Heritage Bill 2016: Committee Stage

The principal purpose of the Bill is to amend the Heritage Act 1995 on foot of the report of the critical review of the Heritage Council, to make provision for the regulation of cutting or burning of vegetation and to provide for clarification of the powers of authorised officers under the Wildlife Acts. The Bill also proposes to amend the Canals Act 1986 to provide enabling provisions in primary legislation for by-laws for the regulation of the use of the canals and other canal property.

I welcome the Minister for Culture, Heritage and the Gaeltacht, Deputy Madigan, and her officials from the Department. My aim is that the committee will conclude its consideration of Committee Stage of the Bill during this afternoon's meeting. Is that agreed? Agreed.

Yes. We will get that far.

I refer members to the list of grouped amendments for the purpose of the debate. We will now proceed to consideration of the Bill.

Sections 1 to 3, inclusive, agreed to.
SECTION 4

I move amendment No. 1:

In page 4, line 18, after “aforesaid.” to insert “These designations should be made without unnecessarily impeding navigation.”.

I tabled my amendment to reinforce the fact that the primary purpose of waterways is for navigation. I acknowledge they are used for many other purposes and that Waterways Ireland has some dry canals in its possession. The proposed new section 5(1)(b) states: "Waterways Ireland may designate particular parts of the canals and other canal property for particular purposes including purposes incidental to such purposes as aforesaid." My amendment seeks to insert after the word “aforesaid” the line "These designations should be made without unnecessarily impeding navigation.” If designation has to be done then yes it may be but otherwise, navigation is the primary purpose of the canals.

While I thank the Deputy for proposing his amendment, I will not accept it as it is unworkable and impractical to implement. Waterways Ireland does not want to impede unless it absolutely has to. The amendment would restrict its ability to provide new infrastructure such as moorings and weirs along the canals. Water levels, for example, need to be lowered due to flooding and other circumstances, which could impede navigation.

Waterways Ireland, through its marine notices, closes navigations to allow special events to take place. The system has been in place for many years and works well. It allows all navigation users' interests to be represented and accommodated. It has never caused any difficulty. Therefore, I cannot accept the amendment.

The proposed new section 5(1)(b) reads: "Waterways Ireland may designate particular parts of the canals and other canal property for particular purposes including purposes incidental to such purposes as aforesaid." It would appear to me that temporary closing for the kind of activity the Minister mentioned is not the designation of a particular part of the canal for a purpose because the purpose still would be navigation except in that very specific time limited exception. There is a concern that canals or waterways might be designated in the long term for purposes other than navigation. I do not think anybody is talking about any because that is dealt with in other parts of the Bill.

No, that is not the intention. For the reasons I have already outlined, I cannot accept the amendment. It is impractical to implement. I do not see a need for the proposal.

Can the Minister outline why my amendment is impractical? All my amendment seeks is to do is insert the phrase: "unnecessarily impeding navigation.”

Effectively, the amendment would restrict the ability of Waterways Ireland to provide new infrastructure such as moorings and weirs along the canals. Ultimately, who would define what "necessary" is? I appreciate where the Deputy is coming from but his amendment cannot be implemented in a practical way. I am afraid I cannot accept his amendment.

I am a bit disappointed with the explanation.

I appreciate that the Deputy might be disappointed but that is my explanation.

To designate for non-navigation would also require North-South approval, which is another valid reason.

Can the Minister explain that again?

The system has been in place for many years and works quite well. We have to allow some flexibility and reasonableness is going to be the word that would be used. What the Deputy has suggested in his amendment would not be accommodating enough and is completely impractical.

The Minister has no problem with the word "reasonable".

Reasonable, yes.

Who decides what is reasonable?

The entire remit of Waterways Ireland is to keep the waterways open for all users to enjoy. That is its prime purpose. I am not sure how many ways the Deputy wants me to say this. I have outlined my views on the amendment.

The amendment restricts the ability of Waterways Ireland to provide infrastructure such as moorings and weirs along the canals. The Deputy has mentioned section 5. The provisions of section 5 are to provide a general duty and responsibility of Waterways Ireland. Section 5(1)(a) states: "it is the duty of Waterways Ireland to undertake the care, management and maintenance of the canals and other canal property as a public amenity for use by the public for" navigation, fishing and other recreational use. In that context, the amendment is simply impractical. Moreover, let us not forget the flooding reasons.

Obviously that would be necessary. On the one hand, the Minister has mentioned the word "reasonable". The obvious response that always arises in a Bill is who decides what is reasonable and, ultimately, it is the court. On the other hand, in reference to the word "unnecessary" I included in my amendment, the Minister asked who would decide what was unnecessary. My response to her is it would be the same people who decide what is reasonable.

We could tease out the nuances, Deputy Ó Cuív. I have outlined my reasons for rejecting his amendment and I do not wish to repeat myself. I am not accepting his amendment.

I will press my amendment.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Collins, Michael.
  • Healy-Rae, Danny.
  • Ó Cuív, Éamon.
  • Smyth, Niamh.
  • Tóibín, Peadar.

Níl

  • Canney, Seán.
  • Heydon, Martin.
  • Madigan, Josepha.
Amendment declared carried.
Amendment No. 2 not moved.
Question proposed: "That section 4, as amended, stand part of the Bill."

I wish to speak on amendment No. 2.

I understand the amendment was ruled out of order.

Yes, but I am allowed to speak to it.

The reason I tabled amendment No. 2 is because the canal that runs from Drogheda to Navan is unnavigable. It is a wonderful piece of ancient architecture and has a beautiful walkway. It does not have a continuous walkway, unfortunately, or a continuous navigable course. One cannot travel on it either by canoe or barge. It would not take a massive amount of money to transform it into a tourism thoroughfare for County Meath. It goes along a good part of the valley of the kings in County Meath. If it were with Waterways Ireland, it might achieve the navigable status the other canals have.

I understand the amendment was ruled out of order because it would be a cost to the State. Will the Minister, however, be cognisant of the fact this canal is lying dormant and would be a wonderful addition to that part of Ireland's facilities if it were made navigable either through Waterways Ireland or the Department?

I thank the Deputy and note his points.

Question put and agreed to.
SECTION 5

Amendments Nos. 3 to 5, inclusive, are related and will be discussed together.

I move amendment No. 3:

In page 4, line 34, after "canals" to insert the following:

", subject to existing maximum dimensional criteria that enable our canal heritage vessels to continue to use the system they were designed for".

The Bill provides that "Waterways Ireland may in accordance with this section make bye-laws for the care, management, maintenance and control and the regulation of the use of the canals and other canal property" with regard to several matters, including the type or class of boat, including its dimensions, that may be used on the canals. Amendment No. 3 seeks to ensure that nobody decides on a dimension that does not facilitate the traditional boats that were on the canals, namely barges. It allows the existing maximum dimensional criteria that enable our canal heritage vessels to continue to use the system they were designed for. Those involved in waterways who have boats are concerned that somebody would design a rule with a width less which would not facilitate these heritage boats.

The purpose of the amendment is to make sure that would not happen and that somebody would not decide that boats of a particular dimension were not allowed, which would have the effect of ruling out the use of heritage boats. That is why I am proposing amendment No. 3.

Amendment No. 4 talks about the closing to navigation of any part of the canals. It is amazing what downturns do and how circumstances change. I am probably one of the few people here who lived through a time when we were closing railway lines. Things are closed permanently. The amendment proposes to insert the words "within agreed procedures on a temporary basis due to an emergency or to facilitate a planned event or to maintain an upgrade". We have to have the power to close canals for all sorts of reason, including emergencies, planned events and upgrades, but what we want to guard against is their closure because somebody says it is too expensive to maintain some of the waterways and that we need to close them. The purpose of the amendment is to make that impossible. If the Minister says it will happen anyway, there will be no harm in having it in the Bill to stop it because she will not be the Minister forever.

I am aware of that.

Amendment No. 5 proposes to insert the words "within agreed parameters on a temporary basis due to an emergency". Amendments Nos. 4 and 5 seem to be the same for some reason. They must have been included twice by mistake. My apologies. We can discount amendment No. 5. I will not press it.

I will refer to a technical matter. With regard to section 5, I do not propose an amendment, but I intend to bring forward an amendment on Report Stage to update the title of Minister for Arts, Heritage, Regional, Rural and Gaeltacht Affairs to the current title of Minister for Culture, Heritage and the Gaeltacht, where it appears. I also intend to bring forward a textual amendment on Report Stage to correct the subsection number on page 7, line 7, which should refer to subsection (6), not subsection (4).

I understand from where the Deputy is coming on amendment No. 3, but it is not necessary. There are existing by-laws in place since 1988 and they have not been changed. It is not necessary to qualify the section further. The maximum dimensions set out are 18.7 m in length, 4 m in beam - the width - and 1.2 m in draft - the depth. The canals have not changed in size since 1988. The size is also determined by the width of the lock chamber and the depth of the canal. While I understand the Deputy's concern, it is already sufficiently covered and the legislation is sufficiently adequate.

With regard to amendment No. 10, Waterways Ireland is in the business of keeping the canals open. It is investing in them for the benefit of users. Therefore, the Deputy's amendment is not necessary. It would be overly restrictive and limit the closing of navigations to emergencies. I mentioned land drainage, flood management and the loss of water. Waterways Ireland regularly issues marine notices, which I also mentioned. Therefore, I cannot accept either of the Deputy's amendments, but I thank him for proposing them.

The Minister made a brilliant case for amendment No. 3. She referred to the by-law as it stood. It could be changed because under this law, it could be made more restrictive than it is. What the Minister is saying is-----

There is no intention to do so.

What I am saying is the Minister has said there is no intention to do so and perhaps that is the situation, but she also said we would not have to change the by-law because it already allowed for heritage boats. We seek to insert this amendment to protect against anybody who would change the by-law to make it more restrictive. We are seeking to guard against something a lot of us have seen in our political lives - unforeseen changes in policy. I do not understand why the amendment cannot be accepted. It would only reinforce that we maintain the status quo. It would not be a burden on anybody, but it would stop an unforeseen change of policy that would restrict navigation to narrower boats and boats of a smaller draft. The Minister has made a good case for my amendment.

On the second amendment, what we need to guard against is someone deciding at some stage that maintaining all navigations is too expensive and that there are other things we could do with the money. The Minister is probably not aware that there was once a plan to close the Grand Canal in Dublin and build a road over it. That is unlikely to happen now in the city, but it could happen somewhere else, particularly in rural areas, where we are often told things are too expensive. The Minister is telling us that it will not happen. Therefore, if she were to accept the amendment, it would not impede anything she intends to do, but it would stop some other Minister in the future who might not be as enlightened as her from closing a canal with the excuse that it could no longer be afforded. Those of us who live in very rural areas are used to being told that things are expensive, not affordable, that not enough people are using them and that there is not enough demand for them. Neither of the amendments would impede the current policy of Waterways Ireland, rather they would reinforce it by stating it was the policy, that it would remain the policy and that there would be no change to it. The Minister has laid to rest any worry that they would have unforeseen consequences. She is actually saying they would only put into law what was the absolute clear and unequivocal policy, as of today, of both the Minister and Waterways Ireland.

I obviously did not make myself clear. What I am trying to say is there is no need for additional words. It is already provided for in the 1988 by-laws and there is no intention to change them. There is also a 90-day consultation period under the by-laws when there would be an opportunity to make submissions on them. It is not necessary to qualify the section further. It would be superfluous to insert extra words. We cannot permanently close canals without North-South agreement. That gets over the hurdle mentioned by the Deputy and the risk that somebody else would try to do it. We are adding canal stock in Ulster.

I am not sure what else I can say on amendment No. 4. I have laid out the reasons I do not think it would be a good idea to accept the Deputy's amendment. It would be overly restrictive and we are in the business of keeping navigations open. I cannot accept the amendment.

If the Minister thinks amendment No. 4 would be too restrictive, she might let me know between now and Report Stage how she thinks it would be too restrictive and what I would have to add to it to make it less restrictive in order that it would cover the acceptable eventualities and stop the closure of canals. As I said, I have seen things happen that everyone said could not happen.

On amendment No. 3, the Minister is missing my point. She is saying it is included in the by-laws, but if it is in them, she could change it. She would have to notify the Dáil, but if the 30-day notice period were in summer time, one could find that things had been changed and there would be nothing one could do about it. What I am seeking to do is transfer it from the by-laws into law. I am taking the by-laws and saying they are superb and that we should insert them into the primary law. I will press the amendment.

I will not press amendment No. 4 because I accept that it might be flawed. It would be reasonable for me to hear from the Minister why it would be too restrictive and to consider it again between now and Report Stage.

On amendment No. 3, there is a 90 day consultation period in the by-laws, and 21 sitting days in the Dáil.

On amendment No. 4, a navigation can be closed for land drainage, flood management control, loss of water, if something sinks or there is a need to protect men working. Those are some reasons I can give to the Deputy. I do not believe his amendments are reasonable under the circumstances, bearing in mind there is a public consultation period of 90 days in regard to the by-laws. Ultimately, this is the primary legislation.

I will think about amendment No. 4 and we can come back on it on Report Stage.

In terms of what I am proposing in amendment No. 3, and I believe it is reasonable, the Minister has a by-law with which there is no difficulty. We all know that, given that the make-up of Governments change and so on, it is very difficult to get statutory instruments stopped if one that is proposed is unacceptable. Since the Minister has made it absolutely clear that it does not actually impede anything in the current by-laws, I will be pressing amendment No. 3.

Is the Deputy pressing amendment No. 3?

I am pressing amendment No. 3.

Will the Deputy be pressing amendment No. 4?

I will press it in such a way that I can take it to Report Stage, but I will not go beyond that.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Collins, Michael.
  • Healy-Rae, Danny.
  • Ó Cuív, Éamon.
  • Smyth, Niamh.
  • Tóibín, Peadar.

Níl

  • Canney, Seán.
  • Heydon, Martin.
  • Madigan, Josepha.
Amendment declared .

I move amendment No. 4:

In page 4, line 35, after “canals” to insert the following:

“, within agreed procedures on a temporary basis due to an emergency or to facilitate a planned event or maintain an upgrade”.

How stands the amendment?

I will not press it now but will re-table an amendment on Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 5 not moved.

I move amendment No. 6:

In page 5, to delete lines 1 and 2 and substitute the following:

“(e) the issue of permits including annual permits, for the mooring and passage by boats and licences for houseboats, to authorise and regulate the use of boats on the canals or other canal property;”.

A new licensing agreement is coming in and it is quite a legal document. The purpose of amendment No. 6 is to use a much simpler permit system rather than this complex, over-legalistic licensing system. The Minister might explain the reason we need an 11-page document for these purposes rather than a permit.

The permits allow a person to travel the canal on their boat. The licences are for long-term parking or mooring. We need to have a formal system for the benefit of all users and to protect people who are using the canals.

The permit system currently in operation to authorise the use and regulation of boats on the canals will continue but a licence is required under existing by-laws where the water is extracted from the canals, other than for cooling of the engines of boats and for the discharge of any water into the canals. The permit is a permission to use the canal network. However, the extended mooring permit, EMP, allowing a boat to permanently moor or berth in one allocated mooring for up to one year requires a licence and evidence of third party public liability insurance for both. The licences will be more stringent. They will help terms of people not abusing the fact that they do or do not have a permit and will provide much-needed regulation in this area.

I did not catch what the Minister said. When will I have to have a licence, and when will I have to have a permit?

The permit allows someone to travel on the canal but the licence is for long-term parking or mooring. Ultimately, we need to have a formal system. I am not accepting the amendment, if the Deputy is speaking to amendment No. 6.

I thought that was what we were talking about.

It is just that the Deputy was speaking in general terms also. The provision in the Heritage Bill is an enabling provision to allow Waterways Ireland make by-laws for the issue of permits or licences to authorise and regulate the use of boats on the canals and other canal property.

The Heritage Bill also contains a provision on page 4, lines 33 and 34, providing for the making of by-laws regulating the type or class of boat, including its dimensions, which may be used on the canals. This amended proposal is appropriate to the by-laws.

The Minister accepts that the licence is an 11-page document.

The legal advice is that allowing people to moor indefinitely may lead to problems, therefore, we are trying to ensure there is a licence system we believe is better for everybody who uses the canals.

The world has become very legalistic. What is considered a long-term or short-term mooring?

I will have a look at the section for the Deputy.

The Minister is saying this is for long-term moorings. What constitutes long-term moorings?

A year is considered to be long term. This will provide for control and protect the property interests of Waterways Ireland as boats permanently moored at a location without regulation could have the potential to acquire prescribed rights to sole and exclusive use. That is the concern from a legal perspective.

The legal boys got at this one.

Therefore, we are recommending a licence, rather than a permit, system.

The world is becoming tied up with so much red tape; it is sad. The Minister has not answered the question as to what is considered to be long and short term.

A year is considered to be long term.

Earlier the Minister mentioned "up to a year."

My understanding is short term is considered to be up to a year.

I will reflect on my amendment.

How does it stands?

I am pressing it.

Amendment put and declared lost.

Amendments Nos. 7 and 17 are related and may be discussed together.

I move amendment No. 7:

In page 5, line 26, to delete “use by boats” and substitute “users”.

This amendment relates to "the charging and fixing of fees, tolls and charges in respect of use by boats of the canals" and also the taking of water from canals. The amendment seeks to replace the words "use by boats" with "users" because people who do not have boats could be users of the canals and take water from them. They could also be using locks and so forth. Why is the legislation stating charges can only applied to boats exclusively, not to anybody else?

I thank the Deputy for his amendment, but I will not be accepting it. Extending fees, tolls and charges to all canal users would not be practical. The amendment is an attempt to widen the remit to include towpath users and those walking or cycling along canals. The use of towpaths and their benefit are recognised and supported by local authorities which are working alongside Waterways Ireland to create off-road amenities. Trying to widen the remit of Waterways Ireland to include all users of canals would not be practical. I can see the Deputy's intention but-----

Paragraph (p) does not refer to towpaths but to canals.

There would be unintended consequences if we were to include walkers and cyclists.

No, because one cannot cycle or walk on a canal. I have only ever heard of one person who could walk on water.

The definition of the term "users" is wide.

It only applies if they do the things prescribed. At the beginning of the section the word "may" is used rather than "must". There is nothing driving Waterways Ireland to do this. On the issue of taking water from canals, for example, boats would not take that much water, but others might and Waterways Ireland might want to license and charge them for doing so, which seems reasonable. Why should charges apply exclusively to boats that take water from canals and not to anybody else?

I cannot accept the amendment because the word "users" is too broad and would bring in too many parties that should not be included in this section of the Bill. It is far too vague and all too encompassing. It is also not practical because the word could be interpreted far too widely in the context of primary legislation.

At the beginning of the section it is stated "Waterways Ireland may ... make bye-laws". It does not state it "must" make them. If it was to become common practice for people to extract water from the canals for one reason or another, perhaps to irrigate fields, for example, would it not be as reasonable to charge them for doing so, as it is to charge boat owners? Actually, according to the legislation, we are not charging the boat owner but the boat.

At the beginning of the section the following is stated:

Waterways Ireland may in accordance with this section make bye-laws for the care, management, maintenance, control and regulation of the use of the canals and other canal property in relation to any one or more of the following matters...

Other canal property is referenced.

Yes, but paragraph (p)-----

The taking of water from canals is also referenced in paragraph (p), at line 27.

Yes, we have reached paragraph (p).

It is very specific. It relates only to the canals, not to towpaths, dry canals or anything else, and includes the taking of water from them. What I am saying is people who do not have boats but who might want to extract water from a canal or might want to do other things on it should be just as open to having to pay a fee as a boat. If they want to jet ski on the canal, for example, Waterways Ireland cannot charge them for doing so.

The amendment would run contrary to the purpose of the legislation which is to regulate the use of boats on the canals.

Surely, its purpose is to regulate the use of the waterways.

We will have to agree to disagree. I cannot accept the amendment.

How stands the amendment?

We have not discussed amendment No. 17 which is related.

We can discuss it now.

The Bill currently provides that "an authorised officer may give to the owner of a boat such directions, orally or in writing, as he or she considers reasonable for the purpose of his or her functions under this Act or canal bye-laws". Again, it is only the owner of a boat who can be given a direction. Somebody on the boat or somebody else doing something which is totally obnoxious on the property cannot be given a direction.

As I said, the purpose of the legislation is to regulate the use of boats on the canals. Therefore, I cannot accept thee amendments.

The Bill provides that an authorised officer can:

direct a person whom he or she believes to be contravening or failing to comply with canal bye-laws to—

(I) give to the officer his or her name and address and (if the officer considers it necessary) evidence of his or her identity, or

(II) leave the canals or other canal property, or both...

That provision is stated clearly on page 9 of the Bill.

The Minister is now saying the remit of the Bill is much wider than just boat owners and boats because, rightly, authorised officers can give anybody a direction. What I am saying is the power to give an order to somebody should not be confined to boat owners and exclude boat renters, boat passengers and so on. It is way too restrictive. The term "persons on canal property" would be much more appropriate. The legislation seems to suggest problems will only arise with boat owners, not with others who are not the owners of boats. If the Minister wants to think about it and come back on Report Stage, that is fine.

We can think about it and come back to the Deputy if he wishes, but I draw his attention to page 9, line 17, which provides that authorised officers can:

give to a person on the canals (whether or not in a boat) or other canal property such directions, orally or in writing, as he or she considers reasonable for the purpose of ensuring compliance with canal bye-laws or the safety of persons or the care, management and maintenance of property on the canals or other canal property

That is subsection (5)(iv).

Yes. Does it not cover what the Deputy is seeking?

No, because if it did cover what I am looking for, there would be no need for subsection (6). If it covered all of the people who use the canals, why does it not also cover the boat owner? In that context, what is the purpose of subsection (6)?

We are splitting hairs on this. Much of this drafting is from the Parliamentary Counsel. When one is getting into legislation, each word can be interpreted in different ways. We have endeavoured to strike a balance in all these clauses and sections.

Our job here is to tease out the legislation.

I am not inclined to accept the amendment. I understand the Deputy's good intentions but I think there are unintended consequences.

I presume that if there are unintended consequences, the Minister has been advised what they are by Parliamentary Counsel and by her officials?

Unless there is an underlying concern, we probably should avoid amending the wording on the hoof. I do not think it would be worth-----.

What is the purpose of having-----

-----doing that.

-----Tithe an Oireachtais?

If the Deputy likes-----

The idea is that we are the ones that make the legislation and not somebody somewhere else.

I appreciate that. There has been extensive work on this.

When we are debating legislation, if I am given good rational reasons for not doing a thing, I am always willing to pull back. When the Minister has made good rational reasons for not proceeding with certain amendments today, I have done that.

I have said that what I believe the Deputy is looking for is already provided for at line 17 on page 9. I believe that is what the Deputy is addressing and that is already provided for. I think what he is looking for is superfluous to that.

If it is provided for there, and that includes a boat owner because a boat owner is a person on the canal, why do we have subsection (6) at all? There is an inherent contradiction.

The boat owner is a master of the boat. He or she is not just a person on the canal. There is a distinction to be made.

However, it is a person on the canal? He or she is in the class of persons on the canal?

Maybe not at that time. We are getting a bit pedantic perhaps, with due respect to the Deputy.

With due respect to the Minister, law is pedantic.

It is pedantic. I have known that well for many years. I know the law can turn and change on one word. I understand the Deputy's intentions but we have to look at this in a comprehensive way. I believe the concerns addressed by the Deputy are provided for.

How stands the amendment?

I am pressing it.

I have to be able to direct the boat owner when he or she is not on the boat.

Amendment put:
The Committee divided: Tá, 4; Níl, 3.

  • Collins, Michael.
  • Healy-Rae, Danny.
  • Ó Cuív, Éamon.
  • Scanlon, Eamon.

Níl

  • Canney, Seán.
  • Heydon, Martin.
  • Madigan, Josepha.
Amendment declared carried.
Staon: Deputy Peadar Tóibín.

Amendments Nos. 8 and 9 are related and may be discussed together.

I move amendment No. 8:

In page 5, line 38, to delete "and" and substitute the following:

"(ii) develop a system whereby interested parties can register electronically with Waterways Ireland and be notified of all bye-laws proposed to be made, and".

This basically allows for the use of modern technology in the notification of by-laws and so on. The provision as it stands would put them up in the old-fashioned way and many people miss such notices. The eurotender system, for example, informs a registered party of any changes, which saves much hassle for people. It is suggested that this could be introduced in connection with by-law changes and that this be provided for in legislation as a valid way of informing people where necessary.

I thank the Deputy but I am not accepting the amendment because it is an operational matter for Waterways Ireland and it is not appropriate for primary legislation. The Bill indicates "If Waterways Ireland proposes to make bye-laws under subsection (1), it shall ... publish a notice of the proposal on its website and in one or more newspapers circulating in the vicinity of the canal or other canal property to which the proposal relates" and "communicate the proposal in writing to each local authority whose functional area is affected by the proposal." It is an operational matter for Waterways Ireland and although I can bring it to its attention, it is not appropriate for primary legislation. It may well be done but it is an operational matter.

Let us be honest about this.

We cannot make it a requirement in primary legislation.

It is an operational matter for Waterways Ireland.

Putting the advertisement in a newspaper is an operational matter.

It will also be on the website.

Yes. That is an operational matter.

It is provided for.

Telling the local authority is an operational matter, as provided for. I know many people who do not buy the local newspaper to look at the small advertisements, although they might read the news. They do not scour a newspaper every week on the off-chance there might be a notice of some obscure by-law that might affect them. It would be in the newspaper at a fixed time. Time and again we have seen that those methods of advertising cause all sorts of problems because people miss them before saying they did not realise something was happening. With newspaper circulation dropping, it is becoming a less effective way of informing people.

With regard to informing the local authority, I would not like to depend on the local authority to tell me about it. Putting it on the website is handy but one must keep checking the website as a result. Moving from the 19th century to the 20th century to the 21st century means one can register with organisations - eurotender is an obvious example - and indicate an interest in all tenders to do with boats or whatever. This will notify the person of a change, meaning that person will not miss a change in his or her sphere of interest. The person would not have to keep checking on the off-chance that there might be a proposal for a by-law. This provision would eliminate the problem we face perennially as politicians of people coming to us and saying they did not know something was going to happen. It seems to be a reasonable proposal and it is a modern way of doing things. I am sure when newspapers came initially, people might have argued we could shout it from the hill and light a fire but the argument was made that it was operational matter. When writing the law the stipulation was made that such notices would be put in local newspapers. This is just moving forward from there.

There is a difference between allowing interested parties to register for a mailing list and requiring that people are informed of by-laws in this way. Waterways Ireland may take what the Deputy is suggesting into account but it is not for primary legislation. Somebody could be missed and people may also miss emails, as we know. I am sure it is something Waterways Ireland could consider. It is not standard practice for by-laws in other areas but it is something Waterways Ireland can consider. I cannot accept the Deputy's amendment.

I fought for this when I was a Minister and there has been tremendous development even in the past seven or eight years in communications. The old system in so many laws of putting a notice in the local newspaper is by the week getting weaker. The reality is that if a person does not register, the notification will not be sent, but electronic communications are fairly reliable. What is being suggested is very reasonable. I cannot understand the very negative attitude to practical suggestions to inform people.

Local newspapers are online now as well and there could be difficulty with having people opting in and out through electronic means. There is a 90-day consultation period in this process so there would be ample opportunities for people. It is not a matter for primary legislation.

I do not know about the rest of my colleagues but the last time I scoured a local newspaper electronically or manually for small advertisements relating to by-laws was a long time ago. I try to keep informed but it is very handy when people are told instead.

The 90-day consultation period facilitates that.

There is a view here that "it is our way or the highway".

Not at all, and as I mentioned, Waterways Ireland may look at this. It is an operational matter for that body.

If the Minister tells me she will look at this between now and Report Stage, I will not press the amendments and I will bring them back on Report Stage. I am sure officials could come up with a suitable formulation of words.

We will have a look at it.

Amendment put and declared lost.

I move amendment No. 9:

In page 6, line 30, to delete "website." and substitute the following:

"website, and

(iii) ensure that Authorised Officers have access to a copy of the bye-laws (electronic or hard copy) for presentation on request by a canal user.".

Amendment put and declared lost.

Amendments Nos. 10 and 11 are related and may be discussed together.

I move amendment No. 10:

In page 7, line 33, to delete "notice" and substitute "notice and detailing the offence and the amount of the penalty".

The purpose of amendment No. 11 is obvious, as it substitutes "30 days" for "21 days". The Minister has mentioned a period of 90 days so I presume the amendment will be accepted. It gives a little extra time, which is reasonable.

Amendment No. 10 relates to where a person is "alleged to have committed the offence specified in the notice".

It should be a requirement for the notice to detail the offence and the amount of the penalty.

That is the time to pay the fixed notice. It is dealt with on page 7 at line 34: "the person may, during the period of 21 days beginning on the date of the notice, make to Waterways Ireland, at the address specified in the notice, a payment of the specified amount, accompanied by the notice, duly completed". In our view, 21 days is sufficient and we do not require 30 days. A period of 21 days is consistent with similar provisions in other legislation, such as the Inland Fisheries Act, the Maritime Safety Act, the Harbours Acts and the Shannon Navigation Act. We believe that is a sufficient amount of time and we do not need an extra nine days, so I cannot accept the amendment on that basis.

I am still of the view that 30 days would be more reasonable. What of the notice detailing the offence and the amount of the penalty?

I did not hear the Deputy.

The Minister has not addressed amendment No. 10.

I do not accept the amendment. The proposal is already provided for in section 7A paragraphs (1) to (4), inclusive, and it is, therefore, unnecessary. That is dealt with on pages 4 and 5 of the Bill, beginning at line 30.

Where is the amount specified?

Section 7A states: "Where an authorised officer of Waterways Ireland has reasonable grounds for believing that a person is committing or has committed an offence under section 7, he or she may serve the person with a notice, in the form specified by Waterways Ireland in canal bye-laws stating that—" and it continues under subsections (a), (b) and (c). It is on page 7.

It does not state that the amount must be specified.

In practice, it is already in the notice.

The Bill does not state that it must be.

Section 7A (3) states: "The specified amount for the purposes of subsection (1)(b) is €150 or such lesser amount as may be specified in canal bye-laws for a contravention of a provision of canal bye-laws." The amount is €150. That is noted on line 14 of page 8. At the top of page 8 it is stated: "a person to whom the notice applies may, during the period specified in the notice, make to Waterways Ireland at the address specified in the notice, the payment specified in the notice, accompanied by the notice, duly completed". That is also provided for and the amendment is, therefore, unnecessary.

Amendment, by leave, withdrawn.

I move amendment No. 11:

In page 7, line 34, to delete “21 days” and substitute “30 days”.

Amendment, by leave, withdrawn.

Amendments Nos. 12 and 13 are related and will be discussed together.

I move amendment No. 12:

In page 8, line 40, to delete “boats” and substitute “the canals and canal property”.

Section 7B (5) states: "An authorised officer may for the purposes of—(a) enforcing the conditions under which boats may be used in the canals in compliance with canal bye-laws". The amendment proposes deleting "boats" and substituting "the canals and canal property" from the subsection as boats are not the only things which might break the bye-laws. The amended subsection would read: "enforcing the conditions under which the canals and canal property may be used in the canals in compliance with canal bye-laws". There might be other things in the canals.

I do not accept the amendment as it would confuse the enforcement role of the authorised officer. The officers must have absolute clarity on their enforcement role and how they operate.

Does the Minister think the bye-laws can be broken only by boats?

The purpose of canal bye-laws is to regulate boating on the canals------

-----and to manage the usage of the canals. The amendment would render the provision meaningless.

The Minster stated that the bye-laws also regulate many other things using the canal.

They do. I suggest the Deputy looks to line 3 at the top of page 9, where it is stated: "ensuring that persons on the canals or other canal property are complying with canal bye-laws", which encompasses other users.

Where is that subsection?

At the top of page 9 of the Bill, lines 3 and 4.

I will reconsider that. It seems to restrict it solely to what is in canals. Is the Minister saying there is another section which deals with the wider usage of Irish Waterways properties?

Other users are dealt with, as I have stated, on lines 3 and 4.

No, I am not referring to other users. The Minister is confining the enforcement to the canal and not including the curtilage of the canal, such as towpaths and so on.

It is the same basis as stated in the amendment I set out; "ensuring that persons on the canals or other canal property are complying with canal bye-laws", which encompasses other users. That is stated at the top of page 9. For that reason, I do not accept the amendment.

Amendment put and declared lost.

I move amendment No. 13:

In page 8, lines 40 and 41, to delete “the canals in”.

Amendment put and declared lost.

Amendment Nos. 14 and 16 are inclusive and related and will be discussed together.

I move amendment No. 14

In page 9, line 10, after “inspection” to insert “, evidence of”.

Section 7B (5) (ii) states: "request any person in charge of the boat to give to him or her for inspection any permit or licence issued under canal bye-laws or evidence of insurance required under canal bye-laws, relating to the boat". The amendment proposes to insert, after "inspection", "evidence of" any permit because one might not have the permit or licence on one's boat.

In practice, in the absence of a permit an authorised officer may apply his or her discretion to allow boaters reasonable time to obtain or produce a permit or licence. However, I do not accept the amendment as the 1988 canal bye-law provisions require permits to be displayed on a boat such that they are legible from the canal bank at all times during daylight hours, under section 40. A person either has or does not have a permit or licence.

Is it required that licences are so displayed?

Even though licences are 11 pages long.

One must display all 11 pages.

No, one must display one's licence.

How big is the licence?

Boats generally have a permit.

How big is the licence?

What is evidence of a licence?

Is the Minister stating that one must display one's licence?

Licences are 11 pages long.

There is discretion-----

Where is the discretion provided for?

------under section 7B (6), which states: "An authorised officer may give to the owner of a boat such directions, orally or in writing, as he or she considers reasonable for the purpose of his or her functions under this Act or canal bye-laws." That is on page 9 at lines 28 to 30, inclusive. There is also a reasonableness test. In practice, the authorised officer can apply his or her discretion in allowing boaters a reasonable time to produce a permit or licence.

I can only go by what is stated in the Bill: that an authorised officer may "request any person in charge of the boat to give to him or her for inspection any permit or licence issued under canal bye-laws or evidence of insurance required under canal bye-laws, relating to the boat".

A permit must visibly be displayed on the boat.

Must the licence be displayed?

It must if the boat is moored.

We can clarify it for the Deputy.

Yes, that is fine.

Amendment put and declared lost.

I move amendment No. 15:

In page 9, between lines 12 and 13, to insert the following:

“(iii) if the evidence requested under subparagraph (ii) is not available then an individual should be able to produce said evidence within a reasonable period of time as determined by bye-laws;”.

We are trying to ensure there is a reasonable opportunity to provide the evidence.

I think a measure of discretion could be looked at in the by-laws.

If the law does not provide for it, how can that be?

It could be addressed in the by-laws.

However, if the law does not provide for it, what happens if it says that it has to be done now?

It does not say that. It can be addressed.

It is in the power of the officer to require it now.

It can be addressed through that conduit. The word "reasonable" is used twice on page 9 under (iv) at line 19 and also further down at line 29. That should satisfy the Deputy's concerns.

"Reasonable" in (iv) is nothing to do with evidence of the licence or the permit. Where else is it?

It is behaving reasonably and giving direction, so it is of use. The officer may request rather than require.

However, an awkward officer could request-----

There is a distinction there, insofar as we can be prescriptive.

If one got an awkward officer-----

I think that applies everywhere.

-----the Minister knows herself what could happen. There can be a reasonable Garda and a not so reasonable Garda.

How stands amendment No. 15?

The Vice Chairman is in an awful hurry. I am getting through them fairly fast. I am pressing the amendment.

Amendment put and declared lost.

Amendment No. 16 has already been discussed with No. 14.

I move amendment No. 16:

In page 9, between lines 12 and 13, to insert the following:

“(iii) if this evidence is not available, request the person in charge of the boat to produce such evidence within a reasonable period of time and at a location as specified in the bye-laws;”.

It is all the same thing.

Amendment put and declared lost.

Amendment No. 17 has already been discussed with No. 7.

I move amendment No. 17:

In page 9, line 28, to delete “owner of a boat” and substitute “persons on canal property”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Collins, Michael.
  • Healy-Rae, Danny.
  • Ó Cuív, Éamon.
  • Scanlon, Eamon.
  • Tóibín, Peadar.

Níl

  • Canney, Seán.
  • Heydon, Martin.
  • Madigan, Josepha.
Amendment declared carried.
Section 5, as amended, agreed to.
SECTION 6

I move amendment No. 18:

In page 11, line 39, to delete "Act 2010." and substitute the following:

"Act 2010;

"Birds Directive" means Council Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds.".

We are heading into a separate element of the Bill, one which is quite controversial. The Minister will agree with me that, as a society, we have treated the natural environment poorly over recent decades. The sea around us has become a soup of plastic. There has been a massive reduction in the ecosystem and the diversity of wildlife species in it. We have seen the destruction of the natural environment in many different places. The Oireachtas has a responsibility to ensure we pass on the depth and quality of natural diversity as best we can to the next generation. We also have a responsibility to the farmers to ensure they can make a living. Some of the details in this Bill do not resolve the difficulties farmers have. We have a responsibility to make roads safe for people. Local authorities can facilitate this with the cutting of hedges and ditches to ensure road users can get through. We can achieve those three objectives but not with this Bill in its current format.

This Bill's measures will do damage to the ecosystem and the diversity of wildlife we have. We have a symbiotic relationship with our environment, being dependent on the ecosystem around us. Pollinators are one of the great examples of this. Farming is dependent on the fact that there should be decent numbers of pollinators. In-depth research in Germany and other countries has shown how there has been a stark reduction in pollinator numbers. This is an accelerating process and not something which has been occurring for years.

Today, I had the opportunity to accept a petition from several different organisations which hold wildlife in their protection. There were 31,000 different-----

Will the Deputy stick to the amendment?

----- signatures to the petition. My amendment looks to protect our wildlife diversity. We know different birds have different behavioural patterns. In Britain, studies have shown the red-listed yellowhammer breeds into September. This amendment would set a higher standard of protection for some of these animals and extend the protection of them in defined areas. It would not be throughout the country or in areas which did not have populations of, say, yellowhammers. It signs us up to the birds directive which states that member states should set out a general system of protection for birds during the periods of breeding and rearing of chicks. This amendment proposes the Minister may make regulations. It does not aim to tie the hands of the Minister in the future, just empower her or him.

This section lists the domestic primary wildlife legislation which is referred to in the Bill. Accordingly, as the birds directive has been incorporated into wildlife legislation, I cannot accept the amendment.

The birds directive specifically aims to protect all of the 500 wild bird species naturally occurring in the European Union. Concerned with their decline, member states unanimously adopted the directive back in 1979. Habitat loss and degradation are the most serious threats to the conservation of wild birds. The directive, therefore, places great emphasis on the protection of habitats for endangered and migratory species. It establishes a network of special protection areas, including all the most suitable territories for these species. Under the birds directive, every member state must report on progress to the European Commission. Our last report to the commission for the period 2008 to 2012 was submitted in 2013.

The habitats directive was adopted in 1992 to ensure the conservation of a wide range of rare, threatened or endemic animal and plant species. There are about 1,000 animal and plant species which are protected under the directive. As a member state, we are obliged to encompass these directives as EU law supersedes any domestic legislation. Accordingly, it has to be taken into account in any legislation. I cannot, therefore, accept the Deputy's amendment as it is in existence.

Has the Minister made regulations with regard to certain species in certain areas under that directive?

Yes, under special areas of conservation, SAC, regulations.

This could include extending the protection of certain areas into September for breeding. What areas in the country specifically have had such extensions?

We are finalising the designation of 430 SACs. There was a long consultation period on these and wildlife protection. There have been many misclaims by BirdWatch Ireland. There was an extensive public consultation, a protracted debate in both Houses and in no way was there a rolling back. It is a gross misrepresentation of the situation. We are seeking an evidence basis for any change and will do so in a fully transparent way. BirdWatch Ireland cited a danger to the curlew. The biggest enemy of the curlew is unmanaged or degradation of existing habitats, however. This is the scientific view of our leading expert in the National Parks and Wildlife Service, Dr. Barry O'Donoghue. My Department is spending in excess of €400,000 over the next three years on a curlew management plan in which BirdWatch Ireland is a partner. I am surprised it took this particular unscientific stance, knowing what it knows on the ground.

Regarding the petition to which the Deputy referred earlier, my Department made arrangements two months ago to receive it. That remained in place until two hours ago when I understand the Deputy received the petition and presented it to my Department.

I appreciate that. The Minister must agree that we are having this debate against a backdrop of a fairly radical decline in bird species in Ireland.

The birds are protected.

If they are declining, then they are not protected.

We as a member state take our role very seriously under the birds and the habitats directives. We have to report back regularly to the Commission on the steps we are taking to protect birds. As far as I am concerned, we are doing everything we can. Europe is home to more than 500 wild bird species, but 32% of them are not in a good conservation status. The birds directive, which came into force in 1979, aims to protect them, in so far as we can, particularly the wild species which naturally occur in the EU.

The Minister's comments jar with the fact that some bird species face extinction in Ireland.

That can happen.

It can happen but it is our job to reverse that trend and the Bill threatens the viability of-----

I do not accept that.

That is the-----

If the Deputy has concerns about specific birds, I can revert to him about them but the Bill in no way tries to put the life of any birds in a precarious or sensitive position. It tries to look after them. It does not do what the Deputy or BirdWatch Ireland claim. I do not know if he is referencing a particular species.

Curlew, corncrake, barn owl and yellowhammer are examples of birds that are under serious threat. This is a physical change to the birds' habitats-----

We had a detailed-----

Excuse me, I am not finished.

I am trying to establish exactly what point the Deputy is making.

I would like to finish a sentence.

If a hedge is cut where birds nest, feed and live while rearing the next generation, that represents a physical change to their environment. If the State then decides to extend the period during which that can happen, there is a smaller window for these species to thrive.

We had a detailed meeting with the Commission on the Bill in February 2018 and officials did not raise issues regarding the Bill with the Department. They had no concern in respect of birds.

Deputy Josepha Madigan: We had a detailed meeting with European Commission officials on the Bill in February 2018 and officials did not raise issues with the Bill with the Department. They had no concern in respect of birds.

On the issue of hedge cutting in August, we have approximately 300,000 km of hedgerow, mainly surrounding fields and properties. It is only roadside hedges that are subject to the Bill's provisions. They comprise a fraction of the total hedgerow resource that we are lucky to have. We are not of the view that birds would be affected in any way. A fact that seems to have been lost in the discussion is that when we cut hedges at any time of the year, even during the open period between September and February, it is an offence under section 22 of the Wildlife Act 1976 to wilfully destroy, injure or mutilate the eggs or nests of any bird species.

It is difficult to police that.

The provisions in the Bill relating to hedge cutting are being introduced on a pilot basis and they provide for regulated cutting on a restricted part of hedgerows in one particular month. They have a limited lifespan of two years. It is a crime to touch a nest and that offence is in existence anyway.

How many arrests have there been?

Any person cutting a hedge where there is a nest is obliged to check for nests beforehand. There are enforcement provisions under the Wildlife Acts in this regard.

I am concerned by the way the debate is going. What Deputy Tóibín is raising is not connected to what we are trying to do. The Bill is about extending the burning time by one month and extending the cutting time in August by one month. I do not agree with what he said about roadside hedges. No bird is foolish enough to make a nest on the side of a busy road and every road is busy now. School buses, plant machinery and cars taking young people to school are up and down narrow country roads. Birds do not nest in roadside hedges. I would like these hedges to be cut all year round in the interest of the safety of walkers and cyclists and of people who have valuable cars. They are trying to get up and down these roads and their cars are scratched and torn. People's eyes are nearly taken out in the evening walking on these roads.

The Deputy is trying to obstruct the legislation and is saying we are threatening birds and other wildlife but we have to consider people as well. People are our priority. There is so much ado here about safety on the roads and, at the same time, every attempt is being made to prevent us from cutting hedges. If the Deputy was interested in preserving wildlife and ground nesting birds, in particular, why not deal with the mink, magpies, hawks, grey crows and foxes? They are the guys that are hurting our ground nesting birds. It is very, very wrong to suggest that because we want to cut trees overhanging our roads and roadside hedges, we will damage the bird population around the country. I am sorry that I cannot support the Deputy's argument. I have nothing against birds but there are other ways to protect them. The Deputy will not protect them by saying we cannot cut hedges.

The Bill is about extending the burning period by one month. It has been discussed long enough. The Bill started out with the intention of dealing with the burning and cutting of hedges, especially roadside hedges, for the safety of the people travelling the roads. I cannot understand why the canals were introduced into it. Was it to cloud the issue? The farming population and road users will not put up with the conditions they have to operate under currently. People cannot get up or down any road because of overhanging trees and so on and something must be done. There is a lot of talk about stopping a fellow having a pint and a half from driving but what happens when a branch falls off a tree - and it only needs to be the length of someone's arm - and it hits the windscreen of some woman taking her children to or from school and she dies? A family is left without a mother. During the last storm, three people were killed in this way. We need to get real and talk about people. I was brought up to love animals and all wildlife but we must protect people first and that is what I thought the Bill was about. The Deputy and his party are entitled to bring another Bill relating to birds before the Dáil but he should not try to obstruct what we are at here today because time is moving on and we need to deal with the legislation.

We have a fundamental difference of opinion on the ecology we want to protect and develop in our uplands and among our hedgerows. The Minister said she is introducing the legislation as an ecological measure but how we can improve ecology by extending the burning and hedge cutting seasons is beyond me. I cite Michael Viney as my first character witness as someone who has a deep knowledge, understanding and love of Irish nature and wildlife.

In his review of the Bill he says it is beyond belief anyone could argue that extending the burning and cutting periods could be seen as an ecological advance. With reference to the uplands, the Minister indicated in her response to Deputy Peadar Tóibín on the first amendment, to which we will have to come back on several occasions, that we were doing everything we could. Our own 2013 assessment of important habitats showed that only five across the country had received a favourable assessment, 29 were inadequate and 24 had received a downright bad assessment. All uplands habitats were in that state of acute ecological crisis. The Minister says the National Parks and Wildlife Service is supportive of these measures. If she is making the case that this is a scientific measure, since there are clearly different views on the science, instead of charging in with legislation, we should conduct research. We should set out our ecological objectives.

I do not want to cut across the Deputy when he is speaking, but as we are only on the definitions section, I wonder-----

The Minister broadened it and if she does not mind, I will respond to some of the comments made.

I just want to bring it to the notice of the Vice Chairman.

Is it appropriate that the Vice Chairman allowed the Minister to introduce a wide range of topics and that when someone from the Opposition side has the temerity to question her on her sweeping statements, I am told that I have to restrict what I say? That is ridiculous.

I am certainly not suggesting that.

Is the Minister in the Chair?

No, I am not. I was only responding to Deputy Peadar Tóibín.

Deputy Eamon Ryan has raised a valid issue. I do not happen to agree with him, but it seems to come under amendment No. 19. Am I right that we are dealing with amendment No. 18?

We are dealing with amendment No. 18.

I understand it is a tool to be doubly sure the Bill mentions the birds directive. By definition, the birds directive has to be complied with because it is European legislation. It was transposed into Irish legislation through the various Acts mentioned. That is the technical issue involved and nothing more. If we could dispose of it, we could get to the meat of the issue in amendments Nos. 19 and 20 and so on and have a debate on the issues involved in good time. I suggest we dispose of these two amendments-----

I do not disagree with what the Deputy is saying, but the Minister in her response broadened it right out in such a way that I felt compelled to try to respond to the points she had made.

I certainly would not limit the Deputy's contributions.

The Minister tried to do so.

The Minister just did.

I look forward to hearing what the Deputy has to say.

I simply wanted to stick to the amendment, but the Deputy is entitled to say what he likes.

Will we stay on amendment No. 18 and amendment No. 19-----

I will come back in at a later stage.

I will press my amendment.

Amendment put and declared lost.
Section 6 agreed to.
SECTION 7

I move amendment No. 19:

In page 12, to delete lines 2 to 7.

I will return to the argument I was making. My view is this. If there is a contested scientific issue about how best to develop our ecology in these degrading and in-crisis habitats, I argue that the approach should be scientific and that scientific research is needed, rather than legislation. I have never seen circumstances where one says we will use legislation as our research tool. I would have no objection to the Minister saying she was going to engage in a major study of how best to protect these habitats, on which I have strong views. That the Minister would come in with her hobnailed boots and set out legislation, even with a break-out clause after two years, in my mind, is not the proper approach.

There was consultation which concentrated on the uplands issue. That is the section we seek to delete in this amendment. There was a very good submission made by the Irish Wildlife Trust in the consultation process. In its submission, under the heading of scientific basis, it included a quote from the Ember Project which was carried out on similar uplands in the United Kingdom - I understand on the Pennines. It looked, on a scientific basis, at the effect of burning on uplands between areas where permission had been applied for and those where it had not. People were saying the burning was justified on the basis that it was protecting the habitat of grouse. As I understand it, it was the first time that detailed scientific research and analysis were carried out which showed that there was major environmental degradation, including a change to the water table which had an effect on the stability of the peat bogs in the region, which often led to degradation of the peat boglands. There are also implications in terms of issues with run-off into water streams. There is a major effect on insect life, ecohydrology and bird life. It varies between different species. That one study alone could be presented as a case for moving away from burning as an ecological management tool on uplands.

The Irish Wildlife Trust called - rightly, to my mind - for an end to all burning. I cite as an example George Monbiot, the great English environmental journalist, who has made a real assessment of what is actually happening on these uplands, where we see that the natural state condition has been degraded and denuded of wildlife and that the process could be reversed in a way that would be hugely significant and beneficial in terms of protection and biodiversity. However, there is none of that in the Government's approach. There is just a continuation of the current system and an extension of the burning period as if it was ecologically progressive. I fundamentally disagree and would like to see a much wider, bigger vision for how we could extend biodiversity, store carbon and provide a livelihood for people, particularly in rural areas.

The Origin Green advertisement, with all of the lovely videos with violin music in the background, runs contrary to the reality that under Fine Gael there is no concern or care for the environment, of which the Bill is a symptom. There are specific concerns. The Minister says it is part of a series of protection measures to restore curlew numbers. I would love to see the scientific papers that would back that up. We have time between now and Report Stage to have a detailed argument about whether this will be a help in the fight against the extinction of the curlew, which would be of seminal significant importance in dealing with the ongoing and widespread loss of biodiversity we are seeing. I fundamentally disagree with the Minister's contention that this is a positive environmental measure. We should delete the section and not have any extension of the burning period; we should instead come up with a proper Government strategy for uplands and a different vision for how we could use them that would be in tune with a world facing climate change and shrinking biodiversity.

I thank the Deputy for his contribution. It is important to say the legislation does not abrogate the need for the directive. Birds and animals are and will remain protected. There was a successful prosecution of a case involving hedge-cutting in Monaghan in February. I also acknowledge the practicalities mentioned by Deputy Danny Healy-Rae.

On the curlew, to which Deputy Eamon Ryan referred, our expert is Mr. Barry O'Donoghue who has said burning is not suspected as a significant cause of the population decline, given that localised burning was a traditional practice on the hills throughout the time when the curlew and other species such as red grouse flourished in Ireland.

It is important, when we discuss issues as important as the natural heritage, that we do not scaremonger and that we do not use hyperbole or emotive language in place of looking at the facts. To suggest the provisions of the Bill dealing with burning will threaten the conservation status of certain bird or wildlife species is simply not a fair representation of the facts. Some 14% of the land of the country has been designated under the habitats and birds directives. Burning in any designated area is an activity which requires ministerial consent. Another fact is that it is controlled or managed burning. It is not indiscriminate at any stage or does not occur at any time anybody feels like it.

It is managed burning and it is not indiscriminate. It cannot be done whenever people feel like it, it but must be done in March, for a defined period, limited to certain regions, and with conditions advised to me by the scientific experts of the National Parks and Wildlife Service. Burning in March will only be allowed if it is carried out in accordance with very strict statutory regulations which I will make and which will be designed to protect wildlife and to conserve our natural heritage. The regulations will limit burning to the current year only. Under section 22 of the Wildlife Act, it is an offence wilfully to destroy, injure or mutilate the eggs or nests of any bird species.

The provisions of this Bill are on a pilot basis only and have a limited lifespan of two years. It is important that such things are understood by people on all sides of this debate. I want to see what can be learned during the pilot phase on the role of habitats, species management and the regeneration of burning. I would be more than happy to have the widespread involvement of all stakeholders, especially NGOs which are interested in working with my Department on the issue.

I understand that Michael Viney is not an ecologist.

He is not a bad ecologist.

In answer to the Deputy's point about Fine Gael, the year 2013 was two years after the Green Party was in Government. There is no hobnailed boot in this and there was consultation. The key phrase is "managed burning".

Can we focus on the amendment?

We are on amendment No. 19, which deals with the specific issue of burning. People have been speaking about what happened in Connemara in April and May of last year and suggesting it could become legal if we bring in this law. It would not become legal and that is for two reasons. First, it did not happen in March and, second, it was out of control burning that seriously damaged hills against the wishes of local farmers.

Fires on hills almost always start in very dry weather in the warmer months of April, May and June. If there are uncontrolled burnings and outbreaks of fire for which it is difficult to determine the reason, they do not happen in February and March. What causes fires? As the poet Raftery said in Anach Cuan:

Má fhaighimse sláinte is fada a bheas trácht aran mhéid a báthadh as Anach Cuan.

When he tries to curse the place where the accident happened, which was not Anach Cuan but Newcastle in Galway, he talks of "Loscadh sléibhe", which is still the Irish term for a mountain fire. It happened in Raftery's time but all the birds and habitats survived. I imagine that a lot of it happened from natural causes and a lot of lessons can be learned from that. Uncontrolled burning is unacceptable but normally happens in very dry weather. We have exacerbated the risk of uncontrolled burning by destocking too much, which makes the mountains very woody. When heather becomes woody it lights and the fire is a lot worse than if it had been grazed. As we saw in Cloosh last year, when a fire gets out of control, it is very hard to bring it under control because the bog goes on fire after a while. Many measures to limit this growth reduce the incidence of fire and fire damage rather than increase it. They also reduce the risk that a small fire becomes a big fire. February is not much of a month for burning in the Irish climate and nor was March this year, as snow does not burn too well. There is, however, a better chance of doing controlled burning in March, if that is the best remedy to prevent a much worse catastrophe.

Does the Minister have any statistics on the amount of controlled burning that took place this year, last year or the year before? Does she have any report of the amount of uncontrolled burning that has taken place in those years and the damage caused in each case? When such things are measured, it tends to be found that uncontrolled burning is done to control unwanted vegetation and to get rid of woody vegetation from mountains. This stops the uncontrolled burning from happening through spontaneous combustion or any other method. There is always a risk of someone coming into a rural area and lighting a fire. The Department of Agriculture, Food and the Marine recently had the temerity to penalise farmers for hills that got burned last year through no fault of their own, which are under appeal at the moment. The Department blamed the farmers but we were able to get letters from An Garda Síochána stating that no suspicion attached to the farmers, who are shareholders in the commonage, and that they were not being investigated under suspicion of having lit the fires. It is far from reality to suggest that it is the farmers who are lighting illegal fires on this hills. It is false ecology to think that this amendment will decrease burning. It will lead to a much higher risk of burning on the hills on account of all the woody vegetation there will be.

I will not support this amendment. I am one of the few Deputies present who has had responsibility for hill farms when I was manager of a co-op which had 1,000 acres of hill land rented at one stage. I lived there and worked for hill farmers for a long time and I know that they hate one thing, which is uncontrolled burning on their hills.

There has been a lot of talk about the curlew. If we want to protect the curlew where I live, it is not the burning that is the problem. The biggest challenge we face is that the curlew is a very smart bird. It nested in the islands in Lough Corrib because foxes cannot swim, but mink can, and mink are playing havoc on the islands. If we are concerned about this, we should do something about the mink. It is not controlled burning that is the problem, although nobody can justify uncontrolled burning, and I am opposed to anybody who destroys a farmer's land by uncontrolled burning.

The Minister might give us the statistics on controlled burning and how many hectares of land have been destroyed by uncontrolled burning each year.

I will have to get back to the Deputy with statistics and they are primarily something the Garda would have. I want to be clear that the Heritage Bill is not about illegal burning. The Deputy is correct about controlled burning and it will greatly reduce the chances of wildfires taking hold in upland areas. Large areas of unmanaged heather or gorse are not good for biodiversity and provide fuel for wildfires during dry spells, and that is what we saw happening last year. Storm Emma hit at the start of March this year, and just up the road in Northern Ireland, burning is permitted throughout March, and in upland areas it is allowed up to 15 April. This Bill would bring us in line with other jurisdictions like Scotland, England, Wales and Northern Ireland, as I mentioned.

There are benefits to managed burning. The old growth strands of heather and woody stems cannot be managed by grazing, for example. It helps to create a diverse mix of habitat, both open and closed, a canopy of Calluna or heather, and it is of benefit to species like grouse and the hen harrier for ground nesting. There would be open areas for grouse for rearing chicks. New heather growth is essential for grouse rearing chicks, who feed exclusively on Calluna shoots. Other upland species, such as golden plover, mountain hare, lark and meadow pipits all benefit from the diversity created by managed burning. Unmanaged burning over long periods, in contrast, results in extensive upland areas seeing irreversible change to habitat. For example, heather growth would be replaced by purple moor grass, and this change displaces species like grouse and the hen harrier.

Burning during the months of April, May and June will destroy all ground-nesting birds and their chicks, and small mammal and lizard populations are also seriously impacted by this. The high densities of breeding curlew do not arise from burning but rather because of predator control and an abundance of habitat. Nonetheless, it shows that if managed properly, with due regard for timing and location, burning need not impact breeding curlew territories. The task force stakeholders in this area include the National Parks and Wildlife Service, the Department of Agriculture, Food and the Marine, BirdWatch Ireland, Bord na Móna, farmers and individual experts. I thank the Deputy for his contribution.

Most of us in the room would probably agree the major problem is uncontrolled burning and the damage it does in the months indicated. Last May we saw really large fires take control of the landscape. It would be interesting to know what responsibility the Department has in preventing such fires. Last year or the year before there was only one application for a licence for controlled burning in the State but there were 70 cases of burning outside of that. Unfortunately, we are dealing with the top of the iceberg to a certain extent and we must deal with the rest as well. There is no doubt there are major concerns about the management of landscapes and ecosystems. There has been a radical deterioration in the health of particular species. In 1999, 18 species were on the red or endangered list but now the number is approximately 25. There is a problem we must recognise as an Oireachtas.

We are getting away from the Bill.

I ask the Minister to consider the uncontrolled burning. She should also consider that some species nest in upland areas in March which are threatened by the Government's proposal.

The Minister referred to our time in government. According to recent Central Statistics Office data, environmental protection annual spending was approximately €600 million per year before our time in government, and during our time in government it averaged over €1.1 billion. Since Fine Gael has taken power, it has dropped to an average of approximately €400 million, or a third of what it was in our time. I am proud of that record as we have paid serious attention to the need for environmental protection.

I agree with those who said earlier that the real problem is uncontrolled burning but in this legislation we are throwing matches around the country up to March. How will one tell when there is smoke on the mountain if it is a legal fire or uncontrolled? Currently, we can tell that any fire at that time would not be appropriate. We are giving an effective carte blanche for uncontrolled burning to take off earlier. In a world of climate change, there may be circumstances not seen this year where there could be a very dry early spring and uncontrolled fires could take off. We are throwing petrol on the flames because we do not have a National Parks and Wildlife Service that is fit for purpose. In resourcing enforcement, we must address that service. We are not only throwing matches around but we are doing it without having any real fire protection procedures or resources. For all those reasons it would be far better to do the research.

It is true that the loss of the curlew is complex. I argue much of it is due to habitat loss, particularly from peat extraction in what were traditional wet and marshy upland areas best suited to the curlew. From an ecological perspective we consider the entire system and we should examine uplands in an holistic fashion as a connected system. We should design them for maximum biological protection. An extension of the burning season does not in any way support that. The Minister has slightly changed her comments. She started by saying this would be good for the curlew but it is not. The loss of the curlew may not just be due to upland burnings but it certainly will not help. The continuation of the current practices and system leaves a lack of attention to the fact that our uplands environments are seriously degraded and not meeting ecological imperatives. We should be doing this in a much broader and more holistic way rather than just extending the burning season, which does nothing but bad things in my mind.

Does the Minister refute the findings of the report from the UK presented by the Irish Wildlife Trust? The main reason she set out for the burning practice is to allow for grouse or other bird management by cutting back heather. It would seem there is a significant UK study indicating that is a false scientific argument and we should change our policy on that basis.

I have never heard of a controlled burning getting out of control. Normally the rules are so stringent that cannot happen. We need to get to the nub of this and we have a problem with overgrowth on the hills. Some of that is due to overly prescriptive destocking. The question is how to control this vegetation that is highly lethal in very dry months. Is it better to have a controlled system of "a stitch in time"? We know controlled burning does not get out of control but uncontrolled burning does all the time.

We inherited from previous generations a fantastic ecology in the hills. European grants initially upset that because of overstocking and we tried to rectify that but it was like a rocking boat and it fell the other way in certain cases.

All sorts of things were changed and many of them by outside forces. I have spent a long time working with farmers. Rather than bringing a very narrow science, for generations they developed a management system that balanced everything, including wildlife, ecology and the birds that we all value. I often think that if we involved farmers more, and took more of the old advice that gave us the ecology we have then we would have a better set up. Instead, we lurch all over the place bringing in laws without consulting the one group of people who really understand the interlacing of everything in their areas and we often, in my view, do more harm than good.

I live in the hills of Connemara. I do not own land myself and it is a long time since I had responsibility for farming in the west of Ireland. Living in Connemara and working with farmers every week and every day I know there are virtually no farmers who want to destroy the ecology of their hills because they live off it, want a mixed ecology and want to protect wildlife. They will recognise controlled burning taking place now and again as being preferable to the alternative that they will get, partly through nature and maybe through other people lighting fires on their land or neighbouring land, which is uncontrolled burning. I reiterate what I have said before. People have totally misrepresented the issue here. All I keep hearing from people who oppose this proposal is about uncontrolled burning. The proposal was made to control uncontrolled burning and I believe that the section should remain in the Bill.

I shall allow Deputy Danny Healy-Rae to make a brief comment because he will have another opportunity again.

I agree with the reasons that the Minister gave for extending the burning season for the month of March. I agree because those are the very reasons that I stated so many times when I was a member of Kerry County Council and since I was elected a Deputy and became a member of this committee. I agree with the Minister 100%. I do not have the time to go through it all and I shall not because she said it perfectly.

I want to say to Deputy Ryan that farmers are not criminals.

I am not saying they are.

I depend on them to obey the rules and regulations. The way the system has been set up for the past number of years has meant that they could not burn in March. However, they could not burn during February because the areas were drowned in water. There has been a lot of rain this year but we hope the weather will improve next year.

In terms of uncontrolled burning, it was not all done by the farmers who owned the land. It came from outside and for different reasons. Uncontrolled burning took place in March because it was illegal to burn after the month of February. When places are overgrown they become useless. In addition, one cannot burn anything in May and June so one must wait another year. That is what has happened for the past eight to ten years. When such places grow out of control then fires happen, which are uncontrolled. We want a control system where farmers can burn in March. Please give them the extra time.

Deputy Ryan has made a great case for a soft border in the Dáil but at the same time he wants us to be different in the South. Farmers can burn above the ditch in the North of Ireland until 31 March and, in some hilly areas, as late as 15 April. Why make a different case for farmers in the South? I am a farmer and so are the men seated in the Visitors Gallery. Many people are watching what we are doing here today at this meeting. It is only fair and right that we extend the burning season for a month, which is the least that we should do for the farmers whom we represent. I ask members to support that part of the Bill. I also ask that people are allowed to cut roadside hedges all year around. We want burning to be legal in the month of March. Farmers are not criminals and they do not want to be. Farmers are the best custodians of the land. They know how to mind their land because it has been handed down to them or a lot of money has been paid for it so they want to do the best they can with it.

Can I speak briefly?

Very, very briefly.

No. This is an important debate.

I know. Very briefly.

First, this is not a rural versus urban matter because there are uplands and hills in Dublin. I was involved in setting up the Dublin uplands management scheme so such management is an issue for people in Dublin as much as it is in County Kerry. I grew up in west Cork and spent time there with my grandparents who lived in the area. I have childhood memories of seeing gorse being burned on the hills near where they lived. However, one moves on and learns. I read the advice provided by Teagasc and the latest advice is not to burn gorse. Recently, I attended a meeting of the Wicklow Uplands Council. They are good people and they said that bracken must be burned due to all of the woody development. Again, the latest research from Teagasc is not to burn bracken. As the Minister has said, the provision relates to burning heather in uplands.

What does he propose we do with it? One cannot cut it with a forest harvester or mow it.

The first thing I would like to do is pay those very farmers well for managing the upland ecology.

The Government has not given farmers a few extra bob to assist with the fodder crisis. Where will the Government get the money? We are not leprechauns and we cannot provide money like that for farmers.

That is what we should be debating. Things change and move on. As Deputy Ó Cuív has said, we need to think about how the scheme will work for farmers so that we protect the ecology and provide income for rural people. I do not believe we would do that by extending the burning season, continuing with the current ecological approach, which sees all of uplands degraded; the National Parks and Wildlife Service do not have the proper resources. If the Government presented a Bill where one would resource the proper management of the 25,000 ha that are burned every year then the initiative would be credible. There is none of that. All there is a simple extension that will do nothing but harm.

Killarney National Park on its own comprises 26,000 acres of land in Kerry and the estate managers cannot control the rhododendrons not to mind-----

Did Deputy Ryan mean 25,000 acres or hectares?

If 25,000 ha were burned last year-----

It was not last year. It was a number of years ago.

Then based on what Deputy Tóibín has told us, as much as 99.9% of such burning was illegal and will not have its status changed by this Bill.

It would-----

Therefore, the Deputy made a moot point and it has no relevance.

It is because Fine Gael is putting out a signal that people can burn.

If anything, allowing controlled burning where the heather has grown to a point that one cannot control it any more and it is just woody, will reduce that 25,000 ha not increase it.

A final comment, Minister.

I can respond to all of the comments made by Deputy Ryan but I do not want to create a Green Party versus Fine Gael debate.

The Minister started it.

I could mention all of the things that the Green Party did not do, which my predecessor tried to address and I am trying to address but I shall not go into that now. It might be beneficial to reiterate that the main reason for the burning provision is to allow people who manage land to burn, for proper land management purposes, in March where, for example, poor weather has prevented this. Storm Emma hit this country on the last day of March. The provisions of this Bill seek to allow for this while taking into account all of our responsibilities to protect our natural heritage and wildlife. If the Vice Chairman wishes I can outline the number of issues that will be addressed in the regulations but if it is unnecessary I shall not do so.

We have discussed this issue a lot. How stands the amendment?

The amendment is in the names of three Deputies but I wish to press the amendment.

As full membership is present, we will proceed with the vote.

Amendment put:
The Committee divided: Tá, 1; Níl, 7.

  • Tóibín, Peadar.

Níl

  • Canney, Seán.
  • Collins, Michael.
  • Healy-Rae, Danny.
  • Heydon, Martin.
  • Madigan, Josepha.
  • Ó Cuív, Éamon.
  • Scanlon, Eamon.
Amendment declared lost.

As it is now 4.15 p.m. I propose that we conclude business. We will be in touch with members with a view to agreeing a time to complete the committee's consideration of Committee Stage of the Bill. Is that agreed? Agreed.

Progress reported; Committee to sit again.
The select committee adjourned at 4.16 p.m. sine die.