(Cavan): The purpose of this section is to set up a procedure which it is hoped will facilitate the vesting in the State of certain doubtful inland lakes or other inland waters—doubtful in the sense that ownership has never been established clearly but is believed to have rested with the Crown. The overall objective is to enable the Minister to control hunting over these lakes and waters and their lake shore accretions or, where necessary, to establish nature reserves on them. The word “Crown” is mentioned because these lakes and inland waters were supposed in one way or another to have been vested in the Crown. They are now vested in the State but in some cases there is doubt. Consequently, the purpose of this section is to enable the State to gain control of these lakes. That is the background to the section which is framed on the basis that the Minister would publish a notice in appropriate cases and invite interested parties to submit details of their claims, the Minister to pay their cost. If no claimants come forward, the Minister can proceed to make an order declaring the waters to be vested in the State. But if there are claimants he must reach agreement with them before making a declaration order. There is provision for compensation for bona fide late claimants.
SECTION 57.
Sometimes I am concerned with the manner in which civil servants use words. In this case I presume hunting means fishing.
(Cavan): Hunting is defined. It is what we would call fowling.
There is provision for compensation for anybody who has a right over an area of water?
(Cavan): That is so.
But the fishing right will remain.
(Cavan): In this Bill we are not dealing with the question of edible fish. That area is the responsibility of the Minister for Agriculture and Fisheries.
I take it that the purpose of the section is to make clear the State's ownership of these waters.
(Cavan): Perhaps I might clarify the position by explaining subsection (1). This subsection sets the scene for an order by the Minister by providing that a doubt must exist as to ownership of the inland waters in question but that the likelihood is that they belong to the State.
Then, following consultation with the Minister for Agriculture and Fisheries, because of any possible fishery interest involved, the Minister may publish a notice requiring any person who claims to have an interest in the inland waters in question to furnish particulars of his claim and documents of proof within a period of two months from the date the notice is published. The subsection is framed in such a way as to include or exclude, as appropriate, a reference to fishing rights in the invitation to claim. The Minister for Lands would not normally be interested in the fishing rights except where fish life constituted an important wildlife element as an integral feature of a nature reserve.
I had in mind a situation in which somebody had fishing rights which are not acquired by the Minister. Would that not put that person in the position under this legislation of being able to enjoy freedoms in relation to hunting which other persons might not have?
(Cavan): If the fishing rights are not included in the acquisition order the person concerned continues to own these rights but in my opinion he would not acquire any rights other than those he had already. Indeed, the object here would be to restrict rights.
There is a difference between fishing rights and hunting rights and to this extent I am wondering whether in the type of case I have queried, a person concerned might assume hunting rights to which he would not be entitled.
(Cavan): That would not be the position. He would continue to enjoy fishing rights but he would not acquire any rights other than those which he held previously.
In dealing with legislation such as this we are inclined to think all the time in terms of the poacher, the fellow who is trying to get around laws, but we forget often that illegality is not confined to any specific section of the people. In this case I am concerned that we be able to contain a person who holds fishing rights so that he may not indulge in what others might describe as poaching.
(Cavan): As I see it, and I believe I am correct, if the fishing rights concerned were valuable we would acquire them and include them in the acquisition order. If, however, a person had fishing rights which we did not acquire and if subsequently he started any monkey business or began making a nuisance of himself we could go back and acquire the fishing rights. However, I shall have a look at this again before Report Stage.
Would the Minister define the difference between paragraphs (a) and (b) of subsection (1)? I cannot see any difference between them.
(Cavan): I am advised that the purpose of those two paragraphs is to enable me to include or to exclude fishing rights.
That answers my second point because it seems to me that if paragraph (b) is taken by itself, anybody who has a right over a lake that is being acquired is entitled to go to the Minister and seek compensation in respect of the extinguishing of that right other than a fishing right. Therefore, there are two ways of looking at this. One is that the fishing right will continue to subsist apart from the Minister's acquiring the lake so that anybody concerned could not seek compensation.
(Cavan): In the event of the Minister taking fishing rights, that is, taking over the lake simpliciter there would be provision for compensation. The idea is to allow such flexibility. If I rely simply on the first paragraph anybody, including the person with fishing rights, could claim compensation and if I am relying on paragraph (b) I am not taking over fishing rights and consequently the person concerned could not claim compensation.
That makes sense but I cannot extract it from the two paragraphs as framed. However, I am prepared to accept what the Minister says. The position then is that if there is doubt about the title to a particular area of water the Minister can acquire it and so put the matter beyond doubt. In doing that the Minican, if he wishes, acquire the fishing rights. If he does, anybody who has either a fishing right or any other claim can seek compensation. The Minister also has the alternative of acquiring a lake or expressing it to be his property and any right can be compensated for except the fishing right.
(Cavan): That is exactly correct.
Mr. Kitt
In the case where a lake would be the source for a group water scheme, would anything in this legislation interfere with the use of the lake as a source?
(Cavan): Subsection (7) reads:
Nothing in this section shall restrict, prejudice or affect the functions of sanitary authorities or the Minister for Local Government under the Local Government (Sanitary Services) Acts, 1878 to 1964, or the Water Supplies Act, 1942.
Mr. Kitt
Why is it confined to the Minister for Local Government? What about major drainage?
(Cavan): I do not believe a group water scheme would be sanctioned by the Department of Local Government and the county council unlesss the people had the right to take water from the lake, unless they owned the water rights themselves, or they acquired them from the riparian owners. If that were so, the owners of that group water scheme would have a right to go on that lake and would have to be compensated under this section if the Minister were to use his rights but, with due respect, I would not use them and I do not think any Minister would.
Mr. Kitt
If the Minister acquired the lake——
(Cavan): He could do either of two things. He could allow the group water scheme people to take their supply from it, in which case they would not be interfered with. If he deprived them of water rights which they had acquired he would have to compensate them.
Mr. Kitt
What about major drainage? The section refers to the Minister for Local Government. What about works carried out by the Office of Public Works who come under the Department of Finance?
(Cavan): What is the Deputy’s difficulty?
Mr. Kitt
When the Minister talks about drainage I presume he is referring to small drainage schemes. It says here that the purpose of subsection (7) is to provide a saver for the Minister for Local Government and sanitary authorities in relation to inland waters required by them for drainage or sewage disposal purposes or the provision of public water supplies.
(Cavan): I do not think the word “drainage” appears in it.
Mr. Kitt
It does in the explanatory memorandum.
(Cavan): My advice is that subsection (7) is a saver for the Minister for Local Government and sanitary authorities in relation to their use of inland waters for drainage or sewage disposal purposes or for the provision of public water supplies.
The point the Deputy is making is that the OPW might have a similar interest in some inland water and it is necessary that reference should be made to them in subsection (7).
(Cavan): Subsection (7) would protect the Minister for Local Government and the sanitary authorities.
Mr. Kitt
I raised this question earlier when we were talking about the protection of habitats for wildlife in relation to drainage. My point is that in regard to major drainage, or drainage which involves more work than the drainage referred to here—I presume the Minister is talking about small schemes when he talks about local government—should there be a saver for the Office of Public Works?
(Cavan): That was dealt with under section 43. If my memory serves me correctly, that section provides for consultation between the Office of Public Works and the Minister for Lands. Subsection (7) of this section simply safeguards the rights of the Minister for Local Government or sanitary authorities who are using the lake in one way or another. They are protected.
Does the Minister envisage that, under this, his Department could be involved in fisheries activities?
(Cavan): I do not, unless to the extent I mentioned. It would be unusual for us to become involved in fisheries.
But you could?
(Cavan): We could.
In acquiring one of these lakes, if the Minister acquired the fishing rights, under section 56 he could manage and exploit the fishing resources.
(Cavan): Pardon, Deputy?
To follow Deputy Daly's point, if the Minister acquired fishing rights under one of these section 56 orders, he could himself manage and exploit those fishing resources under section 56.
(Cavan): I could, yes.
Presumably somewhere in the Bill he has power to hand them over to the Inland Fisheries Trust.
(Cavan): I imagine I could.
He could employ them as his agents.
(Cavan): I could, yes.
(Cavan): The purpose of this section is to establish a control by the Minister on hunting in or over coastal waters. It is, in that sense, an extension of similar provision in section 30 relating to State-owned foreshore and State-owned inland lakes. Coastal waters are very valuable from a wildlife standpoint in terms of seabirds—gannets, puffins, and so on—marine mammals—seals, dolphins, and so on—and certain marine animals and are vulnerable to disturbance through indiscriminate shooting and hunting pressure. Since the term “coastal waters” is rather meaningless in law, the section is designed—see subsection (1)—to relate to the “territorial seas of the State” defined in section 2 as having the meaning assigned to it for the purposes of the Maritime Jurisdiction Act, 1959. That is the position.
The section abrogates to the State the right to hunt fauna in all its territorial seas.
(Cavan): Exactly.
Subsection (1) states:
It is hereby declared that the right to hunt fauna in or over the portion of the sea which is the territorial seas of the State belongs to the State.
The right to hunt belongs to the State.
(Cavan): Yes.
Does that mean that the fruits of the hunting belong to the State?
(Cavan): I would not say so.
I will take seals for instance. Up to now the Blasket islanders hunted seals. In this section the Minister is now taking that right to the State and, to an extent, he is depriving people of a right they held. The first point which arises is the constitutional position. Can he just do that by Act of Parliament? Apart from that, does the right to hunt here include the animal hunted? In other words, if somebody hunts a seal and kills it, does he own the seal?
(Cavan): First of all I can put to Deputies the constitutional position which has been cleared by the law officer.
The Minister is not in any great position to be dogmatic because the Constitution itself is——
(Cavan): I am told that section 58 was considered from the constitutional point of view and has been cleared.
Sorry, I think that is a very simple approach, but it is not for us to decide here.
(Cavan): In regard to the second question subsection (1) says:
It is hereby declared that the right to hunt fauna in or over the portion of the sea which is the territorial seas of the State belongs to the State.
Section 2 says:
(2) It shall not be lawful for a person without the permission of the Minister, to hunt fauna on, in or over any part of the portion of the sea mentioned in subsection (1) of this section.
We may suppose that any animals he hunts and captures he has a right to keep.
In other words, this is a method of controlling the hunting of fauna?
(Cavan): Exactly, it is conservation.
The Minister could have done it another way. He could have said that it shall not be lawful to hunt fauna on the sea without a licence from the Minister.
(Cavan): Exactly.
I think the position of animals is the same as that of wild fowl.
(Cavan): I assume there would be a reasonable approach and no interference with type of person Deputy Haughey has in mind.
Yes, because a lot of these people are not members of gun clubs.