Minerals Development Bill, 1978: Second Stage.

I move: "That the Bill be now read a Second Time."

The purpose of the Bill is to make more effective provision for the development in the national interest of the mineral resources of the State.

Briefly, the Bill provides for:

—the vesting in the Minister for Industry, Commerce and Energy of the exclusive right of working minerals,

—the granting by the Minister of a lease or licence to any person giving that person the exclusive right to work minerals in respect of which rights are vested in the Minister,

—the payment of compensation to persons entitled to any estate or interest in the minerals the mining rights of which are vested in the Minister and

—the making of certain amendments to the Minerals Development Act, 1940 which experience has shown to be desirable as well as a number of repeals in consequence of proposals in the Bill.

Rights to work mines and minerals being lawfully worked or being planned for working at the date of the initiation of the Bill in the Dáil, that is, 15 December 1978, are specifically excepted from vesting in the Minister on the passing of the Act. Other exclusions from the scope of the Bill are stone, gravel, sand or clay, and petroleum as defined in the Petroleum and Other Minerals Development Act, 1960.

Basically, the reason for this Bill is that the provisions in the Minerals Development Act, 1940 for the compulsory acquisition of unworked privately-owned minerals are of uncertain legal validity and can no longer be operated with safety. The House is generally aware of the background to this circumstance. Briefly, what happened was that in 1970 the discovery of a significant lead/zinc deposit in a prospecting licence area at Nevinstown, County Meath, was announced. Subsequently, detailed investigations showed that the deposit extended to other townlands and as ownership of the minerals in the area was mixed, including those at Nevinstown which were privately-owned, the then Minister made a Minerals Acquisition Order on 15 March 1971 covering all unworked minerals except, of course, State minerals in the area concerned. Some few days after the making of the order a third party effected purchase of the surface lands and mineral rights of a farm at Nevinstown within the area of the then known deposit and challenged in the High Court the validity of the acquisition order and the constitutionality of the 1940 Act.

In a reserved judgement delivered in April 1973 the President of the High Court held that the order was invalid. The then Minister, my immediate predecessor, appealed the High Court's decision but the Supreme Court in a reserved judgement delivered in March 1974 upheld the decision of the High Court.

The grounds in both cases were that the order did not specify with reasonable particularity the nature, situation and extent of the minerals being acquired, which the court held was required under section 14 of the Minerals Development Act, 1940 under which the order was made. In the circumstances, the court found it unnecessary to rule on other grounds on which the acquisition order had been challenged including whether in section 14—which makes no reference to the giving of prior notice by the Minister—there is an implied obligation arising from the requirements of natural justice that such notice be given, the constitutionality of the acquisition provisions under that section and of the provisions for compensation.

Subsequent advice by counsel, however, was to the effect that the acquisition provisions of section 14 of the 1940 Act, if applied in future, would almost certainly be challenged on grounds of validity and again raise the question of the constitutional validity of the Act. Accordingly, it is now the position that there are no effective means readily available to secure the development of unworked minerals in private ownership in appropriate cases.

It is desirable in the national interest to ensure that companies doing exploration work here should have reasonable assurance that, if they discover a deposit and produce development plans which are acceptable to the State and other appropriate authorities, they will not be prevented from proceeding with those plans because of legal problems on the ownership issue. It will be appreciated that any effective remedy to the existing situation must of necessity affect the rights of ownership of property. It has been necessary to seek an equitable and acceptable way of dealing with this difficult problem and for that reason the Bill has not been an easy one to prepare.

The Constitution acknowledges the right to private ownership and prohibits any law attempting to abolish this right. It also provides that the exercise of this right ought to be regulated by the principles of social justice and that the State may, as occasion requires, delimit by law the exercise of these rights with a view to reconciling their exercise with the exigencies of the common good.

Thus, the solution proposed in the Bill is to vest the exclusive right of working minerals in the Minister. I am satisfied that the vesting proposal comes within what might be called the Constitutional dispensation to which I have referred and from the economic and practical point of view the exigencies of the common good require, or at least justify, control by the State of all unworked minerals in the State in the manner provided in the Bill.

The memorandum circulated with the Bills explains its purpose and that of the various provisions. Accordingly, in dealing with it now I intend to concentrate only on the principal features of the Bill.

Part I of the Bill deals with matters of a preliminary and general nature. The Bill, when enacted, will be construed with the Minerals Development Acts, 1940 and 1960, which constitute our basic mining laws. Section 4 provides for a change in the composition of the Mining Board by requiring that henceforth both ordinary members shall be property arbitrators. Under the existing legislation one of the ordinary members is an officer of the Minister. In view of the changes being made by the Bill, and in particular changes in the role of the board, it is important that the board should be seen to be an independent body.

Section 6 provides that the interest of persons under disability or unascertained will be represented in proceedings before the Mining Board or the court. In the context of the problems associated with the determination of title to minerals ownership and of tracing owners a provision of this nature is seen as highly desirable.

Section 7 provides for the appointment of assessors to assist the court in any proceedings under the Bill. This will enable the court to have technical advice readily available to it throughout the proceedings.

Section 11 provides for repeals. The repeal of section 70 of the 1940 Act ensures that an aggrieved party will have a right of appeal to the High Court on a question of fact as well as of law. In the main, the other repeals listed in the Schedule to the Bill are as a consequence of proposals in the Bill.

Part II of the Bill contains provisions for the vesting of the exclusive right of working minerals in the Minister, subject to a number of exceptions under section 13 which I detailed at the outset, namely, minerals being lawfully worked or where they are planned for working on the date of the initiation of the Bill in Dáil Éireann, which was 15 December 1978. The Bill specifies the process by which exceptions on these grounds can be formally registered with the Mining Board. Other exclusions from the scope of the Bill are stone, gravel, sand or clay, and petroleum as defined in the Petroleum and Other Minerals Development Act, 1960.

Section 15 empowers the Minister to apply to the Mining Board to have the registration of minerals as excepted minerals cancelled where it appears to him that they are not being worked. Again, as in the case of section 14, the ultimate jurisdiction of the superior courts is preserved and there is provision for the serving of notice by the Mining Board on such persons as may appear to the board to have an interest in the proceedings.

Section 16 empowers the Minister to grant a licence to any person to work State minerals, which by definition include exclusive mining rights vested in the Minister under the Bill. The Minister already has the power to grant a lease in respect of State minerals under Part IV of the 1940 Act. Subsection (2) of the section is a drafting clarification of the term "demise". Part IV of the 1940 Act refers to a demise of State minerals. The term "State minerals" includes, as I have already said, exclusive mining rights over minerals as well as minerals in full State ownership. The purpose of the subsection is to make it abundantly clear that a "demise" of minerals includes the grant by lease of a mining right and to remove any verbal ambiguity. In future cases, therefore, the Minister will have power to grant either a lease or a licence to enable minerals to be worked, depending on whatever instrument is most appropriate to the particular case.

It is also provided in this section that the Minister, with the concurrence of the Minister for Finance, may take a participating interest in the working of the minerals and that he may so provide in the conditions attaching to a lease or licence. This is an enabling provision designed to ensure that the Minister would be in a position to specify State participation as a condition of a lease or licence. It is not necessary, nor do I think it is desirable, to attempt to formulate the precise policy lines which would apply to State participation. The State has the duty, in the national interest to ensure that a reasonable and equitable share of the profits from the development of a deposit accrues to the Exchequer.

Furthermore the State must, again in the national interest, have the power to ensure that the development plans are drawn up and implemented in an optimum way. The extent, if any, to which participation by the State may be desirable for the purpose of achieving one or both of these objectives cannot be determined on a theoretical basis but on the basis of the circumstances peculiar to each individual deposit of minerals.

Section 17 provides for the giving of prior notice by the Minister where he proposes to work minerals or to grant, or give an undertaking to grant, a lease or licence to work them. It is also provided in this section that, as far as practicable, individual notice would be given to persons who appear to the Minister to have an estate or interest in the minerals and that such persons will be given a reasonable opportunity of making representations to the Minister in the matter. Similarly, it is provided that the Minister may refer the representations to the Mining Board and, indeed, must do so where the person making the representations so requires by application to the Minister. The board's consideration of the representations will take the form of an inquiry.

Section 18 provides for the publication of a notice by the Minister where he commences to work or grants a lease or a licence to work any minerals which are State minerals by virtue of this Bill. The object is to alert those entitled to any estate or interest in the minerals to these facts. Compensation claims will be indicative of title and at this point the pattern of ownership will begin to emerge. As in the case of notices under section 17, there is also provision here for individual notices to persons who have claimed to be entitled to any estate or interest in the minerals.

Part III deals exclusively with the arrangements for compensating those with title to minerals the mining rights of which are vested in the Minister under the Bill.

Section 19 establishes the right to compensation of every person with title to the minerals immediately preceding the date of the enactment of the Bill. It is envisaged that the compensation will, in the normal way, be related to the commercial potential of the minerals, and will accrue as and when the minerals are being developed.

Section 20 states that compensation will be paid by the Minister. This is in line with the position in the 1940 Act relating to compensation for State acquired minerals. There will be no change in the existing procedure whereby the Minister will recoup compensation payments from the lessee of the minerals.

It is provided in section 21 that in default of agreement any question arising as to the entitlement of any person to compensation or as to the amount will be settled by the Mining Board. It is also provided in this section that where the Minister, or the claimant for compensation, is dissatisfied with the board's findings there will be a right to apply to the court to settle the matter. There is also provision for the revision of an award in the event of a change in circumstances not foreseen at the time of the original award. I think the reasons for this provision are obvious and further elaboration is hardly necessary.

Section 22 states the basis for the assessment of compensation, which is to be fair and reasonable having regard to all the circumstances of the case. Though the section does not place any restriction on the form the compensation should take, it indicates however what would be the usual basis of a compensation award of this kind, namely, that it would be based on such proportion of the net profits arising in consequence of the working of the minerals as is attributable to the minerals as they existed in their natural condition prior to such working.

Essentially, this would take account of the pre-extraction value of the minerals in terms of their contribution to the mining operation. It is further provided that where it appears to the Mining Board or the court that compensation in the form of periodical payments would not of itself be appropriate, then the board or the court may, in their discretion, award compensation in the form of a lump sum payment or partly in that form and partly in the form of periodical payments.

The scheme of compensation has had to be designed to ensure, on the one hand, that awards will not be such as to frustrate economic mining and, on the other hand, that the owner will receive reasonable and equitable compensation for his minerals. I am satisfied that the proposals in the Bill make adequate provision for the achievement of these very essential objectives.

I believe that the proposals in this Bill will substantially eliminate the difficulties which have arisen with regard to minerals development. It should enable the State and the mining companies to deal with this in a practical way and in a manner which is equitable for people who have clear title to mineral rights. However, technically, it will not settle the rather complicated position of ownership of mineral rights. As Deputies will be aware, the legal position is that some mineral rights are clearly owned by the State, some can be legally established as in private ownership, and there is a grey area where ownership cannot be established in a definitive way.

In an earlier draft of the Bill I had set out to secure clarification of this position by a process of compulsory registration of title. The scheme I had in mind was that the area of a minerals deposit would be designated as one in respect of which the mineral rights would have to be registered. Persons claiming to own mineral rights in the area would be given a period of time within which to secure registration of their title and an appeals procedure was provided for. These proposals envisaged that, when the period for registration had expired and subject to the results of any consequential appeals, all minerals in the area which had not been registered as privately-owned minerals would automatically become the property of the State. These proposals were considered by a number of legal experts and the consensus of their opinions was that such a scheme would present very considerable difficulties. It became clear that if it were to incorporate the safeguards necessary to overcome these difficulties then the improvement on the existing situation would, if any, be marginal.

I must, of course, accept the views of these legal experts and, for that reason, I decided not to include anything in the Bill dealing with this particular matter. I should, however, say that I have not abandoned the idea that some further improvement in this direction may be possible and I intend to have the position considered. While the proposals which I had in mind, or some modification of them, would be a desirable supplement to the provisions of the existing Bill, they are not by any means as important to a resolution of the existing problems as are the provisions of the Bill. For that reason I felt it was desirable to press ahead with the Bill as now drafted because I am satisfied that it will provide substantial resolution of the difficulties which have existed since the court proceedings to which I have referred.

The Bill is, therefore, an important measure. It is largely also a technical measure and it does not provide for, or envisage, any major departure from the existing policy in promotion of minerals exploration and development. It will continue to be my policy to encourage the widest possible spread of exploration by mining interests and to create a climate where there can be confidence in the future of mining in this country. The provisions of the Bill are important in this respect.

There have been calls from certain quarters that the State should adopt a more active role in minerals exploration and development. It is legitimate to express such views, but the proposition needs to be critically considered.

Although I have not reached firm conclusions on this issue, I believe that such a critical examination might identify an appropriate role for the State in this area. In so far as exploration is concerned, there is, for obvious reasons, a substantial identity of interests between the State and private mining interests. Though this identity of interests is very substantial it is not total and, for this reason, I would not, at least without considerable further examination, rule out the possibility that the State would have a role in relation to exploration. I would not at this stage rule out the possibility of involvement by a State body at the development stage also but, here again, I am satisfied that this possibility needs a good deal of further study.

These ideas are at present at a somewhat embryonic stage, because I attached first priority to preparation of the measures contained in the present Bill. I mention the question of a possible State role because, whatever views one may take about it, I think most of us would agree that it would be unrealistic, and in my view undesirable, to link the problems which this Bill seeks to resolve with ideas about the role of the State in the minerals sector. I might add that the resolution of the ownership problem is important no matter what role is adopted by the State in exploring for and developing mineral resources. It is important not only in the overall national interest but also in the interest of individual owners of minerals since the very existence of these minerals may never come to the light of day unless a suitable regime for the carrying out of exploration work can be established.

I commend this Bill to the House as a measure to substantially resolve the difficulties which have arisen in relation to minerals ownership and to act as an incentive towards continuing and committed involvement by mining interests in exploration and development of our mineral resources.

The party for which I am speaking would agree very willingly with the Minister that the general objective of this Bill is very desirable. We would agree with him also that the exigencies of the common good must require that the situation of ownership in regard to minerals be clarified because otherwise the exploration of these minerals and all the national advantages of such exploitation cannot be availed of. Therefore, there is not any issue arising between us on the general objective of the Bill and on the considerations that have inspired it.

I note that the Minister has built into the Long Title expressions which come from that Article of the Constitution which permits the State to delimit in order to reconcile the rights of such property with the exigencies of the common good. I agree that this is a matter which requires some regulation by the State. It is very important that it be wholly within the terms of Article 43, but merely to recite in the Long Title that this is the purpose of the Bill is not ensuring that a court will come to the same conclusion later. A court may perhaps look at the Long Title but may not necessarily be governed by what the Oireachtas expresses itself as doing. The court will consider the substance of what is being done.

The object of the Bill and the problems behind it are ones with which this party have every sympathy. We will not oppose the Bill and we wish it every success. However, since the matter is so difficult legally it might be wise for me to express some reservations I have as to whether the Minister is proceeding in the right way. It is not my wish to raise any form of alarm about the Bill; what I intend saying will be something in the nature of submissions by counsel in an Article 26 reference. In other words, I am trying to put to the Minister the considerations that he may be faced with later in litigation. It is well to make the remarks at this stage so that the Minister may think about them during the remaining Stages of the Bill.

The problem the Minister is trying to resolve arises from two factors, both of which are related. One of these is the very uncertain ownership situation to which the Minister referred in his speech and which is complicated by the impossibility very often of discovering who is the person to whom mineral rights in respect of a particular piece of land belong, that is, if such rights exist. In other words, the uncertainty is at two levels. Even if the same piece of land has been in single ownership it may be uncertain whether the title includes rights to minerals. In addition, where the title to the land and the potential title to the minerals rest in two different people it may be impossible to discover who is the person with the potential mineral rights. That person may have gone to Australia or, as is likely, he may be dead and his representatives may be undiscoverable. Consequently, as the Minister says, the situation is very difficult and uncertain. An easy way out, and this is the second consideration, is to employ modes of compulsory acquisition, to employ a compulsory acquisition technique. That would resolve the problem regardless of who was the owner because if the land is vested in the Minister the question of original entitlement arises only in a secondary way.

The Minister and his predecessors operated for a long time by means of compulsory acquisition in accordance with the 1940 Act but in the early part of this decade they were confronted with a challenge that was partly constitutional and was partly based on ordinary administrative principles. That challenge had the effect of invalidating a series of compulsory acquisition orders that had been made in respect of land at Navan.

Though the Minister opposite is not responsible for this feature, I trust he will take this opportunity of impressing on his colleague, the Minister for Justice, that the decision in the cases ofRandles and Roche v. the Minister for Industry and Commerce will be three years old next month but is not yet in print in the Irish Reports. The other day I had to mention in connection with the McL. v. an Bord Uchtála case that that case is not yet in the Irish Reports. It is fantastic that a State like ours, which diligently and sedulously reports within a week the most vapid vapouring of a Deputy of this House, be it the Minister, Deputy Desmond, myself or any other, whereby unconsidered trifles are diligently written down, set in type and distributed to the world within seven days, the considered judgment of the Supreme Court in a matter that is so important that it could cause a constitutional amendment, as was the case seven days ago in this House, or a Bill to regulate minerals ownership is not in print three years later.

Five years, if I am not mistaken. It was 1974, the year of the crash.

I am sorry, five years ago. The McL case is three years old. It must be humiliating for the Minister and his Department that, when mining experts who come from far fields are given a brief, brochure or nosegay of documents relating to the problems they will find, it will contain two photocopies of photocopies of photocopies of judgements, now five years old, barely legible in places. From my experience that is the form these things take. It is a shameful situation. It should not be above the resources even of a relatively poor State like ours to put real money into law reporting so that people will know what the law is.

I mentioned in the House last week, in relation to a constitutional amendment the necessity for which was thought to arise from implications or hints that were dropped in the case ofMcL v. An Bord Uchtála, that that case, even in the form of a photocopy of a photocopy of a photocopy, was not available in the House or in the Library. I had to ask the Library to get it from the State Solicitor's office, although the House was solemnly in conclave debating, not an ordinary Bill but a constitutional amendment to put right matters, because the McL judgement had shown it to be potentially fragile for constitutional reasons. I am sure the Minister will take that point. It is funny that it should arise so conspicuously twice within a week.

It would have been open to the Minister, in trying to resolve the difficulties which arose from theRoche judgments, coupled with the difficulties in regard to uncertainty of title, to go in for wholesale acquisition and vesting of a kind comparable with the vesting which the Land Acts effected. He would, of course, have then been up against the possible problem of justifying the wholesale takeover of whatever minerals were in the State that were not owned by the State. He might have been called upon to justify that measure on constitutional grounds before the courts.

I understand the uncertainty with which his legal advisers were faced. If one compares the Fundamental Rights Articles in the Constitution with the continents known in the nineteenth century, just as Africa was then the dark continent, it can fairly be said that Article 43 is the dark article in the Constitution. Nobody knows quite what it means. It has never been explored. Phrases from it are copied straight out of papal encyclicals of Pius XI; yet one constitutional expert from another country has said that it resembles provisions in the Constitution of Yugoslavia. We do not know what it means. We do not know whether it is entrenching private property on the one hand, or giving acarte blanche to the State on the other. Either meaning can be extracted from the very de Valera-esque formulations which its four sections contain. Perhaps it was intended to be so. It would not surprise me.

The situation is that, although there have been half a dozen cases since 1937 in which Article 43 was material, no counsel in the State could tell the Minister where he stands in regard to compulsory acquisition. There have been dicta to the effect that there is nothing in the Constitution to prevent the divestment of a piece of individual property. I cannot believe that the Constitution would be interpreted as forbidding such a thing. It is thin, unexplored ice and the Minister could give himself a lot of trouble and cause a lot of holdups to economic and mining development if he was to produce a Bill which, when enacted, was shot down. He could cause himself and others severe financial loss and delay. It is uncertain what would happen, but it is conceivable that a wholesale acquisition of mining rights by the State, which is not what the Minister is aiming at, might be constitutionally insecure. The Minister may have been wise to keep away from it.

When this Article comes to be construed more closely the courts may say: "(1) We do not accept that the Oireachtas should be the sole judge of the common good. We believe that the courts must have some role in saying what the common good requires. (2) That role, while it must allow a freeranging discretion to the Oireachtas, should be discharged by means of simple criteria. (3) One such criterion is that we should be allowed to ask has the State, in delimiting private property rights so as to reconcile them with the exigencies of the common good, done more than was necessary? Has it used too drastic a weapon to achieve this reconciliation? Would something less have sufficed to save the common good and still rescue something of private property rights?" These would be working criteria and would not be too far away from the criteria the courts apply in other settings.

I do not know if anybody has anticipated me in this by way of a written opinion to the Minister, but it is perfectly conceivable that the High Court or the Supreme Court might, in years to come, when considering under Article 43 the constitutionality of an acquisition measure such as a measure to acquire mining rights, approach it along these lines: "Is this measure absolutely necessary in its full extent or would something a little more modest have done? If so, the measure isultra vires the Oireachtas because it goes beyond what the Constitution permits the Oireachtas to do. If, on the other hand, the Oireachtas has reasonable grounds for thinking that nothing less than this measure would serve the common good, then we will let it go. If it is clear that something less would have done and that something might have been rescued for the sphere of private property rights, then we will invalidate the Act.” That is not an impossible line that the courts might adopt.

Instead of an outright system of acquisition in which the minerals as such would have vested in the Minister, he has chosen the route of vesting in himself the right to "work" the minerals. The definition section states:

"working" in relation to minerals, includes digging, searching for, mining, getting, raising, taking, carrying away, treating and converting such minerals and the sale or other disposal of such minerals and cognate words shall be construed accordingly.

I realise that the object of the Minister's advisers is to leave him with an Act which will not exhibit him as expropriating anybody. He is only giving himself a right to do something, stopping short of total expropriation. But if one subtracts from the full right of owning minerals the right of working them, as defined in the Bill, what is left? Is anything left? Minerals are not something which any other material or immaterial good can be extracted from unless they are worked. One cannot enjoy the view of minerals. They do not provide any amenity in life except for what can be got out of the working of them.

Although I sympathise with the Minister's anxiety to stop short of expropriation I do not think he has succeeded in doing so. If it had been some other form of property and he was giving himself an exclusive right in regard to some function of that property that might be visibly less than expropriation but where the right he is giving himself is the right to get the stuff and to sell it, or to dispose of it in some other way that may suit him, what is left of the right of the man sitting on top of the land? What is left of the right of the man who, nominally, is the owner? Has he any right in regard to the minerals, except the right to be compensated, and would he not have had that same right if the Minister had produced a complete system of acquisition? I hope I am getting this point across. Once the Minister gives himself this right, I do not see that anything palpable is left under this Bill other than the right to compensation, and that is a right that the owner, in the ordinary course of events, would have been given even if the Bill proposed to vest in the Minister not only the right to work the minerals but the actual ownership of the minerals.

After all, what is ownership? Essentially, it is the right to use the object in any way one likes. There are many objects that one can use in a variety of ways and the State may be interested only in one or two of them. For instance, the State is not interested whether I use my car exclusively for my holidays or for business or even if I leave it in my yard and put chickens in it. The State is only interested in a limited number of things: for instance, that I insure myself if I drive the car, that I pay a registration fee and also that I obey certain traffic regulations. Otherwise I can do as I like with the car. I can strip it down and rebuild it twice a day for all the State cares. In other words, there are dimensions to my ownership of a motor car with which the State does not purport to interfere or control. I am not saying this in a hostile or contentious spirit, but I should like to know what is left of the dimensions of ownership in minerals once the Minister has given himself this right to work them, as understood in the definitions sections.

I may be wrong about this, and I should be glad to know the views of the Minister; but if he is aiming at a Bill that will not amount to expropriation or transferring ownership to himself, I do not think this Bill has succeeded in that object. The exclusive right of working minerals as defined in the Bill represents an intrusion on private property rights just as severe as a total acquisition of the property.

There are a few subordinate objections to the provisions in the Bill. Perhaps they do not go to the heart of the Bill but nevertheless I should like to mention them at this stage. It appears to me that the notices mentioned in sections 17 and 18 do not go far enough. I know the argument that if you fall over backwards and do too much in regard to giving notice or precautions of this kind the Bill may be worthless, or to use the Minister's own words, "the Bill might be only a marginal improvement". However, I do not think the question of notice is treated adequately in sections 17 and 18. We must not forget that here the Minister is proposing to work minerals that are State minerals or to give an undertaking under section 13 of the 1940 Act to work any such minerals or to grant any such lease or licence, otherwise than in pursuance of such an undertaking. It is also proposed that the Minister shall publish in two successive weeks inIris Oifigiúil and in at least one national daily paper notices that will put on their guard people who may be affected.

So far as the Minister is aiming to give notice that will amount to a respect for constitutional or natural justice, we can rule outIris Oifigiúil straightaway. That will not satisfy any requirement of natural or constitutional justice. There is an authority for this in a case decided by the old Supreme Court in 1935. It is the case of the Estate of the Earl of Mountcharles; Minister for Industry and Commerce v. Sweeney, 1935. Irish Reports, page 163. Oddly enough, this case also arose out of a Minerals Development Act. It was one where the Land Commission were permitted by an Act to make rules in regard to their own proceedings in respect of acquisitions. The rules that they made for themselves purported to dispense themselves from the necessity of giving notice. In regard to the acquisition of the mineral ownership in a matter of 2,000 acres in several townlands in County Donegal, all they did was to publish in Iris Oifigiúil—I am not sure whether it was for one or two weeks—a notice of their intentions.

Chief Justice Kennedy said in connection with this matter:

Thus the Land Commission purported to give themselves by rule power to determine questions submitted by the Minister behind the backs of the interested parties, without hearing them, without even notice to them, while the very fact of such "determination" is not brought to their notice unless they happen to be members of that comparatively small and very select class of persons, the regular readers ofIris Oifigiúil.

He said the matters concerned were ones involving:

rights of specific interest and importance to individuals, some of whom, if not all, are poor men, tenants of poor holding, men moreover unlikely in the course of a lifetime to see a copy ofIris Oifigiúil. Such a procedure is, on the face of it, contrary to the elementary principles of natural justice. The Oireachtas has given it no sanction and the rules prescribing it are clearly ultra vires and bad.

Under our Constitution, even if the Oireachtas had given it sanction, it would still beultra vires and bad for the same reason. So far as the adequacy of the notices is concerned, I think we can disregard Iris Oifigiúil.

The other part of the requirement is that the notice should be published in at least one national daily newspaper. The Minister's statutory obligation would be fulfilled by publishing it, for instance, in a newspaper that circulates much more in Dublin and in the east of the country rather than in other parts of the country, although the paper in question is a national newspaper. The Minister might ask himself what is the chance that a small farmer of the class Chief Justice Kennedy had in mind in theMountcharles case would be likely to see a statutory notice on the back pages of the distinguished newspaper I have in mind. There is very little chance. I do not read these notices with very much care, and I do not want to trivialise this matter, but I honestly think if the Minister is aiming to put himself constitutionally in the clear in regard to this procedure, the notice envisaged here about publication in Iris Oifigiúil and in at least one daily newspaper for two weeks running will not do. It does not bear any reasonable or real relation to the real constitutional problem of justice which is in front of him.

I realise there is the view expressed, but with doubt, by the President of the High Court in the Bula case on whether notice is required in operations which are purely ministerial. I should like to say with the greatest respect to the former President of the High Court that I do not agree with him. At least I will put it this way: I agree with his doubt. He was right to have a doubt about his view. In the light of some things which the courts have said since 1974, I would be surprised if that point of view were upheld. While I do not want to cause annoyances or difficulties to him, the Minister would be well advised to look at this notice provision and see whether it could be improved and made more real.

Apart from the general technique of the Bill there is a second matter which requires to have attention called to it, against the background of the fact that the Minister is trying to avoid being caught by the Constitution, by the legal safeguards people have against overdoses of Government. The second thing I want to say bears on the way this Bill will operate. If it goes through as it stands, and it then vests in the Minister the rights described in section 12, the situation will then have been reached that, if the Minister does nothing, if he just simply sits on some of the land in respect of which the right to work it has vested in him, a private owner or somebody who was formerly a private owner of the top soil who subsequently becomes interested in working minerals is excluded from doing so. Maybe I have read the Bill wrongly but it seems to me that he is excluded from doing so.

Suppose nobody gets himself registered or establishes a claim to minerals which are excepted under section 13. Some will, but most of the landowners will not establish a claim such as section 13 envisages. When the Minister's right vests, if somebody subsequently wants to work minerals which would have been his to work but for this Bill, he will not be able to do so. He may become interested in mining overnight. I admit I am putting an extreme case. He may be an engineer, or he may have a son who is a mining engineer and he may want to exploit what he regards as his own land. He may regard himself as the owner of the minerals beneath it, except that it is what the Romans called a naked ownership. It will be only anuda proprietas because the Minister will have run away with the right to work the mineral. He will be debarred from doing that. It is true that he will have missed his chance to get his claim registered—— not missed it, because he would not have had a claim anyway because the minerals there would not have been excepted. The Minister is taking away from him something which he may subsequently wish to make use of. He has no way of making use of it now, unless he applies to the Minister for a lease or a licence to work minerals which are under his own hall door. If he does, that comes under section 16.

Suppose there is somebody in the category I have described, somebody who subsequently realises that but for this Bill he would have had minerals which he would have been entitled to work, or rights which he could have sold to somebody else, his only hope is to come to the Minister and look for a lease or a licence and, in issuing either, the Minister could include a condition giving the Minister the right to take a participating interest in the working of the mineral. That person will be substantially worse off after the passage of this Bill than he is now.

We know what the Minister means by participating rights because he told us today:

The State has the duty, in the national interest, to ensure that a reasonable and equitable share of the profits from the development of a deposit accrues to the Exchequer.

Presumably that is a reasonable share over and above the taxation of ordinary profits. The 10 per cent corporation profits tax which will attach from 1981 under, I must admit, the very beneficial disposition of the Minister about six weeks ago, unless I misinterpreted what he said, will not attach to companies involved in this sort of operation. Even if it did, that still would not invalidate the point I am trying to make that this operation is leaving somebody in this category who discovers what his true situation is after the enactment of this Bill in a substantially worse position.

I advance these objections in no hostile spirit. I am completely in sympathy with what the Minister is trying to do. The objections are: (1) the negligible difference, the non-existent difference, in substance in conferring on himself an exclusive right to work minerals; (2) the inadequate notice provisions of sections 17 and 18; and, (3) the fact that anyone left behind, so to speak, and who has not established a claim to have excepted minerals will no longer be able to catch up in the race except on very disadvantageous conditions.

The accumulation of these objections amounts to giving the Bill a character which might lead a court to say it goes further than the State need have gone in trying to protect the public interest. I accept completely that the public interest requires that the ownership situation should be stabilised and that mining interests, whether privately or State owned, should be facilitated and allowed to do their work without the threat hanging over them that their work will be frustrated and their investment set at nought by litigation. It may be from the accumulation of those things that a court will say: "The State is going too far. Something less would have done. Something less would have achieved the objectives the Minister quite rightly is anxious to achieve. Something which would have been more sparing of private property rights would have achieved them". The High Court and the Supreme Court have not yet set out the criterion they will use but it seems to me to be the only workable way in sight in the administration of Article 43 in this kind of area.

What would my alternative have been? I offer it tentatively because I know how difficult this whole area is. It would have been a better alternative to do what the Minister adverted to in the second part of his speech and which he said he still has not lost sight of. It might have been better for him to try to replace what he is doing now with the kind of Bill he mentioned in the second part of his speech and have a system of registration of claims. Although he did not say this it seems to me—and I thought this from the moment the Bill was introduced; subsequently I discovered that others have been saying the same thing—that an easier way to deal with this problem would have been to provide a system whether in the Land Registry, or modelled on the Land Registry, or a separate registry, or something attached to the Mining Board, or attached to the Office of the Circuit Court, under which people could establish that mining was going on on the appointed day, in other words, the day in 1903, or 1923, or whatever the relevant day is, on land which was vested in themselves or their predecessors and the mineral rights were supposed to attach to the State unless the minerals were then being worked.

Part of the difficulty arise from the fact that nobody knows what was going on in most of these places and it is impossible at this remove in time to establish clearly on behalf of the State that no mining was going on. It would be more businesslike to reverse the onus of proof. As an example, it could be modelled on the old section 52 procedure in the Local Registration of Titles Act and somebody could bring a proceeding naming the Minister as the nominal defendant and in the Circuit Court he would try to establish by evidence, which the Circuit Court judge would be entitled to accept or reject that on the relevant day, perhaps 55 or 75 years ago, mining was going on on his land. I do not need to tell the Minister that an overwhelming majority of landowners would not be able to establish such a thing because it was not happening in most cases.

For the State to be tripped up by the fact that it cannot establish the negative, when we all know the negative to be the truth in 99 per cent of the cases, is a paltry reason for not pressing ahead with this kind of solution. It would be reasonable and defensible on constitutional grounds to say "We are going to have a system which will operate on a presumption, the presumption being that on a particular day mines were not being worked on this land. We are going to give every facility; we are going to give wide notice of this provision. We will advertise it on television in the way that the Department of the Environment urge people to make sure that their vote is registered". The possible loss of minerals worth millions of pounds is surely worth more to the individual than the casting of his vote. If we take the trouble to get people to make sure they are on the electoral register I cannot quite see why one might not go to the same kind of trouble in trying to make sure that people look into their family history to see whether they could make a case that they had a right to be excepted from the operation of the State ownership under the Land Acts by reason of mining having been carried on on their lands at a particular time.

That could be done. I cannot see any constitutional difficulty about it. I do not see why, if we were able to carry out such a system, it would achieve only a marginal improvement. One would have to give an interval of two or three years before the door closed. We would have to allow a couple of years for people to research and raise their potential claims on the basis that mining was going on on their lands on the appointed day. Once the time elapsed, surely everybody's situation would then be clear. The Land Acts would have been seen to have operated in the way they were designed to operate originally, namely, vesting the mineral rights in the lands which were being bought by the State for the benefit of the then tenants. I do not see why we should be so apologetic about trying to perfect that for which the Land Acts omitted to provide machinery. That would be a better way of going about it. It would require an elaborate giving of notice. This should close any possible doubt on constitutional grounds arising in the case of somebody who, because of some disability, was not able to make the necessary claim but somebody in which case the materials for such a claim were actually there. I should be amazed if there were more than two or three such cases in the country, two or three cases in which mining was going on sometime in this century, in which the person who might be interested in the ministerial operations would not be in a position to bring his claim within two or three years. In order to accommodate even those cases I would build into a scheme such as I am suggesting a provision whereby the Minister would be committed to making good by paying compensation the loss in money of anybody who, after the lapse of three years, managed to establish such a claim.

In case that may seem an eccentric system, I will produce a precedent for it. There may be more than one precedent for it but there is a simple precedent in two Acts passed here in 1959 and 1966—the Funds of Suitors Acts. The Funds of Suitors Acts arose in this way. The office of the Registrar of the High Court and of other courts have bank accounts. These bank accounts are the repositories of funds which are paid into court in the course of litigation. They all go into the same account. According as the court orders money to be paid out, it is paid out. In the bank there is a reserve of money which has been paid by litigants pending the determination of certain proceedings. The funds have been accumulating in the High Court since 1800. There was a large sum of money in it by 1959. Somebody got the idea that it would be a fine thing if this money, most of which was never going to be claimed, could be devoted to some appropriate object. The specific objects mentioned were the restoration of the King's Inns building, the maintenance of the King's Inns Library, and the building of the Abbey Theatre. The Abbey Theatre and the Peacock Theatre both benefited from these funds. The Oireachtas took this money from the fund and directed it to be paid to these objects of national value. In order to cover itself against the possibility that the descendants or successors of the deceased were going to claim their rights, both these Acts contain sections which put the Minister for Finance under the obligation of making good any deficiency in the fund. Section 3 of the 1966 Act reads:

If it happens that the funds of suitors are at any time reduced to a sum not sufficient to meet the demands upon them, the Minister, so as to afford a complete indemnity to suitors for any loss which they might sustain by reason of the passing of this Act, shall advance out of the Central Fund or the growing produce thereof such sum as he may think necessary, not exceeding £450,000.

In other words, the State was laying its hands on money which was not its own but it was making provision for restitution from public funds in the unlikely event that people would make claims on those funds.

I only mentioned that Act to support my suggestion that a presumption that at the given dates under the Land Acts particular lands were not the scene of mining operations could be hermetically sealed from the point of view of the Constitution by a provision that, if anybody after the expiry of three years turned up and established that at a particular time mining operations were going on on land to which he was entitled, the State would be under an obligation to make that good to him and would be running a minimal risk in so doing. I suggest that to the Minister and his advisers as a possible alternative or feature of the Bill.

Such provision would not be as drastic as what the Minister has in mind but it would make watertight the State's title to about 70 per cent of the minerals in this country. I understand that that is not quite as good as what he is aiming at because what he wants is to have a whole block of ore bodies of which the right to work is vested in the same person and in which there will not be a poor privately-owned little mineral right in the middle of a State-owned one with the mining company having to negotiate with two people instead of one. I accept that that is this Minister's object, and we will be a long way on the road to achieving that with a provision such as I am suggesting which would make clear the State's right in regard to 70 per cent or thereabouts of the minerals or potential minerals in this State.

Finally, I want to give the Minister a short list of little drafting points in the Bill which struck me when I was reading through it. Perhaps he would ask his officials to examine them.

Part III of the Bill is entitled "Compensation" and contains sections 19, 20, 21 and 22 which deal with mining rights. Section 19 says:

A right to compensation under this Act shall vest in every person who was entitled to any estate or interest in minerals immediately before the date on which the mining rights in respect of those minerals vested in the Minister and the said right to compensation shall devolve and may be disposed of accordingly.

The expression "mining rights" is not defined in the Bill. If the Minister is aiming to apply the compensation provisions of Part III to the rights which he proposes to give himself under section 12, then it should be expressed in a different way. What he is giving himself in section 12 is not described as a mining right; it is described as the exclusive right of working minerals. "Working minerals" in turn is described in section 2 as meaning a collection of a lot of different things of which mining is only one. The most conspicuous of them is the right of taking away and selling and this is part of the right to work under the Bill which is just as important as mining. It should not be too much to ask that in a short Bill the same right should be referred to by the same phrase, particularly when the references are only two or three pages apart.

In the 1940 Act there is a thing called an exclusive mining right, and if that is what the Minister intends, then the whole phrase "exclusive mining rights" should be brought into this Act and made part of it. Another way out of this, which is probably the easiest way, is to put a bracket in section 12 after the word "minerals" so that the section would read, "The exclusive right of working minerals (which in this Act is called a mining right)..." That would cure the matter. It seems peculiar to be building an Act up around a thing called an exclusive right to work minerals and then to have a compensation part of the Act which talks about compensation for mining rights, an expression which is not elsewhere defined in the Bill, unless I have not noticed it.

The second small point I want to mention is such a tiny one that it is scarcely worth holding up the house for it. I see in the second line of the long title the words "Management and control". Those words seem to be an echo of words not in Article 43 but in Article 10 of the Constitution. This Bill is concerned principally with trying to divest private owners of rights which they now have to work the minerals under their land or to work private minerals, and Article 10, which is apparently being echoed in the long title, does not deal with private rights at all but with the State's rights. I mention that in case the Minister or his advisers are under the impression that by bringing in an overtone or echo of Article 10 in the long title they are giving the Bill authority which it does not have.

The last thing I want to say of drafting bears on section 14. Again I do not make any point about this beyond saying that it could be better drafted. Section 14 refers to registration of excepted minerals, but excepted minerals are ones which are described in section 13. These sections have to be construed as part of the whole Bill but they are self-contained and should stand on their own feet without over-much reference to other sections to explain them. Section 13 (1) says:

Section 12 shall not apply to minerals of any description in any land if, at the 15th day of December, 1978, a person was lawfully working or developing a mine for the working of such minerals.

That subsection as it stands would suggest that the mere fact that mining was going on would except the minerals from the application of this Bill even if registration never took place. In other words, even somebody who neglects to register his claim to have his minerals treated as excepted, forgets, does not bother, or just to annoy the Minister refuses to apply for registration, would still be able to say. "I am entitled to rely on section 13 (1) as excepting my minerals from the bearing of this Act because my minerals correspond with the description of excepted minerals which this subsection contains."

Section 13 (2) does not quite mend the matter. It goes some distance towards doing so but it could be better. It says:

(2) For the purpose of subsection (1) a person shall be deemed to be developing a mine if, on an application under section 14, he proves that before the date mentioned in that subsection he had decided to do so in accordance with plans based upon a comprehensive study indicating a reasonable prospect of commercial development and that his decision stood at the passing of this Act.

That subsection as it stands clearly is intended to be in aid not of someone who is actually carrying out mining, operations but of someone who has not yet started but intends to start. In other words, the operation of section 13 (2) is to give the benefit of good intentions to somebody who has not yet started. It cannot be used in order to explain section 13 (1). Clearly it is not intended to make the validity of a claim to have excepted minerals dependent on registration. Am I right that subsection (2) is only an extension to give the benefits of good intentions to somebody who has not yet started work? As the Bill stands, what effect does registration have at all? The fact of working on 15 December 1978 will take the minerals out of the Act if I am to believe section 13. Section 13 does not say anywhere that in addition to being worked they have to be recognised and registered as being worked or being the subject of good intentions to work. I make no special point about this, but the Minister and his advisers might look at it. The drafting there could be better.

I wish to sum up broadly what I have being saying in the last hour. We support, agree with and sympathise with the object of this Bill in that it stabilises the ownership situation in Irish minerals so as to permit the exigencies of the common good to be served by allowing us to get ahead quickly with exploiting our natural resources. We want to see the tens of thousands of secure jobs waiting to be created which the Minister's party promised us in 1977. We accept that the Minister has a technically difficult job in trying to avoid the constitutional minefield of Article 43 which nobody has ever mapped. Indeed the people who laid it were those who most neglected the mapping. In casting the Bill in the form of a Bill to give himself not the property of minerals but the right to work them, the Minister is trying to avoid going the whole hog with acquisition and, therefore, trying to avoid putting into the Bill the potential frailty which that might imply. My problem is that I do not see much difference between what he is doing and giving himself outright property. Giving himself the exclusive right to work amounts to the same thing as acquiring the whole property in substance because nothing is left once one subtracts the right to work.

I pointed out a number of flaws in the Bill for instance, insufficient notice, notice that will not meet the requirements of constitutional justice and another in regard to it being a fairly tough Bill for people who through ignorance fail to establish their claim under section 13 until it is too late but who afterwards produce material which would entitle them to claim an exception. It might have been better had the Minister done something more modest, if he had gone ahead instead with the registration idea which he mentions in which there would have been a presumption that minerals were not in private ownership but were in State ownership and left it for the people concerned to make their case in respect of the 1903 and 1923 Land Acts, with mining going on at the operative date which would of course operate by vesting the minerals in them. That would have been a better way to do it. I also said that that would need to be accompanied by very elaborate notice and by a sort of safety net in the shape of a provision to enable the State to make good the loss of somebody who perhaps through no fault of his own turned up late to establish his claim to ownership. Subject to these reservations we will not hold the Bill up. I sincerely hope it will be a success and that the weaknesses I have expressed apprehension about will not show up.

The Labour Party support the Bill. However, we regard it as being a very narrowly defined measure of reform and relief. In matters of this nature, we are all very cautious about future litigation that may arise on the constitutionality of the Bill. This Bill should nevertheless divert the prospect of further actions against the State on the question of mineral ownership. That might be a bit optimistic but in so far as the Minister has made a genuine effort to deal with the situation, we support the narrow confines of the Bill.

I agree with the Minister and with my colleague, Deputy Kelly, that it is absolutely essential that the State should have mineral development statutes which would enable exploitation of our unworked minerals in private ownership to go ahead and that these statutes should be tried and tested. We only have two Acts and one Bill to be enacted, which have given rise to an enormous amount of litigation, uncertainty and legislative confusion. We wish to see effective legislation introduced. The body of the law so far, the 1940 Act, the 1960 Act and this Bill, is extremely limited. In many respects we tend to miss a central point in debating the narrow confines of this legislation, that is, the need to come to grips at some stage in our economic and social development with the rigidity of Article 43. Every time we attempt to come to grips with difficulties such as we are experiencing this evening we revolve around the absolute rigidity of Article 43 relative to private property. This has been a major inhibiting factor. In 1979 why have we still not got the political courage to start with the fundamentals? If we clarified our minds in relation to some of the fundamentals we would not find ourselves hopping in and out of constitutionality actions on a litigation merry-go-round as did the former Minister and the Minister for Industry and Commerce, Deputy Lalor. Deputy Lalor, as a former Minister, found himself before the court trying to explain away the omissions in the 1940 Act.

In relation to mineral rights and ownership there is a need to up-date the Constitution with specific reference to such rights and obligations and the role of the State. It would have to be carefully drafted and the majority of public opinion would have to favour it but I submit that if we assessed public opinion we would find a solid body of opinion holding the view that where major finds of minerals are brought to light, even where the exploration was done by private interests, the State has an overriding entitlement in the national interest, irrespective of the degree of work put into it by private interests in these areas, and that the State should be given paramount importance which it does not currently have.

We should amend the Constitution on perhaps half a dozen fronts, adoption, divorce and major issues. There is absolute moral cowardice here when it comes to amending the Constitution, but since we are amending the Constitution, there is a need for constitutional amendment, in relation to the working of mineral rights and mineral reserves by private and public interests, possibly a narrow constitutional amendment because otherwise every landowner in the country would conduct a major campaign. When one sees the tortuous involvement of the State and the tortuous efforts of the State to bring about effective mineral exploitation either by protective legislation such as this, by encouraging private interests, or by buying ourselves into private interests, such as the Bula affair, we have adequate grounds for an effective constitutional amendment. I am surprised that the Minister, who is highly skilled and highly competent, who has at least as much competence as his predecessor and who has a far bigger majority behind him on a unified party basis if he wishes to push a matter of that nature, did not show more imagination than he has in this narrow cleaning-up operation we are indulging in today. This is something which has not been debated very much but I submit that there is a strong and growing body of opinion which would favour such a course of action so that we do not have a couple of cowboys picking up millions of pounds because the State wants to get involved—quite correctly—and tries to buy its way in. Having done that, even in the case of the particular lands that have given rise to this Bill, the disputation relating to Nevinstown where not even a substantive planning application is made and no development plan is produced apart from a few advertisement in newspapers which are a source of more amusement than anything else, the cost to the State of the uncertainty of this legislation in terms of cash and uncertainty arising from legal defects at all levels has been very considerable. We must await the next constitutionality action and the next piece of litigation which will probably involve all three Bills to see who will take that action. There is a degree of uncertainty and ambiguity which has been lessened but not I think entirely eliminated.

I was interested in the Minister's comments on section 16 referring to the taking by the State of a participating interest in the working of minerals and the various methods by which the Minister may provide conditions attached to a lease or a licence. I support the measure.

The Minister has pointed out that he did not want to formulate precise policy lines. I agree that one must be flexible—one has no option when one tries to implement legislation of this nature with all its uncertainties and ambiguities—but nevertheless the Minister has again stressed that point and I thank him for so doing because I very much agree with that provision in section 16.

I was very much interested in his reference to the prospect in an earlier draft of having the registration process introduced. What exactly are the "considerable difficulties" which the legal experts felt would ensue if that system were introduced? What safeguards do they feel might be necessary to overcome these difficulties? It is a very interesting area; it has been there for some time and the Minister has elaborated to a degree this evening but the House could legitimately ask for more detail and there is no reason why we should not have it.

Again, I welcome the comment by the Minister that he would at least examine and study the possibility of the State having a more active role in minerals exploration and development. If you watch the gyrations of Tara and Bula and in the light of the solid experience we had in Government I do not think you can tolerate a situation where the State must pick up the tab, provide the legislative framework and do the devil and all. At the same time, apart from participation involvement which can be very difficult to follow through in the normal process of activity within any Government Department, I do not think the State should be as inactive and as passive as was the case in the past in relation to our very limited experience. The State should be much more effectively geared for involvement despite the enormous risks and capital investment involved and despite the enormous cost of buying international expertise to enable the State to be so involved. I think it is in the national interest that the State should itself—provided one had the constitutional amendment that I favour—have a more active and dynamic role in minerals exploration and development.

That is about the only way one can control the situation when major development comes and people are in a position either through good fortune or native shrewdness to avail of a good option. The State has fundamental rights which need protection. For that reason I urge the Minister—admittedly he said that possibility needed a good deal of further study but the Minister is an industrious and active man with a very clear brain—not to keep these ideas which he outlined in his speech at the embryonic stage because this Bill has cleared the air to some extent. I accept that, but there is now need to proceed further. I urge the Minister to consider a serious constitutional amendment. No doubt 99 per cent of the Irish electorate hold the right of private property in a very special and definite position and will not divest themselves of that fundamental right but there is a solid referendum majority among the 99 per cent who would say, particularly when it comes to valuable national resources: "We believe that proper custodial exploration, care and exploitation of these resources should reside within the State in the national interest." I think an enormous majority of people would give short shrift to any campaign suggesting that we were intruding unduly into the area of private property; that you would create constitutional precedents which would be hard to limit and that all those mad, lunatic socialists would get one foot in the door and then suddenly you would have a State take-over of private property overnight.

People are mature and sophisticated enough and indeed irate enough in regard to what they have seen even in the recent past to say to the Houses of the Oireachtas and the State: "Go ahead. Bring in that kind of constitutional amendment and it will clarify the position once and for all and we can then proceed." We should proceed on a joint-venture basis in our mixed economy between the public and private sector with the State having the power and constitutional right of ultimate jurisdiction in this area as far as the national interest is concerned.

It will be ten or 15 years before that view is enshrined in legislation but I have no doubt that it will come because already one can see elements of doubt in relation to some legislation. I do not propose to elaborate on that but it is evident that such is the nature of the exploration, of the interests involved and of the prospects of development that inevitably we will have our constitutional lawyers going through each section with a fine comb. Undoubtedly the State will find itself once again in a defensive position where, with due respect to all, there is no need for it to be. The State should not be left in that position and the only answer is a constitutional amendment dealing with that aspect.

If we can have a constitutional amendment in relation to adoption orders and the Adoption Board and if we should have—we would if only we had the political courage to do so—in relation to the question of marriage we can have one in relation to this. There are other question also—I will forget about Articles 2 and 3 and Northern Ireland because we may never have the courage to even dream about doing anything of that nature. There are many things of direct concern to us, namely certain aspects of private property. For example, the Minister for Agriculture has solid thoughts in relation to land ownership. When talking about farmers and agricultural structures of land ownership, which would require constitutional amendments, the Minister has come around to that way of thinking and I believe the majority of the Fianna Fáil Parliamentary Party support him. If such a move is good for the future prospects of agricultural structures here in terms of the limitation of ownership of land it would also be of paramount importance to have constitutional amendments in relation to the ownership, exploration and exploitation of our mineral resources.

With those reservations I support the Bill. I sympathise with the section of the Department concerned with minerals because of the prolonged delay—it took about five years—to get this legislation out of the way. They have had to live with it and so did three Ministers, some of them being almost crucified in the process and some learning very bitter lessons. As far as the Bill deals with the situation to the extent permitted under the Constitution I welcome it and it will have the support of the Labour Party.

It is fitting that the Minister responsible should have been so involved with the question of mining when in opposition. After reading through the debates that took place during that period and the weighty documents dealing with previous State involvement one must come to the conclusion that legislation was urgently needed to produce a more workable procedure. For that reason the Minister is to be congratulated on getting to grips with this complex question. The Opposition spokesmen cited a number of reservations and the Minister confirmed that a number of major complex legal situations make the ideal procedure impossible at this stage. However, he was correct to introduce a Bill that will be recognised as being workable, based on the Minister's experience and knowledge in this area.

A decision to restructure the mining board is a move in the right direction. It will give those fortunate enough to discover minerals on their land an independent board to assist them and evaluate their claims. The board will also give positive advice. Section 6, which deals with ownership, explains the legal position of individuals. The capital involved in bringing about any worthwhile return to private enterprise or the State on investment is so great that there is a need to up-date the legal procedure following discoveries. From experiences to date we know that the situation is very complex. The handling of such matters by the last Government was not good with the result that we have not reaped full benefit from discoveries. It is likely that we will have other finds and this Bill will help speed up the legal situation involved.

Section 7 deals with technical advice and the need for recognising that there is a great area of technical uncertainty in mining. For that reason it is important that the most competent advice available should be brought together under a mining board. It is hoped that we will not now have to depend on other states for the facility to deal with discoveries. Section 16 represents a positive move forward in updating our assessment of our potential. Individuals are being asked to acquaint the mining board of discoveries and after they register them they, and the State, can make a positive assessment. Section 17 is very reassuring because, naturally, a major question of compensation is involved where there is a discovery.

The independent or private owner can make representations to the mining board whose experts will listen not alone to the representations on behalf of the Minister but will give a very balanced and fair view of the actual find. They will let the owners feel that the State recognises their position and is prepared to be co-operative to ensure that they will get a fair return and that the State will be in a position to maximise the value in the overall situation.

The Minister dealt with compensation. It is very important to highlight the pre-extraction value. The value of any discovery can only be assessed when it is in the complete or semi-complete product stage. This Bill recognises that there must be a clearly defined formula to assess compensation. This is a very welcome updating of the present situation. It will ensure that the organisation, private company or semi-State company entering mining will be in a viable operation. This is a high risk business. We can see that our major mining operation at Navan, due to the world situation, is identifying the complication of high capital investment. By putting forward in this Bill a very balanced situation where hopefully in the future we can maximise the benefit to the State by putting in a workable and positive system of compensation, the Minister has recognised our responsibility in this area.

The Minister dealt with exploration. It would be nice if we could afford to press ahead with exploration but this is an extremely costly business and is hard to justify in present circumstances when there is such a demand on Government funds. If he could I am sure the Minister would like to create a large fund for exploration but because of his many other responsibilities it is at present impossible to do that. The procedure he adopted in this Bill, of retaining and increasing his powers and allowing private enterprise to press ahead with explorations, is the correct one.

During our last major mining discussion the Minister showed a considerable amount of foresight. He pointed out the wrong direction taken by the previous Administration. He has brought before this House a very workable Bill and has highlighted a number of areas where he continues to look into the possibilities of maximising mining to the benefit of this country. He has brought before the House a Bill worthy of support from all sides.

I would like to thank the three Deputies for their support of this Bill and its objectives and for the understanding they showed of the difficulties which have to be overcome in endeavouring to draft a Bill of this kind so that one can be reasonably certain that it will stand up and not be subject to challenge later. The Bill has taken over 12 months to prepare. The reason it has taken so long is the degree of care which had to be exercised in endeavouring to ensure that it would be as reasonably free from challenge as one can ever be sure of nowadays in the context of the Constitution.

As I mentioned in my opening speech, the Bill as originally drafted, before it was presented to the House, included a fairly lengthy part on the question of registration of ownership of minerals which on legal advice I subsequently excluded because of the risk, I was advised, of those provisions possibly being found in breach of the Constitution in the form in which they were then expressed—not a major risk but there was some element of risk—whereas it was thought that the element of risk in the rest of the Bill was negligible. It is, I believe, one of the few defects of real substance which has come to light in our Constitution, that if a Bill is referred to the Supreme Court by the President to have it or any part of its provisions examined from the point of view of their constitutional compatibility, and if any part of it, even a subsection, is found to be unconstitutional to whole Bill falls. That is not, of course, the case if the Bill is signed by the President and enacted. If some provision is challenged and is found to be unconstitutional, it does not affect the remainder of the Bill. Nonetheless, I did not want to take the risk with the whole Bill, particularly as it seemed as certain as one can reasonably be that the remainder was perfectly constitutional, and is very badly needed.

Ideally I would like to have included the registration provision. By no means have I abandoned those provisions. I was interested in what Deputy Kelly in particular had to say in regard to them. He took the line that if I had included those provisions, they were possibly less objectionable than some of the provisions I had included and were possibly less open to being upset. He is at a disadvantage because he did not see the actual draft but there were six or seven senior lawyers in the employment of the State who saw it and were strongly of the opinion that there were certain dangers in relation to it as it then stood. The legal reservations which were expressed in regard to it by those men were mainly based on the problem, which I consider is to some extent an unavoidable one, that a mere failure to register would result in the loss of property.

It was pointed out to me that this was an obvious constitutional problem because the excised part of this Bill envisaged a situation where the Minister would pick an area of, say ten square miles which was about to be the subject of a mineral exploration licence and would appoint a day in respect of that ten square miles, or whatever it was, within 12 months of which claims would have to be made to register private ownership of minerals. In default of a successful private registration—it was intended to use the vehicle of the Land Registry for this purpose—having been made within 12 months, plus whatever time was necessary for the Land Registry or the court, as the case may be, to consider the claim, the title of the State to those minerals would become indefeasible. If the title of the State were not made indefeasible in those circumstances, one is not much beter off than one is at the moment.

On the other hand, if one makes the title of the State indefeasible, even though one gives 12 months or a two year period for claims and for proof of them, one is still running into the problem that simply because somebody did not make a claim he loses his ownership. The question arises whether in all the circumstances under our Constitution the courts would decide that was reasonable. Should a man have to establish his right of ownership in a particular way in order to have that right of ownership? It might be argued this his right of ownership is much deeper and is antecedent to mere registration on a folio, that registration on a folio is only proof of that and that his failure to make a claim would give rise to obvious complaints by those who afterwards felt they were wrongly deprived of what they felt was their property.

There is also the difficulty that persons under a disability would be put in a difficult position, because if it can be shown that they were under disability then the State's right, would have to be set aside. We would be back in the area of doubt again, which is the one thing we want to avoid. Very frequently it may not be possible to show that the person was under a disability at the time the claim should be made. That relates particularly to unsoundness of mind. There were in the past, although it is a decreasing phenomenon now, a great many absentee owners of land, especially in the west, whose opportunity to lodge their claims might not be what one might ideally like to see.

I am not suggesting that those difficulties are insoluble. As I said in my opening speech, I am having them looked at again to see if there are ways they might be overcome or we might get around them while remaining within the provisions of the Constitution. I am fortified in my efforts by the general support of Deputies Kelly and B. Desmond that some approach of that kind should be made. I am grateful for that support and their views. They may not fully apperciate the actual difficulties there are on the ground in trying to overcome these specific problems.

I would like now to deal with some of the points that were raised. Deputy Kelly early in his speech said he felt that the courts would not pay much attention to the Long Title. I respectfully dispute that. One of the reasons why the Long Title is so unusually long, thorough and comprehensive and why it quotes within its terms certain phrases, particularly from Article 43 of the Constitution and one other Article, is that the construing of any part of a statute can be done in the light of the Long Title. We do not any longer have recitals in modern public Acts. It is less uncommon in private Acts. If this were an Act in which a recital were appropriate there would be a lengthy recital of these matters before the enacting part of this Bill. The practice has been in the last 50 years to do away with these recitals and to incorporate in the Long Title the kind of things that would have been recited in an earlier age.

The practice has grown in the last ten years to abbreviate the Long Title as much as possible. Much of our legislation did not require any very explanatory Long Title. This Bill does, and that is why the Long Title is so comprehensive. It is of importance to have this. If the courts might disregard it in trying to construe from a constitutional point of view the provisions of individual sections, it would not be either necessary or appropriate to include the Long Title in the form in which it is.

I agree with Deputy Kelly that the question of our still not having a report after five years of this case, which was decided in the Supreme Court in March 1974 and decided in the High Court in February 1973—I understand that is not reported either—is very unsatisfactory. It means that people have to get private copies of judgments of that kind which they should not have to do. It is always possible that when the official report finally comes it will contain certain amendments that might not be in a private copy which one might obtain. This is quite unsatisfactory. Deputy Kelly blamed the country for this unsatisfactory situation. I understand there is an organisation called the Incorporated Council of Law Reporting. They existed in my day as Minister for Justice and I used to give them money.

Not enough money.

I never felt I got very good value. I have no doubt they are still complaining that they are not getting enough money.

Surely the Minister found out what they did before giving them money.

They did produce reports and in my day I do not think they were five years behind. Occasionally one would get a report which seemed to date from a long time prior to the date which appeared on the volume.

The judgment in Dr. Singer's case was published only two years ago and the Minister is probably too young to remember that case.

(Cavan-Monaghan): The Minister probably thinks he was a musical gentleman.

He fiddled.

The Deputies are flattering me. I have not heard it suggested, nor was it suggested in my day, that the only reason for the non-publication of these cases by the council was lack of money. Presumably they bring out an annual volume and they could have contrived to get Dr. Singer's activities into one of their volumes. It is unsatisfactory. I am not positive as to the cause but I am confident it is not exclusively lack of money.

No doubt there are faults on both sides, but this is one of the organs of State and makes law just as we make law. It is ridiculous that the law should be inaccessible.

The Minister should be allowed to continue without interruption.

Deputy Kelly raised a point about the notices which are to be published, two inIris Oifigiúil and one in a national newspaper. He went on to describe at some length the limited readership enjoyed by Iris Oifigiúil and said that small farmers in the west did not buy it, presumably because it does not have a racing page or a crossword or whatever causes people to buy newspapers. Deputy Kelly stopped at that and talked only about Iris Oifigiúil and a national newspaper. Though I know him well enough to know that he did not do it deliberately, he did not go on to say that the Minister has an obligation to serve a notice on every person interested.

Who is interested? Is not that the whole point?

Do we not know who owns the land?

The whole problem is that very frequently the owner of the land does not own the minerals.

The Minister should be allowed to proceed without argument.

I did omit to say that, but I had taken it for granted that would not be adequate.

The Deputy should not get cross. I know he does not often make a mistake and that is his first one today. Section 17 (1) states:

...and shall also, so far as practicable, give to every person who may appear to him to have an estate or interest in the minerals notice of his proposal and shall give to any such person a reasonable opportunity of making representations to the Minister concerning such proposal.

(Cavan-Monaghan): So far as practicable.

Section 17 (2) states:

A notice undersubsection (1) may be given by registered post or in such other manner as the Minister thinks fit.

It is essential that the words "so far as practicable" would appear because there are registered owners of land here who were last heard of declining in a geriatric home in New Zealand in 1890 and it is not unreasonable——

(Cavan-Monaghan): I am not complaining about the words; I am pointing out that they are there.

Order. We cannot continue a dialogue.

Unlike umpteen other provisions of this kind where notice is supposed to be served, in this case the provision goes far beyond the normal requirement and compels the Minister, in so far as he can, to serve each individual who is or might be interested and this is a much greater safeguard than is frequently the case under such existing legislation.

On section 13, Deputy Kelly made the point that if someone was accepted under this section he was not compelled to go along and register his excepted situation or capacity and that there could be a sort of hiatus, that a person was excepted by law and still would not appear on the register of excepted minerals. That point seems to be covered by section 14 (5) which states:

Where an application under this section in respect of any minerals is rejected or is withdrawn or in default of application to the Board within the prescribed time or to the Court within such time as may be provided in accordance with rules of court section 12 shall be deemed to have had effect in respect of such minerals as if section 13 had not been enacted.

I see all that, but there is nothing which makes the status of the owner of excepted minerals dependent on registration. I advanced it as a drafting point, but it should be specifically mentioned in section 13.

We are having a Committee Stage debate.

If Edmund Burke was interrupted as often as one is interrupted here, he would never have been an orator at all. Was he not lucky that he lived in a different century from Deputy Kelly?

They used to publish their speeches separately then. They put out their speeches, carefully edited, months later.

The Deputy is handing them out every night of the week.

They edited and published their speeches. What the Minister read in school is not what Edmund Burke really said.

Deputy Kelly raised a point regarding the extent of the difference between expropriation of minerals or mineral rights or the ownership of minerals and the vesting proposal contained in this Bill. He questioned whether there was any substantial difference between the two. The vesting proposal here is based on the proposition that it comes within what might be termed the constitutional dispensation provided for in Article 43 concerning the regulation of the exercise of private property rights in the public interest. The ownership of the minerals is not being vested in this Bill and it remains in the possession of the owner until the minerals are being worked, either by the Minister or by somebody to whom he grants a lease or a licence for their working. The Bill sets out the right to work minerals, irrespective of whether they are owned by the State or privately owned.

I think the Deputy made the point that an owner might at some period after 15 December 1978 become interested in working minerals and that he should be allowed do so. There is nothing to stop a technically and financially competent owner of minerals from being considered for a licence or lease to work them under the provisions of this Bill. However some restriction on the rights of ownership is inevitable. A balance must be struck between the owner's rights and the need of the public interest to have our mineral resources explored.

We may tend to get bogged down by the legalisms of this Bill and the technical difficulties associated with it, finding it difficult to see what was essentially the original reason for legislation of this kind and why it has existed since March 1974. It was to prevent a recurrence of the kind of situation in the particular case at Nevinstown, County Meath, to which I referred in my opening speech, the facts of which are well known, which potentially could have done great harm to the whole question of mineral exploration in this country had we not made it clear that it was intended to rectify it. This country could not again afford a situation in which somebody finds minerals, perhaps after considerable expenditure of money, effort and expertise, and then some third party who has no connection whatever, in the first instance, either with the exploration for the minerals or ownership of the land or the minerals, suddenly appears on the scene and dispossesses the exploring party of the right to apply to the Minister for a licence or lease to develop those minerals.

That is one of the fundamental roots of the problem we face here. Of course, if this Bill had been passed in 1971, when the original movement inwards by a third party took place, then that activity could have been stopped very rapidly. The Minister of the day simply could have come along and said "All right, you have bought your way in there: you have forced out those who found minerals: but I regard it now as unjust in all the circumstances that you should be given a licence or lease to work minerals even though they are now technically your property." The great strength of this Bill lies, among other things, in ensuring that that sort of situation can never arise again after the Bill is passed.

Is that not the clearest possible acknowledgment that what the Minister is doing amounts in substance to acquisition? The Minister could not acknowledge it more clearly than he has done.

No, it is not acquisition. It is regulation, in the public interest, of private ownership.

The Deputy will have an opportunity of dealing with these points on Committee Stage.

It is the regulation, in the public interest, of private ownership.

(Cavan-Monaghan): A very neat distinction.

I see quite a clear distinction. What surprised me was that both Deputy Kelly and Deputy B. Desmond urged on me that I should take over the mineralssimpliciter rather than approach them in what I think is a much fairer way—not take them over simpliciter but to regulate in the public interest the use that can be made of them.

Surely, Sir, if you own a house and I offer you the choice of taking your house from you or letting you keep your house but only allowing you use it in certain defined ways, inevitably you would choose to keep your house and use it only in certain defined ways. In the words of the normal sort of clause one sees in these leases, you could not use it for a factory, some noisy trade or offensive calling of that nature. That would not be an undue restriction but nonetheless a restriction on your rights of ownership being exercised in the interests of your neighbours or in the public interest. There is a very clear distinction, and any householder offered that choice would appreciate it instantly. Perhaps Deputy Kelly does not see the distinction that clearly when he advocates that it may be better that we would expropriate the minerals rather than that we should seek to regulate them in the public interest or regulate their use in the public interest.

We are with the Minister in so far as his objective is concerned. What I am saying is that what he is actually doing, in substance, amounts to expropriation. The Minister may think that words, whether in the Long Title or elsewhere, will save it from that judgment. He is actually doing that and the example he gives by reference to what happened in the Bula case proves it, because he is saying he is now going to have power to leave Bula with nothing but a green field into which they can put cattle but with no rights in regard to what is underneath it.

Not no rights; ownership of the minerals.

What are their rights in regard to that compensation which they would have had on an outright acquisition anyway?

Their right to dispose of the minerals or to exercise the use of them in accordance with——

The Minister must be allowed to conclude.

The Minister has the working rights and that includes the right of sale.

Deputy Kelly spoke on this Bill for an hour and I hope he was not interrupted.

If the Deputy were paid in the old way by the folio of 72 words he would be a millionaire.

I am not the wordiest Deputy in here. The Minister should remember the years when he was over on this side——

I hear more of the Deputy than does anyone else.

The Minister is paid to do it; it is his job. He is well paid to carry that small cross.

Will the Minister be allowed to conclude?

The question of ownership of minerals, as it arises under the Land Acts, was referred to by Deputy Kelly. He seemed to think it was necessary simply to prove that a mine was being worked on whatever date the Act was passed in 1903, 1923 or whenever. I believe that is not quite the case at all. The position regarding the ownership of mines and minerals in this country is dependent, first of all, on the question as to whether the purchase of the land was effected prior to the Land Act, 1903, or whether it was purchased under some of the subsequent Land Purchase Acts. Broadly, it can be said that a purchaser under any of the Land Acts prior to the 1903 Act purchased his holding together with the mines and minerals in it. However, I do not want that to be taken as an all-embracing statement, because clearly there are particular exceptions here and there. But, as a general statement of principle, I understand that to be right. There was a fairly major change of policy in this regard with the passage of the Irish Land Act of 1903 in as much as under that Act the whole estate, as opposed to part of the estate, had to be disposed of by the landlord. On the vesting of the land in the tenant the tenant did not have the mines and minerals vested in him; they were vested in the Land Commission, except in a number of small specified cases where they did go to the tenant—they were in the case of repurchased demesnes and I presume that meant that the landlord was, in fact, buying back his own demesne—or where the vendor was not the owner of the mines or minerals because they were held under some sort of antecedent grant, which would occasionally be the case, or where the mine or quarry was being worked or developed by the vendor at the time of the sale. The Act uses the phrase "on the vesting of any land". That does not necessarily mean the day on which the Act was passed either in 1903 or 1923. It would be the date of the vesting by the Land Commission.

The Land Purchase Acts 1907 and 1909, contain provisions which enable the Land Commission to dispose of mining rights reserved to it under the 1903 Act by lease or otherwise. All holdings acquired under the Land Act of 1923 and subsequent Acts are, however, invariably now vested in the purchaser subject to the exclusive right of mining and taking minerals being reserved to the State. By reason of section 45 of the Land Act 1923 the reservation to the State did not include a mine or quarry which was being worked on the appointed day and it did not apply to stone, gravel, sand or clay. Otherwise the State became the owner of everything.

Effectively, therefore, the State is clearly the owner of at least half the mineral rights in this country; one cannot quantify it exactly in terms of percentage. Clearly at least 10, maybe 15 per cent is in private ownership and the remainder is a grey area. It is a considerable challenge to try to sort out that uncertainty because it has been an inhibiting factor in regard to mineral exploration here down through the years. It is a task that I intend to continue to try to tackle. I can say with confidence that, while it still remains something that we have to solve, the urgency in regard to it and the great need for it will not at all be as great when this Bill is enacted. It will take off the pressure but I look forward to coming back here in six or 12 months' time and putting before the House a Bill relating to this whole question of mineral ownership enshrining possibly the setting up of a separate new register in the Land Registry relating to minerals and mineral ownership and discussing it in this House and getting the views of Deputies as to whether it appears to be constitutionally acceptable. It is fair to say that as a result of this debate it seems to be, on all sides, politically acceptable and I am glad to know that and am fortified by that knowledge in my efforts to solve the ultimate problem of mineral ownership here. However, this Bill goes a long way to solving most of the practical problems even if it does not solve all the academic ones.

Question put and agreed to.

I suggest that we take the Committee Stage on Tuesday next, 27 February 1979.

I wonder would the Minister agree to leave it for a further week because I will be away next week?

Tuesday, 6 March, is the only day that might be available in the following week.

That will be suitable from my point of view.

Committee Stage ordered for Tuesday, 6 March 1979.