The Supreme Court yesterday held that a 1989 Act, introduced by the then Taoiseach, Mr Charles Haughey, aimed at establishing the Great Blasket Island as a national park was unconstitutional.
The decision means the Callery brothers, Peter, a solicitor in Dingle, Co Kerry, and James, of Cloonahee House, Elphin, Co Roscommon, together with Ms Kay Brooks, widow of a former US diplomat, and Mr Matthias Jaunch, a university lecturer of Turners Cross, Cork, can pursue a claim for compensation against the State.
Mr Peter Callery said they intended to look for compensation because of the "sterility" caused by the State to their development plans over the past 13 years.
For the past 10 years they have been challenging the State's right under the 1989 Blascaod Mor National Park Act to compulsorily acquire their lands.
The case lasted more than 50 days in the High Court and two days in the Supreme Court. Legal costs for both sides came to more than £1.5 million. Yesterday the Supreme Court decided the Callerys, together with Ms Brooks and Mr Jaunch, should recover from the State 35 days of their legal costs. The matter had come to the Supreme Court by way of an appeal by the State against last year's High Court finding by Mr Justice Budd that the 1989 Act was unconstitutional.
Yesterday, Mr Justice Barrington, giving the Supreme Court's unanimous decision, said the High Court judge had found the Act had created two categories of land owners.
The first category was those who were resident on the Great Blasket before 1953 (when the last of the islanders left) and their relatives, including descendants.
The second category included any person not a native resident or relative who had bought lands on the island, like the Callerys, Ms Brooks and Mr Jaunch's late brother, Arne Jaunch.
This, said Mr Justice Barrington, introduced a dubious classification with ethnic and racial overtones. The court had no doubt but that the Callerys, Ms Brooks and Mr Jaunch were being treated unfairly compared with persons who owned or occupied and resided on the island before 1953 or their descendants.
Mr Justice Barrington said it was common case that the Great Blasket Island was a place of great natural beauty. It was also important because of the writers it produced and because of the record which they left of the dying days of an island community and of the effects of emigration.
The islanders had departed in 1953 leaving their houses unoccupied and their lands untended. Over the course of the years, the Callerys, Ms Brooks and Mr Jaunch had acquired many of the plots and dwelling houses in the village of the Great Blasket.
They were entitled to 17/25ths of the commonage which comprised 1,060 acres out of a total of 1,132 acres for the entire island. They were largely inspired by interest in the Great Blasket and by its history and traditions.
The four plaintiffs, said Mr Justice Barrington, had probably done more than anyone else to preserve some of the houses in the village but the village as a whole was suffering from neglect and was in danger of collapse.
Mr Justice Barrington said that in this bitterly fought case no one seriously questioned the power of the Oireachtas to acquire an uninhabited island such as the Great Blasket for the purpose of establishing a national part. It was the form of 1989 Act which had created all the controversy.
The effect of the Act's provisions was that the Commissioners of Public Works could acquire compulsorily the lands of any of the four plaintiffs, but it could not acquire compulsorily lands owned or occupied by any person who was resident there before November 1953 or who was a relative of a former occupier.
The number of persons whose lands were subjected to the compulsory provisions was very small and consisted principally, if not exclusively, of the four plaintiffs. The plaintiffs might be excused for assuming the Act was aimed at them.
The classification of persons in the 1989 Act was based on a principle - that of pedigree - which appeared to have no place (outside the law of succession) in a democratic society committed to the principle of equality. This fact alone made the classification suspect.
The Supreme Court, said Mr Justice Barrington, agreed with the High Court judge that a constitution should be "pedigree blind" just as it should be colour blind or gender blind except when those issues were relevant to a legitimate legislative purpose.
The court could see no legitimate legislative purpose in the present case and had no doubt but that the plaintiffs were being treated unfairly.