Dear Editor,
In recent articles that have appeared in the Inish Times it was stated by several contributors that the lack of Jurisdiction on Lough Foyle was the reason that there is neither regulation nor licences on the Oyster trestles ( aquaculture ) between Muff and Moville on the foreshore of Lough Foyle.
The reason given for this absence of regulation is being blamed on both the Irish and British governments who it was stated were unable to organise a 'management agreement' (lease) which would have solved the problem.
The impression been given was that it was entirely up to the two Governments to organise a 'management agreement' but this in fact is far from the truth and not correct.
In truth, the two governments have to negotiate a lease with the Crown Estates for allowing Aquaculture on Lough Foyle. The Crown will lay down the conditions required (which the two governments will have to agree to) and one will be the rent they will charge. This rent will be recouped from the fishermen by way of a licence through the Loughs Agency should the day come when a lease is agreed.
The Crown Estates on behalf of the Crown of England owns the sea-bed. The two govts are simply tenants willing to pay for its use. Most commentators seem unwilling to explain that it is the Crown Estates that calls the shots on Lough Foyle and would rather use ' jurisdiction ' as a red herring.
To have official power to make jurisdictional decisions over any property you must, in the first instance, be either the legal owner of the said property or have legal permission of its owner by way of an agreed Lease. That applies to governments as much as anyone else.
Since 1998, as a direct result of the Good Friday Agreement, both the Irish and British governments decided to increase the powers and remit of the newly formed Loughs Agency by introducing the Foyle and Carlingford Fisheries Act 2007 in which the agency was to be given sweeping new powers and especially the legal responsibility for licensing Aquaculture ( oyster trestles ) on Lough Foyle.
Unfortunately a problem arose in the guise of the Crown Estates which would see the plan scuppered as regards aquaculture ( oyster trestles ) licensing in Lough Foyle.
In 2007, when the Irish and UK governments sent the draft Foyle and Carlingford Fisheries Act to the Crown Estates for agreement they refused to accept the licensing section on Aquaculture (oyster trestles) which was to be the central part of the legislation and on which a Lease (management agreement) with the Crown Estates would be based.
The 2007 Foyle and Carlingford Fisheries Act was commenced but without the section on licensing for Aquaculture. The Crown Estates had refused to accept it and so it remains to the present day showing quite clearly who is in charge of Lough Foyle.
Without the legislation to insist on the oyster trestle fishermen taking out a licence, it left the Lough's Agency helpless and unable to regulate the aquaculture industry on the foreshore of Lough Foyle between Muff and Moville. It is the reason why they and anyone else do not have the power to touch the trestles.
That, in a nutshell, is the only reason why the Oyster Trestles cannot be licensed and why there can be no regulation ... nothing to do with jurisdiction.
The Crown Estates sent a letter to the Irish and UK governments in 2007 outlining their detailed reasons for not accepting the aquaculture licensing legislation.
It has remained so to the present day.
There is no legislation available to the Loughs Agency to force the oyster fishermen to take out an aquaculture (oyster trestles) licence and abide by all the conditions that a licence would insist upon.
The trestles are there at the pleasure of the Crown Estates who, quite frankly, would have major difficulty in policing the huge number of trestles located on the foreshore of Lough Foyle between Muff and Moville on the Donegal side.
That has been a windfall for the oyster fishermen.
It seems the Crown Estates are quite willing to allow the trestles to remain.
⏩ Enda Craig is spokesperson for Lough Foyle group, Community For A Clean Estuary.
Enda,
ReplyDeleteI think the Crown Estates may feel that it has no choice. The Crown Estate may have a tenuous claim over the sea bed that falls within the border of another sovereign entity. And if it was a matter of tenancy, though I am not certain about the law on this, but the trestle owners may have rare protection rights as generational squatters whose livelihoods are dependant upon consistent practice. For example, if someone moves into a vacant or derelict house and can show proof that they have lived there undisturbed for more than 10 years then they can legally claim ownership of the property.
Christy, .... along the way i have found out that the provisions contained in a Royal Charter are all powerful ... actually supersedes national legislation .................https://www.thepensivequill.com/2021/01/are-english-royal-charters-still.html
DeleteEnda
ReplyDeleteThe Brits retained a lot of property after the treaty, there is no country they have invaded that they still do not have claim over property or natural resources. However, the Foyle seabed is different, the state might not contest the acreage of some Earl, but it does lay claim to the seabed that falls within its border and the Royal Estate have no authority over it. I am not that familiar with land law but I do know that customary common law is that when water forms the border between 2 independent stretches of land on the same island/land mass the border is in the middle of the dividing river or lake.
I imagine that the Foyle seabed dispute could go unsettled forever just like the claim over Rockall... why the issue is never really resolved -who knows?
Christy
DeleteYou make no mention of the legality of the Royal Charter which we took to a SC in Dublin ( Mary Le Foy ) in relation to the sporting rights of East Inishowen. Also the fact that the Irish Govt is paying rent to the CE for the use of the seabed. Plus the Irish Govt paid half the cost of the salmon fishery of lough Foyle in '52. Add to that that they negotiated a long term lease with Derry/Foyle Port for the navigational channel which hugs the Donegal side of the Lough. Plus their refusal to accept the provisions of the Foyle/Carlingford Fisheries Act of 2007 put to them by the Irish Govt and NI Fisheries Board on behalf of the British Govt. And the fact that they are collecting and being paid various rents for the use of different parts of it by none less than Derry City Cl who show no qualms abut handing over substantial amounts ............