Before we take up consideration of the Committee Stage of this Bill, I wish to say that I consider amendments Nos. 1 and 2 out of order, because they tend to increase the charge on State funds, which is not permissible on an amendment by a private member.
Forestry Bill, 1955—Committee and Final Stages.
Sections 1 and 2 agreed to.
SECTION 3.
Question proposed: "That Section 3 stand part of the Bill."
I, of course, accept your ruling that my amendments are out of order, but I wonder is it permissible to say a word about the matters they involve?
Certainly.
The object of this Bill is, I think, a very reasonable and proper one, namely, to facilitate the Minister in acquiring land for forestry, where possibly the title may not be absolutely perfect, but is, I presume, a sufficiently good title to be accepted by an ordinary willing purchaser. The intention is to enable the Minister in such a case to negotiate such a purchase and to avoid the long delays that might be attendant on putting into operation the full clauses of the Land Acquisition Act which might involve having to lodge the purchase money in court, and leaving it to the parties to try to get it out after, a course which would cause great expense and which is sometimes quite impossible to succeed in, so that the money might be there for ever.
All that, I think, is quite wise and obviously desirable and reasonable. The point which I wish to bring to the attention of the Seanad and the Minister is the provision that, after the legal officers of the Minister are satisfied that there is a reasonably good title and have paid over the purchase money, if it should prove afterwards that a mistake was made, the person who claims to be the proper owner and who should have been paid can make a claim and be paid within six years. The point that occurred to me on that was, first of all, that it is possibly a matter of some importance, because what is done in this Bill may form a precedent for what may be done in the future in other Bills in which there is a like power of acquisition by the Minister or a public authority; consequently, it did seem to me that the period of six years named is too short and is perhaps inappropriate. In the normal course, if lands have been acquired and occupied by the Minister, then although he had not a good title at the outset, he would acquire a possessory title in 12 years. I would suggest that, during that period of 12 years, it should be open to the person who claims to be the true owner and the person who should have been paid to make his application to be paid.
The matter will probably arise very infrequently, because I am quite certain that in no case is the Minister likely to pay over to a person who has not such a good holding title that it is likely to be defeated, but it may occur occasionally. Possibly, too, there might be a point under the Constitution involved, that is to say, that, if the period were not what I might call the ordinary legal period of 12 years, it might be suggested that the result of the section would be that the State was acquiring the private property of a person without paying compensation at all to the true owner.
I think, therefore, that the point is one which merits the consideration of the Minister. To make the period 12 years is probably, in practice, not going to affect more than a very few cases, but the principle involved is important. If such a change were made, it would not in the least show up the acquisition of land under the Bill. Of course, it is quite easy to say, "Why should not the true owner make his claim in six years? Is six years not a very long period?" That is so, but cases do arise when people are out of the country and I myself have known such cases. Therefore, I think it is incumbent that in the Bill the provision should be that the period in which the true owner might claim to be paid should be extended to what I might call the statutory possessory period of 12 years, and not be limited to six years, as it is in the Bill. That is the amendment which I wished to move.
I should like to support this amendment suggested by Senator Cox. I think that what he says is valid and true. The owner frequently may be out of the country or otherwise engaged and may not be alive to his legal claims in this matter. I do not really see why the ordinary period of limitation which applies to real property should be shortened in a case of this kind. The law on the statute of limitations is very clear in this country and the normal period in relation to real property is 12 years. I do not see why it should be shortened to the ordinary six years which applies in the case of ordinary actions.
There is before the Oireachtas at the moment a Bill for a new statute of limitations, and I suggest that the time, if there is going to be an alteration in this respect, when it should be dealt with is when that Bill is before the Oireachtas, when the whole question of the limitation period will be debated and discussed. It could be appropriately altered then in connection with any changes made in the general principle in the statute of limitations. To bring it in in this stage is, as Senator Cox says, conferring a right on the State and on the Minister greater than it is on the private individual, and is giving the Minister power to acquire title in six years, whereas the private individual would take 12. That, to my mind, is favouring the State as against the individual, favouring bureaucracy, and against the general spirit of the Constitution. I suggest that if there is going to be a change in the statute of limitations regarding the acquisition of real property, the time to make that change is when the present limitation Bill is being debated before the other House or this House.
I do not think the analogy with the usual statute of limitations in regard to real property is quite sound. This provision, Section 3 of this particular Bill, is put in for the purpose of expediting the operations of the Forestry Department. From the point of view of the ordinary layman, it seems to be a provision for enabling more than one person to be paid for the same land. As I understand it, that is the practical point of view, and I am all for the individual as against the State. Payment will be made to A for a particular piece of land. If, within six years, B turns up and proves that he has a better title, he may also be paid. If he is paid, provision is made under sub-section (3) for the Minister to recover the money paid to A, but one does not need to be very experienced in this country to know that, in nearly all the cases of this kind that arise, the money paid to A will, in fact, be irrecoverable.
The position is that in the period of six years the State is open to having to pay a second time for land which it already has acquired. In modern conditions, six years seems to be rather a long time, sufficient for news to get abroad—certainly sufficient for news to get through this country and in present circumstances for people, say, in North America, the United States and Canada, in England or in Australia to hear that land an individual conceives himself to have a claim to has been acquired for the purposes of forestry. To leave the position open, where a second payment might be made, for a further period of six years appears to me to be asking rather too much. If you are going to prosecute forestry on the lines which we all desire, you must take some steps, and one of them is to reduce the difficulties about acquiring proper title to land.
This provision, in fact, is for the reasonable period of six years. I do not think there is a good analogy with the general situation of the statute of limitations, and in this instance, where we are all interested in getting forestry accomplished, six years is a reasonable time. It may result in expense to the State if extended to 12 years, which seems to me to be rather too long, considering the matter on its merits and in modern conditions, and considering what used to happen in the days of the sailing ships when even six years was long enough. In the present conditions, it is a substantial period in which to allow a person to get information about some transaction dealing, for example, with the farm on which he was reared.
I am in sympathy with the proposals put forward by Senator Cox and I was anxious to hear Senator Hayes on the matter, but I fear that he has not made a case for the substitution of six years for 12. You are giving a privilege to the Forestry Department as against the individual. As far as the increased cost that might arise is concerned, that question, to my mind, does not enter it, because, if the Minister was prepared on Report Stage to go back to the original position of 12 years, the State would be put in an advantageous position in regard to the payment of moneys rather than if the period were six years.
Senator Cox has raised a very important matter also as to whether it would be lawful under the Constitution. We are all anxious to expedite afforestation, but we do not want to rush a step of this kind. If only one case is involved, we must safeguard the rights of the individual as against the State.
A six year period would make it more difficult than would the 12 years period as proposed by Senator Cox. We know that the Minister would put up a proposal against the amendment of Senator Cox, on the grounds that it would hold up the acquisition of lands or prevent planting, but there is no reason why it should do so. We should see that the rights of the individuals are protected in these matters.
I quite appreciate the arguments that have been made on this point, but I think that we have provided sufficient safeguards in the provisions of this Bill. For instance there is adequate provision for the payment of compensation to claimants who come along after the land has been acquired. In this section, we are making provision to make sure that, so long as we are using compulsory powers of this nature, the person from whom the land is taken has been in occupation for six years at least. He will have to be for six years in occupation of the land before we will deal with him, and, at the same time, there is a general safeguard for the interests of any other persons who might have a general claim to the farm.
In the matter of compensation, it is clear that we are being over-scrupulous in safeguarding the rights of any other claimants who might have had a claim to the farm, or to any other portion of the farm. This section is really safeguarding them. Some Senators seem to be under the impression that this is a device to give the Minister full title, but such is not the case. Anybody who goes back to the 1946 Act, and looks at the compulsory powers there, will see that, if the commissioners authorise the Minister to acquire land and the necessary Order is made, that gives the Minister absolute title. Once the visiting Order is made by the Minister, the Minister has an absolute legal title from then on. The provisions in this section therefore are merely to safeguard the interests of those who may have a claim to the farms.
I think we have taken an extraordinary step to safeguard those interests. This was a serious step to take and was an over-generous step by the State to secure the rights of everybody concerned.
Senators Cox and O'Brien have made the case for a 12 year period, but if the Senators would look at Part I of the Schedule, which, by the way, is an amendment of Section 3, they will find a provision in paragraph (1) which reads:—
"In case, within three months after the final determination of the compensation, any person applies to the Minister for payment thereof and—
(i) the Minister is satisfied that that person has enjoyed such interest for a continuous period of not less than six years immediately before the vesting date."
That provision applies to the person in occupation of the land, in the first instance. The most typical example I can think of is that of the young man who stays at home—perhaps the youngest member of the family—while his brothers and sisters go out all over the world, and, at some later date, the father dies intestate. That man's brothers and the other members of the family would have a claim to a share of the lands. Already he is entitled to compensation, if he has been in occupation of the farm for a period of six years. We will deal with him immediately because he has already been in occupation for six years and we pay him, knowing he has had at least an imperfect title for a period of six years. The other members of the family then have a further period of six years in which to prove their claim, if any, and in that case they will be paid in relation to that claim. That actually gives them a full period of 12 years in which they can make their claim.
We have three precedents for the period of six years provided in this section. The first is in the Labourers (Ireland) Act, 1906, Section 11, sub-section (6). The next is the Land Act, 1931, Section 34, sub-section (2) and the next is the Land Act, 1950, Section 28, sub-section (9).
These mean nothing to us, unless the Minister will read the sections.
The Labourers (Ireland) Act, 1906, was passed by the British House of Commons to enable local authorities to acquire land for the building of labourers' cottages and it says in Section 11, sub-section (6):—
"Any person claiming to be entitled to any money paid to another person pursuant to the foregoing provisions of this section may within six years after the payment has been made, on giving such notice as may be required by rules of court, apply for relief in manner provided by those rules to the county court within the jurisdiction of which the land is situate."
That is one Act which I took as a precedent. The second is the Land Act, 1931, Section 34, sub-section (2), which deals with the case of lands, whether the Land Commission acquire them by private treaty or on the open market. It reads:—
"Where the person claiming compensation was under the age of 21 years on the day on which the purchase money was distributed, within six years after such person attains the age of 21 years."
This is a case where the land was held by a minor and where the Act gives him six years after the date on which he attained the age of 21 to re-establish his claim.
The next is the Land Act of 1950, Section 28, sub-section (9), which reads:—
"Where a transfer Order is made in respect of any land, the Land Commission shall be liable to pay compensation in respect of every interest (other than an easement continued by the Order or an easement in lieu whereof a new easement has been created by the Order) subsisting therein immediately before the operative date, but no claim for compensation shall be made after the expiration of six years from that date."
These are three instances in which I found that a period of six years was provided and, I think, personally, that it is a very generous period for a person to make his claim. We will not deal with any person, in the first instance, until he has been six years in occupation.
You are really meeting the 12 years period in the Bill.
I am rather surprised that the Minister should say that he has been generous in this matter. Senator Hayes seemed rather surprised that B should look to be paid, when A has already been paid.
Should be paid by the State.
It seems to me only natural that he would like to be paid. I should like to refer to the fact again that we are making a precedent here. What we are dealing with is the question of the payment of compensation, because, as the Minister has pointed out, the moment the Minister takes over the land, he gets absolute title. The question of title is not what we are talking about therefore; what we are dealing with is the question of compensation. The Minister has submitted that they are dealing only with persons who have been in occupation of the lands for six years. It happens in hundreds of cases, where the person in complete occupation is not the owner and is merely a trustee and perhaps trustee for a child. Naturally, I am not able to take up at a moment's notice the three Acts which the Minister has cited, but in one of them he referred to the fact that a period of six years is provided for, after the owner has attained the age of 21 years. That might mean anything from 26 to 27 years from the date of the Order.
The provisions of this Act are likely to have other effects and likely to be followed in the case of the Dublin Corporation or similar authorities. Therefore, I think one should be careful of what is being done in this matter. Both the Minister and Senator Hayes have submitted that six years would be a reasonable period, but we all know that strange things happen. I know at the present time of a case in which a certain company was taken over something over 12 years ago and the person now claiming to be the rightful owner has really only now become alive to his rights. I do think there is a very important matter of principle involved in this and I would hope that, if it is possible, the Minister might perhaps reconsider the section.
I really assure Senators Cox and Hayes that we have gone as far as we could possibly go in this matter. We could, of course, give 12 years, but there is really no point in it. Surely, in these days, when the distances between Canada and Australia and America have become so much shorter, a period of six years is sufficient for a person to know what is happening at home, and I can assure the Senators that it will not be more than a matter of weeks until some kind neighbour or some other member of the family will tell them what is happening, or what a scamp the brother at home is being. For that reason, I think that six years is an ample time for others to make a claim.
When this Bill becomes law, I imagine there will not be any case in which anybody who has a claim will not come forward within the six years prescribed. Every possible step has been taken to safeguard the rights of any claimant. Perhaps 60 or 70 years ago, when travel between countries was much slower, the period of six years might have been regarded as too short, but even then claimants would have no trouble in finding out what the position was.
There is the type of person who leaves the country and it is very hard to have any respect for their rights. These are the people who go away and leave family, farm and lands derelict and who, because of their claim to those lands, stand in the way of improvements and developments in the district. I get very annoyed by that type of case, and I feel sometimes that we should have extraordinary powers to take over such property. I feel very strongly about this matter, but then it probably would not be right to interfere with the rights concerned. At the same time I have little sympathy with persons of that type and I really feel, in cases like that, that such a person should not be allowed to stand in the way of development.
Question put and agreed to.
SECTION 4.
Question proposed: "That Section 4 stand part of the Bill."
I want to refer to the matter of commonages. The question I should like to have clarified is the procedure the Minister proposes to adopt in regard to the rights of a group of parties on commonages. The Minister may decide that a particular commonage is suitable for afforestation and should be acquired. He may then make the necessary representations to the Land Commission to have this acquisition undertaken. I want to know what is the procedure for bringing a particular commonage to the Minister's notice. I think that is important, because, if we are not clear on that procedure, then a number of things could happen in relation to the proposals to acquire a particular commonage.
The section makes various proposals and lays down the principles on which the work is to be undertaken, where a group of holders of a commonage object to the acquisition. There is provision for compensation by way of reallocation to meet the objector's portion of the original rights in the commonage. Compensation in cash would be of small value in such a case, where the person usually kept a number of cows on the commonage, and it would be better to have some provision made whereby the Land Commission would take powers, in cases where an objector's rights in a commonage were being taken away, to provide him with other land.
I fear—I expressed that fear on the Second Reading—that the operation of this Bill will make a very small contribution to our afforestation programme. There is also the danger that it will contribute very largely to removing more people from the land. The small holdings which those people have are not sufficient to maintain them, and, if you take the rights of commonage from them, it may well happen that, in a few years' time, their original small holdings will be taken over. Whether that would be of national benefit or not is a question which we have not to decide to-day.
The question of the upholding of the objectors and the giving to them of a holding on the commonage will, to my mind, encourage objectors. There may be a number of holders who, because of their circumstances, are put in the position to avail fully of their rights in the commonage and who feel that it would be a financial benefit to them to have the land acquired. But there are others who see the possibility that if the objection of five, six or seven of them are upheld, they will secure a reasonable portion of the land in compensation for their objection.
On Second Reading, we asked the Minister what contribution this commonage would make to the acreage made available for afforestation. I feel it will be very small. I think the Minister admitted in the Dáil that he has not got the figure. That being so, we have a very vague idea of how this whole Bill is going to operate. I should like the Minister to clarify the procedure he proposes to adopt. The principles are laid down in the Bill, but we are still not aware of how the Minister is going to make up his mind as to how he is to get the information, whether it is by representations made by one or a number of holders of the commonage.
Senator Hawkins wants to know what line the operation of this particular section will take. This section is for the purpose of acquiring commonages or part of commonages. The position is that, where some person or persons say they are prepared to sell their interest in the commonage and notify the Department and the Minister for Lands that they are willing to sell it, the forestry inspector will inspect that commonage and appraise it for what it is worth from a forestry point of view. If he recommends acquisition to the Minister in that case, the Minister applies to the lay commissioners for an acquisition order for the whole of the commonage, despite the fact that one, two, three or four people may be objecting to such acquisition. The commissioners must publish in Iris Oifigiúil, and in the newspapers in the area in which the commonage is situated, a notice giving due prominence to the fact that acquisition of the commonage is proposed just as they do in regard to the acquisition of land for the relief of congestion.
Those who do not wish to sell then can employ a solicitor or send a letter, which does not even require a three-penny stamp, to the secretary of the Irish Land Commission, saying that they are objecting. Incidentally, the commissioners may refuse the application for the acquisition order for the whole of the commonage, particularly if there are six, seven, eight, nine or ten who are not anxious to sell for forestry purposes. The commissioners then, after hearing the case made by the objectors, may, if they do not refuse the acquisition order altogether, partition the commonage and give the objectors a fair share. There is nothing wrong about that. That is the way the machinery will work. The first part of Section 4 of the Bill deals with cases where two or more people object to their share being taken up. If two or more object to their shares being taken up, the commissioners may give the portion they are giving in common to the objectors. They would grant a sole right in the case of one objector. The rights of objectors are very carefully safeguarded in this section, so much so that I am giving the commissioners power to refuse the acquisition order, even where people are willing to sell for forestry purposes.
From the Minister's statement I take it that in no case, except where the holders of the commonage rights make an application, either individually or in a group, to the Land Commission to have their lands acquired, will proceedings be taken under this Bill to have the commonage acquired for forestry purposes? There is no such provision in this particular section. The only provision there is is for the Minister to make representations. What worried me was from where should come the initiative. You must have the goodwill of all the people concerned, if this matter is to work successfully. My worry is that, if the Minister decides on making representations to the Land Commission for acquisition, without some section of the holders on a particular commonage being agreeable, and on their having already made the necessary representations, the section will not be as workable as it would be under the procedure outlined by the Minister, as being the procedure that will be adopted. I should like to see that procedure incorporated in the Bill, so that, as soon as the Bill becomes an Act, what I or the Minister will have to say will be done will not matter, but what is in the Act.
The Senator is probably afraid that people other than the owners of commonage may initiate proceedings and whisper into somebody's ear that such a commonage should be taken over for forestry purposes. Suppose that I, for some well concealed desire, wished to let loose the forestry inspectors on commonage owners like a pack of hungry wolves seeking to devour what land they could and suppose I did so, no action could be taken under this section, unless the people themselves were willing to sell. Or, suppose an inspector has a roving commission and sees a particular mountain which he says should be acquired, again nothing can be done. If the people are not willing to sell, the forestry application would be open to rejection by the Land Commission. The Minister would apply to the commissioners for an acquisition order. Suppose now that only two out of ten of the tenants who have a right to the common are willing to sell? If the Minister makes an unreasonable proposal surely three commissioners will not lose their sanity at the same time? They will say: "We will not make an acquisition order. We will not allow the Minister to confiscate their common, when they do not want to sell."
Question put and agreed to.
Sections 5 to 7, inclusive, agreed to.
First and Second Schedules and Title, agreed to.
Bill reported without amendment.
Agreed to take remaining stages now.
Bill received for final consideration and passed.