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Another Marine Department Proposal Defeated In Court

The Department of the Marine’s decision to exclude vessels over 18 metres from fishing inside the six-mile limit has been rejected in a High Court action. It was announced in December 2018 by then Marine Minister Michael Creed and brought into effect in January of this year. Inshore, smaller boat fishermen, had described it as a boost for their sector, larger boat fishermen criticised it and said it would force them farther from shore and make fishing more dangerous.

Fishermen Tom Kennedy from Dingle and Neily Minihane from Castletownbere, both with 30 years’ experience, challenged the legislation, Policy Directive 1 of 2009, which had been the subject of a public consultation for which more than 900 submissions were received. Contending that the Minister had exceeded his powers, they were given permission in May of last year to apply for a Judicial Review on the basis that it had nothing to do with “protecting, conserving, or allowing the sustainable exploitation of living marine and aquatic species or the rational management of fisheries, but was concerned with the redistribution of resources from larger to smaller vessels.

High Court Judge Michael McGrath ruled that the Directive impacted on the interests of a defined and narrow class and number of fishermen and quashed it. His decision is dated July 31, but it was not published and did not become publicly known until this week. The MARINE TIMES has seen a copy of the decision which appears to centre around the basis of the consultation process and that it was not fair.

Skippers Minihane and Kennedy had contended that the Directive was adopted in a manner not consistent with their constitutional rights to a fair hearing and that breached their Constitutional and human rights.Those affected by the Directive had asked the Minister and Department to undertake a comprehensive examination and review of access to waters inside the 6 nautical mile zone and to engage further with affected stakeholders prior to making any decision on implementing any policy change. The judicial finding is that this was not done despite the fact that the Department had been made aware of vessels which would be “significantly compromised” by the imposition of the exclusion zone.

Mr. Justice McGrath said he was satisfied, however, that the “Directive is aimed at providing for measures to control and regulate the capacity, structure, equipment, use, and operation of sea fishing boats, not only for the rational management of fisheries but also for the protection, conservation, or permitting the sustainable exploitation of living marine aquatic species”

The Department responded to the decision that it was considering the implications of consultation with legal advisors “on an urgent basis”.

Patrick Murphy, CEO of the Irish South and West Fish Producers Organisation, said the consultation was fundamentally flawed and they had told the Minister that at the time: ““We pointed out that the scientific information behind the Department’s reasons for the exclusion zone was deficient. We asked that individual studies be carried out on the activities of all fishing vessels which had traditionally fished in the waters inside the six-mile limit and that were proposed to be excluded from fishing in that zone. The reality is that only a small number of fishing vessels over 18m actually fish inside of the six-mile limit. We welcome this judgement.”

He said that ISWFPO would be happy to engage with the Department should officials want to “properly introduce measures that will not discriminate against fishermen on the basis of their size”.

The Court hearing of the case lasted three days. It is understood that the fishermen were awarded the costs of two days of the hearing.