I move amendment No. 8a:
In page 8, subsection (3), line 27, to delete "may be subject may include" and substitute "will be subject will include".
Where conditions are laid down, the person to whom the licence is being granted should be obliged to comply with the conditions. The wording of this section states that they may be subject to certain conditions compliance with which should be mandatory.
My difficulty with this amendment is that it would make all of the types of conditions proposed mandatory. It is important that the licensing authority would retain discretion in deciding what conditions should be applied to individual licences. As applications will be dealt with on a site by site basis, this discretion — which is a long established practice — will be crucial in order that conditions circumscribing licensed operations can be tailored to individual sites and operations. Doing away with the discretion in the application of subsection (3) (a)-(k) would mean applying feed input conditions to a shellfish operation when, as Deputy Molloy has acknowledged, shellfish are natural feeders in the wild. Not all the conditions are applicable and discretion would have to be exercised as to what types of conditions are applicable to what type of operation and site. The Bill provides for the range of conditions which may be included.
There is obviously a difference in the conditions applying to shellfish licences as distinct from salmon farm licences in relation to finfish. When one looks at the requirements that have to be taken into consideration as regards finfish, it is difficult to imagine how any of them could be left out. Perhaps the section needs to be rewritten laying down specific conditions for finfish and shellfish separately.
There is now a broad definition of aquaculture and making certain conditions mandatory ties people up in crazy irrelevant knots. On section 62, would it be possible to issue a directive that, where feed inputs are being used in finfish farming, all these conditions are then applicable? Presumably they would be, but can this be written in?
It is important to understand that section 7 simply gives power to the licensing authority to set down conditions. It does not confine the conditions to the ones listed in subsection (3) which states that, without limiting the generality of subsection (1), conditions to which an aquaculture licence may be subject may include or relate to any or all of paragraphs (a) to (k). Which ones, the amount and to what extent will depend on the operation for which an application is being made and the site.
This is not an area where broad policy directives can be made. It is driven by the circumstances which arise in individual sites and applications, which may be highlighted by objections, comments or observations which may be raised by third parties. Conditions may also be attached to a licence by the appeals board. The provision is to legislate for the making of conditions. It is not confined to the list in section 7(3), which sets out the types of conditions envisaged, which will vary from site to site and application to application.
They are all basic requirements which the Department considers necessary in any licences they issue. How can it be suggested that the conditions will not be mandatory? How can any of the proposed conditions be left out — to provide a specific map of the area, the amount of feed inputs, operational practices including the fallowing of sites? It must surely be necessary to have conditions of this kind included in all licences — the reporting of incidences of disease, the disposal of dead fish. These are all essential requirements which have not been adequately covered in licences which have been issued heretofore.
This legislation is bringing us up to date to facilitate the growth and expansion of the industry under proper controlled conditions. I would have thought that the Minister would see a necessity to have a mandatory obligation to include these requirements in any licence issued, certainly in relation to finfish. I can see the necessity to distinguish between shellfish and finfish, but I am referring specifically to finfish, fallowing etc.
Deputy Molloy is raising an issue which is not real. I cannot envisage a licence being issued without attaching conditions such as a map of the site, the extent of activity or smolt input in the case of a finfish operation, the amount of seed etc. In his amendment, Deputy Molloy is looking for a requirement that all of these types of conditions would have to be attached to each licence. This is absurd in some cases. For example, how can there be a condition on the amount of feed inputs in the case of mussels or oysters? What sense would it make to have measures for the prevention of escapes of fish in the case of oysters or mussels on a long line?
The Minister heard me. I said that perhaps the section needs to be rewritten to take account of licences for shellfish as distinct from those for finfish. I am referring specifically to what is listed in section 7(3) as it applies to finfish. There is no point in wasting our time talking about the disposal of dead fish when we are talking about shellfish.
We spoke about raising smolts on land, finfish in the sea, mussels, oysters and shellfish of all types. I can see variation of those coming into play in different licences. For some the map specification is obvious, for example, for someone using a pond or in the case of mussels. The distinction between the different types is not black and white. In the directives, it should be possible to say that where feed is being used or whatever, it will be obligatory to impose conditions. The policy directives should include directions as to minimum conditions required in different fish cultures. There are so many that a huge tome would have to be written to cover all the possibilities. As regards finfish in the sea, there is a need for minimum requirements to be laid down in a general directive.
What is the public interest — is it national, general or local? Section 7(1) states that the licensing authority may license a person "if satisfied that it is in the public interest to do so." This is a contentious issue. Sometimes local people are told it is in the national public interest to do the opposite of what they want locally. Which public interest predominates — national or local? Can the Minister see a conflict between both of these?
That is what a democracy is all about — concluding the public interest through public discourse and democratic debate.
When a licence is issued it will contain conditions as appropriate to the application — area, size of operation, controls to be exercised etc. There a number of ways by which a requirement can be placed on applicants to meet those conditions or set out their application which addresses the condition requirement. For example, regulations will be made in relation to the type of applications to be made and what is required in an application map and all the other information on smolt input, feed, escapes, controls of fallowing etc. Similarly, it is possible under the Bill to make regulations governing the operation of aquacult�re. Deputy Molloy seems to be afraid that some kind of unconditional licences will be issued but that clearly is not the case at present and will not be the case under this legislation. The difference between us is whether we should set down in absolute terms in the primary legislation the conditions which must apply in each and every case, or whether a degree of discretion is to be given to the licensing authority. Bear in mind that there are two stages to the licensing process; first, the initial decision by the licensing authority and, second, the appeals mechanism. That is also the case in relation to planning where a degree of discretion is given to the authority to decide on the conditions which apply in particular cases. That is the way it should be. This list was never intended to be an exhaustive one and if there are suggestions as to possible additions I am open to them. If Deputy Molloy and Deputy Smith have suggestions in that area I will be quite happy to consider them.
Deputies should ask all their questions at the same time because we will not make progress on the Bill if we just have a rehash of questions on questions. I will give Deputies Molloy and Ó Cuív the final words on this as it is getting repetitious.
I have made it clear that I see a difficulty in seeking to relate this list of conditions to a shellfish licence. The section needs to be fundamentally rewritten to make it apply generally to cover shellfish and fin fish. Having said that, I am principally interested in the fin fish licences. It is difficult to imagine a licence being issued without these requirements being part of the conditions. As the section stands, however, the Minister could issue a licence without requiring any information or conditions in regard to the matters listed which include essential items like fallowing, reporting of disease, the disposal of dead fish, measures to prevent escapes of fish and arrangements for reporting escapes. It is essential that such matters be covered in any licence but as the section is written they may or may not be covered. My amendment merely seeks to make sure they would have to be covered.
If an appeals board was to allow things like that to go through there would be a few resignations from the board. I do not have any problem with that aspect of the section but I want to raise two brief points. First, if these conditions are laid down will we have an inspectorate to enforce them? There are more regulations being laid down in law nowadays than are enforced. There needs to be provision for a proper inspectorate to make sure these regulations are adhered to. I would prefer to have fewer and simpler conditions laid down and applied rather than millions of conditions which will not be applied.
Second, will the Minister of State clarify the public interest issue, which is a big one? Does local public interest have a place in determining public interest? There is a feeling, certainly in the western communities, that the "national interest" always seems to override local public interests when it comes to making decisions that affect their areas. We need clarification on that issue. When we talk about the public interest are we talking about the so called national public interest? In the weighing factors, where does local public interest come into play? That is a bigger issue than many people appreciate.
We are getting into the area of speculation.
No. If it is not clear it should be clarified.
The Deputy has asked that question three times.
He did not get an answer. I raised it on Second Stage and did not get an answer either.
I did not get an answer.
The Minister of State will reply a fourth time and I will then put the question.
Maybe we will get a clear answer this time.
There are two questions. First, if a "mad" licence was issued with no conditions attached to it by the licensing authority there is an appeals board to deal with that. If, on the day it heard the case, the appeals board was high on whatever it is Deputy Molloy thinks the person dealing with the Bill is inhaling, it would appear to me that there was an open and shut case for a judicial review. That scenario does not arise in the real world.
Second, Deputy Ó Cuív's point about what is the public interest and to what extent local and national considerations are balanced against one another in determining the local interest, is the kind of topic that could keep us here for a very long time. The only thing I will say is that in relation to this legislation mechanisms are provided for the resolution of those issues. In the first instance, in making a licensing decision there is provision for observation, objections and considerations to be made. At a later stage I will deal with the consultative process involving various statutory bodies which must be engaged in before a licence decision is taken into account. Clearly, local considerations are part of that. For example, these include the considerations of the local authority, which is consulted, as well as the regional fishery board and tourist interests which are taken into account. Community interests are also reflected in the objection process. Similarly, the appeals mechanism is there to examine and consider different points of view put forward relating to a licence application. In relation to the general operation of this legislation there is, of course, the normal accountability of the Minister in relation to policy issues and regulations made under this legislation to the House and its committees. The public interest and the extent to which local considerations are taken into account in determining the public interest are determined through the mechanisms set down in the Bill.
Amendments Nos. 9 and 9a, which is an alternative, may be discussed together.
I move amendment No. 9:
In page 8, subsection (3)(e), line 36, after "disease" to insert "and the presence of parasites".
This deals with one of the conditions we have been discussing. The provision in the Bill as presented is a requirement. The condition relates to the reporting of incidence of disease. In addition, I propose to add the words "and the presence of parasites". Representations have been made to me by angling and tourism interests on this point. This amendment provides that an obligation can be imposed on, for example, salmon farmers to also report on the presence of parasites such as sea lice by way of a licence condition.
As regards applying a condition providing for specific measures relating to the control of disease and sea lice — which is a parasite infestation as opposed to a disease — I have strengthened the conditions which may be applied to specifically include reports on the presence of sea lice.
As the Minister's amendment meets my objective, I will withdraw my amendment.
I move amendment No. 9a:
In page 8, subsection (3)(e), line 36, after "disease" to insert "and specific measures relating to the control of disease including sea lice".
Amendments Nos. 10 and 11 are related and may be discussed together.
I move amendment No. 10:
In page 9, subsection (3)(j), line 2, after "heritage value)" to insert "and the control of discharges".
This amendment would impose a broader obligation on licensees and particularly on fin fish farmers to monitor the effect of their operations on the area beneath and adjacent to sea farm cages to include environmental and biological monitoring. Amendment No. 11 would provide a specific power to regulate discharges from individual licensed operations, such as salmon sea farms, in the interests of environmental protection.
I move amendment No. 11:
In page 9, subsection (3), line 3, to delete paragraph (k) and substitute the following:
"(k) appropriate environmental, water quality and biological monitoring.".
