In the original list of amendments circulated there was a printing error in amendment No. 5. The printers subsequently reprinted the list and I have arranged for the circulation of the new list to Members.
Wildlife (Amendment) Bill, 1999: Committee Stage.
Sections 1 to 9, inclusive, agreed to.
SECTION 10.
We come to amendment No. 1. Amendment No. 15 is cognate, therefore, amendments Nos. 1 and 15 may be discussed together by agreement.
I move amendment No. 1:
In page 13, subsection (1), line 10, after "standing" to insert "or a Fellow or Member of the Chartered Institute of Arbitrators".
The purpose of my amendments Nos. 1 and 15 is to introduce a reference to the Chartered Institute of Arbitrators in the section setting out the qualifications of an arbitrator. As it stands, the section requires that the arbitrator appointed be a solicitor or barrister of seven years standing, and that is all right as far as it goes. There is a specialist professional organisation of arbitrators and it seems logical that fellowship or membership of it would be an alternative qualification for the particular appointment. We are making an assumption about the competence of a solicitor or barrister of seven years standing to act as an arbitrator. I have no problem with taking this leap of faith. An even smaller leap of faith is due in the case of someone who is qualified to carry out arbitrations. It seems illogical, therefore, to exclude membership or fellowship of the Chartered Institute of Arbitrators as an alternative qualification. If we were examining another area we would not ignore such a professional qualification. My amendment is sensible and it would improve the Bill.
Section 10 will allow the Minister to appoint and remunerate experienced arbitrators. The function of such arbitrators will be to hear and determine appeals under section 12 which deals with the creation of rights of way and section 13 which deals with the extinguishment of easements. A similar provision is made in section 19 facilitating the appointment of arbitrators to hear cases regarding ministerial consent to works in natural heritage areas. In both cases it is stipulated that an arbitrator shall be a barrister or solicitor of at least seven years standing.
If the proposed amendments were accepted, it would mean that a fellow or member of the Chartered Institute of Arbitrators, regardless of his or her qualifications, could be appointed as an arbitrator for the purposes of sections 12, 13 and 19. As the work of an arbitrator in this context would include dealing with complex and technical legal arguments, it is deemed appropriate that the person involved would be an experienced barrister or solicitor. Sections 10 and 19 do not preclude the appointment of an arbitrator who is a fellow or member of the Chartered Institutes of Arbitrators provided such an individual satisfies the minimum requirement stipulated in regard to qualifications and length of service. Similar provisions exist in relation to the appointment of arbitrators under the habitats regulations which deal with the designation of special areas of conservation, otherwise known as SACs.
In relation to the SAC cases, the Senator may be happy to hear that my officials have engaged with the institute with a view to identifying those among its membership who would be eligible and willing to undertake the role of arbitrator. Arising from this, a number of cases have been forwarded to the institute to organise arbitration. While I appreciate the point being made by Senator Quinn and expect that members of the Chartered Institute of Arbitrators will sit on arbitration on some NHA cases, I do not think it would be appropriate to accept the amendments to alter the minimum requirement for arbitration in relation to the sections involved.
I appreciate what the Minister has said and I understand her point. It seems to me, however, that if there is a professional body – in this case the Chartered Institute of Arbitrators – recognition of that professional body and of its qualifications would normally be sufficient. I will not push the amendment but the Bill would be favourably enhanced if this happened. I would ask the Minister to consider, in future, recognising professional bodies such as this when making other appointments.
Arising from the Minister's point on arbitration on special areas of conservation, what role is envisaged for the arbitrator? Is it an arbitration concerning a dispute as to whether or not a site should be designated as an SAC or does it relate to disputes over compensation for an SAC, such as the cessation of turf cutting scheme as was operated by the Minister's Department about two years ago and is still ongoing? That usually affected SACs.
As one must declare one's interest, I wish to point out that I own a property that is an SAC.
On Senator Quinn's point, there is no prohibition with regard to the arbitrators being involved as long as they have the necessary legal qualifications and the appropriate time. There are technical legal issues that will have to be decided upon and it is for that reason that the qualifications outlined in the Bill are extremely important. I recognise, of course, that this institute is a very eminent one, hence the discussions that my Department officials and I have been having with it on foot of what is proposed.
The question of arbitration was also raised with regard to the scientific approach. Senators know that SACs are always determined purely on a scientific basis and that there are no criteria other than that scientific basis.
Yes.
There is an opportunity for the arbitrator to deal with any outstanding issue where agreement has not already been reached. That is done in order to find a fair, impartial and objective agreement.
Amendment, by leave, withdrawn.
Question proposed: "That section 10 stand part of the Bill."
I am interested in what the Minister had to say and I would like a full description and clarification of the role of the arbitrators. Obviously, they will arbitrate on disputes over compensation, but will they also be qualified to arbitrate on disputes as to the scientific nature of a site or whether it meets the scientific threshold to be declared an SAC?
The role of the arbitrator includes dealing with compensation and the scientific grounds.
Those are the powers.
Question put and agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."
In my reading this section am I right in thinking that there are no compulsory purchasing powers for the Minister to acquire land? Some of those sites are important and if agreement cannot be reached on purchasing them, powers may be required in the legislation to allow the Minister to acquire sites compulsorily in special circumstances. Will the Minister clarify that point?
The previous Administration proposed that the Bill should contain powers of compulsory purchase for national heritage areas. I did not believe that was the way to approach the NHA issue, however, so my approach is a very different one and will be outlined further on in the Bill. Compulsory purchase does not apply to NHAs.
Question put and agreed to.
SECTION 12.
Amendments Nos. 4, 7, 9, 19, 24, 25, 26 and 27 are related to amendment No. 2 and they may be discussed together by agreement.
I move amendment No. 2:
In page 14, subsection (2)(a), line 24, after “determine” to insert “, and shall also cause such notice to be published by electronic means”.
I am confident that these amendments will be accepted. Their purpose is to bring a long-standing legislative practice in line with, one, new advances in technology and, two, stated Government policy – that is the important part – on using information technology to conduct the nation's business.
The long-standing legislative practice is about ensuring that certain information is open and available to the public by law. Long before the Freedom of Information Act, this need was recognised in many Acts in order to underpin the right of the public to access certain information. One mechanism for doing this was through State bodies being obliged to publish annual reports. Another was to require the State or another body to keep a register of particular information and to make that register open to inspection by the public. A third, which is where we are at the moment, is to require the State to make some information available to the public so that due process can be done and be seen to be done in advance of a ministerial act.
This Bill requires the Minister to publish certain information but it is drafted as if the new information technology did not exist. It is drafted in apparent ignorance of stated Government policy to do as much of the State's business by electronic means as a matter of urgency in order to underpin our credentials as an information technology aware nation and our claim to be recognised as a European hub of e-commerce.
At the beginning of last month, I was invited by the Attorney General to speak at an international conference, in Dublin Castle, on emerging trends in legislative drafting. I made the point that one sometimes gets the impression that the drafters are writing for a world that no longer exists. This certainly seems to be the case with regard to the publishing requirement. The world has moved on since the only means of communicating to the public was through the printed media, such as local and national newspapers, or even in the glorified reaches of Iris Oifigiúil. The Bill recognises that the world has moved on because at one point it provides for radio advertisements to be part of the publication process. However, it does not fully recognise the way in which the world has changed because it refuses to acknowledge the existence of the Internet and the worldwide web as technologies that have transformed a communication tool-box that is not only available but required to be used if the aims behind the communications process are to be fully achieved.
My amendments do not seek to rely only on electronic means of publishing. They seek to add the new electronic means to the other means which have been available down through the years and which offer to broaden and deepen the thrust of the publication process. One of the happy advantages of publishing by electronic means is that it is cheap. It costs virtually nothing to publish electronically. Equally, it costs virtually nothing to access information published in this way at any time and place a member of the public chooses.
In recent weeks Senator Norris and, in particular, Senator Henry and I have appointed ourselves as watchdogs with the aim of ensuring all new legislation takes full account of the relevance of new technology to traditional legislative needs to ensure – although it is hardly our job to do so – it gives effect to the Government's declared policy on information technology. When I first entered the House about six or seven years ago, Senator Henry and I took on the mantle of ensuring a date was included in legislation for the publication of accounts. For the first year I found myself tabling an amendment to every Bill introduced that accounts be published within three months. After a while the Government usually accepted that accounts should be published within six months. After one year I was delighted to discover that every Bill provided for the publication of accounts within six months, although I would prefer if they were published within three months.
I am delighted that most Ministers accept our point of view. About three weeks ago the Minister's colleague, the Minister for the Marine and Natural Resources, Deputy Fahey, accepted the amendments we had tabled in this regard to the Dumping at Sea (Amendment) Bill, 2000. Last week, another of the Minister's colleagues, the Minister of State at the Department of Enterprise, Trade and Employment, Deputy Treacy, accepted the gist of similar amendments to the Insurance Bill. He tabled his own amendment with a slighty different wording. I hope the Minister will see fit to join her colleagues with Senator Henry and me in the 21st century, especially since it is now Government policy to do as much of the State's business as possible electronically. The Dumping at Sea (Amendment) Bill provides for the publication of a register. In order to see what the register contains a person from Killybegs has to travel to Dublin during opening hours. It would be so much simpler to access the register on the Internet from one's own home without having to travel.
I am aware that the Minister wants this to be the perfect legislation. Everything she has done so far shows her commitment to it. I urge her to consider accepting the amendments which make much sense and would bring us into the 21st century.
I strongly support Senator Quinn for a particular reason, that is, there is a history of these amendments being tabled, especially by himself. From very early on in this House, Senator Quinn pioneered the introduction of such amendments which have been accepted by a large number of Ministers with a degree of alacrity and a feeling that we are entering the new information age. If there were cogent arguments, therefore, against their acceptance, I imagine that they would have been made by the Minster's colleagues.
There is nothing intrinsically peculiar about the Bill. There are no sensitivities in the wildlife which infest hedgerows, for example, that would be prejudiced by the publication of information about them on the electronic services. One is simply left with one conclusion, that is, if the amendment is not accepted, it is a question of practical politics. Because the Bill has already been passed by the Dáil, it would be inconvenient, especially in the run-up to Christmas, for the Government to accept an amendment which would mean the recommissioning of the Bill and sending it back to the Dáil. It is, therefore, easier, handier and cleaner not to accept it, but it would make a difference.
It is significant – I hope attention will be paid to this – that this House is making the running in pushing us towards a more sophisticated application of the communications system. I strongly urge acceptance of the amendment because of its intrinsic merit and also because it will demonstrate whether we are in a situation, which is not unique to the Minister – we frequently come up against it at this time of year – where pressure is exerted and we do not want to hear of the Bill being recommmitted to the Dáil. It will be most interesting to see whether it is accepted.
I fully support the amendments tabled by Senators Quinn and Henry and on which Senator Norris has been outspoken. They are extremely valuable and innovative in the sense that the legislation has been introduced without reference to the publication of material by electronic means. The purpose of collating the data specified in the Bill is to ensure it is disseminated to as wide an audience as possible. According to the Bill, this will be done by way of placing a notice in a newspaper and by way of radio services, including local radio services.
It should be put on the Internet.
The one method that is missing is the one that is available across the board. It is the cheapest means of all, the simplest and most accessible. This is an excellent amendment. Given that the Minister is living in County Clare and Ennis is to the forefront in information technology, it is highly appropriate that the Minister should be seen to be forward looking by accepting all the amendments on the grounds that they are in keeping with Government policy. The Government is selling the country not only as the e-commerce hub of the Europe but, if one listens to the some of the statements being made, of the world. At the very least, we should have legislation which reflects this in terms of the dissemination of information on the Internet and the worldwide web.
This is an eminently desirable amendment which marks the way forward. I envisage that, probably from next year, this kind of amendment will be included automatically in legislation by parliamentary counsel.
The amendments are similar in nature in that they propose specific insertions in the Bill stipulating the publication by electronic means of the relevant information where, in section 12, the Minister proposes to make a right of way order over land not in the Minister's ownership; in section 16, the Minister gives notice of his or her intent to make an order designating a national heritage area, including where the address of the landowner cannot be found after reasonable inquiry; in section 18, the Minister proposes to amend or revoke a national heritage order; in section 36, the Minister publishes lists of holders of commercial shoot permits; in sections 56 and 57, the Minister designates ports, airports and other places through which protected species may be imported or exported to or from the European Union, and where, in section 58, the Minister makes, amends or revokes a designation for the purposes of regulating trade in protected species of wild flora and fauna.
In the case of amendment No. 24 which relates to section 51, Senators wish the Bill to specify that it is prohibited to publish by electronic means an advertisement, catalogue, circular or price list relating to the buying or selling of a protected wild bird, wild animal or related elements. Apart from amendment No. 24, which I will deal with separately, there is no need for a specific provision of the type proposed by Senators Quinn and Henry in the Bill. The requirements already included in the relevant sections of the Bill normally to publish such information in Iris Oifigiúil and-or at least one local newspaper represent only the minimum such requirement on the Minister under the Bill. From a legal standpoint, publication in Iris Oifigiúil is of paramount importance as it effectively indicates to the Judiciary that the Minister has fulfilled his or her responsibility under the relevant section of the legislation. Publication in Iris Oifigiúil is provided for in sections 15, 18, 56, 57 and 58.
Publications in newspapers, as is provided for in sections 12, 16 and 18, is the most effective way of informing the people who are most likely to be interested in, for example, the designation of an NHA. This was brought home to me through the feedback received in my Department from the public as a consequence of the publication of such notices, particularly in local newspapers. The Senators might note that there is nothing in the Bill to preclude the Minister from disseminating such information in other ways also, including by electronic means, where it is considered necessary to do so. If I believe the information is not circulating satisfactorily to the people concerned, the use of electronic means to improve the situation will be considered. I do not wish, however, to have too many stipulations in the legislation as to how such information should be published.
Amendment No. 24, which relates to section 51, is not necessary. I am satisfied that the publication of such an advertisement, catalogue, circular or price list by any means, including electronically, is comprehended by the existing wording. I accept the Senator's point that technology should be embraced to enhance the dissemination of information, including that relating to legislative affairs. Indeed, I have initiated work on the redesign of my Department's website and great improvements can be expected next year in that regard.
Although it does not fall within my area of responsibility, it might be of interest to Senators to note that publication of Iris Oifigiúil on the Internet is under consideration by the Government's supplies agency at present. When this happens, it will go a long way towards satisfying the Senators who have raised the issue of the dissemination of official information electronically with out the need to have it specified as a requirement either in this Bill or others. For the above reasons, I cannot accept the amendments.
I am most disappointed. There is no comparison between publication in Iris Oifigiúil and publication on the web if we are trying to achieve easy access to information. The Minister says that publication of Iris Oifigiúil on the Internet is under consideration. That is a reflection of how backward-thinking we are even though this nation has declared that it wishes to become the e-commerce hub of Europe. As Senator Costello reminded the House, the Minister comes from County Clare, and Ennis is setting high standards in this area.
The same case has been made by other Ministers. However, they will find it hard to claim that something is sufficiently available to the public if it is published in Iris Oifigiúil and that there is no need to publish it on the web. I am stunned by the Minister's remarks. It is her intention that this Bill will last for generations, yet she is not prepared to recognise how the world has changed in the past five years. It has changed dramatically. My children no longer communicate with pen and ink. They communicate from around the world by electronic means. The current generation is already doing so.
I am disappointed with the Minister's response. I can understand, with regard to amendment No. 24, that there might be distinctions among the various amendments. The Minister made such a distinction. I seek the Leas-Chathaoirleach's advice in this regard. I do not wish to put each amendment to a vote. If I put one of them to a vote, does that mean I cannot resubmit any of the other amendments on Report Stage?
An Leas-Chathaoirleach
The amendments are only related in the context of how they are dealt with in the debate. If one is put to a vote it will be barred, but if subsequent amendments are not put to a vote they can be resubmitted on Report Stage.
Thank you. I feel strongly about these amendments. I am not sure the Minister understood my point and I might not have been sufficiently articulate to explain it. I outlined a number of cases. There can be no excuse for excluding this means of communication. The Minister says there is nothing in the Bill to prevent the Minister from publishing electronically. This is the 21st century, not the era of the pen and ink or, indeed, the quill. This is the era of electronic communication. I accept that the Minister wishes to communicate and to make this information available. A freedom of information Act will not be required to drag information from her because she is actively showing a willingness to provide it. I urge her, therefore, to reconsider and to accept the amendment.
Things are becoming clearer and I am prepared to make a wager. I wager my last polo mint that not one amendment will be accepted today.
It was £20 last night.
That was more important. That was liposuction of the Celtic snail which is infesting the tiger. My colleagues in Fine Gael should take a trip to the zoo where they can witness that whereas tigers may be afflicted by fleas, they are rarely afflicted by snails.
This amendment is significant although I doubt it will be accepted. I thought Iris Oifigiúil was already on the web. That is the direction we are moving and I hope we will do it rapidly. It is important and would obviate the necessity for these amendments. Amendments such as these have regularly been accepted – indeed, I do not know of any occasion on which they have been refused. It is a practical political measure.
The Minister is a little defensive on this issue and it is a characteristic in the Bill. However, I wish to take this opportunity to put on record the great help and courtesy I received from her staff in preparing my case for some amendments. They have been most helpful and I greatly appreciate it. That does not mean, however, that I will not put a few of the amendments to a vote.
The Minister outlined the type of principle I have heard outlined from time to time and have seen in the Official Report of the proceedings in the Dáil on other matters. Ministers tend to say something is not really necessary because "she can if she decides to do something". I am not sure that is the best way to handle matters, especially this type of technical amendment. It means a multiplication of labour. If the Minister must actively take a decision on each occasion, he or she is wasting his or her time. It is a waste of time to have to take niggling, footling decisions about whether to publish something. There are broader and more significant issues to concern the Minister.
The beauty of these amendments is that, like the sexual orientation clause I pioneered in social legislation, once the Government accepts the principle and the amendments are included, they fill themselves in at every appropriate juncture in the legislation and automatically go into the system. It becomes inevitable, therefore, that there is publication on the web and the Minister and her officials need not waste their time worrying about it. It will happen as a matter of course. Senator Quinn is right to press this amendment.
I am disappointed the Minister will not accept the amendments. The purpose of this House is to examine legislation and improve it, and that is what we are doing with these amendments. They are a definite improvement of the legislation. Just because legislation was drafted in that form in the past, it does not mean we should stick with it. It does not do justice to the Bill, which is fine legislation, that we would not incorporate the best means of providing access to information in relation to the areas with which it deals.
There will be no better means available that is more accessible than using the Internet and the worldwide web. Rather than the Minister saying she will definitely not accept these amendments at this stage, it would be worth her while to speak to her advisers and the parliamentary counsel to ascertain how these amendments could be incorporated into the text of the Bill. Given that the Bill has been drafted in this traditional way and the Minister probably does not want to bring it back to the Dáil, or considers there is not enough time to do so, it would be disappointing if this legislation were to lose out on the inclusion of this imaginative and desirable series of amendments.
I thank the Senators who have taken part in this debate and I appreciate they all come from a genuine standpoint on this. I emphasise it is not the case that I am living in the dark ages and do not recognise we are moving into new technologies and that I am not prepared to accept them. We will incorporate the best possible means of disseminating information and that is being done in the approach taken in the Bill. There is no prohibition in the Bill on publication through electronic means. The Bill provides for what we refer to as "the minimum requirements". We do not list every option, but what is in the Bill is the minimum requirement. I have checked this matter with the parliamentary counsel who is well aware of the importance of information technology but deemed it was not necessary to include the provisions proposed by the Senators.
As some Senators said, I proudly represent a constituency that includes Ennis, the information age town. It is at the cutting edge of technology and I am proud of that. This section does not prohibit the use of new technologies and I will use the Internet when and where appropriate. There is no need for the Senators to voice the anxieties they voiced.
I urge the Minister to reconsider her decision. She referred to minimum requirements. It would be much simpler and much less costly to put this information on the Internet rather than in the newspapers. Newspapers are referred to in the Bill. I understand there is no prohibition to putting this information on the Internet. I thought the Minister wanted to ensure this would be good legislation that would last. The Minister used the word "I" when responding, but she will not be the Minister with responsibility for this area for the next 25 to 50 years. A future Minister may not feel obliged to be as open as the current Minister has shown herself to be. I urge her to reconsider her decision, as the inclusion of these amendments would enhance the Bill and achieve what she set out to do.
While we would all like access to new technologies to be available in every household and while such access may be available to households in the information town of Ennis, such access is not available to all other households throughout the country. People do not have the same level of access to these types of technologies as they have to what I referred to as "the minimum requirement" local newspapers.
Well tried, but it is a flimsy argument, and none of the other Ministers used it. Senator Quinn started entering these things when there were far fewer computers. That is not a terribly strong argument and it gets weaker with every month and day that passes. As Senator Quinn has whispered in my ear, Iris Oifigiúil is not with Mrs. Beeton on every kitchen shelf either.
There is every possibility for the technologies to be used in this Bill.
While I appreciate the points made by the Senators, those who will be mainly affected by NHAs and SACs would read the local papers, including the farming papers, to know which lands are affected in an area. Most of them are not on the Internet. I speak from the point of view of someone who comes from an area affected by many of these matters.
I listened carefully to the case made by Senator Quinn for acceptance of these amendments, and I have heard him make a similar case in other debates. These amendments are well put together and, at worst, acceptance of them will do some good – it will do no harm. Given that they would improve the legislation by providing wider access to information and would not impose a cost on anybody, I do not understand why the Minister will not accept them.
An Leas-Chathaoirleach
Is the amendment being pressed?
Yes.
Amendment put.
Tá
|
Burke, Paddy.Coghlan, Paul.Connor, John.Cosgrave, Liam T.Costello, Joe. |
Doyle, Joe.Keogh, Helen.Manning, Maurice.Norris, David.O'Dowd, Fergus. |
Tá–continued
|
O'Toole, Joe.Quinn, Feargal. |
Ridge, Thérèse.Ross, Shane. |
Níl
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Bohan, Eddie.Callanan, Peter.Cregan, JohnDardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Gibbons, Jim.Glennon, Jim.Glynn, Camillus. |
Kett, Tony.Kiely, Rory.Lanigan, Mick.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Brien, Francis.Ó Fearghail, Seán.Ó Murchú, Labhrás. |
Tellers: Tá, Senators Costello and Quinn; Níl, Senators T. Fitzgerald and Gibbons.
Amendment declared lost.
Sections 12 to 14, inclusive, agreed to.
SECTION 15.
I move amendment No. 3:
In page 17, lines 26 and 27, to delete "development by a local authority or".
This is an important amendment. I ask the Minister the reason local authorities should be exempted from the definition of "works" as laid out in the Bill, which includes any activity which destroys or significantly alters, damages or interferes with the integrity of a site or species in communities or habitats that come within the definition of a natural heritage area. Local authorities should set the example and we should not have an exemption for them.
Local authorities are the bodies that should be the most responsible in ensuring that natural habitats are preserved and not damaged in any way. Local authorities have large areas of land in their ownership. They do a lot of work such as road building, drainage and road widening which would interfere with much of what would be determined as a natural habitat. I would have thought that the local authorities would be the obvious partnership body that would be to the forefront in ensuring that natural habitat areas were protected.
I do not understand why an exemption should be given to a development by a local authority. It would have been sufficient to refer to development which is not exempted development for the purposes of the Planning and Development Act, 2000. I could have agreed to some degree with such an approach. Any developments by a local authority should also be included as works which would come within the definition contained in the Bill and the local authorities would be to the forefront in ensuring that works would not be undertaken by it or by any of its staff that would in any way undermine the intention of this legislation in relation to preserving our natural heritage areas.
I second the amendment. I would like the Minister to explain the reason local authorities should be exempted. If we are talking about a designated natural heritage area or even a special area of conservation close to a public roadway, is it right for the local authority to acquire a portion of the designated area to widen or to realign that roadway? That is a practical example of the way a local authority could be involved with what is a designated natural heritage area or indeed a special area of conservation.
The definition of "works" in the Bill includes any activity which destroys or significantly alters, damages or interferes with the integrity of the site or any of the species, communities or habitats. Many natural heritage areas, especially those in the west, are raised bogs and an amount of domestic turf cutting still takes place on these bogs. This was a controversial issue last year, especially in areas of Counties Galway, Roscommon and Sligo, and the Minister met a number of deputations in that regard. She also had to respond to some debates on it, including an Adjournment matter I initiated.
I do not believe the agreement the Minister has arrived at has any statutory force because, as I understand it, she has allowed persons to extract, for their own domestic use, peat or turf from an area of bog that is in an SAC or an NHA. Am I to take it from this section, however, that that is banned because it can be argued easily that extracting turf or peat from a site in the ordinary way turf is cut or extracted on a raised or a blanket bog has the effect of altering the nature of the site? I would like the Minister's comments on that point as well.
I would imagine that a very large number of developments would be developments undertaken by local authorities. It could even be a majority and for that reason it would substantially weaken the Bill if we exempt the majority of works. Local authorities are highly political and sometimes partisan entities. The Mullaghmore development is a classic example. If a local authority decided that it wished to pursue the inter ference with a site that was a natural heritage area, presumably it would have no difficulty if it were exempted under this clause. It would be difficult to restrain a local authority from embarking on the kind of development we saw at Mullaghmore and it is important, therefore, that we hear cogent reasons why all local authority works should be, by definition, exempted from the operation of the Bill.
Obviously there are certain reasons, for instance public health and safety, for which they can take action, for example, on the question of the line of vision on a dangerous curved road, and that is already addressed. I would be quite worried about this matter. Senator Costello has raised a valuable and interesting point.
I add my voice to those of Senators Costello and Norris. On Second Stage we congratulated the Minister on the admirable and worthwhile objective she is trying to achieve in the Bill but we find that the greatest threat, local authorities, are to be excluded from this section. It does not seem to have been thought out. The rest of the Bill is worthwhile but the local authorities are often the very bodies which are not sympathetic to natural heritage areas and the Minister should think again before she excludes them from the legislation.
Section 15 is the first in a series of sections in the Bill that will form the legislative base for the protection and conservation of natural heritage areas.The section provides interpretations for terms used in the following nine sections dealing with NHAs, including the term "works". Works in this context will not apply to any activities which require planning permission from local authorities. Such activities will be decided upon by the relevant local authority under planning legislation and taking into account the requirements of the NHA involved.
The term "works" will not cover local authority own developments, which will be dealt with under the Planning and Development Act, 2000. With regard to works requiring planning permission and local authority own development, there are controls in planning legislation and in this Bill to ensure that NHAs are protected.
I wish to set out the protection afforded to NHAs in the case of local authority own developments. Section 24(2) repeals section 12(3)(f2>b) of the principal Act and is one of the most important improvements introduced in the Bill. Section 12(3)(b) of the principal Act effectively exempted local authorities from having to consult the Minister concerning works affecting nature reserves or refuges. This provision was wholly inappropriate and is being repealed to strengthen the protection afforded to nature reserves and refuges and to notified and designated NHAs. Local authorities will be compelled under the Bill to consult my Department concerning works in such sensitive areas and to take steps to avoid and minimise any interference with such sites.
Wildlife legislation is not alone in affording protection to NHAs, as such provisions are also included in planning legislation. Part 10 of the 1994 planning and development regulations sets out the procedures to be followed in respect of local authority own developments. Under these regulations there is a specific requirement on local authorities to notify my Department in respect of proposed developments affecting sites of geological, scientific or nature conservation interest. The Minister for the Environment and Local Government has assured me that any similar regulations to be introduced as a consequence of the Planning and Development Act, 2000, will specifically provide for consultation with my Department in respect of local authority development within NHAs. For these reasons I do not propose to accept the amendment.
The issue of special areas of conservation does not arise under this legislation but I wish to clarify the points raised by Senator Connor. The Minister has responsibility for the designation of SACs and there is an appeals system. Compensation and activities allowed within SACs are open to an arbitrator. The Senator expressed concerns regarding the cutting of turf and I presume he is referring to raised bogs in his locality. I met with those concerned about this issue. The Senator is correct to state that there is some cutting of turf for domestic use and this is allowed. There has been a derogation, if one wishes to call it that, for ten years since I initiated this programme concerning the cutting of turf for domestic use. We are referring only to the cutting of turf for domestic use. Senator Connor has strong views on this issue, which does not come within the ambit of this Bill. Perhaps the Senator will write to me so we can clarify further points he may wish to raise on this matter.
In advance of writing to the Minister, do I take it that the cutting of turf for domestic use does not involve "works" as defined in this Bill? Domestic turf can be extracted by machinery which is not banned under the Minister's ten year moratorium. I am not talking about bogs in SACs but raised bogs in many areas of the west which are in natural heritage areas. These bogs are not as yet defined as special areas of conservation but are designated as natural heritage areas.
The Minister has said this issue is outside the scope of this Bill but that her Department will clarify these matters if the Senator writes to her.
I will write to the Minister but I would ask her to give a clear definition of what is meant by "works" in so far as it might affect turf extraction by machinery in NHAs which are raised bogs in the west. You know what I am talking about, a Chathaoirligh.
My problem is that the matters raised by the Senator are not relevant to Senator Costello's amendment which we are debating.
Perhaps we should return to this section. However, I am concerned about the definition of "works" and how it affects these areas.
We will dispose of the amendment first.
Senator Connor's important point is relevant to the section and requires clarification as regards raised bogs in the west where there has been much anger among local communities.
I ask the Senator to address his amendment rather than the points raised by Senator Connor.
Having listened to the Minister I am more confused than before. The Minister is exempting developments by local authorities from the definition of works which refers to destroying, altering, damaging or interfering with the integrity of NHAs. The Minister has done so because this issue is covered by planning legislation or the Planning and Development Act, 2000. I do not see how this is the case. What planning provisions cover developments by local authorities? Even if such developments are covered, it is highly suspect that local authorities are excluded from the legislation as they deal with developments which do not have to conform to the precise definition in the legislation. Local authorities own large areas of land and deal with an enormous amount of building and development. We are not talking about one body but about the plethora of developments which take place under the aegis of local authorities.
The Minister is suggesting this matter is covered in other legislation, so why not dovetail all legislation so that every organisation is subject to the same provisions and take it out anyway? If it is covered already then it does not need to be included in the first place. By exempting developments by local authorities from the legislation, the Minister is raising the suspicion that, in some way, the application of the legislation to local authorities is different from its application to any other person or body who might intentionally or unintentionally interfere with a natural habitat.
We have taken the issue of NHAs extremely seriously and understand and respect the fact that they are of unique and out standing national importance. When drafting the legislation I decided it was not enough to provide temporary protection for NHAs, as proposed up to now. Rather than rely on compulsory purchase orders, which are divisive and cause long-term bitterness, I wanted to ensure a fair, open and equitable approach to natural heritage areas and the implementation of that regime. I assure Senators that there is a strong package of safeguards in place under the Bill and planning legislation to ensure that NHAs are comprehensively protected. Section 24 places new and clear obligations on a local authority to safeguard NHAs, including in respect of activities requiring planning permission. Under this section local authorities are compelled to consult with my Department in relation to such sensitive areas and to take steps to avoid or minimise interference.
Further protection for NHAs is provided directly in planning legislation. As a consequence of the Planning and Development Act, 2000, each county development plan prepared by a local authority shall include mandatory objectives for the conservation and protection of NHAs. Section 178 of the Act provides that no development may be undertaken which would materially contravene a county development plan. This section, when taken in conjunction with section 10(2)(c) of the Act, affords specific and mandatory protection for NHAs in the case of works which are subject to planning permission. It is not a question of local authorities having less obligation with regard to NHAs than an individual.
The fact that a local authority draws up a county or city development plan does not mean it contains a comprehensive protection mechanism. Plans are drawn up every five years but the work does not begin until the end of that period, which means that the timeframe is relatively short. As we are all aware, plans omit huge areas, for example, buildings and areas of land which have not been identified at the time. It is not, therefore, an infallible document in any sense.
The fact that the local authority has to consult with the Department in relation to developments is not the same; it is the provision of information. What mechanism exists within the Department to examine in detail the plans submitted by a local authority? I imagine that the case put forward by a local authority will generally get the imprimatur of the Minister. It is very unlikely that a Department official will survey and examine a development which has been described in a certain way by a local authority.
The Minister said that if a development materially contravenes a development plan it will be contrary to the legislation. She said that the body of legislation set out in section 24 covers local authorities and, therefore, she will not accept my amendment which specifically refers to local authorities. If she is so sure that the legislation already in place covers local authorities, why not include them in this legislation so that the exact same provisions apply? I am not satisfied that local authorities are covered in all cases under the Bill and I, therefore, press my amendment.
To put the Senator's mind at rest, I have established within my Department a section which deals with planning matters and applications and ensured there is adequate staff to deal with these issues. The Planning and Development Act, 2000, and this Bill will dovetail and be complementary as regards the provision of protection for NHAs.
Question put: "That the words proposed to be deleted stand."
Tá
|
Bohan, Eddie.Callanan, Peter.Cregan, JohnDardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Gibbons, Jim.Glennon, Jim. |
Glynn, Camillus.Kett, Tony.Kiely, Rory.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Brien, Francis.Ó Fearghail, Seán.Ó Murchú, Labhrás. |
Níl
|
Burke, Paddy.Connor, John.Costello, Joe.Doyle, Joe.Keogh, Helen.Manning, Maurice. |
Norris, David.O'Dowd, Fergus.Quinn, Feargal.Ridge, Thérèse.Ross, Shane. |
Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators Connor and Costello.
Question declared carried.
Amendment declared lost.
Question proposed: "That section 15 stand part of the Bill."
I wish to refer to the points I made earlier concerning the term "works" and where this places turf extraction by machinery from a raised bog designated a natural heritage area. The Minister put in place an agreement last year, which I understand is not statutory, which places a moratorium of ten years on the prohibition on turf cutting and extraction for domestic purposes and I understand it covers NHAs and special areas of conservation. It is a pity it is not stated in the legislation, especially if the concession the Minister made is to have the full force of law and is not to be questioned under this section of the Bill. Local authorities are excluded. The Minister placed a moratorium of ten years on the prohibition of something which could easily be defined as works, especially if the extraction is done by machinery.
None of us deny that the extraction of peat on either a raised or blanket bog changes the character of the bog. Nonetheless, the extraction of turf for domestic heating purposes is a timeless pursuit in rural Ireland. I agree with the Minister's concession but I require clarification. We do not want to find her concession set aside when the Bill is enacted. It will be deemed that what people do by extracting turf amounts to "works" as defined in the Bill.
I was referring to the issue of raised bogs under the regime of SACs. We refer in this legislation to NHAs. The Senator's question as to what constitutes works is important and forms the kernel of the debate. Works in terms of domestic turf cutters may continue as long as there is no significant damage. Works may continue using machinery and, if there is no significant damage, they may continue until the ten years period is over.
I am still unhappy, although I am delighted with the assurances the Minister has given. It is a case of defining what is meant by damage. Where does one cross the point between what is and is not damage? The definition of works is very wide. If a local authority wishes to realign a road through a natural heritage area, for example, a raised bog, it will not have any difficulty in gouging out a large section of the raised bog to insert metal to realign the road. However, it will obviously generate great anger on the part of people who rely solely on their own turf for domestic heating, which they extract from a site which belongs to them, that they cannot extract a small amount of peat on an annual basis beyond nine or ten years while the local authority can gouge out a great section of the bog to realign a road.
We could continue this debate indefinitely. It is sufficient to say that these issues are of concern to many people in rural areas. I always believe in progressing these issues with a great deal of consultation to see where we can achieve agreement. What I said about domestic cutting can and will continue, if that is the wish of the land owner, for the next nine years. As long as there is not any significant damage those works can continue. This is done on a case by case basis and it is impossible to generalise. If the Senator has any specific cases he wishes to raise, and he has raised this matter in the context of SACs in an Adjournment matter, I will be only too happy to attempt to answer them in writing. The issue of the SACs is not part of this debate. The NHAs are an important part of it and the significant damage criteria will apply to NHAs as well as SACs.
Question put and agreed to.
SECTION 16.
I move amendment No. 4:
In page 17, subsection (1), line 34, after "situate" to insert "and also by electronic means".
Amendment put.
Tá
|
Burke, Paddy.Connor, John.Costello, Joe.Doyle, Joe.Keogh, Helen.Manning, Maurice. |
Norris, David.O'Dowd, Fergus.Quinn, Feargal.Ridge, Thérèse.Ross, Shane. |
Níl
|
Bohan, Eddie.Callanan, Peter.Cregan, JohnDardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Gibbons, Jim.Glennon, Jim. |
Glynn, Camillus.Kett, Tony.Kiely, Rory.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Brien, Francis.Ó Fearghail, Seán.Ó Murchú, Labhrás. |
Tellers: Tá, Senators Norris and Quinn; Níl, Senators T. Fitzgerald and Gibbons.
Amendment declared lost.
Amendments Nos. 5 and 6 are related and may be discussed together by agreement.
I move amendment No. 5:
In page 17, subsection (1), line 36, after "area." to insert "Any person may notify the Minister in writing of his or her wish to have a particular site or sites designated as a natural heritage area. The Minister, having received such a letter, shall cause an assessment to be made of the site having regard to section 16(6)(a). Where the Minister is of the opinion, having regard to subsection 6)(a), that the land forms, or is part of a natural heritage area, the Minister shall inform the proposer of the site of his or her intention to make an order designating the land as a natural heritage order.”.
This is by no means intended as a vexatious amendment, although phrases including the word "vexatious" were used in earlier debates, with, I am sure, no disrespect whatsoever intended to the NGOs involved. Since the passage of the Bill through the Dáil, I have been lobbied by the Irish Wildlife Trust to table this amendment again. It opens up the possibility of the ordinary citizen notifying the Minister of a wish to have an area declared as a natural heritage area. In terms of openness, accountability, transparency and public participation, this is a valuable amendment. We should be involving the public as much as possible in the declaration of these sites.
I have looked at the debates that took place both in Select Committee and on Report Stage in the Dáil. In reply to a similar amendment on Committee Stage, the Minister says the responsibility for proposing and designating sites rightly resides with the Minister. She has run two ideas together. Nobody could quarrel with the fact that it is a proper function of the Minister to designate sites, but should the Minister alone have the absolute right to propose sites for designation? There is a distinction between proposing and designating. The ordinary citizen should have a right to propose such sites.
I noticed that during the debate in select committee, Deputy O'Shea said representations had been made to him. He said he looked at the situation and, on balance, decided that the Minister had a good case. It is very interesting to see, however, what happened when the Bill was considered on Report Stage in the Dáil Chamber. Deputy O'Shea said that while he had reservations on Committee Stage he now felt more strongly as a result of the debate that the Minister should consider the matter. He felt that the points made in the debate were sufficiently persuasive for him to wish that the Minister would take this matter into consideration. In a second contribution, Deputy O'Shea referred to the matter again and said that by the time the Bill reached the Seanad, he hoped the Minister would have had the opportunity to review the matter, either proposing an amendment herself or accepting such an amendment.
There are a number of reasons this amendment should be accepted, in addition to the general one of principle that I have stated. The first is that the current provisions of the Bill represent a top-down decision-making process. In other words, the Minister makes the decision and the local authorities, individuals and NGOs fall into place and have no real role. I recognise that, as the Minister said, they can write to her – big deal. She could not prohibit them from writing. She does go one small stage further, however, in saying she would welcome such letters, but that is weak stuff, particularly when one realises that we are all part of the European Union. One of the principles we have been hammered with time and again is that of subsidiarity. In this section, however, subsidiarity is turned on its head.
We must also look at the issue of Agenda 21, which was agreed at the earth summit and specifically requires the Government to encourage participation in precisely these kinds of areas. The Government gave its assent to this idea, yet it goes against it when it has an opportunity to support it in the Bill. For all those reasons, there is a strong argument in favour of accepting this amendment.
The question of vexatiousness may be raised and there may be a real element in this – for example, if a landowner wanted to cause trouble by trying to have his or her neighbour's land registered as an area of natural heritage. That is just an incidental by-product, however. In Roman Catholic theology there is some phrase which describes the law of second effect – I cannot remember exactly what it is.
The Senator is on very dodgy ground now.
I know I am on very dodgy ground. I agree wholeheartedly with that and I shall speak privately to the Senator later. It is not the specific, primary intention of the amendment. In any case, if it is a valuable area of natural heritage, it may not have been the intention of a vexatious proposer principally to preserve the heritage, but that will be the effect. The annoyance caused to a neighbour is incidental and I am sure there are other ways of mitigating it.
I strongly urge the Minister to accept this amendment. I will be pushing it, although I am sure the Minister knows that I do not intend to be difficult. I had tabled at least one other amendment which, after consultation, I withdrew from the Order Paper because I was satisfied. The only amendments I have left down are those where I still have a clear cause for concern.
My amendment says much the same thing as that of Senator Norris, although his has the advantage of being shorter, more to the point and clearer. Both amendments are concerned with the speedier provision of fuller information to the owners of designated sites. I will not repeat the case made by Senator Norris. I will withdraw my amendment and I think we should concentrate on the amendment in the name of Senator Norris, rather than complicating the issue.
Section 16 sets down procedures for the publication notice of NHA designation proposals and the notification of those with an interest in the land. The amendments would, on a statutory basis, allow any person to recommend a site for designation as an NHA. If a formal role in the process was given to the public generally under law, there would be a real danger that the process would become unwieldy and unworkable. There would also be the possibility that dubious motives might be behind such proposals.
It will, however, be open to the public to make suggestions regarding designations. While my Department will consider any suggestions made by NGOs or other groups or individuals regarding the appropriateness of areas for designation, given my statutory responsibility generally for NHAs, the real implications of designations for private landowners, the adminstrative effort involved and the risk that formal third party input could be divisive, it is appropriate that definitive responsibility for designations should remain with the Minister of the day. In this instance, it would be unwise to go down the road proposed. Accordingly, I cannot accept the amendments.
Yes, they would create extra work. I would strongly support the Minister in looking for extra staff. There is a strong case to be made for extra staff in this entire area. The Seanad would support the Minister in her efforts to secure more staff.
What is vexatiousness? The motivation of the person making the recommendation would not really matter if at the end of the day the effect would be to protect our heritage. That is the crucial aspect.
If one wants the people to be involved and cherish the wildlife of the country and our heritage in this area, taking this rather paternalistic or, in the case of the Minister, maternalistic approach to the subject does not encourage the public to become involved, although I absolutely accept the Minister's good intention. I am quite certain, knowing the Minister, that she would take seriously representations made, although they would have no formal status.
I have always encouraged good communications between my Department and NGOs and individuals. I hope this will continue. I have always had an open door policy, as can be seen from the work done on the Bill. This is ackowledged not only by the NGOs with which I have been in contact but also by many Dáil Deputies. Organisations and individuals with an interest in the area have been waiting well over a decade for legislation such as this to be published and placed on the Statute Book. The right approach is adopted in the Bill. For the reasons outlined I regret that I cannot accept the amendments.
Amendment put.
Tá
|
Burke, Paddy.Connor, John.Costello, Joe.Doyle, Joe.Keogh, Helen. |
Manning, Maurice.Norris, David.O'Dowd, Fergus.Quinn, Feargal.Ross, Shane. |
Níl
|
Bohan, Eddie.Callanan, Peter.Cregan, JohnDardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Gibbons, Jim.Glennon, Jim. |
Glynn, Camillus.Kett, Tony.Kiely, Rory.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Brien, Francis.Ó Fearghail, Seán.Ó Murchú, Labhrás. |
Tellers: Tá, Senators Norris and Quinn; Níl: Senators T. Fitzgerald and Gibbons.
Amendment declared lost.
Progress reported; Committee to sit again.