SEA-FISHING BOAT LICENCE APPEAL

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 16 OF THE FISHERIES (AMENDMENT) ACT 2003

IUDA NAOFA LIMITED, MARTIN CONNEELY and MAIRTIN EANNA O CONGHAILE

Appellants-and-

THE LICENSING AUTHORITY IN RELATION TO SEA-FISHING BOATS

Respondent

Determination of Sea Fishing Boat Licensing Appeal under section 16 of the Fisheries Amendment Act 2003.

Appellant: Mairtin Conneely and Mairtin Eanna O’Conghaile of Iuda Naofa Ltd. Kilmurvey, Inismor, Aran Islands, Co. Galway.

Fishing Vessel: MFV Carmarose

Issues: Whether conditions on licence offer dated 20 January 2015 are confirmedWhether a case can be stated to the High Court

Oral Hearing was held on 10 August 2015 in the Harbour Offices, Galway City. Those present were:

John Kiely B.L and Michael Clancy B.L. instructed by Michelle Scarry, Solicitor, Deirdre Ni Chonghaile, Mairtin Eanna O’Conghaile, Mairtin Conneely (Appellants), Sean McNelin (Marine Surveyor) Deirdre Kelleher (Deputy Registrar of Licensing.Authority), Kevin Moriarty (Registrar of Licensing Authority) and Conor O’Mahony (Legal Counsel for Licensing Authority)

Decision of Appeals Officer: The Appeal is refused, the conditions on the licence are confirmed and the application to state a case is refused.

Introduction

1. The appeal, dated 16th February 2015 relates to the offer of a Sea Fishing Boat

Licence for the Polyvalent Fleet Segment in respect of the MFV “Carmarose” from

the Licensing Authority to the Appellant dated 20 January 2015. The Appellant

appealed the imposition of conditions (iv) (v) and vi) of the licence offer. For the

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sake of clarity these conditions are set out below:

Condition (iv)

“The provision of documentary evidence that you have provided the required

replacement capacity (in terms of gross tonnage and engine power), removed from

the Fishing Boat Register. Current licensing policy requires that replacement

capacity be provided on a 1:1 basis from the relevant fleet sub-segment in

accordance with Ministerial Policy Directive 1/2006, as amended by Policy

Directive 1/2011…………Where a vessel is greater than or equal to 20 metres in

Length Overall (LOA) it will be precluded from fishing for herring unless the total

gross tonnage provided satisfies the requirements for inclusion in the Celtic Sea

Herring Polyvalent or the North West Herring Polyvalent ring-fenced portions as set

out in Ministerial Policy Directive 1 of 2012……………Where a vessel is greater

than or equal to 18 metres in Length Overall (LOA) it will be precluded from fishing

for mackerel unless the total replacement capacity provided satisfies the

requirements for inclusion in Tier 1 or Tier 2 as set out in Ministerial Policy

Directive 1 of 2011…………I note that you intend to use capacity from the MFV

“Iuda Naofa” SO679 and the MFV “Paraic Seosamh” WD194 as replacement

capacity and that applications to de-register these vessels have been received.

Please note the following

The gross tonnage of the MFV “Iuda Noafa” SO679 is included in the North

West and Celtic Sea Herring ring-fenced portions and the capacity of the

MFV “Iuda Naofa” SO679 is included in Tier 1

The gross tonnage of the MFV “Paraic Seosamh WD194 is not included in

the North West or Celtic Sea Herring ring-fenced portions sand the capacity

of the MFV “Paraic Seosamh” WD194 is not included in Tier 1 or Tier 2”

Condition (v)

“The vessel will be precluded from fishing for herring unless it qualifies for inclusion

in either the Celtic Sea Herring Polyvalent or the North West Herring Polyvalent

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ring-fenced portions……”

Condition (vi)

“This vessel will be precluded from fishing for mackerel unless it has been placed

in Tier 1 or Tier 2 (see replacement capacity condition)”

The Appellants Grounds of Appeal

2. The Appellants submitted a notice of appeal by way of letter dated 16 h February

2015 and legal submissions which were received by this Appeals Officer in July

2015. Their appeal points summarized, are as follows:

A. The Appellants contend that they obtained Tier 1 status in respect of Mackerel

fishing and they obtained ring-fenced polyvalent status in respect of Herring

fishing in both the Celtic Sea and the North West herring fishing areas for the

vessel the MFV “Iuda Naofa.”

B. The Appellants state that due to the deterioration of the MFV “Iuda Naofa”,

which was constructed in 1978 that the Appellants had, from 2013 onwards,

attempted to source a newer and safer vessel, onto which they could transfer

the capacity of the MFV “Iuda Naofa”, which would thereafter be de-registered.

C. In or around late 2014/2015, they found a new vessel, the MFV “Carmarose”,

which is the subject of this appeal. They bought this vessel and subsequently

applied for a fishing licence. The MFV “Iuda Naofa” sank off the Butt of Lewis,

Scotland 20th January 2015.

D. The Appellants state that the MFV “Carmarose” was registered as a polyvalent

trawler having a LOA of 27 metres with a capacity of 256GT and 670.6kW and,

unlike the MFV “Iuda Naofa”, is fully enclosed.

E. However the capacity of the MFV “Iuda Naofa” was 198GT and 492.43 kW and

was 24.99 m in length. So the proposed replacement vessel, MFV “Carmarose”

was greater in length, capacity and engine power than the MFV “Iuda Naofa”,

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by approximately 20%.

F. The Appellants state that in order to secure a licence for this vessel they are

required to procure extra tonnage and kilowatts, to make up the difference

between the capacity of the MFV “Carmarose” and the MFV” Iuda Naofa” or in

the alternative reduce the Gross Tonnage of the vessel by approximately 20%

which would necessitate significant modifications to the vessel. The Appellants

contend that the modifications that would be necessary to implement would be

not feasible from a cost point of view and would render the vessel to be less sea

worthy.

G. The Appellants proposed to procure the balance of the capacity required from

another vessel, the MFV “Paraic Seosamh”, registration WD194, which is

registered however as a polyvalent (non-pelagic) vessel. This vessel has a LOA

of 19.23 metres with a capacity of 66 GT and 236.58 kW. The Appellants

contended that that the combined capacity of the two vessels was sufficient to

match, replace and slightly exceed the capacity of the appellants new vessel

thereby complying with the minimum 1:1 ratio or 100% replacement capacity

requirements as prescribed in the policy directives. However the difference was

that capacity that attached to the MFV “Paraic Seosamh” was for non-pelagic

fish only and did not hold a track record in Tier 1 or Tier 2 status

H. It was on this basis that the Respondents denied the capacity of the MFV

“Paraic Seosamh” could be used to increase the necessary differential in

capacity that was missing from the MFV “Carmarose”. Without having pelagic

capacity to transfer to the MFV “Carmarose”, the vessel could not be used to

fish in the pelagic segment.

I. The Appellants states that the preclusion from procuring capacity from a non-

pelagic de-registered vessel effects an arbitrary discrimination on the

Appellants in the unique circumstances of their case and it is an

unconstitutional attack on the property rights of the Appellants, and it offends

Irish and EU legislation.

J. The Appellants submit that the policy directives which the Minister for

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Agriculture, Food and the Marine introduced which has resulted in the licence

offer, made to the Appellant namely, Policy Directive 1/2006, Policy Directive

1/2011 and Policy Directive 1/2012 should be interpreted in a purposive manner

the effect of which would allow the Appellants to use the purchased capacity of

the MFV “Paraic Seosamh” in the pelagic segment. The Appellants seek to rely

on Faherty v The Registrar General of Fishing Boats 1 as an authority for this

argument. They also point to different approach by the Minister for Agriculture,

Food and the Marine in respect of another vessel, the MFV “Star of the Sea”.

The Licensing Authority Response

A. S 6 (3) of the Fisheries (Amendment) Act 2003 (the Act) states:

“(3) An Appeals Officer shall be independent in the exercise of his or her functions

under this Act subject to –

(a) The law for the time being in force in relation to sea-fishing boat licensing,

including, in particular, the legal obligations of the State arising under any law of

an institution of the European Communities or other international agreement

which is binding on the State, and

(b) Such policy directives in relation to sea-fishing boat licensing as the Minister

may give in writing from time to time.

B. It is submitted that the Appeals Officer is subject to policy directives in relation to

sea-fishing boat licensing as the Minister may give, including policy directives

1/2006, 1/2011 and 1/2012 and cannot look behind those directives but rather

must apply these directives in accordance with the plain meaning of the words

used by the Minister in those directives.

C. S 3 of the Act sets out the powers of the Licensing Authority. S 3 (2) of the Act

states:

“The licensing authority shall be independent in the exercise of his or her

functions under this Part subject to-

(a) The law for the time being in force in relation to sea-fishing boat licensing,

including, in particular, the legal obligations of the State arising under any law 1 Michael Faherty v The Registrar General of Fishing Boats (unreported, Charleton J. 29th July 2010).

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of an institution of the European Communities or other international

agreement which is binding on the State, and

(b) Such policy directives in relation to sea-fishing boat licensing as the Minister

may give in writing from time to time”

D. S 2 of the Act defines licence as: “licence in Parts 2 and 3 of this Act, means a

sea-fishing boat licence granted under section 222B(3) of the Principal Act”

E. The Respondent contends that the only decision the licensing authority may

make is in relation to sea-fishing boat licences which are subject to the law for the

time being in force and subject to policy directives in relation to sea-fishing boat

licensing as the Minister may give including Policy Directives 1/2006, 1/2011 and

1/2012. The Licensing Authority is independent of the Minister and therefore, it is

submitted, cannot attempt to look behind those policy directives issued by the

Minister but rather must apply these directives in accordance with the plain

meaning of the words used by the Minister in those directives as the intention of

the Minister regarding those directives is reflected in the clear and concise

wording of those directives.

F. The Respondent contends that Ministerial Policy Directives 2/2003, as amended

by Ministerial Policy Directives 1/2006 and 1/2011, provides fleet

segmentation/sub-segmentation rules. As directed the Irish fishing fleet

comprises five ring-fenced Segments (i.e. Aquaculture, Specific, Polyvalent,

Beam Trawl and Refrigerated Sea Water (RSW) Pelagic). The Polyvalent

Segment and Specific Segment are broken into four and two sub-segments

respectively. Fleet segmentation rules prohibit the transfer of capacity between

Segments/Sub-segments.

G. The Polyvalent Segment of the fleet is divided into four Sub-segments, namely

the Polyvalent [Potting] Sub-segment, the Polyvalent [Scallop] Sub-segment, the

Polyvalent [<18 metres length overall] Sub-segment and the Polyvalent [≥18

metres length overall] Sub-segment.

H. They contend that as the MFV “Iuda Naofa” (198GT & 492.43kW) and the MFV

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“Paraic Seosamh” (66GT & 236.58kW) are in the Polyvalent [≥18 metres length

overall] Sub-segment and the MFV “Carmarose” (256GT & 670.60kW) is also

≥18 metres length overall, there is no impediment under fleet segmentation rules

to the capacity of the first two named vessels being combined and assigned to

the third named vessel for the purpose of licensing it in the Polyvalent [≥18

metres length overall] Sub-segment. As such the Respondent contends that fleet

segmentation/sub-segmentation rules are not at issue under this appeal.

I. The Respondent submits that fishing capacity, in the form of gross tonnage and

kW engine power, is not an asset owned by the Department or by the Licensing

Authority. It is a privately owned tradable asset that, with certain exceptions, may

be sold, traded or realised as a financial asset on the open market. Capacity is

provided by licence applicants at a ratio of 1:1 as part of the licensing process in

accordance with fleet segmentation rules. The Respondent submits that there is

no discretion available to the Licensing Authority or the Appeals Officer on the

issue of replacement capacity. They contend that to find otherwise would to

create a back door whereby on register capacity could be increased, which was

not the intention of the legislature.

J. Fishing Capacity assigned to a licensed vessel in accordance with fleet

segmentation rules determines what fishing activity can be undertaken, including

what species of fish may be targeted within a Segment/Sub-segment.

K. Current mackerel and herring policies as set out respectively in Ministerial Policy

Directives 1/2011 (as amended) and 1/2012 (as amended) specify the 100%

capacity qualification requirements in order for Polyvalent vessels to fish for these

two pelagic species pursuant to the issue of a relevant authorisation by the

Department.

L. Mackerel policy specifies that the Department shall determine and notify the

independent Licensing Authority as to which vessels have “on register” capacity

and what amount of “off-register capacity” in the form of gross tonnage and

kilowatts have the required mackerel fishing track record to be licensed in either

Tier 1 or Tier 2.

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M. Similarly, herring policy specifies that the Department shall determine and notify

the independent Licensing Authority of which vessels have “on register” gross

tonnage only and what amount of “off-register” gross tonnes have the required

herring fishing track record to be licensed in the Celtic Sea Herring and/or North

West Herring Polyvalent portions.

N. The individual policy directives specify that the 100% capacity requirements as

outlined (i.e. 100% gross tonnes and kilowatts with the required mackerel track

record and 100% gross tonnes with the required herring track record) must be

maintained in order for a vessel to fish for the relevant pelagic species pursuant

to the issue of a relevant authorisation by the Department.

O. These individual policies also require a licence mackerel preclusion for ≥18 metre

length overall vessels and a licence herring preclusion for ≥20 metre vessels

which do not meet the required 100% capacity requirements. The Appellant

contended on this point that the track record should attach to the vessel owner,

but the Respondent responded that the policy directive is clear, it is the capacity

and not the owner that the track record attaches to.

P. The Appellant seeks to rely on the judgement of Charleton J, in Faherty where it

was held that a policy directive is subject to the Interpretation Act 2005. The

Court then went on to discuss the aspects of that individual case before it: “If the

answer to question 2 is yes, can the appeals officer interpret the said paragraphs

of the Policy Directive other than in a literal sense and proceed to the plain

intention of the maker of the instrument in determining whether the Sea Spray

junior is subject to the restrictions of the said policy directive? The answer to this

question is that in the unique circumstances of the history of this vessel that it is

not necessary to do violence to the language of the policy directives in order to

allow the appeal. The unique circumstances in Faherty revolved around whether

the vessel was subject of a modification or not. The Court stated: “Hence, the

appeals officer should look to the construction which reflects the intention of the

wording as ascertained from the instrument as a whole”. The matter before the

court was whether the addition and then subsequent removal of wet storage

capacity tanks which resulted in the exclusion of the vessel from being licensed

from a particular segment constituted a modification of the vessel where

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modification of a vessel in this way precluded it from that particular segment,

which Charleton J found that it did not. Charleton J found that no modification had

occurred and therefore the policy directive did not apply. His view that a

purposive approach should be taken by an Appeals Officer was confined to cases

of ambiguity in the wording of the policy directive based and he found in that case

that there was an ambiguity in the policy directive namely whether modification

meant a past modification to the vessel or an existing modification to the vessel.

Q. The Respondent submitted that unlike in Faherty the rules of transfer of capacity

in the policy directives 1/2001 and 1/2012 were clear and unambiguous and that

nothing in these policy directives permitted an interpretation, other than the

natural an ordinary meaning, as there was no ambiguity in their wording.

R. The Respondent contended that the appeal concerns the proposal to combine

MFV “Paraic Seosamh” capacity in the Polyvalent [≥18 metre length overall] Sub-

segment which does not have pelagic (i.e. mackerel and/or herring) track record

with MFV “Iuda Naofa” capacity from the same Segment/Sub-segment which has

pelagic (i.e. mackerel and/or herring) track record, which could not occur because

of the requirement that there must be 100% capacity with track record of the

individual mackerel (Tier 1) and herring policies (Celtic Sea and/or North West

portions), which was not the case here.

S. Policy Directive 1/2011 prohibits the licensing of a Polyvalent vessel in the Tier 1

for mackerel ring fenced portion of the polyvalent segment where the total

capacity of that vessel in the form of gross tonnes and kilowatts does not carry

Tier 1 eligibility with quota entitlement.

T. The Appellant submits that whilst there is a clear prohibition on inter-tier transfers

of capacity that the Directive is “silent as to an express prohibition on transfer

between segments, save for a cursory referral to Section D of the 2006

Directive”. The Respondent submitted that there is more than a cursory referral to

Section D of the 2006 Directive.

U. It is clearly and explicitly stated at paragraph 2 (D) of Policy Directive 1/2011:

“Capacity from both the Tier 1 and Tier 2 ring-fenced portions of the polyvalent

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segment may be assigned to a single vessel, subject to compliance with the

existing policy on segmentation specified in section D of Policy Directive 1 of

2006”.

V. The Respondent submits that the Licensing Authority can only apply the

assignment of capacity under fleet segmentation/sub-segmentation rules in

accordance with the existing provisions of section D of Policy Directive 1 of 2006

and the individual 100% requirements of the mackerel and herring policies must

be met within those rules in order to target these pelagic species as set out in

Policy Directives 1/2011 (as amended) and 1/2012 (as amended).

W. To interpret the wording of Policy Directive 1/2011 as submitted by the Appellant

would constitute a violence to the plain wording of the directive.

X. It is submitted on behalf of the Appellant that the wording in the Policy Directive

1/2012 should be interpreted in such a manner that once the number of vessels

eligible for a share of herring quota in either the Celtic Sea or North West

fisheries does not increase as a result of any transfers of gross tonnage, then

such transfers should be allowed.

Y. Whilst it is stated among the reasons for Policy Directive 1/2012 is “...However,

eligibility for herring quota will attach to the gross tonnage of the ring-fenced

vessels and certain new rules are specified in this Policy Directive to ensure any

transfers of such gross tonnage do not lead to an increase in the number of

vessels eligible for a share of herring quota in either the Celtic Sea or the North

West fisheries..”

Z. The Respondent submits that under Policy Directive 1/2012, determinations of

qualifying vessels (i.e. on-register gross tonnes) and off-register gross tonnes are

made by the Department based on track record/fishing history and that the

Licensing Authority is charged with ensuring that the 100% gross tonnage

requirement of Policy Directive 1/2012 continues to be met.

AA. It is submitted by the Licensing Authority that to interpret the wording of Policy

Directive 1/2012 as submitted by the Appellant would constitute a violence to the

plain wording of the directive.

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BB. The Respondent submits that were this appeal to succeed this would be

tantamount to a change to current mackerel and herring policy rather than a

decision of the Licensing Authority based on Ministerial Policy Directives currently

in place. And to do so would be ultra vires of the Appeals Officer’s jurisdiction

CC. The submission by the Appellant that the Minister’s policies arbitrarily

discriminate against them, are ultra vires his powers and are unconstitutional are

not matter that an Appeals Officer can determine. The Respondent submits that

the Appeals Officer in the exercise of her functions under the Act is limited to

making a determination of an appeal to a decision made by the Licensing

Authority in respect of a Sea Fishing Boat Licence and does not have the vires to

make a finding on this point.

DD. The Respondent submits that whilst the Appellant states that the sinking of

the MFV “Iuda Naofa” created a necessity to purchase a larger steel replacement

vessel, it should be noted that representations were made on behalf of the

Appellant in 2012 and 2013 in this regard, before the sinking and indeed before

the MFV “Carmarose” was purchased. The Respondent contends that the

Appellants were continuously made aware of the 100% requirements as set out

in the individual mackerel and herring Policy Directives.

EE. It is submitted that the decision to purchase the vessel MFV “Carmarose” and

to purchase the replacement capacity of the MFV “Paraic Seosamh” was entirely

a business decision made by the Appellant in the full knowledge of the

consequences of same with regard to the future licensing of the MFV

“Carmarose”.

Oral Hearing in Galway 10 August 2015

The Appellant at the Appeal Hearing

Mr. Kiely, on behalf of the Appellants, presented his case which was as follows:

The Appellant was now placed in a uniquely invidious position due to the particular

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facts of the case and the strict application of the policy directives 1/2011 and 2/2012

to their application for a licence.

1. The MFV “Iuda Naofa” was built in 1978 and had been a working fishing

vessel since then

2. By 2013/2015 the MFV “Iuda Naofa” was old and deteriorating and despite

passing marine surveys each year was becoming steadily unsafe.

3. Due to the restrictive nature of policy directives 1/2011 and 1/2012 the first

step that was necessary was to locate a newer vessel that was comparable in

size and capacity to the MFV “Iuda Naofa”. Despite numerous attempts to

locate such a vessel internationally the best match that the Appellants could

find was the MFV “Carmarose”. However the capacity of this vessel was

greater than that of its predecessor. The problem lay in finding the appropriate

replacement capacity as the policy directives demanded a 1:1 replacement

capacity ratio for pelagic fish and as such capacity has a high value attaching

to it, none is available to purchase. Mr, Kiely stated that only 15 vessels in the

State had Tier 1 status. As such the capacity was a high premium asset and

there is no off-register capacity, because it is so hard to obtain in the first

place.

4. However, without obtaining extra pelagic capacity to match the extra capacity

on the MFV “Carmarose”, the new vessel, unless modified, to reduce it’s

capacity to that of the MFV “Iuda Naofa”, was precluded from using any of its

capacity to fish for pelagic fish.

5. 75% of their income was derived from this source so the preclusion presented

immediate and serious problems for the Appellants

6. Consequently the only options that were available to the Appellants, so as not

to be precluded from fishing for herring or mackerel was to:

(i) Modify the MFV “Carmarose” to reduce its capacity to match that which had

attached to the MFV “Iuda Naofa” (a cost that was stated in evidence to be

€900,000) and such modifications would make the vessel less sea worthy or

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(ii) Instead have bought a smaller vessel and thereby have lost some capacity,

although whether this would be even permitted is unclear as the policy

directives state 100 % replacement capacity, not more or less.

(iii) Have purchased a sister vessel, constructed at the same time as the MFV

“Iuda Naofa”, which had precisely the same capacity as the MFV “Iuda Naofa”

which was not possible as no sister vessel was made at the same time. And

even if it had been the sister vessel would still be 37 years old.

(iv)Purchase pelagic capacity from someone else. However due to the high

premium attaching to Tier 1 capacity, none is available

(v) Therefore the Appellants say that due to their unique circumstances that there

is in fact no way that they can meet the conditions in the licence; other than to

modify the vessel which would necessitate opening up the closed-in design of

the vessel, which would deny the vessel one of its most important safety

features.

7. The Appellant argued that their position was unique in that they would have

continued fishing on the MFV “Iuda Naofa” if it was not deteriorating in the

way that it was but that now that it is sunk they have no effective means of

continuing to fish for pelagic fish unless a less strict interpretation of the policy

directive is permitted.

8. The Appellants submit that this loss of capacity will result in a loss of jobs and

loss of economic benefit to the local community in the Arran Islands, a local

economy that the Appellants have been able to contribute to for the last forty

years, which is a region which already relies heavily on State subvention.

9. The Appellants submit that one of the key objective of the Fisheries Acts is to

achieve the viable livelihood for fishermen operating in the area, however this

appeal if it does not succeed will not take account of that objective.

10.The Appellants also cited a precedent case in which the Minister did not follow

the strict wording of the policy directives. This pertained to the vessel MFV

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“Star of the Sea”. The Appellant submits that this was a vessel, the owners of

which instituted judicial review proceedings against the Minister and as a

result of which the Minister permitted white fish (non-pelagic) capacity to be

used to demonstrate a track record for a licence for pelagic fish. The

Appellants submits that this is precisely what they are seeking to do.

The Respondent at the Appeal Hearing

1. Conor O’Mahony, legal Counsel on behalf of the Respondent re-stated the

points raised in the written submissions.

2. He further contended that as there was no ambiguity in the wording of the

policy directive 1/2011 and 1/2012 which had to be interpreted according to

their natural and ordinary meaning. It would be inappropriate to apply a

purposive approach when the meaning of the policy directives were clear and

plain. It was not that the interpretation of the policy directives by the

Respondent that was strict, it was the wording of the policy directives that was

strict, clear and unambiguous and no discretion other than an application of

their ordinary and natural wording was permitted, which is deliberately

restrictive is permitted.

3. The Respondent stated that it is a separate entity from the Minister and

secondly that the decision in relation to the MFV “Star of the Sea” clearly a

concession in the context of a judicial review action, did not alter the wording

of the policy directives and that as there was no finding by a Court that this

concession did not create a right that could be exercised by anyone other

than the parties to that litigation.

Reasons for the Decision

The Appeals Officer has considered in detail the arguments that have been raised by

both parties.

It is clear that the Appellants are in an invidious position, by the precluding effects of

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the operation of policy directives 1/2011 and 2/2012. However I am persuaded by

the Respondent that I do not have jurisdiction to interpret these policy directives in

any other way other than to apply the natural and ordinary meaning of their wording.

To find otherwise would be to act outside the jurisdiction as set out in section 6-18 of

the Fisheries (Amendment Act) 2003 and to do otherwise would do violence to the

wording of the policy directives.

The Appellant raised the issue of a case being stated to the High Court and I invited

the Appellant to identify a basis upon which a question of law, which required

clarification by the High Court, arose. His suggestion was that the Faherty case was

authority for me to apply a purposive approach to the interpretation of the policy

directives.

I stated that only arose if there was ambiguity in the wording of the policy directive

which, as yet, had not been identified by the Appellants. Yes, the wording was strict

and it certainly resulted in great harshness to the Appellant, but these are not

matters of which I can take into account. The rules of construction are well

established; the natural and ordinary meaning of the section is to be applied unless

there is ambiguity within the wording, in which case a purposive interpretation should

be made, in light of the instrument as a whole.

The Faherty case involved an ambiguity as to whether the word “modification”

related to past or present modification to the vessel. As such the policy directive was

capable of possessing or more than one meaning. In those circumstances Charleton

J. held that a purposive interpretation should be applied by the Appeals Officer to the

policy directive, having regard to the instrument as a whole.

However in the present appeal, that no such ambiguity has been identified.

I informed the parties that my initial view on the evidence and submissions was that I

had no jurisdiction, other than to find against the Appellants. However I was

requested by the Appellants’ Counsel to allow them take time to consider their

position to allow them furnish questions upon me which I could consider, in order to

decide, whether or not to state a case. I informed the parties that I would adopt this

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approach and if the Respondent agreed and if it were possible, that the form of the

questions should be agreed between the parties.

I stated however that, whether there was or was not agreement on the wording of the

questions, if I did not consider that there was a good reason to state a case, that I

would proceed to determine the appeal on the basis of the evidence and

submissions given at the hearing.

The Appellants were given until 4 September 2015 to email questions that they

wanted to be stated. The Respondent then had until 16 September to either agree

with the questions or to oppose to application.

The questions that were put forward by the Appellant were as follows:

1. Can the Licencing Authority and/or Appeals Officer interpret the Ministerial Policy

Directives other than in a literal sense and proceed to the plain intention of the maker

of those instruments, collectively, in determining whether the MFV Oileán Iarthach

(ex-Carmarose) is subject to the literal restrictions imposed by Policy Directives

1/2011 and 1/2012 vis-à-vis the transfer of mackerel and herring entitlements?

2. If yes, can the said Policy Directives, when interpreted in conjunction with the other

Policy Directives (in particular the Principal Directive 2/2003) and the Fisheries

(Amendment) Act 2003 (as amended), permit the transfer of the MFV Iúda Naofa’s

full mackerel and herring sea-fishing entitlements to the MFV Oileán Iarthach, in

circumstances where the latter’s eligible capacity to fish the relevant tiered/ring-

fenced portions will exceed the 100% rule?

3. If no, do Policy Directives 1/2011 and 1/2012, in their restrictiveness, offend Section

222B(3)(d) of the Fisheries (Consolidation) Act 1959 (as amended) and/or Section

3(3) of the Fisheries (Amendment) Act 2003 (as amended)?

4. If yes, are the relevant portions of those directives ultra vires the Minister’s powers

and/or contrary to the Constitution?

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I received the response of the Respondent on 16 September 2015 which was as

follows:

Observations of the Licensing Authority in relation to the proposed questions for submission to the High Court by way of case stated.

1. Having reviewed the Submission the Licensing Authority cannot agree to the

wording of the proposed questions for the case stated in the matter of the appeal

pursuant to section 16 of the Fisheries (Amendment) Act 2003 between Iuda

Naofa Limited, Martin Conneely and Mairtin Eanna O Conghaile and the

Registrar General of Fishing Boats.

2. The underlying purpose behind policy directives given to the Licensing Authority

under section 3 (2)(b) of the Fisheries (Amendment) Act 2003 as amended by

section 99 of the Sea Fisheries Maritime Jurisdiction Act 2006 is to support and

implement the Minister’s current published fisheries policies, which are arrived at

having undergone extensive consultation. The role of the Licensing Authority is to

exercise its functions in accordance with the clear express intentions of the

Minister as set out in the policy directives.

3. It is the view of the Licensing Authority that a Policy Directive can only be

interpreted, in accordance with the plain meaning of the words of the directive as

to do otherwise would be contrary to the Minister’s policy and his clear

instructions to implement same.

4. The directives are given to ensure the transparent and consistent implementation

of the published policies. The questions as proposed would interfere with the

Licensing Authority’s ability to carry out its statutory functions.

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5. It is the view of the Licensing Authority that it is not necessary for a case stated,

in relation to the Policy Directives of the Minister to be sent forward to the High

Court and the matter before the Appeals Officer can be decided upon on the

basis of the oral hearing held by the Appeals Officer in Galway 10 th August 2015.

Decision

I am of the view that there is no jurisdiction for an Appeal’s Officer to apply a

purposive interpretation to the wording of the policy directives and that the ordinary

and natural meaning of these policy directives should be applied.

Conditions (iv), (v) and (vi) of the Licence Offer stand and the preclusions apply.

In relation to the application for a case to be stated to the High Court, I also refuse

this. On questions 1 and 2, in the application to state a case, I find that as there is

nothing to permit a purposive interpretation of the policy directives. As a result, I do

not have a discretion other than to apply the ordinary meaning of the wording, which

is strict and does not permit a discretion by either the Licensing Authority or the

Appeals Officer. Faherty v. Registrar General of Fishing Boats [2010 unreported] applied.

5. Of questions 3 and 4 in the application to state a case, matters were raised which

were not raised at the hearing and are not dealt with in the Licensing Authority’s

response to the application. I will deal with these matters now. The questions ask

whether Policy Directives 1/2011 and 1/2012, in their restrictiveness, offend Section

222B(3)(d) of the Fisheries (Consolidation) Act 1959 (as amended) and/or Section

3(3) of the Fisheries (Amendment) Act 2003.

6. Section 222B(3)(d) of the Fisheries (Consolidation) Act 1959

I find firstly that as there is discretionary use of the word “may” in section 222 (B)(3)

(d) does not oblige the Respondent to apply the section.

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Section 222B (3) (d) of the Fisheries (Consolidation) Act 1959 states

“In deciding on the grant or refusal of a sea fishing boat licence or the

attachment of conditions to licences, the Licensing Authority may take

account of economic and social benefits which the operation of a boat would

be likely to contribute to the coastal communities and regions which the

quotas within the meaning of Council Regulation No. 2371/2002 of 20

December 2002… are designed to benefit”

7. Therefore I find that it is not necessary for a case to be stated on this point. I should

also state that there was no evidence given on this matter or whether the Licensing

Authority did or did not take the “economic benefit” factor into account when deciding

upon the terms of the licence offer. However I find that even if it did not, that it is not

mandated to do so by the wording of Section 222B (3) (d).

8. S 3 (3) of the 2003 Fisheries (Amendment) Act states:

“A policy directive given under subsection 2 b may require certain prohibitions

or conditions to be imposed in relation to sea-fishing for the purposes of

protecting, conserving or allowing the sustainable exploitation of living marine

aquatic species.”

9. At the oral hearing, no evidence was given that the conditions imposed by

application of policy directives 1/2011 or 1/2012, were not imposed for the

purposes of protecting, conserving or allowing the sustainable exploitation of

living marine aquatic species. It is unclear what the Appellant means by this

point. If the Appellant believes that Section 3(3) means only that a means of

sustainable exploitation shall be provided, and that this has been denied to the

Appellants because of the preclusions, this is accepted. But the policy directives

have a much wider than this. Protecting and Conserving marine life are also core

purposes of the policy directives and the Appellant has failed to demonstrate how

policy directives 1/2011 and 1/2012 have failed to meet this purpose.

10.There is no doubt that the application of policy directives 1/2011 and 1/2012 and

the resultant conditions imposed on their licence will significantly reduce the

Appellants’ ability to fish. Their main source of income from the MFV “Iuda Naofa”

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was from pelagic fishing and they say that the preclusion will reduce their income

capacity by 75%. I have no reason to dispute this evidence and whilst I have

great sympathy for the Appellants it appears that their only option, in order to

comply with the policy directives, is to modify the MFV “Carmarose” in order to

reduce it to the capacity of that which attached to the MFV “Iuda Naofa” or, if

possible, which seems highly unlikely, to purchase the replacement capacity

elsewhere.

The powers of the Appeals Officer is limited by statute and to step outside what is

permitted by the Acts and the policy directives would be ultra vires.

Accordingly I refuse both the appeal and the application to state a case to the High

Court.

________________

Emile Daly

Appeals Officer

12 November 2015

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