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Select Committee on Enterprise and Economic Strategy debate -
Wednesday, 26 Mar 1997

SECTION 73.

Question proposed: "That section 73 stand part of the Bill."

Will the Minister of State consider the question of two months? I am informed that six months has been allowed in other cases.

I indicated that I was prepared to consider that matter. While I do not wish to give the impression that I will automatically consider a period of six months, I will look at the period of time.

Question put and agreed to.
SECTION 74.

I move amendment No. 42:

In page 36, subsection (1), lines 45 and 46, to delete "(other than for stocking or restocking purposes)".

Amendment agreed to.
Question proposed: "That section 74, as amended, stand part of the Bill."

This section refers to applications received before the legislation and the section are brought into force by the Minister of the day. How many applications are with the Department?

Approximately 800 applications have been made, the vast majority of which relate to shellfish. Only a small number of fin fish applications are outstanding. One of the defects of the existing legislation is that there is no finite time within which licence applications must be determined. This means that if somebody lodges an application for oysters or clams, the application just lies there. In some cases the applicant is not actively pursuing the application. However, it remains there as a form of stake holding.

Section 74 provides that all such applications will become applications under the new legislation and must be determined within a fixed period. It will quickly establish whether there is a real intention on the part of the applicant to proceed with the application. In any event they will be brought to a conclusion. The section provides for a transition arrangement whereby existing and current applications which are being actively considered in the Department will become applications under the new legislation. The terms of the new Bill will be applied to them and they must be determined within a fixed period. The section will also distinguish the serious and active applications from those which are just staking a claim.

There was some misunderstanding that the 800 roll over licences would not be covered under the Bill. However, it is obvious they will be. From the date on which the section is enacted, the 800 applications will become applications under the new legislation and they must be determined within the timeframe laid down in the Bill. There is no question of an out for the roll over applications.

No. All the applications made before the Bill is enacted, which have not been determined before the legislation is put into operation, will become applications under the Bill. The legislation will apply to them and they must be determined within the timeframe.

If some of the 800 applications have already commenced operation, they will no longer be valid after the section is enacted because they have already started.

That is what the Bill states.

No; there is a distinction. Applications which have been made will be determined under the Bill. They will not be prevented from determination under this legislation. The manner in which they are decided will be the manner provided for in the Bill.

The legislation states, in relation to a person who makes an application for a licence who has already commenced operations, that the application may be received in the Department but it will not be accepted as a valid application. Where do the provisions of section 11 stand if the Minister of State will legalise perhaps all 800 different cases, which could be in operation illegally at present, and consider them legitimate applications for licences? That discredits the legislation to some extent.

Deputy Molloy is jumping four steps ahead. This involves licence applications which have been made. For a variety of reasons, some of them have not and will not be decided by the time the legislation is enacted. They fall into a number of categories. The first category includes active licence applications which have been made and are under consideration. They will roll over into the new legislation and be determined in accordance with the new Bill. They can be subject to appeal and all the other provisions of the Bill, including the new penalties regime, etc.

The second category of applications are those which, for various reasons, are not active. The applications were made but they are just sitting there. There is no great pressure from the applicants to have the application determined.

What does the Minister mean by "active"? Does he mean already in operation?

No. They are neither in operation nor, from what we understand, does there appear to be an immediate intention on the part of the applicant to commence operations. Some of these applications are many years old.

The Minister said "active" in relation to the first category. The applications in the second category are not active. What does he mean by "active"?

When I say "active", I mean they are under active consideration. At some point in the process they may have been advertised or put before the aquaculture licence vetting committee but, for normal processing reasons, they will not have been determined by the time the Bill is enacted. Those applications will roll over and become applications under the new legislation. They will be determined under the new legislation and its terms will apply to them.

When one considers that there are 800 applications it gives one the idea that a huge avalanche of aquaculture activity will be triggered as soon as the Bill comes into operation. The impression is that there are 800 applications waiting to get through when the Bill is passed. However, many of the 800 applications are not active. They involve cases where people lodged aquaculture licence applications at some time since 1980. However, the applications are in a file.

My query relates to people who lodged an application for an operation which has already commenced.

I am specifically referring to such people. They must either be licensed under this legislation or they cannot operate.

If somebody is running an illegal operation will the application before the Department seeking permission for the operation be accepted as a legitimate application after this section comes into operation? Will the person be disqualified under section 11?

If the application has been lodged it will be processed.

Section 11 states:

Notwithstanding anything in this Act, an application for a licence shall not be accepted or, having been accepted shall not be determined, if, after the commencement of this section but before the application is determined, the applicant or any person on behalf of the applicant commences to engage in aquaculture at the place or in waters to which the application relates.

They would be new applications made after the commencement of that section. Applications which have already been made will be processed.

The Bill does not make that distinction in section 74 or section 11. Section 74(1) states that it shall be deemed to be an application. It makes no distinction between transitional applications for illegal operations or applications which have not commenced. Section 11 disqualifies all operations which have commenced.

After the commencement of section 11. There is a commencement provision in section 11.

There is a commencement provision for every section.

That is correct.

Does the Minister know what I am getting at?

Then why does he not address it directly?

I will do that without referring to sections. Applications which are already made will be considered as applications under this Bill and will be determined within the time limits set down by the Bill. Applications made after the commencement of the Bill will be treated as new applications.

I do not want to repeat myself. I am referring to operations that are in place, have not received a licence and whose application has not been determined. When this section comes into operation, they will be considered as legitimate applications despite that fact that they have been operating illegally. Section 11 disqualifies them. This is the third time I have made this point.

In practice, there will be an interim period. If someone has not made an application they have not made an application. Applications already made will be determined under this legislation. There is a backlog of applications and I described how many of these will be weeded out. Once the Bill is enacted and commenced new applications will treated as new applications.

Why will the Minister not address the point I am putting to him?

I am addressing that point.

The Minister is not addressing it.

I am trying to reach the time schedule we set ourselves.

That is irrelevant; this is important.

Everything is important to everybody but 22 Members and staff have to be considered.

The committee will adjourn at 5 p.m.

The Minister said that he has 800 licence applications. Would he consider making a provision that, on commencement of this Bill, applicants would be written to and given a period within which they should declare whether they wish to continue with the application? If they do not reply within a fixed period of time it would be taken that the application had fallen. Having weeded out the dead applications, two things would come into force. First, section 11 would come into effect from the time that the applicants reconfirm their applications. Anything which occurred before would be dead. If they continued to farm without a licence after expressing an interest in a new application this section would come into force.

Second, the applicants would have to renotify the Department. I accept that most of the applications are for shellfish licences. However, as county councils require renotification of changes in operations, it would not be unreasonable to expect renotification in these cases. Some of these applications go back to 1980. The procedure for dealing with these 800 applications would be more complete than that envisaged under this section. Would the Minister consider this point before Report Stage?

This is being debated ad nauseam.

The general approach the Deputy is recommending is similar to that we intend to take on this issue. There will be a four month time limit within which the application must be determined and there will be certain requirements on the applicant to submit particular information. Once the Bill has been enacted and commenced the outstanding applicants will be contacted and asked to submit the necessary information so that a decision can be made on their application. That will quickly establish applications which are serious and require immediate attention. Applications which are not seriously pursued will fall and be refused.

One of the defects heretofore is that this has not been possible under existing legislation because no time limits were specified for decisions on applications. There will be an interim arrangement whereby the outstanding applications will be determined under this legislation.

I wish to put the question.

I am sorry, Chairman, but you cannot put the question. I wish to put a relevant question to the Minister.

I have one short question for the Minister.

Of the 800 applications, how many are for the licensing of fish or shellfish farms which are already in existence?

I do not have that information to hand. Some applications are for new farms.

That is not my question.

Some are applications for increased production, others are for fallowing sites for fin fish or changes of location. There are unlicensed aquaculture operations.

That is the first time the Minister said that. I have been trying to get that out of him for the last ten or 15 minutes.

The Deputy did not ask the question. I am deducing from what he has been dancing around that that is his point.

I think that has been established.

It has not. I asked the Minister a question: what is the effect of section 11 on these operations?

I have been very patient. Had the Deputy asked that question 15 minutes ago he would have got the answer.

I did ask it and I did not get an answer. I asked it three times; but I did not get an answer.

I will try to describe it as simply as I can.

The Minister never addressed it and I asked him three or four times.

The outstanding applications will be processed under this legislation which provides for a time limit for the determination of those applicants and for an appeals mechanism. When that backlog is cleared, it will no longer be possible for somebody to engage in aquaculture and apply subsequently for a licence. Therefore, the legislation enables us to clear up the inheritance from the inadequacy of previous legislation and provides absolutely and explicitly for a new regime in which a person cannot engage in aquaculture without a licence.

May I make an important point?

Every point is very important now as far as I can see.

Can I come to——

I am putting the question——

This is very unsatisfactory.

It is not. There is a deliberate attempt to——

The Minister is not answering the question. He is dodging it.

I am not. I am giving information for which the Deputy did not even ask.

Section 74(3) allows somebody who gave notice in 1980 or 1981——

Opposition to this section is not even in your name, Deputy Ó Cuív. I am putting the question.

Can we not discuss the section?

Is the Deputy pressing the amendment?

A very serious situation is under discussion and it seems people who have operated illegally will be legalised by the Minister contrary to the terms of the Bill which he is asking us to accept and to a section which we have debated already.

That is not the case.

Yes it is. Under section 11, if a person has commenced his operation, his or her application is not considered valid; under section 74, if a person has commenced operation, the Minister will accept it as valid.

Yes, but——

The Minister has never addressed the section 11 question.

I did and I drew the Deputy's attention to it on two or three occasions. Section 11 contains a commencement provision which will be exercised when the outstanding applications have been processed under this legislation.

The Deputy said something which is clearly inaccurate. He said that the Minister would permit operations without regard to this Bill. That is clearly not the case. Section 74 requires that all outstanding applications become applications under this Bill and are subject to the increased requirements of this Bill in relation to licensing conditions.

As I said, section 11 has a commencement procedure. How does the Deputy propose to deal with outstanding applications in practice? There are applications with the Department and some of them have been there for quite some time. They must be dealt with. Is the Deputy saying that existing applications should not be considered applications?

I do not think this discussion is going anywhere. I am putting the question.

One question: would the Minister look again at the matter?

Question put.
The Select Committee divided: Tá, 12; Níl, 10.

Ta

Bell, Michael.

Crawford, Seymour.

Boylan, Andrew.

Finucane, Michael.

Broughan, Tommy.

Fitzgerald, Brian.

Browne, John (Carlow-Kilkenny).

Gilmore, Eamon.

Byrne, Eric.

Ring, Michael.

Costello, Joe.

Sheehan, P.J.

Níl

Byrne, Hugh.

Leonard, Jimmy.

Callely, Ivor.

Moffatt, Tom.

Flood, Chris.

Molloy, Robert.

Fox, Mildred.

Ó Cuív, Eamon.

Keaveney, Cecilia.

Smith, Brendan.

Question declared carried.

I propose that, rather than have another session sometime next week when the Dáil is in recess, we continue until six o'clock this evening. I suggest we try to complete the Bill today. Is that agreed? Agreed.

Am I to understand that we will not have a meeting tomorrow?

We cannot be here tomorrow as we have to give 48 hours' notice to the technicians. If we do not complete our business today we will have to reconvene next week as we will be dealing with the Credit Union Bill the following week.

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