Wildlife (Amendment) Bill, 1999: Report Stage (Resumed).

Debate resumed on amendment No. 21:
In page 32, line 4, after "regulations" to insert "which in the opinion of the Minister is fit for commercial exploitation".
–(Deputy O'Shea)

I will deal as briefly as possible with the point at issue here. I tabled this amendment on Committee Stage and the Minister concluded by stating that she had had discussions with the Department of the Marine and Natural Resources and various angling groups which appeared to be satisfied with the approach her Department is taking. She also said that, apart from purely commercial species per se, the intention was that species relevant to other types of fishing such as sport or recreational fishing, for example for coarse fishing, would also be listed in regulations to be made under section 32.

The problem to which I drew attention on Committee Stage and to which I return is that the concluding sentence of the reference in the explanatory memorandum to section 32, which I am seeking to amend, reads, "It is expected that such exclusions will apply only to commercially exploitable species". Following Committee Stage, the Bill goes a good deal further. When did the discussions with the Department of the Marine and Natural Resources and angling groups take place? Did they only take place immediately prior to Committee Stage?

I am reluctant to agree to the proposed format without amendment. It would be a good restriction to place on a Minister that only commercially exploitable species could be included in regulations. If other species are included, what guarantees are there that they will not be overfished? What protection will be afforded? While one can appreciate the rationale behind the inclusion of commercially exploitable species, why should the regulations be extended to species currently not covered by exclusions?

The Deputy's proposal touches on one of the fundamental changes the Bill will bring about in how we look after the conservation of wildlife in Ireland. The original Act excluded from its general scope all fish and aquatic invertebrate species. While this may been understandable in 1976, it would be completely at variance with the approach appropriate today when an eco-system or holistic approach to biodiversity conservation is being pursued. In practical terms, such an approach meant that tens of thousands of species from both marine and fish water eco-systems were, strictly speaking, off limits from any conservation consideration.

The Bill brings all wildlife, as well as wild plant species, within its scope, apart from certain species relevant to fisheries, whether commercial or recreational, which will be excluded. Section 32 contains a provision which provides for the exclusion of a species relevant to fisheries to be specified in regulations to be made under the section. The intention is that the species relevant to any type of fishery can be excluded by being listed in the regulations. Species listed are likely to be relevant to existing commercial fisheries and other types of fishing such as sport or recreational fishing, for example for coarse fish. Species not yet subject to commercial exploitation, but which are under consideration or the subject of trials to investigate the potential for exploitation or which may become so in the future may be listed in the regulations. Limiting excludable species along the lines suggested by the Deputy to ones fit for commercial exploitation would be unduly restrictive and not in line with the intention behind the provision.

The overall changes in the scope of the Bill to comprehend the vast majority of wild species represent a new departure for wildlife conservation. This broadening of the basis of wildlife legislation is of fundamental significance as it establishes a new and holistic framework within which the conservation of biodiversity can be addressed and advanced. The consultations with the Department took place long before Committee Stage.

Did the Minister give any consideration to correcting the final sentence in the explanatory memorandum which, in the context of the position she is now adopting, is obviously incorrect and could be seen to be misleading?

As the Deputy will understand, of necessity, the reference in the explanatory memorandum must be brief. The position cannot be set out in detail. The regulation of fish stocks will continue to be monitored by the Department of the Marine and Natural Resources which possesses the required competence and expertise.

Amendment, by leave, withdrawn.

I move amendment No. 22:

In page 43, between lines 38 and 39, to insert the following:

"(b) (i) in subsection (2)(a), by the insertion of the following after ‘ditch':

‘provided cutting is confined to strictly what is necessary for reasons of public health and safety', and

(ii) in subsection (2)(b), by the insertion of the following after ‘agriculture':

‘provided cutting is confined to strictly what is necessary for reasons of public health and safety',".

This amendment, which was discussed on Committee Stage, relates to the protection of hedgerows. I acknowledge the move made by the Minister on Committee Stage in moving the date back from 1 April to 1 March, something which about everybody was very happy. It is, however, a matter of concern that agricultural and forestry works will be completely exempt within the period specified in the Bill. They should be subject to some restrictions and controls.

As the recent flooding demonstrates, the removal of hedgerows can have devastating effects. Hedgerows and ditches are vital and are there for a very good reason. I am unhappy that for agricultural reasons somebody can interfere with, remove, cut or grub a hedgerow within the period specified. The amendment seeks to ensure that works on hedgerows and ditches would be subject to the restriction, "provided cutting is confined to strictly what is necessary for reasons of public health and safety". No one could object to this. There is a need for control.

I support the tone of the amendment. What was the nature of the consultations which took place with the various interests involved? I am very conscious of the interests of those who are expert in the laying of hedges, a manual activity not mentioned explicitly in the Bill, which refers to the cutting, grubbing or destroying of vegetation. The laying of hedges is a manual activity which does not involve the same level of intrusion in a habitat, in terms of noise, as a tractor and flare. There is, however, a need for restrictions and perhaps a separate, more lenient period which would avoid the nesting season but would not last as long as the ban on cutting. Has the Minister taken account of this representation about which I have just heard or did she hear about it before now? Perhaps she would consider this issue in more detail when the Bill goes to the Seanad.

I participated in the Committee Stage debate on this issue. Genuine reasons exist for cutting hedges within the restricted period. The issue of the line of sight at road intersections would be a factor as would the encroachment of vegetation on narrow roads along which children travel to and from school. Public safety and the safety of children, in particular, are serious concerns. Some vegetation, such as giant hogweed, irritates the skin very badly and that must also be taken into account. We must strike a balance between what is cut and when it is cut and what constitutes public safety and public health concerns. Who will make these decisions?

Deputy Clune's amendment seeks to restrict cutting according to its necessity for reasons of public health and safety. Will the Minister indicate whether the Bill contains any provision in regard to who will decide what is cut and who will monitor cutting activities? Can local authorities cut with impunity on health and safety grounds?

I will outline the overall situation in regard to the cutting of vegetation, including hedgerows, during the breeding season. Section 40 of the principal Act restricted the destruction of vegetation or uncultivated land during the main breeding and nesting season for birds. I have introduced a number of changes in section 46 of the current Bill which will strengthen the Act's provisions, with a view to enhancing the role of this legislation in providing protection to hedgerows.

Enhanced protection will be provided to hedgerows during the nesting seasons by the unambiguous statement that the section prohibiting the cutting of vegetation during the specified period applies to hedgerows. Second, the period during which hedgerows and other vegetation may not be cut will be significantly extended. Cutting will now commence on 1 March as opposed to 1 April, as was previously the case. Third, from now on, public bodies, including local authorities, will be limited to cutting hedges during the allowable period to situations where reasons of public health and safety apply. This will ensure that routine maintenance hedge cutting cannot occur during the nesting period. Fourth, where indiscriminate or excessive hedge cutting appears to have taken place during the breeding season, the Minister will now have the power to request details of such works from local authorities or other public bodies. The bodies concerned will be obliged to supply such information to the Minister, together with an explanation of the public health and safety factors involved. These amendments will considerably strengthen the role of the Wildlife Act in conserving hedgerows and I anticipate they will have an even broader effect through the adoption of a more positive approach to hedgerows and a need to conserve them.

On Committee Stage, the issue as to whether local authorities would be committing an offence if they cut a hedge during the prohibited period for reasons other than public health and safety was raised. I assure Deputies that local authorities would be committing an offence in such circumstances and, if found to be in breach of the Act, would be liable to penalties in the normal way.

Deputy Clune's amendment proposes that existing exemptions allowing hedge cutting for agriculture or forestry purposes should be limited to reasons of public health or safety. Such a course of action would be unduly restrictive and, moreover, could prove difficult to enforce in practice. The possibility also exists that it would lead to spurious complaints being made against individuals. It is preferable to highlight and promote the importance of hedgerows and to encourage their retention and conservation. In this way, we can build on the goodwill which exists among the farming and broader community in regard to hedgerows.

A number of relevant initiatives are already in place and I intend to build on these. Relevant initiatives include ongoing consultations with the forest service of the Department of the Marine and Natural Resources, Coillte and the Department of Agriculture, Food and Rural Development in addition to a significant measure for the conservation of hedgerows under REPS.

The skin itch to which Deputy O'Shea referred was generally known in the past as "ire" but it has disappeared since young boys stopped wearing short trousers.

Giant hogweed does not itch, it burns.

If somebody annoyed you, the expression down the country was "he'd give you ire".

The date of the breeding season has been brought forward from 1 April to 1 March and that is to be welcomed. We have witnessed massive rainfall in recent weeks as a result of climate change and the El Nino effect. These changes have resulted in changes in breeding habits. I had noticed that the breeding season was commencing in March or even February in some cases due to our mild winters. Our previous calculations were arrived at on the basis of a severe winter but, nowadays, we have mild weather in January and February as well as in May and June. Nature is topsy-turvy and we must constantly review our calculations.

Environmentalists disagree on the number of times various wildlife species breed per annum. Will the Minister outline the definitive periods within which breeding occurs? Rabbits breed from the month of January onwards and probably breed up to six times a year. Certain species of bird breed up to four times a year. I used to think birds stopped breeding at the end of June but I am informed that they can continue breeding into July and August although that does not appear to be widespread. Climate change has resulted in extraordinary changes in nesting and breeding habits and I wonder whether we are capable of keeping pace with these changes.

The issue of road safety and the need to curtail overgrowth was referred to. In the past, when local authorities had a sizeable workforce, people would go out with slash-hooks to scart hedges. Nowadays, mechanical cutters cut hedges back to the bone.

I am not opposed to hedge cutting during the summer months of June, July or August. When the growth becomes excessive there is a need to cut it back, but that must be done within reason. One of the explanations we received from Kilkenny and Laois County Councils was that they felt they had done what was needed, but it was done with mechanical cutters. I found it was excessive, and most students of nature would agree. That kind of work should be done by hand. Too much is being left to mechanical cutters which are cutting too deep and definitely infringing upon the nesting of birds. More care must be taken. In terms of road safety we know hedges will meet in the middle of roads unless they are cut, but that must be done in a proper manner.

I wish to emphasise that nobody here wants to compromise public safety in terms of hedge cutting. The difficulty is that public safety is used as an excuse for cutting which clearly has nothing to do with public safety – it is simply convenience in terms of the weather being fine and the machine being in the area. This is what we are up against and I hope we can address it through enforcement, which is at the bottom of many of these solutions.

I have not had a reply from the Minister to the questions I asked about hedge laying. Although she did say it was important to emphasise edu cation and awareness of the importance of hedges, which is laudable, to do so requires a far more proactive interest and involvement by her Department, local authorities and landowners in the welfare of hedges. They must be encouraged to serve their own self-interest in terms of stock proofing hedges, something which hedge laying, a very old tradition, can provide. I suggest this should also be raised with the Minister for Agriculture, Food and Rural Development because under REPS hedge laying does not feature very largely while hedge cutting and fencing off hedges does feature. I ask the Minister that in taking account of this amendment, which I agree should be based on public health and safety in terms of cutting, to deal with the issue of hedge laying which is not mentioned and which should be taken into account.

In this section we are trying to protect hedgerows. What the Minister is proposing does not apply to agriculture or forestry which seem to be completely exempt from the section. My amendment proposes that if works are not necessary for reasons relating to agriculture or forestry they should be done on the basis of being confined to what is strictly necessary for reasons of public health and safety. I do not think anybody is against work being done on the grounds of public health and safety. I accept the Minister has explained that local authorities are not exempt under the legislation. The fact that this does not apply to agriculture is slightly worrying. If we are serious about protecting hedgerows and ensuring wildlife is given the necessary space, there should be some way to address it in relation to agricultural works.

Deputy Deasy mentioned ire. My recollection is that it occurred when boys wore short pants and there was friction between the pants and the leg and that ire developed particularly when there were very cold breezes. Hogweed gives a burn and can affect any part of the body which comes in contact with it. Some years ago it grew relatively extensively in one area in Waterford.

With short trousers it would hit a person in more than one area.

Regarding the nesting season, pigeons can breed four times per year with two eggs each time. The period from laying to the young bird being able to fly is about nine weeks. They can begin breeding before 1 March and rearing can continue after 31 August.

There must be sensitivity in relation to how site cleaning is done. In the old days a billhook and a forked stick were used, and it was much more wildlife friendly. From what the Minister said I am still not clear who will act as referee and decide whether work is done appropriately in the interests of public health and safety. Has this provision been included because it sounds good? Will Dúchas or the Minister's Department have the capacity to police it? They may receive complaints from the public who may write to the Department, but how effective will this be as a comprehensive measure for protecting hedgerows and breeding species?

As I said at the outset, from now on public bodies, including local authorities, will be limited to cutting hedgerows during the allowable period to situations where reasons of public health and safety apply. Bodies which continue to cut hedges within that period will have to supply information to the Minister together with an explanation of the public health and safety factors involved. Therefore, it is not just a question of window dressing. We want to know and will seek the explanations.

Regarding the difference between hedge cutting and hedge laying, we are specifically talking about hedge cutting. The question of hedge laying is very specific and the issues of maintaining hedges through laying or otherwise is covered by REPS and would come directly under the remit of the Department of Agriculture, Food and Rural Development.

It is not very well covered.

That is something the Deputy could take up with the Minister for Agriculture, Food and Rural Development. My Department will consider covering the question of hedgerows in terms of advice and guidelines to the agencies with which we are in contact.

We have been in consultation with a number of Departments, including the Department of the Environment and Local Government, about hedges and we are currently having discussions about the possibility of further provision and protection for hedgerows under planning law.

Regarding consultation with the Department of Agriculture, Food and Rural Development, we can further examine how to approach the guidelines issued to farmers concerning hedgerows. We will also have the national heritage plan and the biodiversity plan which will be important in examining further measures to protect and conserve hedgerows.

In regard to the issues raised by Deputies O'Shea and Deasy, obviously various bird species have different breeding seasons. Some breed relatively early. Some have only one brood while others can have two or three. The time provided for in the Bill covers the majority of species. When I spoke about this issue to NGOs in particular, Birdwatch Ireland was happy with the restricted period proposed in the Bill and particularly with the amendment I proposed on Committee Stage.

I do not know if the Minister is aware that in Britain in recent years a specific hedgerow Bill was introduced. Alluding to what Deputy Sargent has said, I think we should do likewise here. The reason for it in England was that cereal growers were eliminating fences and hedgerows. Where there were many ten and 15 acre fields suddenly there were 100 and 200 acres of land to facilitate people growing cereals. There is the same tendency here although it is not as widespread because the country is so windswept and better protection is needed. In the eastern part of the country there is a tendency to eliminate many hedgerows and fences. We need a hedgerows Bill to stop the elimination of these fences and hedgerows. About seven or eight months ago, a farmer in Britain who eliminated hedgerows which were, perhaps, 200 or 300 years old was made to replace them. He was prosecuted and got a substantial fine and was made to replace the hedgerows precisely as they had been prior to removal. We should face up to the fact that we are getting rid of hedgerows. I do not think we have the manpower to prevent it. Despite the vigilance by the Department and local authorities it is happening wholesale under our noses.

The Minister referred to the planning laws and she is in discussion with the Minister for the Environment and Local Government. I am pleased she is doing something to ensure our hedgerows are protected. She has an ideal opportunity in this Bill to address the issue particularly as it relates to agriculture. As Deputy Deasy has outlined that is the area where we need to have some protection in place. I am concerned that agriculture is exempt from this legislation. It is essential to include words similar to those proposed in my amendment.

Amendment put and declared lost.
Bill recommitted in respect of amendment No. 23.

I move amendment No. 23:

In page 43, line 45, to delete "statute;'," and substitute the following:


(cc) the clearance of vegetation in the course of fisheries development works carried out by the Central Fisheries Board or a regional fisheries board in the exercise of its functions under the Fisheries Acts, 1959 to 1999;',".

Section 40 of the Principal Act, as amended by section 46 of the Bill, prohibits the destruction of vegetation during the period from 1 March to 31 August. The Bill limited the exemption allowed to public bodies to cases where cutting of vegetation is necessary for reasons of public health and safety. In the course of discussions which my officials have undertaken with the various parties on the overall hedgerows and vegetation issues since Committee Stage, the Department of the Marine and Natural Resources has raised concerns that the new limitation being placed on this exemption would significantly restrict the necessary activity of fishery boards in relation to the management and conservation of fisheries. In practice certain works involving the clearance of vegetation for fisheries conservation or angling requirements can only be carried out by the fishery boards during the period March to August. It is simply not possible to undertake such works outside of this period as the main growth of vegetation only occurs after 1 March. Situations where it is necessary to clear vegetation during this period include the carrying out of works aimed at conserving fish populations or works to enable certain types of angling to take place. Therefore, I am proposing amendment No. 23 which will ensure that such necessary works can be carried out by the Central Fisheries Board or the regional fisheries board. In general such works by fishery boards do not adversely affect wildlife. On the contrary, their purpose is frequently to improve fish populations or their habitats thereby contributing to the conservation of biodiversity.

I refer Deputies to the Fisheries (Amendment) Act, 1999. Sections 5 and 8 of that Act outline the functions of the Central Fisheries Board and the regional fishery boards respectively. The Act provides that the fishery boards in the performance of their functions must have regard to the conservation of fish, other flora, habitats and biodiversity and must ensure that their activities protect the natural heritage as far as possible. These are powers which are invested in the Fisheries (Amendment) Act, 1999, subsequent to a request from me to the Department of the Marine and Natural Resources that the functions of the fishery boards should include providing for biodiversity conservation. Therefore, under fisheries legislation the functions of the fisheries board require them not only to act in a manner which safeguards wildlife but to also address wildlife and biodiversity conservation needs in carrying out their activities. Furthermore, in order to enhance the role played by fishery board and wildlife conservation on the ground I have agreed with the Department of the Marine and Natural Resources that guidelines concerning fishery boards' activities and wildlife conservation will be drawn up between the boards and Dúchas.

The Minister referred to guidelines. I was anxious to ensure there would be some consultation between her Department and the fisheries board. I do not know enough about the growth period but I accept what the Minister has said that nothing can be done after the month of March.

Amendment agreed to.
Bill reported with amendment.

We come to amendment No. 24. Amendment No. 25 is related. Amendments Nos. 24 and 25 may be discussed together.

I move amendment No. 24:

In page 44, lines 9 and 10, to delete "The Minister may request from the person concerned" and substitute "The person concerned shall provide to the Minister".

The substance of the Bill allows the Minister to carry out a spot-check effectively where the law may have been broken in relation to hedge cutting or any other type of work which we have discussed today. That is inadequate. We discussed this matter on Committee Stage. At that time the Minister made the point that it would be too much for the Department if everybody who has been involved in carrying out works was to provide the Minister with information. I accept that to a point. I presume it is a question of resources when we refer to that matter. Following on from Committee Stage I understood there was an acceptance of the need for local authorities to maintain a database or some readily available information on when work was carried out during the restricted period.

Rather than it appearing that some hedge was cut down on a certain road or in a certain place and looking for a spot-check on that particular incident, the Minister could seek the body of knowledge the local authority has about its cutting operations, which would be required to be kept by the local authority. It could still be a spot-check but it would be a far more comprehensive spot-check. It would show a trend or pattern if there was a need to follow up, and if illegal cutting was taking place it would be far more apparent from such a database than from a single operation. As the next part of the section states, it could be used as a good defence that it was necessary for the purpose of saving life, preventing fire or any other outstanding reason. If each local authority was required to hold a database containing the times at which cutting took place, it might quickly become clear that cutting during restricted periods, which is not in compliance with the Act, tends to take place when the weather is fine. If one had a Meteorological Office record and a record of indiscriminate cutting, one would find that cutting took place when the man on the tractor got a bit carried away because the weather was fine and he had his mind on something else, or else he just did not care in the first place.

The Minister should look more closely at what she can do to protect hedges, rather than simply requesting the person concerned for any details about the incident. We should be able to find more information that that. If the Minister will not accept my amendment, given that she did not accept it on Committee Stage, she might examine the possibility of improving her own approach to the subject by making it clear that local authorities have to maintain a log of cutting within the restricted period, for whatever reason they may have.

Before we go any further, a Cheann Comhairle, can you clarify a matter with regard to amendment No. 23? We talked about it on Committee Stage but, did we also agree to it on Report Stage?

We had to revert to Committee Stage, so has it also been agreed on Report Stage?

That is fair enough, thank you. With regard to amendments Nos. 24 and 25, the proposal put forward by Deputy Sargent that all public bodies should provide me with continuous reports on ongoing hedge-cutting and clearance of vegetation, is not altogether practical. It is neither necessary nor advisable. It is not just a question of resources within the Department; the principle is not one we should follow. In cases where there is cause for concern, I can request the relevant bodies to supply me with the relevant information. It is my intention to monitor the effectiveness of this provision over time and, if necessary, it will be open to me to take such measures.

I assure Deputies with regard to the concerns they have expressed about the way local authorities deal with hedgerows. I have already outlined that the Bill would limit hedge cutting by local authorities, during the relevant period, to situations where this is necessary for public health and safety. This is more than a cosmetic change and I intend to ensure it will bring about real change in practices. More generally, it should bring about a new recognition of the importance of protecting hedgerows and a realisation that they cannot be damaged without good reason. In requesting explanations to justify any such cutting actions within the season, I will be in a position to take legal action if necessary. Penalties for local authorities will apply, as for any other party outside the health and safety area. I am pursuing with the Department of the Environment and Local Government the possibility of taking other measures to provide for the conservation of hedgerows under the new planning regulations to be made under the Planning and Development Act, 2000. I am also considering measures in the course of preparation under the National Biodiversity Plan and the National Heritage Plan.

I will certainly discuss the database issue further with the Department of the Environment and Local Government to see how we can progress the matter. However, I cannot give a commitment at this stage other than to say that we are having discussions and will examine all the relevant issues.

I see a basic weakness in the legislation and I can see Deputy Sargent's viewpoint arising from the amendments he has moved. The matters in question include the clearance of vegetation in the course of road or other construction work, or in the development or preparation of sites on which any building or any other structure is intended to be provided. This is not like the NHAs which would have become part of the county development plan. How does the Minister find out about somebody who, let us say, is clearing a site for construction? The person may very well have planning permission to clear a site. The Minister presented this as being a matter for public bodies, but further down in the legislation there is a reference to "a person" or "the person concerned". If an individual or a local authority is clearing a site, for which all the necessary permission has been obtained, to build a water pumping station or local authority housing, how will the Minister's Department and Dúchas know that something has happened or is about to happen? I am afraid that one will only become aware of these events when it is too late.

In my area there is a referral process with the county council whereby any application that comes in must be referred for a sites and monuments statement. It is referred to Dúchas and the applicant for planning permission may have to engage the services of an archaeologist to deal with such things. My difficulty concerns the communication aspect. How will the Minister know about many of the areas that would come within the ambit of the definition concerning the removal of vegetation?

I appreciate the Minister is taking up the issue of database compilation or retention with the Department of the Environment and Local Government. I hope also that she has impressed upon the Minister for the Marine and Natural Resources, Deputy Fahey, and the Minister for Agriculture, Food and Rural Development, Deputy Walsh, and their respective Departments, the responsibilities they have as custodians of hedgerows, and also as legislators.

A considerable amount of damage is being done in the hope it will not be discovered. Sometimes, the removal of hedgerows is done in a very underhand manner, under cover of darkness or at weekends. I can provide instances of where hedges have been removed by a developer who did not have permission but was anxious to display his new houses to best advantage for passing traffic. He regarded the hedgerow as an interference with his business plan. There are many incidents like that one where the local authority needs the Minister's support in stating that a database is required.

Such actions must be put in writing so that the person who committed the offence and the reason he or she committed it will be on record the day the offence is committed. It is an important contribution to the awareness of which the Minister spoke earlier as well as the practical protection of hedges if people believe a penalty, traceability and accountability are involved and not simply a spot check here and there. It will get as bad a reputation as litter legislation if people believe the legislation will not be enforced. I hope the Minister will pursue through the Minister for the Environment and Local Government the matter of the database with the local authorities from which I hope we will see an improvement.

It is certainly my intention to monitor the effectiveness of the provision over time and it is open to me to take measures to improve the effectiveness, if necessary. I reiterate that I will discuss the question of the database with the Department of the Environment and Local Government.

As regards who will report and be our eyes and ears in this respect, we hope that the information will come to us through our local personnel in Dúchas and the public. Where there have been problems with local authorities, it would not be surprising that we would be more vigilant in watching those cases. If it came to notice that an authority had been in breach, it would be watched very carefully from there on.

The creation of a situation where there is a general spirit of interest and knowledge through education of the importance of our hedgerows will also help in that the further education of the importance of this issue will mean that there will be further interest from the general public. No doubt it, in turn, will show greater interest and report any such cases it believes we should be aware of. From the outset, local personnel will be of great importance and be an important link helping us monitor the position.

I welcome the direction in which the Minister is going. I hope it will result in much more support for those personnel in local authorities who are extremely frustrated at the lack of interest and enforcement when it comes to breaches of conditions attached to planning permissions which have resulted in hedges being removed wholesale. Their efforts are being frustrated because each incident is a single one and, there are so many of them, they generally go unrecorded.

I would be interested to know, if the Minister rang a local authority, whether she would be able to obtain a calendar of incidents where hedge removal was discovered, be it by the local authority, land owners, developers or others trying to circumvent or test the law. I support the Minister in making strong representations to the Minister for the Environment and Local Government. I hope there will be a stronger protection of hedgerows with that co-operation.

Amendment, by leave, withdrawn.
Amendment No. 25 not moved.

Amendments Nos. 26 and 27 are related and may be discussed together by agreement.

I move amendment No. 26:

In page 47, between lines 33 and 34, to insert the following:

"(b) by the insertion of the following after paragraph (b):

‘(c) any maintenance on any existing land drainage scheme within the meaning of the Arterial Drainage Acts, 1945 and 1995,',”.

In this amendment I hope to address the issue of existing drainage systems and wetlands. I know that, since the 1976 Wildlife Act, it has been necessary for the Office of Public Works to carry out environmental impact assessments for new arterial drainage schemes. However, it is work to existing schemes I hope to address in this amendment so that any maintenance on any existing land drainage scheme or any drainage scheme within the meaning of the Arterial Drainage Acts, 1945 and 1995, will be included in the Bill.

The Office of Public Works should be required to consult the Minister prior to undertaking any maintenance or work on these schemes, especially if they are adjacent to an NHA or a special area of conservation, SAC. It is a delicate process and some works could interfere with and be detrimental to these drainage schemes. The thrust of my argument is to ensure that existing drainage schemes are mentioned in the Bill and that there is an obligation on the Office of Public Works to report to the Minister when any works in or near such schemes take place.

My amendment is similar to Deputy Clune's. It is an attempt to include existing drainage schemes so that the anomaly between existing and new schemes is removed. An existing scheme is often worked on and radically changed. It is very important not just for wildlife but also for the general monitoring of hydrology and general water flows in any area to be conscious of work being carried out, regardless of whether the drainage scheme is existing or new. Sometimes the difference is academic.

I hope the Minister accepts the spirit of these amendments. We do not have to be reminded and it is to the forefront of everyone's minds at the moment that one person's drainage scheme is another person's flood. It is important that the monitoring of drainage schemes is not simply restricted to new schemes. I hope this amendment, which attempts to provide a level playing pitch, if that is the right phrase, for drainage, can be part of the Bill. I hope the Minister accepts the spirit of the amendment, whatever about its wording. We look forward to her reply.

The amendments proposed by Deputies Clune and Sargent would oblige the Office of Public Works to consult the Minister prior to carrying out any maintenance work on existing arterial drainage schemes. Most such drainage schemes are in place for many years and any ongoing works are necessary to avoid flooding. The imposition at this stage of legal requirements on works or schemes already sanctioned would be both inappropriate and unnecessary. It is also probable that the passage of these amendments would necessitate the revision of arterial drainage legislation.

More generally, schemes being examined or undertaken under the 1995 Arterial Drainage (Amendment) Act deal in the main with localised urban flooding. All wildlife and environmental considerations are assessed in the development of these schemes and they are also subject to a consultation process. Furthermore, every new arterial drainage scheme must go through a public exhibition process prior to confirmation of the scheme.

It should be appreciated that, while isolated wildlife problems have arisen with regard to drainage maintenance, the overall position is not widely problematic. In general, drainage maintenance does not have a significant adverse effect on wildlife. On the other hand, a recent independent review of drainage found that the economic benefits of drainage maintenance to be considerable. Our current weather conditions bear out the importance of drainage works. The matter is best addressed through consultation and agreement to address any potential problems.

An interdepartmental committee comprising representatives of my Department and the Office of Public Works has been set up to deal with wildlife issues involved in drainage work. This committee has been very successful in preventing problems and resolving difficulties when they arise. I intend to continue with the successful co-operation which is a practical approach and is the most appropriate mechanism for dealing with any wildlife issues arising from drainage maintenance.

How can existing drainage schemes adjacent to or near an existing or proposed NHA be protected? As it stands, any works can be done on the drainage scheme, although it might be adjacent to the protected area and have some impact on it.

The Minister said works on existing drainage schemes will not affect wildlife, but they could at times of flooding. Deputy Sargent referred to the flooding last weekend. It will be very difficult in many cases to get to the root cause of flooding. However, interfering with drainage schemes can have a detrimental effect on other areas. What protection does the Minister have in place for existing drainage schemes to ensure they will not have an effect on wildlife, NHAs or protected areas?

I listened with interest to the Minister's reply, particularly when she said the effect of drainage on wildlife was not significant. That is a very interesting comment. I look forward in years to come to reading it in the record because it might be a little like reading the debates on Ardnacrusha in the early 1920s, when it was felt that scheme was too grandiose and excessive. That scheme now supplies only 1% of our electricity needs. Times change and the flooding patterns are getting worse. I am a member of the Shannon flooding subcommittee of the Committee on Public Enterprise and Transport and we see a pattern there.

Although the Minister said the drainage schemes are not significant, I believe they are going to become more and more significant. It probably will not be possible to solve the flooding problem by digging a deeper drain. However, the sensitivities in coping with wildlife interests and water flow, in general, need to be taken much more seriously.

The point of these amendments is to ensure we are not omitting the monitoring of existing arterial drainage. The machinery used in drainage works nowadays is far bigger than that used before because contractors want to get a certain amount of work done. It is no longer the case that such work requires a lot of physical effort because these machines can move an enormous amount of earth in a very short time. The widening or deepening of an existing drain often amounts to the creation of a new drain, in terms of the amount of work.

I hope the Minister can take that into account and take advice on this before the Bill is debated in the Seanad. Drainage goes far beyond the Minister's responsibilities. Wildlife is our main concern here, but we are talking about far more than that.

I am also concerned about wildlife but there are two sides to the story. I have very practical experience of dealing with this problem in the south Galway area, which floods on a regular basis. Controlled drainage is a help to wildlife rather than a hindrance. Drainage can be controlled now.

Many flooding problems in south Galway and other areas are caused by the fact that water levels have changed because of the building of roads. Local authorities are responsible for keeping roads free for traffic, so their only responsibility is to raise the road where flooding occurs. Raising the road where flooding occurs every year simply creates flooding in another area because it stops the water taking its natural course across the road.

There is no effect on wildlife if winter turloughs are maintained at their winter levels. It is only when winter turloughs are not controlled at their winter level that there is an effect on wildlife. In spring, wildlife hatch on the high water mark of winter turloughs. When flooding occurs in the spring and those high water marks are driven far into agricultural land, swans, ducks and others hatch at the high water mark, which is then in fields. The wildlife are then destroyed by foxes and other vermin. My contention is that allowing drainage to control the water at winter turlough level will enhance the chances of wildlife rather than affecting it, while relieving the excessive flooding which is causing great trouble throughout the country now and every second or third year in my area.

It must be asked whether the rights of wildlife are overruling those of human life. Is it better to put people out of their homes as a result of flooding or to risk affecting some wildlife by providing drainage that will allow people stay in their homes?

All those drainage schemes can be controlled by road level crossings. No matter what drainage scheme is in place in a rural area, it must go past a road. If the road crossing level is engineered to keep the water at the winter turlough level, there will be no effect on wildlife in the area.

As the Deputy has just said, we are talking here about maintenance of existing schemes. His logic seems to be at variance with the amendment tabled by Deputy Clune. The reason I gave for not being able to accept that amendment was that the drainage schemes that have been in place for many years require ongoing works to avoid flooding. In general, drainage maintenance does not have significant adverse effects on wildlife.

Through the interdepartmental group, we have successfully addressed many potential problems, prevented many problems arising and resolved difficulties when they arise. This is the best possible approach to deal with issues which are obviously of great concern, particularly to those living in areas where flooding can occur.

The Minister has nailed her colours to the mast on this amendment, which is a matter of regret to me. To my mind, the Bill is incomplete if "maintenance" is to be understood as meaning maintaining exactly what is there. In reality, "maintenance" can be a euphemism for very large jobs. I do not think that is being taken into account. Maintenance can change drainage much more than the changes to which Deputy McCormack alluded. That must be monitored. One land owner may be clearing land and that could result in flooding elsewhere.

"Maintenance" is a wide-ranging term. It can be widely interpreted and what we mean by it should be clarified. In terms of foreign affairs, maintaining peace can mean anything from walking down a street in a police uniform to bombing a place into submission.

Amendment, by leave, withdrawn.
Amendment No. 27 not moved.

I move amendment No. 28:

In page 50, lines 43 and 44, to delete "in such manner as the Minister thinks fit" and substi tute "according to best established ecological and humane practice or principles".

This matter was raised on Committee Stage. The amendment seeks to improve the Bill which states:

Where possession of a protected wild bird or protected wild animal results from the unintentional capture of the bird or animal and such possession is continuing, the person in apparent possession or control of the bird or animal shall, at the direction of the Minister, release or otherwise dispose of the bird or animal in such manner as the Minister thinks fit.

While I am not disputing the Minister's expertise in understanding the ecology and behaviour of wildlife, it would be more objective and in keeping with the nature of the Bill if instead of "as the Minister thinks fit" the section read "according to the best established ecological and humane practices and principles". If people were arguing with the Minister I would prefer if she were in a position to say the decision was based on best advice as opposed to the opinion of the Minister at the time. The amendment is as much a protection for the Minister as for the wildlife.

The form of words proposed by the Deputy is neither required or appropriate. The aim of the Bill is to protect and conserve our wildlife and natural heritage. It would go completely against this aim for the Minister to instruct that a protected wild bird or mammal, having been captured unintentionally, be released or disposed of in a way that is inhumane or ecologically unfriendly. I do not envisage that any Minister would give such a direction. All the functions exercised by the Minister under wildlife legislation must take into account wildlife conservation considerations. It is not necessary to qualify this section by the insertion of the Deputy's provision.

I will not press the amendment as I have no doubt the Minister will not follow anything but the best ecological and humane practice. However, I cannot speak for her successors and the motivation behind the amendment was to make it clear where they were coming from.

Amendment, by leave, withdrawn.

I move amendment No. 29:

In page 60, line 47, to delete "subsection (4)(a) of this section” and substitute “paragraph (a) of this subsection”.

The purpose of section 58 is to allow Ireland to ratify the UN Convention on International Trade in Endangered Species, known as CITES. The section will provide for the designation of the Minister for Arts, Heritage, Gaeltacht and the Islands as the management authority with primary responsibility for implementing the CITES Regulations in the State. It will also set out the circumstances in which it will be an offence to contravene CITES Regulations.

The amendment is technical in nature and completed on the advice of the parliamentary counsel. It provides greater clarity to the drafting of the provision.

Amendment agreed to.

I move amendment No. 30:

In page 63, line 7, to delete subsections (1) and (2) and substitute "this subsection and subsection (2)".

While forestry and wildlife functions were formerly under the aegis of one Minister, section 60 recognises the separation of functions that now exists and will enable me as Minister for Arts, Heritage, Gaeltacht and the Islands to hold and manage land specifically for the purposes of the Wildlife Acts. This amendment is technical in nature and has been completed on the advice of the parliamentary counsel.

Amendment agreed to.

I move amendment No. 31:

In page 65, to delete lines 27 to 29 and substitute the following:

"‘(4) Nothing in this section shall prevent the prosecution under the Customs Acts for offences committed under the said Acts in respect of a contravention of section 53A of this Act.'."

Section 70 of the principal Act provides that I, as Minister, may prosecute summary proceedings for any offence under the Act. The Garda already has powers of prosecution independent of the provisions of this section. It also provides that persons other than the Minister or the Garda may initiate prosecutions under the Act with my consent or with the consent of an officer of my Department nominated by me and who is at least the rank of Assistant Secretary.

Section 64, in amending section 70, will allow me as Minister to nominate any officer, regardless of rank, to decide on the issue of consent to prosecutions by private individuals under the Wildlife Acts. A provision consequential on the provisions of section 58 is also being made to ensure that section 70 of the principal Act will not prevent a prosecution being taken under the Customs Acts in respect of an offence involving the import or export of a CITES specimen.

This amendment is technical in nature and is completed on the advice of the Attorney General's office. On completion of Committee Stage it was noticed that the title of the subsection should more properly read "subsection (4)" rather than "subsection (3)(a)”. This amendment will also clarify that the provisions of section 64 will not restrict prosecution under the Customs Acts of any offence committed under section 53(a) and not just offences committed under section 53(a)(4)(b).

Legal advice has been obtained to the effect that the original wording would have been too restrictive.

Amendment agreed to.

I move amendment No. 32:

In page 71, to delete lines 13 to 21 and substitute the following:


(ii)by the substitution, in paragraph (a), of conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months, or to both' for ‘conviction

(a)in the case of a first offence under the particular section or subsection, to a fine not exceeding fifty pounds,

(b)in the case of a second such offence, to a fine not exceeding one hundred pounds, and

(c)in the case of a third or subsequent such offence, to a fine not exceeding two hundred pounds'f5>.”

This amendment is to remove any soft options regarding offences committed under the Wildlife Acts. A major concern is that, under the Bill as worded, a person could get off lightly on a first offence. The Minister amended this section on Committee Stage. Under subsection (1) the Bill, before being amended, stated the maximum fine was £50 and it did not provide for a prison sentence. For a second offence the fine was £100 and no prison sentence. For a third offence it was £200 and, again, no prison sentence. The Minister introduced a new maximum fine in relation to a first offence of £500 or three months' imprisonment or both; £1,000 or six months' imprisonment or both for a second offence and £5,000 or 12 months' imprisonment or both on conviction for a third offence. I am seeking a maximum fine of £1,500 for all offences or a term not exceeding 12 months in prison, or both. I do not see any reason those fines and terms of imprisonment could not apply to all offences as a judge will still have discretion as to what fines to impose. Leaving it open strengthens the legislation. What I propose will act as a greater deterrent and offences will not occur. These penalties apply afterwards. I hope the Minister accepts the amendment. It provides that for first, second or third offences the maximum fine will be £1,500 and the maximum prison sentence will be 12 months.

Section 68 will amend and add further to section 74 of the principal Act which sets out the penalties in the case of a conviction under either the principal Act or the amendment Act. I will explain the reasons this revision is required.

In the first instance, the financial penalties which were laid down in 1976 need to be increased. A person convicted of what might be termed an ordinary offence under the Act, for example, would have been liable to a fine of up to £50. The amending legislation increases this potential fine for a first time offence to £500. There are similar level increases in respect of second or third offences and the maximum penalty in respect of a conviction for an ordinary offence under the Wildlife Acts will now be £1,500 and or imprisonment for 12 months.

For what might be termed more serious offences including, for example, damage to NHAs, the penalties proposed are obviously stiffer. The penalty for a summary conviction in respect of an offence of this type is a fine of £1,500 and or imprisonment for a term not exceeding 12 months. The penalty for a conviction on indictment is a possible fine of up to £50,000 and-or a term of imprisonment not exceeding two years. The maximum penalty for a similar offence under the 1976 Act was a possible fine of £500. For the first time there is provision in this legislation for a term of imprisonment on conviction of an offence. This combined with the heavy financial penalties now being put in place will, with the other measures introduced in the Bill, serve to enhance greatly the protection and conservation of our important habitats and our wildlife generally.

Deputy O'Shea's amendment would do away with the current graduated system of penalties for ordinary offences under the legislation. My proposal to maintain the graduated system of penalties for ordinary offences, as has been the case under the principal Act, is based on the advice of the Attorney General's office. This advice was that it would generally be inappropriate to have the same level of penalties for first offences as for repeat offences. This is a view with which I concur.

There are potentially many circumstances arising under the wildlife legislation where an individual, through an oversight or a lack of knowledge of the legislation, might commit a relatively minor offence. If this happens on one occasion, it would be unreasonable to impose on that individual a significant fine, possibly £1,500, and-or 12 months imprisonment as would be the case under the Deputy's proposal. A £500 fine and-or a three month term of imprisonment, as proposed in my amendment, represents an appropriate punishment. If the same individual were to commit a further offence under this subsection, under the graduated system the offender would be potentially liable to increased fines when a defence based upon ignorance of the legislation would not carry as much weight. On the third conviction the fine would be equivalent to that imposed on summary conviction of a more serious offence under the Acts.

Under the Deputy's proposed amendment such an offender on conviction following a first offence would be immediately liable to a fine of up to £1,500. While I believe a penalty of this level is appropriate for more serious offences, such as a breach of a NHA order or an offence involving protected species, I do not see how this can be treated the same as a comparatively insignificant offence. Hence my acceptance of the advice of the Attorney General to retain the graduated system that is already in place.

The Minister's arguments are not convincing. At the end of the day, the penalties imposed are at the discretion of the court. We are dealing with ceilings, as it were. I am seeking a ceiling of a £1,500 fine and-or 12 months imprisonment in respect of first, second or third ordinary offences. If a person is guilty of a relatively minor offence or a substantial defence could be mounted on the basis of a lack of knowledge, we should be able to trust the Judiciary to deal with it appropriately in terms of penalties.

The issue is to have the ceilings high enough to act as a deterrent. What we want to achieve with these penalties is that the first offence does not happen. The Minister has made up her mind on this and her legal advice does not coincide with my view on how the matter should be handled. I will withdraw the amendment but I ask the Minister to look at it again before bringing the legislation to the Seanad. What is being implied is that the graduated system, the penalties for which have been strengthened in this legislation, is needed to ensure that judges impose appropriate penalties. I believe the Judiciary is more prudent. It does not follow that inappropriate penalties will be imposed under the amendment or that the existence of a graduated system will result in only appropriate penalties being imposed.

We discussed this matter on Committee Stage and I am aware of the Deputy's strong views on it. However, the Deputy is correct that I am adamant on this point. I have given it a great deal of thought. It is most important to update the fines and provide for imprisonment but the graduation system is important for a number of reasons. For example, although a person could be sentenced to prison for what could be termed an ordinary offence, I do not envisage it being utilised in the majority of cases. We must ensure there is legislation that will act as the deterrent which the Deputy is seeking. However, I believe the best approach is through the graduated system I am proposing.

Amendment, by leave, withdrawn.
Bill reported with amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

I thank the Members for contributing on all Stages of the Bill. It has been a useful exercise. I also take this opportunity to thank my officials.

I thank the Minister. It is obvious that she carried out extensive consultations with the relevant bodies who have an interest in the Bill. The Minister's explanations of the various sections on Committee Stage were useful and it was appreciated that she accepted some of our amendments. On Report Stage it was obvious that the Minister had considered our amendments further and taken advice on them. I thank her for that and appreciate the consideration she has given us.

I compliment the Minister on bringing this Bill before the Dáil. It had a long gestation which started before the Minister came into office. I compliment her on being open minded to suggestions and arguments from this side of the House. When the Bill goes through the Seanad and is signed into law by the President, I hope it achieves its objectives and that the conservation agenda, particularly the preservation and protection of our wildlife, is achieved. I wish the Minister every success in that work.

I join my colleagues in thanking the Minister for the opportunity to debate this Bill at long last. She is aware that since I was elected to this House in 1992 I have sought the introduction of this legislation. It is a great pleasure to know it is on its way, but I urge the Minister to take up the points regarding its enforcement. Legislation is only as good as its enforcement. I appreciate her points about the necessity to ensure wider coverage of biodiversity and wildlife issues as well as the enforcement of the legislation. I hope she will add to that trend and I urge her to favourably consider the Irish Seal Sanctuary, which is doing great work and providing considerable education and awareness of wildlife issues. It seems to have come up against closed doors in its requests for assistance from the Government. This Bill presents an opportunity to show bona fides in that area.

As well as our having a role in protecting wildlife, there is much we can learn from wildlife. Many species of wildlife have much to teach us in terms of organisation. While ants are small creatures, their social structures could teach us more about co-operation than our own species who seem to be obsessed with competition.

The ability of the swallow to fly around the earth five times in its 11 year lifespan or to take three months to fly 6,000 miles to South Africa shows enormous endeavour, persistence and determination, traits which humans value. We are humbled by the awesome majesty of species such as the right whale, which when born weighs a tonne and as an adult weighs 60 tonnes. These facts keep us humble as a species.

It is out of character to talk of protection and awareness of the natural world against the background of carted stag hunting, an issue with which the Minister must deal. To refer to certain species, such as foxes, as vermin, as some colleagues did, is not in the spirit of this Bill. The Bill is about valuing the place of every creature in the eco-system, which is ours to protect and of which we are a part. The Minister said she is concerned about the extinction and protection of species of our wildlife. It is a short step between a species being supposedly plentiful and widespread to it being extinct. We have only to reflect on our past when the golden eagle and wolf became extinct. We still talk about keeping the wolf from the door. Those species are part of our psyche and our culture, but they are now extinct. I hope this Bill will enable us to look to the future to ensure we protect that downward trend and our diminishing biodiversity, which poses a danger for us. I wish the Minister well in countering that trend.

Question put and agreed to.