(Cavan): I move amendment No. 32.
In page 47, subsection (1), to insert "in accordance with the regulations" after "use" in line 45.
This is a simple amendment to section 59 enabling the Minister for the purposes of wildlife conservation to regulate public access to the foreshore, and refuges for fauna over privately owned and any other reserves and including marine reserves and lands. It is really a drafting point. In other words, it gives the Minister power to grant access on conditions.
Would the section in any way operate against some local person who traditionally had occasion to use the foreshore?
(Cavan): We will deal with that in the section. We are dealing with the amendments.
(Cavan): I move amendment No. 33.
In page 49, subsection (8) (c), to insert "or if it otherwise ceases to hold the land in respect of which the regulations were made" after "dissolved" in line 10.
Section 59 would, as I have said in relation to the previous amendment, enable the Minister to make regulations permitting the regular user to use certain lands in the interest of wildlife conservation. This includes, under subsection (6), land held by any board which might be established under section 14. The purpose of this amendment is to provide that any such regulation which may be made by the Minister in relation to lands held by the board shall cease to have effect in the event of the board being dissolved or otherwise ceasing to hold the land. It is really a drafting point. It clearly provides what is intended.
(Cavan): The object of this section is to enable the Minister to regulate public access to and use of State foreshore, refuges for fauna and nature reserves, whether on State land or on private lands. The provisions are, therefore, an essential complement to sections 15, 16, 17 and 18, which provide for the setting up of refuges and reserves, including reserves on State foreshore. The intention would be to regulate access to or use of these sensitive areas only to such extent as would be necessary to conserve their wildlife values.
Where foreshore is involved, there would be prior consultation with the Minister for Transport and Power, who has certain control functions relating to State foreshore under the Foreshore Act, 1933, and in some cases with other Ministers and the Office of Public Works.
Minister, if I may say so, because there has been concern about conservation near large urban areas, it might be necessary to have the necessary regulation to protect——
In relation to subsection (11) it would presumably apply to a situation where a particular area has by tradition been an open public area and where an individual might move in to fence or bar it off. Presumably that would come under the heading of failure to comply with a regulation where the Minister had deemed it to be a public area.
(Cavan): Subsection (11) makes non-compliance with by-laws made by the Minister in relation to his own lands an offence. While, as already stated, the Minister’s right to make rules, bylaws and so on regulating access to his lands arises from ownership, it is desirable that any contravention of them be made an offence under the Bill so to have uniform treatment of contraventions whether the lands involved are the Minister’s land, other State land or private land. In the case of land other than the Minister’s lands contravention or non-compliance with regulations is made an offence under section 69 (2) of the Bill. I say to Deputy Desmond that subsection (11) deals only with lands the property of the Minister.
You can have a substantial track of foreshore. I am particularly concerned about that aspect of it, the question of it being the property of the Minister, be it admittedly very properly designated. Very frequently one will find an individual who for one reason or another, on an ad hoc basis during the summer months, will suddenly put up a fence and public access in effect can be denied. By the time the State act the stuff is down again and it is difficult to find prosecutions. I would hope that this what I call selfishness would be covered.
(Cavan): The Minister for Lands does not own the foreshore. The foreshore is vested in the State and the man who has control over it is the Minister for Transport and Power.
I accept that, but I need take only the Chairman's home county where such instances have been known to happen.
I am glad to know the Deputy has been there.
I have been to Wexford on holidays and I know areas where the Minister for Transport and Power would have authority. Certain individuals were dumping there and they took 100 tons of sand from the foreshore as well. I make the point.
(Cavan): I think I may be able to put the Deputy’s mind at ease. Subsection (3) is to ensure that any regulations relating to State foreshore shall be such as the Minister considers necessary to conserve the wildlife of the area or areas in question; in other words, the extent of the Minister’s “intrusion” is restricted. In addition, regulations shall be made only after consultation with the Minister for Transport and Power and, where the foreshore is held by the Commissioners of Public Works or by another Minister, only after consultations with them.
I welcome the section.
I detect a certain need for giving powers to the Minister in respect of certain areas where, in his opinion, the nature of the traffic to the foreshore is such that conservation is imperilled. On the other hand, I am concerned about the position of some local people who during the years have been using the foreshore for their own purposes—perhaps to collect seaweed—but with no connection with conservation. Presumably the Minister is not anxious to include such people in his regulations and does not intend doing so?
(Cavan): I would refer the Deputy to subsection (1) and the amendment made to it which states:
Subject to subsections (3), (4) and (7) of this section, the Minister may make regulations permitting the public generally or any particular class or section of the public or the members of any body of persons which is of a particular class or description or the members of a particular body of persons, to have access to and use in accordance with regulations . . .
I would see as the objective of that subsection to restrain persons only so far as is necessary and to permit persons who have been using it heretofore to continue to use it, subject to certain conditions and regulations.
Let us take the case of a small farmer on the Connemara coast who has been using the foreshore for purposes necessary for his survival. Will it be necessary for him to seek permission to do this at some stage in the future or is his right to do so already established? Does it mean he cannot use the foreshore unless permitted to do so by the Minister?
(Cavan): That will be the position. I am advised that there is no common right to the foreshore, that even now if the Minister wanted to prevent somebody using the foreshore he could do it.
I am familiar with the Connemara area. I know that people of that area go to the foreshore to collect kelp or seaweed. The people I have in mind would be the best protectors of wildlife. They would act as agents for the Minister in the matter of conservation in the normal way. However, if it is indicated to them at some future date that under this legislation they may go to the foreshore only with the permission of the Minister, I do not think we will get the co-operation we hope for in the matter of conservation.
The wording is "to have access to and use". Does this mean that the Minister cannot give the right to somebody simply to have access to? Must it be access and use?
(Cavan): I would not say so. That would not make sense.
I think it would. "To use" has a certain meaning.
(Cavan): The object of this section is to enable the Minister in the interest of wildlife conservation to protect sensitive areas, areas of value for the conservation of wildlife. I can only hope and pray that it will be used in a reasonable way. I realise that the point made by Members opposite is one that could easily be made by Opposition Members but, on the other hand, if we are to protect the sensitive areas we must have the powers provided in this section. If any Minister was foolish enough to start enforcing this section in an unreasonable way, I agree with Deputy Tunney that he would not get public support and he would be subject to the pressure of public opinion to stop doing it.
I am concerned about the situation in Connemara where there is an active Cearta Síbhialta na Gaeltachta. Along that coastline there are seals and basking sharks and it might be decided in the interests of wildlife that it would be necessary for the local people to apply for permission to go to the foreshore.
(Cavan): For what purpose?
They go there regularly to collect seaweed which they use as fertiliser.
(Cavan): I am told that for many years back they are technically in breach of the law for doing this.
If they drive on to the foreshore for a swim?
(Cavan): The Deputy is dealing with a different point now.
I want to differentiate between "access" and "use".
(Cavan): So far as the removal of seaweed and so on is concerned, they are in breach of the law the moment they do so without the consent of the Minister for Transport and Power. Deputy Haughey posed the other question and he referred to the words “access to and use”. I suppose if they sit or stand on the foreshore they are using it.
Then the word "use" is redundant?
There is a peculiar legal thing in this. Subsection (1) is in reference to subsections (3), (4) and (7). In fact, subsection (3) makes a distinction between "access to or use" and the same thing happens in sub-section (4). Perhaps the draftsman had some reason for doing that. I am wondering what is behind it.
We can elaborate on that later.
Is there any reason for the difference in the wording? I know "and" is used with the meaning of "or" to give the all embracing power. That may be the purpose of doing it in subsection (1) in that way and defining it more specifically later.
(Cavan): I shall consider it seriously between now and Report Stage and, if necessary, we shall have it recommitted.
