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1. These cases are being heard together, as they are separate applications both seeking the annulment of the regulation and management of eel fishing bye-law number 752, 1998. This bye-law sought to restrict the number of eel fishing licences for a long line which might be issued in each fishery district in any year. It is not in dispute that the Plaintiffs in each case are fishermen and have locus standi to bring these proceedings.

2. Order 93 of the Superior Court Rules sets out the procedure to be followed on such appeal, namely that it shall be brought by Special Summons

3. There appears to have been some misunderstanding on the part of the Plaintiffs as to the basis upon which it was purported to make this bye-law. There had been a bye-law made the previous year pursuant to Section 9 (1)(gg) on the basis that it imposed restrictions of an emergency character for a specified period not exceeding one year in duration, and considerable evidence in this case was directed by the Plaintiffs towards establishing that such emergency situation did not exist at the time of the bye-law which is now in issue. However, it has been confirmed in the course of the hearing on behalf of the Defendant that the impugned bye-law was not made pursuant to this provision, but was purported to be made pursuant to the general power given to the Minister both in the introductory part of Section 9 (1) and in sub paragraph (h). In particular the Minister relies on the fact that the list of specific matters set out in Section 9 (1) is expressly stated to be without prejudice to the generality of the general power.

4. The extent of the powers of a Court in hearing an appeal of this nature was considered in detail by Costello J . In Dunne -v- The Minister for Fisheries and Forestry (1984) I.R. 230. He said at page 240 :-

5. This latter point is a reference to the fact that the Minister may hold an enquiry before making a bye-law. He did not do so in this case, and therefore the Applicants did not have an opportunity to put forward their case before the Minister. Indeed, one of the grounds of their appeal is that, not only was an enquiry not held, but they were not consulted. The holding of an enquiry is not a mandatory provision, but it is undoubtedly correct that no consultations appear to have been held with the industry. The Plaintiff’s seek to make the case that the failure to consult was unfair and failed to take into account their constitutional right to earn a livelihood. This might be a reasonable argument if there were no right of appeal to the Court, but in the circumstances of this appeal it appears to me to have no validity in itself. However, the fact that there was not an enquiry, and that no consultations were held, leaves the Court at large in considering the validity of the bye-law, and the Applicants are certainly entitled to make any relevant submissions to the Court which they could have made to the Minister had they been consulted. It is quite clear from the Judgment in the Dunne case that the Court is conducting its own hearing, and is not in any way restricted to matters which may have been considered by the Minister in deciding to make the bye-law.

6. The Plaintiff’s place great emphasis on the provision of Section 67 (1) of the 1959 Act, which provides:-

7. The argument is made that this provision is mandatory, and in effect, that if an application is made for a licence, the board of conservators has no discretion to refuse it. In one sense this is certainly correct. However, it is only mandatory to issue the licences in accordance with the provisions of Section 67, and subsection (14) of that Section provides:-

8. Part of the provisions of the Act is the authority under Section 9 for the Minister to make bye-laws, and one of the instruments made under the Act is the bye-law in question in this case. Therefore, the board’s power or authority to issue licences is subject to the provisions of this bye-law, and was always intended to be subject to any bye-laws made by the Minister under Section 9. Indeed, if this were not so, the provisions of Section 9 would be pointless.

9. I have had a number of authorities quoted to me dealing with the validity of bye-laws or regulations in relation to licencing provisions. While these certainly provide some guidance in how to approach the problem in general, the construction of each provision must depend very much upon its own terms, and upon the purpose of the issuing of the licence.

10. The power given to the Minister under Section 9 is to make such bye-laws as are in his opinion expedient for the more effectual government, management, protection and improvement of fisheries. I have no doubt from the evidence before me that the bye-law in issue was, in the view of the Minister, expedient certainly for the management and protection of eel fisheries. It is clear from the exhibits in the Affidavit of Christopher Moriarity in both cases that the Minister took into account a number of studies and research papers conducted and written by experts in the field, and that the decision to make the bye-law was taken in the light of these expert views. While I have not heard any oral evidence, I am satisfied that the bye-laws are in accordance with the views expressed by these experts, and it certainly could not be said that the Minister acted unreasonably or capriciously in following those views. While I am entitled to determine these appeals on my own interpretation of the facts, I have no doubt that there was good reason to make this bye-law.

11. An argument was also addressed to me that the effect of this bye-law was to interfere with the livelihood of the Plaintiffs, which is of course to some degree correct in the individual cases. However, the clear function of the Minister under Section 9 is to manage, protect and improve the fisheries of the state in general, and this he has sought to do. It is of course unfortunate for the Plaintiff’s if, in doing this, he does interfere with their livelihood, but his regard has to be for the greater good and for the preservation of fisheries for the future. In my view the bye-law clearly and in accordance with the expert advice given to the Minister, has this effect. If it were sought to challenge the constitutionality of the whole fisheries scheme, it is not the bye-law which should be challenged, but the provisions of Section 9 which give the Minister the power to control the industry. That is a not a matter which is before me, and I make no comment on it.

12. Accordingly I must dismiss both these actions.