If the Minister turns a blind eye to the exploitation of Ireland’s mussel seed stock by NI operators above their own resource, then he is clearly committing a serious breach of Ireland’s EU and UN obligations in relation to IUU fishing.
The Minister is therefore legally obliged to act to control exploitation by NI operators or else implement the necessary agreements (in accordance with EU and Irish requirements) to facilitate the alienation of Ireland’s mussel seed resource by UK/NI operators.
The new legal provisions likely do not prevent the operation of the “voisinage arrangements” other than for the bottom mussel seed fishery.
In Conclusion
As Minister, you have the opportunity to deal definitively with the “bottom mussel sector issue” which has cost the taxpayer many thousands in legal costs and the fishing community jobs and livelihoods.
It is an inevitable consequence of Brexit that it cannot be ‘business as usual’ and Ireland cannot simply chose to ignore a legal obligation that helps, as opposed to hinders Irish fishermen.
As explained herein, the new legal structure actually compels you to deal with the issue or else face sanction for facilitating IUU fishing under EU and UN law.
This law is designed to protect fishing communities from surrender of the inshore fisheries resource by their government for political or financial gain.
The Minister’s obligation here is very simple. You must abide by the law as it exists, not as you would like it to be.
This is no longer ‘only’ a case of playing ‘fast and loose’ with a definitive and unambiguous Supreme Court ruling. If you ignore your obligations in relation to IUU fishing, you will be placing Ireland in breach of an EU Regulation and UN Law.
The positive aspects of this obligation to comply with EU and UN law are compelling:
1. It will support a recovery of the bottom mussel fishery for Irish fishermen, communities and the taxpayer;
2. It will have no impact on the traditional whitefish, prawn and potting fishers in Northern Ireland;
3. The fact that the Minister is legally compelled to act to restrict “joint management” in the bottom mussel sector means that he cannot be accused of acting ‘unilaterally’. This is a consequence of Brexit and the UK’s new status as a Third Country, which he clearly did not instigate.
The only parties likely to be impacted by this are ‘flag ships’ i.e. those registered in Northern Ireland to take advantage of Ireland’s lax enforcement historically.
Brexit has not served them well but if Northern Ireland now has a fleet that cannot be supported by its resource, then that is a matter that they should pursue with their own Government.
Indeed, it is likely the case that the UK Government has an obligation under its own (and international) fisheries law to size its bottom mussel fleet in accordance with its own resource, not Ireland’s.
For too long Ireland’s bottom mussel sector has been poorly served by our Ministers and officials. You are now legally compelled to comply with EU and UN law that does serve us.
It is important that you are aware that our bottom mussel seed fishery may open for fishing in [August] and that therefore time is now of the essence.
No fishing by NI registered fishing vessels or by any fishing vessel reliant on an authorisation granted by NI authorities should be permitted to occur until the appropriate structures, checks and balances are in place to prevent a net alienation by UK/NI operators.
I reserve my legal rights in relation to this matter but believe there is more than adequate scope for us to meet to investigate and explain the position outlined and develop a sensible way forward.
Yours sincerely,
Gerard Kelly
Tardrum Fisheries Limited
tardrumfish@gmail.com