Petroleum and other Minerals Development Bill, 1959—Committee Stage.
Sections 1 to 4, inclusive, agreed to.
SECTION 5.
Question proposed: "That Section 5 stand part of the Bill."
I notice that sub-section (1) says:
On the operative date, the property in all petroleum which is not State petroleum shall vest in the Minister and his successors.
Subsection (2) reads:
Compensation shall be payable by the Minister in respect of all petroleum vested in the Minister and his successors....
I wonder what is the reason for excluding the words "and his successors" after the word "Minister" in the first part of subsection (2)? What is the reason for the differential between vesting the right to property in the Minister and his successors and not also vesting the liability in the Minister and his successors?
The Minister is a corporation sole, as the Senator knows, and so far as the liability is concerned, it will be on a particular Minister at a particular time. Once the property is vested in the Minister, the section makes it clear that it is also vested in his successors. No matter what Minister is in office at a particular time, he is the person on whom will devolve the liability for payment of compensation.
I am aware of the fact that the Minister is a corporation sole, and for that reason I thought the words "and his successors" in Section 4 and again in subsection (1) of Section 5 were unnecessary. Apparently there is some idea of a necessity to be able to continue the right in the Minister and his successors to hold petroleum and it would also seem to me that liability to pay compensation should also devolve on the successors of the Minister.
It would be on the Minister for the time being when the liability comes to be discharged. That would equally apply in relation to the right to hold property since the Minister is Minister for the time being. There is a distinction which I am sure the Senator will see. When this Bill becomes law, the right will be vested in me and also in my successors when appointed. When the time comes that somebody makes an application for compensation, that application will be met and the compensation will be payable by the Minister for the time being. There is that distinction.
Question put and agreed to.
SECTION 6.
Question proposed: "That Section 6 stand part of the Bill."
This is the kind of legislation that does not have any particular appeal for me.
This section provides that no person, other than the Minister, shall search for petroleum in any area in the State unless he is the licensee under an exploration licence, a petroleum prospecting licence or a reserved area licence which is for the time being in force and includes that area, or he is the lessee under a petroleum lease which has not expired and which includes that area. Then, under sub-section (2), it will be an offence for any person other than the Minister to get, raise, take or carry away petroleum found in any area in the State, unless he is the lessee under a petroleum lease which has not expired and which includes that area, according to the provisions of sub-section (3).
Subsection (4) is merely a procedural device to dispense with certain difficulties in proving offences in court. I can understand the necessity from an administrative point of view of not requiring officers of the Minister to attend in court to certify that particular offences have been committed or to prove that a particular person is not the holder of a licence where a great number of licences are issued, as happens in the case of road transport legislation. I submit, however, that the number of persons likely to hold an exploration licence, a petroleum prospecting licence or a reserved area licence will be very few. The number of offences which might be committed under this section will be relatively few.
I do not see that the same necessity exists for a certificate signed by an officer of the Minister in this kind of prosecution as would exist in a prosecution under the Road Transport Acts, where hundreds of people have licences for road haulage purposes. I think this kind of legislation is undesirable and places the State, in a court of justice, in a relatively higher position than that in which it should be placed. I should think the proper attitude towards prosecutions between the State and any citizen or any corporation should be to put both upon an equal footing.
In this case, we have merely a certificate signed by an officer of the Minister and no proof will be allowed that any of the matters in the certificate are incorrect. That seems to be taking an unnecessarily wide power in a case where there are likely to be very few offences.
The section as it stands was redrafted to meet an objection raised in the Dáil to the existing legislation. That existing legislation is contained in Section 74 (2) (b) which provides that the onus of proof that he had lawful authority shall rest on the defendant. I thought it reasonable to meet the objections raised in the Dáil and I shifted the onus of proof, by wording the section as it now stands, on to the State.
It will be within the peculiar knowledge of the State whether any person had or had not a prospecting licence or any other right to work minerals and the State will, on bringing its prosecution, have to be represented in court. They will have to produce necessary proofs, one of which will be a certificate signed by an officer of the Minister. I think there is in that sufficient protection for anybody who is charged to rebut, if he can, the authenticity of the certificate or, if he has a licence or other authority, to produce it in court. I do not think any undue hardship is created for any defendant by the section as it stands and it is a tremendous improvement on the original section in the 1940 Act.
Question put and agreed to.
SECTION 7.
Question proposed: "That Section 7 stand part of the Bill."
What is the significance of subsection (1) which reads:
The Minister may enter into an undertaking with any person to grant to him an exploration licence or a petroleum prospecting licence or both those licences.
Why can we not have a provision reading somewhat like this? "The Minister may grant an exploration licence?" Why must we have "undertaking" as well as "grant"?
I can never understand the way laws are drafted. I cannot see the necessity, in relation to an undertaking, for instance, to state that it shall be lawful for a Minister to carry out the undertaking. Surely the other thing follows as a corollary? I think the two points are different aspects of the same thing.
I think Senator Cole's point is slightly different, with due respect to Senator O'Donovan. In reply to Senator Cole, first, I would say that the provision here enables the Minister to carry out an agreement with an oil prospecting or oil producing company. It is particularly in point here, inasmuch as an agreement has been entered into by the Minister with Ambassador Oil of the United States. This section authorises the Minister, post factum, to enter into such an agreement. The agreement envisaged with Ambassador Oil will come into effect only on the passage of this legislation.
In reply to Senator O'Donovan, I can only say that, in matters such as this, I am in the hands of the Parliamentary Draftsman. I assume his desire is to make assurance doubly sure.
At least it is not as bad as something we had in another Bill that came from the Department of Industry and Commerce a while ago. At least it means something. I think it could have been got over by saying that the Minister is now deemed and always shall have been deemed to make undertakings. I can see now that in the first one it is post factum and therefore the other matter follows on. It is tying up the post factum end of it with two knots.
Question put and agreed to.
SECTION 8.
Question proposed: "That Section 8 stand part of the Bill."
Subsection (1) of this section provides:
The Minister may grant to any person such licence (in this Part referred to as an exploration licence) as it authorised by this section.
I take it that "person" comprehends an individual and company. I wonder whether the Minister would grant a licence to a partnership, for instance, to two persons working as a partnership?
Yes. The word "person" envisages all types and groups of people.
I would relate that to a later section on what happens upon death. For instance, an individual of a partnership may become bankrupt, whereas all the other people may remain solvent. One individual in a partnership may die. The partnership agreement may provide that despite the death of one of the partners, the partnership shall continue to operate. However, if the Minister is right—we shall come to it later on—that "person" means an individual, corporation or group of persons, it does not seem that in the later section adequate provision is made in respect of what might happen in the event of the ending of a partnership on the death of an individual.
It would be impossible in the Bill to provide for a particular contingency in relation to the personnel that would enter into an agreement. No agreement could provide for all the possibilities that might arise in the case of persons or partnerships.
I do not think so. I thought what is envisaged in this Bill was that the Minister would grant licences, either to a company or an individual, but that when it came to a partnership or co-operative society, they would be qualified to get a licence. But from what the Minister now says, it seems that there are other provisions in the Bill which prohibit the Minister from making the arrangements of the kind he refers to. However, that can always be got over by the Minister refusing to treat with the partnership.
Did the Deputy say "refusing to treat with the partnership"?
Yes, by refusing licence.
I am saying that the only way to get over the difficulty might be to refuse a licence to people acting as a partnership, which might be undesirable.
There is another matter arising on the section. Subsection (6) provides that:—
Every exploration licence shall contain an indemnity clause whereby the licensee indemnifies the Minister against any claim arising out of the exercise by the licensee of his rights under the licence.
I wonder what form the indemnity would take? If the indemnity were merely a charge on the assets of the licensee, and as contemplated in the Bill, the licensee may go bankrupt, what would happen to the claims for compensation by the owners of the land which they might have against the licensee? Will they have rights against the Minister?
In some respects they will and we shall come to a later section which will illustrate that point. If I may revert to the Senator's point about a partnership, if an agreement is entered into in a partnership, it is inherent that it will last only so long as the partnership lasts. If an agreement is entered into by a person who subsequently becomes a unit in a partnership, it will be obvious that the person has responsibility to comply with the agreement. If by reason of this change of status, he ends the partnership or his part of the partnership it will alter his obligation. That must be taken into account. He will have certain obligations to seek an amendment of his agreement in such circumstances.
Question put and agreed to.
SECTION 9.
Question proposed: "That Section 9 stand part of the Bill."
The Minister, in subsection (2), is to give 21 days' notice of the intention to grant a petroleum licence in respect of a particular area. The statutory requirement is 21 days and people have a habit of complying with the statute in giving the minimum requirement. I wonder if 21 days will be sufficient to alert people to what is involved in the granting of a licence for prospecting in a particular area?
The second point that arises on the section is that the Minister will publish notice of his intention to grant a licence in newspapers circulating the area. I wonder if the Minister will publish in any other way. Not everybody in country areas gets newspapers, or reads them, and it could well happen that the area which was the subject of a licence would be one of the more backward places where people might not be in the habit of getting newspapers and possibly they might know nothing, until it was too late, about the issue of the licence which would affect their property. I suggest that the Minister might, in particular cases, go outside the statute and use posters or handbills, without incurring any obligations, to inform people who might not become aware of notices in the newspapers.
First of all, this is a departure from the type of notice required under the 1940 Act, because under the 1940 Act, the amount of land which would be affected was comparatively limited and the number of owners involved would be equally limited. In the case of petroleum, the area envisaged would be much more far flung and therefore there might be a great variety of owners and it was found impracticable to notify people directly by way of notice served, through the post or otherwise, on them. It is for that reason that this method of notifying them by publication in a newspaper circulating in the area was decided upon in the case of petroleum and it was generally acceptable to all those who spoke on the subject in the Dáil. I think no point was raised about the inadequacy of notice through the newspaper circulation.
There was some question about the length of the period in which objection may be raised. That was a case in which as a result of the points raised in the Dáil, the period was extended to 21 days. Originally, it was 14. I think 21 days is a reasonable period. However, there is no desire, I am sure, to be autocratic in the matter of giving notice of the issue of a prospecting licence and if there were a case which would justify it, I am sure there would be no difficulty in bringing it to the notice of the particular person that a prospecting licence was to be issued. It is not in the Bill but I think the Senator has asked me to ensure that nobody will suffer hardship. I am sure that point could be met.
What I have in mind is where a prospecting licence is to be given in a particular area and under that licence people are to be entitled to enter upon land. These people affected should be in such position as would enable them to take steps to recover any losses that might result from that entry on their land by the owners of the licence. The longer the period that can be given to these people to reduce losses, which would also be to the benefit of the holders of the prospecting licence, the better it would be. I am glad the Minister will see that avoidable hardship will not result from the length of the period.
There is only one other matter to which I should like to refer. The Minister referred to what was done in the Dáil and what was agreed in the Dáil and I am quite certain it was the proper thing to do. I want to make the point that this House is ofttimes denigrated and held up to contempt because it is a pattern or reproduction of the Dáil. I must confess that I did not read the Dáil Debates on this Bill and my general view is not to do so because I think if we are to have a useful debate here, we ought not be an echo of the Dáil. I do not think it is an answer to any question here to be told that certain things were done in the Dáil and that therefore we should be content with them.
It is not my intention to chase every hare the Senator raises, but I should like to say this in respect of my remarks about the Dáil. The Bill was debated very extensively and examined in Committee very minutely, following on the submission of a great number of amendments by the Opposition and myself. This Bill was introduced here two or three weeks ago and the only amendments here are my amendments. I am not suggesting that the Senator might have had amendments, but in so far as there are no amendments, it is reasonable for me to assume that there is no fundamental objection on behalf of Senators to the provisions of the Bill as they appear now.
Arising out of the point made by the Minister——
I do not think the Senator should proceed any further. It might not be relevant to the section.
I want to reply to something which the Minister said on the question of amendments, if I may at this stage. We had an amendment down here before on a Bill which the Minister was piloting through this House.
And although the Minister agreed that the amendment was in order, he would not accept it.
Many amendments are in order which are not accepted by a Minister.
Would the Minister consider a small amendment on the lines that any owner of land the subject of a licence will be entitled to obtain from the Minister more detailed particulars of his rights? Would the Minister consider allowing any person who may see a note by the Minister in the local paper and who knows that his land is the subject of that licence to apply to the Minister and get a more detailed description of his rights in connection with the licence? It would be of great help to the land owners who are entitled to know their rights. The notice in the papers would, of necessity, be very short.
If the Senator refers to subsection (2), he will see that the requirement in relation to publication in the newspapers is only one part of the obligation. There is also the requirement to deposit a map in the Geological Survey Office and also in one or two places in the locality, showing the boundaries of the land which is the subject matter of the licence. The type of office will be a post office, a Garda Síochána barracks or some suitable place in the locality to which the owners will have access.
A post office or a Garda barracks would not be an easy place to bring a solicitor to. If the person concerned could get a more detailed description of the licence direct from the Minister, it would be better.
If he applies, the Senator may be sure that full information will be given to any person whose property may be affected.
Question put and agreed to.
SECTION 10.
Question proposed: "That Section 10 stand part of the Bill."
The point which I am about to make applies to a number of other sections in a different way. Subsection (2) states that every undertaking shall be in such form as the Minister, with the consent of the Minister for Finance, shall determine. I cannot understand why the form of the undertaking should require the consent of the Minister for Finance. It would be all right if it were something in relation to some financial point or other. This relates to the form of the undertaking. I am not suggesting that the Minister is not competent to determine the form of the undertaking, as I take it he will have legal advice on that, but I cannot understand why the consent of the Minister for Finance should be required. Did this just come from a clerk attached to the Department of Finance as a suggestion for an amendment to the original draft of the Bill?
It follows the lines of the 1940 Act.
If we are to be told that kind of thing, we could talk about minerals and so forth until the cows came home. All I can say is that we have reached a low ebb in Parliament if that is to be thrown at me in this fashion. I do not hold that against the Minister.
There is nothing wrong in ensuring that the Minister for Finance will be familiar with the form of an agreement into which the Minister for Industry and Commerce is about to enter.
Let us discuss the matter logically. What business is the form of the agreement to the Minister for Finance?
Ultimately, there will be royalties payable to the Minister for Industry and Commerce.
I know. What has that to do with the form of the undertaking?
I think that is a small enough point not to pursue. I suggest that the Minister for Finance has an interest in the whole transaction.
I shall not disagree with the Minister on that.
He might as well be in it from the start.
He may be brought in at every possible point.
Question put and agreed to.
Section 11 agreed to.
SECTION 12.
Question proposed: "That Section 12 stand part of the Bill."
I fully appreciate the Minister's point that this Bill was thoroughly threshed out in the Dáil. There were roughly 45 amendments on Committee Stage and 30 on Report. I think the Minister is entitled to make that point and I agree with him. At the same time I want to ask him a specific question about this section. Is there any time limit here? We could take Section 28 with this as they are linked up with each other. There are a number of points, many of which were threshed out in the Dáil. Suppose subsidence takes place long after the workings are completed, as does happen. The section speaks about "whenever damage is caused". I cannot construe that phrase legally. I shall, therefore, construe it logically. "Whatever damage is caused" means, I take it, in the present. I should imagine, in view of the manner in which other parts of this Bill have been tied up, that such liability on the part of the licensees will continue for 20 years or for any period you like. I take it that that is the intention. If somebody's house is undermined and drops down 200 feet ten years afterwards, as might happen, I take it that the person will at that stage have a claim for compensation. It seems to me that this is certainly not provided for at this point in Section 12. Is it provided for in Chapter 7?
Would the Senator leave it over until we reach Chapter 7 when I shall be able to deal with it?
This section concerns damage which may be done to the surface of land or to water supplies or the causing of a nuisance. That, I take it, applies to somebody who is the owner of land or, in the case of water supplies, who is an adjacent owner and may be entitled to water supplies passing across the land of a farm which has been acquired but there are a great many other things besides water supplies.
For instance, there is the ordinary right of way for, say, beasts, horses and carts which one farmer enjoys over the land of his neighbour. His neighbour's land may be acquired and in those circumstances, the right of way of an adjoining owner of land may be completely destroyed. I do not see any provision in this or any other section of the Bill to compensate a continuous owner of the land in respect of the loss of any easement which he has over land acquired by a licensee. Perhaps the Minister when he inserted "nuisance" on the Committee Stage in the Dáil should have also considered whether he should not extend the right to compensation to all classes of easements which any property owner may have over property which has been acquired and is being used by a licensee.
The common law right would not be extinguished, of course.
What is the value of the common law right to a farmer whose right of way for all time has been destroyed as a result of the operations of a licensee under this Act?
The ultimate object, of course, would be to compensate him in money, so far as that can be done.
The Minister will be aware from his experience in other regions that there are circumstances in which it will be very difficult to give such a sum as would compensate people for the loss of rights of way. If a man has a right to go over another man's land in order to enter a field belonging to himself and that right is destroyed, involving a journey around by road of a mile or a mile and a half, which is not uncommon, I cannot see any court giving him the right kind of compensation under the existing common law, and it seems that special provision should be inserted in this Bill. Perhaps the Minister is satisfied that the common law is available and is sufficient, but if so, I wonder why the Minister bothered to put in "nuisance" or "water supplies" in this section.
We put in the more obvious ones, and those that were suggested in Committee below, but those to which the Senator now refers are cases which may or may not arise. Nevertheless, I am satisfied that if infringements do arise, they can be met under the ordinary common law.
Question put and agreed to.
SECTION 13.
Question proposed: "That Section 13 stand part of the Bill."
In this section, there is merely provision that the lease will contain a description of the land and so on. Later on, we come to provisions providing for compensation for petroleum. It is purely an administrative matter. The suggestion I make, which may be of help, is that when land is being taken over for the purpose of being assigned to a petroleum lessee, it would save a great deal of trouble and uncertainty in assessing compensation, if the areas belonging to different people were precisely noted at the time they were being taken over. That may seem to be a very obvious thing to do, but obvious things are often neglected, and there is a great deal of speculation at a later stage as to what were the rights of different people at a particular point of time. It would also seem to be desirable that when land is being taken over by a lessee, the different estates of the owners of the land at that time should also be officially noted so that again when it comes to assessing compensation, difficulties would not arise.
Subsection (2) states that such a lease shall be made subject to the payment of money, whether by way of a fine or preliminary payment or by way of rent, including royalty. Do I understand that it is the Mining Board that fixes that rent or royalty? If the Mining Board has power to fix the rent or royalty, should not the Board have power to fix compensation by way of lump sum, if necessary, if it were thought right or reasonable to do so? I see no reference in this subsection to compensation by way of lump sum, and I should like to know who fixes the compensation. Does the Minister fix it himself, or must it be by royalty, or royalty rent, or rent, instead of compensation by way of lump sum?
I cannot understand the necessity, except, perhaps, because it follows previous legislation, for the Minister for Finance being party to a petroleum lease under sub-paragraph (d) and that it should also be stated in the Bill that certain parts of the lease must be made with the concurrence of the Minister. Surely the greater includes the less, and I can see no reason at all for this business of putting tautological clauses in the Bill. Nobody can compel a man to be a party to anything, unless he is in agreement with it and therefore this is just a piece of nonsense. There is similar nonsense in the next section.
There is a motto in a certain branch of the legal profession —nollumus mutari. Another explanation is that this is established practice in amending legislation.
Since we are talking about the Minister for Finance being a party to a lease, and the Minister has quoted the motto nollumus mutari, I wish to point out that since the Minister is being made a party to the lease under sub-paragraph (d) of subsection (2) of Section 13, it seems more than strange that the man who is a party to the lease will not, under Section 20, be a party to the consent to an assignment of the lease. The Minister for Finance is being pushed in here and pushed out there.
This is the kind of thing that creates confusion in the minds of people trying to understand what in fact is the position of the Minister for Finance and the Minister for Industry and Commerce in relation to leases that may be made under this Bill. If the Minister for Finance is a necessary party to the lease, then surely he should also be a party to giving consent, under Section 20, to an assignment of the lease. That seems to be sound common sense.
The purpose of bringing the Minister for Finance in originally is to ensure that he will be familiar with the term of the lease, but, so far as Section 20 is concerned, it would be an assignment without altering the terms of the lease and, therefore, there would be no question of changing the conditions to which the Minister for Finance has committed himself in the original lease.
In reply to Senator O'Sullivan, I should like to say that the section we deal with now relates to the payment of royalties by the person to whom a petroleum lease is given by the State. That arrangement is usually made mutually between the State and the person working the minerals, using the word "minerals" in the broadest sense. The Mining Board comes in only when somebody else's rights are infringed and he is not satisfied with the offer of compensation.
In that event compensation is in fact fixed by way of royalties, for this reason, that if it were paid by lump sum and if the mine did not prove to be as productive as anticipated, there would be paid perhaps a sum which would be far in excess of the value of the minerals involved to the owners of the land. The payment by way of royalty is to ensure that compensation will be paid pari passu with the value of the working of the minerals concerned. Therefore, in the long run, it would be more equitable to the persons in whose ownership the minerals originally were and to the persons working the minerals over a period.
Sub-section (2) says: "whether by way of fine or preliminary payment or by way of rent." That would lead me to believe that compensation could be fixed by way of fine or a lump sum.
The fine or royalty does not refer to compensation. It refers to the payment of royalties by the worker to the Minister.
By way of fine, but that refers to the person whose rights have been taken over.
Question put and agreed to.
SECTION 14.
Question proposed: "That Section 14 stand part of the Bill."
I realise why the Minister for Finance must come into the first sub-section, but I should be glad if the Minister would explain the meaning of, or the necessity for, the final phrase in sub-section (4) that "the proceeds of such sale or disposal shall be paid into the Exchequer in such manner as the Minister for Finance shall direct." I know the historical nature of this matter, but I do not see why we should always be guided by history and put in clauses which literally mean nothing.
It means what it says, I believe. Whether what it says makes sense to the Senator, I do not know.
The Minister need not worry, I know what it means. To carry it a little further, if we say: "The proceeds of such sale or disposal shall be paid into the Exchequer," that disposes of the matter. I know there are cases of payments by fee stamps, or cheques, or occasionally other roundabout ways, where the Minister may decide by Order how the amounts should be paid, with the consent of the Minister for Finance and so on. The fact is that this literally has no meaning and legislation is complicated enough without putting in this kind of thing.
This is the section which enables the Minister to decide to work petroleum in a particular area and he is obliged by the section to specify the area in which he proposes to exercise all his powers. Then we have this fiction which is contained in this legislation of giving notice by publishing the notice in Iris Oifigiúil stating the locality and the extent of the area. The Minister earlier indicated that he was prepared to facilitate to the maximum extent persons who might be affected by any workings or prospecting for petroleum by these licensees. Is it not merely a fiction to say that you are giving notice to people down in Leenore by publishing a notice in Iris Oifigiúil, which they never heard of, never saw, and which the vast majority of them never will see? It seems ridiculous to me to say that people will be bound by a notice, a copy of which they never saw, and had no facilities for seeing. In publishing this notice, the Minister should extra-statutorily undertake to publish it in all the local newspapers circulated in the area.
I understand, in practice, the Press would also be used in such circumstances, but it is hardly likely that the Minister himself will undertake prospecting for or operating petroleum. Nevertheless, I assure the Senator that there will be no lack of notice in the event of the Minister having to undertake the work, if private enterprise does not do the job.
Question put and agreed to.
Sections 15 to 17, inclusive, agreed to.
SECTION 18.
Question proposed: "That Section 18 stand part of the Bill".
This is the very desirable section in which the Minister takes power to compel the licensees to cover in bore holes and shafts. If they do not do so, the Minister may get somebody else to do it and charge the amount to the person who should have done it. In this type of case, where there are bore holes and shafts and so on, power should be vested in the Minister to compel licensees to take all precautions specified by the Minister to prevent accidents to children and young people. Too often we read of inquests on young children who have fallen into sewers or manholes. We are all aware of the fact that there may be some liability upon the persons responsible in common law, but that is not good enough for the child who has lost his life through the failure of people responsible to take reasonable precautions. I should like the Minister to see to it that it will be a condition in leases that all these openings will be covered and safeguarded to his satisfaction and that his officers will be entitled to enter upon these premises from time to time to see that all safety measures designed to protect the young are adequately provided by the people prospecting for or working petroleum.
Too often, as I say, after the damage is done, juries add a rider to their verdicts, but it is then too late. I appeal to the Minister to ensure that in so far as he can do so, in any licence or lease to which he may be a party, adequate provision will be made to protect the young from tragedies of the kind to which I have referred.
It is proposed to do just that in Section 52, which provides for the making of regulations as to safety, etc. That will be obligatory.
Question put and agreed to.
Section 19 agreed to.
SECTION 20.
Question proposed: "That Section 20 stand part of the Bill."
When we were dealing with the question of the Minister for Finance being a party to a lease, the Minister gave the explanation that the reason he was not included as a party to an assignment was that the terms of the lease would continue and be the same. I have no doubt that anyone advising a proposed assignee of any such lease would advise that it was unnecessary to have the consent of the Minister for Finance. It is the commonest thing, as the Minister must be aware, that where there are different parties to any document, if there is any assignment of rights, all should join in the assignment. It is merely complicating legislation to introduce the Minister for Finance in some places and leave him out altogether in this section.
Question put and agreed to.
SECTION 21.
Question proposed: "That Section 21 stand part of the Bill."
This is the section to which I referred when speaking on Section 8 where the Minister may grant a licence to "any person." Here, we are providing in relation to what will happen to the three different kinds of licences in the event of death. The first point that arises is that it is not at all clear from paragraph (a) of subsection (3) by whom the rights conferred by a licence may be exercised on, say, an intestacy. That seems to create an extraordinary lacuna. Nobody will know who is the person, for instance, in the case of intestacy, who will be administrator. If the operation is carried on and somebody receives an injury which entitles him to compensation under the Workmen's Compensation Acts, who will be the employer? That it may be exercised until certain things happen, as set out in this section, seems to be extraordinarily vague and is the kind of thing which could give rise to a great deal of difficulty.
If the section were drafted so as to provide that the right would vest from the grant of probate in the executor or from the grant of administration in the person who is administrator, then perhaps the section might mean something. I do not see at present how the business can continue to be carried on in the event of an individual dying who is the owner of a licence, unless some provision is made that the rights will vest ipso facto upon his death in whomever will be appointed his executor or administrator.
It is clear that no difficulty will arise in the case of an executor because he will be named in the will. In the event of intestacy, he will at some stage be a legal personal representative. If there is no such, the property ultimately rests in the State. Therefore, to the extent that anybody will continue to operate under the lease when there is in fact no person responsible, any obligations will ultimately vest in the State. That can be proved in court. I assume that, in the event the Senator envisages, if there is no legal personal representative available, the State will be responsible for workmen's compensation proceedings. That is my opinion and I think that is what will happen.
I hesitate to dispute the matter with the Minister.
That is an ad hoc opinion.
I dissent from the Minister's view that in the case of a will, the right to the licence will vest in the executor. The executor may well disclaim, in which event it will vest presumably in the residuary legatee who will possibly then get the grant of administration. That seems to leave the matter altogether too vague. I should prefer if the section were drafted in such a way as to provide that the licence will vest in whomever will ultimately be appointed the executor or the administrator. It would then be perfectly clear who would be deemed to be the employer in such circumstances.
Again, it may happen that the licence will revest in the Minister for Industry and Commerce. If, in the interim, a workman who suffered injury became liable to compensation under the Workmen's Compensation Acts, would the Minister, through his representatives, in a clear case go into court and say: "Yes, I admit I was the employer of this person on the specified date"? Knowing the ingenuity of counsel and solicitors, I very much doubt if that would be the case. It seems that this is a section on which the Minister might have second thoughts, with a view to bridging the gap between the death of a person and the raising of representation as to his estate.
I understand that this is a new provision. It is not in the existing law in relation to the working of minerals. It was put in at the request of the other contracting party to the agreement, not so much to provide against any contingency that might arise in their case. At all events, the draftsman had full regard to the possibilities raised by the Senator and I am informed that, in so far as he can legally provide against the hiatus, it has been provided against to his satisfaction. I am afraid I cannot comment further on the legal position.
Since the Minister is prepared to say that, in the kind of contingency we have been mentioning, the Minister for Industry and Commerce should be regarded for the limited purposes I am talking about— for workmen's compensation and, indeed, for other purposes—as the person liable, it seems that some such provision, in the event of these contingencies happening, should be inserted. It may well be that some unfortunate workman will find that, having lost an arm or a leg, he has no right against anybody.
That is something in respect of which I should not like to commit the Minister for Industry and Commerce.
It is a thing in respect of which I should not like to commit the unfortunate to whom it might happen.
Question put and agreed to.
Sections 22 and 23 agreed to.
SECTION 24.
Question proposed: "That Section 24 stand part of the Bill."
I wonder if the Minister would give us some information as to what will happen where the Minister is acquiring land? At least four months' notice will be given in the case of a person who has a dwelling house on lands which will be acquired. Where a minimum is prescribed in an Act that usually becomes the maximum in practice. What will happen to somebody who has a farm with a small house on it and the land is to be acquired? They are to get four months' notice to leave their farm and family home and within that space of time they are to provide themselves with alternative accommodation and a means of livelihood. Will that be the position—or will the Minister for Industry and Commerce take the obligation of providing these people with some form of interim accommodation until such time as they get compensation and are enabled to purchase a lease or in some other way to provide a house for themselves?
The four months provided for here would be very much a minimum period. In practice, it is believed it would be much longer than the four months before drilling operations, and so on, would be undertaken. In the event of anybody being displaced, full compensation will be payable. If a person has to get temporary accommodation in the meantime, that will be taken into account. Even if a person has to live in an hotel for the time being, it will be taken into account. The fact that compensation is payable should relieve the Minister of any further obligation such as finding alternative accommodation.
Question put and agreed to.
Sections 25 to 28, inclusive, agreed to.
SECTION 29.
Question proposed: "That Section 29 stand part of the Bill".
Chapter 5, Chapter 6 and Chapter 7 are, in my view, some of the most important in the Bill. We have had a good deal of discussion as to the circumstances in which people may find themselves displaced from the lands on which they and their families have been living over a long period, and in which their way of life is changed by the compulsory acquisition of the land for petroleum exploration, and petroleum working purposes. The means by which compensation is to be given to these people is by the Mining Board established under the Act of 1940.
First of all, I want to make a comment that if anybody who has property rights is injured in these rights by any other person, whether that person is an individual, a corporation or the State, the proper authority to decide the rights, between the person whose property is injured and the person injuring it, are the courts of justice. That seems to be an elementary and simple concept which is acceptable to everybody, and that is what the courts of justice are established for, to do justice between man and man and between man and the State.
I hope that the Minister will not attempt to justify this section, and the power contained in the Bill, by reference to other bad legislation, because the 1940 Act, in so far as it provides similar provisions to this, is bad legislation. I do not think something should be justified by something which is demonstrably and clearly bad. In this section and in the following subsections, if I may take them altogether, in order to avoid repetition, we are establishing a board to mete out compensation as between the Minister and the person affected.
I have a fundamental objection to displacing the courts of justice which are established for the purpose of doing justice as between man and man and between man and the State, by an ad hoc body such as the board. I have a fundamental objection to that, but when that board is the kind of board established under the Minerals Development Act, 1940, my objection must become a great deal stronger. I would refer the House to the kind of board which is to adjudicate, mark you, between, say a farmer in Mayo, or in Donegal, or Kildare or Wicklow, and the Minister for Industry and Commerce, or a great petroleum corporation which has come in and damaged his property and has acquired compulsorily his property and upset his whole way of life. That is to be left to the determination not of the courts of justice, which are dealing with matters of far less significance, but merely a board set up ad hoc, which need have no regard to the great principles which have been applied to doing justice between man and man.
What is the constitution of the board? It is a three man ad hoc committee dignified by the appellation “the board”. The chairman is to be a practising barrister, or a practising solicitor of at least ten years' standing. So far so good.
However, if Senator Sheehy Skeffington does not agree with me, I am quite prepared to say I have a fundamental objection to substituting a barrister in this way for a judge of the High Court, with all the independence and authority that belongs to his high office. The next ordinary member of the board is to be a person from the panel of the official arbitrator appointed under the Acquisition of Land (Assessment of Compensation) Act, 1919. Here we are running into the officials. It is perfectly clear that in the ordinary course of nature and affairs of life, a person who is an official arbitrator is never likely in general to have the same degree of independence as a person who is not an official arbitrator, and certainly would have nothing like the independence of a judge of the Circuit Court or the High Court. But at any rate he has some claim, although a very tenuous and shadowy one, for sitting on the board to judge between an individual and the Minister.
The third ordinary member is an official of the Minister. We have often-times heard of going to court with the devil in hand, and all right-minded people reject that as not giving reasonable treatment to the litigants, but here the farmer from Mayo or Galway is to go to the board and expect to get justice from an official of the Minister. I have always understood it to be a fundamental principle of the natural laws and a principle observed even by people who are, in our view, uncivilised, that no man shall be a judge in his own cause and neither should his brother or his officer. I had the experience where, under a similar board established under the Social Welfare Act, an appeals officer was appointed to adjudicate upon a question of whether a person was liable to pay insurance under the Social Welfare Act, where the person claimed that he was not so liable. He went to the appeals officer and pressed his case and this, mind you, was an appeals officer of some standing and——
Perhaps the Senator will not pursue that point in very much detail.
I shall not pursue it in any detail but I want to alert the House to the inherent dangers in legislation of this kind. I do not intend to make any personal references to the case in question. The appeals officer who was to do justice according to law went about collecting the evidence for the Minister for Social Welfare which was no function of his. He was to act as judge and prosecutor and to better that, when the appellant had made his case before the appeals officer, saying that he was not liable to pay contributions to social welfare, the officer said: "Well, I have a letter here from the Minister for Finance which states that you are liable because of certain circumstances mentioned in the letter and I am bound by that."
That is the kind of thing that is liable to happen and it is liable to happen in the nature of things because no man can serve two masters, no man can serve the interests of justice and at the same time, the interests of the Minister, if he is an official of the Minister. He must have loyalty to the Minister and in any event, his views will be coloured by his associations with the whole working of his Department and will be likely to find in favour of the Minister and against everybody opposed to the Minister. That, I think, is not being unfair. Even the most conscientious person will be influenced by the views of the workings of his Department and by his position in the Department and his relations with the Department as a whole.
This, then, is the kind of board which people are being given to assess compensation instead of the courts of justice which were established for this very purpose. I wonder, indeed, why it is this device that is used rather than to permit people to go to open court to ascertain what the compensation payable should be. I give the reason to the House.
The provisions of the Land Acquisition (Assessment of Compensation) Act, 1919 apply to compensation in cases of this kind. The House will probably recollect that, in 1946 or 1947, there was a court case fought by an ex-judge of the Circuit Court against the then Minister for Industry and Commerce. I do not say it was necessarily against the particular person but against his legal advisers. The whole burden of that case was whether the ex-judge was entitled to be paid compensation by the court as he claimed or in accordance with the Land Acquisition Assessment of Compensation) Act, 1919. The case went on for weeks in the High Court and for weeks in the Supreme Court. The only reason there was for contesting the ex-judge's claim for compensation was that if he was entitled to compensation by the courts of justice, he would get a great deal more compensation than he would get under the Land Acquisition (Assessment of Compensation) Act, 1919.
Here we have quite clearly in this Bill an attempt to pretend that people are getting compensation for rights which are being taken from them, in the public interest granted, but nonetheless rights which are being taken from them. They are getting compensation, but, in fact, they are not getting anything like the compensation they would be entitled to.
For that reason, I have the strongest objection to the procedure of handing over the rights of the citizens of this country to an ad hoc Board such as is constituted under the Minerals Development Act, 1940. The Minister may say: “Well, if you feel so deeply about it, why have you not put down amendments?” I could not see any way in which this Bill could be amended except to delete Chapters 5, 6, 7 and 8 in the first Part of the Bill and then it would require extensive amendment in the earlier Chapters of Part I.
I want to draw the attention of this House to the fact that in legislation of this kind, we are not doing justice to the plain and poorer people of this country. Let there be no mistake at all about that. A judge of the High Court in the case to which I have referred said:
It seems to me that common law, common sense and common decency speak with one voice and lay down the overriding principle that when a man has been compulsorily dispossessed of his property, whether by individual, corporation or State, he shall receive in exchange whatever the property was worth to him.
I can assure the House that under the provisions for compensation in this Bill, the united voice of common law, common sense and common decency is being stifled and the poorer people —as I imagine it will be the small farmers who will be concerned—will not receive under the provisions of this Bill and the related provisions of the Land Acquisition (Assessment of Compensation) Act, 1919, anything like the compensation they are entitled to. I am not proud of legislation of this kind and I do not like to be here having to speak on it and apparently acquiesce in its passage through this House.
I should like, first of all, to say that the Mining Board will not be dealing with the compulsory acquisition of property. Their main function will be the assessment of compensation for mineral rights, rights which the average individual would never, or almost certainly, could never have worked himself. The assessment of such compensation, which will be paid by way of royalties, is a highly technical matter. It is one which the courts in the ordinary course of their business could not very well undertake.
I do not for one moment agree with the statement which the Senator has just read out by a judge of the High Court. I do not agree at all with its terms. I should like to say that the Mining Board has, over the years, given good satisfaction to those who come before it and there has not been any complaint as far as I know, about the assessment of compensation it has made from time to time.
It is not a sacrosanct principle that a body other than the courts will adjudicate on a matter that might otherwise be proper to the courts. As the Senator knows well, in certain circumstances, where there is an arbitration clause in an agreement, if a person who is sued under that agreement pleads that arbitration clause and complies with certain formalities, the court will remit to this arbitrator provided for in the agreement the examination of whatever problem is involved, so that even the courts themselves will, in these circumstances, hand over to a body which is non-judicial, to the extent that the Mining Board is non-judicial, the examination and solution of the problem and the giving of justice as between the parties.
I am satisfied that justice is generally met by the Mining Board in the manner in which it hears the applications for compensation which come before it. As I have said, there have not been any complaints either as to the impartiality of the board or the extent to which there has been compensation in particular cases.
I must say that I am very much impressed by what Senator O'Quigley has just said. The Minister told us about the parallel of an agreement but is there not a very great distinction there? In an agreement, the individual chooses whether he will or will not have an arbitration clause. If he does not want such a clause, he can stand on his rights before the courts. Here we are writing into legislation something which from what I have heard from Senator O'Quigley seems to be right against the general principles of law in the country.
I am unhappy that we should acquiesce in such a situation as this. The best kind of legislation is an agreement amongst all the people or at least amongst the representatives of the people. I am not inclined to agree that this is a reasonable way of assessing any kind of compensation, in view of the example which Senator O'Quigley gave. I would support Senator O'Quigley in this matter.
Let there be no doubt as to what I have been saying. I am surprised the Minister said what he said I said. This board would not be concerned with compensation for disturbances.
I said it is not concerned with acquisition of property. It is compensation that concerns it.
Is it not concerned, under Section 40, with compensation under Sections 12, 16 and 18?
With compensation but not with the merits or the rights of acquisition.
Then, I do not know what the Senator is surprised at.
What I am talking about is that if the board is concerned with somebody dispossessed from part or the whole of the property, the board is asked to fix a sum.
I recognise that. We are ad idem, and I have not said anything that suggests that land must not be taken in the public interest for the purpose of exploring mines and minerals and prospective petroleum. What I am saying is that if land is taken, people should be adequately compensated for it, and this board being set up, as I so clearly demonstrated, is no proper body for the job, for the reason that however well intentioned and capable it may be, it would be bound by the provisions of the Land Acquisition (Assessment of Compensation) Act, 1919. As the Minister knows, very well, that Act will give owners far less justice than they would have got if they were entitled to go into a court of law.
So far as the courts are concerned, if the Minister thought there would be any difficulty in regard to assessment of compensation, there would be nothing to prevent him providing for an assessor to sit with the judge of the High Court or the Circuit Court, as is done in relation to workmen's compensation cases or an air disaster, where a judge presides over an inquiry. That is quite regular, but there has been no disposition on the part of the Minister to give people a right to compensation which the law of this country and the justice of the case demand for them.
Question put and agreed to.
SECTION 30.
Question proposed: "That Section 30 stand part of the Bill".
I do not want to speak at any great length about this provision, but I want to ask the Minister whether the board will go to the locality or people will have to come to the board. It would seem to me to be a better system that the board should go out on circuit to meet the different people.
The practice is to sit in a Government office. They have not sat for some years because there have not been claims in recent years for compensation, but there is nothing to prevent them sitting in any part of the country they like; and if circumstances require it, perhaps by reason of the number of witnesses from a particular locality, it is possible, and, I hope, likely, that they would go to that locality to avoid hardship.
The only thing likely to prevent them sitting in a locality is that the Minister has not insisted on bringing in a clause stating that they must do so. If people are brought up from the country to the city, they will be in completely different surroundings and not as much at home as in their town or in some town near them, and it is desirable that where there are a number of litigants or claimants to appear before the board, the Minister should say that the board should go to a particular area.
I shall keep that in mind, and I think it could be provided for that, in certain circumstances, they should be required to go to places rather than that people should come to them.
Question put and agreed to.
SECTION 31.
Question proposed: "That Section 31 stand part of the Bill".
Do I understand that as this Bill relates to petroleum and other minerals, the board named in it will now have the powers up to this enjoyed by the board under the 1940 Act? In other words, will it be the Mining Board?
Yes, it will be the Mining Board for all purposes.
If so, will this board ensure that in sitting on any claim whatever, all interested persons will be enabled to give evidence before it?
When I say that it will be the board for all purposes, I want to say that what I had in mind was that it will be the board for assessing compensation in respect of petroleum operations as well as operations for solid minerals. There will be an obligation on the board to hear all relevant witnesses and therefore they will naturally have regard to any application for the hearing of a particular witness. It will be a matter for a claimant to compensation to produce all the witnesses he thinks can assist his case.
Or a person resisting it?
Certainly. There must be an obligation on the board to hear everybody who can give evidence material to one side or the other.
Question put and agreed to.
Sections 32 to 41, inclusive, put and agreed to.
SECTION 42.
Question proposed: "That Section 42 stand part of the Bill."
I should like to return to a few aspects of this matter which I enlarged on in my objection to compensation being determined by the board rather than by the court.
Section 42, subsection (2), provides that the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919, shall apply in the determination of the amount of compensation. Section 2 of the Act of 1919 provides:
(1) No allowance shall be made on account of the acquisition being compulsory.
(2) The value of land shall, subject as hereinafter provided, be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realise: provided always that the arbitrator shall be entitled to consider all returns and assessments of capital value for taxation made or acquiesced in by the claimant.
There is in subsection (6) of Section 2 of the 1919 Act some provision for the assessment of compensation. I want to come to the question of market value. Suppose a farmer with 35 acres of land in county Mayo or Donegal, Galway or Wicklow has a rateable valuation of, say, £7 10s. When the land is being taken over for the purpose of working petroleum, the only compensation which the board is entitled to give is the market value of that land. Let us suppose that on that land there was a dwelling-house which, in the purchase price by a willing buyer, was worth only about £200 and that the whole property is sold for £2,700. Will the Minister tell me that it is fair to give that person only £2,700, if, after having got that compensation, he has to build a house which may cost £800, £900 or £1,000? The £200 house may be perfectly sufficient for the farmer who is the occupant, for the rest of his days. He may be satisfied that the house is perfectly comfortable and provides him with adequate accommodation. All the board is to be entitled to give is what a willing buyer will pay for that house and the willing buyer may be prepared to pay only £200.
Is it not demonstrably clear that the compensation which is being given under the provisions of this Act falls far short of what is necessary to reinstate in the same position, and condition of affairs in life, a person who has been displaced from the position he was in before the petroleum people came along? I cannot understand how the Minister can conceive it to be fair and equitable, where land is taken over in the public interest, that people should be subjected to what might result in their being pauperised for the rest of their days. There is to be compensation—if my interpretation of the Act is correct and it has been generous so far as this Act is concerned—for disturbance. I wonder what that means? My understanding of that compensation is that the interpretation to date of what compensation should be afforded for disturbance is nothing like adequate to meet the out-of-pocket expenses, the expenses which people have been put to, and which they have incurred, by reason of being displaced or dispossessed by compulsory acquisition. I want to ask the Minister is it his view that, if a man has to remove stock from his farm and sell it quickly before it is fit to be sold and, therefore, gets less for it he will be entitled to compensation for that loss of profit? If an old man decides to give up farming altogether and has to sell certain farm implements and things of that kind at a lower price than their worth, does that come into the category of disturbance? I do not think it does. It seems to me to be right and proper that where people suffer losses of that kind, compensation should be given.
If a farmer has a particular value on land because he happens to use it for a particular purpose—let us say, growing strawberry plants, young fruit trees as can happen if he is poor and lives in a place where the soil is suitable for that purpose—will he get compensation based upon the peculiar and particular loss to him or based merely on the value of the land which a willing purchaser might be expected to pay to a willing seller? Unless the Minister is prepared to give some direction as to the interpretation to be put upon the 1919 Act, it seems to me that a gross injustice will be done to people who have to apply to this board whose composition is bad and whose hands and judgment are completely fettered by the inadequate and ungenerous provisions of the 1919 Act.
The Senator must be aware that it is not open to me, in any circumstances, to give directions as to how an Act must be interpreted and certainly not the 1919 Act. As the Senator is already aware, the legalistic interpretation of legislation is that it means what it says. Nevertheless, Section 2, Rule 2 of the 1919 Act lays down, as the Senator says, that the value of land shall be taken to be the amount which the land, if sold in the open market by a willing seller, might be expected to realise. Rule 6 adds the provision:
The provisions of Rule (2) shall not affect the assessment of compensation for disturbance or any other matter not directly based on the value of land.
I take it that gives scope to any assessor to take into account other features which are of some value to the person whose land has been acquired. The Senator knows that in the measuring of compensation for damage done to a person's property, that person is not entitled to be put in a better position than he occupied before the damage was done.
The function of a court or an arbitrator—if the person cannot be restored to his original position, whether it is a question of occupancy of land or a house or restoration of a chattel which has been damaged beyond restoring—is to assess the damage done in money value as closely as possible and in no circumstances is the assessment of damages to be in excess of the actual value. Therefore, there are certain aspects of a person owning land or property which he might hold very dear but which even in a court of law, cannot be provided for in money value. An old motor car for which the owner had a sentimental attachment might be damaged beyond repair. If a court, as the result of an action he brings for damage to that car, assesses the compensation, the court can give compensation related only to the money value of the motor car. It cannot take the sentimental value into account.
That, I agree, has been an unfortunate feature of compensation for land acquisition but it is something which is impossible to assess in money value and, therefore, it is reasonable to come down to the ordinary basis of giving compensation: what a willing purchaser will give to a willing seller. There is, on top of that, the provision whereby Rule 2 shall not affect the assessment of compensation for disturbance or any other matter not directly based on the value of the land. The Acquisition of Land (Assessment of Compensation) Act, 1919, has gone a very long distance in trying to provide, so far as is humanly possible, for the giving of reasonable compensation based on taking into account all the value of the land and other assessable amenities of which the owner may have been deprived.
I do not want to enter into a discussion which might bore the House, but I do not for a moment accept some of the propositions put forward by the Minister. It may be all right for the Minister to say that a person should not be put in a better position after some damage to his property than he was in before it was damaged. That may be all right in the exceptional circumstances of negligence and assault, but here we have an Act of the Oireachtas which, I trust, is not negligent, but it does appear to be something of an assault on people's private rights, with a pretence of giving protection. Here we have a deliberate Act of the Oireachtas which gives a Minister power to take over the land, the home and the dwelling-house of a citizen.
The language of the Constitution on the dwelling of a citizen is very clear. It says the dwelling of every citizen is inviolable. We propose now to violate the rights of citizens in relation to their dwellings by decreeing that they shall be demolished in the public interest.
"Dwelling", in that context, does not necessarily mean bricks and mortar.
It does. It shall forcibly be entered. Let us be quite certain that people have attachments to where they were born, to where their fathers were, to where they are raising their children. That is all part of tradition, part of family life and part of people's make-up. It does not lie with the Minister to say that people should not be compensated or should not be better off than they were before the land was taken.
If I have a house which is perfectly adequate for my purposes for the rest of my days and if I were to sell it tomorrow and to get only £500 for it, it is no answer to say that, if I am put out of it, the only kind of house I can buy or build is the one worth £1,500 and that I am better off because I would get £1,500 out of it.
I have not said that. I have said it is a principle in the assessment of compensation for damage caused that a person shall not be put into a better position.
But the person does not want a better house in these circumstances. With regard to grants from local authorities, a person has to build a better type of house than perhaps he wants. He might be a bachelor living alone in the country who would be quite satisfied with a two-roomed house. He will not get a grant to build such a house from the local authority because it has to have a minimum area. Therefore, he is compelled to build a better kind of house with facilities for which perhaps he has no use. That is the inequity of the 1919 Act that ought to be clear to the Minister.
Question put and agreed to.
Sections 43 and 44 agreed to.
SECTION 45.
Question proposed: "That Section 45 stand part of the Bill."
I take it that any person liable to pay a royalty or any compensation decided by the board by way of royalty would be entitled to representation before that board by counsel or solicitor?
Would the Senator repeat that, please?
On Section 45 (e), I take it that any person liable to pay compensation by way of fine or by way of royalty or rent could be represented before that board by counsel or solicitor. I take it that the person who would be likely to pay or who would have to pay could have representation before that board hearing for compensation? Could that person or those persons be represented by counsel or solicitor?
Any person entitled to representation is entitled to be represented.
Would a person who eventually may have to pay a royalty come under that heading?
No, such a person would not.
The question of compensation is not a matter of concern to the person who has to pay the royalty. The person who has to pay the royalty to the Minister has his obligations fixed under the original lease. The Minister afterwards will have to pay the compensation to some person who wants to claim some payment from the board. The original person is out of the question at this stage.
I am not referring to the original person. I am referring to the persons who will have to pay the original person—and that price will be fixed by the Mining Board. I am asking if that person who will be bound to pay eventually may be represented by solicitor or counsel before the Mining Board.
A person who undertakes the production of petroleum agrees with the Minister to pay certain royalties. The Minister either owns the petroleum concerned or he has acquired it. If he owns it himself, that is the end of the question. All the royalties go to the Minister and nobody else is concerned. If he is acquiring petroleum, some other person might have a claim against the Minister and that other person is entitled to go to the Mining Board to pursue that claim for compensation against the Minister. The Mining Board will assess the compensation by way of royalties payable by the Minister to the person who has established his right.
Why is the person who will have to pay that eventually and who is working this petroleum lease not entitled to representation before this board when that is being fixed? He must accept afterwards to pay, if he is not entitled to representation when that is being fixed. In my view, he should be entitled to representation, if they are going to work the deposit.
He has not further obligations. He pays his royalty to the Minister. Therefore, he is not interested in the proceedings before the Mining Board. When the Mining Board makes an award, it has regard to the royalties that he will pay to the Minister. He is not in any way concerned with the award of the Mining Board because his obligations have been completed as soon as he has made his agreement with the Minister.
Question put and agreed to.
SECTION 46.
Question proposed: "That Section 46 stand part of the Bill."
I want to refer to the last part of subsection (6) and to say again that this is going too far in facilitating the giving of evidence in courts. Here we have, according to the Minister, an ephemeral body such as the Mining Board, which has not, we understand, sat for years. This Bill does not portray that set of facts. Here, we are given the idea that there is such a thing as a permanent secretary of the board in the same way as there is a secretary of C.I.E. or of the E.S.B. There is a secretary of the board. I understand there is a distinction between a secretary to a board and a secretary of a board. A secretary of a board is an officer of some permanent status, whereas a secretary to a board is a person of ephemeral character. The court is to be obliged to receive in evidence a certificate signed by this person who may indeed have gone out of the Department of Industry and Commerce altogether at the time the certificate comes before the court and there is to be no question whatever as to whether the person who signs it was in fact the secretary of the board. That seems to be going just too far altogether in facilitating proof.
Question put and agreed to.
NEW SECTION.
An Leas-Chathaoirleach
I think amendments Nos. 1 and 3 are cognate and might be discussed together.
Amendment No. 2 can then be inserted in the appropriate place.
Government amendment No. 1:—
Before section 47 to insert the following new section:—
"(1) (a) Where compensation is assessed by the Board in respect of land which is subject, but not in conjunction with other land, to a land purchase annuity, the Land Commission may, if they so think fit, request the Board—
(i) if the amount of such compensation is equal to or less than the redemption price of such annuity and the arrears (if any) of such annuity—to order by its award payment to the Land Commission of the whole or such part of the compensation as the Land Commission request, or
(ii) if the amount of such compensation exceeds the redemption price of such annuity and the arrears (if any) of such annuity— to order by its award payment to the Land Commission of so much of the compensation, not exceeding the amount of the said redemption price and arrears (if any), as the Land Commission request,
and the Board shall comply with such request.
(b) Where any award in relation to land which is subject, but not in conjunction with other land, to a land purchase annuity provides under paragraph (a) of this subsection for the payment of any moneys to the Land Commission, such moneys shall upon receipt thereof be applied by the Land Commission in accordance with the following provisions, that is to say—
(i) in case there are any arrears of such annuity and the amount of such moneys does not exceed such arrears—in or towards discharge of such arrears,
(ii) in case there are any arrears of such annuity and the amount of such moneys exceeds such arrears—
(I) so much of such moneys as is equal to such arrears shall be applied in discharge of such arrears, and
(II) the balance of such moneys shall be applied in or towards redemption of such annuity,
(iii) in case there are no arrears of such annuity—in or towards redemption of such annuity,
(2) (a) Where compensation is assessed by the board in respect of land (in this paragraph referred to as the affected land) which is subject, in conjunction with other land, to a land purchase annuity and the Land Commission apportion the annuity between the affected land and the other land, the Land Commission, may, if they so think fit, request the board—
(i) if the amount of such compensation is equal to or less than the redemption price of so much of such annuity as is apportioned to the affected land and the arrears (if any) of such annuity—to order by its award payment to the Land Commission of the whole or such part of the compensation as the Land Commission request, or
(ii) if the amount of such compensation exceeds the said redemption price and the arrears (if any) of such annuity—to order by its award payment to the Land Commission of so much of the compensation, not exceeding the amount of the said redemption price and the arrears (if any) of the annuity, as the Land Commission request,
and the Board shall comply with such request.
(b) Where an award in relation to land (in this paragraph referred to as the affected land) which is subject, in conjunction with other land, to a land purchase annuity provides for the payment under paragraph (a) of this subsection of any moneys to the Land Commission, such moneys shall upon receipt thereof be applied by the Land Commission as follows—
(i) in case there are any arrears of such annuity and the amount of such moneys does not exceed such arrears—in or towards discharge of such arrears,
(ii) in case there are any arrears of such annuity and the amount of such moneys exceeds such arrears—
(I) so much of such moneys as is equal to such arrears shall be applied in discharge of such arrears, and
(II) the balance of such moneys shall be applied in or towards redemption of so much of such annuity as is apportioned to the affected land,
(iii) in case there are no arrears of such annuity—in or towards redemption of so much of such annuity as is apportioned to the affected land."
Under section 47 of the Bill as it stands, the Land Commission would be entitled to recover from the tenant as much of the compensation as would be required to discharge the total arrears of annuity and to redeem the annuity, even though only part of the holding had been acquired or damaged, and the claim for compensation was, therefore, limited to that part of the holding. It is felt that this is an inequitable arrangement. It is reasonable enough that the full arrears of the annuity relating to the complete holding should be recoverable by the Land Commission but it is not fair that the Commission should be able to recover the full value of the redemption of the annuity attributable to the entire holding if the claim for compensation were limited only to portion of the holding. The effect of the amendment is that in the type of case where only part of a holding has been acquired or damaged, the Land Commission will be authorised to recover compensation payable to the holder at the instance of the Mining Board only to the extent of the redemption value of the portion of the annuity which relates to the part of the holding which has been acquired or damaged. The Land Commission would it is proposed continue to be empowered to claim the full amount of arrears of annuity attributable to the entire holding of the tenant.
The expression "land which is subject but not in conjunction with other land to a land purchase annuity" which appears in Section (1) (a) of the amended Section means that the land which is the subject matter of the application for compensation comprises the entire holding of the tenant. Where that is the case, the Land Commission are being authorised to recover the full arrears of annuity and also the full redemption value of the annuity attributable to the entire holding. This is only reasonable in the circumstances.
There is a second amendment, amendment No. 3, which is designed to provide similarly in substituting a new Section 84.
I agree with the Minister and with the amendment because it is in ease of holders of land from the Land Commission. As the Minister has rightly stated, the original provisions in the Bill were somewhat inequitable and this is more in accordance with what is equitable and fair as between the Land Commission and one of its tenants.
The only thing on the amendment that strikes me as strange is the provision that where there is an annuity payable, the Land Commission may make a request to the board that the arrears of the annuity or the redemption value of the annuity shall be paid out of the compensation. It seems strange to say that anybody can go to a seemingly independent body such as this body is and say that he wanted to do so and so and that the board has no option but to do so, that they are required to do it. It certainly shakes any remaining faith I have in the board that, merely upon the request of the Land Commission, this has to be done. I pay no more attention to the fact that it is the Land Commission than if it were Patsy Murphy who says: "This fellow owes me £40. He is getting compensation and I want to be paid."
The Land Commission may come and say such and such an amount is payable and the board is not even authorised to inquire whether it is payable or not. If the board is satisfied that so much arrears of annuity are owed by the claimant and that the redemption value of the land is so much, then it should be paid out of the compensation. I am merely making a comment that it is more than strange that some outside body can come to a seemingly judicial body and make this request and that it has no option but to comply with the request.
Mr. O'Dwyer
It strikes me that the system of redeeming the land annuity out of the purchase price acts very unfairly against the owner of the land. For example, the present market value of land is £100 per statute acre. The purchaser of a farm pays £100 and continues to pay the land annuities as they fall due. In the case of land taken up under this Bill, if the price is fixed at the market rate of £100 and out of the £100, the land annuities are redeemed, the result is that the owner gets actually less than the market value. I am assuming it would be based on the market value, but I think it only right that in fixing the amount of compensation in the case of land compulsorily acquired, there should be some sum over and above the market value as compensation. In any case, it should be quite clear that the owners will get the actual market value.
As Senator O'Quigley said, this section is specifically designed to ensure that compensation is payable only in respect of part of the holding. The power of the Land Commission to require redemption must be limited to compensation payable in respect of that part of the holding only. If a person is aggrieved as a result of a request of the Land Commission being complied with by the Mining Board in the payment of moneys to the Commission, the person will have a remedy against the Land Commission. The Land Commission will obviously be conscious of such a remedy and I think the possibility of the Land Commission requesting payment of compensation money from the Mining Board over and above what would be due under this section is so remote as hardly likely to arise. But, as I said, in any case, the person who may be aggrieved has a remedy over the Land Commission to the extent that the Land Commission do not only have to pay moneys for example under the legal phrase, "money had and received", but also costs for any amount of money that is requested in excess of any amount they should have received under the section.
May we take it that in subsection (a), in all these new sections, the words "Land Commission, if they so think fit" is a saving clause to a certain extent? I could conceive a position where land which had been used for petroleum mining was then abandoned and given back to the owner, all the minerals having been extracted, and where an expenditure of a capital sum would be necessary to put that land in the position it was in before it can be used. Perhaps some of this money would be more valuable and helpful to the owner of the land than if it were handed over for the purpose of reducing the annuity. This capital expenditure might be necessary. Would it be possible that it would come under "the Land Commission, if they so think fit"?
In the first place, the compensation payable will be presumed to be far in excess of any annuity payable. The value of the property always takes into account that the property is there in itself and is a certain outgoing of an annuity. Therefore, it is reasonable to assume that any compensation given for the acquisition of or damage to a holding or portion of a holding will be far in excess of the annuity payable in respect of that holding or that portion of it.
Secondly, the discretion given in this section to the Land Commission is obviously given to enable the Land Commission to use it in circumstances where a particular land holder has been meticulous about the repayment of his annuities. The Land Commission might say that, having regard to the possible greater use of the land by that particular person, it would be better that he should be allowed to keep whatever compensation he has and allowed to pay his annuities in the ordinary way. I think the discretion, is wide enough to enable the Land Commission to take that situation into account.
The Minister said that the claim for compensation has its right over against the Land Commission. I wonder if that is correct. First of all, we find in Section 46 that "every award shall be conclusive evidence of all matters purported to be certified therein." Secondly, we find in this amendment that the order of payment to the Land Commission is part of the award so that, therefore, once the Land Commission requests the payment of X pounds in respect of arrears of the annuity or redemption value, then by reference to subsection (4), which I have read, that is conclusive evidence that that was the amount of the award. That is conclusive evidence that it was the amount which was payable to the Land Commission.
Then we go further than that. In Section 49, we find a most obnoxious position, having regard to the constitution of this board. "The decision of the Board on any question of fact arising in the course of proceedings under Chapters VI and VII shall be final, conclusive and unappealable and such decisions shall be binding on all parties to such proceedings and their privies as if it were a judgment in personam.” You may find a person going into court saying he made an overpayment of £50 to the Land Commission. He will be faced with the certificate signed by the ephemeral secretary and then the question as to appeal will be argued, but the decision of the Mining Board in Section 49 is final, conclusive and unappealable. I do not think that the Minister is at all correct that the board should not enter upon some form of adjudication as to whether or not the amount claimed by the Land Commission is properly payable out of the compensation money.
I should like to ask the Minister whether the matter contained in this amendment is an innovation in regard to these matters or is it common form. In regard to the position of registered land, the Land Commission have a first charge in connection with the collection of annuities. You will have people who are in such a financial position that they may seek to raise capital and thereby institute a second charge against a particular parcel of land or part of the land acquired. The Land Commission, where a person is getting it hard to pay, will, if this board should make an award in regard to compensation, come in for their pound of flesh. Very probably, they may have no regard to the claims that other people might have.
The fact that land or portion of land could be acquired might make the remaining portion uneconomic and render the person unable to make a reasonable effort to repay either the Land Commission for the first charge or any other party who would have a charge against those lands. The fact that part of the land is acquired could easily damage the capacity of the person to repay either the Land Commission or any other party which might have a charge. I should like to know if this is a common thing or an innovation in legislation to protect the Land Commission.
In reply to Senator O'Quigley, I was, perhaps, wrong to suggest that there was a right over against the Land Commission in respect of money over and above arrears or the buying out of annuities. Nevertheless, the Land Commission will have to appear before the board and prove as a matter of fact that there are certain arrears due for what the redemption value of that part of the holding is before the board will be entitled to make an award in respect of that amount in favour of the Land Commission. The Land Commission, under Section 44, will have the right to appear before the board and that right is inserted in order to enable the Land Commission to prove its claim.
In reply to the point made by Senator O'Reilly, I would say that, in the main, this is common form. The Land Commission will have to prove arrears in respect of the payment of land annuities and prove the amount required to redeem annuities in respect of a particular holding. What is new about this section is that where only part of the holding is the subject matter of compensation, while any arrears that may be outstanding in respect of the entire holding will still be payable, the power of the Land Commission will be limited to that part of the holding in respect of which compensation is paid and not to the entire holding. It is an innovation to that extent. In other words, the entire holding is saved from the obligation to redeem the annuity in the event of the Land Commission looking for it. They are limited only to the part of the holding in respect of which compensation is payable.
Then the Land Commission's powers are being lessened rather than increased?
In view of the statement made by the Minister as regards the right of a person over against the Land Commission, would the Minister consider exercising the powers he has under paragraph (d) of Section 30, whereby he is authorised to make regulations in relation to the practice and procedure of the board, to provide that in fact the Land Commission will under these regulations have to establish the amount of arrears and the amount of the redemption value to the satisfaction of the board. I do not imagine that that will ever create any great difficulty in practice, but it certainly derogates from any status this board might have as an independent, semi-judicial body to say that it has to take the word of the Land Commission and make an Order on the Land Commission's request. The Minister might consider making regulations which will do something to relieve people of that sense of grievance they might have if they are not entitled to challenge the Land Commission in regard to the assessment they make of arrears or the amount of the redemption value of the annuity.
It is hardly likely that the Land Commission would not have to prove its claim. Nevertheless, I shall consider the suggestion sympathetically when the time comes.
Amendment agreed to.
An Leas-Chathaoirleach
The new section will then be inserted and Section 47 will be deleted.
Section 47 deleted.
SECTION 48.
Question proposed: "That Section 48 stand part of the Bill."
It seems difficult to understand how the amount of compensation could at any time be less than the redemptive price of the annuity. I should like on this section to make an appeal for generous compensation. The notion of market value is very misleading, especially seeing that the market value is always reckoned without redemption of the annuity. A just price should be, at the very minimum, market value plus redemption, but certainly market value by itself is unjust.
The section deals with compensation for ancillary rights rather than for land, so that the Senator's remarks are not quite to the point. Nevertheless, in respect of compensation generally, it will be a matter for the board to assess as fairly as possible the amount of the compensation.
I am just making the point that ordinary market value does not make provision for redemption of the annuity and consequently is rather misleading.
Question put and agreed to.
Sections 49 to 51, inclusive, agreed to.
SECTION 52.
Question proposed: "That Section 52 stand part of the Bill."
In paragraph (b) of subsection (2), the Minister is authorised to prevent people from conducting their operations in the working of petroleum in such a manner as is likely to cause damage. I wonder if the Minister has in mind damage to the property itself or to the use of ancillary rights, or damage covered by the creation of nuisances to owners of contiguous property, or does the damage embrace damage to the amenities of the locality? It seems to me that the wording of the subsection would enable the Minister to serve notice on the licensee to cease causing damage in all the different respects I have mentioned, particularly in relation to the amenities of the locality. It might be very desirable to vest that power in the Minister.
There is another point, that the Minister may require remedial action to be taken. I am wondering if that power will be something in the nature of an injunction which he may issue by notice to the people to desist from that kind of action in the future. Does the Minister envisage himself having sufficient powers to issue orders in the nature of injunctions to lessees to prohibit them permanently from causing the damage which is contemplated in the paragraph?
The subsection does not give any powers of injunction to the Minister, but the Senator will notice that there are powers of prosecution in the event of a person causing unnecessary damage. The Minister also has power in the event of a person refusing to take remedial action to take the necessary action and charge the cost of it against the operation. Any agreement will be subject to the requirements of good oilfield practice, and therefore to the extent that such wasteful operations or operations causing unnecessary damage will be contrary to the regulations as defined and against good oilfield practice, the entire operation of the person involved is liable to be prevented or stopped.
Question put and agreed to.
Sections 53 to 60, inclusive, agreed to.
SECTION 61.
Question proposed: "That Section 61 stand part of the Bill."
This is a section which moves me to congratulate the Minister. Perhaps that is a change from what I said earlier to-day. I think it is a very desirable change of direction that regulations will be available in draft form to be inspected by members of the public before being finally made. Perhaps that is an innovation. If it is, it certainly is a very desirable one.
The only thing which left me slightly dissatisfied with this section was, that having gone so far and done so well, it goes on to say that the Minister will publish in one or more newspapers circulating in the State a notice that draft regulations have been made— then this is the defect—and they "may be inspected at the office of the Minister in Dublin at specified times". It is a pity to see such a welcome change being made of less value by reason of the fact that these regulations will be available for inspection in Dublin. If a solicitor in west Cork wants to see them, he will have to come to town, or send his agent to inspect them in the office of the Minister. I wonder would the Minister go the distance of extra-statutorily announcing that copies may be obtained on application to his office, even at a nominal charge.
I shall give that assurance.
I am grateful to the Minister.
Question put and agreed to.
Sections 62 to 65, inclusive, agreed to.
SECTION 66.
Question proposed: "That Section 66 stand part of the Bill."
This section is also related to Section 47 on which we were dealing with Land Commission annuities. Supposing the Revenue Commissioners tell a man that he owes a certain amount for income tax and he disputes that amount with them, the official Revenue position is that that is a debt due by Farmer So-and-So to the Revenue Commissioners.
Apparently under this section once the Revenue authorities have informed the board that the debt is due, it is payable immediately to the appropriate Government authority without any proof being required that it is due.
The section as it stood originally would probably have justified the fears of the Senator, but an amendment was introduced to ensure that if one Minister felt a recipient of compensation was indebted to him, that Minister would have to prove, as a matter of fact, that such debt was due. I am satisfied that the section as it is worded will require proof of the fact of the debt to be given. It was drafted to ensure that purpose.
Question put and agreed to.
Section 67 agreed to.
SECTION 68.
Question proposed: "That Section 68 stand part of the Bill."
I do not know what the procedure is, but in view of the fact that the Bill was not passed in 1959, is it necessary to amend "1959" and make it "1960"?
It is common practice and I am sure common practice will be followed.
Question put and agreed to.
Sections 69 to 79, inclusive, agreed to.
SECTION 80.
Government Amendment No. 2:
In paragraph (a), line 4, to delete "land," and substitute "‘land' where the latter word firstly occurs".
This is a drafting amendment. Section 80 of the Bill amends subsection (3) of Section 41 of the Minerals Development Act, 1940, by the insertion of certain words after the word "land". As the word "land" appears twice in the subsection, this amendment is to make it clear, that the words are to be inserted after the word "land" where that word first occurs in the subsection.
Amendment agreed to.
Section 80, as amended, agreed to.
Sections 81 to 83, inclusive, agreed to.
NEW SECTION.
Government Amendment No. 3:
Before section 84 to insert the following new section:—
"The following section shall be inserted in the Principal Act in lieu of section 66—
‘66. (1) (a) Where compensation is assessed by the Board in respect of land which is subject, but not in conjunction with other land, to a land purchase annuity, the Land Commission may, if they so think fit, request the Board—
(i) if the amount of such compensation is equal to or less than the redemption price of such annuity and the arrears (if any) of such annuity—to order by its award payment to the Land Commission of the whole or such part of the compensation as the Land Commission request, or
(ii) if the amount of such compensation exceeds the redemption price of such annuity and the arrears (if any) of such annuity—to order by its award payment to the Land Commission of so much of the compensation, not exceeding the amount of the said redemption price and arrears (if any) as the Land Commission request,
and the Board shall comply with such request.
(b) Where any award in relation to land which is subject, but not in conjunction with other land, to a land purchase annuity provides under paragraph (a) of this subsection for the payment of any moneys to the Land Commission, such moneys shall upon receipt thereof be applied by the Land Commission in accordance with the following provisions, that is to say—
(i) in case there are any arrears of such annuity and the amount of such moneys does not exceed such arrears—in or towards discharge of such arrears,
(ii) in case there are any arrears of such annuity and the amount of such moneys exceeds such arrears—
(I) so much of such moneys as is equal to such arrears shall be applied in discharge of such arrears, and
(II) the balance of such moneys shall be applied in or towards redemption of such annuity,
(iii) in case there are no arrears of such annuity—in or towards redemption of such annuity.
(2) (a) Where compensation is assessed by the Board in respect of land (in this paragraph referred to as the affected land) which is subject, in conjunction with other land, to a land purchase annuity and the Land Commission apportion the annuity between the affected land and the other land, the Land Commission, may, if they so think fit, request the Board—
(i) if the amount of such compensation is equal to or less than the redemption price of such annuity as is apportioned to the affected land and the arrears (if any) of such annuity—to order by its award payment to the Land Commission of the whole or such part of the compensation as the Land Commission request, or
(ii) if the amount of such compensation exceeds the said redemption price and the arrears (if any) of such annuity—to order by its award payment to the Land Commission of so much of the compensation, not exceeding the amount of the said redemption price and the arrears (if any) of the annuity, as the Land Commission request,
and the Board shall comply with such request.
(b) Where an award in relation to land (in this paragraph referred to as the affected land) which is subject, in conjunction with other land, to a land purchase annuity provides for the payment under paragraph (a) of this subsection of any moneys to the Land Commission, such moneys shall upon receipt thereof be applied by the Land Commission as follows—
(i) in case there are any arrears of such annuity and the amount of such moneys does not exceed such arrears—in or towards discharge of such arrears,
(ii) in case there are any arrears of such annuity and the amount of such moneys exceeds such arrears—
(I) so much of such moneys as is equal to such arrears shall be applied in discharge of such arrears, and
(II) the balance of such moneys shall be applied in or towards redemption of so much of the annuity as is apportioned to the affected land,
(iii) in case there are no arrears of the annuity—in or towards redemption of so much of such annuity as is apportioned to the affected land.' "
An Leas-Chathaoirleach
The new section will be inserted before Section 84. The new section is amendment No. 3 which was discussed jointly with amendment No. 1.
Amendment agreed to.
Sections 84 to 87, inclusive, agreed to.
Title agreed to.
Bill reported with amendments, received for final consideration, and passed.
Business suspended at 5.40 p.m. and resumed at 7 p.m.
