Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Tuesday, 23 Oct 1928

Vol. 10 No. 30


Government Amendment—Section 1. To delete in line 14 the words "Lands and."

This is a purely drafting amendment. In the Order now out. I am no longer Minister for Lands and Agriculture, and that is why it is proposed to delete the words "Lands and."

Amendment agreed to.
Government Amendment—Section 3. After the word "adapted" in line 44 to insert the words "and amended by this Act."
Amendment agreed to.
Government Amendment—Section 5, sub-section (1). To delete in line 36 the word "or" and to substitute therefor the words "any tree or to."
Amendment agreed to.
Government Amendment—Section 5, sub-section (1). After the word "tree" in line 37 to insert the words "over ten years old."

The object of this amendment is that nurserymen shall not be under the necessity of applying for permits.

Amendment agreed to.
Government Amendment—Section 7, sub-section (1). To delete in line 24 the word "section" and to substitute therefor the word "Act."
Amendment agreed to.
Government Amendment—Section 7, sub-section (5). To delete in line 58 the words "or farming implements" (inserted in Committee).


This amendment, I understand, is moved in pursuance of a change made in this House during the Committee Stage?

Amendment agreed to.
Government Amendment—Section 7, sub-section (5). After the word "holding" in line 62 to insert the words "or for the construction or repair of farming implements for use on any of the said holdings."


I do not object to this amendment, but I rise for the purpose of asking a question as to the manner in which this section will be worked by the inclusion of the amendment. I admit that it is a logical extension of the other amendment that we have just passed, but I would like to know how the section is going to work. At the beginning of the section it states that the Minister may make a prohibition order, except in the case of exempted trees, and this is one of the definitions of an exempted tree. It does not seem to me to be clear as to who is to say whether the tree is exempted or not. Is it the person who produces the felling notice, or is it the Government is to say whether a tree is exempted or not? Say that I want to cut down a tree. Do I specify in my felling notice that the trees that I propose to cut down are exempted trees within the meaning of this section? If so, does the Minister, through his officials, satisfy himself that these trees are exempted, or is it done the other way around. Is it up to the Minister to discover, after I have produced my felling notice, whether the trees are exempted trees or not?

The next question that I want to put to the Minister is in connection with paragraph (d) of sub-section (5), which deals with trees not necessary for the ornament or protection of the holding. Who is to decide that question? Will it be the referees who are to be established under a later section of the Bill, or the person who wishes to cut the trees down? The paragraph as it reads seems to me to open up a big vista of difficulties, because, after all, the owner of a holding may know what trees are necessary for the protection of his holding. The owner of the holding, the Minister or the passing tourist, may entertain very different ideas on the question as to what trees are ornamental and what trees are not. It seems to me to be a thing which nobody can definitely determine. I would like to know in what way the Minister contemplates that the question shall be determined.

In the felling notice, a person proposing to cut down a tree may apparently claim exemption on the score that the tree is to be used as timber for the construction and repair of buildings, etc., or, among other things, for the making of farming implements. The tree may be intended for that purpose, but is there any guarantee that it will be used for that purpose? It is not difficult, for instance, to conceive that a man wishing to put up a hay barn, and having some nice larch poles standing on his holding, may make application to cut them down for the purpose of building the hay barn. But having got permission to cut them down, and having done so, he may find that these larch poles possess a certain value in the neighbourhood, and instead of using them for the purpose of building the hay barn, he may send them to the nearest saw-mill. The man may go on intending to build his hay barn and continue to cut more trees on his holding, and, as in the first case, instead of using them for that purpose, he sends them to the nearest saw-mill. That is perhaps an extreme case to give.

The point that I want to bring out is this: is there any sort of a guarantee that the trees will be used for the specific purpose for which the exemption order was granted? Under this paragraph of the sub-section, it is provided that trees may be exempted on a man's holding for, say, the putting up of hay barns on somebody's land which is "in the immediate neighbourhood." I submit that is a rather vague term to use. The person in the immediate vicinity may be living a mile or two away. The wording of this paragraph seems to me to offer a tremendous vista of difficulties. Reading this paragraph of the sub-section, it seems to me that a really ingenious person, wishing to cut down trees on his holding, could find a loop-hole almost for getting an exemption order in respect of any tree that he wanted to cut down. As the clause stands, it does not seem to me to provide any sort of a real check on the cutting down of trees. Perhaps the Minister may be able to give me some comfort on the points that I have raised.

The trouble about the Bill is that in one respect it is too lax and in another it is too strict. With reference to the first point raised by Senator the Marquess of Lansdowne, a person applying for leave to cut down a tree would state in the notice for what purpose the tree was required. Supposing he said he wanted to cut down a tree under section F. as being a dead, decayed or damaged tree, he states that in his notice. He cuts the tree and sells it to a local saw-miller, and for doing so he can be prosecuted. It may be possible to bring evidence before the court that in fact this tree which he said was an exempted tree because it was dead, decayed or damaged was sold for commercial purposes, and that the owner of the tree got the full value for it, and if that were proved then he would be convicted.


Here is the trouble. Supposing he bona fide thought the tree was dead, but when he cut it down he found it was quite sound and sold it?

There is a difficulty. There is really no answer to that. If he proved that fact in court the judge would take it into account and would dismiss the case or impose only a nominal fine. I do not see how you can provide against that. Senator the Marquess of Lansdowne spoke of a case where a man deliberately cuts down a tree knowing that it is not an exempted tree and uses it for a commercial purpose.


He may change his intention having seen the tree when cut.


Paragraph D is the more difficult one, where it depends on the declaration of intention, which may be perfectly bona fide at the time, but he may honestly change his opinion after.

I cannot think of that occurring except in very rare cases. Where it does occur if the case is brought before the court and he proves he was absolutely bona fide the court would dismiss his case—that is, if the Department were foolish enough to bring it. I do not see how you can meet that case by any possible amendment to the Bill. It cannot be done. Life is too complex to cover every possible subtlety by a section in an Act of Parliament. If he cuts a tree and finds he cannot use it as an exempted tree, for some other reason that has revealed itself after he cut the tree, that fact could be brought before the court and the court would deal with it.


The difficulty it appears to me is: Suppose the individual who cuts the tree has the intention, real or unreal, to cut it down for the repair of a building, but he does not do so, where is the provision for prosecuting him? What offence has he committed? Such a case never comes up at all before a court as far as I can see.

Very well. Take that case. A man serves a notice to say that he wants to cut the tree and dispose of it for the purpose of using it for fencing his holding. He cuts the tree, and then proceeds to sell it to the owner of a saw-mill. It is not an exempted tree any longer. All the circumstances must be taken into account. The Forestry Branch prosecutes him and says: "You have cut a tree without a licence." He puts up the case that the tree is exempted. How does he prove it is exempted?


He says: "No, I intended to use it to repair my neighbour's pig stye. After I cut it down I found it was too good for that purpose and I sold it."

If he sells that tree it is a tree used for commercial purposes, and surely any judge must hold that.


I think I could get out of it.

Would it not be covered by Section 6?

(1) Where a felling notice contains a statement that a tree is being cut down or uprooted for a specified purpose, it shall not be lawful for any person to use or deal with such tree or any substantial part thereof or cause or permit the same to be used or dealt with when cut down or uprooted in pursuance of such felling notice for any purpose other than the purpose so stated in such felling notice.

(2) Every person who uses or deals with a tree or any part thereof or causes or permits the same to be used or dealt with in contravention of this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding five pounds for every such tree.


After he has done that what is to become of the tree?

That is another case, but there is no doubt he can be prosecuted under Section 6.

He owns the tree and, having paid his fine or having gone to jail, he can do what he likes with the tree. He is welcome to do that.


Who follows up the tree? Would the Civic Guards be used for that purpose?

I admit any ingenious man could get through the Act five times out of ten, but if you administer this Act by employing inspectors who would have to visit every farm to see what was doing you would want four times more inspectors than there are in the Department, and a huge sum would have to be provided to do it. It is not the way you can administer the Act. The only way you can administer the Act is by setting out offences specifically. People will get away with offences occasionally, but you can deter people by coming down on them when you get a good case. We do not intend to administer the Act by inspectors but by getting good cases and by having offenders heavily fined, and consequently make other people less liable to commit offences.


Will the local Civic Guards have orders to see that the trees are used for the purpose stated in the felling notice?

Of course.

If the purpose for which the licence is given is not carried out, if the owner were to cut a large plantation for the purpose of selling the timber to his neighbours and if this had not been stated in the felling notice, would he not be prosecuted for obtaining a licence under false pretences?


No, because he might have an honest intention of using the timber himself when he cut the trees down, but he may find after he has cut the trees that they would not be fit for the work at all.

He has to prove his bona fides.

No matter whether a tree is an exempted tree or not, a felling notice would have to be served?

The words of the section are: "Whenever a felling notice has been given in respect of any tree the Minister may, unless such tree is an exempted tree within the meaning of this section, within but not after twenty-one days from the date" and so on. A man might say that the tree is an exempted tree and he wants to repair his pig sty with it and could go ahead——

The wording of the section is quite clear, and I am advised by lawyers that the felling notice must be served on all occasions.

Amendment agreed to.

Unfortunately, I was not present at the Committee Stage on account of my health; but the Seanad kindly allowed some of these amendments to be carried on to this stage. I put down an amendment to this sub-section which reads:—

Section 7, sub-section (5). To delete all after the figures "1928" in line 5 down to the end of the sub-section, and to substitute therefor the words "from the Land Commission and that the tree or trees had been allotted to the purchaser as part of the bargain for the purchase of the land."

I put down the amendment because it did not seem to me that the statement in the Bill covered the matter completely of all the cases that might arise. My view is—from what I know of what is happening in these cases and I am more or less connected with these matters—that the Land Commission sell a piece of land, pledging themselves to allow the owner to cut down the trees, that the trees belong to the purchaser. The purchaser may require to sell them in order to raise money for the purpose of stocking his land. He has already made that sort of an agreement and made it before this Bill came on at all. Now the Bill comes in and he is prevented from doing what he had already agreed with the Land Commission to do and which the Land Commission had agreed that they would allow him to do. The effect of the Bill would be that the Land Commission give with one hand and take away with the other. Perhaps the Minister would see some way out of that.

If Senator Colonel Moore's amendment is accepted it means that any tree growing on purchased land is an exempted tree. That is the meaning of the amendment. That is how it would work out in practice. The trees on the land are part of his security.

It suits a man who wants to raise a loan.

An advance was made to the tenants by the Land Commission and the security for that advance is the land, the trees and everything on the land. So that in fact this particular exemption would apply to every tree on every holding subject to a Land Commission annuity. The effect of the amendment would be to give a free hand to every tenant to cut any tree he wishes, because it would work out as an exempted tree.

It is only in cases where the Land Commission have already committed themselves to the fact that the trees belong to the purchasers. It would be only in such cases. If the Land Commission said nothing and did not commit themselves by saying that the trees belong to the purchaser, then they come in, but where the Land Commission pledged themselves to one thing, then all that is reversed.

The Land Commission's advances are on the trees growing on the holdings, so that the Senator can take it that in the case of every purchased holding the land and the trees are the security for the advance. That is the position. The Land Acts in all those cases provided that before any tree was cut the consent of the Land Commission was to be obtained. The only change I am making is this— that the consent of the Forestry Branch of the Department of Agriculture is to be obtained now instead of the consent of the Land Commission as formerly, so that it is as broad as it is long. The owner must get the con of the Forestry Branch instead of the Land Commission.

In view of the arguments we had here on the previous day in regard to the question of land mortgages, would the Minister say that the trees were a substantial portion of the securities for which the money was advanced? In certain circumstances permission would be given so as to allow the trees to be cut and thus permit the bank to be recouped. The position is that in the one case the State has advanced money through the Land Commission, and in the other case the money was lent by the bank. The security for the advance is the land, the trees, and the buildings, and if the tenant finds himself in a difficulty and wants to meet his liabilities, why not allow him permission to fell his trees, so as to be in a position to pay his annuities? He should be allowed do so in the one case as well as in the other. I do not see any difference in the world, and whatever regulations would apply to one ought to apply to the other.

It is a question of degree, but it is that degree that makes all the difference in the world. Where the Land Commission makes an advance on the land you have a different position from where the advance is on the land and on the trees. But, nevertheless, they do retain substantially as a portion of their security whatever trees are on the land. That is how it works out in practice. In an ordinary holding the land is the security. At the same time, in order to see that their security is as full as possible they retain the right to dispose of the trees on that land. I am assuming that the Senator is referring to the case put up by Senator Brown. As I understand it, Senator Brown's case refers to a case where the main portion of the security is not the land, but the trees on the land. It is only a difference of degree, but, from a business point of view, that makes all the difference in the world.

In the case that was mentioned by Senator Brown the trees formed the main things secured. If that is not specifically stated in the mortgage deed then the tenant ought to get the same facilities as in the case I have just mentioned.

Practically the only case in which the trees are the main portion of the security is the case of a demesne bought back by the landlord. If my friend is anxious to protect the possible purchasers he is taking a rather unique stand.

I had in mind the case of land valueless for grazing purposes but under timber and, therefore, of value from that point of view. In that case the trees would be the main security. It is a business matter, pure and simple.

I must be excused, being a city man, for interfering in this question. I am still of the opinion that the same facilities should be offered to the tenant in this case. If it is fair where the bank has advanced money that the trees can be cut down ad lib, it should be equally fair where the State has advanced money for the tenant to cut down the trees in order to meet any liability to the State.

In the case mentioned by Senator Farren he wants to discharge the interest and in another case he wants to discharge the liability for part of the capital. The Senator thinks that a man should be allowed to sell trees for the purpose of paying off portion of the money advanced by the Land Commission.

Amendment, by leave, withdrawn.

I desire to move amendment 5:—

Section 5, sub-section (3). To add at the end of the sub-section the words "the total fine in any one case not to exceed one hundred pounds if the Justice is of opinion that the offence was not committed wilfully but as the result of a bona fide mistake."

I think the Bill as it stands is much too severe. Its possibilities in matters of this kind are rather infinite. For example, there might be a misunderstanding between the owner of the trees and the man appointed to cut them down; or there might easily be cut down some trees for which a licence had not been obtained. Then, again, there could be a misunderstanding in regard to some trees other than the trees for which the licence had been got. If the terms of the Bill as it stands were strictly carried out it might easily mean that a man, through some misunderstanding or other, would become liable to a fine of £500. In the circumstances, I think that the amount mentioned in my amendment is reasonable.


The Minister has intimated to me that so far as he is concerned he is prepared to accept the amendment subject to an alteration in the drafting. The amendment as it stands is rather awkwardly drafted. Precisely the same thing is contained in an amendment which the Minister is prepared to submit.

This is what I would suggest: "but where it is shown that the commission of the offence was the result of a bona fide mistake of fact the total penalty in any event shall not exceed one hundred pounds."


That is precisely what you want, Senator.

Amendment, by leave, withdrawn and substituted amendment agreed to.

Amendment 6, which is in my name is similarly worded to amendment 5, and in the circumstances I desire to withdraw it also.

I beg to move amendment 11:

Section 7, sub-section (5). To delete paragraph (h) (inserted in Committee) and to substitute the following paragraph therefor:—

"(h) a tree in respect of which it is stated in the felling notice that the land on which such tree is standing is subject to a mortgage or charge subsisting at the passing of this Act and that such tree together with other trees (whether included or not included in such felling notice) standing on such land is a substantial portion of the security for the payment of the moneys secured by such mortgage or charge and that such tree is being cut down for sale with the intention of applying the proceeds of such sale in or towards payment of such moneys."

This is in substitution for an amendment which I proposed. The principle of that amendment was accepted by the Minister. It was simply a question of proper drafting, and I am satisfied with the amendment as it now appears. I had an opportunity of considering it with the draftsman and he explained to me that the wording that now appears is there for the purpose of making it correspond with the other portions of the same section.

Perhaps I had better explain my attitude. There was a clause inserted in this Bill in the Dáil and it was agreed to by me. Various parties spoke to it. It refers to trees which were sold before the passing of the Act. That was a case of a bona fide contract being entered into. The contract was legitimate within the existing law and it was feared that retrospective legislation would interfere with that contract. That is wrong. It seems to me if that principle is admitted that I have no logical grounds to accept the amendment. In the amendment there is no question of principle involved; it is a question of expediency. When I read it a case came to my mind where a bank lent money on the security of three hundred acres of land which, if cleared of timber, would not be worth more than £5 or £6 an acre. The land itself is almost valueless. It would not be worth more than £1,500, but with the timber it is worth £2,500. If a mortgage was taken on the right to cut timber that seems to be a case where a conditional contract was entered into under which a third body had the right to cut the timber and had in fact paid for the timber. If once you allow contracts for the sale of the timber made before the passing of the Act I cannot see any reason why it could be otherwise than free from interference by the Minister or the Forestry Branch. It is a totally different case from that put up by Senator Moore. That case refers to a man in the country who has a line of beeches or a small copse growing by his mearing and he wants to cut down those trees. Those trees would be a negligible part of the security and the land in that instance would be the main security. There is no reason why in the case where trees form a large proportion of the security for the Land Commission, the tenant should be allowed to sell them freely. It might mean that instead of selling the timber the tenant might sell the land—sell out the whole place. There will not be much agitation, because it is timbered land. If the tenant were free to put up the timber for sale it would be a different case altogether.

Amendment agreed to.

I desire to move amendment 12:—

New section. Before Section 8 to insert a new section as follows:—

8. Whenever a prohibition order has been made and served in relation to trees situate on land one-third of which is afforested, such land shall as and from the date of the order cease to be liable to rates and taxes, and if such land be subject to land annuities these annuities shall not be collectable while the order is in force."

This amendment and another amendment lower down on the paper have the same object in view. In my opinion this Bill consists entirely of pains and penalties. The State is taking over and confiscating things that do not belong to it; they are things the State has no claim over. The owner of land or his ancestors have planted trees and for a great number of years the rights of grazing or agriculture on that land are sacrificed. The proposal, under the Bill, now is that the State shall come in and take hold of these trees. The State shall become the partner, the very powerful partner in the ownership of this land.

It has that power of direction, if it chooses to exercise it, to almost any extent. Now, I am not against preserving the trees—I am very much in favour of it—and everything I say is for the purpose of doing so. But I do not believe that the trees can be saved by putting penalties on people who have sacrificed a good deal already for them, who are fond of them and who have kept them there under great difficulties, perhaps for several generations. If the State wishes to come in in this matter, I think that it ought to take some share in the partnership expenses as well as anything else. I do not see how it is reasonable for the State to come and say to a certain person: "You have got that land under trees. You will not be allowed to use it for any other purpose. You cannot cut down the trees and use it by planting potatoes in it, or in any other way. You must leave it as it is, because we wish it to be so." You are doing nothing to encourage the planting of the trees, because there is not a single thing in this Bill which encourages the occupier to plant. If you put people into that position they will take no trouble about preserving their forests; they will be only too glad to get out of that position as soon as they can.

As the Minister has already said, it is very easy to get out. I have something to do with a certain forest, one of the oldest forests in Ireland. Supposing I were put in that position, and they said to me: "You cannot cut the timber. You cannot use the land for any other purpose, because there are trees on it and it is useless for any other purpose," what interest would I have any longer in that forest, which has been there from times primaeval, and which forms a part of the beauty of the country? If I am put in that position, I say: "Very well, the sooner it is cleared of trees the better." I cannot do it, because I would be prosecuted, but anyone who likes to come and cut it can do so. There are plenty of poor people around there who have sufficient turbary sometimes, but who, in a bad season, have no turbary to speak of, and if they come, I will shut my eyes to anything that is done, and nobody will know, because it is miles away from a police barracks. It seems to me that there should be certain co-operation between the State and the owners once you begin to take rights away. Up to now, the owner had a right to preserve his trees as well as he could, and he had certain reasons for doing so. That will now cease, and unless you give him some sort of interest in the matter, help him to replant, or enable him to allow the trees to stand without expense, you will not get him to do it. This Bill will do a great deal more harm than good, in my belief, and therefore, as I do not expect the State to do what it really ought properly to do—that is, buy the land—I am only taking a certain intermediate course, and am saying: "Why charge for land, the owner of which cannot use it for any profitable purpose?" He cannot use it for grazing, because if he did, the trees would soon go. Therefore, I suggest that some sort of an arrangement ought to be made by which the owner would benefit from the trees standing on his land. I think that if it is really desirable, in the interests of the country, to have timber, the State ought to take some step to help by means of a partnership.

The Senator wants powers to be given to the Minister for Finance to compensate in some way people who planted trees and cannot cut them. That is really what it comes to. There is power already in the Forestry Act, 1919, and in this Bill we repeal any limitation of that power. Section 3, sub-section (3), clause (d) of the Forestry Act of 1919, says: (d) "Subject to any directions which may be given to the Treasury the Commissioners shall have power to make advances by way of grant or by way of loan or partly in one way and partly in the other and upon such terms and subject to such conditions as they think fit to persons (including local authorities) in respect of the afforestation (including the replanting) of land belonging to those persons." That gives power to the Minister for Agriculture, with the consent of the Minister for Finance, to make a grant to anyone in connection with afforestation.

A grant or merely a loan?

"By way of grant or by way of loan." I assume that is the purpose that the Senator wants to effect. I suggest that this is a much better way of doing it. He suggests exemption from rates, taxes and Land Commission annuities. Whatever view the Senator may hold, he will agree that there would be a number of implications in relieving lands of rates and taxes, and also of annuities. As regards the rates, the county council has budgeted for a certain expenditure, and they cannot proceed if for this reason or for that reason certain lands shall be free of rates, because it would upset their whole budget. The same applies to taxes. The considerations applying to annuities are so big and so contentious that I do not want to go into them. But you can do the same thing in a different way. If the Minister wishes to do it, he has power to make a grant or loan, and that is what the Senator wants to effect.

What must the grant or loan be for?

"Upon such terms and subject to such conditions as he thinks fit to persons in respect of afforestation (including the replanting) of land belonging to those persons." It could not be wider.

I am afraid if I asked the Minister for anything of the sort, I would get very little out of him.

That is another thing.


I think you might coax him. I think amendments 15, 16, 17 and 18 are all proposed to be inserted by the Minister as a result of a promise he gave on Committee Stage.


The House will remember that the question was raised that there was no check upon the discretion of the Minister in regard to issuing notices of prohibition and so forth—that he was purely autocratic in the matter. The Minister suggested that he would consider it with a view to seeing how far he might avoid that by clauses which would compel him to give his reasons in cases of prohibition, and so enable the matter to be reviewed by a board of referees. That is all done in these clauses.

Government amendment—Section 8, sub-section (1). After the word "Minister" in line 15 to insert the words "on the application of the owner of such tree made in the prescribed form and in the prescribed manner."


This is purely a drafting amendment.

Amendment put and agreed to.

I move:—

Section 8. To add at the end of the section a new sub-section as follows:—

"(4) In every case in which a licence granted under this section contains a condition of the kind specified in sub-section (2) of this section, the Minister shall, on demand, cause to be supplied and delivered to the licensee young trees of the kind specified and to the number required, free of cost."

Perhaps the Minister will give me the same answer to this amendment as he did to the last.

The position is that there is power to do it. I cannot now give a general answer in connection with every application that will come to the Forestry Branch. The Senator will agree that I could not do that. All the Dáil or the Seanad can do is to recognise the general principle that the Minister for Finance may make a grant or lend money. What more does the Senator want?


Has not the Minister to provide the trees?


I would like to support this amendment, because otherwise this section will be an absolutely dead letter. There is no use planting a tree unless it is a tree with proper roots to it. If it is merely a case of a man cutting down a tree and bringing along the sergeant of the Civic Guard to show him a tree or trees planted somewhere on his holding, the section is not worth the paper it is written on. If the trees are not fenced properly, the first time cattle come along they will destroy them. Even if they were fenced, the Minister knows that after putting a tree in you have got to look after it and to relieve it for the first few years or it is purely money wasted. You have also got to see that the trees are properly rooted. I think something more is wanted, if this is not to be a dead letter, because the trees will inevitably die unless they are properly tended.

I think that Senator Moore's amendment is a reasonable one if the Forestry Department is out for reafforestation. We assume that they have big nurseries. This amendment deals with a licence granted under a specific condition, the condition being replanting. We all know that in afforestation the provision of trees is hardly a tithe of the cost. It is draining, fencing and getting rid of vermin that cause most expense. I think that the proposition should be accepted by the Government, and that the amendment is a very reasonable one.

I think also that this is a good amendment. Anybody who is in the habit of planting trees will agree. The question of getting small trees is a very important matter. There are two aspects of the question to be considered. In the first place, we have to consider what is a proper tree that will grow in a particular locality, and on that aspect one can obtain better advice from the Forestry Branch than from any other body. In the second place, you want trees that are small and properly rooted, and I think that the Forestry Branch might look after that to a certain extent too. Then there is the question of the expense of replanting. Everybody who has planted trees knows perfectly well that the cost of the trees compared to the cost of planting and care of the trees is practically infinitesimal. At the same time, it would be an encouragement if, when a man wanted to plant trees or to replant a plantation, he would be certain that he would get the trees from the Forestry Branch. That would help him to a very great extent in deciding to replant his plantations. We know, of course, that the main expense in planting trees is caused by fencing and draining, but the question of getting trees properly rooted is a question of great importance, as is also the question of getting suitable trees for the locality. I think that the Minister, having got on so well with the Bill, might at least give this help to people who want to replant by giving them trees. The Department can make them a present of trees which they can obtain from the Forestry Branch.


The only objection I would suggest to the amendment is that it is mandatory and that it gives the Minister no opportunity of saying "This is a case where they are not required." I think the Minister would be prepared to accept the amendment if, instead of the words "on demand," the words were inserted "the Minister shall, if satisfied of the need." I think that would carry out all you wish, Senator.

Of course the order is mandatory to do this.


It is mandatory. If he is satisfied of the necessity, he could supply the trees.

I would like to consider that question. Perhaps, after dealing with all these amendments, there would be an opportunity to discuss this particular amendment, because in any event the drafting would have to be considered.


The Senator can renew it on the Fifth Stage and the Minister will consider it in the meantime. If he accepts the principle, he will get the draftsman to see how far he approves of my suggestion and will bring it up on the Fifth Stage. I will allow it to be mentioned then.

Would the amendment mean that whenever trees are felled under licence the Minister would have to supply new trees?

Oh, no. If replanting is made a condition.


This makes the condition that the Minister finds the trees.


You will be quite unprejudiced, Senator Moore, by leaving the matter over.

So will I, I suppose.


As I mentioned, amendments Nos. 15, 16 and 17 have been drafted in pursuance of a promise given by the Minister on the Committee Stage.

Government amendments:—

Section 8. To add at the end of the section a new sub-section as follows:—

"(4) Where the Minister refuses an application for a licence under this section he shall state in writing the grounds on which he has refused such application."

New section. Before Section 9 to insert a new section as follows:—

"9.—(1) There shall be established and maintained for the purposes of this Act a panel of referees consisting of such number of fit and proper persons as shall from time to time be found necessary for the purposes aforesaid.

(2) The members of the panel of referees shall be appointed by the Executive Council and every such member shall hold office for five years from the date of his appointment but shall be eligible for reappointment at the expiration of any such term of office.

(3) Every member of the panel of referees shall be paid such fees and expenses for every examination and report made by him in pursuance of this Act as the Minister shall, with the approval of the Minister for Finance, direct."

New section. Before Section 9 to insert a new section as follows:—

"10.— (1) Where the Minister refuses an application for a licence under Section 8 (which relates to licences to fell trees) of this Act the owner of the tree to which such application relates shall be entitled, on sending to the Minister a requisition in the prescribed form and manner and within the prescribed time and on payment of the prescribed fee, to have such application referred to a referee.

(2) Upon receipt of a requisition under the foregoing sub-section, together with the prescribed fee thereon, the Minister shall cause the said application to be referred to a referee nominated by the Minister from the panel of referees for examination and such referee shall make a report in writing to the Minister of the result of his examination.

(3) The Minister shall thereupon consider the said report and shall either confirm the refusal aforesaid or grant the said licence to the applicant therefor.

(4) Where the Minister grants a licence in pursuance of this section the fee paid on the requisition for examination by a referee shall be returned to the person by whom the same was paid."

I would like to say something on the first of these amendments, because it affects the amendment standing in my name later. This amendment as an administrative improvement of the Bill is, I think, very desirable. I think that some machinery of the kind will be found to be necessary. I pointed out at the very beginning of the debate that the administration of this Act will set up very considerable difficulties, and I think something of this kind is needed, too, as a substitution for the machinery which proposes to be set up in the amendment standing in my name. In that respect I do not welcome this new clause, because I do not think it is anything like an efficient protection against arbitrary and unreasonable action as the one which I had proposed, but I am quite prepared to vote for this — it will probably be carried in any event whether I do or not — provided that, ipso facto, my amendment falls to the ground. I think the two are necessary, but the one does not really exclude the other. The form of appeal which is suggested in No. 18 would be, say, a final appeal, and this other a preliminary one. I do not want to take up the time of the House by arguing the point, unless the Minister intends to say when he comes to amendment 18 that it is obviously not necessary, because it has been agreed to.


Your amendment would still be in order, except as regards Clause (1). Clauses (2) and (3) would be unprovided for. That is open to you.

Then I welcome this new addition.


There are two words in the sub-section I should like to hear something more about. They are the "prescribed fee." One can well see that if the person who is putting in a claim as to whether or not a tree should be exempted had to pay the return fare of a referee, it would be rather cold comfort for him.

It is a fee to prevent frivolous applications. For instance, there is a fee to be paid under the present Dairy Produce Act and other Acts. The maximum fee is one guinea.

Amendments put and agreed to.

I move:—

New section. Before Section 9 to insert a new section as follows:—

"9.—(1) When a prohibition order has been made or a licence withheld the Minister shall state in writing his reasons for the making of such order or the withholding of such licence.

(2) When a prohibition order has been made or a licence withheld an appeal shall lie to the Judicial Commissioner who shall determine whether under all the circumstances of the case the reasons given by the Minister justify the making of such order or the withholding of such licence.

(3) Should the Minister make a prohibition order or withhold a licence with a view to the preservation of scenic beauty compensation shall be awarded to the owner and the amount of such compensation if not fixed by agreement shall be determined by the Judicial Commissioner."

It seems to me that this Act is capable of being used as an instrument of tyranny, and that there ought to be an appeal of the most effective character to somebody quite independent. In considering this matter I have looked to the future as we ought to look in the case of permanent legislation. In the immediate future, I do not anticipate that this Act will be applied in an unjust, arbitrary or tyrannical manner, but it might be. I think the Minister's powers are too unlimited. He is improving the position, to a certain extent, by the insertion of the new sections, 16 and 17, which have just been passed, but they fall very far short of the purpose of the Act for a number of reasons. In the first place referees will be appointed by the Executive Council. The Minister himself will be a member of the Executive Council, and human nature being what it is and he, being in close contact with his colleagues, they would be exceedingly likely to take his advice and appoint his nominees. In that way the referee would practically be appointed by the Minister, that is, by the very man whose decisions they would be called upon to investigate. That, I think, is not by any means a perfect arrangement. Then they will be paid such fees as the Minister may direct subject to the approval of the Minister for Finance. They would be selected for each inquiry from a panel. Their employment would be a profitable one. Their fees would be over and above their expenses. Their position will not be permanent, and they will naturally be interested in being appointed. Therefore I claim those referees are not sufficiently independent. They would in fact be very much in the Minister's pocket. There is no need for any appeal at all, if the Minister is always going to act in a just and wise manner but it does not follow that in future Ministers will not act in a very different way. That is why there should be some appeal from the Minister. It will be observed that a Minister is not bound by the amendments which have been passed to accept the advice of the referees at all. The case is reviewed. He has the ultimate say in the matter at the finish, and there need not be any redress at all.

If there were an ultimate appeal to the Judicial Commissioner there would be a different state of affairs. There you have an authority which has a permanent appointment. He has not looked for the job; he is not dependent on the Minister for the warrant of his office, and he would have the power to reverse the Minister's decision. I do not think it would in the least be likely to lead to a great flood of appeals. There would be expenses, and people would not be at all likely to avail themselves of the machinery unless they felt they were suffering under a great injustice. I think the fact that such a method of appeal existed would be a great deterrent to unjust action on the part of the Minister, and for those reasons I propose my amendment.

Having appointed a referee, I take it the intention of the Minister is to accept the report of the referee. He takes power, apparently, to accept or refuse the report of the referee. I think he should say that the referee's report should be accepted in the matter. If that is so, I cannot see any objection to the method of the Act. A referee is to be appointed for five years and Senator Bagwell suggests that he would be more or less under the influence of the Minister. Looking at it humanly, is it not the case that he will outlive the Minister as the Minister has to face his electors meanwhile? So the referee is a person likely to be independent of parliamentary influence.

I admit that the Minister has made an honest effort to give some sort of an appeal in this Bill. I agree with Senator Bagwell that the panel of experts does not really provide a satisfactory appeal. I know there are great difficulties in an appeal to a legal tribunal in a case of this kind, but I do not think that this panel which the Minister proposes to set up is an entirely satisfactory appeal for the reasons given by Senators. I wonder would the Minister accept Senator Bagwell's amendment if it were only to apply to what I might call big cases, that is cases under what was Section 9, I do not know what it is now, where a general licence was refused to deal in cut forestry. I think those are the real cases where an appeal would be valuable and necessary, and perhaps if it were confined to those cases Senator Bagwell and the Minister would agree.

With regard to the suggestion made by Senator Brown I do not think that it would improve the position. No matter who is Minister for Agriculture there will be very little interference by the referee. In fact there will be no interference with those carrying out forestry operations on a big scale. Neither a judicial commissioner nor a referee will in fact be wanted in such cases, and appeals will mostly be taken in respect of smaller estates. I am against an appeal to a judicial commissioner. It is unsound from the point of view of the judiciary and also from that of forestry. I cannot understand Senator Bagwell's point of view, namely, that he is going to be absolutely safe with an independent judge and unsafe with a dependent Minister. It is the independence of the judge which is the difficulty. He should, of course, be independent and there should be no influence to prevent him interpreting the law. It seems extraordinary that apropos of forestry the whole point of view with regard to the judiciary should be changed. You would be making a judge an administrative officer and saying that he shall have certain forestry qualifications and a certain policy. I will no doubt be told: "No, you are not doing that as the judge will examine questions of fact." Everyone, however, knows that it will not work out that way in practice. You will have a judge who has had nothing to do with forestry, but who has all sorts of theories about it. You may have a judge who was never on any lands, who has no knowledge of forestry, and whose views are almost certain to be unsound on it. He may think that under no circumstances should a man be allowed to cut a tree. He may be the sort of man who likes the trees in Stephen's Green, probably the only trees he ever sees. I think there is no denying that. Nobody has any control over him. It is not essential that he should have a knowledge of forestry. He has no experience of farming or agriculture.

Yet Senator Bagwell feels safe in his hands, but most unsafe in the hands of a man who has to get returned first by a constituency and then be nominated to the position of Minister for Agriculture in which capacity he has to defend every action of his in the Dáil. I do not understand that point of view. In seven or eight years time the Senator would, perhaps, find that he had made the mistake of his life, and that he was going from the frying pan very much into the fire by putting himself in the hands of an independent, uncontrolled, arbitrary, and, perhaps, ignorant referee. I suggest to the Senator that his amendment does not improve the Bill. In the first instance the Minister must state his reasons openly, and, secondly, the applicant can appeal to the referee, but the Minister may, and, I think, rightly, be able to turn down the opinion of the referee. What controls every action of the Minister is the fact that he can be challenged in the Dáil, and he is in a much weaker position if the people challenging his decision have the opinion of the referees behind them. He is, so to speak, out in the open and cannot change his hand. The referees must of necessity know something about their job, and it is not for the Minister or the Executive Council to repudiate them. As I say, if the Minister turned them down he could be challenged in the Dáil and would have to justify himself. Apart from all these considerations. I think it is a wrong step to give what are not judicial functions to a judge. That is what it amounts to. If it were carried you would have to allow the trees to be cut as applications were made, and it would make the administration of the Bill impossible for the Forestry Branch. They could not do it. I am against the principle entirely.


The Minister stated that he would have to defend his decision if he turned down the report of a referee, but there is no provision in the Bill that the report should be communicated to the applicant. Would the Minister agree to add at the end of sub-section (2) the words "a copy of which shall be supplied to the applicant?"

Yes, I agree to that.


I think that is a very substantial concession.

Yes, it goes a long way.


I shall now take paragraph (2) separately.

In view of the concession that has been made, and of the strong line taken by the Minister, I am prepared to withdraw my amendment, but in my opinion the Minister takes too personal a line of argument in regard to this matter. I was considering all cases, large and small, in an impersonal way, and it was on their behalf that I endeavoured in some way to restrict the enforcement of the decision of the Minister. We have no guarantee that we will always have the present Minister for Agriculture.


Then amendment 18 is withdrawn so far as Clauses 1 and 2 are concerned. We have now to go back to amendment 17 for the purpose of inserting at the end of sub-section (2) the words "a copy of which shall be supplied to the applicant."

Question: "That the words proposed be added to sub-section (2) of the new section to be inserted before Section 9," put and agreed to.

May I say that Senator Bagwell surprises me, and I desire to assure him that I do not take any personal point of view in the matter. Various Senators have stated that things may be all right at present, but that you could never tell what may happen in five years. I think that point of view is unsound. I think that the checks on any one Minister will be the checks on the next. If the Senator were in as close touch with the Department as I am he would know that it is the Head of the Forestry Branch who counts and not the Minister. That will always be the way. I am not arguing the matter on account of any personal feeling, but I think that it is wrong to give administrative functions to a judicial personage.


I think, Senator Bagwell, you are still at liberty to move sub-section 3 of your amendment as an independent amendment, if you wish.

Perhaps that might also be left over with the other amendment.


The amendment is very much on the same lines as Deputy Colonel Moore's, and the Minister says he will look into it.

I think it is rather less complicated.


He has undertaken to look into both of them. I think the better plan therefore will be when we dispose of No. 19 to adjourn the Report Stage. That will be better than leaving it over for the Fifth Stage.

This covers something a little bit different from Senator Colonel Moore's amendment. In connection with this matter of scenic beauty a good deal has been said. We can all see a case arising in which the owner of a wood wants to cut it down because he is hard up, or for other reasons, and perhaps he will re-plant. Great pressure may be put on the Minister to prevent him from doing so, because the wood is considered to be a national asset, and is a thing which a great number of people enjoy. Great pressure might be put on the Minister in a case like that, and I think that there is a great deal to be said for his exercising his powers in such a case if the owner is compensated. If the owner is not compensated, then I think it is absolutely robbery. As it is a thing which is quite likely to arise, in view of the power given to the Minister I put this amendment down.


The amendment will be considered with Senator Colonel Moore's amendment No. 14, and they will be taken up on the adjourned Report Stage.

The following Government amendment was agreed to:—

New section. Before Section 16 to insert a new section as follows:—

"16. — Paragraph (7) of the Schedule to the Principal Act shall be construed and have effect as if the words ‘and profits a prendre' were inserted therein immediately after the word ‘easements' now contained in that paragraph."

Debate adjourned until Thursday.