Seanad Éireann debate -
Wednesday, 2 Dec 1931

Vol. 14 No. 40

Mines and Minerals Bill, 1931—Second Stage.

Question proposed: "That the Bill be now read a second time."

Colonel Moore

There is one matter to which I wish to draw attention. Under the heading of Definitions on page 3 of the Bill I observe in section 1, line 38, the following words: "the expression ‘minerals' includes all minerals and substances in or under land obtainable by underground or surface working." The word "substances" seems to me very indefinite. What it actually means I do not know. It is used here and throughout the Bill. I looked in the dictionary to see what the word "substance" means, and I find that it covers practically everything. It might refer to trees, turf, gravel, stones, or anything above the ground or under the ground. If this Bill deals with everything we have in this country above and below the ground I do not really know where we are.

I will give the Seanad some of the definitions of the word that I found in the dictionary. The dictionary describes as a substance that in which qualities or attributes exist. That is pretty wide. Another definition is the existence to which qualities belong. That is not very clear. The third definition is that substance constitutes anything—what it is. The fourth definition is that it is the essential part of anything. Other definitions describe it as body, matter, property, estate, foundation, ground, confidence, corporeal, material. The word comes from the Latin substare, to be under or present, to stand under. It seems to me that the word ought to be taken out and some better word substituted for it which would have some relation to minerals. I am not questioning the object of the Bill, but that word seems to me to be an extraordinary one to use.

In Ireland we have a lot of turf and the people depend largely upon it as a fuel. That is certainly under the earth, and when turf is cut the cutters sometimes go to a depth of fifteen or twenty feet. Are all the bogs to come within the scope of this Bill? Are all the trees to come under it? Will all the gravel that is used for building come under it? In sub-section (3) of section 1 the following appears: "references to working minerals shall include references to working carrying away, treating and converting minerals; the word ‘surface' when used in relation to land includes any buildings, works, or things erected, constructed or growing on such land." Everything is included whether under or over the earth; everything comes under the heading of substance.

If we look at page 8 of the Bill we will find the following: "Where, in the opinion of the Minister, minerals are owned in such small parcels that they cannot be properly or conveniently worked by themselves and that by reason of that fact there is a likelihood that such minerals will be left permanently unworked." That would cover all the turbary land in Ireland, where people have small pieces of turbary. I would like to know if one is correct in assuming that all these things will come under the Bill. I will not develop the matter very much more. What I have referred to ought to be corrected or explained.

Mr. Linehan

I agree with Senator Colonel Moore that there ought to be some explanation given as to what the word "substances" includes. In the 1903 Land Act, which dealt with minerals, certain substances were excluded such as sand, gravel, stones and clay. Under this Bill the privilege of dealing with those substances, which up to this the occupant of the land enjoyed, appears to me to be in grave danger of being taken from him. That may not be the intention, but it would be well to have an explanation from the Minister as to what is meant by including all these things as minerals.

There is another point in connection with this Bill to which I would like to refer. What I have in mind is the reference to the creation of a new Board. When we were under the British régime we had the grievance that the number of Boards in this country was far in excess of the number necessary for carrying on the work. I would have no objection to the establishment of a Board now if I had some assurance, or there was even a prospect, that the Board would develop the minerals in the country wherever they exist. That would tend to provide employment and would become a valuable asset for the State. I know that this question of minerals and their development has been under consideration by our own Department of Agriculture and its predecessor under the former régime for at least a quarter of a century. I am aware that a special section of the Department of Agriculture has the duty of investigating reports about minerals wherever they are found to exist.

As a matter of fact, under the Land Act of 1903, by which the minerals practically became the property of the State, it was the duty of Land Commission inspectors to report upon any minerals which they might discover while carrying out their ordinary operations in different parts of the country. Those reports went to the Land Commission, and I understand the practice was to transfer them to gentlemen who were dealing with minerals in the Department of Agriculture. I have never seen any reports as to how that work was carried out, whether any minerals were discovered, or whether, if they were discovered, they were developed. I understand that this branch of the Department of Agriculture is still in existence. It does not appear to be the intention under this Bill to abolish this branch or to transfer its functions to the new Board that we are to establish.

This new Board will cost a good deal of money. I imagine if there are three members of the Board they, with a staff of officials and inspectors, will cost something like £10,000 a year. Once a Board is established it is very hard to abolish it, even if there is no work to do. The branch of the Department of Agriculture which has been selected for the purpose of dealing with minerals has not, so far as I can observe, been doing very much work, yet the officials are drawing their salaries. It may be that the same thing will occur if we establish this new Board. It may be that even though they will discover that they can do no good they will still retain their positions. Those are matters that should be explained by the Minister. He should tell us what he proposes to do with the members of the staff already dealing with minerals, whether it is intended to retain them, whether the two bodies will be kept working together or whether one will be absorbed by the other.

Dr. Gogarty

Under the British Government men were engaged for many years carrying out a most exhaustive mineral survey of Ireland. This culminated in the display in what was known as the Curved Gallery. In that Gallery every single piece of mineral-bearing earth was exhibited, and the districts from which each exhibit came were clearly set out on a label attached to it. The collection and classification of all those minerals must have cost hundreds of thousands of pounds. It took many years to survey the whole country, collect various classes of minerals, often from the very remotest districts, classify them and subsequently arrange them for exhibit. Anybody interested in the minerals of the country had merely to go to the Curved Gallery. There were to be found examples of Galway's mineral resources, the famous black marble of Kilkenny and numerous other interesting things. I would like to know what has happened to that wonderful collection, which must have been worth hundreds of thousands of pounds. It was a veritable mineral dictionary, and it has disappeared. I, and I am sure very many others, would like to know where it is.

Mr. Blythe

With regard to the question asked by Senator Gogarty, I understand that various specimens which were formerly in the Curved Gallery were carefully packed away. I have not been in touch with the matter for a considerable time, but I am given to understand that the stones and pieces of earth which were exhibited in the different cases and labelled were packed away with such care that it would be possible without any difficulty, when a suitable place is found, to re-arrange them in their cases. The fact is that no damage at all has been done to the collection. With regard to the cost of making that collection, I have no doubt it was considerable, but the figure was not perhaps as high as the Senator suggests. I understand that no loss has resulted by reason of the removal of the collection, except that the various exhibits are not at the moment available to the public, and will not be until a suitable place is found for them.

Minister for Industry and Commerce (Mr. McGilligan)

I understand a point has been raised about some Board already in existence. That Board, it is alleged, has functions very much the same as are suggested for the Board it is proposed to establish under this measure. I know of no such Board with functions like these, and, consequently, I see no possibility of any overlapping. The Board proposed under this Bill will have certain judicial functions in regard to the non-State mines and minerals, and certain small matters will be referred to it. It will have certain advisory functions in some cases and certain judicial functions in other cases. The judicial functions will almost entirely follow with regard to non-State mines and minerals. It is an entirely new Board with absolutely new functions.

Mr. Johnson

Perhaps the Minister will give us a general statement relating to the intentions of the Bill?

Sir Thomas Esmonde

This question of minerals and their development was one to which my old Party gave considerable attention. It was considered advisable then as now that the minerals should be regarded as the property of the nation. I think it is quite proper that the nation should own the minerals that exist in the country. Senator Gogarty made some inquiries about the geological survey of this country. I am sure that is a matter about which the Minister for Industry and Commerce will be able to give full information. The Minister for Finance is sure to know something about it, too, because any survey of that kind entails expenditure. It may be that the geological surveys have not been sufficiently progressive. I do not think there are many minerals in this country, but whatever minerals there are they should belong to the State, to the people of the country. In the undeveloped portions of the globe minerals belong to whoever finds them. The result is that many fortunes have been diverted from the pockets of the ratepayers. I am sure many people would object to that as applied to the taxpayers of Ireland. The Minister for Finance may be able to tell us how the geological survey of this country is progressing. I do not expect they will find many minerals. They will, no doubt, find some in Wicklow, in the North of Ireland, in Cork and some other places, but on the whole there are not sufficient minerals to make it worth the while of the taxpayers to monopolise them.

Colonel Moore

The Minister was not present when I was speaking. What I am anxious to get from the Minister is the meaning of the word "substances."

Mr. McGilligan

I understood the custom of the House was that Second Reading speeches, on the part of Ministers, were more or less taken as having been previously made, and that consequently there was no necessity for such usual introductory speech as is common in the other House. The purpose of the Bill, leaving out the intricacies, the machinery and the details, may be simply stated in this way: under certain of the old Land Purchase Acts mineral rights on sale did not pass to the tenant purchaser. They were reserved to the Irish Land Commission. That is a general statement which will cover the majority of cases. There will be exceptions with regard to certain substances which did pass to the tenant purchaser as well as in regard to mines which were being worked at the date of sale. They still remain in a particular owner's possession. The general result of the Land Acts was that mines and minerals not being worked at the date of sale passed to the Irish Land Commission. Under the Constitution, these lands are caught by Article 11. In addition to these, what are described as mines royal, gold and silver, are held for the State. There may be, in addition, other lands which were in the possession of a State Department. All these things are controlled by Article 11 of the Constitution, which reads:—

All the lands and waters, mines and minerals, within the territory of the Irish Free State (Saorstát Eireann) hitherto vested in the State, or any Department thereof, or held for the public use or benefit, and also all the natural resources of the same territory (including the air and all forms of potential energy), and also all royalties and franchises within that territory shall, from and after the date of the coming into operation of this Constitution, belong to the Irish Free State (Saorstát Eireann):

that is the complete vesting of ownership.

subject to any trusts, grants, leases or concessions then existing in respect thereof, or any valid private interest therein,

I call attention to that phrase because it is probably the one that will hereafter be most disputed in courts of law when actions affecting pieces of land come before the courts. The Article continues:

and shall be controlled and administered by the Oireachtas, in accordance with such regulations and provisions as shall be from time to time approved by legislation...

There is the final proviso that the lease granted shall not extend for more than 99 years. Up to date the State held a certain amount of mines and minerals in its possession which came to it either through the Land Commission or some other Government Department. Except in the case of the State Lands Act, which does not affect mines or minerals, no provision has been made in accordance with the latter part of Article 11 of the Constitution. No regulations have been approved by legislation, and it is to fill that gap in Article 11 that this Bill has, for the main part, been introduced. Under it we want to get the approval of the Oireachtas for the regulations to be made for the disposal of mines and minerals which have come into the possession of the State. That is the main reason for introducing the Bill.

Part III deals with the leasing of State mines and minerals, and Part II with the establishment of the Mining Board. As far as numbers and personnel are concerned and in relation to other matters set out it gives certain powers. Under Part III the Board may be made use of in a certain limited way. Under Part IV considerable use is made of the Board. I now come to deal with the difficulties that have been represented to us as hindering the working of mines and minerals, owned privately, upon which Article 11 of the Constitution will have no repercussions whatever. It has been frequently represented to us that owing to the fact that, say, deposits are found lying under certain lands that are held in separate ownership they cannot be worked: the mineral may be lying under one land, but the land which gives proper access to it is in the possession of another party, and owing to the difficulty of getting agreement between private parties holding land in separate ownership there has been, we are told, that lack of development that might otherwise have been expected.

Under Part IV of the Bill we do seek to interfere to a certain degree with private property, recognising private property in land, but when we do interfere we surround that interference with a great deal of restriction. Section 18 speaks mainly of the grant of mining rights in non-State mines and minerals. The sub-sections which follow indicate the motives that would be behind such interference with private property. The first sub-section states: "Where minerals are comprised in or lying under land subject to a lease, exception, reservation, restriction, covenant or condition or otherwise incapable of being worked without the concurrence of two or more persons," then if there is a likelihood that the minerals will be left permanently unworked, the Minister may, in accordance with the provisions of the Act, grant to any person who has an interest in such minerals and who, either by himself or through his lessees, desires to work such minerals, a right to work such minerals. Sub-section (2) refers to minerals that are owned in such small parcels that they cannot be worked properly or conveniently by themselves and must be worked under an amalgamation. The greatest interference with the recognised rights of private ownership in mines and minerals occurs in sub-section (4) of section 18, and is phrased in this way:

(4) Where, in the opinion of the Minister, minerals are not being worked or are not being worked efficiently and no satisfactory reason is shown by the person having an interest therein to the Minister for not working such minerals or for not working such minerals efficiently, the Minister may, subject to and in accordance with this Part of this Act, grant to any person who desires, either by himself or through his lessees, to work such minerals, a right (in this Part of this Act referred to as a mining (unworked minerals) right) to work such minerals.

There is a notable difference there from the other sub-sections in two respects. The first is it will only come into operation for the general reason that the mines or minerals are shown not to be worked or are not being worked efficiently; and, secondly, the lease in this case may be given to any person, whereas in the other sub-sections it will be given to a person having an interest in or adjacent to other small parcels and so on. Although that seems a rather arbitrary interference with private rights Senators will see if they read through other parts of Part IV that there is considerable preservation of the ordinary right. There has to be, first of all, a reference to the Mining Board and to the report received from the Mining Board on the matter. In considering that report the Minister must take into his consideration, first of all, the public interest: that the public interest cannot be served except by granting the lease, and secondly, he must satisfy himself that there is no other way of getting the minerals in that particular area worked except in the way suggested.

That is so far as interference with private rights is concerned. The exercise of such interference is subject to a great deal of restraint. Over all there has to be consideration of the question whether the public interest demands it or not. In addition to the power to grant a right to work minerals power is also given to grant ancillary rights in the case of a person who owns minerals and cannot work them because of certain difficulties. There are certain ancillary rights which may be sought and granted. They amount to the right to interfere with property that may be standing on the ground beneath which the minerals lie. The ordinary ancillary right would give the right to a supply of water and to do the other things set out.

There is a later section which turns rather in the opposite direction. It is the restriction placed under Part V of the Bill which deals with the working of minerals required for support: where a person has the right to work a mineral and where the working of this mineral may destroy property that, for instance, stands above the mineral, in such cases certain restrictions may be imposed.

The main point to which attention ought to be directed in the Bill is in Part III, which deals with the leasing of State mines and minerals. It is not proposed to consult the Mining Board except in certain small particulars with regard to the right of entry and compensation. It is not proposed to consult the Board as to whether or not a lease should be given or to consult either House of the Oireachtas whether or not before the event that lease should be given on terms and conditions to be stated. It is considered that no business in the development of mines and minerals would occur through such a procedure. The right is given here, if the legislation is passed in its present form, to the Minister if he considers it in the public interest that he should then grant a lease, the only reservation being that the grant cannot go outside the terms of Article 11 of the Constitution. It cannot be for a longer term than 99 years. There has to be a return made of the leases completed in any half year after that half year has passed. The granting of a lease of State mines and minerals under the provisions of this Act will lie entirely with the Minister. If he has to make a report then he will have to make it after the event. Neither House of the Oireachtas can query the conditions and the terms upon which such a lease is given, or seek to vary its terms. That is distinctly left to the responsibility of the Minister, which involves the responsibility of the Executive Council. That policy has been adopted because the only other suggestion that could be taken up in this matter would be to follow the procedure laid down under the State Lands Act. Under that Act where leases are proposed to be made they are laid on the Table of the two Houses for so many days and the granting of them may be refused, if objection be taken. We consider that procedure would not be suitable to apply to a measure dealing with mines and minerals. It would hamper development if development is likely in the case of the mines and minerals in the country. The distinction ought to be quite clear. In the case of ordinary property a piece of land may be wanted for the ordinary use to which land is put. The value of that can be estimated. There is nothing secret about it. It is quite one thing to lay proposals in regard to that on the Table of the two Houses, but it would be quite a different thing to ask a man who through his own enterprise and scientific knowledge has discovered that there are minerals in a certain portion of the country to make him come before both Houses with his proposals, to have these proposals bandied as between the two Houses with the chance of their being thrown out or of enabling other people to come forward and make a better offer on the result of that man's scientific knowledge and his courage. We propose to keep control of these leases entirely in the hands of the Minister, making him give publicity after the event on anything that has to be done in the way of a lease relating to State mines or minerals. The other portions of the Bill, dealing with the machinery and detail can be discussed on Committee.

Dr. Gogarty

I would like the Minister to deal with sub-section (4) of Section 18 and to explain to the House the bearing of it.

Mr. McGilligan

That portion of the Bill deals with the granting of rights in non-State mines and minerals. It has no application whatever to mines and minerals in the possession of the State. This has peculiar reference to mines and minerals in private ownership.

Dr. Gogarty

Can the State step in if there is an attempt to block development in this country?

Mr. McGilligan

Under this section it is going to have that bearing.

Mr. Bagwell

There is not a great deal of mining being done in this country. There are probably very few in this House who really have any first-hand knowledge of mining in its various forms. Senators, therefore, will neither be very enthusiastic nor hostile to a measure of this kind. In view, however, of the fact that we have got to pass the Bill, we take on ourselves a certain amount of responsibility. Legislation of this kind will involve a certain amount of expenditure. I listened very carefully to the Minister's statement. What he did not appear to tell the House was the reason for this Bill. If the Minister could give the House one or two examples to show that it is necessary to have legislation of this kind, then I think the House would give the Bill a Second Reading with a great deal more enthusiasm.

Mr. Crosbie

I want to ask the Minister whether this Bill deals merely with the minerals of the country. What I am anxious to know is would it not be possible in case there was a discovery of such a valuable commodity as fire clay to have it protected. There are certain qualities of clay—I am told are of very great value—that have recently been found within the vicinity of Cloyne. I am anxious to know whether these would be included in the term "minerals." I would be glad if the Minister would deal with that.

Dr. Gogarty

The Minister has satisfied me by the statement he has made with reference to one of the most valuable mineral deposits that we have in Ireland. There is not much china clay of any sort to be had anywhere. It is a rare commodity. Some valuable deposits of china clay have been found at Portnacloy in the County Mayo. I met a French geologist there who was of the opinion that the deposit was very valuable. Some American financiers came over to Cornwall and merged the three companies engaged in the china clay mining business. The position with regard to china clay is that the demand for it exceeds the supply.

The reason that I put a question to the Minister was that it is quite conceivable that these companies formed in Cornwall would acquire Portnacloy for the purpose of keeping the large deposits to be found there out of the market in order to enhance the price of the Cornish deposits. When discussing this Mayo finding it was estimated that it would take about £300,000 to work it thoroughly. The deposits are deep and dirty. A small harbour would be required for the development at the deep water port of Portnacloy. This is one of the most important discoveries that have been made in recent years. If any attempt were to be made by outside companies to prevent development in Ireland there it would be a very serious matter. But the Minister's exposition of sub-section (4) of section 18 has satisfied me.

Mr. Jameson

Would the Minister say if oil is included?

Mr. McGilligan

Senator Bagwell asked the reason for this Bill. Part III of the Bill has been required for many years. I have had complaints addressed to me because legislation to effect the way of disposing of minerals outlined in Article 11 of the Constitution had not been brought in earlier than this. We felt that it was preferable to deal with non-State mines and minerals as well as mines and minerals brought in under Article 11 of the Constitution in the same Bill. There is an absolute necessity for Part III of the Bill. Article 11 of the Constitution did grip certain property, but that property has not been disposable because the Oireachtas had not approved by legislation of regulations for the disposal and working of it. My Department has had some 30 or 40 applications which we have been asked to register pending the passage of this Bill. There are other people who desire to have rights granted to them in State property such as State mines and minerals. I cannot say that these cases were sufficiently well examined to enable me to state that had there been legislation leases would automatically have followed. All that we could do was to tell these people that they would be registered as from the date on which they wrote, and that the matters dealt with could be considered when the legislation we had in view was passed.

In regard to non-State mines and minerals we have received a variety of complaints from people. Some people have said that they have been unable to work minerals for the benefit of the owners and of the country because of the recalcitrant attitude adopted by some individual owner. Cases of that kind will fall under sub-section (4) of Section 18, for determination as to whether the public interest is involved or not. Other instances have come before me of people holding only a small portion of a mineral area who represent that it is not worth while embarking on the expense of working the mineral unless they can be sure that the whole area will be left open for them for complete development. There has been a demand for Part III of the Bill arising out of the fact that Article 11 of the Constitution is there. It always looked to a proposal of this type to deal with the disposal of the rights therein mentioned. Cases have been brought to our notice in which it was represented that hardship had resulted in connection with privately-owned mines and minerals because of the absence of legislation to deal with them.

Senator Crosbie talked about fire-clay. In so far as the Bill makes provision for the development of fire-clay I think it will be found entirely up to the Senator's expectations. Whether the fire-clay is in the possession of the State, or whether it is held under private right, in either event, on the proper conditions being satisfied, there is power, I think, to grant a lease to anybody proposing to work it. There may be a necessity for putting in restrictions upon people working certain clays so as to prevent them taking these clays out of the country rather than having manufacturing work done here. That is not directly aimed at in this Bill, but it arises out of one of the clauses. For instance, when a lease is to be granted under Part III of the Bill, sub-section (4) of Section 11 provides:—

Every such lease as aforesaid shall be made subject to and shall contain such covenants, conditions and agreements (other than for the renewal of the lease) as the Minister shall consider proper or desirable in the public interest or otherwise and shall agree upon with the person to whom such lease is granted.

As a matter of fact, the clause, as drafted, is so wide that I think any restriction it is considered desirable to make in the public interest can be imposed on people who desire to avail of this provision. Senator Dr. Gogarty's main point is met by sub-section (4) of Section 18, which relates especially to mines and minerals in private ownership. Again, there may seem to be there a complete interference with private rights, but I would like to point out that there are quite a number of restrictions. I do not think these will unduly hamper anyone, but will tend rather to ensure that justice is done as between certain parties.

There has been a reference to the Board. It is provided in Section 20 that "neither a mining right nor an ancillary right shall be granted unless it is shown that it is not reasonably practical to obtain such right by private arrangement for any of the following reasons," and the reasons are then set out. The fact is that when the Minister is considering the report of the Board he is bound to consider any representations made to him. The whole thing is to be ruled by the one criterion: Is it in the public interest that such a grant should be made?

Senator Jameson spoke about oil. We intended to cover oil, petroleum, and such things. If Senators refer to the definition section they will find that the expression "minerals""includes all minerals and substances in or under land obtainable by underground or surface working." I think that will be found wide enough to cover most things.

As far as Part III of the Bill is concerned, we do not set out there even to be as precise as in the definitions, for the reason that Article 11 of the Constitution grips what are called minerals, but what "mineral" means under Article 11 of the Constitution has not been defined, and we do not propose to define it. In any case that would arise, therefore, there would be the question to be decided, first, is the property in State possession by reason of the fact that it is what is called a mineral under Article 11 of the Constitution, and, secondly, do we give in a proper way the right to dispose of it? That will have to await judgment and settlement by ordinary case law. We think that the phrasing of the matter in Part III is wide enough. We do not, by any mischance, leave out anything that may be gripped by Article 11 of the Constitution.

Question put and agreed to.

Committee Stage fixed for Wednesday, 9th December.