July 29th, 2019
The State’s failure to adequately publish notice of plans to grant a licence for large-scale mechanical kelp harvesting off Bantry Bay means that the licence has not yet been effectively issued, the High Court has determined.
In March 2009, the Tralee-based BioAtlantis Aquamarine Ltd applied for the licence for 10-year mechanical harvesting of kelp seaweed – a keystone marine species – in 1,800 acres of the Bay.
In 2014, the then-Minister for the Environment Alan Kelly granted the licence, with the decision subsequently challenged in the High Court. The responsibility for the foreshore now rests with the Department of Housing.
Last June, BiaAtlantis gave notice to the Department that it planned to commence harvesting on 4 July 2018 but has yet to carry out any works.
The decision made by Ms Justice Deirdre Murphy this morning puts the harvesting plans into doubt over the failure of the Minister to give notice in Iris Oifigiuil – the official State gazette – of plans to grant the licence.
She said that, at the time of the application, the wording of the Foreshore Act 1933 was clear that that the Minister shall give notice in Iris Oifigiuil that he has determined to grant a licence application.
Such information must also be placed in one or more of the newspapers circulating in the area where the foreshore subject to the licence is situated.
With the Ministerial decision still pending, Ms Justice Murphy said that the Act was updated in September 2009 and July 2010 to enhance public participation and accommodate Ireland’s “belated implementation” of EU Directives to give effect to the Aarhus Convention.
The international convention gives rights of the public with regard to environmental matters, including access to environmental information, the right to participate in decision-making and access to justice.
The combined legislative changes ensured that the Minister must also specify the documents available to the public for inspection and the means by which the material may be inspected.
The notice must also inform members of the public that they can challenge the validity of the Ministerial decision by way of an application for judicial review proceedings in the High Court.
Thus, Ms Justice Murphy said, as of mid-2010, the Minister must publish the notice with this information in Iris Oifigiuil and in one or more newspapers in order for this aspect of the public participation process to be completed.
Yet, Ms Justice Murphy added, this “integral” public participation element has “not yet occurred” and, as such, the licence has not yet been effectively issued. Until the Minister complies with this statutory obligation, she said, “there is no effective licence” in place.
While she said that the court is conscience that BioAtlantis is “severely discommoded” by this decision, Ms Justice Murphy said that her decision must reflect the law.
She acknowledged that the harvesting of seaweed is “potentially a great resource” and that, if done sustainably, mechanical harvesting could provide “significant employment” for coastal towns.
“Having said all of that, the Court is confined to follow the law and it is clear to the Court that there was an obligation on the Minister to publish in Iris Oifigiúil,” she said. As this has yet to be carried out, “the licence process is not yet concluded and will not be concluded until the Minister does so,” she added.
Ms Justice Murphy suggested that the case is one that appears to warrant a leapfrog appeal to the Supreme Court owing to the “significance” of issues at play. Both the Department and BioAtlantis were contacted for comment but did not reply at the time of publication.