Forestry Bill 2013: Report and Final Stages

I welcome the Minister of State, Deputy Tom Hayes. Before we start, I remind Senators that they may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on it. In addition, each amendment must be seconded.

I move amendment No. 1:

In page 11, to delete lines 17 to 32.

I second the amendment.

It remains my position that unauthorised disclosure of confidential information by members of a committee should be discouraged. I emphasise in this context the words "unauthorised" and "confidential". Under section 9(1) a committee member may disclose confidential information if authorised to do so by the Minister. This provision is not intended to preclude general comments or discussion on everyday issues relating to the committee. What we are talking about is, for example, unauthorised disclosure of ongoing and sensitive negotiation positions, either at national or EU level, which could be damaging to the official position, or information which is considered to be commercially or strategically sensitive.

It is important to note that section 9 is grounded in section 8, which allows the Minister to make appointments to committees and to share information with such parties to ensure good decisions and policy-making. It is likely that many of the appointees will not be civil servants and will, therefore, not be covered by the same statutory obligations as the Civil Service on the disclosure of information. It would be remiss if the statute allowing the appointment of such individuals did not provide that the information they receive as a result of such an appointment be protected. Disclosure of information received as a result of appointments under section 8 is subject to the law.

I pointed out on Committee Stage that I had reviewed the issue of disclosure of information in the public interest, in consultation with my legal advisers. My advice is that the words "save as otherwise provided by law" included in the existing text of section 9(1) accommodates the public interest and includes the range of legislative provisions dealing with releases of information. The important point to note in this context is that confidential information may only be released when authorised by the Minister or as provided by law. This means that committee members are subject to the Protected Disclosures Act 2014, the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, which was indirectly referenced by Senator Trevor Ó Clochartaigh in his contribution on Committee Stage, the Freedom of Information Act and the Data Protection Acts, to mention but a few of the relevant provisions. In the circumstances, I believe the provision is necessary and proportionate and that to remove it may jeopardise the effectiveness of committees established under the Bill. Therefore, I do not propose to accept the amendment.

An bhfuil an Seanadóir sásta leis an bhfreagra sin?

Ba mhaith liom labhairt ar an ábhar sin ar feadh soicind. I appreciate the Minister of State's reply and we are obviously not going to agree on this issue. I appreciate the level of detail he has given, particularly on the Oireachtas privileges Act, because that was one of our concerns. It sends the wrong message. It appears from the section that the Minister is given strong powers over anyone on the committees in question. If in future we wanted to find out if anything untoward were happening at this level, I hope we would have a mechanism available to us to ensure we could investigate it fully. I would hate for some Minister in the future to be able to gag people by using this section of the Bill, but we are not going to agree on it. I appreciate the Minister of State's reply, but I wish to press the amendment.

Only Senator Trevor Ó Clochartaigh can come back in because we are on Report Stage.

I can say something though.

Senator Trevor Ó Clochartaigh proposed the amendment and Senator David Norris then had a chance to speak-----

I indicated and you nodded at me.

When the Minister speaks, the only one who can reply is the proposer of the amendment.

I indicated before then.

Senator Sean D. Barrett seconded the motion. If Senator David Norris wants to make a comment-----

If I might-----

I am not trying to be-----

I understand that. It is genuine confusion. I understand the Minister of State did not accept any of the 40 or so amendments tabled on Committee Stage and does not propose to accept any today. That seems to be largely because this is a Dáil Bill and it would have to go back to the Dáil. I said this to a Minister last week and he accepted this was the case. It is about time the Government recognised the constitutional provisions for this House. This House is supposed to reform, advise and strengthen legislation by amendment. To refuse to accept any amendments whatsoever out of 40 or 50 amendments is absurd. It makes a mockery of this House. I know the Government wanted to get rid of this House, but they did not succeed, and it is about time that Ministers started thinking and accepting amendments from this House.

We discussed the Freedom of Information Bill the other day, about which I have reservations, as it is far too broad and sweeping. The Minister was pushing it, although secretly he would agree. The legislation before us is aan example where information is being withdrawn from the public on the basis it would affect the efficiency of the committees. I made the point about Cabinet meetings that confidential material marked "private" and exchanged between two Cabinet Ministers is now subject to Freedom of Information as a result of the new Bill. That is absurd and will certainly inhibit discussion. There is a lack of joined-up thinking and consistency because we are doing the reverse in this legislation in that we are saying there will be no access to this information. It also involves the appointment of members to boards. This is the kind of thing that is at the centre of public disquiet about the appointment of people. All such procedures should be open and fair.

Will the Minister of State explain what a class E fine is? How much is a class E fine? I tabled an amendment on the Freedom of Information Bill, where the maximum a civil servant is subject to for deliberately destroying information is a €3,000 fine. That is far too weak. The Minister agreed with me, but because he did not want to take the Bill back down to the Dáil, he did not accept it. This is the kind of parliamentary democracy we are in. It may change a bit now that the numbers have changed in this House. I said we on this side would not force divisions vexatiously or frivolously. However, we sure as hell will do so on points of principle, and we have the numbers now.

A Leas-Chathaoirligh-----

Very briefly, as I am breaking the rules. I outlined at the start that once an amendment was moved and the Minister responded, no one else could come in but the proposer of the amendment.

The Leas-Chathaoirleach is using his discretion.

There are rules and discretion and it makes mockery of Report Stage if one allows Senators to come back in; this is, therefore, the only occasion I will let Senator Paul Coghlan to come back in.

I greatly appreciate the Leas-Chathaoirleach's forbearance on this matter. I appreciate the rules and know that this is not normal. I did have a chat with the Minister of State privately about the matter I want to raise. Farmers are unable to obtain a felling licence and it seems that the restrictions being imposed on them could be so onerous that there may be no circumstances at all in which they can receive compensation. I think the Minister understands I do not wish to labour this point, but I look forward to a word from him in response at the appropriate Stage.

Can we get on with the amendment?

I have granted somebody an indulgence. I had better let Senator Michael Comiskey have a brief word. In fairness to him, it is in his nature to be brief and to the point.

It is in my nature to be brief and I will be. I again welcome the Minister of State. My concern is the same as that of my colleague, Paul Senator Coghlan. Farmers may have committed their land for a long number of years and be refused a felling licence and then be in a position that they were not able to fell whatever timber was there on the land.

The Minister of State has dealt with the amendment

Amendment put and declared lost.

Amendments Nos. 2 and 3 are related and may be discussed together.

I move amendment No. 2:

In page 27, to delete lines 9 to 13 and substitute the following:

“the Minister shall issue a replanting order in respect of the owner requiring him or her to replant in accordance with the provisions of the order.”.

I second the amendment.

I thank the Leas-Chathaoirleach and welcome the Minister of State. We have all gained from the two previous occasions we have had these debates on forestry. The Minister of State has mentioned that he is preparing a programme for the new year and issuing important documents. I hope he has benefited from what we have been saying. It has been a very good dialogue between us.

The purpose of amendment No. 2 is to ensure the Minister "shall issue a replanting order". The Bill provides that the Minister "may" issue a replanting order and that would apply where trees had been felled or otherwise removed without a licence. The purpose of the amendment is to ensure crime will not pay. While there is provision for a class E sanction and a €2,500 fine on conviction or indictment, the trees will not be replaced because of the use of the word "may". We want the trees back. That is what society as a whole wants. The amendment is, like the Minister of State, pro-trees. We are asking him to go harder on people who knock down some trees without an appropriate licence. That is the purpose of the amendment.

Amendment No. 3 provides that replanting must be implemented within one year of the felling of the previous trees. In section 26(9) the Bill is again more relaxed on the duties of persons who have trees. It provides that "the Minister may, with the consent of the owner, issue a replanting order in respect of other land owned by the owner instead of the land concerned". It does not have a time limit on it. As we mentioned on Committee Stage, we are concerned about stumps being left around, which makes for an unattractive landscape. I have asked botanists if there are any obstacles to removing stumps and starting again and they say there are not. Providing for a time limit on the replanting order would help the Minister in his work also. If people have an order for replanting they must proceed to do so rather than delaying it indefinitely with the resulting lunar landscape that we have in certain parts of County Wicklow.

The purpose of both of amendments is to protect forests and ensure they are replaced. They are in the spirit of the Bill and of the discussions that we had on the two previous Stages.

The first amendment is a simple one and deals with an issue with which we are all familiar - the use of the word "may" as opposed to "shall". We have been at this hammer and tongs in the 30 years or so I have been in this House. "May" is very weak, while "shall" actually instructs the Minister to do something. Lines 37 and 38 of the Bill are, as Senator Sean D. Barrett said, extraordinarily weak. Let us analyse them. There is no instruction; the Minister may do this, if he feels like it, if it is a sunny morning and if his digestion is in good order. "With the consent of the owner" is a lovely phrase; where somebody swipes trees down, he or she will then have to ask for permission to put them back. That is fatuous in the extreme. It is nonsense, whoever drafted it. Furthermore, the replanting can be done on "other land owned by the owner". What are we at? He or she could destroy a beech tree on an avenue to the remains of a great house or such like and then stick a fir tree up the backside of a mountain ten miles away where he or she also owns property. That is what is included in the Bill. It is a farce.

I am challenging the Minister to accept the amendment and demonstrate that he also accepts the constitutional position of Seanad Éireann to advise, guide and amend. The phraseology used in the Bill is a nonsense and gives carte blanche to any pirate who wants to desecrate the landscape. To recap, the Minister "may" take action, if he feels like it. He must then, of course, seek the consent of the owner who may be a complete crook and if he manages to surmount these two obstacles, the owner can plant a cherry tree in the garden of a bungalow somewhere. The Minister knows that it is nonsense, as do his advisers and the whole House. The only reason the amendment will not be accepted is - oh, dear - it would be such a bother to take the Bill back to the Dáil.

Let us have a little democracy. I am interested to see if the Minister of State will accept the amendment and I very much hope he does. So what if he causes a little bother among his colleagues? They will only respect him for it. The Minister of State is shaking his head sadly. He does not think his colleagues will respect him for it, but some of them will and this House would appreciate a little respect being shown to it by a Government that tried to get rid of it.

I am sure the Minister of State has not forgotten his time in this House and that he has great respect for the Chamber.

The Government does not.

I will let him answer himself. Does Senator Brian Ó Domhnaill wish to comment? He cannot come back in.

I wish to comment on the section and the amendment. I can understand from where Senator Sean D. Barrett is coming with the amendment. However, in reading section 26 one needs to decipher between where it states "felled or otherwise removed without a licence" and "felled with a licence". I would fully support the amendment if it was specifically referring to "felled without a licence". I understand that under the 1946 legislation which is being amended by this legislation, a felling licence was accompanied by the condition that the land had to be replanted. That is all well and good, but a number of issues with having a condition to replant land are at stake from an agricultural point of view, particularly as regards agricultural economics and Food Harvest 2020.

The condition to replant the land could create a lack of incentive for farmers to undertake a planting programme. It runs contrary to the proper use of agricultural land across the country and to the objectives of the Food Harvest 2020 programme which is trying to increase land available for agriculture. There are competing demands.

They would be involved in contravention of the licence.

I am trying to distinguish between the two. There are people who destroy plantations. They should be dealt with differently from someone who receives a felling licence.

I spoke last evening to a forest farmer in County Cavan, Howard McCallum, who is a friend of my colleague, Senator Diarmuid Wilson. He wants to raise this issue because he knows many young farmers who are interested in planting their land but who do not want to take on the responsibility of planting because a felling licence will attach the condition of having to replant. If they want to diversify into other agricultural activities in five or ten years time, they will not be able to do so. It was fine back in 1946 when the planting policy was for only 4,000 ha. In 1970 a total of 2.6% of land was under trees. Today that figure is 10.6%. We are dealing with apples and pears. The situation is different. I welcome the modernisation of the legislation, but we need to modernise this aspect of it, too.

Senator Sean D. Barrett’s amendment draws this into the open. It is a good amendment and I support it in respect of trees being felled or otherwise removed without a licence, but there should be flexibility where trees are felled with a licence.

What about when the licence is contravened? That is included in section 26(1). It refers to when the licence is contravened.

The changes proposed in amendment No. 2 in respect of a tree felled and removed without a licence under section 7 will impose on the Minister an automatic obligation to issue a replanting order in all cases without having regard to the nature and extent of the unlicensed felling and environmental and sylvicultural considerations. There are instances where replanting may not be the appropriate response, for example, where the unlicensed felling occurred on a riverbank or in the proximity of a protected species such as the freshwater pearl mussel, where the disturbances caused by replanting could pose a threat to the species. In such instances the Minister must be empowered to consider options other than replanting on that site.

Amendment No. 3 proposes to remove one of the options open to the Minister where unlicensed felling has occurred which is the replanting of alternative land to that on which the trees had been felled. To remove this provision would be overly restrictive and would not best serve the interests of ensuring the forest estate is maintained in a manner consistent with the objective of protecting the environment. As regards the proposed amendment requiring replanting within one year, it is a matter of judgment having regard to the individual circumstances of each case as to the length of time that should be allowed for replanting to take place. The key to this Bill has been flexibility and workable arrangements that facilitate all involved in forestry. That is the key to our discussions with stakeholders and we went into great detail with them in the past nine months.

To impose an upper limit of one year, as proposed, ties the Minister’s hands in a situation where a more flexible approach may be required. For example, if native oak woodland in a special area of conservation was removed the replanting options might involve using acorns from the remaining trees to regenerate the wood with native stock. The germination of oak seedlings suitable for replanting would take more than one year in this case.

For the replanting process it would be a help to start with the preservation of the acorns.

I assure the Senators that where felling has taken place and replanting is required, it will be done in a timely fashion and trees will be replanted as quickly as possible where feasible.

My preferred approach is to retain the current wording contained within section 17(4)(b)(v) which applies to this subsection and states: “within such period of time, as may be specified;”. For that reason I cannot accept the amendment.

In response to Senator Brian Ó Domhnaill we did try to separate the categories of trees in amendment No. 2 on Committee Stage, but that did not work. That is why we resubmitted it in a different form. I agree that where the trees are felled without a licence is a more serious case than where the licence is merely contravened. In the last of the three cases, where it is seriously damaged, for example, by a storm, the owner would be relatively innocent. That is why we tried to run them together. The purpose of the amendment is that we shall replace such trees, in particular those which are knocked down without a licence. The fine is inadequate but society wants the trees back. The explanation that putting trees back beside a river could damage the fish stocks when they are merely replacing trees that were there before is a mystery. What mysterious ingredients are in the new trees that would damage the fish stocks when the previous trees had no impact? The legislation could require that the trees be replaced by the same varieties in which case the fish will not be in danger.

On the second amendment I fully agree with the Minister of State that it is a matter of individual judgment, but I prefer trees to stumps. That is my judgment and I want to get rid of the stumps as fast as possible to get the trees growing again. I hope the Minister of State and whoever succeeds him will always favour trees over stumps.

I appreciate what the Minister of State says about flexibility. I hope this will generate a new spirit in this area which is one we have tended to neglect. It has a great future. The spirit of co-operation is important. We have to protect the trees in both cases, requiring them to be replaced and that it be done in a timely manner. People in the industry should not think they can knock down a forest and leave ugly stumps around and so on and not participate with the same enthusiasm as the Minister of State in having a national forest playing an environmental, commercial and visual role. We cherish trees and do not want them to be treated in the cavalier way which these amendments are designed to correct and which the Minister of State wants to correct.

I accept what the Senator says about Ministers having a different view or not being as passionate about this as I am. I hope a Minister responsible for forestry would have a particular interest in the brief, which is so important. Trees are part of what we are.

People have a huge connection with them. I am not sure if the Senator was present for the debate on Second Stage, which was very informative on the whole process. I always would have liked to see a person who is committed to the forestry sector holding the forestry brief. I have learned from my dealings with the people involved in the sector that they are extremely committed and dedicated to it and they feel very much a part of it. The sector is part of our environment, part of what we grow and part of what we are.

Normally I would impose a replanting order. That is the thrust of what has been done but exceptional circumstances can occur. The recent wind-blow caused ground disturbances. I was on sites in counties Kerry and Limerick and elsewhere around the country where damage was caused. All of those places are being replanted other than in such cases of exceptional circumstances where, for example, the ground has been disturbed near a river. When big trees that are ten or 15 years old fall they disturb a great deal of clay. If replanting in such areas would have a negative effect on the environment, replanting should not occur. I hope that clarifies the issue.

Amendment put and declared lost.

I move amendment No. 3:

In page 27, to delete lines 37 and 38, and in page 28, to delete line 1 and substitute the following:

"(9) A replanting order must be implemented within one year of the felling of the previous trees.".

I second the amendment.

Amendment put and declared lost.

I move amendment No. 4:

In page 28, line 11, to delete "A person" and substitute "A person under whose direction the activities are being conducted".

We had a discussion on this matter and I will not the labour the point. This amendment relates to the Part dealing with offences and penalties where a person contravenes a condition of a licence granted under the relevant statutory provisions. We propose the wording should be changed to read "A person under whose direction the activities are being conducted". It is interesting to note that employees working for the Rhatigan company who are members of the UNITE union protested outside the gates of Leinster House today. They had been working for a subcontractor on a school site and I am sure we could find other similar cases. This is the issue to which we are pointing in this amendment.

An employee could be contracted to do work that is in contravention of the Act in the forestry sector and that person could be penalised, but the person who instigated that work or the owner could potentially get away with the contravention by saying they did not know anything about it. They could put their hands up and say it is not what they asked the person to do. We are trying to cover that loophole in this amendment and to make sure the person under whose direction the activities are being conducted, namely, the person at the top of the pyramid, is the one who is punished as well as somebody else who might have broken the law in contravention of the Act.

I second the amendment. Section 17(c) already provides that where a person operating under the direction of another person contravenes the conditions of a felling licence, both persons will be liable to prosecution having regard to the circumstances of the case. Furthermore, this safeguard is replicated in section 27(10) which sets out the detail for offences and penalties. Consequently, this amendment is not necessary.

Amendment put and declared lost.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."

Is it agreed that the Bill do now pass?

The Minister of State would like to make a comment.

I thank the Members of the Dáil and the Seanad for their support for the Bill. I especially thank the Senators for their support on Second Stage. Senator David Norris made a cutting comment about the Government and people not taking seriously the work the Seanad does. I sat through the debate and heard very good contributions from a small number of Senators.

There were worthwhile contributions and they helped me and others involved in the process of dealing with the Bill. It is a very important Bill and the first legislation in this area since 1946. It covers much of what we are about in Ireland, our love of trees and growing them, protecting the environment and jobs in the forestry and milling sectors.

I have visited the mills across the country which are major employers. When the recession hit and jobs were being lost, those people took it on themselves to export the timber and we now have a success story in the timber industry. That has percolated through the industry from planting, to the work done in fields in the thinning of trees and all the other work that is part of the operation. A huge number of people are employed in the sector and it is all based in rural Ireland. It is a good success story. I hear people knock rural Ireland every day throughout the country.

The Minister of State never heard me knock rural Ireland.

I have a meeting with the Palestinian-----

I would prefer if the Senator listened to me for one minute.

This is a success story in rural Ireland where there are jobs created. I thank everybody in this House, particularly the leaders of the parties, the agricultural spokespersons, the members of the committee, everybody who has helped and the stakeholders ranging from the IFA to the other groups that made submissions month after month. I also sincerely thank the officials for their work on the Bill which has brought forestry into the modern era and put it on a sound footing. We can see the industry progressing into the future. I thank the Leas-Chathaoirleach and all those involved.

I thank the Minister of State for those sentiments. I wish him and the sector within his remit well. I look forward to his future visits to the House.

Question put and agreed to.

When is it proposed to sit again?

At 2.30 p.m. next Tuesday.