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SELECT COMMITTEE ON AGRICULTURE, FOOD AND THE MARINE debate -
Wednesday, 24 Oct 2001

Vol. 4 No. 7

Fisheries (Amendment) Bill, 2000 [Seanad]: Committee Stage.

I welcome the Minister of State, Deputy Byrne, and his officials. It is agreed that we will conclude consideration of the Bill today. For the purposes of debate it is proposed to group amendments Nos. 1 to 3, inclusive, 5 and 6, 7 and 8, and 10 and 11. All other amendments will be discussed individually.

Section 1 agreed to.
NEW SECTIONS.

Amendment Nos. 1 to 3, inclusive, will be discussed together.

I move amendment No. 1:

In page 3, before section 2, to insert the following new section:

2.-Section 3 of the Act of 1997 is amended by the insertion after the definition of 'licensing authority' of the following definition:

' "local authority" means a local authority for the purposes of the Local Government Act, 1941;'.".

Deputy H. Blaney took the Chair.

I have no objection to this amendment. I am, however, seeking clarification in the context of amendment No. 2. As has been pointed out on several occasions, this is a minor Bill which amends the 1997 Act. It proposes to oblige the Aquaculture Licences Appeals Board to state the main reasons and considerations which determine particular decisions.

Until this legislation was published an applicant for a licence who was unsuccessful was never informed of the reason the application was refused. We have discussed this issue at length on a number of occasions and it is my understanding that, after today, the law will be such that, not alone will the reason for a refusal be given to an unsuccessful applicant, but that there will be retrospection. In other words, anyone who has had an appeal refused in recent years will be given the reason for that refusal.

When we discussed this issue last March, 68 out of 404 ministerial decisions had been appealed. This indicates that we are not speaking of an insignificant number of unsuccessful applicants who would have more than a passing interest in the reasons their appeals were turned down. Natural justice would suggest that unsuccessful applicants should be given the reasons their applications were refused.

I will not delay the committee as the Minister of State knows the point to which I am coming. There should be transparency. This has nothing to do with the integrity of the appeals board. I have no doubt it is behaving in a proper manner, but this is the kind of approach being adopted in all Departments.

The Minister of State and I are in the House long enough to know of the social welfare appeals mechanism. There will now be a similar mechanism regarding agriculture and there is no reason there should not be one for the marine, particularly in the context of this issue.

The Minister of State will be the first to realise that there is a lot at stake here in the sense that there is huge investment in this type of project. There will be unsuccessful applicants - that is life - but applicants are entitled to know the reasons their applications were unsuccessful. As important as that is, it is very important that the Minister of State indicates that past unsuccessful applicants - the retrospective element of this - will be dealt with also. I assume there will not be many such applicants and that this will not impinge unduly on the time of those setting out the reasons. While I have no problem with the Bill and have said so on a number of occasions, perhaps the Minister of State will clarify that matter for me.

The Deputy's points are well made. The purpose of the Bill is to oblige the Aquaculture Licences Appeals Board to state the main reasons and considerations on which determinations of appeals against ministerial decisions to grant or refuse to grant aquaculture licences under the Fisheries (Amendment) Act, 1997, subsequently amended and extended in section 2, are made and to clarify the powers of the board or any consultant or adviser engaged by it to inspect any land, foreshore or area of water to which the relevant appeal relates, whether the appeal is the subject of an oral hearing.

What the Deputy said is correct. I will not say there was a flaw in the Act, but it created a difficulty in regard to transparency. I am anxious that everything I do while in office and that everything done in the Department is above board and transparent and that if someone makes a request of us, we will not be precluded from acceding to it, but enthusiastic about responding.

I have granted 441 licences to date and refused 13. The 13 people refused can ask the appeals board the reasons for the refusal. I have not granted licences in respect of all applications. I am anxious that if someone wants to know the reasons their appeal has been turned down or granted, they will be given the reasons.

To answer the Deputy's second question, there will be retrospection. Regardless of when the appeal was heard, whether it was made two or three years ago, the appeals board will be obliged to give the reasons it took a particular decision.

I thank the Minister of State and compliment him on the forthright way in which he has dealt with the issue. Will there be retrospection in the case of all refusals of licences?

Yes, by the appeals board, to its establishment date.

For how long has the board been in place?

The independent statutory Aquaculture Licences Appeals Board was established in June 1998 under the Fisheries (Amendment) Act, 1997.

Are appeals before that date covered?

Anything before that is not covered because the appeals board was not in place.

This question does not relate to a particular Government and I have no ulterior motive in asking it, but if decisions were taken to refuse licences prior to that date, are there any circumstances under this or other legislation in which the required information could be given?

Yes, it can be repeated. In all instances prior to that date, if a decision was made against an applicant, the Department will provide the information for the applicant. If it needs to be repeated, we will have no problem.

Again, I thank the Minister of State for his forthright answer. Decisions were taken against a number of people prior to 1997. May I take it that they will now have the right to know the reasons their applications were refused?

The Fisheries (Amendment) Act under which I have granted 441 licences dates from 1997 prior to which any information in the Department will be made available to the people concerned. My officials will be prepared to sit down with them if they wish to reapply for a licence, perhaps in the same location, but with some changes. We will sit down with them and try to help them out. My business is to get as many as possible working in coastal areas and keep them in jobs which would not otherwise be created. I would like to do as much as possible.

I would like everyone to be content with the decision, including the applicant, those living in the area and the agencies involved. I operate through consensus. In the past the Department explained to all unsuccessful applicants the reasons they were refused. As I said, if such information is required, it is on file and can be accessed again.

Would it be possible for an unsuccessful applicant prior to 1997 to look at any relevant documentation on file in the Department?

We will be as obliging as we can to provide people with the reasons. The reason is not necessarily to be nice, but to encourage them to apply for a licence, albeit in a different way, in order that they may get a licence and help us to develop a bigger industry.

I thank the Minister of State.

Does the Minister of State agree that it should be mandatory for the appeals board to supply information for applicants refused licences and the reasons for the refusal? Some applicants are not satisfied as they are not being told the reasons their applications were refused? As far as I know, the appeals board, to date, is not conveying that information.

To date, that is correct. The purpose of the Bill is to oblige the appeals board to provide any information sought by an applicant who feels aggrieved. When the Bill is passed that information will be available to applicants on request. As I said to Deputy Connaughton, information on all decisions made since 1998, when the appeals board was established, will be available. Not only will information be available as and from the date the Bill is passed, it will be retrospective to the establishment date of the appeals board - June 1998.

What about appeals before 1998?

There was no appeals board in place before 1998. The Department made the decisions. Prior to 1998 any decisions taken by the Department were fully explained to applicants who sought such information.

I am not too sure about that because I had a client who said he could not get the required information.

I would be disappointed if I thought that was the case. I offer the Deputy an opportunity to discuss any grievance he might have with my officials.

I thank the Minister of State.

Let me ask the Minister of State a question on a related topic. What time span is envisaged for the issue of licences? I understood there was a backlog and considerable difficulty in actually getting it through. Will the Minister of State give an update on the backlog? Thankfully, there is more activity and many new projects. I share the view that the fishing community is very isolated and not at the forefront of the usual industrial projects and will support anything that can be done to help them. The projects will result in more applications for licences. Will the new system be able to cope with whatever will come its way?

Yes. I note that three of the four Deputies present are from coastal areas and know how important it is for industry to develop and grow in such areas. I have often been in Deputy Blaney's and Deputy Sheehan's constituencies.

The Minister of State would be made welcome.

I know I am welcome and always well looked after in both constituencies. I have not yet made it to County Meath, the coastline of which is very short. I live on the Hook Peninsula and know exactly how things are. A great number of people are employed who without aquaculture would have to travel to Dublin or abroad to find employment. They certainly would not be living in these remote coastal areas. This helps to keep the rural fabric of such areas alive where the quality of life is desirable. Many would like to live beside the sea. To live and make your living there is the ideal combination promoted by this legislation.

The Deputy is right in saying that a backlog has built up. One of the difficulties with previous legislation was it contained loopholes which we wanted to close off with the passage of the 1997 Act. Someone said that at one time lawful meant legal, but now it means loophole. That is what we want to prevent in this instance. I think we have achieved that end.

To date, I have dealt with 454 licence or trial licence applications for aquacultural purposes, of which 441 have been granted and 13 refused for various reasons. A total of 344 aquaculture licences and 31 trial licences for aquaculture purposes have been granted under the Act together with companion foreshore licences where State owned foreshore was involved. A total of 53 ministerial decisions are under appeal to the independent statutory Aquaculture Licences Appeals Board whose determination is awaited. A total of 230 aquaculture licence applications are at different stages of consideration, such as being the subject of public consultation or consultation with expert bodies, or awaiting completion and publication of environmental impact statements, or awaiting further clarification of the applicant's proposal, or awaiting site inspections. Not all of these applications will progress to licensing.

The new legislation is so transparent and there is so much consultation involved that delays are inevitable. We want to let everyone in an area know that there is a proposal to have a salmon or shellfish farm there. We invite people to come and talk to us because we want them to feel happy that all of these activities can coexist. The CLAMS scheme was introduced recently whereby local people can sit down together, whether they are environmentalists, farmers, tourists, inshore fishermen, deep sea fishermen or those involved in aquaculture, in order to reach a consensus on how they would like their bay to be handled.

With regard to the CLAMS scheme, I was in Roaring Water Bay with Deputy Sheehan and know there are such schemes in place in the constituency of Deputy Connaughton - in Galway county at any rate - while two have been introduced in County Donegal. The first such scheme was introduced in my home parish of Bannow Bay, County Wexford, and they all appear to be working well. The consultation process is available for everyone to use and I urge people to use it. I do not want anyone to think that we are trying to pull the wool over people's eyes. It is good for the country and everyone has a say. As I said, all of these activities can coexist.

Generally, it takes four to six months for an application to be processed because of the degree of consultation involved. We do not want to impose unrealistically short time limits on the process as it might discourage people from making their case, whether it be for or against. As far as applications for salmon farms are concerned, an environmental impact study, EIS, is required, which means the process takes even longer when account is taken of the need for public consultation, expert consideration of sites, fish health and so on.

In some instances applications do not engender comment from local people, which may be due to the fact that the opportunity to do so is offered. This makes people feel more confident in the process. The CLAMS process is a help in this regard as all groups in bay areas where the scheme functions are invited to comment. This helps to build consensus. Every fish farmer is as interested in the environment as everyone else in the area. It is a vested interest. People from both rural and urban areas are committed to the environment.

Is the Minister of State satisfied that the control of mussel development is carried out to his satisfaction? Is there a danger that there will be over-development in certain bays? To take an example from agriculture, if one has too many cattle on a small farm, they will not thrive. The same applies to aquaculture and mariculture. If a bay is overstocked with mussel ropes, there may be a danger that an inferior product will result. What legislation does the Minister of State have at his disposal to ensure there will not be over-development of any particular bay by mussel farmers? This can happen because there is an element of greed in every society. It can happen also in the fishing industry.

There is even a degree of selfishness in the political scene, as I am sure will be evident in the next election. I am sure Deputy Sheehan will be very anxious to bring in his colleague, Deputy O'Keeffe, with him. There is no selfishness in the area concerned, but lesser people like myself might be inclined to be greedy.

It might swing the other way and he will bring me in.

The Deputy's modesty becomes him. What he says is correct. He made his point well when he mentioned the number of cattle on one acre. The more cattle on an acre, the less they will thrive. It is the same with mussels. If there are too many on a particular site, they will be of lesser quality. A great strength of the Irish industry is that we have achieved niche markets in France. That is because we keep a close eye on how mussels and other shellfish are looked after. There will be no over-intensification because strict controls have been put in place. These are sometimes not as well policed as they should be, but eight new fishery officers were appointed last year to undertake control tasks.

It is my intention that quality will be more important than quantity, a policy with which the Deputy agrees. Policing methods are in place and each application is considered on its merits. Appropriate conditions are imposed at licensing. Licensed sites are monitored from time to time for best practice. We have one of the best industry work practice regimes in the world.

Amendment agreed to.

I move amendment No. 2:

In page 3, before section 2, to insert the following new section:

2.-Section 23 of the Act of 1997 is amended by the insertion after subsection (1) of the following subsection:

"(1A) A person who is, for the time being-

(a) entitled under the Standing Orders of either House of the Oireachtas to sit therein,

(b) a member of the European Parliament, or

(c) a member of a local authority, shall be disqualified from being appointed as the Chairperson or member of the Board.’.”.

Amendment agreed to.

I move amendment No. 3:

In page 3, before section 2, to insert the following new section:

2.-Section 24(4) of the Act of 1997 is amended by the substitution of the following for paragraph (c):

'(c) is regarded, pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act, 1997, as having been elected to that Parliament to fill a vacancy, or

(d) becomes a member of a local authority.’.”.

Amendment agreed to.

I move amendment No. 4:

In page 3, before section 2, to insert the following new section:

2.-The Act of 1997 is amended by the insertion of the following after section 35:

35A.-(1) The Board shall appoint such and so many persons to be employees to the Board as the Board, subject to the approval of the Minister, given with the consent of the Minister for Finance, as to the number and kind of those employees, from time to time considers appropriate.

(2) The Board may employ a person in a part-time capacity to be remunerated by the payment of fees in such amounts as the Board may, with the approval of the Minister, given with the consent of the Minister for Finance, from time to time determine.

(3) An employee of the Board holds his or her employment on such terms and conditions as the Board, subject to the approval of the Minister, given with the consent of the Minister for Finance, from time to time determines.

(4) There shall be paid by the Board to its employees out of moneys at its disposal such remuneration and allowances as the Board, subject to the approval of the Minister, given with the consent of the Minister for Finance, from time to time determines.

35B.-(1) The Board shall prepare and submit to the Minister for his or her approval, a scheme or schemes for the granting of pensions, gratuities and other allowances on retirement or death to or in respect of such whole-time employees of the Board as it considers appropriate.

(2) The Board may, at any time, prepare and submit to the Minister a scheme amending a scheme under this section.

(3) Where a scheme is submitted to the Minister pursuant to this section, the Minister may, with the consent of the Minister for Finance, approve the scheme without modification or with such modification (whether by way of addition, omission or variation) as the Minister, with such consent, thinks proper.

(4) A scheme submitted to the Minister under this section shall, if approved of by the Minister, with the consent of the Minister for Finance, be carried out by the Board in accordance with its terms.

(5) A scheme approved of under this section shall fix the time and conditions of retirement for all persons to or in respect of whom pensions, gratuities or other allowances are payable under the scheme, and different times and conditions may be fixed in respect of different classes of persons.

(6) If a dispute arises as to the claim of a person to, or the amount of, a pension, gratuity or other allowance payable in pursuance of a scheme under this section, the dispute shall be submitted to the Minister who shall refer it to the Minister for Finance, whose decision shall be final.

(7) Every scheme approved of under this section shall be laid before each House of the Oireachtas as soon as may be after it is approved of and if either House within the next 21 days on which that House has sat after the scheme is laid before it, passes a resolution annulling the scheme, the scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

35C.-(1) For the purpose of enabling the Board perform its functions, the Minister may provide services (including services of staff) to the Board, on such terms and conditions (including payment for such services) as may be agreed, and the Board may avail itself of such services.

(2) The Board may provide services (including services of staff) to the Minister on such terms and conditions (including payment for such services) as may be agreed, and the Minister may avail himself or herself of such services.

35D.-(1) Where a person who is an employee of the Board is nominated as a member of Seanad Éireann or for election to either House of the Oireachtas or the European Parliament, or is regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act, 1997, as having been elected to that Parliament to fill a vacancy, or becomes a member of a local authority, he or she shall stand seconded from employment by the Board and shall not be paid by, or be entitled to receive from, the Board any remuneration or allowances-

(a) in case he or she is nominated as a member of Seanad Éireann - in respect of the period commencing on his or her acceptance of the nomination and ending when he or she ceases to be a member of that House,

(b) in case he or she is nominated for election to either such House or to the European Parliament or is regarded as having been elected to the European Parliament - in respect of the period commencing on his or her nomination or appointment and ending when he or she ceases to be a member of that House or Parliament or fails to be elected or withdraws his or her candidature, as may be appropriate, or

(c) in case he or she becomes a member of a local authority - in respect of the period commencing on his or her becoming a member of the local authority and ending when he or she ceases to be a member of that authority.

(2) A person who is for the time being entitled under the Standing Orders of either House of the Oireachtas to sit therein or is a member of the European Parliament is, while he or she is so entitled or is such a member, disqualified from being an employee of the Board.

(3) A person who is for the time being a member of a local authority is, while holding office as such member, disqualified from becoming an employee of the Board.'.".

The Minister of State should tell the committee the reason this amendment was not included in the legislation when it first came before the House.

Like good draftsmen, there is no legislation that is so good it cannot be bettered. This was discussed on Second Stage and we found it necessary to amend the Bill. There was no flaw in the original draft, but we believed it necessary to include this amendment which points to the usefulness of having legislation debated on all Stages. That the matter has been raised again today is very important and because of it we will have better legislation. The Bill got a good airing in both Houses and looks as if it will be improved on Report Stage also.

Amendment agreed to.

Amendments Nos. 5 and 6 are related and may be discussed together.

I move amendment No. 5:

In page 3, before section 2, to insert the following new section:

2.-Section 30(1) of the Act of 1997 is amended by the insertion after 'adviser engaged by the Board' of 'or an employee of the Board or a person of whose services the Board has availed itself pursuant to section 35C'.".

Amendment agreed to.

I move amendment No. 6:

In page 3, before section 2, to insert the following new section:

2.-Section 31 of the Act of 1997 is amended by the insertion-

(a) in subsection (1), after ’adviser engaged by the Board’ of ’or an employee of the Board or a person of whose services the Board has availed itself pursuant to section 35C’, and

(b) in subsection (2), after ’adviser’ of ’or employee of the Board or a person of whose services the Board has availed itself pursuant to section 35C’.”.

Amendment agreed to.

Amendments Nos. 7 and 8 are related and may be discussed together.

I move amendment No. 7:

In page 3, before section 2, to insert the following new section:

2.-Section 33(2) of the Act of 1997 is amended by the substitution of the following for paragraphs (c) and (d):

'(c) the secretary of the Board,

(d) each consultant or adviser engaged by the Board, and

(e) each employee of the Board and each person of whose services the Board has availed itself pursuant to section 35C.’.”.

Amendment agreed to.

I move amendment No. 8:

In page 3, before section 2, to insert the following new section:

2.-Section 34(1) of the Act of 1997 is amended by the insertion after 'adviser engaged by the Board' of 'or an employee of the Board or a person of whose services the Board has availed itself pursuant to section 35C'.".

I notice that politicians, whether they are MEPs, TDs or councillors, are not entitled to be members or employees of the board.

No. That is because there would be a conflict of interest. They are public representatives. For example, if an application was received from County Galway and the Deputy, in his position as a councillor, was a member of the appeals board and also an employee, there would be a conflict of interest because details of the application would be sent to Galway County Council for consideration. I am conscious that councillors are of the view that they are losing authority and having been a councillor and knowing the great work they do for no financial reward, to date, I am of the view that they should not be excluded. However, there would be a conflict with councillors leaving themselves open to accusation. Consequently, neither staff nor board members may be elected public representatives. The same rule applies to An Bord Pleanála on which we base much of the legislation before us. It has stood the test of time. We may not always agree with its decisions, but it has a fairly watertight operation.

If councillors abstained when a particular decision was made at a meeting, would that be sufficient?

No. I am not saying that anyone might be swayed because the person who sat next to them was a board member, but they would leave themselves exposed. To keep anyone with a vested interest outside the process makes for better legislation. It does not apply to public representatives only. Others are also excluded.

Auctioneers, solicitors and architects who are members of a local authority are often part of the discussion of county development plans. As members of the council, they cannot sell a house, proceed with a deal or draw up plans for a company which has received planning permission as part of a county development plan. They must abstain when a decision is being made that could involve a conflict of interest, but that does not prohibit them from involvement in the sale of houses or land, or acting as a solicitor or architect. I do not see the reason councillors should be barred from board membership.

The new local government system of SPCs springs to mind on which several people from the wider community sit. A decision may be taken in the same council chamber that affects them, but that does not necessarily mean they are precluded from taking part in SPCs. This is a difficult issue. I am not sure whether the decision is right or wrong, but many people can genuinely stand back on occasions where there is a conflict of interest. They will declare their interest and not take part.

There is a substantial difference in that the ALAB is a quasi-judicial body. It is important to have a clear separation and no conflict.

Amendment agreed to.
Section 2 agreed to.
SECTION 3.

I move amendment No. 9:

In page 3, lines 26 to 28, to delete paragraph (b) and substitute the following:

"(b) in subsection (7), by the substitution for ’a person appointed’ of ’a consultant or adviser engaged under section 35(1) or an employee of the Board or a person of whose services the Board has availed itself pursuant to section 35C’.”.

Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.

As amendment No. 11 is consequential on amendment No. 10, both may be discussed together.

I move amendment No. 10:

In page 3, line 32, after "section 35(1)" to insert "or an employee of the Board or a person of whose services the Board has availed itself pursuant to section 35C".

Amendment agreed to.

I move amendment No. 11:

In page 4, line 4, after "adviser's" to insert "or employee's or person's".

Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 5.

I move amendment No. 12:

In page 4, lines 9 and 10, to delete ", the consultant or adviser" and substitute "or an employee of the Board or a person of whose services the Board has availed itself pursuant to section 35C, the consultant, adviser, employee or person".

Amendment agreed to.
Section 5, as amended, agreed to.
SECTION 6.

I move amendment No. 13:

In page 4, subsection (2), line 13, to delete "1999" and substitute "2000".

Amendment agreed to.
Section 6, as amended, agreed to.
Title agreed to.
Bill reported with amendments.

That concludes our consideration of the Bill. I thank the Minister of State and his officials at the Department of the Marine and Natural Resources for their input into the Bill. I also thank the members of the select committee for their contributions and facilitating Committee Stage. I thank the acting clerk of the select committee, the staff of the Bills Office and the staff of the committee secretariat.

I wish to thank all the officials involved, including Mr. Thomas Tobin of my Department. I also thank Deputies Connaughton, Sheehan and Brady who have shown that they know their brief. I compliment them on their participation in the debate. I thank you, Chairman, for your knowledge of the brief. I know from personal experience that you are well acquainted with the area covered by the legislation. You have the makings of a Ceann Comhairle.

I thank the Minister of State.

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