The Sea-Fisheries and Maritime Jurisdiction Act 2006 dealt with a range of matters in the fisheries and aquaculture and maritime jurisdiction sphere. It revised PART XIII of the Fisheries Consolidation Act and clarified the law in relation to a illegal sea fishing.
It safeguarded implementation of the national fisheries policy and EU common fisheries policy by remedying certain defects in the legislation, which had emerged. It made it an offence to contravene EU regulations which are directly applicable.
The legislation streamlined arrangements for allocating and managing the State’s sea-fish quotas and entitlement. It updated penalties in relation to a range of sea fisheries offences. It made new provision for forfeiture of proceeds from a legally caught fish.
The Act also updated and replaced the Maritime Jurisdiction Act 1959 to give effect to the exclusive Economic Zone of a United Nations Convention on the Sea.
It clarified the scope of Ministerial Policy Directive to the sea-fishing boat licensing authority and appeals officer. It included a number of measures to control and regulate the capacity of the sea-fishing fleet and rational management of fisheries. It made certain amendments to aquaculture licensing law.
A 2003 Supreme Court case relating to penalties in respect of use of drift nets on indictment within the area of the application of the common fisheries policy was found defective in that it extended beyond the exclusive fishery limits of the State. A further Supreme Court case invalidated further a ministerial order relating to discretionary national measures to give effect to the policy.
The legislation repealed certain older fisheries legislation including in particular provisions of the Fisheries (Ireland) Act, 1846, certain provisions of the Merchant Shipping Act relating to registration of sea-fishing boats which were updated: Trawling in Prohibited Areas (Prevention) Act 1909, Fisheries (Revision of Loans) Act 1931, Freshwater Fisheries (Prohibition of Netting Act 1951, Fishery Licences (Moville District) 1951. It updated Part XIII of the Fisheries (Consolidation) Act. It also made significant other amendments to the fisheries legislation.
The fisheries law applies to Moville area as defined in the Foyle Fisheries Act and the Carlingford Lough area within the State as defined in the British-Irish Agreement Act 1999.
The legislation restricting the entry of foreign sea-fishing boats in the exclusive fisheries limits of the State is updated and restated. The presence of foreign fishing boats while inside the exclusive fisheries limits of the State is restricted and regulated.
It is an offence to fish without lawful authority on board a foreign sea-fishing boat within the exclusive fisheries limits of the State. The penalties are prescribed below. It is an offence to contravene EU Regulations relating to the common fisheries policy which are directly applicable.
New provision is made for grant of authorisation for limited fisheries and fishing for certain specified stocks which are under pressure. Detailed provisions of the common fishery policies may be provided for by regulations made by the Minister, both in relation to matters over which the State has no discretion as regards principles and policies both beyond as well as within the exclusive 200 miles exclusive fisheries limits of the State.
The Minister for Communications, Marine and Natural Resources is empowered by regulations to supplement the common fisheries policy of the European Union by prescribing national regulatory matters.
There is updated provision for appointment of sea-fisheries protection officers. Existing sea-fisheries protection officer’s appointment is continued. Their powers are set out.
The powers of sea-fisheries protection office in relation to sea fishing boats, including detention of the boats alleged to have been involved in sea-fisheries offences, pending charge and prosecution are updated.
The provisions regarding recovery of fines and forfeitures by the courts for sea- fisheries offences is confirmed and updated.
An alleged offender against sea-fisheries law may be brought before the District Court for the area for which the port in which the alleged offender was detained is located.
Offences are updated and restated regarding outlawing and penalising obstruction of sea-fisheries protection officers. There is provision, making specific prohibition on assaulting sea-fisheries officers. The fisheries officers are granted legal immunity for bona fide reasonable actions in the course of their duties.
The penalty provisions in respect of indictable sea-fisheries offences or which may be dealt with summarily in the District Court, where the prosecutor agrees is updated and restated. Where any fine and forfeiture may be imposed on conviction for such offence, the court may suspend or revoke the sea-fishing boat licence for the boat concerned. There is provision for the forfeiture of boats used in the commission of certain sea-fisheries offences.
It is not necessary for the court to formally pronounce a record of forfeiture, which arises automatically in consequence of conviction for specified offenses. The exchequer is to benefit from the sale or disposal of anything forfeited under the legislation.
There is provision depriving owners of sea-fishing boats, if not the licence holders which fish illegally of the economic benefit of so doing. This is distinct from separately imposing a fine or other forfeiture in relation to the offence.
It is provided that on the balance of probability that if it is shown that sea fish were caught in contravention of State or EU legislation or in contravention of an international agreement to which the State is party, the appropriate market value referable to the disposal of a legally caught fish shall be forfeited to the State and may be recovered from the boat owner, holder of the sea-fishing boat licence for the sea-fishing boat concerned.
That above forfeiture is in addition to and not in substitution for any fine or forfeiture which a court may impose in relation to the sea boat or sea fishing concerned and is for the benefit of the exchequer. It may be imposed even if no proceedings for an offence in relation to the sea-fishing or boat concerned has taken place. Sea-fisheries protection officers may give prime facie evidence that fish were caught illegally from logbooks, vessel tracking system and other records, documents concerned.
In order to establish a valuation for the proceeds to be forfeited, the court is to have regard to the greater of the proceeds of disposal according to documentary evidence submitted by the owner or the market value of the fish concerned involving a willing buyer and seller.
There is provision for appeal to the Circuit Court against the dismissal of proceedings by the District Court for any offence under the Sea Fisheries Acts 1959-2005. The Circuit Court can confirm or reverse the dismissal. There is no further appeal.
The provision is updated in relation to proof of whether a sea-fishing boat is foreign or not. There is provision for offences by bodies’ corporate and non-incorporated persons who purport or act on their behalf. There is provision for the service of trial documents on non-resident defendants.
The master, owner, charterer or hirer of a sea-fishing boats used in illegal operations may avoid conviction for the offence if he can prove that there was no consent, connivance, wilful default or lack of due diligence on his part in relation to those operations.
A court may presume by reference to certain evidence and in the absence of proof to the contrary, that a sea-fishing boat was used in illegal sea fishing or other illegal sea fisheries operations.
The Minister for Communications, Marine and Natural Resources may take summary proceedings for minor offences under the Act if it is decided to do so. These do not require the consent of the DPP to whom the powers of prosecution were transferred under the legislation.
There is provision for improvement of sea-fisheries law by the appointment of an independent seafood control manager or deputy seafood control manager within the Department. The control manager has sea fisheries law enforcement and related functions and responsibilities. The office is independent in the performance of its functions.
Seafood, fisheries and other law enforcement and related functions are to be carried out as effectively and efficiently as possible by deploying resources available to the manager. The manager is to advise the DPP promptly of contravention of sea-fisheries laws detected and promote compliance with law in question and give advice to the Minister and Secretary General of the Department.
The manager must report through annual reports to Secretary General and Minister which are to be presented to the Dail and Seanad. The Secretary General may require reports on the performance of the manager.
Chapter VI of the Act deals with registration of sea boats. It updates existing provisions of the Merchant Shipping Act as amended by fisheries legislation subject to EU obligations and rules.
The National Register of Fishing Boats is continued. It is to be updated by the Registrar General of fishing boats. There is provision for appointment of local registrars for certain ports.
There are provisions requiring registration, lettering and numbering of sea-fishing boats in accordance with legislation or EU obligations. It is an offence to fail to comply with the obligations subject to a fine up to €5000 on summary conviction.
The Registrar General may enter Irish sea-fishing boats in the register or remove them so as to properly manage the capacity of the Irish sea-fishing fleet in accordance with the EU and other obligations.
That requirement is maintained for a sea-fishing boat licence as a prerequisite for the registration of a sea-fishing boat in the Register of Fishing Boats or as a ship under the Mercantile Marine Act 1955. There is a provision for issue of a certificate of registration in the Register. The certificate is sufficient evidence in court proceedings of registration.
The ownership details are to be entered in the Register and are evidence in court proceedings without prejudice to the rights of owners. Non-registration of sea-fishing boats does not limit obligations attaching to the boat or owner.
There are provisions for regulations by the Minister for the registration for the registration, lettering and numbering of sea-fishing boats. There is provision for charging of fees on registration. The Merchant Shipping (Registry, Lettering and Numbering of Fishing Boats) Regulations continue in force until replaced.
The legislation makes provisions in relation to the documents which must be on board sea-fishing boats within the exclusive fisheries limits of the State and the lights to be carried on sea-fishing boats so as to prevent collision.
It is confirmed that prosecutions summarily for fishing offences may be undertaken by the Department/Minister. Indictable offences may only be taken in the Circuit Court. Prosecution of indictable offences must be undertaken by the DPP.
There is a requirement of a tax clearance certificate for the grant of a sea-fishing boat licence to such date as the Minister specifies by order.
The scope of Ministerial Policy Directives in relation to the sea-fishing boat licensing authority and Appeals Officer is confirmed to include measures relating to control and regulation of the capacity of the fleet and rational management of fisheries. There is provision for charging of fees for applications, authorisations and permits by the Minister. A third party may make representation in relation to the grant of licenses. If they fail to do so, they may not be part to an appeal.