This section provides for the disposal of the things seized by the Garda or authorised persons under section 72 or section 73. Disposal following forfeiture by a court is specifically provided for under section 76 but the disposal under section 78 would arise between the time of seizure and the time a prosecution, if any, is taken. Before the thing seized is disposed of the consent of the owner, or the person responsible for it, has to be obtained under sub-section (1) (a). Where the thing is something other than a document there is an alternative course whereby a direction can be sought from a peace commissioner as to disposal under subsection (1) (b). Indeed, virtually the entire section is concerned with the procedure regarding a peace commissioner's direction. The item which would most likely involve an application to a peace commissioner would be dead fauna where its perishable nature would preclude its being held as evidence for any length of time. This section deals with the disposal of the items referred to in it between the time of seizure by a garda or authorised officer and the hearing of the court case.
SECTION 78.
Irrespective of the long period in which grouse or game must be hung before it is ready for human comsumption, it baffles me a bit as to how the evidence can be disposed of before the case is heard.
There is provision made for the hearing in subsection (7):
Where a Peace Commissioner gives a direction pursuant to this section, he shall, on the production to him of the thing to which the direction relates by the person applying for the direction, give to that person a certificate in the prescribed form describing the thing, stating that a direction under this section has been given by him in respect of it and, in case the thing is fauna, specifying any marks on, or peculiarities or other particulars of, the fauna of which he has been made aware by the person making the application and in any proceedings for an offence under this Act the certificate shall be accepted as sufficient evidence of the facts stated in the certificate until the contrary is shown by the defendant.
There could possibly be a conflict here. Under subsection (2) you have:
A person who under this Act has seized any thing may, on giving notice to the owner or to the person who, when the seizure was made, was in apparent charge. . . . .
If there is a conflict whose statement takes priority?
If that situation arose it would be for the court to sift the evidence. That would be an issue to be decided by the court.
Mr. Kitt
Would the Minister agree this would seem to take a long time? We are talking in terms of forfeiture of an item, an appeal against that forfeiture and disposal. We are dealing with perishable flora and fauna and this Bill is concerned with conservation. If it takes so long to deal with what we have been discussing I am wondering what action will the Minister take to ensure the central concern with regard to conservation.
Sub-section (3) provides:
A Peace Commissioner to whom an application in that behalf is duly made under this section shall, if he is satified that any thing in respect of which the application is made is likely, before it can be used as evidence in proceedings for an offence under this Act, to become unfit for human consumption, or if he is satisfied for any other reason that the thing ought to be further detained, give a direction under this section authorising its disposal (by destruction or otherwise).
What about the peace commissioner who would not know a hen pheasant from a cock pheasant?
Very few peace commissioners would not know the difference.
In reply to Deputy Kitt, who thinks the time necessary to go through the various stages here is too long, I would refer him to subsection 6(c) which provides:
If a Peace Commissioner is satisfied that for any reason a direction given by him under this section should have effect before the expiration of seven days from the date of its making and he specifies in the direction the time when it should so have effect, the direction shall have effect at the time so specified.
That covers the case the Deputy has in mind.
Subsection (7) says the certificate shall be taken as evidence. The peace commissioner's certificate must be accepted as evidence.
Until the contrary is proved.
". . . until the contrary is shown by the defendant". Mark you, the defendant will be in a pretty precarious position trying to prove that the certificate is wrong when the evidence has been disposed of.
He would have been notified beforehand and he would have an opportunity of going before the peace commissioner when the certificate is being sought.
But when the solicitor goes to court it will be another matter. I think the evidence there will be loaded against the person charged.
This is a provision designed to dispose of perishable goods in the interests of health maybe and it provides a method of establishing a prima facie case.
We all know the method by which peace commissioners operate. They sign their names to the documents.
Not Fianna Fáil peace commissioners.
I just do not like this.
Some peace commissioners ask a great many questions.
I never appointed any but excellent people to that office.
This is certainly a new duty for a peace commissioner.
Peace commissioners by and large have much more onerous duties than that.
I could see this section giving rise to a good deal of difficulty.
And do not say then we did not warn you.
They might be tempted to eat the evidence.
This Schedule lists the enactments being repealed by section 10. They include the two main statutes under which certain fauna are given some measure of protection at present, namely, the Game Preservation Act, 1930, and the Wild Birds Protection Act, 1930. Both of these are being repealed in toto. The Schedule also includes section 61 of the Forestry Act, 1946, which is replaced by section 39 of this Bill, and section 8 of the Protection of Animals (Amendment) Act, 1965, which is replaced by section 34 of the Bill. The remaining statutes listed for repeal are very old British Acts.
It is with some regret one witnesses the passing of the Night Poaching Act of 1826. One recognises it is being superseded by the provisions of this legislation but, nevertheless, it conjures up romantic visions of one's ancestors going over the demesne wall at night and helping themselves to what was rightfully theirs.
I move amendment No. 51:
In page 61, to substitute "of the Minister for the Public Service" for "to the Minister for the Public Service" in Article 4.
The amendment is to correct an obvious printing error.
Has the proof reader been dismissed?
No, he is still at large.
This Schedule sets out in detail the provisions which may be included in an order made by the Minister under section 14 establishing any board to administer or provide any service which the Minister is, under the Bill, entitled to provide or administer. Deputies will recall that when we were dealing with section 14 we realised that it was an enabling section, a section to establish boards which it is not intended to establish now or in the foreseeable future. The Second Schedule has provisions which may be included in the order establishing these boards. These provisions may, or may not, be included. It is a ready-made precedent which may or may not be used or may be used in part or in full.
The Minister will recall that section 14 provides that if the Minister of the day decides to set up one of these boards he shall specify the name of the board in the order setting up the board. I want to extract from the Minister a promise that if he ever makes one of these orders he will favourably consider giving one of these boards an appropriate Irish name. I am serious about this matter. Wildlife and game hunting have been enjoyed here for generations and we all read of Fionn Mac Cumhaill and the Fianna hunting 5,000 years ago. It would be appropriate, therefore, that any board in this area should have an Irish name.
I suggest that in this connection it is not necessary to have some unpronounceable name. It fell to my lot once to establish a board and I asked the translation staff of Dáil Éireann to come up with a name which would be approriate phonetically and internationally recognisable. They came up with GORTA, the National Freedom from Hunger Council of Ireland. I am sure everybody agrees that was an excellent name. It is short, phonetic and symbolised what freedom from hunger council is all about. I am certain that if the Minister felt it necessary to set up such a board the translation staff of Dáil Éireann would come up with an equally appropriate name. I ask the Minister, in advance, favourably to consider following that process if this ever arises.
I am obliged to the Deputy for the account of his experiences. I assure him that if I establish such a board I will give favourable consideration to his suggestion. I will rely on the translation staff of Dáil Éireann to provide me with an easy pronounceable and intelligent name.
I should like to endorse what Deputy Haughey has said in this regard. I appreciate the promise made by the Minister but one does not know what might happen in the near future. Can the Minister ensure that in the event of he not being the appropriate Minister his successor is made aware of the promise made to-day?
The promise I have given will be on record in my Department.
Are we all happy with 3 (I) of this Schedule, that any person nominated as a candidate for election to either House of the Oireachtas shall cease to be a member of the board?
This provision follows standard provisions in other Bills. This is purely discretionary. If and when the Minister comes to making an order under this there is no obligation on him to adopt this part of the Schedule. It is there for consideration.
If he was a Fianna Fáil Senator he could be disqualified but otherwise he need not be.
I am sure the Deputy would not be too sorry if I disqualified some of them. It is traditional.
I do not know but if Deputy Barry Desmond took over the job in the course of a few days he might have a different outlook.
I am sure the Minister is aware that a person nominated for election to the Seanad by any of the nominating bodies might not be elected. I would not be for disqualifying that person from membership of this or any other board. I should like to register my disapproval of what has been described as the "traditional thing". We should not tie ourselves to a traditional thing unless we are convinced it is correct.
I can assure the Deputy that we are not tying ourselves.
This is one area where it is not strictly necessary for Deputies or Senators to be excluded. In fact, I believe I would make an excellent member of one of these boards, like some of my colleagues.
Certainly the Deputy does not believe in hiding his light under a bush.
Muna mbíonn agat ach mionnán gabhair, bí i lár an aonaigh leis. On paragraph 5 in this Schedule, I should like to state that some people make decisions which they regret the following day. I can visualise a member of such a board, after a boisterous meeting, writing his resignation and regretting his action the following day. I do not think that should be enough to disqualify him. According to this he is disqualified on receipt of the letter of resignation.
I would regard anyone who acted so hastily and handed in his resignation on the spur of the moment as not possessing the qualities that would fit him for the job. I am talking about a board which would be set up under this Act.
Would the Minister explain paragraph 6 of the Schedule?
That would concern a casual vacancy—any vacancy between the date of appointment and the termination of the term of office.
Would the Minister define "casual vacancy"?
A vacancy caused other than by the effluxion of time.
Is it not one that occurs at any time before the termination of the board's term of office?
On paragraph 15, would it not be better if the Minister set down the quorum?
When we discussed this earlier I undertook to have another look at it. I had and I will be bringing in an amendment on Report which I think will put the matter beyond doubt. It will state that the quorum for a meeting of the board shall be such as may be specified in an order setting up the board.
Will boards have power to raise funds?
They will be purely advisory.
It will depend on the terms of the orders setting them up. I think they would have power to raise money and to engage in trading.
They can accept gifts of money.
In relation to the Schedule in general, there seems to be no provision whereby board members who hold beneficial interests would be required to declare such interests. There is such a provision in the new Planning and Development Act. It is conceivable that board members may have beneficial interests in board decisions, and indeed staff have also. Would the Minister consider the matter? Is there provision for payment of board members?
I should like Deputies to know that these provisions in the Second Schedule are merely suggestions—they are not hard and fast conditions. They shall apply to each board and the Minister may apply some of them, all of them or none of them.
They are there as a convenience.
They are a precedent which the Minister may or may not follow. There would not be anything to prevent him putting in a clause.
In the matter of beneficial interests, is it not a consideration that a person with such an interest could be a very useful board member?
A fellow could own a couple of salmon fisheries.
What a reprehensible thing—to own a salmon fishery.
In regard to the Third, Fourth and Fifth Schedules, they all contain lists of birds and animals which may be taken out of one and put into another. The Third Schedule lists the species of wild birds which are not intended for protection under sections 19 and 22. They consists of well-known pest species which because of their high numbers and wide distribution do not call for special conservation measures. Under section 22 (2), however, the list can be varied, either by adding to or taking from it, as the occasion demands.
Many of us are surprised to see bullfinches included. Perhaps the Minister would elaborate on the need for including them in the non-protected list. Secondly, I make a point with regard to the greater black backed gull. I suggest that not alone should he be excluded from protection but I would urge the Minister's wild life service to take some positive action to keep down the numbers of those birds. Some interesting experiments have been carried on around the Kerry coast which have shown very clearly that that bird does away with enormous quantities of other very desirable species. I do not think it is going far enough just not to protect the greater black backed gull, and some programme could be undertaken to keep the numbers down considerably.
The jay is included as a species not to be protected. Perhaps some years ago that might have been justified, but my information is that the jay is practically extinct. Although he is a predator or pest, nevertheless we would not be very happy if he were to disappear completely.
The greater black backed gull is being regarded as a pest species; he is not being afforded protection. It has been the practice of my Department to assist in waging war on certain pests. I presume that that policy will continue in regard to birds of that type.
May I give a statistic? I believe it is established that one of these birds, apart from his other diet of fish, accounts for up to 100 puffins a year. That is the extent of the damage he can do.
Young puffins?
Yes.
I have received the most up-to-date and the best scientific advice on the bullfinch and the jay. I am advised that neither species requires protection at present in the interests of conservation.
The bullfinch does enormous damage in the orchards in spring.
On the other hand, he does not fly in a flock.
Just let a couple loose in an orchard and the Deputy will see the damage they can do.
I have never seen them fly in great numbers.
I have seen 20 or 30 together.
We had a surfeit of apples this year.
But we had no cherries.
Can people still catch them for sale?
I think we are all agreed that since we were young there has been a very considerable diminution of song birds?
I would emphasise for the Deputy's benefit that this Schedule is in no way permanent. Part of the duties of my Department is to advise me which birds need protection and it will also be part of the duties of the advisory council on wildlife when it is set up.
Is there any major difference between the greater black backed gull and the lesser black backed gull?
There is.
Is the lesser black backed gull less destructive?
The greater black backed gull is known in Irish as the griobach and causes a great deal of destruction.
Is the lesser black backed gull as destructive?
No, I do not think he is. He is the ordinary sea-gull.
Magpies are the most destructive birds in rural areas. Under this Bill could a national effort be made to rid the country of the carrion crow and the magpie? They pick the eyes out of calves, kill young birds and so on.
I am told the game councils are engaged in this effort.
The number of magpies is on the increase and they drive out song birds.
We are not affording them any protection here.
I would like the Bill to be more positive in certain areas.
We assist in campaigns to control foxes.
They multiply where there are a great many trees—protected forests—and do untold harm.
Are we having second thoughts about the cormorant? Before the Bill went to the Seanad, they were included.
Deputies may thank the Seanad for the deletion of these birds. They were on the black list but as a result of discussion in the Seanad they were deleted.
The black shag is often mistaken for the cormorant.
Is the Minister convinced that it was not necessary to include them in this Schedule?
I am convinced that species needs protection. We cleared that with the Department of Agriculture and Fisheries. The point of view put forward in the Seanad was that it should be, and needed to be, protected. Further investigations brought me down on the side of those who said it needed protection.
Can he be put back later?
Yes, he can.
The board of conservators are giving a bounty for his destruction. Will that still continue?
What about cormorants and seals?
Seals come in elsewhere.
Seals are protected under the Fourth Schedule.
I move amendment No. 52:
In Part II, page 65, before "Pine Marten" to insert "Hybrid Red Deer".
I would recommend this amendment to the Committee. Its purpose is reasonably straightforward. As the Committee knows, these species which are included in Part II of the Fourth Schedule are protected wild animals to which a very special degree of protection is afforded because they are, presumably, regarded as being very rare and in some cases perhaps in danger of extinction. The main difference between Part II of the Fourth Schedule and the Fifth Schedule, which is the other Schedule mainly concerned with mammals, is that subsection (8) of section 23 does not apply to those animals which are included in Part II of the Fourth Schedule. To my mind these are the pine marten, red deer, seals and whales. The nett effect of that is that, if you are being prosecuted under the provisions of section 23, you cannot put up the defence of sub-section (8) which is to the effect that, if you are able——
. . . to prove that any capturing or killing complained of was urgently necessary for the purpose of stopping damage described in section 42 (1) of this Act being caused and that in the particular circumstances of the case it was not practical for him to apply to the Minister beforehand for a permission under section 42 of this Act and that the defendant reasonably believed that damage mentioned in the said section 42 (1) was being caused by the protected wild animal to which the alleged offence relates or by protected wild animals of the same species as that of such protected wild animal.
In other words, we have a situation where various species are protected under the general provisions of section 23 and then, in regard to the general run of these species, subsection (8) provides this special defence. Now animals which are included in Part II of the Fourth Schedule do not have that special defence applied to them. I hope I am making that clear, but I think most members understand what I am at. Anyway, included in that very specially protected number of species is the red deer, Cervus Elaphus, which is perhaps one of the few, if not the only, last remaining native mammal in Ireland. There are four species which are native to Ireland—the red deer, the badger, the wolf and—I cannot remember the fourth. Anyway the red deer and the badger are, I understand, the last two remaining mammals and therefore the Department very rightly take a very interest in red deer and are very anxious to protect this original Irish species. I think it is the largest native mammal there is and, in so far as the herd of red deer at Killarney is concerned, the Department and the Wildlife Service are very concerned with the situation there and are actively engaged in a programme of seeking to preserve what remains of the red deer there. It is arguable, I believe, that this Killarney red deer is the only genuine original Irish red deer left. That may or may not be so. It probably is so, but in Wicklow too there is a herd of red deer. They may have been imported but they are now at least indigenous Irish red deer. I understand they interbreed with the Japanese sika and, therefore, whether or not there are any pure bred red deer left in Wicklow I just do not know. There is certainly a very large number of hybrids—that is, red deer which have crossbred with Japanese sika. They divide into two parts; some of them tend towards the sika and others, I understand, tend towards red deer.
The simple purpose of my amendment is to put these hybrid red deer into the same specially protected category as the red deer themselves. Whether or not the purist would regard them as valuable as the red deer is, I think, largely immaterial. In many cases they are so indistinguishable from the red deer that there is every argument in favour of protecting them as jealously and as carefully as the red deer themselves.
I recommend to the Committee and to the Minister in particular that these hybrid red deer—we are, I think, talking mainly in terms of Wicklow—will be afforded the very same high level of protection as the four species in Part II of the Fourth Schedule.
For the purpose of the record, may I follow some of the ground covered by Deputy Haughey? The purpose of Part II of the Fourth Schedule is simply to list the species of protected wild animals referred to in section 23 (8) which are regarded as being rare. The Deputy's point is met in section 23 (8), the gist of which is as follows:
Where a person is prosecuted for an offence of unlawfully capturing or killing a protected wild animal (that is, any of the species mentioned in the Fifth Schedule), it will be a defence for that person to prove (a) that the capturing or killing was done to stop damage being caused to such things as agricultural crops, forestry, fisheries etc. and (b) that it was not practical for him to seek the prior permission of the Minister or his local officer under Section 42.
The only exception to this good defence would be where the animal involved is of a species included in Part II of the Fourth Schedule. This is, indeed, made quite clear in the first few lines of section 23 (8), which reads:
In any proceedings for an offence under this section relating to a protected wild animal which is of a species other than a species specified in Part II of the Fourth Schedule to this Act. . . .
Against that background I come now to the Deputy's proposal and here I would refer him to the definition of species in section 2. There he will see that "species" includes subspecies and hybrids. It follows that the species of protected wild animal known as "red deer" in the Fourth Schedule includes any hybrids of the red deer. Accordingly, the Deputy's point is already provided for and his amendment is not necessary.
I do not follow that. The Fifth Schedule includes "deer species" and I took it that that inclusion of "deer species" in the Fifth Schedule would bring red deer hybrids into that Schedule. I assumed that bringing them into the Fifth Schedule excluded them from Part II of the Fourth Schedule.
No. The Deputy's point is already provided for and his amendment is not necessary. I will concede, however, that there is a drafting inconsistency as between the heading to Part I and Part II of the Fourth Schedule inasmuch as the heading to Part I refers to "Species of Wild Bird" whereas the heading to Part II—which should correspond—does not include the word "species". This may lead to some doubts or misgivings. However, I should like to inform the Deputy that it is my intention to change the heading to Part II of the Fourth Schedule to read:
"Species of protected wild animals referred to in section 23 (8)."
This will be done by way of a simple editing correction, as I am advised that, under the Interpretation Act, 1973, such things as a heading or a crossline or marginal note are not a substantive part of an Act.
I am grateful to the Minister for that approach. I am not sure that the wording at the top of Part II of the Fourth Schedule is all that important in this connection. What I would be concerned with is that the Fifth Schedule specifies "deer species" as coming within the Fifth Schedule. In the interpretation section it states that species includes subspecies and hybrids and, therefore, the Fifth Schedule, undoubtedly, includes hybrid red deer. If the Fifth Schedule includes hybrid red deer does that not, ipso facto, mean that red deer in Part II, because thay are specifically instanced in Part II of the Fourth Schedule, does not include hybrids?
Would the Deputy return to section 23 (8) which states:
In any proceedings for an offence under this section relating to a protected wild animal which is of a species other than a species specified in Part II of the Fourth Schedule to this Act,
I have taken steps to ensure that red deer in Part II of the Fourth Schedule includes species of red deer. From the definition in the earlier part of the Bill the Deputy will be aware that it specifies that species also includes hybrids.
I see the Minister's point clearly now, that section 23 (8) specifically refers to species and if one puts "species" at the top of Part II, taking into account the definition of species in the definition section, hybrids are included. On that assurance I would be prepared to withdraw the amendment. What we are really concerned with here is the outlook of the Minister's Department on this matter.
I can assure the Deputy that my Department have a high regard for the native red deer and are anxious that it should have the ultimate protection afforded by this legislation.
I fully accept that and admire the Department for what is being done in this field. Were it not for them the situation would be intolerable. I am concerned that their special interest in red deer would include the hybrid red deer. Now that the Minister has assured me that it does I am happy about the situation.
I can give the Deputy an unqualified assurance.
Would the Minister indicate the position of the eagle. Under section 42 (1) a farmer can offer as a defence the fact that he shot a protected bird or animal in the interest of agriculture but supposing he shoots the only golden eagle we have what is the position?
That defence does not extend to the eagle. I am certain of that. That is the meaning of it being in the Fourth Schedule.
It is given absolute protection?
He cannot shoot him without the Minister's permission.
From being a good defender of species I should now like to go to the other side of the fence and talk about seals. Seals are a case where I am not so sure subsection (8) should not apply. In section 42 (1) a fishery is one of the things which can be damaged by a protected wild animal. Some of us have had experience of seals damaging fishing activities and, therefore, would it not be desirable, in some cases at least, that the defence of subsection 23 (8) should be able to be invoked where a seal is damaging a fishery?
I do not hold myself out as an expert on this and I can only act on the best scientific advice advailable to me. The best advice available to me as of now is that seals are rare animals which need special protection. However, like all other mammals in Part II they are moveable and next year they could be found in the Fifth Schedule.
I accept we always have that protection. I accept that the Minister is fully, adequately and scientifically advised on this matter but I know of instances where seals did serious damage.
Seals are the bane of fishermen's lives. They chase salmon into the net and destroy them and the nets.
They can wipe out a whole net full of fish.
Under a provision of section 42 permission may be obtained to despatch mammals protected by Part II of the Schedule. I imagine that if the seals are doing damage in an area that fact will be brought to the notice of the Department and permission obtained.
In places on the English coast they have bounties for killing seals. Section 23 protects them and I am asking if, because of the damage they can do, the defence of section 23 (8) should not be available to fishermen and farmers. This is for the Minister's consideration—I do not know enough about it to press it one way or the other.
When the Bill becomes law there will be a monitoring system in regard to birds and mammals. The defence procedure in the Bill has in mind the protection of crops and animals.
Fisheries are mentioned especially. The defence is given by section 42 (1), and that specifically includes fisheries. It is not difficult to visualise a situation in which a fisherman might have to deal with a seal in the interests of his catch.
The Deputy is aware that section 42 (2) gives the Minister authority to grant permission to dispatch a seal?
I am dealing with a different set of circumstances. Section 23 provides protection for the species and the Minister can give licences under it, but he leaves out the farmer or the fisherman who suddenly and unexpectedly has to dispatch a marauding animal, even though it is protected. That defence should be available in the case of seals in the case of danger to fishermen's catches.
That is the Deputy's opinion and I respect it, but as of now my advice is that these animals need protection.
I am aware considerable damage has been caused to fisheries and to the State weir in the lower Shannon, which was irreparably damaged.
There is machinery in section 42. All the Deputies have said will be taken into account.
Fishermen think we are mad to protect seals.
I see both sides of the case. I should like to see them protected.
If I were to refer to one of my colleagues as "a natterjack toad", would that be unparliamentary?
Who are the said gentlemen? What are they?
Does the fact that the term is included in a statute make its use parliamentary? If I called Deputy Desmond a natterjack toad——
The natterjack toad, which is the only amphibian on the list, is sometimes called the black frog or the running toad. Unlike frogs, toads can walk. It is usually found along the coast in salt marshes and sand dunes where it can burrow easily. It hibernates from October to February. It is a western European species and in Ireland its distribution is confined to parts of County Kerry.
The following is the suggested report of the Committee:
The Special Committee has considered the Bill and has made amendments thereto. The Bill, as amended, is reported to the Dáil.
Report agreed to.
Ordered to report to the Dáil accordingly.
Before we leave, I should like to thank you and all other members of the Committee for their co-operation in processing this very long Bill through Committee. We made good progress, especially since the summer recess—we dealt with more than 30 sections and five schedules in three sessions.
I should like to endorse the Minister's remarks. On behalf of this side I thank you for the manner in which you discharged the duties of the Chair, always, as you felt, in accordance with Standing Orders, but occasionally in a fashion with which we were not entirely happy. But that is the price of being on this side, where we must take a secondary position.
I should like to say to the Minister that we have enjoyed co-operating with him in seeing to it that when ultimately this Bill becomes law we will have as good an Act as possible due to our deliberations.
I thank the Minister and Deputy Tunney for their remarks; my staff for their help, co-operation and advice during the fairly lengthy consideration of the Bill; and the other people who worked quietly, silently, to take notes of our deliberations.
The Committee concluded its business at 5.15 p.m.