The High Court has rejected an application by Danny Bradley and Robert Ivers to have a law allowing an aquaculture licence to continue while a renewal application is pending declared unconstitutional.
The judgment, delivered by Mr Justice Eamon de Valera on 29 June 2010, concerned section 19A(4) of the Fisheries (Amendment) Act 1997, inserted by section 101 of the Maritime Jurisdiction Act 2006. The provision allows a licensee who has applied for renewal to continue authorised aquaculture operations until a decision is made.
The dispute arose after Lough Swilly Shellfish Growers Co-operative Society Limited and Atlanfish Limited succeeded in an earlier trespass action against Bradley and Ivers. The plaintiffs obtained an injunction and damages over an area of foreshore where they held an exclusive shellfish cultivation licence. That licence expired in 2004 but continued under section 19A(4).
Bradley and Ivers argued that Lough Swilly was a public fishery and that extending the licence interfered with constitutional rights, including equality, property, fairness and the right to earn a living. They also said the Minister had not decided the renewal application and that judicial review could not address their objection to private licensing over customary public fishing rights.
The Attorney General argued that the section provides only a temporary extension, not a new licence, and that the defendants had not challenged the original licence or sought judicial review of the Minister’s handling of renewal. The State also submitted there was no evidence that the defendants had fished the licensed grounds between 1994 and 2004 or that the extension had affected their income or assets.
The judge accepted that any complaint about the handling of the renewal application could have been brought by judicial review. He also found that the Supreme Court’s decision in Moore v Attorney General did not assist the defendants: the outcome there turned on whether the foreshore was plantation land, and the judgment’s reasoning allowed that legislation could exclude public access to tidal waters.
The court did not accept that the defendants’ constitutional rights, including the right to earn a living, had been breached. It concluded they lacked standing to challenge the provision on that basis and rejected the application, refusing the reliefs sought. The judgment addressed the constitutional challenge to section 19A(4); it did not declare the provision invalid.