Wildlife Bill, 1975: Committee Stage (Resumed).
Government amendment No. 119:
In page 29, before section 36, to insert the following new section:
"36.—(1) Notwithstanding anything contained in this Act apart from this section but subject to section 42, a person shall not hunt or disturb for the purpose of hunting—
(a) any protected wild animal by means of a mechanically-propelled vehicle, vessel or aircraft, whether it is being so propelled or is stationary,
(b) any protected wild bird by means of such a vehicle, vessel or aircraft while it is being so propelled.
(2) Notwithstanding subsection (1) of this section, a mechanically-propelled vehicle, vessel or aircraft may be used to capture or kill, pursuant to and in accordance with a licence granted in that behalf by the Minister and for such educational, scientific or other purposes as are specified in the licence, protected wild birds or protected wild animals of a species so specified.
(3) Subsection (1) of this section shall not make unlawful anything which section 3 (3) of the Whale Fisheries Act, 1937, permits to be done.
(4) Subject to subsections (2) and (3) of this section, a person who contravenes subsection (1) of this section shall be guilty of an offence."
Cavan): Section 36 is designed to stop the wilful disturbance or excessive killing of wild fauna by or from moving vehicles, boats or aircraft. It is, of course, aimed also at the poacher. The recasting of the section is designed to take account of certain points which have been put to me and which I accept as valid.
The first of these, which is covered by the new subsection (1) (a), is aimed at stopping what has been represented to me as a typical poaching activity in so far as deer are concerned, namely, shooting them from a parked car. The amendment extends to stationary vessels, such as boats, and aircraft. This is not as outlandish as might appear at first glance. For example, in certain parts of the country, it would be possible to shoot deer from a stationary boat, also, certain protected species of marine animals such as seals, porpoises, and so on, could be shot from sea-going vessels. As regards aircraft, the availability of private helicopters which could land or hover over an area inhabited by deer could provide opportunities for shooting the deer. The new subsection (1) (b) merely retains the proposal in the original draft in regard to protected wild birds.
The second point put to me — and this is covered by the new subsection (2) — is that bona fide scientists and researchers should be allowed, under licence, to kill as well as capture, protected wild birds or protected wild animals for scientific research purposes. The amendment also proposes to extend the exemption to educational or other approved purposes, for example, the necessary culling of deer on enclosed land where the use of a vehicle by the owner of the land or other authorised person would not be objectionable. The subsection, as amended, would be consistent with and complementary to the provisions in section 22 (7) (a) and section 23 (6) which exempt, under licence, from the prohibition on the hunting of protected species the capture or killing of such species for “such educational, scientific or other purpose as shall be specified in the licence”.
The new subsection (3) is a necessary saver for section 3 (3) of the Whale Fisheries Act, 1937, which permits the pursuit and killing, within the exclusive fishing limits of the State, of a whale which has been wounded outside those limits. The new subsection (4) repeats, with necessary modification, the original subsection (3).
Before the Senator intervenes I might point out that acceptance of this amendment involves the deletion of section 36 from the Bill. Accordingly discussion of the amendment will include discussion of the original section 36.
I want to ask the Minister if this outlaws the use of the punt gun.
(Cavan): No. The punt gun is not dealt with in this section. We have already dealt with that under an earlier section and it has not been completely outlawed or banned.
I am in favour of outlawing the punt gun and it seems to me that the new section 36 (b) more or less does that in any case. There is a certain amount of propulsion of a vehicle involved in firing a punt gun, or in using a punt gun.
It is specifically dealt with in section 36 (1) (b).
Supposing the punt gun with a silencer has been outlawed, it seems to me that section 36 (1) (b) of the proposed new section outlaws it completely.
(Cavan): No. I did not say we had outlawed it completely. As a matter of fact I said we had not. We dealt with this on an amendment under an earlier section.
When dealing with the amendments under section 33, I said that the proposal to delete the punt gun from the existing subsection (1) is prompted by consideration of representations that have been made to me that punt gunning is an art which is now practised in this country by only a few wild fowlers. Moreover, while the type of gun is undeniably indiscriminate in its effects, it has been represented to me that the numbers of birds taken by this method are not at all as great as critics of the sport sometimes claim. If the need to control or abolish this form of shooting arises in the future, it can be dealt with under the powers conferred by subsection (4).
The problem is, as far as I can make out, that the new section 36 (1) (b) would outlaw punt guns as far as protected animals are concerned.
If it was being used from a mechanically propelled vehicle.
It always is. They do not row them any more. Essentially the point is that the punt gun is used from a mechanically propelled boat. That is the situation nowadays. You do not row punt guns any more. You do not have some water buffalo to tow you. You have a mechanically propelled vehicle and you fire your gun off from the boat.
(Cavan): My information is that the punt gun is not used from a mechanically propelled vehicle but is attached to a flat-bottomed boat which is manually propelled. This particular section, as the Senator knows, deals with mechanically propelled vehicles and other vehicles that are propelled otherwise than manually.
My information leads me to the somewhat opposite conclusion that there is an outboard motor fitted to the boat that drives it to within a certain range of the duck and from there on it is rowed. Obviously you cannot come up on these birds with an outboard motor when you are within range. The outboard tends to propel it for a certain distance and from there on you row in. It is quite a standard procedure.
I just want to make this point. First of all, I have never used a punt gun but I have seen it used. The only way in which I have seen it used was the manner which the Minister described. I do not know the particular make of boat. I assume it was a flat bottomed one, but certainly it was propelled manually and the punt gun was used out of it.
On the point Senator West was making, I think he will see that subsection (1) (b) of the amendment to section 36 refers only to the mechanical propulsion while it is being so propelled. Senator West said an outboard motor is used to bring a boat within a certain distance, then is switched off, and the boat is manually propelled from there on. It would seem to me that from there on it is excluded from the section because the shooting is not taking place while the vehicle is being mechanically propelled.
If it is stationary, then it is ruled out under subsection (1) (a). You have to be moving. It is a nice legal point.
As far as I know the practice of using punt guns has practically disappeared. There are very few in use now.
As the Minister said, this is really designed to outlaw certain types of poaching. There are certain types of poaching which use mounted guns on propelled vehicles in some areas. This is really what I was trying to get at. This sort of practice should be stopped.
(Cavan): I do not know what experience Senator West has of the art of using a punt gun.
(Cavan): The section we are dealing with now concerns itself with hunting from mechanically propelled vehicles. My information is that, whether we agree or disagree with the punt gun, it is not used from a mechanically propelled vehicle. Indeed, if it were used from a mechanically propelled vehicle, the whole point in using it would be destroyed, because the birds or ducks would be disturbed and dispersed before the boat would get near them. According to my technical advisers, it is used when attached to a flat bottom boat which is propelled by oars and it is not appropriate for discussion on this section. My information also is that the number of punt guns being used is not more than a couple of dozen. Of course, if they continue to be used when this Bill becomes law, they will have to be licensed under the Bill. As I said, if it becomes desirable to outlaw or ban them completely, we have sufficient machinery in the Bill to do just that.
I want to make one further point which I know Senator O'Higgins will appreciate because he and I fish in a lake in a certain area on which, by local custom, for many years the outboard motor was not used. As he and I know, the outboard motor is now used very extensively on the lake. I do not think Senator O'Higgins uses it. I do not use it myself. It is not correct to say that if you have an outboard motor on a boat you will frighten the birds, or the fish, because you use the motor to get within a couple of hundred yards of the birds, then you switch it off and row in. This is the point I was trying to make to the Minister. You do not frighten the birds because you have an outboard motor. The question was; if you are not using your outboard motor and you row in, does it come in under this section of the Bill?
(Cavan): I would say this section of the Bill applies to a mechanically propelled boat or other vehicle. We could have a long and learned discussion as to when a mechanically propelled vehicle ceases to be a mechanically propelled vehicle. You could take off the outboard motor, and throw it in the body of the boat, and use oars. The idea is to protect wildlife, wild birds particularly, from being hunted from mechanically propelled vehicles while they are being mechanically propelled. That is the intention and also the effect of the section.
There is a distinction between paragraphs (a) and (b), as Senator West pointed out. Paragraph (a) applies to a mechanically propelled vehicle, whether it is so propelled or not at the time, or whether it is stationary. Paragraph (a) is applicable only to wild animals. Paragraph (b) is applicable to wild birds. It only applies to a mechanically propelled vehicle while it is being so propelled.
I would like to see paragraph (b) widened so that, whether the vehicle is being propelled or not, the birds would be protected. That really was the point of my remarks.
In effect, it would only force people to row instead of use their outboard.
(Cavan): As Senator O'Higgins says, birds are protected from this sort of activity while the boat or vehicle is in motion, and is being mechanically propelled. Animals, particularly deer, are protected whether the vehicle is in motion or stationary, because it is a well-known fact that deer are shot from stationary motor cars.
I would be interested to know if shooting from a motor car or truck to a lake along the side of the road comes into this. Close to me there is a tourlough and ducks are shot from the opposite side of the lake. A road runs along this lake. Years ago I had an old mare that I could ride down to the lake side, carrying a gun, and while the mare was drinking I could get a good shot, whereas if I went down walking along the road, or even on a bicycle, the ducks would be gone. They paid no attention to the old mare going to the water's edge. The first time I remember that I tried this, the mare was not trained to guns. She was gun shy, and I landed in the lake. To my great surprise, I had also shot two duck. Now I see people in trucks going along the road. The ducks are quite close to the road until you walk along the road. They are used to cars passing. These people can pull the truck up right close to the side of the road and wait for a few minutes. The ducks will not bother and they will have a kill. I wonder whether there is any section to prevent this kind of mechanical vehicle from being used for shooting duck or other fowl.
The point Senator Lyons made is a good one. I would be interested to hear the reply because I am sure Senator West would agree with this. What Senator Lyons said is absolutely right. It applies not merely to water fowl. Anyone who does any pheasant shooting will have had the same experience. They apparently get so accustomed to the noise of cars on the roads, they will even stay on the road while you pass them, and maybe while you stop. If you try to open the door, they are gone in a flash. I would have thought that the answer to this — I am not sure of this — is that you are not entitled to shoot from the public road anyhow.
(Cavan): I think Senator O'Higgins hit the nail on the head in his last sentence. It is illegal, as I understand it, under the Summary Jurisdiction (Ireland) Act, 1851, to discharge a firearm on the road or within a certain distance of it. What we are doing here is quite simple. In so far as birds are concerned, it is illegal to fire at them from a moving vehicle. For example, a man who was stricken with polio and was using a jeep or something like that could bring his jeep out into his field and park it and fire at the birds.
So far as animals are concerned, particularly deer, the Bill prohibits the shooting of these animals from a vehicle whether it is in motion or stationary.
Amendment agreed to.
The acceptance of this amendment means that the original section 36 is deleted.
SECTION 37.
Amendments Nos. 120, 121 and 122 are related and may be debated together.
Government amendment No. 120:
In page 29, lines 24 to 27, to delete subsection (1) and substitute the following:
"(1) Notwithstanding anything contained in this Act apart from this section but subject to section 42, a person shall not hunt—
(a) a woodcock at any time between sunset and sunrise,
(b) any other protected wild bird, other than a wild duck or a wild goose, or any protected wild animal at any time during any period beginning one hour after sunset and ending one hour before sunrise."
(Cavan): Section 37 (1) is designed to control hunting of protected species—primarily game species — by night, that is, the period from one hour after sunset to one hour before sunrise, on the grounds not only that it is an unfair and inhumane practice, but also that it is detrimental to the interests of conservation. The various implements — for example, lamps, mirrors and dazzling devices — used as aids to hunting by night are prohibited under section 38.
The new subsection (1) (a) relates solely to woodcock. A practice is emerging — mainly, I understand, on the part of visiting game shooters — of shooting woodcock on their morning and evening flights which take place near sunrise and sunset respectively. This is regarded as an unfair sporting practice, with implications of undue pressure in terms of disturbance and killing on this particular species, and needs to be prohibited. The proposed amendment will achieve this by forbidding woodcock shooting between sunset and sunrise. In other words, the hour's grace permissible for other game species will not apply in the case of woodcock.
The new subsection (1) (b) repeats what is contained in the existing subsection (1) in regard to other species of protected wild birds and protected wild animals. It also includes the exception in the case of wild duck and wild geese contained in the existing subsection (2) (a).
The deletion of paragraph (a) of the existing subsection (2) is, first of all, consequential on the new subsection (1) (b) and, secondly, because the words which occur after "wild geese" are being deleted as they are considered unnecessarily restrictive and might lead to inequitable treatment of different areas in the practical operation of the exemption.
I agree with this amendment but I am surprised at the reasons given. I have made an effort at shooting woodcock flighting in the evening and I can assure the Minister that, when they are flighting, as they do, out of a wood to a bog nearby, one would want to be an extremely good shot even to hit one in the course of an evening. I am surprised to find that apparently this is a growing practice and obviously it must grow because people are able to get good bags out of it. In my view, they must be extremely good shots to do it.
(Cavan): As I stated in support of the amendment, the practice apparently is more prevalent among visiting shooters than it is with the native shooters. My Department discussed this at some length with the various organisations concerned and we reached agreement. Senator O'Higgins said that he agrees with the amendment in principle and I do not think it unreasonable that these birds should be safe from sunset to sunrise. That is really all we are doing in the amendment.
With regard to amendment No. 121, we feel the Minister is not going far enough where lamping at night is concerned. This is why we have asked that the word "protected" be deleted. There should be no hunting at night. If hunting at night is allowed, it will be difficult to distinguish whether somebody is hunting a protected wild bird or animal or an unprotected wild animal. It should not work that way.
Apart from that, this practice is highly dangerous. Every farmer is opposed to lamping or hunting at night because, down through the years, damage has been done to valuable animals — and, indeed, all animals are valuable today, horses, cows and so on — and crops. Crops have been damaged because people who are out at night hunting leave gates open. If they were hunting in the daytime they would be seen crossing the fields and if the gate were left open it could be closed. If they hunt at night this is not known. You go out in the morning and find a herd of cows in a field of beet or wheat or something else.
As well as speaking for the Game Council I am speaking, I think, for every farmer in the country. They do not want hunting at night whether of protected or unprotected birds or animals. I would appeal to the Minister to change the section for that purpose and to eliminate hunting at night altogether.
(Cavan): Amendment No. 121 and a corresponding one by the same Senators in relation to section 38 would be acceptable were it not for the fact that it is proposed to broaden the scope of section 44 which deals inter alia with trespass so as to embrace all fauna instead of only protected species. I will be dealing with that and other amendments on section 44 later.
In the circumstances it is not now considered necessary or desirable to drop the word "protected" either in section 37 or in section 38. To do so would unnecessarily restrict landowners in taking suitable action at night time against unprotected species, for example vermin, where such measures proved necessary. I do not therefore see the need for the amendment and I suggest that it be withdrawn. I am not clear in my own mind whether Senator Ryan is clear as to what we are doing here. In section 44 we will be making it an offence to trespass for the purpose of hunting any fauna at night whether it is protected or not protected. But we are still leaving it open to the owner of land to hunt and destroy vermin at night if he wants to. If I have made myself clear on that, the Senator should be reasonably satisfied.
If Senator Ryan considers what the Minister has said he will agree that the Minister's approach is quite correct. I am thinking particularly of farmers in the west during the lambing season. Very often, they have to keep an all-night vigil to protect the sheep and the lambs against foxes. If Senator Ryan's amendment were accepted that would be ruled out. They would not be able to hunt foxes off their land or to protect the ewes or lambs against marauding foxes. The Minister's approach is to allow the farmer to protect his own interest and his own livestock but, in a later section in connection with trespass, at the same time to protect the farmer against anyone else going in and trespassing on his land after either protected or unprotected wild life.
I am prepared not to move my amendment, but I would like to point out that we have no intention of preventing farmers from hunting on their own land at night foxes and other vermin. In the next section, section 38, we have an amendment to cover that. At no time were we trying to prevent farmers from protecting their own livestock at night by the killing of vermin, foxes and so on.
(Cavan): Arising out of what Senator W. Ryan said, I think we are ad idem. I am doing exactly what Senator Ryan wants me to do. Under the Bill I am forbidding trespass at night in respect of fauna of any description. protected or otherwise, game or vermin, but I am retaining to the farmer or owner of land the right to hunt vermin at night. We may be using different words and different techniques but I think we are ad idem in what we want.
Amendment agreed to.
Amendment No. 121 not moved.
Government amendment No. 122:
In page 29, subsection (2), lines 29 to 31, to delete paragraph (a).
Amendment agreed to.
Section 37, as amended, agreed to.
Amendments Nos. 123 and 124 not moved.
Section 38 agreed to.
SECTION 39.
Government amendment No. 125:
In page 30, lines 19 to 29, to delete subsection (3) and (4) and substitute the following:
"(3) A person shall not—
(a) light a fire, or
(b) do any other act,
which causes, or is likely to cause, the burning of vegetation which is growing within one mile either of a wood which is not the property of such person or of land mentioned in paragraph (b) of subsection (1) of this section.
(4) Any person who burns vegetation, lights a fire or does any other act in contravention of this section shall be guilty of an offence.
(5) Where a person—
(a) burns any vegetation either in contravention of subsection (1) of this section or after giving the notice required by this section and receiving a counter-notice under this section,
(b) lights a fire or does any other act in contravention of subsection (3) of this subsection,
any injury occasioned by such burning, lighting or doing to,
(c) in case the contravention is a contravention of the said subsection (1), any wood or land in respect of which a notice ought to have been or was served under this section, or
(d) in case the contravention is a contravention of the said subsection (3), any wood which is not the property of such person or any land mentioned in paragraph (b) of the said subsection (1),
shall be deemed to have been caused by the negligent act of that person, and damages to the extent of that injury shall be recoverable accordingly in any court of competent jurisdiction from that person by the owner of such wood or land, as the case may be."
(Cavan): Section 39 deals with the burning of vegetation near woods or certain other land. This amendment is aimed at curbing the deliberate lighting of fires or discarding of cigarette ends in such a negligent manner as to cause or be reasonably certain to cause vegetation growing within a mile of a wood, nature reserve or refuge for fauna, to burn and spread to such vulnerable areas. As the section stood it was not at all certain that such indirect burning of growing vegetation would be covered.
In other words, it was not certain that the section as originally drafted covered negligence. The amendment proposes to make the negligent throwing away of cigarettes or the negligent lighting of a fire an offence under the Act. I think it is hightly desirable that this should be so.
I should like to ask the Minister how he proposes to catch people who light fires. It is not as easy as this section of the Bill implies. I come from a country which is full of vegetation, most of which belongs to the Department of Lands. A considerable amount of damage has been done by day-trippers from the city picnicking and we have no come-back with those people who deliberately light fires and leave them to cause thousands of pounds worth of damage, as has been done even this year. I should like to know how the Minister is going to cover this matter.
(Cavan): I agree with Senator Walsh that it is never easy to detect these offences. At least we are making it an offence to negligently throw away cigarette ends or matches or to do any other negligent act which might start a fire. How evidence of this offence will be gathered is another matter. It may be that some civic-minded citizen will see the culprit and report the matter to the forestry and wildlife officials; or it may be that, following damage by a fire of this sort, the officers of my Department or the Garda will make inquiries and find out who did it. I can tell the Senator that it is an offence under the Forestry Acts to cause damage to a forest or to start fires within a certain distance from a State forest, and that since I became Minister for Lands there have been many prosecutions. Files are continually coming up showing that, following investigations, culprits have been prosecuted under the summary provisions of the Forestry Acts. In many cases they are also followed for damages. I am surprised that the Senator has not been making representations to have some of these claims mitigated.
It is the last thing I would think of doing.
There is a marked difference between the type of offences to which the Minister referred and the ones to which I referred. Most of the offences the Minister mentioned would be a type of arson or vandalism. The people to whom I refer are the Sunday picnickers who wantonly throw debris and lighted matches near forestry plantations. These are the type of people who should be dealt with forcibly. If necessary there should be patrols at weekends in areas adjoining forestry plantations. The amount of damage done is immense. It goes into millions of pounds in a year.
(Cavan): I do not think that it goes into millions, but it is very extensive. We are providing the machinery to outlaw the deliberate or negligent starting of fires. The enforcement of this and the gathering of evidence to bring prosecutions under these sections will be a matter for my Department and the Garda. I can say that respect is gathering for our forests and I am sure that there is and will be a healthy respect for the conservation and preservation of wildlife. As this Bill gets publicity and people's attention is directed to what we are doing I am very hopeful that the sense of civic spirit will improve. The masses of the people disapprove of destruction of our natural amenities and will, if not immediately, in the course of time draw the attention of the authorities to it.
Amendment agreed to.
Section 39, as amended, agreed to.
SECTION 40.
Amendments No. 126 and No. 127 are alternates and may be taken together.
Government amendment No. 126:
In page 30, subsection (1), lines 32 and 33, to delete "18th day of March and ending on the 31st day of July" and substitute "15th day of April and ending on the 31st day of August".
Section 40 deals with the destruction of vegetation on uncultivated land. That is the purpose of the section in general. The purpose of the amendment is to alter the period during which the destruction of vegetation by burning will be prohibited each year. The period specified in section 40 from 18th March to 31st July is not as suitable as was first thought. On reflection, a prohibition extending from mid-April to the end of August as provided for in my amendment is considered more realistic. Of these two dates the earlier one is the more important from the conservation standpoint. By opting for the period 15th April to 31st August, which means that burning will be feasible from 1st September to 14th April each year, the need for burning vegetation in the course of agriculture, forestry, game development or other operations will be reasonably catered for without interfering to any appreciable extent with the breeding or nesting habits of wild fauna. I think that the Government amendment meets the point put forward by Senators Ryan and Garrett.
Under the circumstances we will not move our amendment because there is only a question of a day or two between our amendment and the Minister's.
Amendment agreed to.
Amendment No. 127 not moved.
Amendments Nos. 128, 129 and 130 are related and it is suggested that they be debated together.
Government amendment No. 128:
In page 30, subsection (2), line 37, to delete "burning or otherwise".
(Cavan): I will take amendments Nos. 128, 129 and 130 together. The effect of the preceding amendment which we have just dealt with will be to set aside for wild birds and wild animals a period of four-and-a-half months each year during which breeding and nesting can proceed untroubled by destruction of the habitat through burning operations. As I have already stated, this will leave a period of seven-and-a-half months annually in which burning will be permissible. This is not ungenerous. I am now satisfied that the restrictions envisaged from mid-April to the end of August should be rigidly adhered to and that the limited exception — in so far as burning is concerned, implicit in subsection (2), should not be allowed. This is the explanation for the present amendments. In other words, under the Bill as drafted burning in certain circumstances would be permitted throughout the year. The amendments now propose to prohibit burning totally and altogether from the 15th April to 31st August in each year.
Amendment agreed to.
Government amendment No. 129:
In page 30, subsection (2), line 43, to delete ", burning".
Amendment agreed to.
Government amendment No. 130:
In page 30, subsection (2), line 54, to delete "destroyed" and substitute the following:
"destroyed;
but this subsection shall not operate to exclude from subsection (1) of this section anything done by burning."
Amendment agreed to.
Question proposed: "That section 40, as amended, stand part of the Bill."
I wish to say something on section 40. I question the value of the change of the date from 18th March to 18th April because in my experience quite a number of birds nest from mid-March onwards, and I wonder if 18th April is far too late. One can get regional differences in this country. There is a considerable difference between the times of nesting in the south and north of Ireland. Some of the protected birds are nesting towards the end of March, whereas in the northern part of the country they may not start nesting until the middle of April. I have seen quite a number of birds which are protected by this Bill, nesting in late March. Their natural habitats are not going to be protected now until 18th April. I would ask the Minister to reconsider that. In our part of the country, St. Patrick's Day, 17th March, would be regarded as a typical date for birds to start nesting. On the question of the exceptions, this section shall not apply in relation to:
the burning or otherwise destroying, in the ordinary course of agriculture or forestry, of any vegetation growing on or in any hedge or ditch.
It refers to clumps of gorse or furze. Why would one destroy bushes or gorse or any type of scrub unless one was engaged in agriculture? The section serves little purpose because the exceptions allowed eliminate any advantage it may contain. I do not believe that because it has to do with reclamation is sufficient reason for destroying the habitat of valuable or scarce protected birds and animals. This gives too much leeway. Anybody caught destroying the nests of a pheasant or woodcock could plead that he was doing it in the course of agriculture. I would ask the Minister to tighten up the section somewhat.
(Cavan): Senator Deasy thinks that it would be desirable to prohibit burning from St. Patrick's Day and that we are being too liberal in allowing burning up to 14th April. The best technical advice available to me in my Department recommends 15th April. We had prolonged discussion with the National Association of Regional Game Councils on this matter and they are satisfied that the 15th April is adequate, and the correct date. A good deal of thought has gone into this and a lot of consultation has taken place with the National Association of Regional Game Councils. As a result of that the 15th April was decided upon.
In regard to the point raised by Senator Deasy that we are being too liberal in allowing interference with or the destruction of a hedge or a ditch in the ordinary course of agriculture and forestry, I would point out to the Senator that burning is not permitted. By one of the amendments we have just dealt with we have removed "burning or otherwise" from subsection (2) (a). Subsection (2) (a) now reads:
destroying, in the ordinary course of agriculture or forestry, of any vegetation growing on or in any hedge or ditch.
Might I suggest to the Seanad that if we are to succeed in our efforts to conserve wildlife we will do so only if we bring all sections of the community with us in a reasonable way and if we have the goodwill and support of all sections of the community? In other words, we must have a reasonable balance between our conservation activities and the activities of farmers and agriculture.
Senator Deasy asked what anyone would be doing destroying a ditch or a hedge if he was not engaged in the ordinary course of agriculture. Well, he might be engaged in a bit of devilment or in destruction for the sake of destruction. We are not going to permit that. Furthermore, as the Senator will see, it will be permissible to interfere with the hedge or the ditch in the ordinary course of agriculture only. It is doubtful whether land reclamation operations would be in the ordinary course of agriculture.
I think that the section as drafted creates a reasonable and a necessary exception to the prohibition. If we were to reach the stage of saying that, in the interest of wildlife preservation, farmers cannot engage in the ordinary agricultural activities we would immediately be called upon to pay compensation, and we would build up bad will instead of creating goodwill.
If there was a protected species nesting in say a hedgerow that was going to be cut by a farmer during this period, have you got any device for protecting that bird while it is nesting? Have you got any machinery? I think the onus should be on the landowner to report that there was such a species present and that, if necessary, he should be compensated rather than have the nest destroyed.
(Cavan): Unintentional killing or destruction in the course of agriculture is exempted under an earlier section of the Bill. Senator Deasy asked me have I any device or machinery. I am sure he does not mean have I any cutting device, which I will bring in, that would not destroy nests. I do not know what experience Senator Deasy has of farming and agriculture, but I think that experience shows that there is nobody more sorry than the farmer if he finds that he has taken the leg off a hen pheasant in the course of mowing a meadow. Farmers in general do not go in for destroying game or wildlife. It often happens that if you are mowing a meadow you will take the leg off a pheasant or come across her nest and destroy it unintentionally. The exemption here seeks to allow a farmer to destroy in the ordinary course of agriculture or forestry any vegetation growing on or in a hedge or ditch. I venture to suggest that if the farmer knew that there was a pheasant or other bird hatching there he would pass her by and would not harm her.
I know someone who shot a pheasant and boasted about it.
(Cavan): There are black sheep in every fold.
Question put and agreed to.
SECTION 41.
Question proposed: "That section 41 stand part of the Bill."
In reference to this Bill, the ancient sport of falconry is left within the discretion of the Minister. It seems to me that this sport has certain horrific features about it which even hare coursing has not. I was recently in the house of a man in Ireland who engages in falconry and I was taken on a tour of his yard. I was shown a rather horrendous sight, that is, a whole series of cages of day-old chicks. I said, "What are the day-old chicks for? I did not know you had a chicken farm here." He said, "These are the favourite food of falcons." I put this in relief against the horror which was evinced over the killing of hares. After all, the killing of the hare in coursing is something that happens per accidens. I was at a coursing meeting recently where out of 60 hares only four were killed and the whole thing seemed to be regulated in a very sincerely humane way. The interest of the spectators seemed to be far more on the breaking of the dogs from the slips than on the killing of the hare. In fact I was far closer to the killing of the hare than any of the spectators. It struck me that the rearing of day-old chicks because they were the particular delicacy of falcons was something considerably more horrendous, horrific and inhumane than anything that I saw in my one day at a closed coursing meeting. I assume the Minister has carried out his own research on the matter of falconry, which is in its way a most dramatic and poetic sport, but if it has this rather inhuman substructure to it I would be interested to know what the Minister has to say about it.
(Cavan): The position is that falconry is practised to a very limited extent here. Our information is that there are only one or two falconry farms or falconry menageries, I do not know which is the correct term. I saw one of them last year myself. I must confess I do not know what the birds of prey are fed on. They were not caged but they were tied with chains on their legs. If Senator Martin says that they are fed on day-old chicks I cannot contradict him. We do take power here in this section to make regulations to regulate the whole sport or art of falconry should that be necessary. At present we do not propose to make regulations but if the necessity arises or if there is any malpractice we can introduce regulations.
I was interested in the distinction drawn by Senator Martin in regard to coursing. As he very properly says, the end object in coursing is not killing the hare, it is the coursing of the greyhounds, and indeed the escape of the hare is enjoyed much more than the death of the hare. But I agree that in the art of falconry the birds of prey descend on their prey and kill them. I suppose these birds do that in the wild. We have all seen hawks, the bird of prey that we are most familiar with, descending on the smaller birds and killing them and we have seen the feathers in the fields where they had been operating. But we are moving forward here in so far as we are taking power to regulate the whole sport if necessary.
I am quite happy as long as the Minister does what he has said: that he will keep this under review and see that no inhumane practices relating to falconry take place.
Question put and agreed to.
SECTION 42.
I move amendment No. 131:
In page 31, line 28, after "Where" to insert "there is adequate scientific evidence that".
I wonder if this amendment is realistic at all. How would one proceed to produce scientific evidence that wild birds or wild animals are causing damage, or where are these scientists to be had?
Galway University is a bit remote. The areas of the country where this damage occurs are usually remote areas. I am deeply concerned about damage caused to root crops by deer, particularly in the case of small farmers. Representations have been made to me on numerous occasions——
(Cavan): Maybe we could deal with that on the section.
The amendment deals with the question of evidence.
(Cavan): Senator Walsh has stolen my thunder in regard to this amendment. The Senator was dealing with the question of deer, but we will deal with them later on. Section 42, as drafted, says that where damage has been caused by protected wild birds or wild animals certain steps may be taken against the wild birds or the wild animals. Senator Higgins seeks in amendment No. 131 to insert after the word “where”“there is adequate scientific evidence that” ...The section would then read:
Where there is adequate scientific evidence that damage is being caused by protected wild birds or by protected wild animals...
As Senator Walsh said, this is not practicable. I do not know what scientific evidence would be required in order to establish the damage caused. In most cases the damage will be visible. The basic objective of section 42 is to provide a speedy and suitable machinery for dealing with damage caused by protected fauna. In this context, the safeguarding of agricultural interests, that is, livestock, poultry and crops, will obviously be the primary—though of course not the only — concern and I would see deer as being the most likely "offending" species.
The provisions of sections 22 (6) and 23 (8) already impose constraints on the extent to which aggrieved landowners may act under section 42 with a view to stopping the damage. I would regard the Senator's proposed amendment as imposing a further constraint of a type which in the prevailing circumstances would not be at all warranted. After all, the kind of damage we are talking about will invariably have to be gauged by on-the-spot evidence rather than by scientific assessment. Accordingly, I do not think the amendment is necessary, and it would not be feasible to operate it.
Amendment, by leave, withdrawn.
I move amendment No. 132:
In subsection (4), page 32, line 7, after "bird" to insert "other than game birds."
My reason for tabling this amendment is that there is a danger that a person could claim that a game bird was damaging his crops whereas this may not be the case. There could be a situation where a poacher would say that he did not have time to apply for the licence and that his crops would be eaten. Would it be possible for the Minister to consider accepting the amendment?
(Cavan): The Senator proposes to exempt game birds from the section. I am advised that the type of damage envisaged under this section is unlikely to be caused by game birds. However, where this should happen, the right of the injured party to deal with them should not be withdrawn. I would point out, however, that the exercise of this right, apart from the special emergency situation provided for in section 22, is subject to ministerial permission, and this will apply its own limitations to what an aggrieved person can do. In the circumstances I am not prepared to accept the Senator's amendment.
Under section 22, an individual may in certain cases take action to prevent fauna causing the kind of damage which, if the person did not take action immediately, would lead to irreparable damage. If the damage is of the type which does not require immediate action, a licence from the Minister to deal with this fauna is necessary. I think that should meet the Senator's point.
Yes, but my fear is that an unscrupulous person could abuse this subsection. The person could kill game birds under the pretence that they had damagd his crops. The person could apply for a ministerial licence for this purpose and get away with it. The Minister has stated that the amount of damage caused by game birds is very small and this is a very good reason for the Minister to accept my amendment.
(Cavan): I am sorry, but I do not think the Senator's amendment is necessary. The Senator is worried about a person getting a licence under false pretences and then abusing the powers given to hunt protected birds under that licence. If a person applies for a licence he must state his reasons for doing so. He must describe the type of damage which the offending birds are alleged to have caused. At that stage the applicant will be dealing with the scientific personnel in the Department of Lands. They will be able to decide if the applicant is talking fact or fiction and if it is the latter he will not receive a licence. If a person hunts protected wild birds without a licence he will be guilty of an offence unless he can prove that not alone were the birds damaging his crops or wild flora but that they were causing this damage in such a way as to require immediate action or else irreparable damage would be caused. If a person is caught shooting or hunting wild birds and offers this excuse the same test will be applied. If it is discovered that the person is merely telling fairy stories, he will be prosecuted and brought before the courts; the courts do not usually accept fairy tales as fact.
As a solicitor, the Minister knows better than I do that most laws can have a wedge driven through them. I could picture a situation where someone discovers that there are a number of hen pheasants on his land and he decides to apply for a licence which he can justify by alleging that the birds are damaging his crops. He will do this merely to kill the hen pheasants. If he is caught and prosecuted he can produce his licence in court and claim that he received this licence and shot the birds on the evening in question because he felt they were damaging his crops. I think a person could get away with such an argument.
I think there is a lot to be said for both sides in this argument. It is a situation which cannot be resolved except by the kind of discretion, residing in the Minister, which it is proposed to give him under this section. I can appreciate the case made by Senator McGlinchey. It is true to say that in any collection of people there is likely to be a rogue who will try to get around the law; possibly, this section might provide a loophole which an unscrupulous person might use for the purpose of getting around the law. That, in a nutshell, is the case which Senator McGlinchey is making and I appreciate the force of it. Essentially this section applies to hunting out of season and it applies to hunting during the prohibited hours in season or to hunting birds which are completely protected and in respect of which there is no open season at the moment, such as hen pheasants.
So long as the law is trying to deal with the person of the type Senator McGlinchey has in mind, it does not seem to me that the amending of this section will protect the wild animal or bird in question. The unscrupulus person who is determined to hunt out of season or to hunt protected game, birds in respect of which there might not be any season at all, will probably do that anyhow and all the amendment would do is that, if it could be proved that the offence had been committed, he would be subject to the penalty of the law.
It is open to the Minister under this section to deal with the situation by means of the conditions which he may attach to the granting of permission. He may attach conditions and, as I read it, it would be open to the Minister to accede to an application or to attach a condition to the permission that the person may drive out without killing the animal or bird that is doing the damage. Under the section he specifically has authority to attach to the permission a condition in respect of protected wild birds, that they be put into some other area, that if captured they will not be killed or destroyed but put in some other habitat. That authority is specifically given to the Minister.
I think the Minister is quite right when he says that, by and large, game birds are unlikely to be doing the amount of damage which is going to cause an application under this section to be made. Supposing we come to the situation where a game bird or a flock of birds, a gaggle of geese or whatever it might be, are doing considerable damage. If Senator McGlinchey's amendment is accepted it means that the poor landowner cannot protect himself against that even by seeking and getting permission from the Minister, because the Minister would have no authority under the Act to give anyone permission to deal with that state of affairs.
If you have a number of game birds that were doing considerable damage and possibly damage sufficient to cause severe financial or economic difficulties to, say, a small farmer or nurseryman or somebody of that sort, there would be no method under the law to allow that person protect himself and his interests if the amendment were adopted.
Amendment, by leave, withdrawn.
Government amendment No. 133:
In page 32, between lines 32 and 33, to insert after subsection (6) the following subsection:
"(7) The powers conferred on the Minister by this section are in addition to, and not in substitution for, the powers conferred on the Minister by sections 59 and 60 of the Act of 1946."
(Cavan): This amendment is a necessary saver for the existing powers of the Minister for Lands under sections 59 and 60 of the Forestry Act, 1946, to take steps to deal with hares which are attacking trees or tree plants.
Amendment agreed to.
Question proposed: "That section 42, as amended, stand part of the Bill."
I am not entirely happy about this section. It deals with damage by wild birds and so on. I wish to refer to deer and I have already spoken about the damage to crops, especially root crops, particularly in mountainous areas where the farms are small and people cannot afford the loss of a root crop which is damaged by deer.
Subsection (6) (c) states:
the Minister may grant the permission subject to a condition that—
(i) any capture pursuant to the permission is to be effected by a specified means,
(ii) any wild bird or any wild animal captured pursuant to the permission shall be removed to a place specified by the Minister for subsequent release or be disposed of in such other manner as may be so specified.
What exactly does he mean by this? If I were a small farmer on the mountains around Aughavannagh and I found about six young deer in a crop of turnips or cabbage devastating it in the morning, I do not know how I could capture these deer and remove them to a place where the Minister could deal with them. It is not quite as easy as that. I think the farmer concerned should be in a position that he could protect his own crops by using the gun himself and be within the law in doing so.
(Cavan): The Senator has referred to subsection (6) (c) and that reads:
the Minister may grant the permission subject to a condition that——
He is not obliged to impose that condition——
(i) any capture pursuant to the permission is to be effected by a specified means,
(ii) any wild bird or any wild animal captured pursuant to the permission shall be removed to a place specified by the Minister for subsequent release or be disposed of in such other manner as may be so specified.
I would imagine that in the case of deer that are doing a lot of damage no such condition would be imposed. The provisions referred to by Senator Walsh are purely enabling provisions. Indeed in regard to many of these offending fauna the Minister could decide to have them dispatched by his own forestry officials. Indeed, it is not unlikely that where you have deer roaming wild you would also have forests suitably staffed. There is no certainty that the Minister would give the permission. He might instruct his own officials to cull the animals.
The Minister has said these deer could be dispatched by his own officials. I think it has been the practice of the Department of Lands to employ the services of a deer stalker in most areas. In recent times that does not seem to be the case. By the time the farmer would notify the forester in charge and notify the Minister and all this legality would be complied with, I can see the crop of turnips non est. I am inclined to see a situation where the farmer could, in this instance, without ministerial permission or without the animals being dispatched by one of his officials, protect his own crops.
(Cavan): If the Senator would refer to section 23 that section gives the landowner permission to take instant action for the protection of his own crops.
That is the point I was going to make, that it seems that that right is antecedently present in the Bill.
Question put and agreed to.
SECTION 43.
Question proposed: "That section 43 stand part of the Bill."
I should like to address more a question than a statement to the Minister on this section. Section 43 gives the Minister virtually no power, so far as I can see. It specifies that the commissioners, if they are to engage in the various activities described in the Bill, "shall, before commencing the scheme, consult the Minister to ascertain..." and so forth. Having consulted the Minister, do they in any way have to obey the Minister's judgment on the matter? This is just a question I would like to have answered.
(Cavan): No. The answer is that the Commissioners of Public Works would not be subject to the control of the Minister for Lands. The section provides that there must be consultation and discussions between the various Departments. It is almost certain that, as a result of that type of consultation between the two Departments, a reasonable solution would be arrived at.
This is a very praiseworthy section to have, because land drainage can do untold harm to natural habitats of various birds. This prohibits any undue damage being done to such habitats. As well as protecting areas such as specified in this section, I would submit that a lot of the land drainage done eliminates marshy ground, minor streams and so on. It must drastically affect the numbers of birds which use those habitats. I would ask that thought be given to the possibility of providing artificial alternatives where there has been extensive drainage, if necessary the provision of minor lakes or ponds to give the birds an alternative habitat. I am concerned with the drop in numbers of some very common birds in this country. Numbers have dropped quite a bit from my observations and those of bird watchers. For instance, in many areas there has been a marked drop, it seems, in the number of house martins, and martins, swallows, even the common thrush, and very much so in the case of the yellow hammer. These are all common Irish birds. I have no doubt that that reduction in numbers can be attributed to the partial destruction of the normal habitats of those birds. We need to do a lot more research to find out to what extent this type of destruction is affecting their numbers and how the decline can be arrested. This matter of land drainage might be the best place to start.
I have a book compiled by a bird watcher in County Waterford. It is a very interesting document. It verifies much of what I have been saying. We will just take one common bird which has almost disappeared completely from our part of the country, the corncrake. According to this booklet, there are only four reports of a corncrake being heard in County Waterford in 1972. Fifteen or 20 years ago there would be several thousand throughout the country. The Department of Lands, the Minister in particular, should make a point of finding out the reasons for this decline. I also notice in some of this literature that the natural habitat of seagulls has changed in the Dunmore East area from the cliffs, which is their natural habitat, to houses in the area. That is a startling change. We had an instance last year in the village of Kilmacthomas where a seagull actually nested in the chimney of the local public house. This has great relevance, in that these birds are hunted out of their natural habitats and no alternative is being provided. We should go to great pains to see that they have an alternative.
Land drainage is probably most significant of all. For instance, snipes and curlews must show a drastic drop in numbers if land drainage continues at the rate at which it has been going for the past number of years, and no alternatives are provided.
I am sorry to come back again on the same point, but what Senator Deasy said is of such central importance and significance, I feel I must add one point to the question I asked. He raised the much larger issue which certainly arises out of this part of the Bill, that is, the issue of the health of the entire environment, the birds listed behaving in such aberrant ways. To find a seagull taking possession of the chimney of a public house, either inside or outside licensing hours, should draw our attention to the fact that things are getting extremely urgent and difficult. What I would like, however, to contemplate on is the implications of the Minister's answer to my question "the commissioners shall consult the Minister" but they do not have to obey him. In other words, the Minister argues correctly, and convincingly, that, of course, when reasonable men meet to discuss a matter like this, each side has the general good at heart and a reasonable solution is arrived at.
What emerges through this Bill, from section to section, is the fact that different Departments have to deal with different aspects of the problem of conservation. Conservation is almost like a motif in an opera running through this Bill. Wild life is what it is called, but conservation is one of the major themes in it. Conservation is one of the major themes when you come to look at urbanisation and plans for cities, when raised on the adjournment or otherwise, as to what should happen to Wood Quay. Conservation has to do with what is happening in Fitzwilliam Square, Bantry Bay or Dublin Bay. That is the larger theme that is constantly being invoked in different Bills here, that is, the question of our concern with the entire environment urban, rural and maritime. The slight dislocation of powers involved in section 43, subsection (b), that the commissioners shall consult but cannot be instructed, is a symptom of this larger problem which Senator Deasy raises. In other words — and it is not the first time I have said it here — the Minister for Lands has a great deal to do with what is in this Bill, but there is a larger, more urgent concern, that of the health of our entire environment, and the case to be made for a Ministry for the Environment, a Department of the Environment, becomes increasingly urgent as the years go on. I will just take this opportunity of once again reiterating the urgent need within our community for at least a Department of the Environment, if not a Minister for the Environment.
I fully agree with the last two speakers, particularly Senator Deasy when he refers to the scarcity and decline of all our small birds, the corncrake and several other birds of that kind. This should not be raised under section 43 because that section deals mainly with the Office of Public Works and drainage. Since this Bill was introduced, Members of this House have been approached by the Irish Coursing Club, the game councils and so on to have something done for their respective interests, but I have not heard anybody asking what was being done about the small bird. It is up to some Department to do something about this. The Minister should appoint a committee to investigate the migration of our small birds. Perhaps the Office of Public Works may have something to do with it.
Is it happening to an extent with mallard?
It is, but at least the game council are interested in mallard and they have made some suggestions as to how mallard could be increased. That is not so with the small bird. That farmers have been putting down extra fertiliser in recent years must have something to do with the falling numbers of those small birds.
I appeal to you, a Leas-Chathaoirleach, to exercise not only your usual discretion but your indulgence. An appeal has already been made by Senator Deasy and other Senators concerning the future of certain birds. I am grateful to those Senators who moved amendment No. 131 in my absence. I thank Senator Ryan for that.
A problem arises concerning the land drainage scheme and its effects. Senator Martin referred to the problem and to the extent we are willing to assess the effect of a particular administrative Act on the ecosystem in general. This section states:
...the Commissioners shall, before commencing the scheme, consult the Minister to ascertain if and to what extent the proposed scheme if carried out would affect or interfere with the suitability of the land affected by the scheme for a nature reserve or refuge, as may be appropriate, and take all practicable steps including, where appropriate, the limitation of the drainage scheme to minimise or avoid such effect of interference.
I put the question to myself to what extent this is practicable without adequate scientific research into the eating habits of the fox and the hare. In The Irish Naturalist's Journal, Dr. Jim Fairley of University College, Galway, has published what these much maligned animals, particularly the fox, eat. Without such research how can you do an ecosystem impact study, which is almost implied under section 43?
If section 43 declares an intention of doing such an impact study, I would ask why that emphasis is not present in the other sections of the Bill? How is it scientifically possible to honour subsection (b) and not possible to accept, on the other hand, many of the amendments which have gone?
(Cavan): Before dealing with the section, may I deal with the point just made by Senator Higgins? If he refers to section 11, he will find out that that section sets out the functions of the Minister in regard to wildlife and starts off by stating that “it shall be a function of the Minister to secure the conservation of wildlife”. Subsection (2) states:
Without prejudice to the generality of subsection (1) of this section, the Minister may in particular do all or any of the following:
In subsection (3) (b) the Senator will see the Minister may:
promote the knowledge and understanding of matters to which the functions assigned to him under this Act are related.
The Minister is authorised and empowered by section 11 to do the very sort of research that the Senator has in mind, to find out the very sort of information that the Senator thinks he should find out. Section 13 of the Bill sets up an advisory council to advise and make suggestions to the Minister. But I should like to refer to section 43 because this section deals with land drainage schemes under the Arterial Drainage Act of 1945. I invite the Seanad to consider for a moment the position in regard to those schemes as of now while we are still discussing this Bill and before it becomes law.
There is no obligation whatever on the Commissioners of Public Works to have any regard to the conservation of wildlife or the habitats of wildlife as of now. The only concern of the Commissioners of Public Works is to get water out of the way, to make land better, to do away with flooding and to promote drainage. That is the obligation of the Commissioners of Public Works under the Arterial Drainage Act. I think that is unreasonable. In carrying out their obligations and duties under the Arterial Drainage Act they should do as little damage as possible to our wildlife. They should have regard to matters like the environment. Let us not however go to the other extreme in discussing this Bill and say that the principal object of the Commissioners of Public Works must be the conservation of wildlife and that they must down tools altogether if in carrying out their own obligations they are likely to damage wildlife habitats in any area. That would be equally unreasonable. Let us have a balance between wildlife and wildlife conservation, on the one hand, and arterial drainage, on the other. Let us have a balance between the thinking of the farmer and the wildlife conservationist. The farmer seeing half his farm lying under water throughout the year believes that, if he could get it drained, he would make a good living for himself and for his family. The wildlife conservationist sees beauty in all living things and in wildlife in general and believes that they should be protected. I put it to the Seanad that section 43 strikes that balance exactly, because it reads as follows:
(1) Where the Commissioners propose to undertake either (a) a drainage scheme within the meaning of the Arterial Drainage Act, 1945 which is one to which this section applies, or, (b) any other land drainage scheme in respect of an area which includes land to which an establishment order, a recognition order or a designation order applies, or land to which an agreement made under section 18 of this Act applies——
those orders and agreements deal with wildlife habitat. The section goes on to state:
——the commissioners shall, before commencing the scheme, consult the Minister to ascertain if, and to what extent, the proposed scheme if carried out would affect or interfere with the suitability of the land affected by the scheme whether nature reserve or refuge, as may be appropriate, and take all practicable steps including, where appropriate, the limitation of the drainage scheme to minimise or avoid such effect or interference.
Perhaps I went a bit far when I said in reply to Senator Martin that the Commissioners of Public Works might consult with me and then ignore it. I believe that that section as drafted leaves it open to any wildlife conservationist or anybody else interested in the conservation of wildlife and of the land mentioned in this section to proceed against the Commissioners of Public Works if they act recklessly, if they drive a bulldozer or their drainage machines through some valuable or irreplaceable wildlife habitat. If they did that they would be acting in contravention of the section. The spirit of this section and the draftsmanship of it means that they have to act in a reasonable manner and I believe that the courts would so interpret this section. Therefore, I believe that, without intruding too much on the rights of the people who want their land drained, this section as drafted steers a canter course, without going too far and improves the situation as it exists at present in so far as wildlife conservation is concerned. I recommend it to the Senators.
I want to complement what the Minister is asked on section 43 not only in relation to habitat but also in relation to something which does not concern us directly in this legislation, inland fisheries. The fact that such drainage should be controlled has become extremely apparent to those of us who live in an area like my own, quite near the River Corrib, where drainage schemes have seriously interfered with, for example, the future of trout stocks. That does not directly concern us here.
I should like to ask the Minister one simple technical question. Would he not agree that section 43 would have been strengthened had section 11 (c), which was quoted in reply to my earlier comment, contained the words "initiate research"? In this sense the Minister has the power, as he quite rightly told me, to enter into an agreement with another person to participate in a scheme or undertake a project for the conservation of life. This leaves it open to the Minister to contract for work from the scientific bodies or from a university institution that might be involved in a particular species. Should the Minister not have retained for use by the officials in his Department the phrase "initiate research"? I know this is something which was rejected earlier.
Is that not implicit in (e) of 11 (2)?
Indeed no. With respect to my colleague, Senator M.J. O'Higgins, might I say that in the history of art, for example, people have promoted art and have patronised art but have not been artists. In exactly the same way people have promoted research and have not themselves been researchers. Therefore, I am pushed back to the meaning of the words "initiate research".
(Cavan): I would ask the Senator what he thinks of 11 (3) (a)?
I agree they can "carry out or cause to be carried out". I want to assure you, a Chathaoirleach, that I am not needlessly delaying the Seanad. What I am saying is that the words "cause to be carried out" gave me the impression, perhaps wrongly, that the Minister would contract out such research and would give away the power to initiate such research within his own Department.
(Cavan): The Minister must act through agents. I have no intention of undertaking the research myself. I would not be competent to do it.
I compliment the Minister on this section, which I think is very praiseworthy. The point I made was that if drainage was carried on continuously, as it is at present, there would be diminution in the stocks of birds that use damp lands and ponds as their natural habitat. There is evidence of a great decline of bird numbers as a result of the destruction of habitat and so on.
I have here a booklet from the Minister's Department, the Forest and Wildlife Service. It is called A List of Commoner Irish Birds. It illustrates that point photographically. I shall quote some extracts from it.
Peregrine Falcons have decreased recently from over 150 breeding pairs to about 30...
The Corncrake is decreasing everywhere except in small hay-field areas of the west and rough-grass areas around the coast and elsewhere.
The Arctic Tern has decreased greatly this century.
Nowadays only c.300 pairs of the Little Tern breed in Ireland.
The Cuckoo has decreased in recent years.
The Barn Owl has decreased greatly.
The Sand Martin appears to have decreased greatly in recent years.
Those are comments from this official booklet which was issued some time ago.
(Cavan): I do not want to interrupt the Senator, but are these all water fowl?
Some are. Their natural habitats have been destroyed. This section protects the habitat of water birds.
It is obvious that a number of species are on the decline. I am asking the Minister to investigate the reason for the decline and to try to arrest it.
In this connection I will not be laborious. Indeed, I think the Minister has shown exemplary patience with us. I totally applaud this section. The only reservation I have is that perhaps it does not give enough power to the Minister. I should like to ask the Minister one question. He may not choose to answer it because it could perhaps be judged in some sense as not being totally relevant to the precise terms of this section. With regard to what Senator Deasy, Senator Higgins and Senator Ryan have raised, there are a number of very technical questions involving the accumulation of knowledge and the judgment of that knowledge. These small birds are no-body's children, so to speak, and are not of any interest to the game people. Would it not be of help to the Minister to work hand-in-hand with a Department of the Environment which would have an even more specific concern with the technical and investigatory processes at its disposal? Would the setting up of an environment ministry help the Minister?
(Cavan): I admire Senator Martin's persistence in introducing the Department of the Environment into this discussion. This is essentially a wildlife conservation Bill. Wildlife is only one particular part of the environment. I am satisfied that this Bill, as introduced and amended, contains all the machinery necessary for the Minister for Lands to conserve wildlife, and for that purpose to get all the technical know-how and information about the habits of wildlife and why some species are becoming scarcer and are liable to become extinct. I am satisfied that the all-embracing section 11 of this Bill— and we are very far moved, with all due respects, a Chathaoirleach, from section 43, which is really a drainage section — enables the Minister to carry out research and promote knowledge and is wide enough to give me all the powers I need.
Section 13 deals with the Wildlife Advisory Council, which are set up for the purpose of bringing together a cross section of the people who are interested in wildlife and in its conservation. So it will enable them to sit down, exchange views with and be consulted by the Minister for Lands, and on their initiative to tender advice and suggestions to the Minister for Lands. We have there all the machinery we want. It is agreed by all, if I interpret the Seanad correctly, that section 43 is a worth-while section and that it improves very considerably the situation in regard to the habitat of wildlife. With all due respect, I suggest that we move on.
Question put and agreed to.
SECTION 44.
An Leas-Chathaoirleach
Amendments Nos. 134, 143, 144, 145 and 191 are related. It is suggested that they be debated together.
In view of the fact that the Minister has tabled amendments which cover most of what we asked for, I will not move the amendments in my name.
Amendment No. 134 not moved.
An Leas-Chathaoirleach
Amendment No. 135 and amendments Nos. 137 to 139, inclusive, are related and may be debated together.
Government amendment No. 135:
In page 32, subsection (1), line 53, to delete "hunts a protected wild bird or protected" and substitute "with a firearm or with a device, instrument or missile mentioned in section 72 (6) of this Act hunts a wild bird or".
Amendment agreed to.
Amendment No. 136 not moved.
Government amendment No. 137:
In page 32, subsection (1), line 55, to delete "to hunt" and substitute "so to hunt".
Amendment agreed to.
Government amendment No. 138:
In page 33, subsection (1), lines 1 and 2, to substitute the following paragraph for paragraph (b):
"(b) enters on the land for the purpose of so hunting wild birds or wild animals,".
Amendment agreed to.
Government amendment No. 139:
In page 33, subsection (1), to delete "protected" from both places where it occurs in lines 4 and 5.
(Cavan): Hunting any fauna on land without the permission of the owner or occupier of that land or of the holder of the sporting rights over it is clearly objectionable. Section 44 (1), as drafted, is deficient in that it makes only the hunting of protected species without such permission an offence. These amendments, by making the provisions of subsection (1) apply to all species, protected or otherwise, will remedy the deficiency. The inclusion in the amendments of references to firearms and other devices is aimed at making what I would regard as a reasonable exception for accidental trespass which can occur in other forms of hunting in which firearms and other such devices are not used — staghunting, beagling and so on. The purpose of the amendment is not to make such accidental trespass an offence under the Bill. It is important to point out, however, that the owner's right to take civil proceedings for what I would call simple trespass would not be affected in any way.
Amendment agreed to.
Government amendment No. 140:
In page 33, subsection (1), line 8, to insert "enjoy" after "entitled to".
(Cavan): Amendments Nos. 140 and 141 are merely minor drafting points. Their purpose is to ensure a uniform description throughout section 44 for the holder of sporting rights and to replace different descriptions at present contained in the section.
Amendment agreed to.
Government amendment No. 141:
In page 33, subsection (2), line 17, to delete "in writing".
Amendment agreed to.
Government amendment No. 142:
In page 33, subsection (2), line 19, to delete "having" and substitute "who is entitled to enjoy".
(Cavan): This amendment is to remove an unnecessarily restrictive and, indeed, largely impractical requirement to have written authorisation. In the section as drafted the owner could delegate his authority to another person but he would have to delegate that authority in writing. It was considered that that was going too far and the amendment removes the writing requirement and proposes that the owner may authorise an agent by word of mouth.
Amendment agreed to.
Government amendment No. 143:
In page 33, lines 35 to 39, to delete subsection (4) and substitute the following subsections:
"(4) An offence under this section may be prosecuted by—
(a) a person who at the time at which the offence is alleged to have been committed (in this subsection referred to as the relevant time) is the owner or is in occupation of the land in relation to which the offence is alleged (in this subsection referred to as the relevant land),
(b) any individual who as regards the relevant land is at the relevant time entitled to enjoy sporting rights over such land,
(c) and in the name of the person who at the relevant time is the secretary of a recognised body which at such time is entitled to enjoy sporting rights over the relevant land;
provided that such an offence shall only be prosecuted by the secretary of a recognised body if,
(i) prior to the relevant time a notice stating that sporting rights specified in the notice over land so specified have been reserved for the body is published in a newspaper circulating in the area in which the relevant land is situate, and
(ii) the land so specified comprises or includes the relevant land.
(5) The Minister may by regulations declare any association, club, society or other body of persons which has for or amongst its objects the conservation of game to be a recognised body for the purposes of this section, and any body to which regulations under this subsection for the time being relate is in this section referred to as a recognised body.
(6) Subject to compliance with the requirements of the proviso to subsection (4) of this section, a notice published for the purposes of section 15 of the Game Preservation Act, 1930 (repealed by this Act), shall be regarded as having been published for the purposes of this Act."
Amendment agreed to.
Amendment No. 144 not moved.
Government amendment No. 145:
In page 33, between lines 44 and 45, to insert the following new subsection:
"(8) In this section ‘game' means any exempted wild mammal or any protected wild bird which is of a species specified in an order under section 24 of this Act."
Amendment agreed to.
Section 44, as amended, agreed to.
SECTION 45.
Government amendment No. 146:
In page 34, lines 1 to 3, to delete subsection (2) and substitute the following subsections
"(2) Subject to subsections (3) and (8) of this section and to sections 22 (5), 23 (7) (d) and 42 of this Act, a person who is not a licensed wildlife dealer shall not have in his possession a protected wild bird or a protected wild animal, whether alive or dead, or the eggs of a protected wild bird.
(3) Subsection (1) of this section shall not apply to—
(a) the sale by a person of any live specimen of a protected wild bird or protected wild animal solely for the purposes of propagating or of improving the quality of, such species,
(b) the sale by a person of live hares to a coursing club affiliated to the Irish Coursing Club,
(c) the sale to a licensed wildlife dealer by a person of any protected wild bird or protected wild animal lawfully killed by him,
(d) the sale by any person, who has obtained the prior permission of the Minister so to do, of any lawfully killed such wild bird or wild animal."
(Cavan): Section 45, which deals with the sale and purchase of protected species of wild birds and wild animals, is one of the most crucial sections in the Bill. It is clearly essential to support the other protective measures in the Bill by having a tight control on outlets for the purchase and sale of protected fauna. In the circumstances I can say that the section has come in for very close scrutiny by various interested groups with whom my Department have had a series of useful discussions since the Bill was published. As a result of these discussions, and following a further examination of the section as drafted, I am satisfied that the rather elaborate amendments now being put forward will greatly improve the effectiveness of the section as well as the overall protection of species being afforded by the Bill.
Amendment No. 146 arises from the problem of poaching and the fact that some past prosecutions for offences in this respect have failed because the culprit was not caught in the act of killing or there was insufficient evidence as to where the unlawful killing took place. The new subsection (2) is designed to make possession of protected fauna an offence, subject however to such lawful possession as occurs as a result of things permitted to be done under the new subsections (3) and (8) and under sections 22 (5), 23 (7) (d) and 42.
The new subsection (3) makes exceptions to the blanket prohibition on the sale of protected fauna in subsection (1). The exceptions are as follows:
Paragraph (a) exempts sales which are for the sole purpose of propagating or improving the quality of the species — a very desirable conservation process.
One question on the amendment. How extensive is the phrase used in the amendment here "shall not have in his possession a protected wild bird" and so on. I know it may seem far-fetched but the courts have to have a look at this if prosecutions are brought and they must interpret the Act in accordance with the words used in it. It would seem to me that, if the Minister owns land on which there are protected wildlife, wild birds and eggs, and so on, that by reason of his ownership of the land he has those in his possession. Is he automatically then committing an offence——
(Cavan): I want to help the Senator.
It does not only apply as I see it to "in possession for sale". That is not the point I am making here.
(Cavan): To which subsection is the Senator referring?
Subsection (2) of the amendment. In other words, I am wondering should it really be "shall not have in his possession for sale".
(Cavan): The Senator may have a point there I concede. The section as drafted originally reads: (1) “A person who is not a licensed wildlife dealer shall not sell, keep for sale or purchase for resale”. The amendment reads: “Subject to subsections (3) and (8) of this section and to sections 22 (5), 23 (7) (d) and 42 of this Act, a person who is not a licensed wildlife dealer shall not have in his possession a protected wild bird or a protected wild animal, whether alive or dead, or the eggs of a protected wild bird”.
All I can say is that at first sight the Senator might appear to have raised a hare, so to speak. He will bear in mind that we are dealing here with wildlife, that we are dealing here with wild fauna, wild birds, and wild animals, that is, wild birds and wild animals which are not in the ownership of any particular person because, if they were owned, they would be domestic animals and they would not come within this Bill at all. If there are wild birds on my land they are really not in my possession in the purely physical sense.
They are not in the Minister's ownership.
(Cavan): They are not in my ownership and they are not in my possession. In fact, as long as they are on my land I have certain control over them in so far as I can prevent people trespassing on my land to take them. I think that, on reflection, the Senator will come to the conclusion that unless I have the fauna housed, or controlled, or in my physical possession, as apart from being on my land, I would not be guilty of an offence.
The Minister is probably right in this but I would like him to have a look at it before the Report Stage. It seems to me that there is a doubt. There is, as the Minister adverted to quite rightly, a distinction in law between wild animals and domestic animals. Presumably that would apply to birds as well, to domestic fowl, for example, as distinct from wild birds. I have forgotten from my student days precisely what the Latin name was. There is that distinction, I agree.
As I understand it, and I may be wrong in this, the distinction between the wild and the domestic is essentially one of ownership. Even though there are wild birds or animals on my land, I do not own them. It may be that that is sufficient to mean in the context of this amendment that therefore they are not in my possession.
On the other hand, it seems to me that at least there is a case to be made for saying that if there is something on my land, because the entire of my land and everything on it is legally in my possession, therefore the wild bird or the wild animal, as the case may be, is for the time being in my possession. As I said when I spoke first, it may be far-fetched but, in case the matter should be interpreted literally, or a court might feel compelled to interpret it literally, I would ask the Minister to have a look at it again. As I say, he may be quite right in the answer which he has given to me.
(Cavan): While I am fairly satisfied that the view I take is right, I have not sufficient information or authority with me to show conclusively that I am. I rather think there are many many legal cases on this sort of thing in the courts. I will certainly have a look at it between now and Report Stage to put it beyond doubt.
Amendment agreed to.
Government amendment No. 147:
In page 34, between lines 18 and 19, to insert the following new subsection:
"(6) An authorised person may inspect and, if he thinks fit, take copies of any entry in any record kept pursuant to subsection (5) of this section."
(Cavan): This amendment proposes to insert a new subsection which is necessary to enable authorised persons to inspect records of protected fauna in hotels, restaurants, and so on, to ensure that there is no breach of subsection (3), now to be renumbered subsection (4). This is a very necessary subsection.
I presume that is the best the Minister can do to try to prevent abuses such as this.
(Cavan): What exactly does the Senator mean?
The inspection of registers. It seems to be the only method the Minister has at his disposal in trying to ensure that people who poach will not have sales.
(Cavan): We have elaborate provisions in other sections dealing with wildlife dealers. Of course, it will be an offence for any person to purchase from somebody who is not a wildlife dealer. For example, a hotelier who purchases from a poacher will be guilty of an offence and can be prosecuted. That is the idea behind inspections — to check up on the origin of the fauna which might be found in a hotel.
When this inspection takes place the bird will probably have been cooked and it will be very difficult to check it then.
(Cavan): If the goose is cooked our goose will be cooked at that stage and there is nothing that can be done about it. However, there are such things as cold stores and cold rooms and deep freezes which can be inspected.
Amendment agreed to.
Government amendment No. 148:
In page 34, subsection (5), line 19, to delete "subsection (1) or (3)" and substitute "subsection (1), (2) or (3)."
(Cavan): This is a minor drafting amendment which is necessary as a consequence of the new subsections (2) and (3).
Amendment agreed to.
Government amendment No. 149:
In page 34, between lines 21 and 22, to insert the following new subsections:
"( ) In any proceedings for an offence under this section in which it is alleged that subsection (2) of this section was contravened, it shall be a defence for the defendant to prove that—
(a) he either had lawfully acquired the wild bird, wild animal or eggs, as may be appropriate, before the commencement of this section or had acquired it or them from a person who had so lawfully acquired it or them,
(b) in case the alleged offence relates to a protected wild bird or a protected wild animal, he had lawfully killed or captured it or had lawfully acquired it from a person who had lawfully killed or captured it.
"( ) Nothing in this section shall make unlawful the possession consequent upon any other thing which is either—
(a) done pursuant to and in accordance with a licence or permission granted under this Act, or
(b) permitted to be done by or under any statute other than this Act,
of a protected wild bird or a protected wild animal or the eggs of a protected wild bird."
(Cavan): Whereas the new subsection (2) is designed to make possession of protected fauna an offence, these amendments make exceptions to the blanket prohibition. The exceptions are:
(1) Where the specimen is lawfully held by a person before the passing of the Act.
(2) Where the specimen has been either lawfully killed or captured by the person himself or from another person who had lawfully killed or captured.
(3) Possession of a specimen of protected species, or the eggs of a protected wild bird, which arises from anything lawfully done under a licence or a permission granted either under the Bill or under any other statute. A case in point would be the possession of protected wild birds or protected wild animals by a research worker operating under a licence granted under section 22 (7) or section 23 (6).
Possibly an extension, mentally, of paragraph (a) of the new subsection (8) may meet the point I made earlier. Subsection (8) makes it clear that possession is not unlawful if the person either had lawfully acquired the wild bird or wild animal before the commencement of the section, or had acquired it or them from a person who had lawfully acquired it or them. Presumably, if one traces the succession of title it was there before this section would have become law. Even if there is no other answer, that might answer the point I made earlier regarding possession.
Is a taxidermist legally entitled to hold birds under this Bill? Not that he would have a great impact on wildlife in general but it is a point which might arise.
(Cavan): I know what Senator Dolan has in mind but, if they are protected wild fauna, the person would have to be a wildlife dealer under the Bill to deal in them. The case Senator Dolan has in mind is the taxidermist who would receive, say, a badger from a client and then proceed to stuff it. This taxidermist would not be engaged in selling it. Senator Dolan has raised an interesting point. If the taxidermist is engaged in buying or selling the bird or animal, then he is engaged in wildlife dealing and he must be licensed. There is no doubt about that. Under the section, amended, he would be in possession of the bird or animal for the purpose of processing it. Therefore, he would have to have a wildlife dealer's licence.
Amendment agreed to.
Section 45, as amended, agreed to.
SECTION 46.
I move amendment No. 150:
Before subsection (2) to insert the following new subsection:—
"(2) The Minister shall make regulations providing that game or wildfowl purchased by a wildlife dealer for sale to the public or for export shall be purchased by him only from a game licence holder who has been licensed by the Minister to sell game or wildfowl."
I do not wish to press this amendment because the Minister has gone a long way in facilitating us. However, I should like to hear the Minister's views on it. A short time ago, he said that if a hotelier purchased a bird from somebody other than a licensed dealer he could be prosecuted. What guarantee have we that the licensed dealer did not purchase the bird or animal illegally?
(Cavan): I did not get the point.
The Minister said a hotelier could be prosecuted if he purchased a bird from somebody other than a licensed dealer, but how do we know who the licensed dealer bought it from?
(Cavan): We could carry on this argument ad infinitum. Is it likely that a man who goes to the trouble of equipping himself with a permit, or what used to be called a game dealer's licence, would co-operate with a poacher in relieving him of game? That seems to be the Senator's suggestion.
(Cavan): We cannot legislate for every possibility.
Amendment, by leave, withdrawn.
Section 46 agreed to.
Sections 47 to 51, inclusive, agreed to.
SECTION 52.
Government amendment No. 151:
In page 37, subsection (1), between lines 22 and 23, to insert the following paragraph:
"(c) the eggs or spawn of a species of wild animal or wild bird which is so specified,".
(Cavan): This is a minor amendment aimed at removing doubt. Its purpose is to ensure that, where the import of any species of wild bird or wild animal is prohibited by regulations made by the Minister, the ban will extend to the eggs of any such wild bird, or the spawn of fish, or certain amphibious species, for example, toads. The amendment puts it beyond doubt that the ban applies to eggs and spawn.
Amendment agreed to.
Government amendment No. 152:
In page 37, subsection (5), line 41, to delete "1974" and substitute "1974, or the functions of the Minister for Health under section 31 of the Health Act, 1947, as amended by section 34 of the Health Act, 1953".
This amendment is to rectify an inadvertent omission from subsection (5) of a saver for certain functions of the Minister for Health. Under section 31 of the Health Act, 1947, as amended by section 34 of the Health Act, 1953, the Minister for Health can make regulations providing for certain precautions against the spread of infectious diseases from animals. In this context I might point out that the current Infectious Diseases (Amendment) Regulations, 1952, S.I. No. 291 of 1952, restrict the importation of parrot species except under permit. The object of the amendment is to preserve the functions and powers of the Minister for Health in regard to the prevention of importation of fauna which might be injurious to health. It would be more human health.
Amendment agreed to.
Section 52, as amended, agreed to.
SECTION 53.
An Leas-Chathaoirleach
Amendment No. 155 is consequential on amendment No. 153 and they may be taken together.
Government amendment No. 153:
In page 37, subsection (1), line 44, to insert "or on behalf of" after "granted by".
(Cavan): I propose to take amendments Nos. 153 and 155 together. Their purpose is simply to enable the Minister to authorise another agency to grant licences for the export of protected fauna or flora. The amendment will make for consistency with the similar provision in regard to import licences contained in section 52 (1) and (3) as originally intended. I might say by way of clarification that such an enabling provision would empower the Minister, if he saw fit to do so in the interests of administrative ease or economy, to authorise the Minister for Agriculture and Fisheries to exercise these particular licensing functions in conjunction with that Minister's similar functions under the Destructive Insects and Pests Consolidation Act, 1958, the Diseases of Animals Act, 1966, or the Fisheries Acts, 1959-1974. In other words, this amendment enables the Minister for Lands, for the sake of convenience, to authorise the Minister for Agriculture and Fisheries to exercise certain powers under this section which it would be convenient for him to do in conjunction with existing powers and obligations on the Minister for Agriculture.
Amendment agreed to.
Government amendment No. 154:
In page 37, subsection (1), between lines 50 and 51, to insert the following paragraph:
"(c) the eggs or spawn of a species of wild animals or wild bird which is so specified,".
(Cavan): This amendment is simply to remove doubt by extending any prohibition on the export of protected wild birds or protected wild animals to the eggs in the case of birds, and spawn in the case of fish, or certain species of animal, for example, toads. We had that in an amendment a few moments ago.
Would this cover a taxidermist who might be engaged on a very big scale and might feel like exporting stuffed animals or stuffed birds of a wild species?
(Cavan): He would have to get a licence.
Amendment agreed to.
Government amendment No. 155:
In page 38, between lines 3 and 4, to insert the following subsection:
"(3) The Minister may authorise a person to grant on his behalf a licence mentioned in subsection (2) of this section."
Amendment agreed to.
Section 53, as amended, agreed to.
Sections 54 and 55 agreed to.
SECTION 56.
Government amendment No. 156.
In page 42, subsection (1), line 30, to insert "subsections (1) and (2) of" before "this section".
(Cavan): These are drafting amendments, as recommended by the draftsman.
Amendment agreed to.
Government amendment No. 157.
In page 42, subsection (1), line 31, to delete "this section" and substitute "those subsections".
Amendment agreed to.
Section 56 as amended, agreed to.
Section 57 agreed to.
SECTION 58.
Government amendment No. 158:
In page 44, subsection (1), lines 18 and 19, to delete ", for the purposes of the Maritime Jurisdiction Act, 1959,".
(Cavan): This is purely a drafting amendment made necessary by the decision to define territorial seas of the State in section 2 of the Bill.
Amendment agreed to.
Section 58, as amended, agreed to.
SECTION 59.
An Leas-Chathaoirleach
Amendments Nos. 159 and 160 are related. I suggest we debate them together.
Government amendment No. 159:
In page 44, subsection (1), lines 40 and 41, to delete paragraph (b) and substitute the following:
"(b) land (in this section subsequently referred to as a refuge) to which a designation order applies,
(c) any land (including land covered by inland waters) to which an establishment order applies and which is land owned by the State but in which the Minister has not a joint or several interest (which land is so referred to as a State land nature reserve),
(d) land other than foreshore mentioned in paragraph (a) of this subsection, which forms the seabed under part of the territorial seas of the State and to which an establishment order applies (which land is so referred to as a seabed nature reserve)."
(Cavan): The main object of section 59 is to enable the Minister to regulate public access to and use of nature reserves, whether on State-owned or private lands, and refuges for fauna. The section is, therefore, meant to provide protective provisions complementary to the provisions of section 15, which enables the Minister to establish nature reserves on State lands including foreshore and territorial seas, section 16, which formally recognises nature reserves on private lands, and section 17, which sets up refuges for fauna.
Subsections (1) and (5) were intended to provide these protective provisions but it has been brought to my notice that subsection (1) as it stands would not cover all of the State nature reserve categories as intended and as set out in section 15 (1) (a), (b) and (c). These amendments are therefore necessary to rectify this oversight.
Amendment agreed to.
Government amendment No. 160:
In page 44, lines 42 to 45, to delete subsection (2) and substitute the following:
"(2) Regulations under this section may apply to all foreshore which is the property of the State, every refuge, State land nature reserve and seabed nature reserve, or to any such foreshore or any refuge. State land nature reserve or seabed nature reserve which is of a particular class or description, or to particular such foreshore or a particular refuge, State land nature reserve or seabed nature reserve."
Amendment agreed to.
Government amendment No. 161:
In page 45, subsection (4), to delete line 5 and substitute "to enable the relevant designation order to have full effect."
(Cavan): Subsection (4) seeks to limit the scope of any regulations which may be made relating to refuges for fauna. As the subsection reads it goes further than intended by providing that any such regulations shall regulate access “to such extent as is necessary for the conservation of fauna for which the refuge is established”. This appears to me to be far too wide on its scope, having regard to the fact that any compensation settled in respect of such refuges under section 17 will relate to the dimunition in value, loss or disadvantage arising from the protective measures contained in the statutory order designating the lands as a refuge. The effect of this amendment would be to confine the scope of any such regulations, in respect of a refuge for fauna, to the purposes of fulfilling the protective measures indicated in the designation order under section 17 setting up the refuge.
Amendment agreed to.
Government amendment No. 162:
In page 45, lines 6 to 9, to delete subsection (5) and substitute the following:
"(5) (a) Subject to subsection (7) of this section and paragraph (b) of this subsection, the Minister may by regulations permit and regulate access to and use by the public generally of land to which either a recognition order applies or an agreement under section 18 of this Act relates.
(b) Regulations shall be made by the Minister under this subsection only on the request and with the agreement of—
(i) in case the regulations relate to land to which a recognition order applies, the owner of such land,
(ii) in case the regulations relate to land to which an agreement under the said section 18 relates, all the parties to the agreement (other than the Minister, where the Minister is such a party)."
(Cavan): It has been represented to me that provision should also be made so as to enable the Minister at the request of the parties to agreements made under section 18, which regulate the management or use of land in the interests of some wildlife value, to make regulations governing access to and use of such lands by the public. I accept the proposition and this amendment will so provide. This deals with refuges, and so on, which are privately owned and set up under agreement by private individuals and it gives the Minister power to cooperate with them by regulating access, making regulations to regulate access. It can only be done at the request of the people concerned and with their agreement.
Could a gun club request the Minister to assist in this matter if they want to preserve a certain area?
(Cavan): With the agreement of the landowners and all concerned. There is nothing compulsory about it.
Amendment agreed to.
Section 59, as amended, agreed to.
Sections 60 and 61 agreed to.
Business suspended at 5.30 p.m. and resumed at 6.30 p.m.
Section 62 agreed to.
SECTION 63.
Government amendment No. 163:
In page 47, subsection (1), lines 8 to 14, to delete paragraph (a) and substitute the following:
"(a) Section 9 of the Act of 1946 shall be construed as enabling the Minister—
(i) to acquire under that section land which is, or, as the case may be, rights over land which are, required by him either for the purposes of this Act or partly for such purposes and partly for purposes mentioned in subsection (1) (a) of that section,
(ii) to purchase or take on lease any buildings or works required in connection with his functions under this Act."
(Cavan):
The purpose of this amendment is to apply section 9 of the Forestry Act, 1946, which relates to the acquisition of land, buildings and so on for forestry purposes to the acquisition of buildings or works required in connection with the Minister's function under this Bill. The omission was inadvertent. Under the Forestry Act, section 9, the Minister has power to acquire buildings as well as land. This section as drafted did not confer those rights on the Minister and the purpose of this amendment is to extend the provisions of section 9 of the Forestry Act, 1946, to the functions of the Minister under this Bill.
Does that mean that on previous occasions when the Forestry acquired land they actually did not acquire the buildings thereon?
(Cavan): No, it does not. The Forestry Division of my Department very rarely exercised its compulsory powers under the Forestry Acts, but it had power to acquire land and buildings. This section, as drafted, enabled the Minister to acquire only land for the purposes of this Bill. The amendment will enable him to acquire land and buildings.
Amendment agreed to.
Section 63, as amended, agreed to.
Sections 64 to 67, inclusive, agreed to.
SECTION 68.
Government amendment No. 164:
In page 49, subsection (1), line 47, to insert "on" after "enter".
(Cavan): This is merely a drafting amendment.
Amendment agreed to.
Government amendment No. 165:
In page 49, subsection (1), lines 49 and 50, to delete "it is suitable for acquisition under section 55 of this Act or for the purpose of ascertaining whether".
(Cavan): This is also a drafting amendment. The words being deleted are superfluous in the context of the subsection.
Amendment agreed to.
Section 68, as amended, agreed to.
Section 69 agreed to.
SECTION 70.
Amendment No. 166 not moved.
Section 70 agreed to.
NEW SECTION.
Government amendment No. 167:
In page 51, before section 71, to insert the following new section:
"71.—In any proceedings for an offence under this Act, it shall not be necessary to—
(a) negative by evidence the existence of any order under section 24 or 25 of this Act or any licence or permission under this Act,
(b) prove that any act which is the subject of the proceedings was not caused by or the result or effect of, or was not consequent upon any other thing lawfully done,
and the onus of proving such licence or permission or that such act was so caused or was such a result or effect or was so consequent upon shall be on, in the case of such a licence or permission, the person seeking to avail himself thereof, or in any other case, the person against whom the proceedings are instituted."
(Cavan): The purpose of this section, as drafted, is to make it unnecessary for officials of the Minister's Department to attend court in order to prove that an open season order, under sections 24 or 25, or a licence granted by the Minister was not in force at the time the alleged offence was committed. The purpose of the amendment is to extend those provisions to permissions granted by the Minister under the Bill or to acts which are lawful by exclusion from prohibitions under the Bill.
There are many precedents for this type of section. It simply means that if somebody is prosecuted for shooting in closed season it will not be necessary to send down somebody from the Department to prove an open season order was not in force.
The purpose of paragraph (a) of the amendment is quite clear and could not be quarrelled with. The Minister is certainly right in saying that there are many precedents for it. Perhaps the Minister could explain or illustrate what is intended by paragraph (b). I do not understand it.
(Cavan): There are many things under the Bill which are unlawful to do. For example, to hunt or capture a protected bird in a closed season is forbidden, but it would be legal to do that for certain purposes if the person concerned had a licence from the Minister to do it. The object of proviso (b) here will mean that it will not be necessary to negative the existence of such a licence in order to suceed in a prosecution. If the accused defends the summons on the basis that he has a licence the onus will be on him to produce it.
That explains (a) but does it explain (b)?
(Cavan): Paragraph (b) is the same. Paragraph (a) refers to an open season order and (b) to a licence granted by the Minister. While it would be illegal, say, to hunt or to capture a wild bird in a closed season normally speaking, it could be legal to do that for scientific purposes, provided the person who did it had a licence from the Minister to do it. That is the type of licence referred to in paragraph (b). The amendment means that it would not be necessary for the prosecution to negative the existence of such a licence.
Am I correct in thinking that paragraph (b) goes a bit further? There are provisions in the Bill — some amendments dealt with them earlier — that while normally it is an offence to kill, capture or take a hen pheasant, if a person kills one accidentally while driving along the road for example, that would not be an offence. Does paragraph (b) provide that, where a person is charged with having killed or taken a hen pheasant, the prosecution do not have to satisfy themselves as to the circumstances in which the hen was killed, but that it will still be open to the defendant in court to prove that he accidentally killed the bird while driving his car? That is a perfect defence under the Bill once it is established, but paragraph (b) puts the onus of showing that on the defendant rather than on the prosecution. It goes further than merely the question of a licence or a permit.
(Cavan): What Senator O'Higgins said was substantially correct. That is the effect of the section. Section 22 (5) and section 23 (7) exempt from offence certain unintentional acts or acts which are otherwise lawful. Paragraph (b) of this amendment is to cover them.
Amendment agreed to.
Acceptance of this amendment involves the deletion of section 71.
SECTION 72.
Amendments Nos. 168 and 169 are cognate and should, accordingly, be debated together.
Government amendment No. 168:
In page 51, subsection (2), line 34, to insert "45, 47," after "section".
(Cavan): Section 72 deals with powers of the Garda Síochána and authorised persons. I propose, having obtained permission, to take amendments Nos. 168 and 169 together. They are designed to include in the list of suspected offences which may be investigated under this section by the Garda and authorised persons, offences against the wildlife dealing provisions of sections 45 and 47. The section as drafted, did not clearly cover these particular offences. That would be a serious shortcoming in the Bill because the sections dealing with wildlife are really very important sections to ensure that abuses of poaching and so on are stamped out.
Will the Minister say whether the owner of the land, if he apprehended somebody who was shooting on his land, would be considered an authorised person or would be entitled to ask if the offender had a licence?
(Cavan): The owner of the land would have the powers given to him by section 44 because the person who was on the land without permission of the owner would be a trespasser.
Has he any authority to ask him for his licence?
(Cavan): He has under section 44. It is dealt fully with in section 44.
Amendment agreed to.
Government amendment No. 169:
In page 51, subsection (3), line 48, to insert "45, 47," after "section".
Amendment agreed to.
Government amendment No. 170:
In page 52, between lines 31 and 32, before subsection (4) to insert the following subsection:
"(4) (a) A member of the Garda Síochána or an authorised person may at any time for the purpose of exercising the powers conferred on him by subsection (2) and paragraph (a) of subsection (3) of this section enter on any land.
(b) Paragraph (a) of this subsection shall not be construed as enabling a member of the Garda Síochána or an authorised person to enter buildings on land."
(Cavan): This new subsection is intended to ensure that a member of the Garda or an authorised person will be in a position to stop a suspected offender anywhere except in a building—where a search warrant would be required in accordance with section 73. This would be of particular importance in the case of suspected poachers.
Amendment agreed to.
Government amendment No. 171:
In page 52, subsection (6), line 41, to delete "hook or a similar device or instrument" and substitute "hook, arrow, dart or spear, or a similar device, instrument or missile".
(Cavan): This amendment is consequential on the amendment of section 34 (1) (a) which proposes to prohibit the use of bows and arrows and certain other devices in hunting game birds or game animals.
Amendment agreed to.
Section 72, as amended, agreed to.
SECTION 73.
Government amendment No. 172:
In page 53, subsection (2), line 11, to insert "or such authorised persons" after "Garda Síochána".
(Cavan): This amendment is proposed by way of assistance to the Garda. Authorised persons would be in a position to use their technical knowledge of wildlife to assist the Garda in such matters as identification of protected species.
Section 73 enables the Garda to search certain places with a warrant and the proposed amendment authorises the Garda to take with them, when carrying out such search, authorised officers. Authorised officers could have technical knowledge that the Garda would not have.
Amendment agreed to.
Amendments No. 173 and 174 are related and may be debated together.
Government amendment No. 173:
In page 53, lines 54 and 55, to delete subsection (3 and substitute the following:
"(3) The powers conferred on an authorised person by a warrant issued under this section shall be exercisable by the person as regards a dwelling only if, and only for so long as, he is accompanied by a member of the Garda Síochána."
(Cavan): The purpose of this amendment is twofold. Firstly, it is to enable dwellings which are suspected of being used in connection with offences involving protected species of fauna or flora to be searched under warrant. It has been strongly represented to me that the excepting of dwellings from search under warrant as provided under subsection (3) of the section would seriously weaken the section. I think it would render it impossible to enforce not merely the provisions of this but of many sections of the Bill.
Senator McGlinchey has a similar amendment down, amendment No. 174. This amendment I am introducing goes a long way towards meeting it.
The second purpose of this amendment is to provide that where an authorised person searches a dwelling under warrant he must be accompanied by a member of the Garda. I consider this new provision desirable even though such searches are likely to be fairly rare.
With regard to the Garda accompanying the authorised person, under the section as originally drafted it would not be possible to search a dwelling house at all. That, as the amendment illustrates, would render it impossible to enforce many of the provisions of the Bill. It is proposed to enable either a member of the Garda or an authorised person to search a dwelling house provided he has a search warrant, but it goes further and it says that an authorised person must be accompanied, even if he has a warrant, by a member of the Garda. That is reasonable, because the authorised person might be a local person going into somebody's private dwelling house and it is desirable that he should have a garda with him for his own protection.
My reason for tabling the amendment is very well given by the Minister in that the section was useless without it. I think that the Minister's amendment meets my case.
Amendment agreed to.
Amendment No. 174 not moved.
Section 73, as amended, agreed to.
SECTION 74.
Amendments Nos. 175 and 177 are cognate and may be debated together.
Government amendment No. 175:
In page 54, subsection (2), lines 15 to 23, to substitute the following paragraphs for paragraphs (a), (b) and (c):
"(a) on summary conviction to a fine not exceeding two hundred and fifty pounds, or
(b) on conviction on indictment, to a fine not exceeding five hundred pounds."
(Cavan): I apologise for the fact that these amendments have been put down rather late in the day but I am sure the Senators have had an opportunity of considering them.
On reading the section it appeared to me that as subsections (2) and (3) stand there is an inherent risk in them in regard to prosecutions on indictment, that it would be known to the court in advance of the trial that the accused person had previous convictions for similar offences. These amendments are therefore being proposed in order to remove that risk and to ensure a completely fair and impartial trial. There is no question that the amendmens will weaken the essence of the section.
I want to draw the attention of the Seanad to section 74 (1) which provides in regard to penalties:
(a) in the case of a first offence, under the particular section or subsection, to a fine not exceeding fifty pounds,
(b) in the case of a second such offence, to a fine not exceeding one hundred pounds, and
(c) in the case of a third and subsequent such offence, to a fine not exceeding two hundred pounds.
Subsection (2) covers offences of failure to comply with regulations under section 59 which deal with habitats. Subsection (3) deals with offences in regard to what I will call loosely endangered species, species which are in danger of becoming extinct. In both these cases the section as drafted provided in the case of a first offence, on summary conviction a fine of £100, in the case of a second such offence £200. This is where the trouble crept in. In the case of a third or subsequent offence, on summary conviction the fine was to be not exceeding £250, and in the case of a conviction on indictment the fine was to be a sum not exceeding £500. The court hearing the case would know that if a person was charged on indictment he must have been guilty of previous offences, otherwise he could not be charged on indictment. It is a well-known legal maxim and legal procedure that evidence of previous convictions cannot be brought before the court until the person has been convicted, unless in very exceptional cases where the person himself has put his own record in evidence. The purpose of this amendment is to use a procedure from which it will not be apparent to the court that there was any previous offence.
Amendment agreed to.
Government amendment No. 176:
In page 54, subsection (3), lines 24 and 26, to delete "commits" and "is committed" and substitute "is guilty of" and "was committed", respectively.
(Cavan): Amendment No. 176 is merely a drafting point.
Amendment agreed to.
Government amendment No. 177:
In page 54, subsection (3), lines 31 to 39, to substitute the following paragraphs for paragraphs (a), (b) and (c):
"(a) on summary conviction to a fine not exceeding two hundred and fifty pounds, or
(b) on conviction on indictment to a fine not exceeding five hundred pounds."
Amendment agreed to.
Section 74, as amended, agreed to.
Section 75 to 77, inclusive, agreed to.
SECTION 78.
Government amendment No. 178:
In page 56, subsection (1), line 17, to delete "dead fauna" and substitute "any thing other than a document".
Amendments Nos. 178 to 182, inclusive, and 185 to 189, inclusive, are all related and may be taken together.
(Cavan): Section 78 deals with the disposal of things seized as evidence by an authorised person or a member of the Garda Síochána under sections 72 and 73. Under subsection (1) of the section disposal can be carried out in two ways: (a) with the owner's consent or (b) in the case of dead fauna, an application to and under a direction from a peace commissioner. The reason for the departure in the case of dead fauna is its perishable nature and its likelihood of becoming unfit for human food before the relevant court proceedings are concluded.
On reconsideration of the section it has occurred to me that the exceptional measures of disposal in the case of dead fauna should also be applied in the case of certain other things seized, such as protected wild plants which would also be perishable, live fauna—where the question of holding it pending the conclusion of court proceedings would present difficulties—and explosive substances, referred to in section 33, which could deteriorate and become dangerous if not destroyed quickly.
Amendment agreed to.
Government amendment No. 179:
In page 56, subsection (2), line 19, to delete "dead fauna" and substitute "thing".
Amendment agreed to.
Government amendment No. 180:
In page 56, subsection (2), lines 21 and 22, to delete "the dead fauna" and substitute "it".
Amendment agreed to.
Government amendment No. 181:
In page 56, subsection (2), line 23, to delete "dead fauna" and substitute "thing".
Amendment agreed to.
Government amendment No. 182:
In page 56, subsection (3), in lines 26 and 27 and in line 30 to delete "dead fauna" and substitute "thing".
Amendment agreed to.
Amendments Nos. 183 and 190 are related and may be debated together.
Government amendment No. 183:
In page 56, subsection (3), line 31, to delete "destruction" and substitute "disposal (by destruction or otherwise)".
(Cavan): The purpose of these amendments is to allow for the disposal of things seized by means other than destruction, for example, by sale. Any moneys received by a sale would be payable to the Minister who in turn would be obliged under section 5 to remit the moneys to the Exchequer.
Amendment agreed to.
Government amendment No. 184:
In page 56, subsection (5), line 40, to insert "and that, having regard to the circumstances of the case, the giving of the direction was reasonable" after "given".
(Cavan): I consider, on reflection, that this amendment is a very desirable further safeguard for the owner's interest in the property seized as evidence. In effect, it imposes an obligation on the peace commissioner to whom an application for disposal of seized property is made, to consider the application in depth before giving such a direction.
Amendment agreed to.
Government amendment No. 185:
In page 57, subsection (6) (d), line 1, to delete "dead fauna" and substitute "a thing".
Amendment agreed to.
Government amendment No. 186:
In page 57, subsection (6) (d), lines 4 and 5, to delete "of the dead fauna".
Amendment agreed to.
Government amendment No. 187:
In page 57, subsection (6) (d), line 8, to delete "its" and substitute "the".
Amendment agreed to.
Government amendment No. 188:
In page 57, subsection (7), both in line 10 and in line 12, to delete "fauna" and substitute "thing".
Amendment agreed to.
Government amendment No. 189:
In page 57, subsection (7), line 14, to delete "the fauna and" and substitute "it and, in case the thing is fauna,".
Amendment agreed to.
Government amendment No. 190:
In page 57, immediately after line 19, to insert the following subsection after subsection (7):
"(8) Moneys payable pursuant to a disposal under this section shall be paid to the Minister."
Amendment agreed to.
Section 78, as amended, agreed to.
FIRST SCHEDULE.
Amendment No. 191 has already been discussed with amendment No. 134.
I was not aware of that. I was not here if it was.
The information available to me is that it was debated with amendment No. 134 and that amendment No. 134 was withdrawn.
(Cavan): For the benefit of Senator McGlinchey I would point out that this point has been met. Authority is given to game protection associations to prosecute under section 44.
If the Senator wishes to make a point he should move the amendment.
I move amendment No. 191:
In the third column of the reference to the Wild Birds Protection Act, 1930, after "The whole Act" to insert "except section 15".
I understand that section 15, and particularly subsection (1) and part of subsection (2), gives recognition to game councils and gun clubs, and that if this is repealed this recognition will no longer be forthcoming. Is that true?
(Cavan): No, that is not so. The Senator's amendment was taken with amendment No. 134 and Government amendments Nos. 143 and 145, and amendment No. 144. I said Government amendments Nos. 143 and 145— which I was satisfied met the proposals behind amendment No. 134 put forward by Senators Ryan and Garrett, and Senator McGlinchey's amendment No. 191 to the First Schedule—were proposed in order to maintain certain provisions of the Game Preservation Act, 1930, whereby the Minister for Lands could grant formal recognition to game associations for the purpose of enabling them to prosecute offences for trespass in pursuit of game over lands preserved by them. I said I was satisfied that section 44 as drafted would enable such game associations to prosecute trespassers on their preserves, but that it had been represented to me that the 1930 Act provisions, whereby formal recognition was afforded to such game associations and that they in turn published in the newspapers circulating in their districts the fact that they had preserved certain lands, were of vital importance to them in that they gave a valuable local status to bona fide game preservation associations and enabled them to sound a warning to would-be poachers. I thought there was validity in those two arguments, and I repeat that these amendments are designed to emphasise the role of such organised game associations in the development and protection of game stocks. So I have done substantially what the Senator wanted.
Amendment, by leave, withdrawn.
Question proposed: "That the First Schedule be the First Schedule to the Bill."
I should like to commend the Minister on having a table setting out the enactments repealed in the Bill. Although this is a very common sense and desirable thing to do, there are many Bills in which it is not done. I have very often deplored the fact that it has not been done in other Bills and, as I have criticised various Ministers for not doing it, I think it is only proper that I should commend the Minister here for doing it.
(Cavan): I am obliged to the Senator.
Question put and agreed to.
SECOND SCHEDULE.
I move amendment No. 192:
In page 57, article 2, after "members" to insert "who shall be elected by ballot by holders of game licences from amongst their number".
I feel that the members should be elected, and who better to elect them than the people involved in game themselves? They are the best qualified people and should be able to judge who are the best people to take up their case. This could follow the type of election we have for the Inland Fisheries Trust.
Here, if I understand the Schedule correctly, I would be in favour of the manner in which it is set out, namely, that it intends to broaden the group of people from whom such a body might be selected. The narrowing down of the basis of selection itself would almost contradict the very many conservation sections in the Bill earlier on. While I have been very critical in a number of ways I have not had an opportunity yet of complimenting the Minister on its many worthwhile features, including its consolidation features, which have been commented upon by Senator Ryan earlier on the First Schedule. I think it would be a serious narrowing of social accountability on the grounds of conservation if we departed from the Schedule as set out.
(Cavan): I think Senator Higgins has hit the nail on the head and has made the point that I actually was going to make. This amendment appears to be based on a misapprehension in that it implies that the board in question would be a game board. However, having regard to the broad scope of the Bill this is not necessarily so. Moreover, the Minister must have reasonable flexibility in connection with the establishment of any board under the section. To confine membership of the board to a single group would be far too restrictive. I am therefore unable to accept the amendment. As a matter of fact, as pointed out by Senator O'Higgins there could be a serious conflict between the holders of game licences from whom Senator McGlinchey would constitute the board and conservation. They would be essentially interested in hunting, whereas the Bill as a whole has a conservation object.
Amendment, by leave, withdrawn.
Second Schedule agreed to.
NEW SCHEDULE.
Government amendment No. 193:
In page 60, before the Third Schedule, to insert the following Schedule:—
"THIRD SCHEDULE.
Species of Wild Birds excluded (subject to section 22 (2)) from sections 19 and 22.
Bullfinch
Carrion Crow
Greater Black-backed Gull
Herring Gull
Hooded (Grey) Crow
House Sparrow
Jackdaw
Jay
Lesser Black-backed Gull
Magpie
Pigeons, including Wood Pigeon, but not including carrier pigeons, racing homing pigeons or doves
Rook
Starling"
Amendments Nos. 193 to 197, inclusive, are related and may be taken together.
(Cavan): The Third Schedule is intended to list the wild birds which, because they are common or pest species, do not call for special attention under the Bill and are, therefore, not being afforded statutory protection. I have had the list re-examined in the light of representations received by me and I accept that on balance there are a few other species which could likewise be excluded from protection without detriment to the objectives of the Bill. These are the carrion crow, jackdaw, jay and rook. These predatory species which are quite plentiful are responsible for a certain amount of damage to agriculture and sporting interests. Accordingly I propose, under this amendment, to have them included in the list of unprotected wild birds in the Third Schedule. On the other hand, as a result of more recent studies and findings I am satisfied—and the Minister for Agriculture and Fisheries agrees with me—that the inclusion of the cormorant as an non-protected species was not warranted. Accordingly it has been deleted from this Schedule and will therefore become one of the protected species.
The final amendment of the Third Schedule will ensure that carrier pigeons, racing homing pigeons and doves are not part of this pest category. Carrier and homing pigeons are not classified as wild birds at all as they are bred in captivity, but since they are valuable birds some of which command prices of up to several thousand pounds each, it is necessary to put the situation regarding them beyond doubt. In fact, that situation will be unaffected by the passing of the Bill. The effect of the amendment in so far as doves are concerned will be to make it clear that doves are not being treated as pests and will have protection under the Bill.
The clarification is necessary having regard to the popular equating of doves and pigeons. The dove species, listed below, which occur in this country are not sufficiently numerous as to be pests and there would probably be objections to their being treated as such. If they reach pest proportions in the future, they can be declared pests by regulations made under section 22 (2). In summary, the amendments will give the following status to pigeon and dove species. The city pigeon and the wood pigeon will be unprotected. Carrier pigeons and racing pigeons are not wild birds, but the amendment is being made to make it clear that their position is not affected by the Bill. The collared dove, the rock dove, the stock dove and the turtle dove are protected.
Senator William Ryan has an amendment. I think I should call on him if he wishes to speak.
I do not disagree with the amendment the Minister has made, but he mentioned as regards the giving of protective status to cormorants that he was advised on looking into it further in consultation with the Department of Agriculture that it was unnecessary, so to speak, or that it was not desirable that they should remain in the unprotected category. I would be interested to hear the reasoning behind that. I am certainly not an authority on this, but it has always been my understanding that cormorants are fairly damaging to fish stock in the country, particularly in the fresh water lakes, salmon lakes, sea trout lakes, brown trout lakes, adjoining the coasts. Certainly there does not seem to be any shortage of cormorants either around the coast or on these lakes. I am not suggesting that everyone should go out on a cormorant hunt—in fact I have seldom seen cormorants shot at—but I would be interested to know what is the particular reason for altering their status in this amendment. As regards the other species the Minister has mentioned, I think I would agree with them all.
By a singular coincidence when the Minister was speaking I wrote down the word "cormorant" because I find myself in agreement with Senator O'Higgins. It is well-known that they have been very destructive so far as fish are concerned. As the Minister knows, in the constituency from which we come there are plenty of lakes and certainly we are looking forward to getting more and more fishermen every year. Therefore we would not like to see anything interfere with the fish there.
I think amendment No. 194 tabled in the name of Senator Trevor West is now made redundant in the light of the Minister's assurances. Two matters arise; first of all the preservation of inland water life is the function of another Department and could be the subject of a separate Bill in this House, and might appropriately be discussed even by tabling the Murphy Report on this matter generally. With respect to the other Senators who have spoken on this point, the Department of Education are involved. As Senator Dolan says, I think the problem has been that people have not been sufficiently precise in defining what a cormorant is. The trouble is the classificatory system. If the original drafting was allowed, one could have what the Leader of the House has suggested, a cormorant blast-out in many cases, and, indeed, many of the allegations which have been made against the cormorant should be levelled against the collared dove. Therefore the general effect of the amendment as suggested by the Minister is to give greater precision and to replace what is an inaccurate ornithological general expression with a specific species-type against whom the allegations are more accurately related.
The cormorant probably owes its elevation, if we could call it that, to the work carried out by people such as Dr. David Cabot, Dr. West and Mr. Greer-Walker, who did an exhaustive study of the eating habits of cormorants on these islands. They showed that cormorants depend upon salmon and trout for only 2 per cent of their total food. It was believed— and this is why over the years there had been a bounty for cormorants— that they killed large numbers of young salmon and trout. This has been disproved. It seems that they feed on a small type of coarse fish by the name of rass, various types of eels and a variety of flatfish, most of which have no commercial value at all, especially the rass, which is their major food.
It looks as if the cormorant was maligned over the years and it seems that we here in Ireland are one of the last places to have a bounty on this bird. There is still a bounty in existence for the killing of this bird. It is misplaced. This booklet proves that they are not predators to the extent we assumed.
I should like the Minister to tell us very briefly the reasons why some of the birds mentioned in the Third Schedule are not being protected— this is just for my own information— for instance, the house sparrow, the jay, the magpie and the starling. Again I feel the starling may be mistakenly blamed as a carrier of diseases and o'her damaging effects from the Continent. I understand this is not altogether true, that the starling is a comparatively harmless bird. I should like the Minister to clarify that for me.
(Cavan): I should like to deal with our friend the cormorant first, and I should like to compliment Senator Deasy on the research. I think he was quoting from Dr. Cabot's report. Dr. Cabot, very recently on a television programme, described this Bill as a feast after a famine. It is true that the cormorant is a controversial character. We have the House more or less divided, but I propose to give him the benefit of the doubt and put him into the protected schedule. The research undertaken by Dr. Cabot has shown that not more than 2 per cent of the cormorant's stomach consists of salmon or trout; that the bird really lives on coarse fish and other matter. I believe the cormorant is deserving of protection. At worst he is a controversial bird and there is a difference of opinion about him. It would not be right to condemn the cormorant without giving him the benefit of the doubt, and that is what I propose to do.
I appreciate that the Minister is a very humane man in this regard. With due respect to Dr. Cabot, his evidence might depend on the number of cormorants examined and from which locality they came. If salmon were not very plentiful it would be easy to surmise that the cormorant needed only 2 per cent to keep alive. However, when salmon is not available the cormorant is very fond of coarse fishing, in particular. While we would not deny the cormorant his food we should like to see some coarse fish protected in the interests of tourist fishing. Therefore, I would not like to depend entirely on the excellent evidence given by Senator Deasy.
(Cavan): I am sure Dr. Cabot did not arrive at his conclusions lightly. He is a scientist and zoologist of international stature. I am sure he considered cormorants in detail before writing his report. This is not final as there is machinery within this Bill to change either birds or animals from one Schedule to another. If proof is given that this should be done it will be done.
May I put this point briefly to the Minister? I do not doubt what the Minister has said, but to what extent is the cormorant in any danger of extinction? I do not see any evidence for this view. Personally, I would prefer to give a protected status to the house sparrow than to the cormorant. Whatever scientific examinations are made on the cormorant's digestive system, it is clear that a percentage—the Minister has said 2 per cent—of their diet consists of the salmon and trout species. To that extent the cormorant is destructive to a valuable fishing industry, whereas the house sparrow does not live on salmon or trout. That is my first point.
If it could be shown that there was any real danger of the cormorant becoming extinct, there would be merit in the Minister saying that it was a controversial bird and that he would give it the benefit of the doubt and have it protected. With no evidence of it becoming extinct or any danger of people hunting cormorants but with evidence to show that the cormorant is destructive of valuable fish life, the Minister's attitude might be that as long as there is doubt about the bird he would allow the status quo to remain, the status quo being that the cormorant is not a protected species.
I, too, intended to mention the house sparrow. I do not know who decided that the house sparrow should be put in death row. If this concession is made then there would be the temptation to shoot wrens, robins and other songbirds. Last year there was a spate of this shooting by visitors, some with airguns and some with ordinary guns. This deserves a rethink.
I must apologise if I tend to bore the House. Two wonderful experiences recently prompted my original remark to the Minister, that not only is he right in giving the benefit of the doubt to the cormorant but in my earlier assertion the term "cormorant" was a confusing one. The Minister has not commented upon this. In the proceedings of the Royal Irish Academy, Volume 75, there is comment on the document concerning the cormorant already referred to. This is the document by B. West, D. Cabot and M. Greer-Walker. This document draws a distinction between what is generally referred to the cormorant, and refers to the common cormorant and the shag—the common cormorant is referred to as the Phalacrocorax Carbo and the shag as the Phalacrocorax Aristotelis. The latter, that is the shag, is the subject of a very beautiful painting called "Shags Colony" by Cecil Maguire, who paints scenes off the west coast of Ireland. The cormorant feeds on freshwater and sea food. The latter does not. From information available, the latter, the shag, is in danger of dying out, but the cormorant is not.
Senator Dolan said the cormorant represented a real threat to the tourist industry, in so far as it represents a threat to lakes frequented by tourists. In many cases the nesting habits of this bird are such as will not mount any serious danger to inland lakes. More serious dangers to fish in the inland lakes come from the inadequacies of the 1963 Planning Act and the totally irresponsible attitude of the farming organisations which refuse to tell farmers not to pollute their lakes. We have the example of Lough Sheelin in Senator Dolan's own constituency.
The evidence of this document, which Senator Deasy has admirably brought to the attention of the House, is that the sub-type popularly known as the shag is in some danger, whereas the other one is not. Sampling was carried out, in a number of coastal regions where this bird species colonises or nests. The truth of the matter is that generally there is not any common pattern. I think therefore the Minister is taking the wise course. Some salmon and eels have been found where cormorants nest, although Senator Deasy has reminded us that eels rank second after rats in the diet of the cormorants studied by Dr. Cabot and others. On balance therefore there is a very weak case against the cormorant generally. Therefore I think the Minister has been quite right in being more precise in his terminology and in giving the benefit of the doubt to the species.
I am sure the menu would vary among various fishes from the sea coast.
I cannot say that I am able to distinguish between a cormorant and a shag. We refer to a shag as a woolly diver in our part of the country, but it is very difficult to distinguish between the two species. Senator Higgins may be able to do so. The shag is not even referred to in this Bill. We generally consider the shag and the cormorant as the one bird. I would make the point that the cormorant probably does quite a bit of damage in and around salmon and trout hatcheries. There is a suggestion in that booklet that others are damaging these hatcheries, that they are killing a lot of young salmon and trout and should be culled. Is there provision in the Bill to cull a bird such as a cormorant, which is now protected, in cases where it is causing undue damage only for short periods of the year?
(Cavan): We could shift them about to the other Schedule.
If there is evidence they are causing great damage in these hatcheries that might be the answer. I asked earlier if the Minister would give us reasons why the house sparrow, the jay, the magpie, and the starling are included in this Third Schedule, because the cormorant would have been retained in that Schedule if it were not for that exhaustive survey carried out by these three gentlemen. I wonder if the same type of exhaustive survey were carried out in each of those other cases I have mentioned, would we come up with some startling results that they were not doing the damage we presume they were doing. That could apply to every bird in the Third Schedule. A lot of our views on them is very much second-hand. It could be said to be old wives' tales in many cases. I should like to know what scientific or practical knowledge there is to back up the assumption that they should be in this Third Schedule of unprotected birds?
I want to finish this point once and for all. The second of the sub species to which I referred actually feeds totally on marine food. It is therefore distinct from the first or more general kind. It is true, as Senator Dolan says, that the diet of the bird is somewhat varied; but it is far more accurate to suggest, as Senator Deasy does, that where they are near hatcheries they represent real danger. Not only would it be necessary to shift them from one Schedule to another, but it would be necessary also to discriminate between, for example, areas where thee nesting habits of birds such as this provided no danger whatsoever. It would also be necessary to be specific. I am satisfied that the Minister is doing the right thing. I think that Senator Deasy has raised a very important point: what kind of research is proposed to enable these shifts to be made from one Schedule to another in regard to, for example, species not already covered by people such as West, Cabot and Greer Walker?
(Cavan): Having listened further to the debate, and particularly to the contributions of Senators Deasy and M.D. Higgins, I am satisfied now that the innocence of the cormorant has been established beyond all reasonable doubt. I think it is very fortunate for this bird that we have had such research available and that we have had the results of the research of Dr. Cabot available. It has enabled us to assess the habits of the cormorant more accurately. We have the results of the research carried out by Dr. Cabot available to establish that this bird is not really a pest. As of now, he is not as destructive as some people might lead us to believe. In the absence of that type of research, the cormorant would have been left to the tender mercy and rather biased or prejudiced views of Senator Michael J. O'Higgins, who is approaching the matter from the point of view of a fisherman. He really sees the cormorant as a destructive bird that should be treated as a pest. As of now I certainly do not propose to treat him as a pest. That does not mean that in years to come, if the species increased and multiplied, it might not be necessary to do something about it. The shag, of course, is protected, as he is not treated as a pest.
We are trying to protect all the bird species other than those set out in the Third Schedule to the Bill. That is why we are removing from the current Schedule the cormorant and putting them in another Schedule. The other birds in the Third Schedule — those which we propose to leave in it, such as the bullfinch, the carrion crow, the greater black-backed gull, the herring gull, the hooded, grey, crow, the sparrow, jackdaw, jay, lesser black-backed gull, magpie, pigeons, rook and starling — are all pests for one reason or another. They are treated as pests either because they are destructive or because they are so numerous. If we were to give protection to the species which are prolific and which at present abound in great numbers we could bring about an imbalance which could lead to, perhaps, disease and so on in the particular species, apart from making some species extinct. We are treating the birds mentioned in the Third Schedule as pests because (a) they are destructive or (b) they abound in such numbers as not to need protection, and because of the great numbers they are in danger of becoming pests.
I want to ask one question of the Minister. I have no desire to go on a cormorant hunt, but this question is prompted by the current notice in connection with open and close seasons. I am very glad the Minister made the point because it is very easy to fall into an error in connection with this. The remaining Schedules in the Bill set out lists of protected animals and species, whereas in relation to wild birds the Schedule sets out those that are unprotected. Every bird other than those which appear in the Third Schedule will be, when this Bill becomes law, a protected bird. It is very easy to fall into the error or regarding all of the Schedules as merely containing what is protected. That is not so in the case of birds. Is the Minister for Lands or the Minister for Justice, or whoever is responsible, going to find himself in the position that when he is deciding on open seasons for different birds he must list a whole clutter of birds that are not now dealt with?
(Cavan): Only for game birds.
Well and good, if it is only for game birds. Everyone will know where they stand. But it follows from that that every bird other than a game bird is going to be in close season all the time. In other words, there will be no open season for the cormorant or any other bird other than a game bird. Once it is clear, I, certainly have no objection to it, but I think it should be clear.
(Cavan): The position is that all birds not scheduled in the Third Schedule are protected and there will be open season for shooting or hunting certain birds, normally the birds known as game birds. That is the position.
It would appear from the make-up of the Third Schedule as in the original Bill, and now in the amended Bill, that the birds in the Third Schedule were put there as a result of an educated guess. I deduce that from the fact that we now have erased one, the cormorant, from that list and we have added four—the carrion crow, the jay, the jackdaw and the rook. That makes me feel that it is only a guess and that there is not a great deal of scientific evidence to back up the placement of them on this list. I would ask the Minister to make a study if possible of each bird on the list. It may be that there are some birds which should be on it.
I am pleased that the cormorant has been removed from the list in the Third Schedule by this amendment, because it is one of the birds, as Senator Deasy said, considered to be a pest by many people, just as are the otter, the heron and various other wild animals. In the mythology of the countryside these are animals and birds that do great damage. In fact, they probably do more good than harm. The cormorant numbers have decreased quite rapidly and I am pleased that this bird has been removed from the Third Schedule. I would argue for the insertion of another bird, the collared dove. About eight or nine years ago, this bird was not known in this country at all. I remember quite well when the first pair of collared doves in the east Cork area arrived in our establishment in Ballinacurra. It was quite well known that there was a pair of these collared doves nesting in Ballinacurra and there was quite an inflow of bird watchers.
(Cavan): I do not want to interrupt the Senator but we have already dealt with collared doves. They are protected birds.
I think they should not be protected. The Minister did not give me a chance. I was just saying that eight or nine years ago the first pair of collared doves arrived in our part of the country and caused a sensation. They were then a new migrant, but since that they have arrived in such increasing numbers that they are a damned nuisance, to put it mildly. They are pests everywhere and are one of the species of bird our opinion of which, as Senator Deasy said, we might have to change from time to time. Eight years ago we went to great lengths to protect the few nesting pairs that were in our area. Now we are trying to get rid of them as fast as we can because they have bred at a tremendous rate. They have proliferated all over the country and they are now a pest. I would argue that this Third Schedule should include the words "collared dove" because the collared dove is one of the birds that has come in recently and is now definitely a nuisance.
(Cavan): My information is that the collared dove is numerous and prolific in Britain but so far here the species is not over-numerous. He does not present any problems here. I do not think it would be fair or reasonable to anticipate that he will become a pest here. If the numbers increase to such an extent that they are a pest, then it is a simple matter by a Ministerial order to add him to the Third Schedule.
That is a fair reply but I would just say to the Minister that this bird has migrated from somewhere in Central Europe. It has been a recurring pattern and, in a number of Western European countries, particularly on the Western European seaboard, the bird was not seen until relatively recently. In each one of those countries the bird has become a pest. It has moved from Britain to here only in the past ten years but it is now definitely in pest proportions in Britain. My feeling is that in certain parts of the country, especially in East Cork, it is a pest. In other parts of the country it may not be very common. It is one of the birds to keep an eye on, vis-à-vis, this Third Schedule here.
Is this a bird something like a pigeon but smaller and with a raucous cry?
It has a very raucous screech and a very high flutter.
They have spread out from East Cork in recent years.
(Cavan): We will follow the example of The Skibbereen Eagle and will keep an eye on them. If they increase and multiply we will deal with them.
Senator Deasy said the Third Schedule seemed to be put together on an educated guess. When I introduced this Bill in the Seanad I said in my Second Reading speech that we would hold consultations and discuss the Bill with interested organisations and interested people with a view to improving it. The Senator will see that we have done that and, as a result, we have put down a great number of amendments to improve it.
It is true that the Third Schedule has been listed on the best estimation we can get at present. One of the objects of this Bill is to initiate research to acquire knowledge about wildlife. In the light of that research, and in the light of that knowledge, our guesses will become more accurate. They will cease to be guesses. They will be balanced decisions on actual scientific data. As I say, there is nothing sacrosanct about these Schedules. They can be changed from year to year. I am not saying that as of now they are infallible but they are based on the best information available to us.
Amendment agreed to.
Amendments Nos. 194 to 197, inclusive, not moved.
Third Schedule, as amended, agreed to.
FOURTH SCHEDULE.
Government amendment No. 198:
In page 60, Part I, to insert "Osprey" between "Kites" and "Owls".
(Cavan): I am now advised that the osprey, which is a bird of prey somewhat resembling a large sparrow-hawk is, in fact, a monospecific bird. In other words, it is not comprehended by the generic term “hawks”. The osprey has recently been seen from time to time in this country and, being rare, it is imperative that it be given special protection being afforded to other species listed in Part I of the Fourth Schedule. The effect of this amendment will be that the “good defence” plea provided for in section 22 (6) on page 20, will not apply to the osprey. That is the defence that enables the owner of land or the owners of crops to despatch or shoot an offending bird without permission from anybody. That right does not extend or apply in the case of a rare species. We are putting the osprey into that category.
The Minister seems to be catalouging the rare species in this Schedule.
(Cavan): That is the purpose of the Fourth Schedule.
I think it should be included because it is a rather rare species.
There are three other categories of birds which I feel should be included in the Schedule, namely, the kingfisher, the chough and the raven. They are very rare species in this island.
(Cavan): The object of the Fourth Schedule is to give special protection to birds and animals that are in danger of extinction, that need special protection. I can only act on the best scientific and ornithological advice available to me. I am prepared to accept the contributions in this House as very well worth while. Listening to the Second Reading debate here was a most enlightening experience. I heard some very down-to-earth contributions. I was particularly struck — not because he happens to be on this side of the House — by the contribution of Senator T. Kilbride who spoke from the depths of sincerity and from an obvious deep knowledge of nature and animals in general.
I am prepared to accept and to have regard to the contributions and advice which I have received from Senator West and Senator Deasy and, indeed, all Senators. At the same time, I have technical advisers in the Department of Lands who are authorities on these subjects. The contributions and suggestions made here will be brought to their attention between now and Report Stage. That does not mean that I am giving any undertaking that I will change these Schedules between now and Report Stage. What I am saying is that what the Senators have said here will be borne in mind.
I am advised that neither the kingfisher, nor the chough nor the raven are in danger of extinction. They are not regarded as needing the special protection afforded by the Fourth Schedule. As I have said, what the Senators have said here will certainly be considered. I am sure Senators appreciate that these three birds are protected. They are not treated as pests. They are given the ordinary protection. The only special protection taken from them is the protection afforded to birds which are damaging crops and which, if they are in danger of extinction, the farmer is not allowed to shoot or to kill off without a licence from the Minister.
I am very heartened to hear that the Minister has an open mind on this and that these matters are not closed because there is a lot of room for debate and there is different advice from different people. We understand that, I would agree entirely with Senator Walsh that the kingfisher is a bird that does need protection. It is a most beautiful bird and it is very rare. It does not quite come under the general ambience of this section because these are really birds of prey. The other two do.
The chough and the raven are quite as rare, if not a good deal rarer, than hawks and owls. Hawks and owls are still relatively common. All four are birds of prey. I would argue very strongly that the raven and the chough should be included in this list if you include at the same time hawks and owls. Whereas I can quite see the argument for buzzards, eagles, falcons and harriers, I would like to ask when has the kite last been seen? Is the kite extant in Ireland? We could suggest a number of other birds which have been here for years, but is the kite extant at the moment?
(Cavan): Political kites are quite common.
I know the osprey is very rare, the buzzard is occasionally seen, the eagle is seen, the falcon is seen, the harriers are common enough, but has anybody seen a kite recently?
(Cavan): Our information is that the kite is extant.
It is an animal form of kite, not one of those flown over Leinster House shortly before election time. It is not one of those sort of birds; it is a real one. Could the Minister comment on the chough and the raven?
I appeal to the Minister to ask his technical advisers to have another look at these three types of birds and see if they could be included in the Fourth Schedule. My technical advice is that they are very rare species and that they are in danger of extinction. For that reason they require special protection. I would ask the Minister to reconsider this, please.
I support that plea. The kingfisher is probably one of the most attractive, if not the most attractive, of Irish birds and is not very plentiful or common. This booklet to which I referred earlier today, published by the Forest and Wildlife Service, states that ravens are distributed throughout the country but that they are not very plentiful. As regards the chough, this is a species very like a crow. You could very easily confuse it with a crow. Its habitat is on the cliffs, especially on the south-east coast. According to this booklet there are only 1,000 pairs of them in Ireland. Any bird which is as rare as that needs very strong protection.
Referring to the point made by Senator West about kites, you could also make the same comment about buzzards. They are also included in this. We will not deal with eagles because there are not any in this country. I said on Second Stage that we should make an attempt to specially provide habitats for birds such as the kite and the buzzard to bring them back in reasonable numbers. They are quite plentiful in Scotland but I doubt if we have any at all, maybe a couple of pairs.
(Cavan): Senator Deasy invites us to provide habitats for kites and buzzards. We have taken power earlier in the Bill to provide habitats for fauna in general and to protect the habitats of fauna in general. We will do that and those provisions are in the Bill.
Regarding these three birds, the kingfisher, the chough and the raven, I welcome any specific scientific information which any Senator can give me within the next week or so. What Senator Deasy read out would not suggest that the chough is in danger of extinction. Even on that count, there are 1,000 pairs. The raven, I think he said, was thinly scattered throughout the country. That is not evidence that they are in danger of extinction. These birds may be on the borderline and I am quite prepared between now and Report Stage, or between now and the discussion in the Dáil, to have a look at them. I welcome any scientific information or, indeed, information in general, which is given to me on this.
I want to make a point which the Minister made before. We should bear it in mind. The fact that the kingfisher, for example, is not included in Part I of the Fourth Schedule does not mean it is not protected. All it means is that it does not come under the provisions of the defence proceedings under subsection (6) of section 22 of the Bill.
I have never known a person to go out hunting kingfishers. They just want to see them. I have seen kingfishers several times. I suppose there might be danger from those who might be interested in collecting birds eggs. The kingfishers have the protection afforded to them by the Bill. The same applies to the raven and the chough. There is no additional protection except in relation to the defence of proceedings given by being included in Part I of the Fourth Schedule. It seems to me to be most unlikely as regards the raven and the chough that their habitats will be interfered with, for example, by a farmer in operating his farm. He will not bring his tractor up a cliff. He will not interfere with the nests of birds whose habitat is on the face of a cliff. I do not think the inclusion in this Schedule of birds who nest in that way would be of any particular value. They have the general protection afforded by the Bill already.
Amendment agreed to.
Fourth Schedule, as amended, agreed to.
FIFTH SCHEDULE.
An Leas-Chathaoirleach
Amendments Nos. 199 and 200 are similar and may be debated together.
Government amendment No. 199:
In page 61, to delete "Stoat".
(Cavan): Despite the many exemption and licensing provisions in the Bill which are aimed at avoiding or reducing interference with such activities as agriculture, game propagation and so on, I am satisfied that, in present circumstances, the inclusion of the stoat in the list of protected animals is not warranted. While precise population statistics are not available for this particular animal, we know that it is a numerous and widely-distributed mammal. Moreover, there is evidence to suggest that it can and does cause a certain amount of damage to farm livestock and also to game birds, especially at the rearing stage. In the circumstances, I feel it could be unfair to these interests to apply the restrictions which statutory protection of the stoat implies, and I therefore propose to delete it from the land mammals listed for protection in the Fifth Schedule. I do so, however, in the knowledge that if the necessity arises in the future, for example, in the event of a serious decline in numbers, it will be possible under the provisions of subsection (2) of section 23 to restore the stoat to the protected list. This amendment also meets the point put forward in amendment No. 200 by Senator McGlinchey.
That is fair enough. In fact, I feel the stoat is already sufficiently protected in folklore and does not need any other protection from the Minister.
Amendment agreed to.
Amendment No. 100 not moved.
Question proposed: "That the Fifth Scheduled, as amended, be the Fifth Schedule to the Bill."
I believe there have been a couple of sightings of wild cats in various parts of the country and I would like to ask the Minister if he has any information to this effect. If this is the case, the wild cats should be included as one of the land mammals and be given this protection because its occurrence is so rare.
(Cavan): Senator West raises a question about wild cats and asks whether we have any evidence that there are any wild cats here. My information is that there is no evidence available to the Department that any such wild cats are to be seen. I am told it is necessary to draw a distinction between wild cats and what are known as feral cats, that is, domestic cats that run wild. I am not aware of any wild cats per se.
I take it the Minister is really saying that we have very good industrial relations. We have no wild cats. I am very glad the Minister has included the red squirrel in the Fifth Schedule. I do not know an awful lot about them, but they appear to be quite rare. I have seen a number of them from time to time. I am also glad, if my information is correct, that while he has included the red squirrel in the Fifth Schedule he has not included the grey or the black squirrel, or whatever it is called. I think it is called the grey squirrel. My information is that they are quite prolific and there are a number of them around. They drive the red squirrel out of an area. They decimate the population of the red squirrel which is certainly the nicer looking animal, and the very much rarer animal.
It seems to me that, with the distinction drawn by the inclusion of one and the omission of the other in the Schedule, people will have an opportunity of trying to preserve the red squirrel if necessary by putting down the grey squirrel. I understand that in some areas the Minister's Department had very considerable problems with the grey squirrel in connection with young forestry plantations. I should imagine that the Department are fairly well versed in the art of squirrel control.
I agree with Senator O'Higgins in what he stated about the red and the grey squirrel. The red squirrel is comparatively harmless. In Britain, the grey squirrel is very common and all efforts to get rid of him have proved a failure. He does great damage to trees, young trees especially. There are vast numbers of them in all parts of Britain, I have noticed. I would hate to see them proliferating here. We should try to preserve the red squirrel and eliminate the grey squirrel if at all possible. The pine marten, I notice is also protected. There seem to be only a very small number of pine martens here, especially in the north of the country.
I would like to see more pine martens in the country. The pine marten was common, I believe, in all parts of the country up to about 50 or 60 years ago, but he was killed off in the southern part. He is quite an attractive animal. Could the Minister please explain the reference to the seal species. I believe we have two types of seals here. The common seal does immense harm to fisheries. These colonies should be culled to quite a large extent. They cause tremendous damage to salmon fisheries and also to herring stocks at times. The grey seal, on the other hand, is quite rare. He is found only along the west coast and needs protection. I wonder does the common seal need protection? I doubt it.
I asked the Minister on Second Stage to give us some information about the animals listed under "amphibians", the natterjack toad. The only concrete information we got the last time was that Senator Deasy had seen a few of them down in his constituency.
The pine marten has been mentioned. Where forestry is reasonably plentiful, these animals are also very plentiful. The forestry people have been trying to trap them and to curb their activities as much as possible because of the damage they do to young trees. It would be strange if we were protecting them here while the Minister's Department were pronouncing sentence on them. I was under the impression that the Forestry Division considered them as pests. I am also wondering here why it was necessary to include the hedgehog, in Irish an gráineog, which as the House may know, is the staple diet of some travelling folk.
(Cavan): First of all, regarding the squirrels, the red squirrel is not rare, but it is not as prolific or as damaging to trees as the grey squirrel which was imported into this country many years ago. The grey squirrel is a pest as far as the Forestry Division of my Department are concerned. We have to control the grey squirrel and, indeed, we employ trained trappers for that purpose. Senator Dolan may be confusing him with the pine marten. The pine marten is rare. A special study is being made of him in the forest in Portumna. The natterjack toad is a very rare specimen, I understand. The only evidence we have about him is that he is available in County Kerry. He is a type of frog.
Senator Deasy raised the question of the culling of the seal. I do not think that culling the seal is inconsistent with protecting the seal. Deer will be culled as the necessity arises to ensure that they do not become too numerous. I do not think any other question arose on the Fifth Schedule.
I just mentioned the hedgehog.
(Cavan): Speaking from my own observations, hedgehogs seem to have become more numerous in recent years. Some years ago you would never see one. We have protected them because they are harmless creatures and they kill slugs.
The Minister mentioned that deer would be culled where it was considered necessary. In County Wicklow deer are very numerous, and quite an amount of culling could be done around the perimeter of the forestry plantations. As I have already suggested the deer-stalker should be employed again, particularly in parts of Wicklow where forestry plantations adjoin small farms and where a considerable amount of damage has been caused. I am a preservationist especially in regard to deer. In Wicklow we have a very unusual species, a herd of white deer which is practically unknown. A number of the Department's officials had not heard of them before and I should like them to visit Wicklow at Grangecon estate and see them. But there are farmers in Wicklow who would not take very kindly to the preservation of deer because they are suffering financial loss due to destruction of crops by deer. I would ask the Minister to consider this matter seriously in conjunction with the foresters in areas where complaints have been made by farmers about the destruction of crops.
(Cavan): I should like to make the position in regard to deer as clear as I can. Sometimes it would appear from what is said that all the deer in the country are the property of the Department of Lands. Deer are wild animals and the Department are not responsible for damage caused by them. Any question of fencing State forest properties where deer occur would be ruled out because of the prohibitive cost. The Department have been aggravated during the last few years because of security restrictions on the possession and use of rifles by the general public including hunting bodies. Prior to the unsettled state of affairs in Northern Ireland rifles were available to people who wanted to despatch deer but those rifles are not now being licensed.
However the Department are engaged in a comprehensive culling programme throughout the country. It is being carried out in a manner which is consistent both with the conservation of the species and protection of agricultural interests. Section 42 of the Bill will strengthen the Minister's powers in that regard and will enable an owner of land to take direct action with the permission of the Minister. Where immediate action is necessary to prevent damage being caused by deer the good defence clause in subsection (8) of section 23, as now amended, will enable a landowner to take direct action without prior permission, except in the case of native red deer. The Bill provides for the issue of licences to farmers. From what Senator Walsh says, these licences would be readily available to farmers in County Wicklow to enable them to shoot deer causing damage to their crops. If there was an invasion of deer the farmer could despatch them without any licence. If he is persecuted with them he has a good defence clause in section 23 (8).
I welcome the statement from the Minister, because prior to it there was a widely held view in Wicklow that the destruction caused by deer was the direct responsibility of the Department of Lands. Indeed people who made representations to me on this matter have spoken of compensation by the Department for the destruction of their crops. It would now appear that deer, being wild animals, are as much the farmer's property as that of the Department of Lands and the farmer would be at liberty to shoot them where necessary without a ministerial licence. Is that the position?
(Cavan): Up to now the law has been that wild animals are not the property of any person in particular. As long as animals remained on a person's land they could be protected by that person in so far as people could be prevented from trespassing on the land to kill them. Once the wild animal escapes from the land of one owner and goes to another, the owner of the first-mentioned land ceases to have any claim on it. At present, for the benefit of Wicklow people, deer are not protected. Up to now and until this Bill becomes law they are treated as vermin. If deer escape from forests or other lands and trespass on property they can be shot, without fear of any action being taken against the person who shoots them. Under this Bill deer will still remain wild animals but they will be protected. It will be illegal to shoot them unless in an open season, such as for pheasants or hares. Deer causing damage can be shot at any time of the year under licences from the Minister for Lands. Deer causing irreparable damage to crops can be shot without any licence. Section 23 (8) affords a defence to the farmer.
Question put and agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Wednesday, 17th December, 1975.
The Seanad adjourned at 8.40 p.m. until 3 p.m. on Wednesday, 10th December, 1975.
