Minerals Development Bill, 1978: Report and Final Stages.

Government amendment No. 1:

In page 5, between lines 43 and 44, to insert the following:

"13.— Without prejudice to the provisions of Part II of the Act of 1940 (which relates to prospecting for unworked minerals), section 12 shall not operate to prevent the owner of an estate or interest in minerals in any land from prospecting for such minerals, that is to say, carrying out any activities for the purpose of ascertaining the character, extent or value of such minerals and taking and removing reasonable quantities of such minerals for analysis, test, trial or experiment where such prospecting is conducted otherwise than as part of the operation of working those minerals if, apart from that section, he would be entitled to conduct such prospecting but such right of prospecting shall not apply in relation to minerals which are being worked by the Minister or are the subject of a State mining lease or a licence under section 16 (1) or be so exercised as to interfere with such working or with the lawful operations of the lessee or licensee."

Minister for Industry, Commerce and Energy (Mr. O'Malley)

Since the text of the Bill was originally circulated, questions have been raised about possible difficulties arising from the fact that the definition of "working" in the Bill and in the 1940 Act includes searching for minerals. One of the problems envisaged was that a person might qualify for exemption under section 13 if he were simply prospecting for minerals and not engaged in mining them or developing a mine. This problem appears to have been adequately taken care of by an amendment to section 13 (1) introduced in the Dáil making it clear that, in order to qualify for exemption, a person must be lawfully working the minerals as a mine or developing a mine. The other question which arose is that if "working" includes prospecting, then by virtue of section 12, the Minister is acquiring the exclusive right of prospecting, which was neither necessary nor was it intended.

The view which one takes depends on one's interpretation of the relevant provisions of the 1940 Act. Part II of that Act, which deals with prospecting and the granting of prospecting licences, appears to draw a clear distinction between "prospecting" and "working". Section 7 (5) of that Part defines the right referred to in that Part as the right of entering and prospecting, as if to contrast this with the right of working. Section 11 (1) of the same Part provides that it shall not be lawful for a prospecting licensee to work, sell or otherwise dispose of any minerals within the licence area.

On the foregoing basis, the parliamentary draftsman has been reasonably satisfied that the new Bill should be drafted on the assumption that prospecting did not constitute working. Over the years, minerals legislation has been administered on this basis. The mining industry and certain Members of both Houses of the Oireachtas have expressed concern about relying on the foregoing interpretation. This tabled amendment is designed to meet this concern and, taken together with the amendment already made in section 13 (1), appears to put the position beyond any reasonable doubt. The amendment is a useful clarification of what we have always understood to be the existing law. It will be noted that it does not change, in any material way, the existing law in relation to prospecting, but simply provides that the right of the owner of minerals to prospect, if it is being done lawfully, is not affected by the vesting under section 12. However, this right will not apply to minerals which are being lawfully worked by the Minister or another person. Similarly, the right may not be exercised in a way which would interfere with the lawful working of, for instance, adjacent minerals.

Mr. Alexis FitzGerald

The amendment is acceptable to me and improves the prospect of the legislation being held to be constitutional.

Amendment agreed to.

Government amendment No. 2:

In page 6, to delete lines 31 to 34, and substitute the following:

"15.—(1) Where, at any time after the registration of minerals as excepted minerals, the Mining Board is satisfied, on the application of the Minister, that the minerals are not being worked or are not being worked efficiently the Board shall cancel the registration.".

Mr. O'Malley

During the Committee Stage debate Senator FitzGerald suggested that the possibility of cancellation of exemption should exist where minerals are not being worked efficiently, in addition to the existing provision which enables their registration to be cancelled where the minerals are not being worked at all. This change would bring the wording into line with certain provisions of the 1940 Act and I am advised to accept it. As subsection (1) of the section stands, the power of the Mining Board to cancel registration is implicit and the parliamentary draftsman now feels that the subsection would be improved if this power were made explicit. Amendment No. 2 incorporates the amendment suggested by Senator FitzGerald in the clarification which is favoured by the parliamentary draftsman.

Mr. Alexis FitzGerald

It is a crumb, but gratefully gobbled up.

Amendment agreed to.

An Leas-Chathaoirleach

Amendments Nos. 3 and 4 are related and may be discussed together.

Government amendment No. 3:

In page 7, to delete lines 3 and 4.

Mr. O'Malley

The term "State minerals" as defined in the 1940 Act is referred to in the Bill and it is confirmed that the exclusive right of working vested in the Minister under section 12 of the Bill constitutes State minerals for the purposes of section 5 of the 1940 Act. During the consideration of the draft text of the Bill by legal experts, the conclusion was reached that provision should be made in the Bill so that the exclusive right of working vested in the Minister under the Bill could be assigned to a third party by way of a lease. As the Bill was originally drafted, it was envisaged that such an assignment would be by way of licence.

As the Bill now stands there is technically, at least, the choice of granting a developer either a lease or a licence to work minerals which become vested in the Minister under section 12. The purpose of the existing subsection (3) of section 16 of the Bill is to ensure that various provisions of the 1940 Act which relate to the grant of leases will apply where working rights which are assigned are defined under the present Bill.

Senator FitzGerald has expressed reservations about the manner in which this subsection is drafted and the position has been discussed with the parliamentary draftsman. The problem appears to be, essentially, one of drafting rather than of substance. The parliamentary draftsman has agreed that it would be useful to clarify the position somewhat and amendment No. 3 and the consequential amendment No. 4 are for that purpose.

Amendment agreed to.

Government amendment No. 4:

In page 7, between lines 7 and 8, to insert the following:

"(4) A reference in section 13 of the Act of 1940 (which empowers the Minister to enter into an undertaking to grant a State mining lease) to a State mining lease shall be construed as including reference to a licence under subsection (1).".

Amendment agreed to.

Government amendment No. 5:

In page 9, in the third column of the Schedule, after "subsection." to insert the following:

"In section 33 (5), the words ‘by subsection (2) of this section'.".

Mr. O'Malley

This is purely a drafting amendment and has been proposed by the parliamentary draftsman in the interest of clarification. Section 33 of the 1940 Act deals with the constitution of the Mining Board and as the section stands it provides that while the chairman and one of the ordinary members are to possess special qualifications, the second member, who by tradition has been an officer of my Department, is not required to have specific qualifications. Section 4 provides that the second ordinary member of the board will, in future, have the same qualifications as the other ordinary member and subsection (2) of section 33 is being amended accordingly. Subsection (5) of section 33, which provides for replacement of members during temporary absence, is now not quite in line with the amended subsection (2). The minor amendment tabled to subsection (5) is bringing the wording of two subsections into harmony with section 4 of this Bill.

Amendment agreed to.

Dr. West

I wanted to raise one point which was discussed but not decided on, on Committee Stage. It concerns the definition of the term "land"—the phrase "in or under the land" in section 2 of the Bill. I am advised that on scientific grounds it is important to clarify that the phrase "land that contains or covers the territory" would embrace the minerals which may be discovered in our territorial waters. On Committee Stage, the Minister of Stage was not able to clear up this point and it was left hanging over, so the Minister will have a definite answer to my query at this stage.

Mr. O'Malley

Questions were raised on this point on Committee Stage by Senator West and some other Senators. They inquired whether the provisions of the Bill applied to minerals which were in the sea bed. This is not an issue of much practical significance, because the Bill seeks to deal with the problem arising from private ownership of minerals and this problem cannot arise outside the land area. As regards sea bed minerals, the question is not one of ownership but of jurisdiction. Under the Constitution, the rights of the State extend to its territorial waters. Outside the territorial waters, the relevant legislation is the Continental Shelf Act, 1968. Section 2 of that Act provides that rights over the sea bed and subsoil, for the purpose of exploring and exploiting natural resources are vested in the State. The vesting of rights, which is the purpose of the present Bill, is therefore, not material, as regards minerals in the Continental Shelf.

The question was also raised as regards the rights of owners of oyster fisheries, in the event of there being exploitation of sea bed minerals. Under the existing licensing terms applicable to offshore petroleum exploitation, licensees are required to carry out their operations in such a way as not to interfere with fishing. They are also required to ensure that aquatic life is not endangered by pollution from an offshore installation. There are other administrative safeguards. Operators are required to give the Department of Fisheries advance notice of intended operation. In the event of there being other types of exploration offshore, comparable restrictions will be imposed on licensees.

Bill, as amended, received for final consideration.

Agreed to take remaining Stage today.

Question proposed: "That the Bill do now pass."

Mr. Alexis FitzGerald

I only want to take advantage at this Stage to make one point, which I made also in my Second Reading speech. I am recognising the reality that the Bill as it is finally shaped is not exactly as I would have wished it to be, but there is no changing that. The point is that what is involved in this legislation is something very important and in a sense we do not know how important it may be. Twenty-five or 30 years ago no one would have thought that resources would have been discovered in Ireland, which have been discovered during that period under the operation of the legislation which then existed. We do not know the full extent or significance for the common good of the resources which the successful operation of this Bill may make available. It has the important effect of vesting in the Minister the exclusive right of working minerals. This may be, in value, a very large number, and a significant number of persons may be affected. Certainly, if that vesting were in any way in doubt, a very much larger number of persons would be damaged if it were not possible successfully to work this Bill.

The Minister has expressed himself, perhaps not personally, perhaps through one or other of his Deputies, as against the view which I now wish to put forward again. That is that, in the manner which is known to be appropriate, the President should be invited to give consideration to the exercise of this power of reference of this Bill to the Supreme Court under Article 26 of the Constitution. No doubt in the performance of his office he takes account of what is said in both Houses of Parliament. If there is any doubt as to the successful vesting of the exclusive right of working in the Minister, then at a certain stage in the administration of this Bill, when enacted, we may have a case, where something very valuable indeed has been found and where very large capital indeed may be ready to be invested, but some significant element of the capital involved may be hesitant in making the investment because of any successful claim that the Minister had not had the exclusive right of working vested in him.

Now is the time to establish that this exclusive right is, legally, bedrock. Once this is done, the many interested persons can pursue the prospecting and all that will follow from that prospecting with certain knowledge that the Supreme Court holds, as I believe that in its present form the Supreme Court would hold, that the Bill is constitutional. Even though the amendment which has been accepted by the House—the insertion of a new section 13—is a very considerable help in this matter of establishing the constitutionality, it is necessary to say that the matter still is not without doubt. Now is the time, where the interests of conflicting parties are not aggravated by the presence of a treasure to be fought over, to clear away the doubt. Otherwise, we may have a repeat, perhaps in a far more aggravated form than we have had already, with this Parliament and the courts getting into disrepute.

Acting Chairman (Mr. Reynolds)

I do not like to interrupt the Senator but at this Stage we must discuss only what is in the Bill.

Mr. Alexis FitzGerald

I thought that was what I was doing.

Acting Chairman

The President and the Supreme Court do not arise.

Mr. Alexis FitzGerald

Certainly, I wish to do what is orderly. In those cases where there is not registration before a time which the Minister can determine—which is not spelled out in the section of the Bill as being anything other than a time which the Minister can determine—that there is doubt as to whether what is in the Bill concerning the vesting of the exclusive right in the Minister, in the event of a failure to register within a time under his control, will be held to be the law if there is doubt as to whether what is in the Bill will become the law, or will be held to be the law in accordance with the Constitution. That is my reason for, at this stage, making this point again. It is the only point I want to make.

Mr. O'Malley

I would like to thank the House for their reception of this Bill and Senator FitzGerald for his remarks in relation to it. I agree with him that this is a very important Bill, much more so, perhaps, than people realise. It has very considerable consequences, both legally and economically, in the country. It has not evoked even the remotest public interest, but this is often the way, that the public have their palates titillated in respect of matters which are of no consequence. This Bill is of great consequence, and while I have very urgently and clearly seen the need for it from the very day that I went into this Department, it has taken until now to get the Bill finally into a form which should be workable and acceptable, workable from the point of view of those who would prospect for and work our minerals, and acceptable in terms of the fairly narrow interpretation which has been put on some provisions of our Constitution by the superior courts in the last decade or two. It is quite different from what the situation was when the parent Act of this Bill, the 1940 Act, was being enacted.

An example is the care which has had to be exercised in relation to this Bill and the account that has had to be taken of possible constitutional snags, and the fact that one officer of my Department has devoted himself, virtually full-time, for 15 months to preparing this, in conjunction with lawyers and officials from several other Departments who have a good deal of experience in matters of this kind. Indeed, I had, rather to my disappointment, to drop from this Bill one entire part which would probably be as long as what is left in it, relating to the registration of mineral ownership, which would have been very helpful indeed if it could have been enacted, in clarifying the position in regard to the ownership of particular minerals in particular areas for people who were interested in exploration. This is one of the great weaknesses of our present position, and that aspect of it will not be improved by this Bill. But the consequences of it can be avoided by the provisions of this Bill.

Senator FitzGerald expressed himself, in very general terms, as being fearful that some parts of this Bill might be still unconstitutional, notwithstanding the changing, the amendments and the polishing and honing that has gone on. I did not clearly get from him, in his speech, what section or sections he felt there might be some element of risk in regard to. Perhaps he has in mind section 14, or at least section 14 of the Bill as passed by the Dáil. I do not see any danger in that section. There are plenty of safeguards.

Mr. Alexis FitzGerald

Could I just state what the danger is? Would it be a help to the Minister?

Mr. O'Malley

Certainly.

Mr. Alexis FitzGerald

The danger is that it could be argued that it should not have been left to the Minister to determine the time for registration, which has the effect of taking from people what may be a very valuable right of working. But the time should be specified in the Bill, even if it is only an ultimate limit within which the Minister may specify, for the registration. This is the precise point. There is a not unworthy opinion on this matter and it is not mine. It raises problems in relation to the Bill for all of us who want it to succeed in its purpose.

Mr. O'Malley

The power that is given to me under section 14 to prescribe a time is in no way unique. The rules of court prescribe time limits within which actions of great importance to the individuals concerned have to be taken. The Minister for Justice, as far as I recall, can make some of the rules and the ones he does not actually make, he concurs in the making of them. Time limits are prescribed, for example, by the Minister for Social Welfare in regard to making applications for umpteen forms of social benefits; similarly, I would think, by the Minister for Health and by various other Ministers. It is certainly not unique that some time limit should be fixed by the Minister. It will not be an unreasonable time limit. It will not be, for example, seven days from the date that this Bill passes, or something of that kind. It will be a time that will give ample opportunity to interested people to apply for the registration of their minerals as excepted minerals. The Senator will be aware that the section also allows somebody whose application to the mining board has been refused to go to the court, and the court has discretion under its own rules of court to hear or not to hear, as it may so decide, or as the Justice of the case may appeal to it to entertain such an appeal for a further application. There are ample safeguards, therefore, in relation to that particular point.

There are greater safeguards, I would suggest, than exist in relation to an applicant for social welfare benefits, who, if he is a day late is out and that is it. While social welfare benefits may not be of major importance in overall economic terms as something like this is, nonetheless, for the individual concerned, six months old age pension, for example, is an appalling loss if he or she would otherwise have been entitled to it.

For those reasons, I do feel that there could scarcely be any great danger of the High Court or Supreme Court finding that this section, which allows me to fix a time within which to make application, could in any way be struck down. If they were to strike that section down, they will equally have to strike down dozens of sections in all sorts of legislation. I do not think this is very likely. One does not very often hear complaints about the concept of time limits in applications. One often hears complaints and moans that one was late in making the application. But very few people would disagree with the concept of the necessity for some form of time limit. In this case it seems particularly fair, as there is a fall-back position to the court.

So far as references by the President to the Supreme Court are concerned, I do not propose to invite the President to make the reference. Indeed, I am not certain that I have any such powers, other than in a purely advisory way. It is a matter for the President himself to make such a decision after consultation with the Council of State whose advice he is not bound to accept. Naturally, I cannot stop him if he wishes to do that, but I do not propose to invite him to do it. I am not purporting to tell him what he should or should not do.

A measure of our concern to ensure that the Bill is constitutional is the fact that I have had to drop a major part of it. I did not like to do that especially when a great deal of work had been done on the registration of ownership of minerals. I propose to ask the officials concerned, who have devoted a lot of time to this, to go back to the registration question to see if another Bill can be produced in three months or six months' time that would deal with the registration of the ownership of minerals. I believe that this Bill will prevent the potential evils which it sets out to prevent, basically, what is commonly called claim-jumping. It still does not give potential prospectors the certainty that they would like to have in knowing exactly who owns what. As the House knows, our system of ownership of minerals is rather vague, the State owning a large segment of our minerals, a certain segment being positively owned by a private individual and then a substantial grey area in between where nobody is certain until a great deal of research is done. It would be ideal if we could devise a system that would do away with that grey area and make everything black or everything white. Because of constitutional problems, the first effort to do that would seem to be fraught with danger. However, we will do our work on that task. If all goes well, I hope to be back in the House before the end of the year with such a Bill.

Question put and agreed to.

Seanad Éireann debate - Wednesday, 2 May 1979