Special Committee Wildlife Bill, 1975 debate -
Tuesday, 26 Oct 1976

SECTION 55.

Question proposed: "That section 55 stand part of the Bill."

Minister for Lands (Mr. T. J. Fitzpatrick

(Cavan): This section is a rather lengthy one and to that extent it might appear to be somewhat complicated. However, I hope I can convince the Committee that it is a simple section. It provides a simple and a cheap method of acquiring land. There are two points in this context which we must keep in mind. Nothing compulsory is involved. The provisions operate only on a voluntary basis and only with the consent of the landowners. If the land is held in one lot and by one person in severalty, the procedure is simple and if a commonage is involved the section will operate only on the basis of one or more of the commoners being prepared to sell to the Minister with the remaining owners in common being agreeable to divide the remaining portion of the land between them.

Whether we are dealing with one person or with a number the Minister must publish a notice in Iris Oifigiúil and in one or more newspapers circulating in the locality regarding his intention to acquire the land. Before the Minister makes an order, the person who owns the land must have signed a written document to the effect that he is agreeable to sell to the Minister on the terms outlined. If the land in question is commonage, one or more of the owners in common must sign such a document while any remaining owner or owners in common must agree in writing to the division by the Minister. After all that the investigation of the title is not as exhaustive as it might be in other cases but that is part of the provisions of the section. When the land is acquired and vested in the Minister the remaining portions, in the case of commonage, are vested in the remaining owners in common.

If some legitimate claim comes in within six years, or if there is incapacity, such as a person of unsound mind being involved, or a minor, then six years from the removal of the incapacity, not exceeding 30 years in all, the rightful owner can claim compensation from the Minister and the Minister must pay compensation. In default of agreement in that case, the compensation is fixed by the Lay Commissioners with the right of appeal to the Appeal Tribunal which is a judge of the High Court. For what it is worth, the Minister can then proceed to recover from the person who wrongfully received the compensation. Finally, the section only applies to registered land, that is, land registered with the Registry of Deeds with a folio on it, and that comprises about 80 to 85 per cent of the land we would be dealing with.

Mr. Haughey

Why that restriction?

Mr. T. J. Fitzpatrick

(Cavan): The restriction is that, when you are dealing with registered land, it is easier to trace the title. If it is unregistered land, there might be bundles of deeds that length and some of them might be lost, or they might be here, there or anywhere. It is not proposed to apply it to that.

Mr. Haughey

On the compensation question a point strikes me listening to the Minister. In the case where a mistake is made and the rightful owner comes along within the period of six years and claims compensation from the Minister and the Minister claims that back from the other person, is not that a bit unfair? If I think I own land—and this can happen in many parts of the country—and I accept the money from the Minister in all good faith, and I proceed to educate my children with it, or something like that, is it just that the Department or the Minister can then come along and get the money back from me?

Mr. T. J. Fitzpatrick

(Cavan): In law the first vendor, as we will call him for the want of a better name, would have sold something to which it transpired he had no title. If the Minister wants to recover from him, he will have to follow him in a court of competent jurisdiction depending on the value of the land involved. It is only reasonable that, if a person sold something he did not own and was paid for it, he should not be allowed to keep the money. Indeed, I could see this power being more useful in theory than in practice. I think it is wise to have the power for use in cases in which it should be used.

Mr. Haughey

I can see that but, on the other hand, when Ministers or Departments are entitled in law to money or compensation, there is an onus on them to go after it. The Minister might find himself forced by the section to go after somebody he had no wish in humanity and in charity to go after.

Mr. T. J. Fitzpatrick

(Cavan): We would only be obliged to pursue the first vendor if he were a mark.

Mr. Haughey

I just draw attention to it.

Mr. T. J. Fitzpatrick

(Cavan): I appreciate the Deputy’s point.

Mr. Tunney

When we were discussing section 1, reference was made to the section we are discussing now. My desire would be to find out, as young people say now, what exactly section 55 is in aid of. When we were discussing section 1, the Minister made it clear that this section referred to land which would be acquired for the purposes of the Wildlife Bill. In the title of this legislation there is no reference to forestry. The Minister will have to clear up this point. In the Official Report of 11th May this was referred to by Deputy Haughey and subsequently at column 7 I asked the Minister do we know that it may and probably will happen that lands will be acquired under the provisions of this Bill for ordinary forestry purposes?

Mr. T. J. Fitzpatrick (Cavan)

No.Further down

Mr. Tunney

Can we be assured that no land will be acquired under this Bill for ordinary forestry purposes?

Mr. T. J. Fitzpatrick (Cavan)

The Deputy may be assured it can be used only for the purposes of this Bill.It is very material to what we are discussing here to know precisely what is the purpose of section 55. I notice that when introducing the legislation in the Dáil the Minister, speaking at column 303 of the Official Report of 22nd January, 1976 saidThe new acquisition system, contained in section 55, will provide a more expeditious procedure for land acquisition whether the land is destined for afforestation or wildlife conservation purposes or both.The same statement is made by the Minister in the Seanad debate of 20th May, 1975. Notwithstanding that, we have the Minister on the 11th May, 1976, saying that this is not the land acquisition referred to here, this is not specifically for wildlife purposes. We cannot say that this is definitely between forestry and the wildlife. We have the wildlife section at the moment in the Department of Lands. We must make it clear at the beginning as to whether or not the provision is in respect of all the land acquisition for forestry purposes or for wildlife or both. We have statements from the Minister which are in conflict in respect of this section. I would like that clarified now.The Deputy has a point. I said in the Dáil on the Second Reading and in the introduction of this Bill in the Seanad that section 55 would be used too as a simplifying matter in acquiring land for afforestation or for the purposes of this Bill. I was correct, and that is the position. During discussions here on the first section of the Bill, when Deputy Haughey brought us down to section 55, I was in error when I stated that the section would be used only for the purposes of wildlife. That gives the simple position.

Mr. Tunney

Do we take it that section 55 of the Wildlife Bill is an enabling measure in respect of what hitherto had been regarded as the acquisition of land for afforestation?

Mr. T. J. Fitzpatrick

(Cavan): The Deputy is quite right.

Mr. Tunney

And the Minister and his Department felt that this is the better way to approach it?

Mr. T. J. Fitzpatrick

(Cavan): Absolutely.

Mr. Tunney

And it will not lead to any reaction at what might be described as the legal level which would be prejudicial to one or the other? I share with the Minister his desire and his efforts in respect of afforestation, but on the other hand I am not without knowing that in certain counties traditionally, unfortunately, there is a feeling that so much land should not be taken for afforestation and that, while we can show that in the past it was possible to build up certain land for afforestation, latterly that might not have been the position. I would not like that it would go abroad—this might be prejudicial to the spirit of this Bill—that something was happening under the guise of a Wildlife Bill which was pertinent and specific only to afforestation.

Mr. T. J. Fitzpatrick

(Cavan): In regard to the question put by Deputy Tunney at the start, I am satisfied that this section provides a simplified and desirable method of acquiring the type of land we acquire for afforestation and for the wildlife. Most of the land we acquire is much less valuable than ordinary agricultural land. It is a type of land the title of which would likely have been neglected for some time, but the section operates only on a voluntary basis. It is not a compulsory section. It can operate after notice has been published in the official gazette and in a paper circulating locally and after the apparent owners have signed their consent to the appropriation.

Mr. Tunney

Especially when afforestation, notwithstanding what right, is so important, it seems to me from the layman's point of view rather cumbersome that we should be including such vital legislation in an Act where it will not be all that discernible, because anybody who will have a direct interest in afforestation, students or otherwise perusing matters relating to legislation on afforestation, would look to see that this word would appear in the Title. It does not appear in the Title of this Bill. We are talking about amending legislation. We do not say what type.

Mr. T. J. Fitzpatrick

(Cavan): On the point raised by the Deputy, the only person acquiring land under this section would be the Minister for Lands through his Department, the Department of Lands. Deputies may rest assured that there will be no difficulty in operating this section.

The other point I want to make is that we are introducing this section because from experience we know that it takes a long time, too long under the existing procedure, to acquire where agreement has been reached for forestry. This is intended to and I am advised that it will speed up the closing of sales.

Mr. Haughey

The Explanatory Memorandum does not say anything about the section being confined to forestry. Could the Minister point out where in the section it is confined to forestry?

Mr. T. J. Fitzpatrick

(Cavan): If the Deputy will come to section 55 (2) he will see:

(2) Where—

(a) the Minister wishes to purchase land, and

(b) the purpose for which the Minister proposes to use the land is a purpose of this Act or of the Forestry Acts, 1946 and 1956, and

(c) the ownership of the land is registered under the Registration of Title Act, 1964, and,

(d) (i) the vendor claims to have an interest in the land which enables him to offer to the Minister vacant possession of the land, or

(ii) the vendor claims that the land is land held in commonage and that he has an interest therein which enables him to offer to the Minister an undivided share therein, and

and to answer the Deputy's question

(e) the Minister receives—

(i) in every case, a statement in writing signed by the vendor specifying the grounds on which his claim is based and stating that the vendor is willing to sell to the Minister the interest he claims to have in the land for a price agreed between the vendor and the Minister. . .

Mr. Haughey

Can we rely on that written statement?

Mr. T. J. Fitzpatrick

(Cavan): Yes.

Mr. Haughey

Unless that written statement was received from the Minister.

Mr. T. J. Fitzpatrick

(Cavan): He can rely——

Mr. Haughey

Is it entirely a voluntary sale?

Mr. T. J. Fitzpatrick

(Cavan): All of this is individually expressed under this section.

Mr. Haughey

It is really only procedural—that where you agree to purchase and somebody agrees to sell you can cut through the formalities and get on with it.

Mr. Tunney

That is commendable but I thought it should more appropriately happen under legislation dealing with forestry. I raised the matter because there had been conflict to date. It is as well to have it clarified.

Mr. T. J. Fitzpatrick

(Cavan): The Deputy was quite right to raise the point. He did his homework.

Mr. Kitt

Will the Minister seek to acquire land set on the 11-month system where the land is commonage?

Mr. T. J. Fitzpatrick

(Cavan): If the owners agree. I think it fair to tell the Deputy that I believe an 11-month tenant would not be regarded as having an interest in the land.

Chairman

In other words, he is only a licensee.

Mr. T. J. Fitzpatrick

(Cavan): I do not want to deceive the Deputy and say that if he does not agree he will be taken into account, any more than where a farmer who wants to sell land can do so without reference to the 11-month tenant. We are not introducing anything new.

Mr. Kitt

The section deals with people not willing to sell. Is that something new?

Mr. T. J. Fitzpatrick

(Cavan): That is commonage. Let us take the instance of a large commonage where there are ten owners in common of which six want to sell to the Minister. The section will operate only if the six people want to sell and if the remaining four are agreeable to a division of the remainder between them. There must be the consent of all the owners in common.

Mr. Kitt

That should speed up the division of commonages.

Mr. T. J. Fitzpatrick

(Cavan): Yes, it should.

Mr. Haughey

From that point of view it is most desirable because commonages cause enormous trouble.

Mr. T. J. Fitzpatrick

(Cavan): I do not want to deceive the Committee. It will not speed up the division of commonages where there is no agreement.

Mr. Kitt

There are many cases where the farmers themselves have their own ideas regarding how the commonage should be divided—I am speaking now in terms of agricultural land. I hope this matter will receive consideration.

Mr. T. J. Fitzpatrick

(Cavan): The Land Commission are very anxious to step in there and divide the land. In the last short while they have divided nearly 3,000 acres of commonage in parts of Mayo.

Mr. Haughey

Very often it is the most progressive farmer who is against it.

Mr. T. J. Fitzpatrick

(Cavan): It depends on what meaning one attaches to “progressive”.

Mr. Haughey

Often it is the most active and energetic farmer who is against it because he uses all the land.

Question put and agreed to.