There is no publicity in this, so the Deputy can depart.
Minerals Development Bill, 1978: Committee and Final Stages.
Section 1 agreed to.
That remark is uncalled for.
It is called for.
Does the Minister want this to start again?
It is nice to see the Minister back.
If the Coalition had been in office——
(Interruptions.)
What we are discussing now has nothing to do with the Bill.
SECTION 2.
Amendment No. 1. Amendments Nos. 9 and 10 are related and Nos. 11, 12 and 13 are consequential on No. 10. We will take amendments Nos. 1, 9, 10, 11, 12 and 13 together.
I move amendment No. 1:
In page 4, line 5, to delete "mining right" and substitute "right of working minerals.".
This amendment is consequential on amendment No. 10 which relates to section 19. I am informed that the amendment of the term "mining right" which I propose here is not from a strictly legal point of view necessary, but I agree with what Deputy Kelly said the last day that there is some merit in ensuring uniformity of terms in the Bill. However, his amendment No. 9 is limited to Part III whereas the reference to mining rights occurs also in Part I, section 2. The various amendments I put down, therefore, provide for amendments to the five sections of the Bill in which the phrase in question is used, namely, sections 2, 19, 20, 21 and 22.
Amendment agreed to.
Section 2 agreed to.
Sections 3 to 12, inclusive, agreed to.
SECTION 13.
Amendment No. 2. Amendment No. 4 is related. Amendments Nos. 2 and 4 will be discussed together.
I move amendment No. 2:
In page 5, line 44, to delete "Section 12" and substitute "Subject to section 14 (5), section 12".
Here again I propose that the principle of amendment No. 4, which is in the name of Deputy Kelly, be accepted. The purpose of my amendment, No. 2, is similar. I am advised that amendment of the section is again, strictly speaking, not necessary and this is clear if subsection (1) of this section is read in conjunction with subsection (5) of section 14. The amendment does, however, make the position somewhat more clear on its face. I gather that the difference between Deputy Kelly's amendment and mine is one of drafting style and not one of any great substance.
I am glad the Minister and his advisers thought well enough of the point I made to put down this amendment, but I do not understand why the Minister's amendment takes the shape it does. If he is going to include a warning in section 13 that it does not stand by itself and that the benefit of the section is dependent on registration, I cannot see why the warning should not refer to the whole of section 14. I cannot see why it should be restricted to section 14 (5). It is a small drafting point but I think the section which in its entirely carries the side note "Registration of excepted minerals" would have been the appropriate thing to refer to, rather than merely one subsection. It is not a point of any substance.
Amendment agreed to.
I move amendment No. 3:
In page 5, line 46, to delete "for the working".
Although this appears to be a very simple amendment it attempts to cover a rather complicated point which has been the subject of critical examination by my Department and the Parliamentary Draftsman both before and since the Bill was circulated. The point had also been raised with me by representatives of the mining and exploration industry.
The purpose of section 13 is quite straightforward. It is intended to ensure that the vesting provided in section 12 will not apply to minerals which are being mined on the relevant date or where a mine to work the minerals is being developed. Under subsection (2) of the section, developing a mine is deemed to cover a situation where comprehensive plans have been prepared for a commercial development. The difficulty arises from the use of the word "working".
The definition of "working", which is substantially the same as the definition in the Act of 1940, includes certain activities, for example, "searching for" which would be carried out at the exploration or prospecting stage as well as at the stage when a mine was being developed or in operation. The possibility exists that, as section 13 is now drafted, somebody who was merely searching for minerals could claim to have the minerals exempted on the grounds that what he was doing constituted working for the purposes of section 13. There is no real problem as regards operations carried out under prospecting licence, because section 11 of the 1940 Act provides that it is unlawful for the holder of a prospecting licence to work minerals. It is, however, conceivable that a person might allege that on the relevant date he was engaged in searching for minerals on lands where he was the owner of the mineral rights. The problem is a rather limited one and is really only of significance from the point of view of exemption under section 13. Nevertheless, I regard it as being a point which if possible should be put right.
Under the amended section, exemption will apply to minerals where on the specified date a person was lawfully working or developing a mine of such minerals. The revised wording is intended to emphasise the mine aspect in the case of current working at 15 December 1978. I readily concede that it is not the most elegant form of wording, but I can assure Deputies that a variety of possible amendments were considered. All of them proved to have some defect or another and the amendment now proposed is the only alternative to a total recasting of the section, which would be likely to have implications running right through the Bill and call for a considerable number of consequential amendments.
I am not sure I understand it. Is the Minister saying that because the word "working" in line 46 has been defined by the 1940 Act in such a way as to include searching, the effect of the subsection as it stands would be to qualify minerals for exception if nothing further was being done in regard to them than searching?
I am not saying that. Under section 11 of the 1940 Act a prospector under a prospecting licence is precluded from working in the less technical sense of "working". The definition of "working" in section 2 includes searching for. The definition of "searching for" could be extended, arguably, or an attempt made in that direction, to the use of the word "working" in line 46, section 13 (1). I want to try to put the matter beyond doubt, even though I am advised by the draftsman that it is not essential. However, I do not want a situation to arise in which somebody who was prospecting on 15 December, and not doing any more than prospecting, would seek to claim that he is entitled to be registered as being concerned with an excepted mineral under this section.
It would normally only apply in practice where somebody is prospecting for his own minerals, where he is the owner. It is a minor point but it is as well at this stage to put the matter beyond doubt, even though the draftsman assures me he is satisfied that the position is all right under the subsection.
Of course, I have not been given notice of this amendment and I am afraid I am not able to think about it on my feet here, and therefore I must let it go. I would have welcomed a chance to think about it, particularly because the Minister has acknowledged that the wording is inelegant. I have never heard the expression "a mine of such minerals". Indeed, when I saw the Minister's amendment I thought it contained a misprint and that his purpose was to delete the last six words of the subsection. It is not impossible that my party may seek to improve this section when the Bill reaches the Seanad.
Amendment agreed to.
Amendment No. 4 not moved.
Section 13, as amended, agreed to.
Section 14 to 16, inclusive, agreed to.
SECTION 17.
Amendments Nos. 5 and 7 are cognate and may be discussed together.
I move amendment No. 5:
In page 7, lines 20 and 21, to delete "in at least one national daily newspaper" and to substitute "in all the national daily newspapers.".
If the Minister agrees, I would not mind having amendments Nos. 6 and 7 discussed with these two amendments. The purpose is to try to show the good faith of the State in advertising in the fullest and most detailed way possible rather than by the fairly minimal advertisements which the sections as they stand provide for. The idea which I advanced in general terms during the Second Stage is based on the point that what the Minister is doing in the Bill is virtually to expropriate, subject to a right to compensation, minerals belonging at the moment to an indeterminate but large number of people—to expropriate a great amount of property which at the moment does not belong to the Minister. I have said that it is obvious that the way in which the Minister and his advisers approached the problem was designed to avoid explicit expropriation, explicit transference of ownership to the State, and in that way to avoid having to jump a possible constitutional hurdle.
On Second Stage I made the point —and I do not think the Minister has dealt with it—that what he is doing, namely, trying to think of something which is a substitute for expropriation, will not get him any more easily over the constitutional hurdle, because it amounts to expropriation. It may have been an unguarded expression by the Minister, but when I asked him towards the end of the Second Stage debate in what respect the conferring on himself of the right to work minerals differs from expropriation in view of the very wide definition given to "working", he began his reply along the lines that the residual owner, the person from whom the right to work is now being subtracted, still will have the right to dispose of the minerals. I took the Minister to mean that the person has the right to sell them.
Of course he has not got that right because the right of sale is in the right to work, expressly by one of the definitions in the Bill. I do not want to labour the point, but it will be difficult for the Minister to make the case that anything of any possible value would be left behind in the hands of an owner once the Minister's exclusive right to work the minerals had been vested in him. There is then nothing left to the owner capable of enjoyment by the owner, capable of being sold or otherwise disposed of, or of being appraised in money value once the right of working them has been subtracted from him and conferred on the State.
Though I am quarrelling with the principle of doing this, I want to emphasise that the Minister has only apparently succeeded in avoiding the difficulty of an explicit expropriation with the involvement of a constitutional hurdle which he may become entangled in. The reality is, in spite of the language used in the Bill, he is expropriating, he is taking away from the owner, subject to the right to compensation, everything that made the ownership of those minerals dear to him. There is not anything left in the ownership of a mineral once the right of working has been taken away. Therefore I do not think the Minister has succeeded in avoiding that constitutional hurdle, if it is one—I do not know if it is. If he is faced with a possible constitutional challenge, which would run along the lines that in spite of the words used this is expropriation, I think he would be better armoured if he could show that he had endeavoured to put people on notice of their rights. It is with that in mind that I am suggesting that the provisions in regard to notice in the existing sections 18 and 19 are inadequate.
In an earlier reply the Minister seized on the perfectly valid point that I had not said in my speech anything about the Minister giving individual notice to people who might appear to be entitled to it. I had taken it as a starting point that very often such people are unknown, that their might not be any such person or that, even if the Minister knew of such persons who would have an interest, he might not succeed in reaching such a person. The items referred to were ordinary newspaper advertising and advertising in Iris Oifigiúil. Perhaps I made a meal of the point that notice in the latter publication, in the context in which we are speaking, is not in fact notice at all, that that specific point had been dealt with by the Supreme Court 40 years ago.
That means, therefore, only the matter of a newspaper advertisement and of trying to reach by individual inquiry as many of the potentially interested parties as possible. The State, spends a good deal of money on advertising budgets in trying to persuade the people that some wretched Irish phrase spoken by everybody's grandmother who could not otherwise speak a word of Irish, made us what we are. A State which goes in for that kind of campaign can afford to advertise in not one national newspaper but in three.
Secondly, I admit that the idea I have expressed in amendments Nos. 6 and 8 in regard to giving notice to people who may have acted once upon a time or who may have access to the record of somebody who has acted for a person who might be interested is not elegant draftsmanship. I am aiming at the concrete situation in the Land Commission where they are in the business of trying to track people through solicitors and where they have the names of owners on record as represented once upon a time by solicitors who no longer exist but whose practices exist. The Minister knows that in many cases these practices have been taken over by others and even if the name is not there and the incorporation is not visible, the records are not altogether untraceable.
I do not flatter myself that this is going to open up a wide range of notice parties who under the Minister's Bill as it stands would be left in the dark. I am looking at it from the point of view of the State, called upon possibly to justify the constitutional validity of an effectively expropriatory measure, to show that it has mitigated that expropriation by every means at its disposal and that it has put every person who possibly could have an interest which might be adversely affected by the operation of either of these two sections on notice that now is the time to come in and make his case. There is nothing more than that in these four amendments, and if the House is willing to take them all together I will let my case in regard to them rest there.
Does the Chair understand that we are taking the four amendments together?
I have no objection.
I agree. I think on reconsideration the Deputy will agree that the four amendments are scarcely necessary. Regarding the newspaper situation, the existing provision in the Bill for publication in at least one national daily newspaper is a fairly standard provision with regard to notices.
It is, but——
There is a provision in section 7 of the Minerals Development Act, 1940, which deals with prospecting licences. It requires the notice of intention to grant such a licence to be published in one or more newspapers. I understand from inquiries I have made arising from what the Deputy said on the last day that the traditional practice in my Department has been to publish these notices in four daily national newspapers. I regard that as excessive. It seems scarcely necessary to do it and I will have to discuss that with the Department in future, particularly as the rate of charge imposed on the Government for these formal notices that nobody reads is away above the going rate.
The Minister has put a terrible hole in his case by admitting that nobody reads the notices.
Is the Deputy suggesting that people go around reading notices to the effect that the Minister for Industry, Commerce and Energy has reason to believe that there are minerals under the lands and townlands of X, Y and Z and so on ad infinitum, that nobody is working them and that he accordingly proposes, if no one objects, to give prospecting licences to somebody or other?
The Minister is now pouring ridicule on a procedure. In one breath he is doing that while in the other breath he is holding up that procedure as an adequate discharge of his——
It has been adequate for a long time.
The Minister does not think it is adequate.
It is as adequate as you will ever get. People are not interested in these things and you cannot make them interested if they are not interested. Putting long, complicated advertisements in papers has not in my experience raised the height of public interest in these obscure matters.
Once the mining activity starts there will be plenty of interest.
Mining has been going on in this country for many years now.
Only in a particular area.
I was saying that these advertisements constitute a substantial expense for the Department and, accordingly, for the taxpayer. I understand that the figure this year in my Department for these advertisements, which the taxpayer has to pay, is £160,000. Cases arising under section 17 of the Bill will, however, be relatively infrequent and the Deputy may take it that in practice notices will be inserted in whatever number of national daily newspapers are published at the time if the existing practice continues.
I am advised by some lawyers in the public service, who examined this Bill for me with some care, that the notice provisions in this section are such that these lawyers are satisfied that the Bill does all that it might be reasonably expected to do in this regard, and it follows the procedures adopted by the Land Commission concerning land acquisition in so far as is practicable. From my examination of it, it appears that section 17 does everything that the Land Commission do in practice, and in addition it publishes notices in national daily newspapers. The Land Commission do not publish notices for the acquisition of land in daily newspapers. They publish them in Iris Oifigiúil and then send them to the interested party, the owner or his agent where appropriate. Section 17 goes away beyond the hallowed practice of the Land Commission, and of course the section is doing things which are far less drastic than what the Land Commission do. Section 17 simply gives notice that the Minister proposes to exercise his rights of working. The Land Commission's normal notices are to say “We are taking your land from you whether you like it or not”. That is a more drastic thing to do.
The Deputy made reference to expropriation. In case anybody should think that this is expropriation, even with compensation, as the Deputy has put it, I should say here and now that it is not expropriation. It is a regulation, in accordance with the relevant articles of our Constitution, of the exercise of private rights of property in accordance with exigencies of the common good, and that is something which the Constitution envisages. This Bill sets out to do it in the Long Title, which is unusually full and which makes it clear that this is the way it is going about it. I made the point the last day that there is a very great difference between the State taking a person's house from him and the State saying "You own that house. We are not taking it from you, but we are not going to let you use it for certain purposes and in certain ways". That is accepted not alone in this country but everywhere else, and this is the point at issue here.
However, I have followed another of Deputy Kelly's hares. Perhaps I should not. This is about newspapers and giving notice to agents, and amendments Nos. 6 and 8 in his name, which were taken with this amendment, relate to the same matter. The practice with the Land Commission is that, when they know the name and address of an agent they give him notice as well as giving it to the registered owner. The same practice will be followed here. We are going beyond the Land Commission practice here because we are giving public newspaper notice of the proposal as well as doing all the things that the Land Commission are doing, although this Bill does not go as far as the normal Land Commission acquisition procedure goes.
The Minister has tried to invite the sympathy of the House by representing himself as an out-of condition hound loping across the country after my hares, but he has raised a fair few hares himself that I will have to run after.
We will be coursing all evening.
Deputy Desmond is here to preside over it all.
Be careful about people outside the House when you go coursing.
The analogy of the house which the Minister mentioned just now is about as absurd, at least in opposition to the making of his case as could be imagined. Would the Minister put a value on his own house if the right to live in the house, the right to look at the house, the right to invite visitors to the house, the right to let and sell the house were vested in me? It would be worth nothing.
In regard to the Long Title of the Bill I told the House the last day that although the courts occasionally look at a Long Title or recite it it is not a suit of armour which will hermetically insulate a Bill against scrutiny unless it is the Long Title adverted to in Article 28.3 of the kind which the Emergency Powers Act, 1976 carries; otherwise the Long Title is only a piece of flummery. A Bill which is constitutionally objectionable for what it does will not be saved by a Long Title pretending that it is something else. A Long Title, which is full of flowery language about respect for Article this and Article that, but which goes ahead and puts somebody in prison without trial in a time other than one of emergency, or which purports to tell some couple where to send their children to school against their lawful preference, or whatever else it may be, will be an invalid Act when it is enacted no matter what the Long Title says. The Minister should not put his faith in Long Titles.
He raised the matter about the comparison of the Land Commission and he said that this notice goes beyond what the Land Commission do. I do not suppose that I know more than a fraction of what the Minister and anybody else in his practice would know about this but I imagine that the ownership situation which the Land Commission have to deal with is in most cases a great deal simpler, when we are talking about the surface of the land, than what we are dealing with here, I have always understood that one of the main problems in this area was the impossibility of being sure that one knew who the entitled person was. The Land Commission practice is not a fair criterion against which to measure this thing.
The second point the Minister raised in regard to the Land Commission shows that he has not bothered to consider the point I raised about the difference between what this Bill does and expropriation. Although I know it is the Minister's second nature to be pugnacious—I suppose he is not alone in that—I want him to understand that I am not in any way, any more than the rest of my party, against this Bill. On the contrary, if we are sitting on that side, we would probably be bringing in a similar kind of Bill. If I were the Minister in charge of his Department I believe I would have produced a Bill approaching this problem by a different technique, as I said here two weeks ago, but I have no doubt it would be much the same kind of Bill in its general effect. I am only trying to put to the Minister that if he wants to protect himself or his successor in title and the State in the kind of constitutional action which I know he must have apprehended, because I know that council were consulted about it, he ought to keep his hands as clean as he possibly can. He should bend over backwards in regard to the giving of notice.
There is no distinction between what the Land Commission do and what this Bill proposes to do. The Minister says that the Land Commission, in taking over land, expropriated, whereas the powers of this Bill do not amount to that. They do and the Minister is only deceiving himself if he thinks that only judge of the High Court or of the Supreme Court will see the thing any other way. I have no axe to grind about this. I am only trying to put it to the Minister that if he leaves himself with as clean hands as he can so that he can go into the witness box or get his counsel to make his case for him in the event of a constitutional challenge he will be able to say: "With the intent of regulating the right of private property to meet the exigencies of the common good but leaning over backwards in order not to diminish individual property rights we have gone to the greatest possible lengths to make sure nobody is left out in the cold." That is the situation I would wish the Minister, or any other Minister, who follows him, to be in. It is with that in mind and not with trying to pick holes in his Bill or making it difficult for him that I make those points. That is what is behind my suggestion in regard to notice. We will obviously not get anywhere today with the Minister but I hope he will look at it again from that point of view between now and the introduction of this Bill in the Seanad.
The last point I want to make is in regard to newspapers. I am surprised that the Minister does not see the somewhat amusing figure he cuts here telling us in one breath that his provisions in regard to notice are adequate but in another breath admitting to us that these old notices about the townlands of Shanvallymore, Aghabeg, Meelagh and so forth nobody bothers to read. If that is the case—we have it on record that the Minister admitted this—then all the business about newspaper advertisements may be dispensed with and we might as well have the Government's intention proclaimed by the town crier in the townland or in the parish to which his intentions relate. I have no better idea for doing it but by what the Minister has said he is admitting that the notice——
Would the town criers for the townlands qualify under the youth employment scheme or have they to be over 25?
Town criers were used in townlands but I would not put it past the soldiers of destiny to argue otherwise if it suited them.
Could we have townland criers?
Why not? I am sure we could fill a fair number of jobs that way added to the job creation programme and have chaps in robes scampering around the countryside. That would put a few more thousand on to the figures that are so hard to find. I am very sorry that my remarks about this the other day have led the Minister to look up his Department's situation in this regard and find that they are over-advertising rather than under-advertising. I am afraid the Minister will give himself a black eye with the media yet again if the result of this debate is that they will be shorn of a large proportion of the £160,000 worth of advertising which they have been getting up to now. It will naturally suit me all the better the blacker the Minister's eye is but I advise him for his own sake not to put the apparent intention which he has expressed into practice.
Is the Deputy suggesting that I should spend unnecessary amounts of public money in order to ingratiate myself with what he calls the media?
I am not. I am suggesting that the Minister should not use the occasion of this particular debate, this particular instance and this particular matter of the mining townland advertisements, which he has adverted to, to make a change which will affect all departmental advertising, some of which I have no doubt fulfils a serious function. I often read those notices myself. The Minister's profession make a point of going down very carefully through statutory notices in newspapers. I would not belittle the practice but, quite apart from the irresponsibility of cancelling the departmental practice in this particular instance, which the Minister thinks is futile, which in turn makes nonsense of the case he is making in regard to the advocacy of the provision of the Bill, he should not use this particular case as a pretext for reducing a practice which in the ordinary way is very necessary and beneficial.
I do not suppose I will cut any ice with the Minister in this instance and I will not hold the House up any further. I urge him to look at it from the point of view of himself or his successor, who in the future may be faced with a situation his predecessor but one was faced with in the case of Roche and Randals. In the Roche and Randals case, if I am not mistaken, although the case was decided not so much on purely administrative criteria as on the criterion of the impossibility of the Minister discharging what was the central sense of his duty under the then legislation. A further point raised by the plaintiffs of those cases related to the constitutionality of the acquisition that was proposed. The Minister would be well advised, if he has any reason to think he may be faced with litigation of that kind in the future, to leave himself with as seamless a suit of constitutional chain mail as his advisors can devise for him.
Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
Section 17 agreed to.
SECTION 18.
Amendments Nos. 7 to 9, inclusive, not moved.
Section 18 agreed to.
SECTION 19.
I move amendment No. 10:
In page 8, lines 10 and 11, to delete "the mining rights in respect of those minerals vested in the Minister" and substitute "the exclusive right of working those minerals vested in the Minister under section 12".
Amendment agreed to.
Section 19, as amended, agreed to.
SECTION 20.
I move amendment No. 11:
In page 8, line 13, to delete "mining".
Amendment agreed to.
Section 20, as amended, agreed to.
SECTION 21.
I move amendment No. 12:
In page 8, line 29, to delete "mining".
Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22.
I move amendment No. 13:
In page 8, line 41, to delete "mining.".
Amendment agreed to.
Section 22, as amended, agreed to.
Bill reported with amendments and passed.