Amendments Nos. 23 and 24 are alternatives to amendment No. 22a. Amendments Nos. 22a, 23 and 24 will be discussed together.
SECTION 15.
I move amendment No. 22a:
In page 12, lines 41 to 43, to delete subsection (2) and substitute the following:
"(2) The maximum duration of a licence shall be 5 years.".
Subsection (2) provides that an aquaculture licence shall be perpetual or for a period not exceeding 20 years. The Minister of State's amendment proposes to remove the word "perpetual" so a licence can be granted for a period of 20 years. I put down this amendment so we could discuss this matter.
People who invest in aquaculture and salmon farming commit substantial finances to the venture and, in many cases, they depend on institutional borrowings. I accept that the normal commercial period might run to 20 years. It would probably be difficult to get financial institutions to support a proposal for the establishment of an aquaculture enterprise if it only had a licence for a short period so there is logic in having a 20 year licence from a commercial point of view. However, from an environmental point of view and with regard to the development of the industry, the introduction of new techniques and scientific progress, if a licence is valid for 20 years it would not facilitate the necessary introduction of new scientific developments which might be beneficial environmentally or in other areas.
The amendment suggests a five year period but ten years might be more reasonable. Why must the licence be for 20 years, aside from its benefits from the point of view of commercial financial institutions? Was that the only criterion applied to this decision?
There are four possibilities before us. The first is the time period provided for in the Bill, which is that a licence can be granted in perpetuity or for a maximum period of 20 years. There is the proposal in my amendment that the licence may not be issued in perpetuity but for a maximum period of 20 years. Deputy Molloy proposes that the maximum period be five years while Deputy Smith proposes that the minimum period of a licence be 20 years.
Under the 1959 Fisheries (Consolidation) Act, fish culture licences may be granted as often as the Minister thinks fit. That Act is silent on the duration of licences. The 1980 Fisheries Act prescribes that aquaculture licences may be terminable or perpetual. In practice, licences have been granted for a range of periods although since the establishment of the Department of the Marine in 1987, the practice has been to grant licences for ten years. On reflection I believe there is a strong case, first, to provide a licensed time frame with ministerial discretion to grant licences for a period up to and including 20 years and second, to delete any provision for perpetual licensing which is perhaps too open and generous. A licence of up to 20 years duration is sufficient to underpin investment and jobs with provision for renewal on expiry.
In relation to the issues raised by Deputy Molloy, there is provision where if there are technological developments within the 20 year life of a licence an application can be made to vary the terms of the licence——
Is that by the applicant or the Minister?
By the applicant. The Minister has discretion to vary the terms of a licence or to withdraw it if needed.
What section provides for that?
Section 68 deals with the revocation or amendment of aquaculture licences. Section 70 deals with the review of licences.
In practice, does the Minister foresee that a licence could be revoked because of the development of new technologies and the scientific discovery of a cleaner more environmentally friendly manner in which to carry out fish farming, and salmon farming in particular? Does the applicant have legal rights to retain the licence he would have received if he complied with all the conditions? One could foresee a challenge in the courts if the Minister sought to revoke a licence that had been legitimately given and adhered to. Under the sections mentioned by the Minister alteration and revocation of licences is possible. Legally, these sections give the Minister carte blanche only in certain circumstances. Even if the terms of the licence are fully complied with, he has the right under these sections to revoke and fundamentally alter them.
Three situations can arise here. First, for example if there is some technological development, the licence holder can apply for a review of the licence. Second, if the licence holder does not comply with the conditions set down in the licence — and as Deputy Molloy will recall, the licensing authority is required to consider and have regard to a whole range of situations, including environmental ones, before making a decision on a licence — the Minister may ultimately revoke the licence if necessary. Third, under section 68(1)(c) the Minister may, if he considers it in the public interest, revoke or amend a licence. In those last circumstances, the question of compensation arises but not in the others.
Why is the licence extant for 20 years? Many of the cases I have referred to relate to salmon farms but the Bill makes no distinction between shellfish and finfish.
I propose that the duration for which a licence may be issued may be up to and including 20 years. There is discretion to issue licences of shorter duration. We are trying to achieve a reasonable period of time within which an enterprise can make plans and investment while at the same time not leaving the period of time open-ended.
Twenty years is a reasonable period to set down. The existing provision under the Fisheries (Consolidation) Act, 1959, and the Fisheries Act, 1980, is open-ended, although in practice the licences issued in the last ten years have been normally of ten years duration.
It is a question of judgment as to what is a reasonable licensing period to provide some security for the industry, to protect jobs and enable someone who is getting into aquaculture, whether finfish or shellfish, to make reasonable plans. Someone who wants to start an oyster farm or grow mussels, needs to be in a position if he goes to a financial institution, to say for what period of time he is likely to be licensed. It is a matter of judgment and I think 20 years is a reasonable period.
When one applies for the licence and all the criteria are met including the conditions outlined by the Minister in terms of dealing with lending institutions, planning investment, carrying out research and penetrating the market, in most businesses whether we are talking about major types of industrial development, agriculture processing or hi-tech, all of which must meet strict environmental standards, investments are made in environmental impact statements. Why should this type of business be treated differently when it meets the criteria laid down? You need a longterm commitment and investment in marketing; you need to ensure it is a profitable concern. Why does the Minister of State want to treat it differently?
My amendment seeks to allow licences to extend beyond 20 years, after consultation, and even allows for changes to be made within 20 years if new information comes on stream. Would the Minister of State not agree that is a more long-term and safer type of circumstance in terms of the heavy investment that has to be made?
There is provision in the Bill for a licence to be renewed on the expiry of the licence period. If one takes an operation which has a licence, is complying with the conditions set down in that licence and is functioning well, that operator can apply under section 19 for a renewal of the licence. There is a consultation process. I would not envisage there would be an enormous difficulty in renewing a licence where conditions are being complied with and where the operation is being managed and operated satisfactorily.
We must try to have a reasonable period of time within which somebody who is engaging in aquaculture can plan their business, make financial arrangements, commitments and investment and know that if they get a licence and comply with its conditions it will last for a reasonable period of time with the possibility of it being renewed after the expiry date.
The alternative would be some kind of open ended arrangement which I would not favour. It is not reasonable that there should be an open ended licensing arrangement for an activity that is engaged in for the most part at sea, which is a common resource. It is better to have a reasonable time frame which will allow the operation to be planned and a licence which is capable of being renewed and, of course, controlled as regards compliance with conditions.
There are many types of industry, ranging from mining to hi-tech, all of which should meet strict environmental standards. Which one of those, in making a substantial investment, will be told that this is, in effect, a temporary arrangement and that while they may be able to continue after that period "we are not saying you can"? To what other industry would the Minister apply those conditions? Why then should this industry be treated differently, assuming it meets the stiff criteria being laid down?
I am not sure the most productive way of dealing with this is by making a comparison with mining or any other type of operation. This particular industry has a relatively short history. It is fair to say that quite an amount has been learned over that period of time about the development of the industry, its environmental impact and the way it should relate to various regulatory State agencies.
We are dealing with the licence period. Various issues must be addressed. Should the licence be issued for a maximum period? In the existing legislation there is no limit but in practice the Department has been issuing licences of ten years' duration. The case has been made to us that the licence should be of longer duration. It would be possible to insert in the legislation a provision that it could be open ended. That was provided for in the Bill as originally presented.
A substantial number of representations were made to me stating that it was not desirable for one to have an open ended provision. I agree with that and it is a question of fixing the maximum duration for the issuance of a licence. It seems to me that 20 years is a reasonable period of time. It is capable of being renewed. It is a period of time within which the industry can plan and invest. Reason must prevail.
One must put oneself in the licensing authority's position where licence applications are submitted and the authority addresses issues that arise. It is difficult to see beyond that 20 year life span and try to set down conditions which would extend considerably beyond it.
I do not know if Deputy Smith is suggesting there should be an open ended arrangement. I do not agree with that. There is a menu of options ranging from a maximum licence of five years, suggested by Deputy Molloy, to the perpetuity arrangement which is the existing legislative provision to some more reasonable period which is the 20 year provision. That is as good as we will get.
We established the Environmental Protection Agency which has certain responsibilities in terms of monitoring the industry generally. We try to ensure that longterm investments are made across the board and we insist that strict environmental criteria must be met. There are difficulties in having it open-ended and that is why conditions and criteria must be laid down. However, a person will continue to do something until they are told it is wrong.
I understand there is a time limit on many of the licences issued in the environmental area. When they come up for renewal, they are reconsidered and re-examined. Deputy Smith's hypothesis is that if a person gets a licence, they can carry on indefinitely unless someone says they are doing something wrong. It is in everybody's interest that the licence be for a finite period of time and that the licence holder knows he or she must apply to renew it when the period of time expires. That applies its own discipline in relation to compliance with conditions and so on.
It is also important that the licence is for a sufficiently reasonable duration to allow the licence holder to plan and run their business in a normal way and to secure employment, finance, etc. It is a question of what is a reasonable period of time. If we suggest that a maximum period of time should be laid down, then it is a matter of deciding what that should be. No argument has convinced me that 20 years is not an appropriate period. I do not accept Deputy Molloy's argument that it should be five years because that is far too short. Nobody has argued that it should be 25 or 30 years because that is better than 20 years. In the absence of any argument to the contrary, I continue to favour 20 years.
I want to bring this discussion to a conclusion.
My suggestion that the maximum time-scale for the operation of a licence should be less than 20 years is to accommodate changes in technology. The Minister has not addressed that issue. He referred to section 68 which states that the Minister of the day can amend a licence "in the public interest". The Bill does not define "public interest" or who decides what is the public interest. Does "in the public interest" require a licence holder to change his operation to take account of new technologies? It may involve locating the salmon cages further out to sea, which might be deemed more environmentally friendly if new technologies were developed to make that economically viable. These might include developments in land based rather than sea based operations. In the event of more environmentally friendly methods being designed, would the Minister consider it in the public interest for the Minister of the day to have power to amend the licence and to require that new procedures and technologies be put in place?
The industry is spearheading advances in technology for obvious reasons. That is supported by various State research agencies, such as the Marine Institute, BIM, Taighde Mara, the universities and regional technical colleges. Deputy Molloy wants to know what will happen if a licence is issued and changes take place in technology over the 20 years. There are a number of ways to deal with that. First, changes in technology can be anticipated and provision made for them in the conditions attaching to licences. Second, if there is a change in technology, the licence holder can try to have the licence reviewed after three years. Third, there is provision under section 71 whereby the Minister may make regulations for the management and operation of aquaculture. Those regulations could, for example, arise from changes in technology. Fourth, there is provision under section 62 whereby the Minister may give policy directives which might be driven by changes in technology. Fifth, there is provision under section 68 whereby the licence may be revoked or amended in certain circumstances.
In what circumstances?
If, for example, there was a serious outbreak of disease on one or more farms it would be open to the Minister to revoke the licence in the public interest. If aquaculture was being undertaken in a particular area which could be used for alternative purposes, it might be in the public interest to revoke the licence. There are any number of such possibilities.
Where there are changes in technology, such as in industry or any economic activity, it is open to the applicant to submit a fresh application for a licence if that is required. There are several ways in which technological developments are anticipated in the Bill's provisions. I do not regard that as a major difficulty.
Under section 62(4) the Minister may revoke a directive.
The Minister of State has given a full explanation of the possibilities for altering a licence. I hope his approach is indicative of the operation of the Bill by his successors in office.
Amendment agreed to.
I move amendment No. 23:
In page 12, subsection (2), lines 41 and 42, to delete "perpetual or".
Amendment agreed to.
Amendment No. 24 not moved.
Section 15, as amended, agreed to.