Inshore uncertainty following return of 18m fishing vessels
The Department of Agriculture, Food and the Marine has confirmed to Ocean Focus it is considering, ‘on an urgent basis’, implications of a Court order that quashes a ban on fishing vessels over 18m from trawling within Ireland’s six nautical mile zone and baselines.
In December 2018, following a public consultation in which over 900 submissions were received, marine minister Michael Creed announced that vessels over 18m would be excluded from trawling inside the inshore zone from January 1, 2020.
A transition period of three years for vessels over 18m targeting sprat within the inshore zone would be allowed, to enable ‘adjustment’ for affected vessels.
Two affected fishermen, Tom Kennedy and Neil Minihane, initiated a Judicial Review challenging the validity of Policy Directive 1 of 2019.
In his affidavit, Mr Kennedy said he sees ‘no evidence in the waters in which he fishes, of small-scale fishermen targeting sprat, and that the efforts of Fiona KIII inside the 6nm zone ‘does not interfere with the efforts of small fishermen.
‘Any assumption that inshore fishermen will take up the catch in waters from which the Fiona KIII is to be excluded is flawed. Sprat requires to be caught in large amounts. Inshore fishermen do not have the capacity, gear or size of vessel to achieve this.’
By taking a broad-brush approach, he said Minister Creed had ‘failed to have proper regard to the particular circumstances which prevailed in specific regions’.
Mr Minihane contended that his business was based ‘on the assumption and understanding’ that a vessel less than 90ft (27m) would be permitted to trawl within the 6nm area:
‘While it may be necessary for [Minister Creed] to make changes to licensing conditions from time to time to address specific ecosystem concerns, the state objectives as outlined in the Policy Directive do not justify a blanket exclusion’.
Successful challenge
On July 31, an ‘unapproved’ judgment was issued and while the applicants did not succeed on four of five grounds, the challenge was made against the entire Policy Directive and was successful.
Findings
- The Policy Directive 1 of 2019 that gave legal effect to the policy, was not ultra vires
- The Directive did not impinge the applicants’ constitutional rights
- Given the impact on the applicants, there was a particular duty on the Minister to provide a fuller explanation and engage in further talks with the applicants. On this ground, the applicants succeeded
- the Policy Directive was not disproportionate to what was to be achieved
- The Policy Directive did not breach EU law
On October 6, 2020, the Judge held in summary that the Court’s final order ‘should be, inter alia, a declaration that Policy Directive 1 of 2019 was made in breach of fair procedures and is void and/or of no legal effect’.
Minister McConalogue ‘is now consulting with his department officials and legal advisors’, DAFM confirmed.
Inshore reaction
Two representatives bodies for inshore fishermen said their members did not have ‘deep pockets’ to engage legal opinion.
‘We are not in a position to comment on the specifics of the judgment or ruling.
When the decision to introduce the Policy Directive was made in 2018, the National Inshore Fishermen’s Association and the National Inshore Fishermen’s Organisation described the decision as ‘undoubtedly the most significant policy decision made in the history of the state in terms of supporting Ireland’s inshore fishing sector.
‘From a social economic, environmental and moral perspective, this was the right decision’.
NIFA/NIFO believe the potential medium and long-term negative impacts of the ruling are likely to be ‘far more severe than a No Deal Brexit’ particularly in terms of equal access to fisheries resources.
Around 80% of Ireland’s fishing vessel fleet operates inside the 6nm zone. This inshore sector is responsible for over 50% of direct employment in the industry and does not depend on access to UK waters.
‘Despite that dependency, the majority of the resources inside that zone are harvested by a very small number of larger trawlers.
Small inshore vessels ‘cannot compete with larger trawlers and fear for their future economic viability as a result’, warns NIFA/NIFO.
Over time, the inshore sector has lost ‘much opportunity and entitlement to access fishery resources previously available to it’.
What was once a very diverse sector now depends on a few non-quota fisheries. That dependency has ‘greatly reduced the resilience of the sector to face other challenges such as the economic crisis caused by the Covid 19 pandemic’.
The NIFA/NIFO contend that the Policy Directive created ‘huge opportunity’ for the inshore sector.
‘If that is to be denied, then the sector in its current form faces a very uncertain future and possibly a complete collapse.
‘The Minister needs to reinstate the directive and create future opportunity without delay as a priority if the sector is to realise its true potential and have the sustainable and vibrant future it deserves,’ says NIFA/NIFO.
