The unconstitutional management of Ireland’s fishing industry
Have Irish citizens been conned with regards to ‘natural resources’? The IFSA, and other industry organisations, have always believed and maintained that Ireland’s natural resources (including fish) belong only to the State and its citizens but, it would appear, Irish fisheries ministers and civil servants have tried to disown these resources so as to avoid going through the proper legal channels when ‘managing’ the fishing industry. Following in-depth research by the Irish Fishing and Seafood Alliance, it has come to light that if the civil servants wanted to manage the fishing industry and to rule it without interference from the public, then the only legal way to do this was to pretend to the people that ‘natural resources’ did not belong to the State, because if that were not the case then, under Irish law, any decisions or rulings by management could only be done in public and with public consultation - something clearly not in the master plan of those in authority. THE FACTS At a High Court hearing in 2014 and a subsequent Supreme Court hearing in 2016, Legal Council, acting on behalf of the Attorney General and Department of Marine & Natural Resources, declared that in relation to a constitutional issue, “Article 10.1 encapsulates a broad description of what are Ireland’s natural resources as it says they belong to the State”. “But Article 10.3 is the critical article upon which the Plaintiffs (named) rely and that refers to management or alienation of the property of the State - we say quite simply that the State does not have property,” said the AG and Dept. of Marine’s Legal Council who further added: “We make two points under Article 10 and they can be summarised as follows: * Firstly, we say that the State does not have property in fish, fishing in its territorial seas, nor in shellfish attached to the sea bed; * Secondly, we say that Article 10 is confined to cases where the material ‘belonging’ to the State, is within the jurisdiction of the State. We say here it is not. “We say clearly that since accession to the EEC (now the European Union), fisheries and, in particular, fish conservation is in the exclusive competence of the EU.” ****** Unbelievably, this meant that the State had attempted to adopt the position that fish and shellfish were not natural resources that were owned by the State. In fact they even initially argued that fish and shellfish were not even a ‘natural resource’ in the first place. But the main reason for taking this position was that it meant that they (the State) didn't need legislation to manage fisheries or, alternatively, they did need legislation to manage and/or alienate the resources that were covered by article 10.3 of the Irish constitution. And in taking this course of action, it would appear that the DAFM and the AG willingly decided to disown the natural resources in order to unlawfully dispose of them. However, and most importantly, the outcome of the Supreme Court in 2016 with seven Supreme Court Judges sitting, dismissed the previous High Court judgement and directed as follows: “The Irish State Constitution requires that the regulation of natural resources stated to be the property of the State must be the subject of a decision by the representatives of the People who are accountable to them. “Legislation is normally required to take place in public, (Article 15. 8) which carries with it the possibility of public knowledge and debate.
“In effect, therefore the Constitution mandates that if State property, in particular natural resources, is to be sold, leased, managed or regulated, then that decision should be made in public by representatives who are accountable to the People who can accordingly make their views known. “The Court should take a strict approach to the requirements of Article 10.3 which ensures compliance both with the text and the underlying rationale of the Article,” the Supreme Court ruling concluded. ****** THE TRUTH This saga poses two major questions:
1. Given that the meaning of the term ‘managing’ can also include the “alienation and/or dispossessing itself of”, did the civil servants at the Department of Marine, for an unknown number of years prior to 2016, make decisions and set regulations based (incorrectly) on the premise that Ireland did not legally own these resources? 2. And given that the Supreme Court very clearly stated in its 2016 ruling that the Constitution demands that “if State property, in particular natural resources, is to be sold, leased, managed or regulated, then that decision should be made in public by representatives who are accountable to the People”, then when and where has this public representation ever been sought in the past five years when decisions were being made? And surely the exposure of these facts at this time means that, at the very least, the industry is entitled to see regulations carried out under the terms clearly stated by the Supreme Court i.e. “should be made in public”. Indeed, another question also needs to be asked in that does this mean that all decisions and other actions taken by the Department in regards to all natural resources (particularly in fisheries and including quota management, licensing for certain fisheries, the mandate to which the SFPA work to, etc., etc.) prior to the Supreme Court ruling in 2016 were made with a false or jaundiced interpretation of the Irish constitution and were in fact unconstitutional at that time? If it’s not a fact that all of the actions taken during this period were unconstitutional then the situation surely at least merits a review of the Department’s decisions to examine if they were compliant with the Constitution and for the findings of this review to be made public. And what effect does this Supreme Court declaration have on our past international fisheries agreements? Make no mistake, the most important statement in this whole article is that of the seven-judge Supreme Court ruling that “The Irish State Constitution requires that the regulation of natural resources stated to be the property of the State MUST BE the subject of a decision by the representatives of the People who are accountable to them”. Look at those words - “must be subject of a decision by the representatives of the People who are accountable to them” - civil servants, those who have been ruling this industry for so many years, are NOT representatives of the People and are NOT accountable to them. Therefore should "We the people" not now be shown the constitutional legal advice that our officials felt empowered to base their actions on or, at the very least, let us see the question they posed to our Attorney General. This entire matter is yet one more reason that Ireland’s fishing and seafood industry, and the thousands of people in Irish coastal communities, are entitled to the serious investigation of the Department of Marine that has been demanded for so long.