Farias v Malpas

• Jurisdiction: Bermuda
• Judgment Date: 19 November 1993
• Docket Number: Criminal Appeal No 3 of 1992
• Date: 19 November 1993
• Court: Court of Appeal (Bermuda)

In the Court of Appeal for Bermuda

Georges, J.A.

Huggins J.A.

Criminal Appeal No 3 of 1992

Dennis Farias

Appellant

and

David B Malpas (Fisherman Inspector)

Respondent

Mr. Alan Newman Q.C. Mr. Arthur Hodgson with him for the Appellant

Mr. Michael Tugendhat Q.C. Mr. Barrie Meade (Solicitor General) with him for the Respondent

Associated Picture Houses Ltd v Wednesbury CorpELR [1948] 1 KB 223

Olivier v ButtgiegELR [1967] AC 115

Societe United Docks v Government of MauritiusELR [1985] 1 AC 585

Bahadur v Attorney General [1989] LRC (Const) 632

Traktorer AG v SwedenHRC (1989) 13 EHRR 309

Fredin v SwedenHRC (1991) 13 EHRR 784

Manitoba Fisheries v The Crown (1976) 6 WWR 496

Bermuda Constitution Order, s.1

Constitutionality — Confiscation or deprivation of property without compensation — Whether a licence is property — Judicial review — Whether Minister acted ultra vires — Ban of fish pots — Commercial fishing licence — Unlawful possession and use of fish pots — Compensation for confiscation of fish pots

JUDGMENT

Georges JA

Dennis Farias, the appellant, is a commercial fisherman. He has engaged in that activity for several years—all of his working life. During that period he has owned a number of fishing vessels. Mr. John Barnes, a civil servant holding the post of Assistant Director of Fisheries, agreed that he could have described Mr. Farias as an ‘interested and responsible member of the industry’.

The industry in Bermuda has since the early 18th century been the subject matter of legislative regulation. The first act dated 1710 was entitled ‘An Act to prevent destruction of fish by netballing.’ The Act currently in force—The Fisheries Act 1972—(‘the Act’) provides in section 13(1) (a)(b) and (d)—

‘The Minister may make regulations for the promotion, development, improvement and protection of the fishing industry of Bermuda and, without prejudice to the generality of the foregoing words, may make regulations—

(a) for the registration and licensing of fishing vessels and for the registration of fishermen;

(b) for the issue of licences, their terms and conditions and for the transfer, amendment and revocation of licences ……

(d) for prohibiting or regulating specified means or methods of taking fish or specified fish ……’

In the exercise of that power the Minister made The Fisheries Regulations 1972 (‘the Regulations’). There were amendments in 1986, 1988 and 1990.

Regulation 2 constitutes the Minister charged with responsibility for Fisheries as the authority responsible for the issue of all licences under the Regulations. In deciding whether or not to grant a licence the Minister must have regard, among other matters, to the economic condition and safety of the local industry and the condition of the Bermuda marine environment including the condition of the existing fish population. Nothing in the Regulations was to be regarded as requiring the Minister to issue any licence if the Minister was of the opinion that the issue of the licence would not be in the interest of the promotion, development, improvement or protection of the fisheries and fishing industry of Bermuda.

Applications for fishing licences are to be made by the owners of fishing vessels during periods specified by the Minister—regulation 3. Upon receipt of the application the Minister may issue a licence valid for one year and expiring on March 31. The Minister may attach conditions to the licence and anyone who uses a fishing vessel which has not been licensed for fishing within Bermuda's exclusive zone would be guilty of an offence—regulation 4.

Section 3 of the Act states that the Minister may consult with the Board of Agriculture and Fisheries established under section 2 of the Agriculture Act 1930, but the Minister is not bound to act in accordance with the advice of that Board in any matter.

Section 3A of the Act empowers the Minister to appoint a Fisheries Commission. Among its functions is that of advising the Minister—

‘in matters of dispute relating to the registration of fishermen and in the granting of licences and permits under this Act.’

On January 25, 1990, according to the appellants evidence, there was a meeting of the Fisheries Advisory Committee presided over by the Minister, Mrs. Anne Cartwright de Couto. Among those present was the appellant himself. The Minister announced then that she proposed to ban fishing by means of fish pots. These are defined by the Regulations in section I(1) as including ‘every kind of trap for taking or holding fish.’

At the end of the second day of the hearing in this court we were shown the fishpots. They bore no resemblance to what has elsewhere been described as ‘a useful pot to put things in’. Indeed it is not easy to imagine any use to which it might conveniently be put other than that for which it was designed. Basically it is a rectangular wire cage about 8 feet long, 7 feet wide and 3 feet high. In the middle of one end is a funnel shaped aperture forming a one-way passage way for fish, and at ground level at the same end are two hinged doors which can be opened to permit the passage of lobsters, though of course when open, they would also allow the escape of fish.

The ban was to come into effect on March 31, the date on which all fishing vessel licences would have expired with renewals for the ensuing year becoming effective on April 1. The appellant objected vigorously to the proposed ban. His perception of the ban was stated in evidence as follows—

‘She informed the fishermen of these islands to roll up their way of life, their historical right, their heritage, their economic destiny within two months and a handful of days so that their way of life would be finished.’

There was one other objector who did not persist in his objection.

Mr. Barnes stated that the Fisheries Department took into account representations from a number of bodies which concern themselves with the fishing industry. The ban on fishing by fish pots was imposed because of the general concern with the marine environment and its protection. It was the result of numerous reports received by the Minister and other factors which she took into consideration.

The Ministry devised a scheme of ex gratia payments to fishermen who owned fishing pots. A branch of a trade union representing fishermen submitted counterproposals to the Minister. The Minister thereupon settled the method of compensation. An amnesty was declared for the month of April during which fishermen were advised to bring in their fish pots and claim their compensation. The appellant did not surrender his fish pots nor did he claim compensation.

Regulation 17 of the 1990 amendments to the Regulations provided—

‘Subject to these Regulations, any person who uses any fixed fishing gear for taking fish shall be guilty of an offence against these Regulations.’

‘Fixed fishing gear’ is defined in section 1 to include fish pots. Regulation 4A provided—

‘(1) Notwithstanding any provision in these Regulations, it shall be lawful for a person to have in his possession or to use a fixed fishing gear if that person is authorized by a licence issued by the Minister to have in his possession or to use such gear for any or all of the following purposes:

(a) for the purpose of scientific research or experiment;

(b) for the purpose of controlling the fishing industry;

(c) for the purpose of aquaculture.

(2) Any person who is not licensed in accordance with this regulation and who is in possession of or uses a fixed fishing gear that person shall be guilty of an offence against these Regulations.’

On May 16, 1990 Mr. Barnes arranged for a Police Marine section vessel to pick him up at the Department of Fisheries on Coney Island. The vessel proceeded west along the North Shore Road. Mr. Barnes spotted a vessel which appeared to have fish pots on board. They closed in on the vessel. It bore identification No. F093. The appellant and his son were on board. Mr. Barnes knew that it was the appellant's vessel. At his direction the appellant took the vessel F093 to the United States Naval Station Annex at Southhampton. There the fish pots on the vessel and fish found on the deck were off loaded and seized. The appellant confirmed that he was the owner and operator of F093—The Lone Star. When asked whether the fish pots were his, he replied that he had paid his licence.

In his evidence the appellant stated that he was aware that the licence he had previously held for fish pots had expired. He had gone out that day...