Amendment No. 1 is in the name of Deputy Broughan. It proposes inserting a new section. Amendments Nos. 2 and 3 are related and therefore amendments Nos. 1 to 3, inclusive, will be discussed together.
Foyle and Carlingford Fisheries Bill 2006: Committee Stage.
Sections 1 to 3, inclusive, agreed to.
NEW SECTIONS.
I move amendment No. 1:
In page 5, before section 4, but in Part 1, to insert the following new section:
"PART 2
Foyle, Carlingford and Irish Lights Commission & Advisory Forum
4.—(1) The Act of 1952 is amended in the Third Schedule by the deletion of paragraph 6(1) and the insertion of the following:
"6.(1) (a) One senior and one junior member shall be elected by stakeholders in each jurisdiction for a period of five years.
(b) If a casual vacancy occurs among the members there shall be a by-election in the jurisdiction which elected the outgoing member to fill the vacancy.”.”.
Amendment No. 4—
We are on amendment No. 1.
This amendment arose from discussions I had with the Foyle fishermen on what was felt to be a lack of democratic input from stakeholders on the Republic side, effectively on the Northern side of Lough Foyle, and to determine if there was any way we could rectify that in the legislation. It was stated on Second Stage that this legislation formed part of the all-island or all-Ireland dimension. It is past time that legislation should be brought forward to cover these waterways. The Labour Party and, I am sure, other parties want to expedite the Bill and facilitate its passage.
I checked existing legislation on behalf of the Lough Foyle fishermen, in particular, and noted that the most recent legislation was the 1952 Act, which I seek to amend in these amendments. Amendment No. 4 deals with the board which will comprise four members.
The Deputy should defer speaking to amendment No. 4. We are dealing with amendments Nos. 1 to 3, inclusive, to which he should speak. We will then move on to deal with amendment No. 4.
How does this process work? Does amendment No. 4 come under a different heading?
It deals with a separate matter. I ask the Deputy to speak to amendments Nos. 1 to 3, inclusive, only.
The amendments are linked. Amendment No. 2 proposes that the Foyle Fisheries Act 1952 be amended by the deletion of paragraph 1 in the Fourth Schedule which provides for the democratic control of the lough between the two Administrations. This amendment proposes the insertion of the provision that "The Advisory Council shall consist of members elected directly by stakeholders in the Foyle Fisheries"; in other words, that they should not be appointed. That is the nub of the issue. I am aware that there is other legislation dealing with Lough Foyle, but I could not find a reference to later legislation which might have facilitated this proposal.
The net point is that the Foyle fishermen are anxious that the Minister take cognisance of the fact that the mussel fishery and aquaculture are long established on the lough, as the Deputy representing the area is well aware. They referred to the position in Wexford Harbour. It had an unlicensed aquaculture fishery, perhaps for many decades, as in the case of Lough Foyle. The Foyle fishermen are anxious that the development that took place in Wexford Harbour when legislation overtook the position be replicated in Lough Foyle, if that is possible. In amendment No. 2 I seek to provide for this in regard to the advisory council which advises the loughs agency and the administrative body on all matters affecting licensing and so on.
Amendment No. 3 deals with an amendment of the Fourth Schedule to the 1952 Act. It would require the members of the Foyle and Carlingford Commission to consult, liaise and advise directly the members of the advisory forum. In other words, if the forum was directly representative of stakeholders, this would facilitate a democratic input from people in Greencastle, along the Inishowen coastline and, on the far side, the Derry coastline into the work of the agency and the commission. Amendment No. 1 proposes the insertion of a new section as set out.
I met the fishermen concerned on the day they met the Minister and a number of Fianna Fáil Deputies. In proposing the amendment of the 1952 Act I seek to provide for a democratic feedback mechanism in this new all-Ireland legislation.
Does any other member wish to speak on these three amendments?
Why is the Chairman looking at me like that?
I thought the Deputy was in charge of the communications and natural resources brief but he has now moved over to deal with the marine.
I saw the Chairman look at me furtively and wondered what he was thinking.
I am generally supportive of the points made by my colleague. Incidentally, although the committee has met since the tragedies that occurred around our shores, it is no harm to remember once again those members of the fishing industry who were tragically lost at sea. The rigours of the elements they must deal with each day are brought home to us by those events. We should remember those fishermen at this time, particularly given that the issue continues to arise.
I support the amendments and I look forward to hearing the Minister's comments on them.
With regard to the first three amendments, there is an interest in the locality in having meaningful voices on the advisory committees and in access to the commission. There is validity in the idea of having stakeholders elected from the different branches of the shellfish industry, whether from the oyster or mussel producers. The Minister did this with the county councils in terms of their SPCs, whereby locals were able to talk together and then come forward in a smaller but coherent way. Locals have a vested interest so there is validity in their having a meaningful interaction with the next level up.
The issue of whether amendment No. 2 should provide that the advisory council "shall consist of members" or should include members elected directly by the stakeholders would not be as relevant as the fact that the people there are from the same type of background so they are not outvoted. One of the arguments would be that the people involved in aquaculture at present are linked with people who might be involved in yachting or angling. There is a need for a specific forum for people who actually represent those who are currently working the river.
I thank the members for their contributions and I join Deputy Durkan in recollecting the backdrop to the committee's deliberations and those who are still missing off the south-east coast. It is a timely reminder of how difficult their life is and how dangerous it can be.
The amendments relate to the composition of the former Foyle Fisheries Commission and advisory council that was outlined and provided for in the Third and Fourth Schedules to the Foyle Fisheries Act. The spirit of the amendments is to ensure that stakeholders are represented and consulted on issues of concern to them. The Third and Fourth Schedules were repealed by the British-Irish Agreement Act 1999. That Act established the Foyle, Carlingford and Irish Lights Commission and the composition of the commission is set out in the Act.
The principle informing the Deputy's proposed amendments that stakeholders should be consulted on issues of concern to them was shared by the North-South Ministerial Council when it discussed this. As a result of that concern, it directed that the Foyle and Carlingford area advisory forum should be established under that Act. That is a forum for consultation to ensure that stakeholders have a say in what happens in the area. The forum comprises 48 members and includes recreational, commercial and salmon fishermen, wild shellfish fishermen, aquaculturalists, environmentalists and leisure and hospitality providers in the area. There are three focus groups working on the agency's proposals for salmon fisheries in 2007. In addition, agencies for the marine and water-based leisure strategy and the roll-out of aquaculture licensing are interfaced with the wild fisheries on the lough. The Deputy wants to ensure people's views, including those of all the stakeholders, can be taken into consideration in future plans in the area. Because his concerns are adequately covered by existing arrangements, the Deputy's proposed amendments are not necessary. I will give him an assurance in that regard. This matter comes under the North-South Ministerial Council. All of these bodies have to be reviewed under the St. Andrews Agreement and I will give Deputies an undertaking to examine the matter when that review is taking place.
As regards the advisory forum, the concern has been that as time passes — even since the Belfast Agreement — for whatever reason one tends to get a person effectively representing himself or herself, not major fishing interests in the area. Perhaps he or she is not involved in a group any more. Will the Minister insert such a provision in the Bill or suggest to his Northern counterparts some mechanism to review bodies which make recommendations to the advisory forum? This would be advisable.
As regards the commission, the Minister has said we are working within the process which began with the Belfast Agreement, running from 1999 onwards to the St. Andrews Agreement. On the Northern side, however, the D'Hondt system is used for the commission. How do we ensure it works on our side? The D'Hondt system is a good one in some respects. One could argue that the Government could be represented more effectively if everybody had a shot in government. The D'Hondt system is the one used on the Northern side but how do we ensure that, from the Greencastle side, we secure the best representation for our people?
Does Deputy Eamon Ryan have a point to make in that regard?
Perhaps the Minister can confirm one aspect. As Deputy Broughan said, the Northern representatives on the commission are coming from the SDLP, the DUP and the UUP, whereas on the Southern side they are coming from Fianna Fáil and the Progressive Democrats. I am not in any way against the people who might have been chosen but it is a valid point that representation on the Southern side may not be as widespread. It is important that representatives should have specific local or industrial knowledge rather than necessarily having a political connection. While not wishing to impugn the character of anyone who might have been appointed in the past, it is generally good to question how we appoint individuals and make such commissions truly representative, rather than representative of only two political parties.
If we have people representing us, the question is how this feeds back to the the people we are supposedly representing. Is there an interim stage such as an SPC that needs to be created, whereby one knows that the mussel men will elect a person? They will have a meeting and tell their representative what their problems are. They will then go to the advisory committee and meet the oystermen's representative and others. The idea that a certain percentage of the members of the board should be directly elected by their peers has a lot of merit.
As regards future reviews, there is a difficulty in that not everybody is embraced. If the Bill marks a new start, surely this is the time to put the new facilities in place and embrace all stakeholders who have deliberately stayed out or have felt excluded in the past for whatever reason. Everybody is willing to give this a really good go. From that perspective, it would be a help if there was a mechanism to ensure people get their thoughts through to where it matters.
We are talking about two separate matters, namely, the agency and the consultative forum and stakeholders. The format of the Loughs Agency is being set out in legislation. To be quite honest, I do not know whether the members are reflective of Fianna Fáil and the Progressive Democrats. There are at least one or two people who have no link with either party but that is neither here nor there. I do not propose to change the appointments system for membership of boards, semi-State or otherwise. I am sure if the Deputies opposite were lucky enough to get into power, they would not change it either.
There are 48 members on the forum. A system was set out in the PricewaterhouseCoopers report in regard to stakeholders. It was not decided whether they should be North, South or otherwise; it related to stakeholders. It is pretty good. As I indicated to Deputy Broughan, under the review of all these bodies by the North-South Ministerial Council and in deference to what Deputy Keaveney said, if we believe we can improve the system along the lines of strategic policy committees, SPCs, or whatever to ensure proportionate representation of all interests rather than on a North-South basis or otherwise, we will certainly discuss that with our Northern counterparts to try to get the balance as right as possible.
Amendment, by leave, withdrawn.
Amendments Nos. 2 and 3 not moved.
I move amendment No. 4:
In page 6, line 7, to delete "him" and substitute "the person".
Amendment No. 4 concerns gender equality and the Minister accepts it.
Amendment agreed to.
Amendment No. 5 not moved.
I move amendment No. 6:
In page 6, between lines 8 and 9, to insert the following:
"(2) In granting licences the Commission must recognise existing and historic rights of tenure for current long-standing operators on Lough Foyle. The allocation of such licences on Lough Foyle should follow the precedent established at Wexford Harbour.".
In a way, I reiterate the earlier discussion but ask specifically that the Commission recognise existing and historic rights of tenure for long-standing operators on Lough Foyle in regard to aquaculture licensing. I also ask that the allocation of such licences should follow the precedent established at Wexford Harbour. The area has a long history of a very vibrant fishery and aquaculture. There was a feeling this legislation was brought forward without consultation, particularly with the larger operators which perhaps employ up to 20 people and do much for the economic life of Donegal, an area which certainly needs every economic stimulus it can get.
It is believed the implementation plan has been based on the C-Mar study in which many stakeholders did not take part because they considered it to be flawed or for various other reasons. Even some of the people surveyed for the study were not really involved in shellfish.
It is believed section 4(6)(a) is based on a flawed premise. Stakeholders believe the experiences of Wexford Harbour in the past should provide the basis of a way forward for Lough Foyle. A very substantial unlicensed fishery had developed over many years in Wexford. Operators in the area continued development without a legislative regime. There were some inherent problems but they were resolved locally. When the Department eventually introduced a licensing regime, as is happening now with Lough Foyle, the status quo in regard to sites of existing operators was accepted. In addition, a time period and methodology to allow for existing issues relating to site boundaries, area designations, etc., to be resolved were put in place. When the process was completed and the legislation passed, it was accepted that the status quo was a useful starting point and covered future plans for the development and sustainability of the resource. It is felt that a similar process could be advanced in respect of Lough Foyle.
There are operators who have invested — in one instance, up to almost €2 million in research and development for the existing aquaculture activity on the Foyle — employing 18 local people and responsible for €2 million in grown mussels in 2006. We must respect the rights of those operators and give them the opportunity to ensure that their historic entitlements and their investment are protected.
I was with the Minister on Sunday last when he made a very interesting presentation on the future of seafood and sea fisheries, as outlined in the report of the new three wise men. I hope we will have an opportunity to discuss their report in the Dáil because it is a fine document and represents a good starting point for the various parties, which all have their own policies in this area. It addresses the key issue of sustainability while trying to ensure that the lives of fishermen, their families and those who live in coastal communities will remain viable.
A meeting of the joint committee took place since the tragedies involving the Pere Charles and the Honeydew ll occurred and members had an opportunity to comment on both. On my way to the Houses, I listened on the car radio to the skipper of the Discovery, Noel O’Sullivan from Castletownbere, who, with his crew, endured a horrendous ordeal in the past 24 hours or so. The Minister, along with the Taoiseach, at the launch of the report on Sunday, made the point that members of fishing communities have extremely tough lives.
I was interested by what the Minister said on Sunday regarding aquaculture and what he intends to do in that respect in terms of the level of investment to be made. Regardless of the parties in government after the election, aquaculture will have to be given increased priority. However, we must proceed with developments in this area in an environmentally friendly way and this is a problem. The aquaculture of Lough Foyle, by its nature, appears to be extremely interesting from an environmental point of view because it lacks the sort of permanent fixtures that can be found in west Cork, with which I am familiar, the Kenmare River, and so on.
The amendment, which is perhaps one of the three or four most important to be tabled by the Opposition, seeks that, in the context of the work carried out over many years in the areas of research, development and implementation in respect of the mussel fishery and other fisheries in the area, the rights of the operators to whom I referred earlier are recognised under the system being brought forward by the Minister.
The Minister and his Department will approach this matter from the perspective that it is a public fishery and that everyone should start from scratch. It must be recognised, in the context of the mechanism to be put in place, that we are not dealing with a blank canvas. Many millions of euros are already being generated by the mussel and, to a lesser extent, oyster fisheries. If the Minister accepts the amendment, that is fair enough. If he does not accept it, however, it is important that he should take an interest in the specifications that will apply in respect of licensing. Some form of cognisance must be given to the track record of those already operating in the fishery and the fact that they have mapped out areas, etc. Those involved in fishing for mussels have reached agreement among themselves, which is nigh on unheard of in most industries, and 40% of the river has been mapped. However, approximately only 10% is being used as a result of lack of seed as opposed to anything else.
Money has been spent, there has been a great deal of co-operation and those involved in the industry have engaged in self-regulation for many years. It is difficult to maintain a level of tight control among those to whom I refer but they have done so because they recognise that the fishery is their future. They have not, however, obtained results for the money they spent because it was not just a case of their identifying the spat and stating that successful growth would occur there. There has been a great deal of investment. The operators have wasted much of their own money. I accept, however, that they gained from the success they have enjoyed. In one sense, it is a public fishery, but in another it is not, because the operations of the fishermen to whom I refer are well established.
Deputy Broughan has referred to one of the members who works there and who has invested almost €2 million. He is one of a small number to have done so. Unless the specifications for the licences are examined and significant weight is given to an individual's track record and investment in a fishery, an injustice will be done to him or her. Everybody involved says there will be room for new people but the reality is that few will want to do so because it requires a great deal of work and losses can be incurred as easily as gains. Unless a fisherman has access to seed, there will be no future in it.
Earlier this month the Minister launched the decommissioning of the whitefish fleet, which is European-led. Has he thought of doing something similar in regard to aquaculture? It would not involve European quotas. Therefore, it would have to be State-led. This issue will be relevant in the long term if people decide to leave the aquaculture industry because of licensing regulations or otherwise.
The amendment proposes that the commission must, in granting licences, recognise existing and historic rights of tenure for current long-standing operators on Lough Foyle. I do not wish to be misinterpreted on this but the strict legal position is that nobody has the legal right to operate in any particular area on Lough Foyle because it is a public fishery. Consequently, no individual can have exclusive rights. When the legislation is enacted and the loughs agency licenses aquaculture activities, the position will change. Individual licence holders will then have exclusive rights to cultivate the licensed area and ownership of the fish farmed will be vested in the licensee. Essentially, we are conferring legal rights, which is important for the people we are trying to accommodate. The draft implementation plan which was published for consultation purposes sets out how the agency proposes to regulate aquaculture activities and tries to ensure recognition of the investments made, the history of applicants in the area and their previous commitment, to which Deputies Keaveney and Broughan referred. I have met a number of fishermen who have invested sizeable sums in developing the fishery. The financial investment must be taken into account, which is reasonable, and the agency will not have difficulty with this. These factors must be taken into account. Previous performance, investment and experience will be suitably weighted.
The position on Lough Foyle is much different from that which pertained at Wexford. There are a number of special areas of conversation, as well as wild mussel and oyster fisheries, on Lough Foyle. The agency will have to carry out a strategic environmental assessment, followed by an environmental impact assessment or an appropriate assessment under the habitats directive. When these are completed, they will help determine the areas suitable for aquaculture and identify sites that are unsuitable and areas protected under environmental legislation. That is the only caveat in this regard.
If areas are unsuitable or if they must be protected under the habitats directive, some operators may not be permitted to continue in their current location. However, we will not know that until the studies have been completed. The message, therefore, is that while there is a caveat, we must recognise and facilitate the people who currently operate in the area. For those reasons, it is not possible to incorporate this amendment. However, following the Wexford analogy, there will be full consultation and all the studies will be published and considered by the interested parties before any final decisions are made. I am committed to that happening.
I presume regulations to develop the system will come forward at some stage. If the Minister cannot include them in the Bill, will he consider including in those regulations the criteria he mentioned, namely, experience, research and previous investment?
People have grave concerns about the seed management advisory committee. Does the Minister intend to do anything about the complaints about vessels from places outside Ireland, such as the UK, etc., that are chasing our scarce seed resource in Lough Foyle? Will he address this issue in the Bill before Final Stage? If the Minister addresses these two issues, I will withdraw the amendment for the moment.
Is there a timescale for the strategic plans? In the interim, will the status quo stand until such time as the plans are prepared? I accept what the Minister said about the waiting period. People feel that by putting the legislation in place the Minister is licensing and legally recognising what currently exists, which was the main reason we needed the Bill. I am also interested in the Minister’s response to Deputy Broughan’s question on the seed management as people can currently take the seed of others. How can we create a level playing field in that regard?
I accept the Minister's proposal goes some way towards recognising the position put forward in the amendment by Deputy Broughan. It is important to recognise, as the Minister has done, traditional operators in particular areas. However, there may be an argument as to whether they are "traditional". How long would they have to be in operation before being recognised as traditional and be included in the criteria envisaged by the Minister? Is it wise to wait as the Minister suggests?
Essentially, the Minister is regulating an area that was previously unregulated, which is good. Unfortunately, however, as the history of our fisheries shows and as fishermen and their families openly admit, some of the regulations seem to militate against fishing interests in particular locations. Provided it is along the lines suggested by the Minister, the content of the amendment is more precise and explicit. Deputy Broughan will withdraw the amendment but I ask that the Minister keep in mind what is part of the traditional enterprise in the particular area and that those established and existing operations not be, as it were, passed over in any future review.
I assure Deputies that under the draft implementation plan which has been published for consultation purposes, matters such as an applicant's history, commitment, experience and investment, are set out as factors that must be considered. It is up to anyone making submissions on the draft development plan to make suggestions as to how those factors might be emphasised. An environmental analysis will be required to be carried out before any changes are made. The legislation needs to be put in place. The environmental analysis and the plan can be in train and ongoing but the legislation must be put in place before the regulations are put in place and the licences issued. This is the sequence of events over the coming months.
The agency will attempt to balance all the different interests. The interests of the traditional shellfish farmers need to be balanced against the interests of the wild oyster and mussel fisheries. Environmental issues must also be considered. As is the current practice, licences for seed mussels need to be allocated on an island-wide basis so that all the operators have a fair opportunity to source material for their operations. I will consider the review which Deputy Broughan has asked for.
It is the case that boats from Wales or England can obtain a Northern Ireland licence and go into Irish waters on the Irish side of the Irish Sea and take mussel seed from there without any restriction from us.
I was trying to avoid any direct reference to that matter because there is a court case under way on that matter. I am aware of the situation referred to by the Deputy and I have spoken to my officials about it. The matter was raised with me by Deputy Keaveneyand we will need to consider it.
Amendment, by leave, withdrawn.
Amendments Nos. 7, 9 and 11 may be discussed together.
I move amendment No. 7:
In page 6, line 19, after "sea" to insert "or an oyster bed,".
This amendment is in recognition of the special and vulnerable position of the oyster beds. Deputy Perry seeks in this amendment to provide protection that is not specifically provided for, except in the 1997 Act. Such is the sensitivity of oyster beds that any activity or action taken to protect the wild fisheries in their vicinity or within the curtilage of an oyster bed could have serious and detrimental effects to the extent of damaging the beds or making them non-viable. This is an environmentally sensitive issue which should be borne in mind. The amendment recognises the provisions of the 1997 Act and it is imperative to update the legislation.
Amendments Nos. 9 and 11 are similar. Amendment No. 9 specifically includes mention of an oyster fishery, which relates to the need to protect the wild fisheries that form part of the traditional fisheries in a particular habitat. As time goes on and we recognise the whole fisheries sector is changing, it is not so easy to find the species that were available 25 years ago or even ten years ago. It may be necessary to recognise it specifically in this context.
Amendment No. 11 again relates to the need to protect the oyster beds. The wording of the amendment is as follows:
The Commission shall not license a person to engage in aquaculture within the limits of an oyster bed or oyster fishery which is the property of any private person or to which an oyster bed licence or oyster fishery order relates, without the consent of that private person or of the person who for the time being is beneficially entitled to the oyster bed or oyster fishery.
The gist is that the sensitive positions of people who have traditionally fished a particular area have developed and assisted in the oyster fisheries and have eked out a living, would be recognised, as is their wish in any event. They feel they could become vulnerable in the event of a licence impinging, as they might see it, on their particular territory.
I wish to comment on the oyster fishery as up to now I have spoken about the mussel fishery. One of the great difficulties arises in rivers that have already been exposed to both oyster and mussel licensing. There seems to be a lack of understanding of what pertained before the licence was granted. Therefore, there have been many stories of mussels being laid on top of oyster beds and vice versa. Coming from the Foyle area, I would like to think we are in a position where we are only starting to license now, having already said that the Foyle is one of the best aquaculture destinations with natural fisheries in Europe. The Minister’s response to the previous amendment may well be the answer to these three amendments. With proper mapping and serious consideration of what exists, what could exist, where the gaps are and where the SACs are, perhaps this will be established in a way that will give rise to a natural solution.
The reality is that the mussel operators have mapped out 40% of the river and use 10% of that. I understand the oyster operators have mapped out approximately 49% of the river. I know that some of those mapped areas overlap. As a public representative for the area, I would like to think that homework will be done and that neither side will lose a natural resource over pettiness. I hope we will avoid what has happened in other rivers where licensing for one is given for what is accepted to be a traditional oyster bed or a traditional mussel bed. While I do not know whether it is technically possible, we should minimise the difficulties. I hope the study the Minister mentioned will provide some of those solutions.
Deputy Keaveney's point on mapping is important. The aquaculture division of my Department advised that we need a cordon sanitaire between mussel and oyster beds to protect everybody’s interests. All of this will be identified, as the Deputy has said. The areas will be carefully mapped in the environmental studies to take all these things into account. The amendments before the committee propose that we get the consent of the owner or occupier of an oyster bed or an oyster fishery before we grant an aquacultural licence in respect of a particular area. We are back to the original point I made, which was that oyster fisheries in Lough Foyle are public fisheries — they are not owned by any individual or body. Therefore, it is not necessary to seek consent in the manner that is being proposed and we do not intend to include such a provision in this legislation.
As a matter of interest, regional fisheries boards can issue oyster licences in this jurisdiction under the Fisheries (Consolidation) Act 1959. That Act does not apply to the Moville area. No such licences have been issued in respect of Lough Foyle. While oyster fisheries orders can be made under the 1959 Act, no such licences apply to the area in question. In such circumstances, the amendments before the committee are not needed and I will not accept them.
Amendment put and declared lost.
As amendments Nos. 8 and 10 are cognate, they may be discussed together.
I move amendment No. 8:
In page 6, lines 22 and 23, to delete "the owner or occupier" and substitute "the owner or lawful occupier".
These amendments are necessary to ensure that aquaculture licences are not granted without the consent of the owners and lawful occupiers of the relevant foreshores or private fisheries. The purpose of the amendments is to ensure that property rights in the loughs are respected.
Has the Minister discussed amendment No. 10?
Yes. The same reasoning applies.
All right.
Amendment agreed to.
I move amendment No. 9:
In page 6, line 27, after "fishery" to insert "(including an oyster fishery)".
Amendment put and declared lost.
I move amendment No. 10:
In page 6, lines 28 and 29, to delete "the owner or occupier" and substitute "the owner or lawful occupier".
Amendment agreed to.
Amendment No. 11 not moved.
I move amendment No. 12:
In page 7, line 11, to delete "may" and substitute "shall".
This simple amendment to the proposed new section 53B of the Foyle Fisheries Act 1952, which relates to consultation on aquaculture licences, proposes to replace the word "may" with the word "shall". I refer to the proposal that an application for an aquaculture licence "may contain provisions similar to the provisions of Directive 85/337/EEC and may, in particular, require the Commission, when considering whether to grant an aquaculture licence, to take account of any information received by, or representations made to, the Commission which relate to the impact of aquaculture on the environment". I think such a requirement should be mandatory. Therefore, the word "shall" should replace the word "may" in this section of the Bill. The proposal in the new section 53B, which I have quoted, seems to contradict the revised section 53C that follows it, which states that: "In determining any application for an aquaculture licence, the Commission shall consider any written representations relating to the application which are received by the Commission within the period of 28 days beginning with the date on which the application was last advertised[.]"
It is obvious, especially in the context of last Sunday's discussion about the "blue revolution", etc., that the environmental impact of aquaculture is the challenge we face as we try to sustain our fisheries for our people. Like other Deputies, I have received complaints about the environmental impact of some of the activities in Lough Swilly, for example, which is on the other side of the Inishowen peninsula. Therefore, it is reasonable to try to strengthen this section of the Bill to require that when a licence is being granted, its environmental impact should always be considered.
I support amendment No. 12. This is an old chestnut, or should I say "crustacean"? As Deputy Broughan indicated, inserting "shall" or "may" has particular relevance. We have had this argument about countless items of proposed legislation over the years. I have seen a number of instances where "may" has been changed to "shall". The difference is that where the word "shall" is used instead of "may", it becomes obligatory on the Minister and all associated to observe the stipulation, whereas if the word "may" is used, as is the case in this section, latitude is provided and the Minister or the bodies concerned may do as they see fit. It is left to their judgment. Given the point made by Deputy Broughan in regard to the directive, the use of the word "shall" would add strength to the Bill as it carries much more weight.
I support Deputy Broughan's amendment. It should be a given that we would make this change. This is a complex area where interrelated fisheries are involved. In the work done by the committee on aquaculture licences for fish farming, it became apparent that salmon farming can have an effect on a wild fishery. Deputy Keaveney referred to a case where there is concern that the management of a mussel fishery may be affecting an oyster fishery. A previous contributor referred to the fact that Dublin Bay was a very successful oyster and mussel fishery at one time but that is no longer the case due to over-fishing.
I interpret the environment in a broad sense. We should not focus on the effect of environmental emissions alone, but on the point outlined by Deputy Broughan about environmental management, maintaining fisheries and natural systems as much as possible. In the long run this would be for the benefit of everybody involved in the fisheries sector. It was stated in a recent committee meeting that the way forward is through ocean management or, in this case, estuary management, where the interconnected complex systems of a particular environment are taken into account. I commend Deputy Broughan. The word "shall" is important in terms of firming up what our intention should be.
On the basis of the note, section 53B of the Bill provides that the Loughs Agency may make regulations concerning applications for aquaculture licences. That is a discretionary matter. It is an enabling provision and is written in discretionary terms. As Deputy Broughan's amendment is mandatory in nature, it is not compatible with the enabling provision in the Bill in a technical or legal sense.
I am not convinced about this. My view is similar to Deputy Broughan's. I accept the fact that the provision is discretionary and that the Loughs Agency may do something if it so decides, while Deputy Broughan's amendment would make it mandatory for something to be done. If he is prepared to withdraw the amendment I will seek legal advice on the issue. Deputy Broughan's point is a valid one.
How stands the amendment?
I accept what the Minister said. It does appear to conflict with the next section. Why should the power not be mandatory?
Amendment, by leave, withdrawn.
Amendment No. 13 not moved.
I move amendment No. 14:
In page 15, to delete lines 48 to 50 and substitute the following:
"(b) where the aquaculture licence has been granted subject to the consent of the owner or lawful occupier of the foreshore, bed of the sea, estuary or any fishery, the consent in writing of that owner or lawful occupier, as the case may be, to the proposed transfer of the licence,
(c) the fee payable pursuant to section 53N, and
(d) the licence.”.
This amendment is required to ensure aquaculture licences are not transferred without the consent of owners and lawful occupiers of the foreshore of private fisheries to the transfer. It is necessary to ensure property rights in the lough are respected.
Amendment agreed to.
I move amendment No. 15:
In page 16, line 31, after "available" to insert "electronically and".
We try to conduct much of our business on-line, so I wondered why it should not be available electronically. We have done this in some of the Minister's earlier Bills. We are engaged in battles in the Dublin area at the moment because so far, in terms of planning matters, only information relating to south Dublin is on-line. Having information available on-line for the public and interested parties is the way to go and is another area which has been looked after by the Minister. Is this amendment acceptable?
I accept the principle of the proposed amendment. However, there are legal technicalities with the wording which might result in the register only being maintained in an electronic format. If the Deputy agrees, I will bring forward an amendment on Report Stage which will take on board his suggestions.
Amendment, by leave, withdrawn.
Amendments Nos. 16 and 28 are related and will be discussed together.
I move amendment No. 16:
In page 17, between lines 6 and 7, to insert the following:
"(2) Regulations under subsection (1) will provide that the level of fees to be charged shall be indexed to the general level of aquaculture and fisheries licensing fees in the Republic of Ireland.".
This amendment concerns the fees for the licence and the application. Again, it is based on a request from stakeholders that it is important that the level of fees, as the amendment states, be indexed to the general level of agriculture and fisheries licence fees in the Republic of Ireland. As the Chairman is aware, we have had a number of votes in the Dáil in respect of some of the fisheries licences relating to matters such as draft and drift net fishing even before the salmon controversy. The Chairman brought up the price of licensing, in respect of which he said what it would have been had it been kept to the consumer price index over the past ten to 15 years. Over recent years I believe it has just risen by the level of inflation. There is a general desire that we should not have fees which are completely out of line with other fees being charged to other fishermen and aquaculture interests in the rest of the Republic of Ireland.
Foyle fishermen would always have said they bore the brunt of stricter regimes, harsher and shorter days and all sorts of stiffer penalties. I know the Loughs Agency did it for the benefit of the fishermen and it took a few years before people realised that to a certain extent. If I were being completely tongue-in-cheek, I would say that given that salmon fishing has changed and fishermen have dealt with the tough regimes, they would love to have received the compensation paid UK fishermen and would be quite happy to have been considered under the joint arrangement in that context rather than under the harsher buy-out in the Republic of Ireland.
On a serious note, there is a need for a certain level of equality. I know of fishermen who fish in both Lough Swilly and the Foyle who say that in respect of the difference in regimes, they would like to think that in constitutional terms, matters would be put on a more even keel. The Minister is probably moving in this direction and I hope he can react favourably to this type of request.
I agree with the principle of the amendment, which is that we should align these fees as much as possible. Currently, the aquaculture fees are calculated differently in the two jurisdictions. Here, the Minister for Communications, Marine and Natural Resources has responsibility for licensing aquaculture and foreshore licences. The bulk of the fees are levied through the aquaculture licence, having regard to the productivity of the licence site. In Northern Ireland, the bulk of the licence fees relate to the foreshore and are levied by the Crown Estate Commission.
In terms of aquacultural operations in the Foyle, it has been agreed to share the foreshore fees between the Crown Estate Commission and my Department. The scale of the fees is the subject of ongoing negotiations between my Department and the commission. It is the intention that the fees applicable in the Foyle area should be applicable in Ireland and Northern Ireland as far as possible.
Fishing licence fees are calculated by the Loughs Agency having due regard for the existing policy in both jurisdictions. Any fee regulation the agency may make must be approved by the North-South Ministerial Council. Regarding fees, we will try to be consistent between North and South.
We micromanaged areas over which the new inland fisheries authority will have remit in terms of fees. There were votes called in this committee and the Dáil. Is the Minister saying that the implementation body will have the power, which we would not be hiving off? It is a difficult matter. The Oireachtas should set broad policy.
Today, Deputy Durkan's colleague, Deputy Twomey, spoke on the Health Service Executive and the power of the Minister for Health and Children. There is a fine line between good administration and micromanagement. Nonetheless, I tabled this amendment because it would protect fishermen and stakeholders if the situation proved difficult for the Oireachtas to get a handle on due to North-South implementation issues.
Regarding the micromanagement of inland fisheries and so on, the 1959 Act must be updated, which has been accepted by everyone. Progress is being made in that respect. Fees will be subject to North and South ministerial approval, which will meet the Deputy's concerns.
Will the fees be laid in the Oireachtas Library?
In regulation.
Amendment, by leave, withdrawn.
Amendments Nos. 17, 18 and 19 are related and will be discussed together.
I move amendment No. 17:
In page 17, line 11, after "as" to insert the following:
"Bord Achomharc Ceadúnaithe Dobharshaothrú Fheabhail agus Chairlinn or in the English language".
This amendment relates to the appeals board because Donegal South-West is the home of one of our great Gaeltacht areas. The name of the board in English is the Foyle and Carlingford Aquaculture Licensing Appeals Board, but the amendment calls for the full implementation of the North-South agreement.
Amendment No. 18 expresses my party's policy, to which effect Deputy Quinn has introduced a Bill. There should be gender equality on the boards. A colleague of mine pushed this issue in the Fianna Fáil-Labour Party Government of 1992 to try to reach the 40% target. We are all aware of the need to have representation of both genders, including in the political arena.
Amendment No. 19 will be withdrawn.
I agree in principle with amendment No. 17, but this relates to North-South legislation and we did not have time to hold detailed consultations with officials. A number of legal issues must be examined in that respect. If we do so, we may need to consult on Scots Gaelic as well as Irish. I have no difficulty with that. The committee should be conscious that we are—
Probably the same words.
Perhaps near enough, but we should be even-handed. While I would like to see the name in Irish, I will take other views on board. Legal issues must be decided. The matter has been raised since the amendment was made but officials have not had time to finalise discussions with the Attorney General or with legal representatives in Northern Ireland. I accept the principle of the Deputy's amendment for consideration on Report Stage. I also accept amendment No. 18 in principle and amendments tabled on Report Stage will reflect this.
Regarding the many links between Scotland and Donegal because of Scots Gaelic, perhaps different Departments could apply for funding for links between Scotland, Donegal and the rest of Northern Ireland.
Amendment, by leave, withdrawn.
Amendments Nos. 18 and 19 not moved.
I move amendment No. 20:
In page 17, line 28, to delete "The Minister may, make regulations" and substitute "The Minister may make regulations".
Amendment agreed to.
Amendments Nos. 21 to 23, inclusive, are related and may be discussed together by agreement.
I move amendment No. 21:
In page 23, to delete line 33 and substitute the following:
"53X.---
(1) In this Part—".
Amendments Nos. 21 and 22 are technical amendments to take account of the insertion of additional text. The amendments clarify that aquaculture may cover all types of fish and shellfish.
I thank the Minister for taking on board the genuine concerns that were raised at the consultation process in the North. This is the core issue for everyone. There is no point in a Bill that does not clarify what are shellfish. I thought the clue was in the title but I was told I was wrong. I was also wrong because crab and lobster were considered shellfish at one stage but were later considered white fish. Now they are designated shellfish again. It is amazing what one can learn in a when of days when the right people are around.
I congratulate the Minister on the reference to "all's shell that ends shell" in Mr. Fionnán Sheehan's article in the Irish Independent. I was disappointed I was not mentioned.
Deputy Keaveney is not a member of the committee and would not know what the members went through in this regard.
I am taking great liberties but this matter was a core issue. This, and the recognition of existing fishermen, are the key principles that had to be addressed. I thank the Minister for publishing a Bill that makes sense. We accept that he is trying to make this a good Bill rather than merely a matter of North-South co-operation. This affects people in my constituency and this amendment is appreciated.
Amendment agreed to.
I move amendment No. 22:
In page 24, to delete line 6 and substitute "construed accordingly.".
Amendment agreed to.
I move amendment No. 23:
In page 24, between lines 6 and 7, to insert the following:
"(2) In this Part, ‘fish' (when used without qualification) means—
(a) freshwater fish of any kind,
(b) salmon and other fish of a kind that migrates to and from the sea,
(c) eels and elvers,
(d) sea-fish,
(e) shell-fish,
(f) the spawn, fry, spat and brood of any fish,
(g) any part of any fish.
(3) In subsection (2)(a), ‘freshwater fish’ means any fish living in freshwater,
other than a kind of fish that migrates to and from the sea.".".
Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 5.
Amendments Nos. 24 and 25 are related and may be discussed together by agreement. The latter is the alternative to amendment No. 24 and I am advised that amendment No. 25 cannot be moved if amendment No. 24 is agreed.
I move amendment No. 24:
In page 24, lines 38 to 42 and in page 25, lines 1 to 8, to delete paragraph (b) and substitute the following:
"(b) for subsection (2) there shall be substituted—
"(2) In this Act, except in Part VIA, ‘fish' (when used without any qualification) means—
(a) freshwater fish of any kind,
(b) salmon and other fish of a kind that migrates to and from the sea,
(c) sea bass and tope,
(d) eels and elvers,
(e) mussels,
(f) oysters,
(g) the spawn, fry, spat and brood of any kind of fish mentioned in paragraphs (a) to (f),
(h) any part of any kind of fish mentioned in paragraphs (a) to (f).
(3) In subsection (2)(a), ‘freshwater fish’ means any fish living in freshwater, other than a kind of fish that migrates to and from the sea.
(4) In this Act, any reference to a river includes a reference to the channel or bed of a river which is for the time being dry.".".
This is an extension of the previous point, a definition of what is meant by "fish" for this part of the Bill.
Amendment No. 25 is far more technically descriptive than amendment No. 24. I compliment Deputy Perry on his technical knowledge of the definition of fish. I would not attempt to describe fish in that fashion, particularly in our local hostelry either before or after hours. The Minister should take the amendment on board. It is colourful and descriptive. Anybody reading it will instantly recognise the full scale and extent of the fisheries which may be encompassed within the amendment.
The Deputy knows I am not allowed laugh or joke with him due to the strict criteria regarding Standing Orders.
Amendments Nos. 23 and 24 are comprehensive. It is extremely difficult to include all of the elements the Minister seems to have included in his amendment. I commend his staff. They made the section and the revision of the 1952 Act clearer, particularly for the stakeholders.
It would be embarrassing if Deputy Broughan left anyone out.
I hope I have not done so.
Amendment agreed to.
Amendment No. 25 not moved.
Section 5, as amended, agreed to.
SECTION 6.
I move amendment No. 26:
In page 25, line 17, after "provision" to insert the following:
"or any other statutory provision presented to and passed by the Houses of the Oireachtas".
This amendment deals with the changes of functions of the commission from those under the 1952 Act. Representations were made to me that any statutory function should be passed by the Houses of the Oireachtas and not come down from the other side of the Foyle and whatever the future administration will be on the British side.
It is similar to points made by Deputy Durkan when discussing energy legislation. It is important we have the final say on legislation which affects the people of Inishowen and that is the nub of this amendment.
I support the amendment for the reasons stated by Deputy Broughan. We tend to forget about the true democratic principles that should apply regardless of what the legislation is about. Deputy Broughan made reference to the Act which established the Health Service Executive, and as an aside I wish to state it moved dramatically away from democracy. I do not expect anyone to comment. The impetus to generate policy has gone from the legislators to policy makers. Policy should be made by legislators not by specified policy makers who may have a vested interest. I strongly support the principle contained in this amendment. It should apply to all legislation and not only to legislation which involves two contiguous jurisdictions. It is fast disappearing from our legislative calendar and we will pay a severe price for it as time goes on.
I listened carefully to what both Deputies stated. The amendment may have the opposite effect to that which they intend. We must get used to legislation on a North-South basis. Neither side will have power or authority to change such legislation on a unilateral basis. Everything will have to be agreed by the North-South Ministerial Council, so there is no scope for unilateral action either by ourselves or by the Northern Ireland or UK authorities.
The Deputy might wish to re-think the amendment because as it currently stands it would narrow the scope of the agency's functions and would prevent the agency from being given functions by means of ministerial order under existing primary legislation, such as the Sea Fisheries (Maritime Jurisdiction) Act. As Minister, I could not unilaterally decide to give them that power; that would have to go through the North-South Ministerial Council. However, if it was decided by both sides, the effect of the amendment would mean that could not happen.
Under the legislation it is possible to make the agency an authorised officer for the purposes of enforcing sea fisheries legislation, but the amendment would restrict that. From a practical viewpoint therefore I cannot accept the amendment. If the Deputy considers it further he may see why I am refusing to accept it.
We could have a long and philosophical discussion about Deputy Durkan's general point. However, he knows my views about our electoral system and the amount of time Deputies spend dealing with things other than legislation. We could have a long debate on that, which we will not go into now.
No.
How stands the amendment?
I proposed that amendment on the basis that I thought the British order in council may have had something similar concerning the Westminster Parliament or the new assembly — in other words, that they could mirror what we did. In any case, I will reconsider the matter and will try to come back with it.
On that point, I do not agree with the Minister — not that it will bring the world to a halt. As regards issues of this nature, however, Deputy Broughan's amendment could be much more protective of administrations, North and South, than the Minister gives it credit for. We will wait to see what happens.
Amendment, by leave, withdrawn.
I move amendment No. 27:
In page 25, between lines 25 and 26, to insert the following:
"(b) continuously consult local stakeholders on all issues related to the regulation of the Foyle and Carlingford Fisheries,”.
As the Minister said, legislation is our primary function. Our work today and tomorrow is important in the context of the peace process and the development of an all-island economy. One of the problems, however, is the lack of attention we get from the media when we are doing our most important work. It is not just the lack of attention, but also the abuse we get.
Absolutely.
To be fair, the media is represented here today.
That is the problem we have had, however. We have been lashed out of it for spending too much time on the energy Bill and the fisheries Bill.
To be fair to the media, I have no doubt the political correspondents are glued to their monitors upstairs.
Absolutely.
This is the point. That is the reason we need to bypass them, as the Chairman did successfully when the committee's webcast received a great deal of attention. People could see directly what was happening. The reality is that our meeting today is not being broadcast live. We must ensure that our serious work is covered.
The amendment deals with one of the central aspects, looking back at the 1952 Act. The new functions being given to the commission include the provision of education and training, co-operation with other bodies and carrying out research. Another key function should surely be to continuously consult local stakeholders on all issues related to the regulation of the Foyle and Carlingford fisheries. In that way, coastal fishing communities in both jurisdictions would be continuously consulted about some of the issues we have discussed today. In establishing a board or amending its capacity, one can make the functions as broad as one likes by providing a remit. I note what the Minister has said regarding the earlier amendments. It might be a desirable ambition for the commission and the agency, that is, that this is included in legislation. I refer to functions and continuous consultation, given that it was believed there was a dearth of consultation before the Bill emerged in its final form.
Perhaps wording along the lines of "promotion of the inclusion of local stakeholders on all issues pertaining" will emerge from what I spoke about in regard to the SAC-type concept of linking to the masses while, at the same time, having the democratically elected person. Dare I say it but it is the same as representation on the Olympic Council of Ireland. It is often said the same person has been there for a long time. I cannot say that in this instance but it is a matter about which we should be careful. In other organisations representatives who hold positions for a long time become removed from the system. It is like a lecturer teaching somebody how to be a teacher in a school, even though he or she has perhaps not been in a classroom for 30 years.
We must try to be as relevant as possible. There is merit in what Deputy Broughan said about continuously consulting or promoting the inclusion of local stakeholders in the decision-making process. Something along those lines warrants consideration.
I support the amendment. I am not certain, however, whether the word "continuously" should be replaced by "regularly" or "as necessary consult". I do not agree with the notion the Minister expressed about another issue, namely, that legislators should theoretically legislate for something about which they know nothing. We should draw our inspiration from the people directly affected by legislation. Those who have not done so have paid a very high price.
I strongly point out that public representatives — Members of the Oireachtas, in particular — need to be absolutely certain that in the views they express they take cognisance of the issues as they affect the people for whom they legislate. If we move away from this — this is the subject of ongoing debate — we will make a very dangerous decision. There is a suggestion that we have become too parochial in an instance such as this. Our job on Committee Stage is very important. It is very important to present the views of all sides. We may not agree with the views presented from time to time but it is our job, duty and function to present them.
A notion developing in the public arena is that politicians generally are not to be trusted, that they are all the same and that they are a bunch of blue-suited, brown-shoed and red-nosed rednecks who are only in office to be the butt of the jokes of the sophisticated intelligentsia.
The Deputy should speak to the amendment.
I am.
The Deputy is going around the world in 80 days.
I am not.
The Deputy should speak to the amendment.
I am and wish to continue. The amendment is relevant and recognises what is necessary. One of the things which has been borne out by the previous amendment and this one is that there is a need to recognise the situation as it relates to the people affected by the legislation.
I am not sure to what Deputy Durkan was referring but he was not responding to the point I made. I agree with everything he said about being in tune with people's needs but I was not referring to that aspect of the job.
The Minister should speak to the amendment or we will be here all day. He is encouraging Opposition members to waiver and wander into other areas. The debate has been very constructive until now.
On the amendment, as I said, I have no difficulty with the principle of what Deputy Broughan spoke about, namely, the need for representation, consultation and so on. However, it would be extremely dangerous to include in the Bill the phrase "to continuously consult local stakeholders".
What if the word "continuously" was omitted?
The Minister, without interruption.
The amendment is as it stands. However, that would be a difficulty. In addition, this section deals with the functions of the agency but the Deputy is referring to the issue of how those functions are carried out rather than the nature of the functions themselves. The amendment is, therefore, not appropriate to the section.
I outlined earlier the consultation in which the agency engages at present. I do not disagree, in principle, with Deputy Broughan. However, it would almost be more appropriate to include what he is seeking in the mission statement or the strategy of the Loughs Agency rather than this legislation. I referred earlier to the advisory forum. I am sympathetic with regard to what the Deputy is trying to achieve but I would not include it in this section. Perhaps between now and Report Stage we might consult our Northern Ireland colleagues to see if something further might be included in the legislation to explicitly state—
The section states that the commission may "carry out such research as it considers necessary". Could this not be amended to read "carry out such research, in consultation with local interests, as it considers necessary"?
We will consider something of that nature.
Amendment, by leave, withdrawn.
Section 6 agreed to.
SECTION 7.
Amendment No. 28 has already been discussed with amendment No. 16.
I move amendment No. 28:
In page 26, between lines 6 and 7, to insert the following:
"(b) the level of fees to be charged shall be indexed to the general level of aquaculture and fisheries licensing fees in the Republic of Ireland,”.
This amendment refers to-----
The amendment has already been discussed.
I am aware of that.
I must follow the rules and regulations.
The Chairman should take it easy and calm down. Things must be tight in Cork North-Central with regard to the election. All I was going to say was that this amendment refers to a different section.
I apologise. I thought the Deputy was about to make another speech.
Amendment, by leave, withdrawn.
Amendments Nos. 29 to 31, inclusive, are related and may be discussed together.
I move amendment No. 29:
In page 26, line 17, after "Commission" to insert the following:
"including the recognition of historic local fisheries entitlements".
This amendment is a reiteration of what I attempted to do at the beginning of the Bill with the insertion of the phrase "including the recognition of historic local fisheries entitlements". My intention is to try to relate what is at issue here to the remainder of the fisheries and formal conditions attaching to fishing licences, matters relating to fish caught with rod and line, etc. In short, I was trying to replicate what I did in respect of aquaculture in the area of rod and line and other fisheries.
Amendment No. 30 proposes the insertion of the term "May recognise historic local fishing rights and entitlements (including the long-standing rights of tenure for existing fishermen on Lough Foyle)" and is, therefore, similar to earlier amendments.
As the Chairman is aware, Deputy Eamon Ryan was obliged to leave to attend another meeting and he asked me to move amendment No. 31.
The Deputy may discuss that amendment. It will be moved when we come to it.
The two amendments in my name seek to ensure that the existing rights of stakeholders and fishermen operating on Lough Foyle will be recognised in the legislation.
There are individuals operating in the rod and line fishery who have done so for a long period. The argument in this regard is the same as that which applies in respect of mussels and oysters. However, there is a concern that, in the context of the sport of angling, we may be moving towards an elitist model and that local people might be priced out of taking part. How can a good angling facility be developed without outpricing the locals?
I support the amendment on the same basis. The fishing industry is confined to specific locations and often sensitivities within the industry need to be recognised, as proposed by the amendment. The Bill would be strengthened if they were recognised. For instance, a problem could arise in a few years if various interests were not recognised as expected. It is better to recognise this during the debate on the legislation rather than when it has been implemented. In many instances those involved in the fishing industry have felt aggrieved following certain decisions and it would be no harm if the Minister took the amendments on board.
We had a long discussion on this issue earlier and the position remains unchanged. The amendments imply existing licenceholders have legal rights to fish on Lough Foyle but that is not the case. It is no different on the lough than it is in this jurisdiction. There is no such thing as an entitlement to a fishing licence. Authorities responsible for the conservation and protection of fisheries must be free to take appropriate measures to protect stocks, including by means of limiting the number of licences that may be allocated, otherwise there would be chaos. In this instance, it may be necessary to take appropriate conservation measures to bring an end to indiscriminate mixed stock fisheries to ensure compliance with the habitats directive and that may necessitate the restriction of the number, type and location of licences issued in the future.
The regulations governing the allocation of commercial fishing licences on Lough Foyle reflect the applicant's historic fishing record in the previous three years. Therefore, what the Deputy is seeking is covered. The regulations are similar to our controls on fishing for salmon which limit the number and type of licences that can be granted annually and set out criteria to be applied in determining priority among the applicants. It is a transparent process.
It may be necessary to make a technical amendment to the section in paragraph (a) which inserts paragraph (gg) in section 13(1) of the Foyle Fisheries Act 1952. The purpose of paragraph (gg) is to enable the agency, by regulation, to prohibit the sale of rod caught fish. However, as drafted, it appears to be inconsistent with section 35(4) of the 1952 Act. I have instructed my officials to clarify the position with the Attorney General’s office. I may have to table two amendments on Report Stage to take account of the apparent inconsistency between section 7 and section 35 of the 1952 Act. I will have a note prepared for committee members on this.
The Minister, in the move to single stock management of salmon, recognised historic entitlements and, in the areas in question, the entitlements to fish for salmon and trout. I withdraw the amendments on the basis that they will be discussed again on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 30 not moved.
Section 7 agreed to.
Amendment No. 31 not moved.
Section 8 agreed to.
Sections 9 to 14, inclusive, agreed to.
SECTION 15.
I move amendment No. 32:
In page 33, line 15, to delete "1936" and substitute "1954".
This is a technical amendment which corrects a date.
Amendment agreed to.
Section 15, as amended, agreed to.
Sections 16 to 21, inclusive, agreed to.
SECTION 22.
I move amendment No. 33:
In page 38, line 24, to delete "or any article" and substitute "or any equipment".
This is a technical amendment to make the text of subsection (2) compatible with that of subsection (1).
Amendment agreed to.
Section 22, as amended, agreed to.
Section 23 agreed to.
NEW SECTION.
Amendments Nos. 34 and 35 are related and will be discussed together.
I move amendment No. 34:
In page 39, before section 24, to insert the following new section:
24.—The Act of 1952 is amended by substituting the following section for section 60:
60.—(1) If a Judge of the District Court is satisfied by complaint on oath that the first condition is satisfied and that the second or third condition is satisfied the Judge may issue a warrant authorising an authorised person to enter any premises, if necessary using reasonable force, for any of the purposes mentioned in section 64(1).
(2) The complaint shall include--
(a) a statement as to whether any representations have been made by the occupier of the premises to an authorised person concerning the purpose for which the warrant is sought,
(b) a summary of any such representations.
(3) The first condition is that there are reasonable grounds for an authorised person to enter the premises for that purpose.
(4) The second condition is that each of the following applies to the occupier of the premises:
(a) he has been informed of the decision to seek entry to the premises and of the reasons for that decision;
(b) he has failed to allow entry to the premises on being requested to do so by an authorised person;
(c) he has been informed of the decision to apply for the warrant.
(5) The third condition is that--
(a) the premises are unoccupied or the occupier is absent and (in either case) notice of intention to apply for the warrant has been left in a conspicuous place on the premises, or
(b) an application for admission to the premises or the giving of notice of intention to apply for the warrant would defeat the object of entering the premises.
(6) A warrant issued under this section shall not continue in force for more than 7 days from the date of its issue by the Judge of the District Court, which date shall be clearly visible on the warrant.
(7) A warrant issued under this section shall be executed only at a reasonable hour unless otherwise authorised by the warrant.
(8) A person authorised to enter premises by virtue of a warrant issued under this section--
(a) may take with him such other persons and such equipment as he considers may be necessary, and
(b) shall, on leaving any unoccupied premises which he has entered by virtue of such a warrant, leave them as effectually secured against trespassers as he found them.
(9) In this section ‘authorised person' does not include a private river watcher.".".
This amendment concerns warrants to enter premises and is necessary to meet the concerns of the North's legal advisers that the power to search a person's private residence should be subject to judicial control to ensure compatibility with the European Convention of Human Rights. In amendment No. 35 Deputy Broughan seeks to provide for affirmation by oath. That is no longer necessary, as the Interpretation Act 2005 provides in the Schedule for a certain meaning to be given to certain words. "Oath", in the case of a person allowed by law to affirm or declare instead of swearing, includes affirmation or a declaration. Therefore, what the Deputy suggests has been incorporated in the Interpretation Act and it is unnecessary to include it in the Bill.
Amendment No. 35 reads: In page 39, line 16, after "oath" to insert "or affirmation". The legal advice is that my amendment would provide for the making of affirmations instead of oaths. My barrister says this matter is not covered in a watertight fashion by the Interpretation Act 2005 and thinks it would be better to include the words "or affirmation".
If the Deputy lets me have his note, I will pass it to our attorney to examine.
In support of Deputy Broughan, the issue of affirmation versus oath has arisen at Oireachtas committees in recent years.
Amendment agreed to.
Amendment No. 35 not moved.
Section 24 deleted.
Sections 25 to 29, inclusive, agreed to.
SECTION 30.
I move amendment No. 36:
In page 43, between lines 7 and 8, to insert the following:
"(4) Subsection (1) does not affect the entitlement of a person to question the
validity of a decision referred to in that section in accordance with the law of
Northern Ireland.".".
This amendment deals with judicial review of decisions made by the commission. It outlines the revised section 73A of the 1952 Act and the manner in which a judicial review may be sought by a person who is unhappy with a decision. As it stands, subsection (1) states that a person may only question the validity of a decision by application to the Irish High Court. This does not appear to be literally correct because the option would exist of applying to the court in Northern Ireland. This amendment is to recognise this fact. A decision may be made by the Supreme Court in the future but the amendment provides for the possibility. It is interesting to note the dividing line between what is claimed by the Crown Estate and the British Government. There is a question of validity, given our Constitution. This amendment seeks to leave open the possibility for those who believe they have been hard done by.
The Deputy's amendment seems to propose that a person could question in the courts of this jurisdiction the validity of a decision by the Loughs Agency in accordance with the law of Northern Ireland. This provision was inserted on the advice of the Office of the Attorney General to deal with concerns about the jurisdictions of the courts. A similar provision has not been included in the draft Northern Ireland order, on the advice of their legal advisers. Judicial review is determined by Irish courts on the basis of the actions or lack of actions by a State authority or statutory body exercising a public law function. In so far as Northern Ireland law is different from Irish law, our courts will apply Irish law and I expect Northern Ireland courts to apply Northern Ireland law. For these reasons I cannot accept the amendment as the law of the jurisdiction in which the matter is raised is what applies.
I presume it is the standing of the Northern Ireland law as devolved from the United Kingdom.
I accept the Minister's explanation. I suggest we return to the matter again.
Amendment, by leave, withdrawn.
Section 30 agreed to.
Sections 31 to 35, inclusive, agreed to.
Schedules 1 and 2 agreed to.
Title agreed to.
Bill reported with amendments.