Dáil Éireann debate -
Wednesday, 14 Dec 1955

Vol. 153 No. 10

Committee on Finance. - Forestry Bill, 1955—Committee Stage.

Section 1 agreed to.

SECTION 2.

Question proposed: "That Section 2 stand part of the Bill."

Mr. Derrig

This section amends the principal Act in relation to the Schedule, and I think it would be no harm if the Minister would be good enough to take this opportunity to make it still more explicit, if that be possible. As far as the determination of matters arising out of the acquisition of land is concerned, that is of course a matter which will be adjudged by the lay commissioners or the Appeal Tribunal if there should be an appeal. I think there may be some who do not understand that, as far as the acquisition procedure is concerned, the Minister does not enter into it—that the land is acquired through the Land Commission by agreement as the Minister has said. Under these amendments to Section 17, the Minister has a definite duty or responsibility—a statutory responsibility which perhaps might be described as judicial or semi-judicial—and the question would naturally be asked whether there is any precedent for the Minister being the person or agency which determines the compensation, or whether there would have been any alternative so that it might not appear that the Minister was concerned personally.

We know that he is acting only in his capacity as Minister but there is always the suggestion that the head of a Department may have certain prejudices or may be guided by certain factors or certain appeals or considerations which might not be proper in the strictly judicial determination of a question. I think, therefore, it would be well if the Minister could explain what the procedure is likely to be in connection with this question of compensation. If the compensation is the amount that has been agreed upon between the Minister and the vendor, there does not seem to be very much of a problem but if the compensation should be altered, and I am not clear whether it will or can be altered—I presume it can on appeal to the Appeal Tribunal—I should like to know, apart from the question of the amount, which may not at all be the amount which was originally fixed, what procedure the Minister is likely to adopt in satisfying himself under paragraph 1 of Part I of the Schedule.

The Minister must be satisfied that a person has enjoyed such interest for a continuous period of not less than six years immediately before the vesting date; the Minister has to assure himself, in these cases of difficult title, that the person has been in occupation for six years immediately preceding the vesting date; the Minister has to satisfy himself that such a person is unable to give an effective discharge for the compensation and that it would be imposing a disproportionate cost upon the person to ask him to carry out the clearance of his title in the statutory legal way. The person is then to furnish to the Minister such evidence as to his title to such interest as the Minister considers reasonable. I wonder whether the Minister could indicate what procedure is likely to be followed in this case. As he realises, this whole matter of the adaptation and use of compulsory machinery is new. As the Minister said on the Second Reading, this procedure is largely experimental and we have to wait to see the result. I am anxious to try and get information as to what the Minister has in mind.

I also would like to get whatever assurance is possible at this stage that matters will be proceeded with on a proper footing. I take it that the initial cases will be adopted as a precedent for any cases that occur subsequently and I should like to ask the Minister to give us further information as to the procedure to be followed by the applicant.

Mr. Blowick

The circumstances that led up to the introduction of this section really arise out of the 1946 Act, because in that Act the Minister had power, through the Land Commission, to acquire compulsorily, regardless of whether the person was living on it or could prove title. The difficulty in that particular section of the 1946 Act, and the reason it has proved unworkable, was that since people would not part with their land to the Forestry Division in a case where there was bad title, it meant that the same procedure would have to be followed as existed in applications before the Land Commission—the man's land would become State property but the money would be paid into court or into a public trust and until title was proved the man, so to speak, would be out of both land and money.

The reason for Section 2 of the Act was to get around that difficulty and for that reason I propose in this Bill to pay a person with defective title. The only conditions on which I am insisting are those set out in Part I of the Schedule which is really the amendment to the 1946 Act, and which up to a short time ago would in the normal course, I understand, be embodied in the section of the Bill itself. The four conditions laid down there are that:—

(i) the Minister is satisfied that that person has enjoyed such interest for a continuous period of not less than six years immediately before the vesting date,

(ii) the Minister is satisfied that that person either is unable to give an effective discharge for the compensation, the compensation being regarded for this purpose as the proceeds of a sale of such interest effected immediately before the vesting date, or would be able to do so only at disproportionate cost,

(iii) that person furnishes to the Minister such evidence as to his title to such interest as the Minister considers reasonable, and

(iv) the Minister is of opinion that, having regard to all the circumstances, payment of the compensation should be made pursuant to this paragraph.

What Deputy Derrig is anxious to know, I think, is what the procedure will be. If I may take what I think is an example that will apply to most of the cases coming under this Bill, what will happen is that, with the consent or the knowledge of the person who owns the land or at least is using the land but has not full title, the Minister will apply to the commissioners for an acquisition order.

The commissioners in another section of the Bill will give due notice, as is done in the acquisition of lands for relief of congestion under the Land Acts. In most cases, the price will be agreed with that particular person before the acquisition and for that reason it will be a voluntary purchase effected by compulsory means, the compulsion being introduced at this stage with the consent of the person who is willing to sell to us for no other purpose than to give the Forestry Division and the Minister for Lands full title which could not be got otherwise except at disproportionate cost. In that case, the question of compensation will not arise, or at least a dispute about the amount of compensation will not arise because it will be agreed before proceedings are instituted.

In the case of persons who do not agree with the Minister as to what would be appropriate compensation, they have the full machinery of the lay commissioners on the question of compensation available to them with an appeal to the Appeal Tribunal if they are dissatisfied with the price of the commissioners. I do not fix the price; it is the lay commissioners who do so. We are giving a further way out by leaving an appeal open to them but I should point out that an appeal against price is open to the Minister as well as to the recipients should the need arise. I cannot visualise any case where the Minister would appeal; in most cases it will be the recipients and in view of the fact that the other people will have already agreed on a price I do not think there should be much difficulty on that score.

As regards title, a very proper point raised by Deputy Derrig is that covered in paragraph (iii) of Part I of the Schedule, "that that person furnishes to the Minister such evidence as to his title to sell the interest as the Minister considers reasonable." In that connection, the Minister will be guided entirely by the Chief State Solicitor and he will examine such title as the man may hold. There again, it will not be the Minister who will decide or who will take a man's property or his interest in land into his own hands and decide in an arbitrary fashion probably in favour of Forestry as against a particular individual. It will be the Chief State Solicitor. I have paid due regard to the landowners' or land users' interest in that way. As Deputy Derrig pointed out, I do not think it would be quite correct to leave the matter to the Minister because any Minister who takes an interest in his Department could not help, I am afraid, being biassed in favour of the Forestry Division. I am, therefore, removing the matter out of the Minister's hands and it will be the Chief State Solicitor who will guide the Minister on all questions of title.

Question put and agreed to.

Section 3 agreed to.

SECTION 4.

Mr. Blowick

I move the following amendment:—

In sub-section (1), page 6, to add the following new paragraph after paragraph (ii):—

(iii) The vesting Order sent pursuant to sub-section (7) of Section 26 of the Act of 1946 to the registering authority under the Act of 1891 shall be accompanied by a copy of the acquisition Order and, on receipt thereof, the said registering authority, in addition to causing the Minister to be registered as specified in the said sub-section (7), shall cause any appropriate alterations to be made in any relevant existing registrations under the Act of 1891.

When land is vested in the Minister pursuant to a vesting Order under Section 26 of the 1946 Act, the Land Registry is required by sub-section (7) of Section 26 to register the Minister as owner in fee simple. Where the land acquired was a portion of a commonage and Section 4 of the Bill operates to alter the ownership of an excluded portion of the commonage, the Land Registry will have to note the consequential limitation to the objectors of ownership of the excluded portion. This amendment requires the Land Registry to note such consequential changes.

Amendment put and agreed to.

Question proposed: "That the section, as amended, stand part of the Bill."

Mr. Derrig

On the section, I presume that the phraseology is in the usual symmetrical and rhythmical measures comparable with the Alexandrines of John Milton or some of these great epic poets, but it leaves us in the position that even if one wished to amend them, it is almost impossible. It would have been necessary to set up an entirely new framework. I presume there is nothing in the point that in line 21 where the Minister has "has made" it means as Deputy Moran possibly had in mind, "will make" as well as "has made", and that in effect there can be no question but that the section will, as intended, apply to future cases.

I presume that in the opening portion of the section in regard to the acquisition Order that the matter of the rights which the holders of commonage may have, such as rights of way and rights to water, will be deal with, that their rights will be safe guarded and will be duly considered by the appropriate authorities when the making of the acquisition Order is under consideration. It is certainly rather extraordinary that the first sub-section refers us to the representation which has to be made by the objectors and we have to go on two pages further, to sub-section (2), to find that the representation referred to in sub-section (i) is a representation to the lay commissioners, and so on. Why in the opening section it could not be stated what the representation was, and proceed from that, I do not understand, but I hope that the Minister will not have any trouble in connection with the introduction of these formidable sections which do not throw very much light on the matter from the point of view of the equities of the cases. It may be that they fit in, as I have said, symmetrically and that it was necessary that they should fit in with Section 17 and the appropriate sections of the 1946 Act; but, except from that point of view, it is really a pity that it was not possible to state what was in mind in simpler terms which would be more intelligible to the layman, if laymen are presumed to have any intelligence or any interest in these legal matters.

A point was also raised with regard to the amount of compensation. The Minister denied to Deputy Moran that the amount of compensation payable to each of the owners in common, other than the objectors "shall be determined as if the whole of the land to which the Minister's application related had been acquired by the vesting Order." If it does not mean what Deputy Moran contended it meant, it certainly means that language, when it is put into legal phraseology by the draftsman, departs from its ordinary everyday meaning. If it were to mean that the compensation payable to each of the owners would be on the same proportionate basis as the total compensation it would be understandable; but the section says specifically "shall be determined as if the whole of the land....had been acquired." If that does not mean that the compensation to those whose rights in common are being acquired is not the equivalent of the compensation value of the whole commonage I do not understand what it means. Perhaps the Minister may be able to throw some light on it.

Mr. Allen

Since this Bill passed the Second Reading the minds of commonage owners have been seriously disturbed. They believe that if one or two of the commonage owners opt to sell their interests to the Minister the others will be seriously affected. I have been approached by a particular group and I have been told that, if their rights are interfered with, they will take steps to prove the illegality of such interference. I am sure the Minister has considered that aspect of the matter. Personally, I am not opposed to the acquisition of land for afforestation but I can see considerable difficulty arising where farmers whose holdings are rendered economic because of their commonage rights have those rights interfered with. That is the feeling of the farmers themselves.

Mr. Blowick

They actually have the right.

Mr. Allen

Each individual commonage owner has a common right over the whole commonage.

Mr. Blowick

That is so.

Mr. Allen

If they are restricted to a particular area, their rights will be interfered with and the commonage will be useless to them. The whole commonage is valuable because they can graze their stock all over the commonage. We all know that herbage on a commonage varies and it is only by having the run of the whole commonage that the owners can benefit. I hope that aspect has been considered. These farmers who approached me have sought legal advice. They are seemingly fortified with information and the Minister may not have quite the easy passage he anticipates. I do not know what the objective of this section is. I do not know what the position is in the West of Ireland. But I do know that in relation to two particular commonages serious difficulty may arise. One man pointed out to me that instead of being able to graze his sheep over 3,000 or 4,000 acres of mountain herbage he would, under this, be confined to 150 acres; that would ruin his farming activities. The majority of those with rights on this commonage would be opposed to selling. I know this would be suitable for planting but I would advise the Minister, before he proceeds to implement the law, to satisfy himself as to the constitutionality of the law.

Mr. Blowick

I have considered this matter and the Deputy is quite right in saying that tenants who want to retain the commonage will be discommoded. While I use the word "discommoded" I want it to be quite clear that their income, so to speak, off the commonage will not be restricted. Their right to run the whole commonage will be restricted.

Mr. Allen

That will restrict their right of value.

Mr. Blowick

I do not agree with that. I shall explain why. I have given this point a good deal of consideration because I come from an area where a huge acreage of mountain land is all commonage. There are several factors which must be taken into consideration.

First and foremost, it is not the Minister or the officials of the Forestry Branch who will determine the portion to be retained by the tenants. It is the lay commissioners guided by a Land Commission inspector, a completely independent authority. The House can rest assured that the average Land Commission inspector is not engaged in forestry operations and, for that reason, I can see him giving a fair and impartial judgment. I can see such an inspector erring on the side of generosity to the tenant rather than to the Forestry Branch.

Mr. Allen

Everything is loaded by the State against the tenant.

Mr. Blowick

That is not so.

Mr. Allen

It must be.

Mr. Blowick

I have gone to extremes to make it quite fair. In case the forestry officials or the Minister might be biassed I have tried to put in every possible safeguard for the tenant. I am Minister for Lands to-night. I may not be Minister for Lands to-morrow. I may not be in the Dáil this time to-morrow night. Who knows? We must make provision for the future. While I would like to treat the tenants fairly myself, nevertheless any Minister who would be in my place, I am afraid, could not be blamed if he erred on the side of the forestry officials.

Mr. Allen

It is the interpretation by the judges of the court of law which matters.

Mr. Blowick

Quite right. Nevertheless, if the Deputy peruses the Bill he will find I have put in as many safeguards as it was humanly possible to insert, and taken as much as possible out of the hands of the Minister so that he could never stand accused of erring on the side of penalising the tenants.

If we examine this whole commonage problem, apart from the question of the objectors, we must also look to the others who are anxious to sell. It is true that each tenant has the right to roam over the whole common, but that right is a saleable entity by the man who owned it and he should have as much right to sell it as he would have to sell his house, his cow, his basket of eggs or anything else.

Mr. Allen

They are joint owners.

Mr. Blowick

I know, but each individual tenant gets a certain proportion out of that commonage. While I have safeguarded those who do not want to sell, we must not pass any law which would give the right to two or three objectors which would prevent 16, 17 or 20 of their neighbours from selling what was their property.

Mr. Allen

They would sell to the other commonage owners.

Mr. Blowick

That would not be free sale. That would be limiting the market very much. If Deputy Allen, myself or anyone else has something to sell, one of the rights of which we are jealous is that we be allowed to sell it to the highest bidder. If some Deputy has a basket of eggs to sell and if there is one shop or one person who will give him 1/- more, he has every right to sell it there. The people who will object in most cases are the two or three fortunate ones who had cash enough, or perhaps had sufficient family help in the house, to stock and look after the stock on the commonage. It was honestly admitted by Deputies from that side of the House —I think Deputy Bartley and some others—that in fact those who were using the common were stealing it from their less fortunate neighbours.

Mr. Allen

The Minister said that himself, not Deputy Bartley.

Mr. Blowick

Perhaps "stealing" in that case is too harsh a word.

Mr. Allen

Deputy Bartley used no such word.

Mr. Blowick

They were appropriating it. Most of the people who are willing to sell their shares are those who cannot because they are financially restricted or have not the family help to look after the stock, and keep the commonage. Those who have stock enough and can look after it are using the common and are appropriating the grass and the grazing of the others. If those people who are paying rent and rates for that commonage want to sell we should give them every chance. Even if the commonage were never intended for forestry, we are doing a decent job of work for those who have commonage rights because up to now they could not sell them. We must remember that it is not the Minister or the forestry people who would decide the portion to be left off. As soon as the Minister applies for an acquisition Order for the whole of the commonage he must give due notice to the Land Commission. They must, again, give due notice to all concerned that the Minister for Lands has applied to the Land Commission for an acquisition Order for the whole of the commonage. Those interested, and those who do not want to sell, have the right to make representation in the prescribed form and can come and state their case before the court. I have not the slightest doubt that the Land Commission will act fairly by them. If they err, they will err on the side of generosity to the tenants. I am not asking them to do that any more than I am asking them to err on the side of generosity to the Department, but I am sure they will do that.

Deputy Derrig raised a point—and I agree with him—in regard to all the legal phraseology that is employed in this section. I asked myself the same question many a time. The Deputy need not blame me for it was not I who drafted the Bill. If I had the drafting of it, it would be much simpler but perhaps it would not hold water in the courts in the same way as it will in its present form.

Deputy Moran raised a point on the Second Reading on paragraph 3, sub-section (1). I examined that very carefully while the Bill was in the drafting stage and there is no other way to do it. How can the value or the compensation for a share in a commonage be determined if it is not related, as Deputy Allen said, to every square inch of the commonage?

Mr. Allen

That damns the Minister's own case for dividing the commonage.

Mr. Blowick

Not in determining the compensation for those who are willing to sell because there will be no compensation paid to those who are getting their share back. The question of compensation can only arise with those who are selling to us. There is no other means of determining the amount of the compensation for their particular share, because it must be over the whole commonage. I quite agree with the wording there and I am sure Deputies will agree that it is correctly worded.

Mr. Finlay

Arising out of the section and what Deputy Allen said, there is a point that should be made clear in regard to the present position apart from this Act, the Forestry Division or any other State Department. If ten people own a commonage one of the ten can get, by a proper proceeding in a court of law, either one-tenth part of the commonage divided separately to him and the others left out, or he can get a sale and have the proceeds of the sale divided. As it works out in practice at present, due to the fact that nearly all the commonage is held from the Land Commission, the situation is that if any two or three people living in the country own a commonage and if they fall out for some reason and one of them wants to insist on his rights to the detriment of his fellow tenants in the common, in effect what happens is that by a rather lengthy and expensive legal proceeding he gets the whole commonage sold and the proceeds, after the deduction of the expenses, divided between himself and his tenant in common.

It is not right to say that this is introducing an element that was never there before. If you have ten people owning an area of land as tenants in common and if seven want to sell seven-tenths of land to the Forestry Division, they can get it partitioned by the court. If they want to be difficult about sub-division under the Land Act, they can get seven-tenths kept out and force the other three men into three-tenths. That could be done whether this Bill was in existence as an Act or not. It seems to me that one of the effects of this Bill is that it insists on the right of a tenant in common to keep portion of his holding, if he wants to, rather than its money value, a right he had not got up to this.

In effect what could have happened before this? Again taking the example, if you had ten persons holding a commonage and, leaving out the Forestry Division, if I wanted to buy it and seven were willing to sell it and the other three were not, what could be done at present by the seven, without the intervention of any Act or Government Department, is that they could go in on what is called partition proceedings. They would get an order for the sale of the commonage by the court. I could go in and buy it in a court sale and the three objectors, the three persons who did not want to sell to me, would be left with no alternative except to take their share of the purchase money and would never get the chance of buying back three-tenths of the land themselves.

It is no harm for people who are tenants in common and who are concerned with this question of commonage to realise that the Bill, as far as I read it, does not give the Department any right to take away the rights of a man as they exist at present. In fact it might be in certain circumstances, and is in many circumstances, an alleviation of the situation of the man who does not want to sell and who is only a tenant in common.

Mr. Allen

It would appear from what Deputy Finlay now tells us that instead of going to the courts and incurring the expense of going to the courts, this short circuits the procedure and is a less expensive way of dividing commonage. But who in this country wants to buy a commonage except the Minister for Lands? I doubt if there is anyone. In some cases, the use of the commonage makes a particular holding at the foothills an economic holding. There is no doubt that the ultimate objective of this section is, where there is a commonage suitable for forestry and where six out of ten opt to sell, to force out the other four.

Mr. Blowick

It is not. That is a statement the Deputy should not make.

Mr. Allen

There is no doubt. It is obvious it may happen.

Mr. Blowick

Indeed, it is not.

Mr. Allen

There may be particular commonages where cutting off a slice and allocating it to the particular commonage owner as an assistance to his existing farm would be quite all right, but there are other poor commonages where, unless they have the run over the whole commonage, it is no good. The people who own commonages in some parts of the country are very particular about their rights as to the number of sheep they would be allowed to keep on the commonage. The sheep are counted each year and the persons concerned are not allowed to keep a sheep more than it is their right to keep.

Mr. Blowick

Can the Deputy name one commonage where that is in force?

Mr. Allen

I can.

Mr. Blowick

Of all the commonages in the West, I can assure the Deputy I do not know one.

Mr. Allen

There are not many—two or three. I have a particular one in mind. I know all the people intimately. They have come to me. They are disturbed. They have gone to the trouble of getting legal opinion about their rights. Every one of them has a small farm of arable land at the foot of the mountain and they represented to me that without the use of the commonage the farms would become absolutely uneconomic. On Second Reading I suggested that a way out would be to provide, where you are taking the commonage, that they would be given other arable land. That may be a way out for some.

However, if the Minister thinks that in enacting this section he will not injure the hope of the Forestry Division of getting more land I am satisfied, but I can tell the Minister that possibly he has not heard the last of the problem. The Minister needs to be careful in passing law that that law will not interfere seriously with certain rights. There is an element of compulsion in this, undoubtedly. As far as those who do not want to sell their rights to a commonage are concerned there is a very big element of compulsion.

Mr. Blowick

I think Deputy Allen must have one particular commonage in mind, which is probably unique.

Mr. Allen

No.

Mr. Blowick

I think he has in mind a commonage in which the people are so bound up that they will not sell.

Mr. Allen

They cannot exist without it.

Mr. Blowick

If that is so and if a majority of them do not offer it to us, the question will not arise. Secondly, suppose the commonage land is held by ten local farmers equally and supposing there are only two not using it and that those two decide to sell, as Deputy Finlay pointed out, they can take their eight neighbours into court and get the commonage put up for sale. What protection then is there for the other eight and where do they stand in that case?

Mr. Allen

It must be the whole commonage that is put up for sale.

Mr. Blowick

That happens with an ordinary farm, business house, workshop or other property. If the husband and wife or the co-owners fall out, one of them can take the place into court and have it sold over the head of the other. That is only just and fair. Presumably the court takes the view that if A wants to sell his right, and B does not, A must get his share out of it and the only way to do it is to put the whole place up for sale and give each half of the proceeds. Deputy Allen is just getting frightened of shadows.

Mr. Allen

I am not a bit frightened. It does not affect me in the least.

Mr. Blowick

I think he has not appreciated the full safeguards in this Bill and the care that I have given to it and that has been given to it by the draftsman and the forestry officials, who have been most fair and impartial. In my opinion we have gone too far in putting in safeguards. Some Deputies, on Second Reading, thought the Bill was useless, that there were so many safeguards it would be completely ineffective. There is a certain amount in their argument. No matter what Deputy Allen says about the particular commonage he has in mind—I presume in Wexford—no injustice will be done to these people.

Take the case of a man who has a farm of land. The Land Commission can walk in there and acquire the whole farm and there is no appeal from their decision to acquire, except on a point of law. In this case, I am not acquiring. What I do is, I ask the commissioners, an independent body, to decide between myself and the objecting tenants as to who is right and who is wrong. I cannot go farther than that. I am bringing in an outside court to decide between us. If I were giving power to the Minister for Lands to acquire on his own order, under his own name and seal, and to take over a commonage, then I would not blame Deputy Allen, perhaps, for hoisting the danger signal but the Deputy need have no doubt whatever in his mind. As a matter of fact, this Bill is much fairer than common law is in regard to ordinary property.

Mr. Bartley

The third aspect of partition arises in connection with this Bill. The original one has been dealt with by Deputy Finlay and in very few cases is it applied, in my experience at any rate, in the West. Another aspect of it was introduced, empowering the Land Commission to partition these commonages. The Minister confirmed on the last occasion that the Land Commission has that power. The difference between that power and the one that is now being given seems to me to be this, that the initiative would be taken, where the Land Commission were concerned in ordinary partition, by the owners of the common. The Forestry Division will be looking for land and it seems to me that now, under this, it is not the owners of the land, but the forestry administrators, who will take the initiative. They will take positive steps to acquire land and, out of these positive steps, the question of partition will arise.

Mr. Blowick

Where is that in the Bill?

Mr. Bartley

I am speaking on the explanations given by the Minister but I may not have interpreted him correctly.

Mr. Blowick

The initiative will come, in the first instance, from the tenants who wish to sell their shares in the commonage.

Mr. Bartley

All right. Then I take it that the forestry officials will not go to any particular commonage and ask the owners if they want to sell. That will not take place.

Mr. Blowick

Perhaps it might in very rare instances. I could understand it taking place where the local forester might get local information that the majority of the holders are willing to sell. In the vast majority of cases the initiative will come from the owners who will want to sell their shares. I believe that under this Bill we will get more land than ever before through voluntary offers.

Mr. Bartley

I take it that the Minister is now saying that the forestry administrators will not go around the country casting their eyes on likely land, finding out who the owners are and then asking the owners if they are willing to sell. Have I an assurance from the Minister that the powers in this Bill will not be operated in that manner? The reason I raise the matter is that I know that in the West of Ireland there are lands which the forestry officials would like to get, lands which they believe would give good timber, but lands the owners of which are satisfied that they produce good sheep. It is not every farmer with a good range of kind hill who is anxious to give it up for any public purpose. In many cases, where they have been offered good land in the Midlands, they still refuse to exchange.

Personally, I would like to see these owners voluntarily giving up this land and taking up equivalent value in land elsewhere so as to let the forestry programme operate. I think the Minister is inclined to take this line himself, but it may be that even his wishes in the matter may be frustrated in the operation of these powers. As I say, partition initiated by the owners is a long-established right. The statutory right to partition given to the Land Commission is one of more recent operation and I take it that it is used in the settlment of disputes. This third partition does seem to me to go a little further. Take the case of a commonage that is reported to the Forestry Division. The officials come along and they find that there is not unanimous agreement on the part of the owners to sell the entire place. At that stage, I understand, the Land Commission will be asked to come and do the necessary partitioning. As I understand it, the process of acquisition applies to the whole commonage and then the objectors can come in with their objection by way of representation.

Mr. Blowick

At that time the whole of the commonage has not been acquired. The Minister makes an application for the acquisition of the whole of the commonage but he does not get it then. It is only then that the tenants must be notified to give them a chance to say to the Minister: "You cannot acquire the whole commonage."

Mr. Bartley

In the operation and practice of these powers it will amount to the same thing. The official authority comes along and seeks to acquire the whole commonage. Those who do not wish to sell are told to make representations so that they can preserve their shares. That action is put in motion by the positive action of the official authority and the objecting owners have to then acquaint themselves with their position under the law. They will have to take positive action and to that extent there is a change in these proposals to partition commonage.

There may be people who are perfectly happy in the ownership of their commonage and the user to which they put it but who are not sufficiently well up to protect their own rights and interests. I would not advert to the fact at all except that I fear that the Forestry Division will fly, as fast as they can, by the type of land to which I referred a fortnight ago. They have been asked several times to see what they can do about land that is described as of lesser quality. I believe that they will set their eyes on the better quality land in some parts of the West which they have failed to get by the common consent of the owners. I feel it is necessary to express in the House, during the passage of this Bill, the viewpoint of those who may well turn out to be a minority of all these common holders. They have rights and I think these rights are entitled to some appreciation here in Dáil Éireann when we are considering a Bill which very intimately affects their interests.

I do not want to go back on what I said about the other class of land but I hope that the powers in this section will be utilised to acquire this land of lesser quality such as cut-away bog. There will not be the same difficulty as I have spoken about in respect of that type of land. I fear that the Forestry Division will not be enthusiastic about it because I know that the cost of development will be relatively high. If one is to take into consideration the social aspect of this question about which the Minister has spoken, then I think the expenditure of such money under the Forestry Vote could well be justified particularly in view of the fact that it will help to stem emigration and keep at home in these areas, during the planting season, men who would go off to England in the off period of other work at home. I am not going to develop that argument any further but I hope the Minister's assurances in regard to objectors are assurances that these objectors can rely upon.

Mr. Blowick

Deputy Bartley I think is seeing ghosts where there are none.

Mr. Bartley

I certainly hope so.

Mr. Blowick

I think he is afraid that the officers of the Forestry Division, the foresters, will go round the country putting their eyes on every kind mountain they come across. Supposing that the worst came to the worst in that regard, supposing the forester does the worst he can do, he can only go to the commonage owners and say: "Will you sell me that piece of mountain?"

Mr. Bartley

The Minister does not have to go into that again. I have accepted his statement on that.

Mr. Blowick

I am only allaying the Deputy's fears. There is no preventive section in the Bill stopping the foresters from acting as I have suggested but what can they do more than to ask the commonage owners if they will sell their shares in a particular mountain? Each commonage owner has a pretty well screwed head on his shoulders and if he does not want to sell all he has to do is say "no". If he wants to sell what about it? I can assure the Deputy that none of these commonage owners will go into a jitter of nerves because a forester calls. If the commonage owner is making a good profit out of his piece of mountain, if it forms part of his economy, he will refuse to sell. In case the Deputy might think otherwise, it is not the intention to send the foresters out. I believe myself that because of this Bill there will be no need for that.

What is happening is that there are small handfuls of commonage owners who are enjoying all the profits of particular commonages and whose neighbours, with shares in the commonage, enjoy none of the advantages although they bear their share of the rent and other expenses. Some of the latter class might be living too distant from the commonage or they might be people with grown families whose work is restricted to the bit of land around their house and who do not bother about the commonage. Some of these people might want to sell and I think it would be a cruel injustice to prevent them from selling what is their property. Deputy Finlay raised the point before Deputy Bartley came in and in case Deputy Bartley did not hear him I should like to repeat what he said. He said that under the existing law if there are, say, ten people who own a commonage and if eight are using the commonage and not prepared to sell, the other two who are not using it and are prepared to sell can take the other eight into court and have the whole commonage sold and the proceeds divided among the ten.

Mr. Allen

I do not think he said that.

Mr. Blowick

That is the position.

Mr. Bartley

I think he said the majority could sell. However, that has no application here.

Mr. Blowick

I know of a case in my own immediate locality where a husband and wife had a disagreement. The holding was in the joint ownership and it came before the Circuit Court which had no option but to order the sale of the holding and give each of them half of the proceeds minus the expenses.

Mr. Allen

That was a case between the husband and wife. It was between themselves.

Mr. Blowick

And the case of the commonage owners would be between themselves.

Mr. Allen

No.

Mr. Blowick

Indeed it would be. I think the two Deputies are getting frightened of things that will never occur. The Deputies may come in here later on and grumble that the Bill did not go far enough. The Land Commission has a duty in the partition of commonages as in the case of subdivision of holdings to see that the economy of the holding is not interfered with and the Land Commission being a court, a separate body, I think we can rely on them to look after the position.

Mr. Allen

The approach to this section from beginning to end is to call the man who does not want to sell an "objector". I think a better name could have been found because "objector" implies that the person concerned is not in good standing with somebody else.

Mr. Blowick

I do not think the word "objector" is used in the Bill.

Mr. Allen

It is used right through the section. What I should like to know is if objectors have the same right as a land holder has; has he the same right to go to the court and oppose the original acquisition?

Mr. Blowick

Certainly, he has under this Bill.

Mr. Allen

He has not got it in this section.

Mr. Blowick

He has.

Mr. Allen

He has not got the same right as I, as a farmer, have or as the Minister, as a farmer, has of going to the Judicial Commission.

Mr. Blowick

The Deputy has no right of appeal from the decision of the Land Commission.

Mr. Allen

Surely I have the right of appeal to the Judicial Commission?

Mr. Blowick

Which deals only with price.

Mr. Allen

Is there not the sub-court?

Mr. Finlay

You can go to the lay commissioners.

Mr. Allen

The lay commissioners decide whether my farm can be acquired. Who decides whether a commonage can be acquired or not?

Mr. Blowick

The lay commissioners.

Mr. Allen

Would it not be far better if it were approached on the basis that there would be an application in the first instance to the lay commissioners for the acquisition of commonage?

Mr. Blowick

What would be the purpose of that?

Mr. Allen

The law as it stands, as referred to by Deputy Finlay, provides for a court order for the sale of a whole commonage. If I want my rights in a commonage sold I can apply to the courts but the other nine people will have a right to buy back the commonage including my portion.

Mr. Blowick

They may not be able.

Mr. Allen

If the Minister or the Land Commission acquired portion of the commonage the remaining owners of the commonage will not have the right to purchase the portion acquired.

Mr. Finlay

In an ordinary case the ordinary owner will not get permission from the court to bid for the commonage.

Mr. Blowick

That is right; that is a point.

Mr. Allen

Someone on their behalf can.

Mr. Finlay

Not with the knowledge of the court.

Mr. Allen

I know they are not given that right but there are ways and means of doing it and the Deputy knows that as well as I do. Under the existing law, the whole commonage is still undivided but under the law as proposed by the Minister the commonage will no longer be undivided commonage. Is not that so? I suggest that the Minister at a later stage should make provision in law for an application to be made on behalf of the Minister or the Forestry Division to the lay commissioners as to whether a particular commonage or any portion of it should be acquired or not. That divided that will solve the problem and would be a much more just approach. If, having heard all the evidence, they decide it should be acquired or subdivided that will solve the problem and there will be no difficulty afterwards because of the people who, in the language of the Bill, would be called objectors. This House should provide that the rights of people who hold land or commonage should not be unduly affected by measures of this House.

Mr. Blowick

Deputy Allen raises the point that the Minister should make application to the lay commissioners on whether a commonage should be acquired or not——

Mr. Allen

And divided.

Mr. Blowick

All right. Is not that precisely what I am doing?

Mr. Allen

No.

Mr. Blowick

Oh yes. Perhaps if I take the Deputy over the machinery proposed in this Bill, I might help to clear his mind on some of the doubts which he has. In the first instance, disregarding where the initiative comes from—it will come from the majority of the tenants who are willing to sell their shares—the first positive step is that the Minister applies to the commissioners for an acquisition order for the whole of the commonage. That raises the question with the commissioners at once of whether what the Minister wants will be given to him, whether the whole, or part, or none of the commonage will be given to him. Under this Bill the lay commissioners have power to reject the Minister's application for acquisition entirely.

Mr. Allen

Or whether the commonage should be subdivided?

Mr. Blowick

If they say it should not be divided, do they not reject the Minister's application for an acquisition order. Does not that satisfy the Deputy?

Mr. Allen

If that is so, I am quite satisfied.

Mr. Bartley

In the working out of these powers would it not be far better if the initiative were taken by those of the owners who are prepared to sell? The Minister has stated an application will be made for acquisition by the official authority and that is the element in it that I do not like, and as I tried to point out, has some danger in it. Where is the use in making a comparison between the ordinary partition application by the owners themselves? That is a matter of their own doing and they have their own good reasons for it, but here, even in the light of the powers given to the lay commissioners, the official authority steps in. If some of the owners came along to the Forestry Division and said: "We are prepared to sell our shares" and that then the official machine were put into operation I think it would not be quite so dangerous. But where small owners find themselves up against a huge Government machine like the Department of Lands there is an element of intimidation in it and the Minister must admit that.

Mr. Blowick

No, there is no element of intimidation in it.

Mr. Bartley

It is not meant to be in it, but it will end in that.

Mr. Blowick

No, because the objectors have full legal machinery to come into court, and the day that they walk into court before the lay commissioners they will have the same status and standing as the Minister on the other side.

Mr. Bartley

Would the Minister admit one thing—that there would be no necessity to go into court if it were not for the official action?

Mr. Blowick

No, I do not agree with that and I do not think it would be right to allow that statement to go on the records of the House unchallenged. The initiative comes from the tenants who are willing to sell what is their property. I am afraid the effect of Deputy Bartley's suggestion would be—I know he does not mean it that way—to give the right to a few of the smaller tenants perhaps who are enjoying a holding of commonage to prevent their neighbours from selling what is justly theirs.

Mr. Bartley

I explained my attitude on that a fortnight ago and the Minister should not misrepresent me.

Mr. Blowick

If I am misrepresenting the Deputy I take it back, but what I want to point out is the effect of what the Deputy suggested. I took all that into account in framing the Bill. When I tell the Deputy that this Bill has been between myself and the draftsman and the Chief State Solicitor for just 12 months now I think he will realise I have given it a good deal of thought. It was not a case of just jotting down something and shoving it in before the House. In fact, Deputy MacBride and some others blamed me for not coming in earlier. I had, in fact, hoped to have the Bill circulated before the summer recess. I have given a good deal of thought to the matter and I can assure the Deputy that no injustice will arise out of this. I know Deputies Allen and Bartley are pressing the claim of those who do not wish to sell their shares. I have taken that into account. I admit they will be discommoded somewhat but they will not be wronged by one penny.

Another point that has been lost sight of is this. Deputy Bartley knows as well as myself what a cheerless, barren and inhospitable place a mountain commonage is. These people who do not sell will have their shares cut off and segregated and we should not forget that they will have a forest fence along one side or possibly two sides of their holdings so that in the course of a few years they will have the shelter of the forest which will immensely enhance the value of the portion of land retained from the points of view of shelter and better grass-bearing potential.

Mr. Bartley

We accept all that.

Mr. Blowick

I think if I have made any mistake in this Bill it is that I have gone to too much trouble to safeguard the rights of objectors, and I imagine that they will come out better than those who are selling their property in the long run. Deputy Bartley drew my attention to something said earlier to the effect that it was the intention of the Bill to force objectors to sell ultimately. I believe it will work out the other way. I believe that the land retained will be so much enhanced and improved and sheltered by the presence of the forest on one or two sides that the holders of that land will ultimately be better off than their neighbours who decide to sell.

Question put and agreed to.

Sections 5, 6 and 7 and the Schedule agreed to.

Bill reported with amendment.

Report Stage ordered for Thursday, 15th December, 1955.