The High Court annulled a 2008 bye-law that prohibited salmon and sea trout fishing in parts of Castlemaine Harbour, finding that draft net fishermen had not been given advance notice or an opportunity to make submissions before it was made.
In a judgment delivered on 18 June 2008, Ms Justice Laffoy ruled that the fishermen’s right to fair procedures had been violated. The order annulled the bye-law. The court did not decide whether the licences issued to the fishermen were valid, and it expressed no view on the merits of the conservation measure.
The 11 appellants were draft net fishermen living in the Cromane and Killorglin areas of County Kerry. They brought a statutory appeal under section 11 of the Fisheries (Consolidation) Act 1959, seeking to annul a bye-law made by the Minister for Communications, Energy and Natural Resources on 13 May 2008. It came into operation the following day and prohibited fishing for salmon or sea trout with draft nets or rod and line in specified waters, including areas covered by the appellants’ licences.
The South Western Regional Fisheries Board had issued the appellants’ draft net licences on 8 May. The board had also allocated quota for the season. The Minister made the bye-law after receiving scientific advice that fishing in Castlemaine Harbour could threaten salmon stocks in rivers flowing into the harbour, including rivers considered below conservation limits. The fishermen’s appeal focused on procedure: they argued that the Minister should have told them and the board of the intended ban and allowed them to make representations.
The Minister’s position was that the appeal was an assessment of the bye-law’s merits, and that the fishermen’s fair-procedures complaint belonged in a judicial review. The judge rejected that interpretation. She held that section 11 allowed the High Court to hear complaints of any nature about covered instruments and to confirm or annul them.
The court left open whether the board had power to issue valid licences. It held that, even if the licences were invalid, the board had represented them to the fishermen as valid. In the circumstances, the fishermen should have received advance notice and an opportunity to make representations before the ban was made. The availability of an appeal after the event did not remove that obligation in this case.
The judgment did not determine whether the ban was justified by conservation evidence. The judge noted that a draft scientific report exhibited in the proceedings was dated after the bye-law had been made and therefore could not have informed the Minister’s decision. The order annulled the bye-law; the judgment did not direct what further action, if any, the Minister should take.