Private Business. - Minerals Development Bill, 1978: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

The purpose of the Bill is to make more effective provision for the development in the national interest of the mineral resources of the State.

Basically, the reason for this Bill is that the provisions in the Minerals Development Act, 1940, for the compulsory acquisition of unworked, privately-owned minerals are of uncertain legal validity and can no longer be operated with safety. The House is generally aware of the background to this circumstance. Briefly, what happened was that in 1970 the discovery of a significant lead-zinc deposit in a prospecting licence area at Nevinstown, County Meath, was announced. Subsequently, detailed investigations showed that the deposit extended to other townlands and as ownership of the minerals in the area was mixed, including those at Nevinstown which were privately-owned, the then Minister made a Minerals Acquisition Order on 15 March 1971 covering all unworked minerals except, of course, State minerals in the area concerned. Some few days after the making of the order, a third party effected purchase of the surface lands and mineral rights of a farm at Nevinstown within the area of the then known deposit and challenged, in the High Court, the validity of the acquisition order and the constitutionality of the 1940 Act.

In a reserved judgment delivered in April 1973 the President of the High Court held that the order was invalid. The then Minister appealed the High Court's decision but the Supreme Court, in a reserved judgment delivered in March 1974 upheld the decision of the High Court.

The grounds in both cases were that the order did not specify with reasonable particularity the nature, situation and extent of the minerals being acquired, which the court held was required under section 14 of the Minerals Development Act, 1940, under which the order was made. In the circumstances, the court found it unnecessary to rule on other grounds on which the acquisition order had been challenged, including whether in section 14, which makes no reference to the giving of prior notice by the Minister, there is an implied obligation arising from the requirements of natural justice that such notice be given, the constitutionality of the acquisition provisions under that section and of the provisions for compensation.

Subsequent advice by counsel, however, was to the effect that the acquisition provisions of section 14 of the 1940 Act, if applied in future, would almost certainly be challenged on grounds of validity and again raise the question of the constitutional validity of the Act. Accordingly, it is now the position that there are no effective means readily available to secure the development of unworked minerals in private ownership in appropriate cases.

It is desirable, in the national interest, to ensure that companies doing exploration work here should have reasonable assurance that, if they discover a deposit and produce development plans which are acceptable to the State and other appropriate authorities, they will not be prevented from proceeding with those plans because of legal problems on the ownership issue. It will be appreciated that any effective remedy to the existing situation must, of necessity, affect the rights of ownership of property. It has been necessary to seek an equitable and acceptable way of dealing with this difficult problem and for that reason the Bill has not been an easy one to prepare.

The Constitution acknowledges the right to private ownership and prohibits any law attempting to abolish this right. It also provides that the exercise of this right ought to be regulated by the principles of social justice and that the State may, as occasion requires, delimit by law the exercise of these rights, with a view to reconciling their exercise with the exigencies of the common good. Thus, the solution proposed in the Bill is to vest the exclusive right of working minerals in the Minister. I am satisfied that the vesting proposal comes within what might be called the constitutional dispensation to which I have referred and, from the economic and practical point of view, the exigencies of the common good require, or at least justify, control by the State of all unworked minerals in the State in the manner provided in the Bill.

The memorandum circulated with the Bill explains its purpose and that of the various provisions. Accordingly, in dealing with it now I intend to concentrate only on the principal features of the Bill. Briefly, the Bill provides for:

—the vesting in the Minister for Industry, Commerce and Energy of the exclusive right of working minerals,

—the granting by the Minister of a lease or licence to any person giving that person the exclusive right to work minerals in respect of which rights are vested in the Minister,

—the payment of compensation to persons entitled to any estate or interest in the minerals the mining rights of which are vested in the Minister, and

—the making of certain amendments to the Minerals Development Act, 1940 which experience has shown to be desirable, as well as a number of repeals in consequence of proposals in the Bill.

Rights to work mines of minerals being lawfully worked or being planned for working at the date of the initiation of the Bill in the Dáil, that is, 15 December 1978, are specifically excepted from vesting in the Minister on the passing of the Act. Other exclusions from the scope of the Bill are stone, gravel, sand or clay, and petroleum as defined in the Petroleum and Other Minerals Development Act, 1960.

Part I of the Bill deals with matters of a preliminary and general nature. The Bill, when enacted, will be construed with the Minerals Development Acts, 1940 and 1960, which constitute our basic mining laws. Section 4 provides for a change in the composition of the Mining Board by requiring that henceforth both ordinary members shall be property arbitrators. Under the existing legislation one of the ordinary members is an officer of the Minister. In view of the changes being made by the Bill, and, in particular, changes in the role of the board, it is important that the board should be seen to be an independent body.

Section 6 provides that the interest of persons under disability, or unascertained, will be represented in proceedings before the Mining Board or the court. In the context of the problems associated with the determination of title to minerals ownership and of tracing owners, a provision of this nature is seen as highly desirable.

Section 7 provides for the appointment of assessors to assist the court in any proceedings under the Bill. This will enable the court to have technical advice readily available to it throughout the proceedings.

Section 11 provides for repeals. The repeal of section 70 of the 1940 Act ensures that an aggrieved party will have a right of appeal to the High Court on a question of fact as well as of law. In the main, the other repeals listed in the Schedule to the Bill are as a consequence of proposals in the Bill.

Part II of the Bill contains provisions for the vesting of the exclusive right of working minerals in the Minister, subject to a number of exceptions under section 13 to which I have referred.

Section 15 empowers the Minister to apply to the Mining Board to have the registration of minerals as excepted minerals cancelled, where it appears to him that they are not being worked. Again, as in the case of section 14, the ultimate jurisdiction of the Superior Courts is preserved and there is provision for the serving of notice by the Mining Board on such persons as may appear to the board to have an interest in the proceedings.

Section 16 empowers the Minister to grant a licence to any person to work State minerals, which, by definition, include exclusive mining rights vested in the Minister under the Bill. The Minister already has the power to grant a lease in respect of State minerals under Part IV of the 1940 Act. In future cases, therefore, the Minister will have power to grant either a lease or a licence to enable minerals to be worked, depending on whatever instrument is most appropriate to the particular case.

It is also provided in this section that the Minister, with the concurrence of the Minister for Finance, may take a participating interest in the working of the minerals and that he may so provide in the conditions attaching to a lease or licence. This is an enabling provision, designed to ensure that the Minister would be in a position to specify State participation as a condition of a lease or licence. It is not necessary, nor do I think it is desirable, to attempt to formulate the precise policy lines which would apply to State participation. The State has the duty, in the national interest, to ensure that a reasonable and equitable share of the profits from the development of a deposit accrues to the Exchequer. Furthermore, the State must, again in the national interest, have the power to ensure that the development plans are drawn up and implemented in an optimum way. The extent, if any, to which participation by the State may be desirable, for the purpose of achieving one or both of these objectives, cannot be determined on a theoretical basis, but on the basis of the circumstances peculiar to each individual deposit of minerals.

Section 17 provides for the giving of prior notice by the Minister where he proposes to work minerals, or to grant, or give an undertaking to grant, a lease or licence to work them. It is also provided in this section that, as far as practicable, individual notice would be given to persons who appear to the Minister to have an estate or interest in the minerals and that such persons should be given a reasonable opportunity of making representations to the Minister in the matter. Similarly, it is provided that the Minister may refer the representations to the Mining Board and, indeed, must do so where the person making the representations so requires, by application to the Minister. The board's consideration of the representations will take the form of an inquiry.

Section 18 provides for the publication of a notice by the Minister where he commences to work, or grants a lease or a licence to work any minerals which are State minerals by virtue of this Bill. The object is to alert those entitled to any estate or interest in the minerals to these facts. Compensation claims will be indicative of title and at this point the pattern of ownership will begin to emerge. As in the case of notices under section 17, there is also provision here for individual notices to persons who have claimed to be entitled to any estate or interest in the minerals.

Part III deals exclusively with the arrangements for compensating those with title to minerals, the mining rights which are vested in the Minister under the Bill.

Section 19 establishes the right to compensation of every person with title to the minerals immediately preceding the date of the enactment of the Bill. It is envisaged that the compensation will, in the normal way, be related to the commercial potential of the minerals, and will accrue as and when the minerals are being developed.

Section 20 states that compensation will be paid by the Minister; this is in line with the position in the 1940 Act relating to compensation for State acquired minerals. There will be no change in the existing procedure whereby the Minister will recoup compensation payments from the lessee of the minerals.

It is provided in section 21 that, in default of agreement, any question arising as to the entitlement of any person to compensation, or as to the amount, will be settled by the Mining Board. It is also provided in this section that where the Minister, or the claimant for compensation, is dissatisfied with the board's findings, there will be a right to apply to the court to settle the matter. There is also provision for the revision of an award, in the event of a change in circumstances not foreseen at the time of the original award. I think the reasons for this provision are obvious and further elaboration is hardly necessary.

Section 22 states the basis for the assessment of compensation, which is to be fair and reasonable, having regard to all the circumstances of the case. While the section does not place any restriction on the form the compensation should take, it indicates, however, what would be the usual basis of a compensation award of this kind, namely, that it would be based on such proportion of the net profits arising in consequence of the working of the minerals as is attributable to the minerals as they existed in their natural condition prior to such working. Essentially, this would take account of the pre-extraction value of the minerals in terms of their contribution to the mining operation. It is further provided that where it appears to the Mining Board, or the court, that compensation in the form of periodical payments would not, of itself, be appropriate, then the board or the court may, in its discretion, award compensation in the form of a lump sum payment, or partly in that form and partly in the form of periodical payments.

The scheme of compensation has had to be designed to ensure, on the one hand, that awards will not be such as to frustrate economic mining and, on the other hand, that the owner will receive reasonable and equitable compensation for his minerals. I am satisfied that the proposals in the Bill make adequate provision for the achievement of these very essential objectives.

I believe that the proposals in this Bill will substantially eliminate the difficulties which have arisen with regard to minerals development. It should enable the State and the mining companies to deal with this in a practical way and in a manner which is equitable for people who have clear title to mineral rights. However, technically, it will not settle the rather complicated position of ownership of mineral rights. The legal position is that some mineral rights are clearly owned by the State, some can be legally established as in private ownership and there is a grey area where ownership cannot be established in a definite way.

In an earlier draft of the Bill the Minister had set out to secure clarification of this position by a process of compulsory registration of title. The scheme he had in mind was that the area of a minerals deposit would be designated as one in respect of which the mineral rights would have to be registered. Persons claiming to own mineral rights in the area would be given a period of time within which to secure registration of their title and an appeals procedure was provided for. These proposals envisaged that when the period for registration had expired and subject to the results of any consequential appeals, all minerals in the area which had not been registered as privately owned minerals would automatically become the property of the State. These proposals were considered by a number of legal experts and the consensus of their opinion was that such a scheme would present very considerable difficulties. It became clear that, if it were to incorporate the safeguards necessary to overcome these difficulties, then the improvement on the existing situation would, if any, be marginal.

We must, of course, accept the views of these legal experts and, for that reason, the Minister decided not to include anything in the Bill dealing with this particular matter. I should, however, say that the Minister has not abandoned the idea that some further improvement in this direction may be possible and he intends to have the position considered. While the proposals which the Minister had in mind, or some modification of them, would be a desirable supplement to the provisions of the existing Bill, they are not by any means as important to a resolution of the existing problems as are the provisions of the Bill. For that reason the Minister felt it was desirable to press ahead with the Bill as now drafted because he is satisfied that it will provide substantial resolution of the difficulties which have existed since the court proceedings to which I have referred.

While the Bill is, therefore, an important measure, it has a fairly limited purpose which is to deal with the difficulties arising from the court decision to which I have referred. I am satisfied that it does this in a manner which conforms to the provisions of the Constitution and at the same time provides a satisfactory and workable basis for administering policy on minerals exploration and development. In this regard, it will continue to be the policy to encourage the widest spread of exploration by mining interests and to create a climate where there can be confidence in the future of mining in this country.

There are other important and possibly controversial areas which are not dealt with in the Bill; for instance, it does not attempt to deal with the question of whether the State should adopt a more active role in minerals exploration and development. I believe that it would not be appropriate to attempt to link a major policy issue of this kind with the rather technical matters which are dealt with in the present Bill. This is not to say that the question of a State role in the minerals sector does not merit consideration. I believe it does, but this consideration should be critical and it should not be carried out on the basis of preconceived ideas. The problem of the right to work minerals, which is dealt with in this Bill, is one which must be tackled, no matter what role might be envisaged or adopted for the State in exploring and developing minerals.

I commend this Bill to the House. The comments and discussion on it up to this time seem to suggest that there is no substantial divergence of views on the need for the measure. I believe that the Bill will, when it comes into force, operate as an incentive towards continued operations here by mining interests, so that our mineral resources will be explored and developed in a continuing and committed manner.

I think the practice of the House requires me to declare an interest in this field, in that my professional firm acts for, and has acted for, the company that made the Navan find and, indeed, a large number of other prospecting companies which never succeeded in discovering anything, and other firms, one of which I am, in fact, a director. I have obviously gathered information from dealing with these people over the years. My opinions are very much my own and I am wholly responsible for them. I want to assist the House on what is, I feel, the most radical Bill that the House has had to deal with in this session and, perhaps, the most radical Bill that I have had to deal with since becoming a Senator, in so far as it is a very significant delimitation of what may be very important property rights. The Minister said that there was no substantial divergence on the need for the measure. May I immediately say that I in no way diverge from the view that this measure is needed. This measure, or something very like it, is very much needed. We have a very serious problem and this Bill is a very genuine effort to cope with that problem. I most sincerely hope that it will do so successfully. If there is anything that I can suggest, in the course of this debate, which will improve it in the manner of its coping with this very serious problem, I should feel very happy to be able to make a contribution.

What is the problem? We should look at it starkly. The fact of the matter is that since the upset by the court of the acquisition order which was made following the discovery of the Navan mine, there has not been, published at any rate, any discovery of any other mineral resources in this country. That was more than five years ago. What this Bill is trying to do is to clear out of the way a legal obstacle which has been there, obstructing the development of the mineral resources of this country, very much against the interests of the Irish people. I very much welcome the successful coping with that obstruction. I shall not go into the details of it; there is no need to do so.

The whole legal structure on which policy was founded, in effect, capsized with the findings of the Supreme Court with regard to the effective non-operability of the minerals acquisition section, section 14, of the 1940 Act. The court did not find, although it might have done so, if it had been pressed, that the mineral acquisition procedure was in itself unconstitutional. Indeed, the President of the High Court, who gave his judgment before it reached the Supreme Court, held to the contrary. If this Bill went even further than it does, and went to the point of a total State acquisition of the privately owned mineral resources of this country, it would be my view that that acquisition, in the circumstances in which this country finds itself, in the factual economic position which we have with regard to these mineral resources, would be held to be a delimitation of the exercise of property rights which according to the principles of social justice would be found to meet the exigencies of the common good.

As far as I am concerned, the Minister need have no hesitation in converting what is a proposal to take and vest in the Minister an exclusive right of working minerals into a total acquisition of the mineral resources of this country in private hands because their existence in private hands has been an obstacle to development by the State or on behalf of the State, development by developers, development by lessees. The wraith, the ghost of old property rights in the mineral resources has proved to be and is preventing the growth of real property rights in the valuable resources which might be discovered if that wraith were taken away.

I do not want to go into the detail of it. There is no need to go into the detail of it but I think just a broad summary of the thing, if I am summarising correctly and I hope I am, is worth while. Broadly speaking, theoretically and in law you could always sever the ownership of minerals from the ownership of land. You could have a freehold interest in your land and not own the minerals. The minerals could be severed from the land. Historically this happened and when the lands of Ireland came to be vested in the tenant proprietors of Ireland, all the Acts —I think I am correct to say—up to the 1903 Act left these mineral rights in the landlords or in the lessees of the landlords or in the Crown or in some other superior interest, and these residual mineral rights are speckled all over Ireland. The speckling is still further added to by the fact that when they came to vest the lands under the 1903 Act, they did not vest the mineral rights of the landlord or the vendor in the Land Commission if the vendor at the time of vesting was working the minerals himself.

Similarly under the 1923 Act when it was all taken into State ownership, if on the appointed day the minerals were being worked by the owner or by a lessee of the owner, then they remained with him. They never came into the State but unfortunately under the machinery for the acquisition of these lands nobody in those times thought that there were mineral resources around. Nobody bothered about it, and so the amount of information that is available as to whether or not they were being worked is nothing like adequate to establish that the State owns them because they were not being worked by the landlords.

If you are prospecting in modern circumstances you may be prospecting a vast tract of land which might be 1,000 acres, which might be owned by 40, 50 or 60 people, all with separate and different titles. Somewhere in the middle of that 1,000 acres where your prospecting was going on, you might find that the State could not prove that it owned that portion there and the whole development of the mine might be obstructed because the State could not make a good title to the person or the company that wanted to do the development. If we are talking about mineral discoveries of substance, the money involved is not thousands or millions of pounds, it is tens of millions of pounds which comes in from financiers who want to be sure that the title is good.

That was all very fine until the procedure which was invented and was in the 1940 Act whereby the Minister would give an undertaking in the course of a prospecting that he would give a lease to the prospector if he was successful in his prospecting operations. That was all very fine if the Minister could come in and make a minerals acquisition order, but when the procedure under section 14 of the Minerals Acquisition Act was faulted by the court, then people were prospecting and they were likely to have the experience that the people had in Navan when they found a mine on land the State did not own and when someone could come in, take advantage of their discovery and buy the mine from the person who did own it. The undertaking of the State to lease to the man who found it could not be fulfilled because the State could not acquire the lands because of a defect in the procedure. The State could not acquire the land from the freeholder who owned the minerals.

In that circumstance and in that situation I am quite clear that it is an entirely just and proper law to tidy up this whole picture and to take into some ownership—obviously preferably in this situation the State which already holds the vast majority of the mineral resources anyhow—the rest of them and vest them in the State.

In this Bill the Minister is not going as far as that, but I am afraid he may be held to be going as far as that because instead of acquiring the mineral resources all together, what the Bill is doing is vesting the exclusive right of working them in the Minister and apparently seeking to put himself in a better position to argue that this is a constitutional delimitation. It is arguing that the mineral resources are not being taken over, that there is no appropriation, no take-over, no acquisition, that the ownership remains where it is now whatever it may be, and that all that is happening is the exclusive right of working what is there is now to be in the Minister.

I think that is all too like saying to a man with an apple tree, you can continue to own the apple tree but the exclusive right of picking all apples from that tree is now mine. The reality of leaving behind the ownership resources while taking the exclusive working of the resources, seems to me to be very doubtful. I would have preferred, and still would prefer, if there was a full acquisition of these mineral resources and not taking away only the exclusive right of working them. Taking away the exclusive right of working is to appear to leave something behind when, in fact, nothing is being left behind because what can you do with mineral resources which you cannot work?

I think the Minister is weakening his case, and case there must be about this. He is weakening his case by repealing the section of the 1940 Act which provides for acquisition of these minerals, and by repealing the section which at present allows him to acquire the minerals he seems in effect to be saying: "We no longer want to acquire the minerals because they are no use to us. We are vesting in the State the exclusive right of working and you can keep the nominal ownership"—the illusory element; the reality is being taken by the Minister. If you are taking mineral resources, take mineral resources; do not take exclusive right of working mineral resources.

I am apprehensive of the effect of one particular definition which indeed can be corrected. That is the definition of working as including "searching for" among the many elements which will constitute working. If the exclusive right of working is taken from an owner, and if the exclusive right of working includes the exclusive right of searching for, is it not the most primary act of ownership that a man would be entitled to search for what he owns, to discover what he owns, to measure and value it? It seems that to take that is to take the primary element and a primary constituent in the business of possessing or owning anything.

I know the Minister has been complimented for ingenuity in his way of doing it. No doubt there is a certain withdrawal of political provocation involved in saying you are taking exclusive right but you are leaving the ownership free. It does not seem to me to matter very much, particularly if the courts are going to look at it, as they very likely will. The Minister has been very wise in one thing—I do not doubt the ingenuity here; it is a constructive and beneficial ingenuity—in having a Long Title. I dissent from my colleagues in Dáil Éireann on this point. I think the Long Title is intended to aid the courts in construing the intention of the legislature with regard to this measure. It is designed to assist the court in the matter of discovering if we as a legislature are consciously having regard to principles of social justice and seeking to enact legislation which has regard to the exigencies of the common good. That is good but I want to suggest to the Minister for consideration something more than the Long Title. I know it has been said that it is not a modern practice to have a preamble to a Bill. First of all, it is not altogether true. In the United Kingdom the Matrimonial Causes Act, 1937 has a preamble, but more important, that is a practice which has grown up in this country under the influence of British lawyers, British lawyers who have no written Constitution.

I invite the Minister to have the law officer consider again in the context of this legislation, which is so important for the development of these resources and which could have a transforming effect on our whole economy, whether there is a proper basis for continuing the prejudice against preambles, whether a Constitution which sets forth very well various personal rights, subject in most cases to a variety of different justifications for legislative intervention with them, does not in particular make it extremely desirable to have a preamble. What am I talking about when I talk about a preamble? I am talking about setting out in the Act of Parliament that we enact the relevant facts on foot of which we decided that this was in accordance with the principles of social justice, to take these resources, or if you like the exclusive right of working into the Minister's hand, to set out the facts with regard to the title ownership, with regard to the fact that there has not been development because of that title ownership.

Unfortunately it is not the practice of our courts to look at parliamentary debate. They do not permit themselves to look at the memorandum which accompanies a Bill. They can, and have done occasionally, look at commission reports and they will certainly look at a document which is referred to in legislation. I do not think it should be left to the ability of the professional men who will be in court on the day this matter comes for finding, or their ability to get the right witnesses to prove the right facts, that this legislation should stand or fall.

What happens if it falls? If it falls the ability to ground the whole development will disappear. If this is not put beyond doubt as a legally enforceable measure, if the Minister's title to give a lease to some developer is not put beyond doubt by a court finding, you may find that the professional advisers to the proposed financiers of a company proposing a development will have in honesty to say, "We cannot be certain that this title will stand up and you may lose your money unless you get State guarantees."

The President has a right to refer a Bill to the Supreme Court before signing it. He did that a few years ago. On the Supreme Court finding that that Bill is in accordance with the Constitution, then the provisions of that Bill cannot afterwards be challenged. I know there is a view against the point I am making, but I want to ask the Minister to reexamine this; let us have solid rock in law on which to build the superstructure of the economic development which I hope will come from this measure. The only way to get solid rock is by referring the Bill to the Supreme Court.

Other things may have to be done to the Bill before we can be confident that the Supreme Court find it to be constitutional. When we get to Committee Stage we will have to look very closely at every section and I ask for patience when we get to that Stage because this is a very serious matter. After all, if our predecessors had considered with all the enlightenment of hindsight the significance of the language used in section 14 of the Minerals Development Act, 1940 development would not have stopped in 1960 or 1974. The prospecting would not have dried up more or less as it unfortunately has. A good deal of capital would have been embarked around this country to the benefit of people, even if finds had not been made. Of course, if finds had been made far greater benefit would have been obtained. But if our predecessors had looked to the language of their section that fatality would have been avoided. Let us look at the langauge of our section and satisfy ourselves that we are not leaving any nook or cranny in this Bill that can aid anybody who wants to upset it. It is very much in the interest of this country that we all do our duty with regard to this. If there is any matter of doubt whatever in the language, let us not take a chance on it.

I do not think it is going to be sufficient to rely on the advice that this is constitutional anyhow as it stands, that there is a distinction, that this is without a doubt arguable as a delimitation of property rights. That carries you a lot of the way, but there will be marginal money that might make all the difference regarding the extent of the development which might not be prepared to go on hazard and on risk if there is any doubt about it unless we have—and maybe there is an answer to this incidentially—some kind of covenant in the lease that the Minister will make with the consent of the Minister for Finance which will be in itself the fullest indemnity to anyone taking a lease. After all it was very many years after 1940 that section 14 fell. It might be a larger number of years before someone attacked this if it is not first sealed with the Supreme Court's approval. If at some stage the exclusive right were challenged successfully—and there could be a lot of money prepared to spend itself in that challenge—the people would at least be able to fall back and say, "Well, we will get the Minister for any loss we suffer because we have got his covenant for quite enjoyment".

If we are not able to have solid rock in the shape of our Bill, let us have the lease itself such that the Minister, even if he has failed to get the exclusive right to work, is put in a position of wholly indemnifying the person who is developing. I am not in love with the developers, do not misunderstand me. I just want to get the blighters to develop. I want them to do their business and develop and they will not do that if their title is on risk. At least some of them will not, and it is they whom we possibly will want.

The question of prospecting here has not been dealt with in this Bill and it is a matter of some surprise to me that it has not. I do not know if the Minister is aware that for very many years prospecting licences were used by the licensees without their running into much difficulty. In the past few years landowners have been questioning the licensee's entitlement to come in and do all those things that under the prospecting licence he is authorised to do on what is, after all, the landowner's property. Although the section authorising the Minister to give prospecting licences provides for the procurement of indemnification, in fact there is no provision for payment of compensation to the owner of the land who may or may not own the minerals. These prospecting licences have been operating and it has never been clear up to this whether they were validly being operated in cases where the State did not own the minerals in question, where the prospecting was being done over lands where the minerals were owned by people other than the State. You may say that particular question will disappear down the drain if the exclusive right of working gets transferred to the Minister. I would like to see some evidence of a consideration of the problems of prospecting here which I do not find.

When we get to Committee Stage I will be referring to quite a number of different items. Some of them will have a bearing on this desire which we all share to make the Bill as safe as we possibly can, for the benefit of the country and for the benefit, incidentally, of the owners of the mineral resources themselves if they finally get returns out of them. There are other sections not having the same relationship. There are one or two things that worry me about the Bill. First of all, there is provision for the registration of people who were developing on 15 December when this got published. It is most important from the point of view of the constitutionality of this Bill that there be a time limit with regard to registration of the fact that they were engaging in development, which incidentally I notice in subsection (2) it is called developing whereas I really think it should be called lawfully developing a mine. That should not be left at large to the Minister to determine. It is much too important a matter. It should be determined by the Legislature itself.

I also think that the question of the constitution of the board is of very great importance. It is proposed to amend the existing provisions with regard to the Mining Board by substituting for the two ordinary persons two property valuers. I have no objection to that. There is provision for assessors in the court. There should be a like provision for assessors in the case of the Mining Board just as we have provided for assessors in the judicial tribunals of inquiry. In this area where the criteria are going to be so difficult to work out as to how to determine what is a fair and reasonable compensation, it does not seem to me to be a property man's job but very much one which, if it is to be a property man's job, he can only do with the benefit of the assistance of mining assessors.

A frailty that I see in the existing position—perhaps I am wrong—relates to the constitution of the board as it stands in that the Minister can remove members of the board. If it is the Minister who will be paying the compensation which is to be awarded, and if the Minister can remove a member, I would take that point away from somebody wishing to attack the Bill and put the people who are engaged in the business of assessing compensation here in some standing which makes them feel and appear to be independent of the Minister whose Government is going to have to find the money to finance the payments. After all it is not just for a particular acquisition: this will apply to all the private minerals in the country that are being acquired or to the exclusive right of working which is to be acquired.

I should like to make another point before I finish and I am afraid I have a great deal more to say on this. From my point of view, someone contemplating having to operate this Bill as a piece of law, as no doubt it will be, I find section 16, which, under licences to work, adapts, sections 13, 26 and 43 of the 1940 Act, awkward and I would think extremely difficult to operate. There are dangers in doing it this way from an understanding point of view; from the point of view of us understanding what we are doing; from the point of view of the Minister understanding what she is doing and the Minister's advisers understanding what they are doing. We should enact these sections and that part if necessary in their entirety in the context of a licence to work as distinct from what they are related to in the language of the original Act.

It is infinitely boring stuff to be setting out in pages and printing but it will have to be done by the people who are going to operate it for their own convenience or they will not understand what they are doing. It is highly desirable to set it all out in this Bill so that we can immediately understand what we mean. We have to look at what we are saying here in section 16 (3):

The following provisions of the Act of 1940 shall apply to a licence under subsection (1)—

Section 13 of the Act, which refers to an undertaking by the Minister to grant a State mining lease, states:

On the granting or at any time during the currency of a prospecting licence the Minister may enter into an undertaking with the licensee under such a licence to the effect that if at any time during the currency or on the expiration of such a licence the Minister is satisfied the prospecting carried on has been successful...

"On the granting or at any time during the currency of a prospecting licence"—or are we to take it as meaning that when we are operating it prospecting licences are going to continue and leases continue in relation to minerals that are State minerals other than the State minerals that are deemed to arise when you have the exclusive right of working which is provided for in the beginning of the section? At the same time, are we expected to delete "a prospecting licence" from the opening words of section 13 and shove in "a licence to work any State minerals"? This may be as clear as daylight to the wiseacres who thought all this up but it is not clear to me. If we are to pass this into law it would be useful to have it clear to somebody somewere in the Legislature. It is merely an example of the sort of thing we cannot be excessively circumspect about.

It is highly desirable that we have a definition of "development". The definition of "working" is worrying in its extent. I would like to hear when we come to these sections—or if we could hear about them at the beginning—what is to be the distinction between State minerals other than those which include an exclusive right to working minerals and minerals which are to be State minerals of a different kind, category origin and base? What is going to be the difference between minerals and State minerals?

There are different definitions of minerals and State minerals with strange connotations, and where these connotations end up I do not know when we are talking about exclusive right of working minerals which are going to be included in State minerals, whether they are to be treated as included in State minerals for various purposes. For example, section 3 of the Act which defines minerals does not include mineral compounds, mineral substances which were included in State mining rights but they come into State minerals because of the reference to scheduled minerals. I assure you that it is not easy stuff and it is highly desirable that we know what we are doing.

Once more I sit and learn from Senator FitzGerald. As usual he has stimulated all sorts of ideas and doubts. Certainly, on a common sense level there is no doubt regarding what this Bill is about. It is about getting prospecting going in this country again, as Senator FitzGerald said. In his own inimitable fashion he indicated to us some of the pitfalls that might lie ahead of the legislation. We all know that the common-sense view is that the State should have the right to ensure that value would be added to minerals which are capable of having value added to them for the good of society as a whole. The State should be able to do that and ensure that in the process it does not take from people's constitutional rights.

Some of the developments here have been shocking. In 1956 a package of tax reliefs was first introduced by a Coalition Government which was designed to get the old Avoca mines started. These reliefs together with Government grants got the mine going in 1959 and, as far as I know, it never made a profit. In 1961 it closed leaving the Government about £2 million out of pocket. It was a lot of money in those days. The tax legislation remained on the Statute Book. It was the existence of this tax relief which encouraged exploration.

In 1961, we had the discovery of Tynagh mines, Gortdrum was discovered in 1964 and the new Silvermines in 1965. These finds could be said to be the beginning of the profitable development of the mining industry. It had 100 per cent export. At that time, the Fianna Fáil Government recognisied the impetus would have to be maintained. I remember looking at a graph of the number of prospecting licences issued around the beginning of that period, the early sixties. After the full tax exemption came in in 1967 for 20 years the graph raced up and people seemed to be scuttling all over the country looking for minerals. We got the restart of the Avoca mine in 1969 which gave the Government some chance of recovering what was lost earlier. Finally, in 1970 the Navan mine was found and which at that time was the fifth largest zinc mine in the world. It was found by a company which had been unsuccessfully exploring in Ireland for 13 years. So, this is the business we are in: we have to give incentives to companies of that kind to keep at it so that one day something suddenly arrives.

This was one of the promises that Fianna Fáil made in the manifesto. They pointed out that no new economic orebody had been discovered since 1970 and to get the previous high level of exploration restored we would have to do something about resolving the problems of mineral ownership. I know now why it has taken the Minister the best part of a year-and-a-half to get this measure into the the pipeline and I see the way he had to go about it, in defining rights, not so much property rights as ownership of working rights, which is a very neat approach. I am not qualified to say just how this Bill when enacted will stand up but I must admire its ingenuity.

We must get the prospecting effort under way again. No orebody has been found since 1970 and we are now near 1980. That is really a failure for the State. If there is nothing there, then there is nothing there but I doubt that very much. Those of us who are old enough will remember it being hammered into our heads at school that there were no minerals of any value in this country and we end up with the fifth largest zinc mine in the world. Incentives are required and one would hope that the Government— Fianna Fáil had this very much in mind in writing the portion of the manifesto that refers to this area of development —intend to provide the incentives even though some people in our society may say that too many incentives are being given, that the mining lights, whoever they are, are getting too much out of it. But if nobody starts then everybody ends up in a position of feeling very self-justified that nobody has made a million out of this. But neither did anybody else get the ordinary stipends that can be obtained from good employment and jobs that can be provided in that area. So, we have to give the incentives. That is what gets people to go out and drill holes for oil and be willing to get only one success out of 13 or 14 holes drilled, whatever the going rate. The incentive must be there to remunerate the risk. I hope that this legislation will be able to stand and I welcome any devilling that we can do on Committee Stage and, in my own unqualified way, I will try to contribute to it.

I would like to raise one or two points and I hope the Minister can elaborate on them. What happens the individual who owns the land while the Minister has the working rights? Does he have rights to walk on the property in that period? Senators who have gone by Tynagh have seen now that that mine is drawing to a close the open, gaping landscape that exists there following the working of the mine. If that had been a mine where the Minister had working rights and these had been vested by lease or otherwise in Irish Base Metals or whatever group operate in that area, what would happen at the end of all of this? Does the property revert to the original owner and what condition should it be left in? Is that covered? These are just a few thoughts on it. I prefer to be the engineer mining the minerals rather than the lawyer protecting the rights but I hope that some Irish engineers will soon be digging into mines that will be newly discovered as a result of the introduction of this legislation.

I am particularly appreciative of the fact that the two Senators who spoke have seen the necessity for this particular measure and for having it before us at this time. I am particularly thankful that they realise, as all of us do, that a problem exists and that a very genuine effort has been made in this Bill to deal with the problem. I am glad of the support shown by both Senators for the Bill and its objectives and I know that both of them are, as are all Members of the House, appreciative of the difficulties which are involved in the drafting of a Bill of this nature, so as to ensure that when passed by the Oireachtas it will stand up and not be subject to challenge later. Most of the points raised by Senator Mulcahy and Senator FitzGerald are points of detail which I feel can possibly best be dealt with on Commmittee Stage and therefore I am going to confine myself to some general remarks on the points raised. I hope both Senators will appreciate that these points will be dealt with and looked at between now and Committee Stage and indeed dealt with fully at that particular stage of discussion.

First of all, Senator FitzGerald's idea of acquisition of mineral ownership was very carefully and indeed extensively considered and the Senator's belief that this could prove to be constitutionally acceptable is not disputed by the Minister or indeed by his advisers but the Minister's advice from a number of legal sources was that the risk, however, was substantial and for that reason the approach which is now being adopted in the present Bill was preferred. The Senator's reference to the definition of working as including "searching for", has already been considered in quite some detail and this position exists under the 1940 Act and the view had been taken that prospecting for minerals—and I quote—"does not involve working". Indeed, there are provisions in the 1940 Act which strongly suggest that this view was correct. Of course, as I said originally, the matter will be looked at and considered between now and Committee Stage in the light of the views which have been expressed.

Senator FitzGerald questioned the appointment of assessors for the Mining Board or whether these should be available or not. We are advised that if this should be legally necessary the Minister could make regulations under this Bill and under the original 1940 Act providing that the court may engage consultants or advisers or experts to supply any technical or legal assistance which may be necessary. The Senator also made the point—and I would like to thank him for being appreciative of the fact—that there is need for the Long Title to the Bill. His colleague made the point of disagreeing with the Long Title. Senator FitzGerald's remarks do not necessitate by going into any great detail about the need for a Long Title. However, Senator FitzGerald did say that he considered that perhaps we should at this stage consider the inclusion of a preamble explaining what it was. I would say we can ask our advisers to look at this between now and the next Stage or the passing of the Bill in this House. We can let the Senator know what they come up with and perhaps have a discussion on it at the time.

The question of the constitutionality of the Bill was one which was raised by both Senators. Of course none of us can be certain that any particular Bill, particularly one of this nature which deals with people's property rights and the delimiting of these rights can be constitutional. I would say, however, that it is the prerogative of the President to refer a Bill to the Supreme Court and this is a prerogative which none of us would wish to question or indeed take away from him. I am speaking on behalf of the Fianna Fáil Government when I say that but I feel that this is right and fair. Whether it would have been advisable to have the matter referred to the Supreme Court before its passage or before going to the President with it—I do not think that would have been desirable.

I appreciate very much that Senators have seen the necessity for bringing the measure before the House at this stage and we all appreciate that it is very necessary, that it has taken quite a considerable time to bring it to this stage. The necessity for it taking so long is quite clear and therefore all we can do is hope that it will stand up. I think that a very fair discussion and a very detailed discussion on it on Committee Stage when we can go through each section on its own and look at each section on its own merits will ensure, or at least help to ensure, that when it leaves this House and leaves the Houses of the Oireachtas it will stand up to any challenge which may be brought about later.

I would like to thank the Senators for their remarks on the Bill and would hope for a very full discussion, a very helpful discussion such as takes place on all Committee Stages of a Bill in this House, on Committee Stage and that we will leave with a better and a much improved Bill if that can be done.

Question put and agreed to.
Committee Stage ordered for Wednesday, 4 April 1979.