A Chathaoirligh, ar an gcéad dul síos, ba mhaith liom mo bhuíochas a ghabháil as ucht an fháilte a cuireadh romham ar maidin.
The Bill before the House today is one of a number of initiatives which I intend to take in the area of identifying, preserving and exhibiting items of our national heritage. The Bill gives important statutory expression to the rights of the people of Ireland to the physical representation of our culture and heritage, whether it be archaeological objects found, monuments or sites of archaeological interest. It should be seen against the background of a Department which for the first time has the overall responsibility under one administrative structure for co-ordinating policy in respect of archaeological matters. Other legislative proposals which I will be bringing before the House in the coming months will include a Bill to give a statutory footing to the Heritage Council and a Bill to establish autonomous boards for the National Museum and the National Library.
In the modern world, with the stunning advances in telecommunications and other technologies, we are in grave danger of being swamped by values which are not our own, or indeed of the larger European culture, of which we are a part. Many of the messages with which we are bombarded come not from the people of other countries with their own valuable traditions and outlooks, but from conglomerates who wish to sell us a way of life and a system of values based on the acquisition of their goods and services. To retain control of our own culture and national identity, as an ancient island race with close connections with mainland Europe, we must ensure we have the fullest understanding of how our culture has evolved over the millennia. We must have a confident base from which to develop and enliven our own system of values.
For most people, it is perhaps the artefact or monument itself that can have the most immediate impact. The beauty and artistry of many of our famous treasures has captivated the imagination of generations and delighted foreign audiences when these treasures have been displayed abroad. To have visited an historic site such as Clonmacnoise of Newgrange leaves one with the knowledge — and responsibility — of knowing that we are but the latest inheritors of a long, proud and inspiring past. How many parents have dragged their children out on a wet winter Sunday afternoon to visit a museum, local or national, and were surprised by the interest which even one small, unassuming artefact can spark?
However, this is not even half the story. While the artefacts and monuments, in themselves, are important, in more recent years it is the sites in which these have been discovered, particularly when discovered in an undisturbed site, that have been seen to yield or constitute a reservoir of amazing information about our ancestors and, through them, about ourselves. When archaeologists have been given the opportunity to properly excavate such sites, they have, using the strict disciplines of their profession and helped by modern forensic technology, been able to begin piecing together the complex jigsaw pieces of the past.
It is a very welcome development that the information thus acquired and assimilated is already being fed into our education system at all levels. The lifestyle of our ancestors has already been recreated in many imaginative ways at community, regional and national levels. Places such as Ferrycarrig, County Wexford and Craggaunowen, County Clare, have inspired all of us with a sense of wonderment, brought through a shared and informed understanding of how our society and our system of values has developed. It hardly needs to be said that this type of grounding is an essential tool for all of us to enable us to develop and expand our culture and heritage at a social, political and artistic level and to put the commercial values that bombard us daily, which I have referred to earlier, into perspective. Access to objects and other manifestations of our heritage encourages and inspires us to make our own contribution for our children to appreciate. Cultivation of an empathy for one's heritage is a necessary antidote to the potentially corrosive and all too pervasive tendency to accept a bland lifestyle around the most fashionable brand of jeans, underarm deodorants or soft drinks available.
Chun dearcadh dearfach ar thábhacht ár n-oidhreachta corportha a fhorbairt, ní leor an cúram a fhágáil ar thaighde agus ar oideachas amháin. Nuair a smaoinítear ar na pictiúirí — Cailís Ardachaidh, Bróiste Teamhrach, Ard-Chrois Mhainistir Bhuithe agus Torc Bhuiríos Nua — atá deartha ar chlúdach chóipleabhair gach pháiste scoile agus a bhíonn mar chuimhneach an-laethúil ar an ngné chorportha dár n-oidhreachta, ní mór a thuiscint go raibh iarrachtaí leanúnacha na nglún riachtanach chun an oidhreacht sin a bhailiú, a chaomhnú agus a chosaint. Ní miste tagairt ar leith a dhéanamh anseo don méid oibre a rinne Acadamh Ríoga na hÉireann agus Cumann Ríoga Bhaile Átha Claith i rith an 19ú aois chun an oidhreacht luachmhar sin a bhailiú, a thaifeadadh agus a chosaint — feachtas, ar ndóigh, a raibh mar thoradh air i dtráth cuí gur cuireadh Ard-Mhúsaem na hÉireann ar bun.
The 1877 Dublin Science and Art Museum Act which created the museum was a major achievement of co-operative action between the various main bodies involved acting in the public interest. The results of such co-operation were also exemplified in the action by the Royal Irish Academy in conjunction with the Crown administrative authorities in 1903 which involved a famous court battle in the British High Court to secure the return of the Broighter hoard to the territory of Ireland. The Broighter hoard, dating from the first century BC, consisting of a magnificently decorated collar in the Celtic La Tene style, two neck rings, a boat made of a single sheet of gold plate complete with 15 oars, bowl and two chains, stand exhibited today in the treasury of the National Museum as one of Ireland's, and the world's, finest collections.
Such co-operative action has always needed legislative and financial back-up and administrative structures deriving their authority from the State. There has always been an obligation on the State to underline its role and purpose by providing the necessary legislative tools with which to preserve, protect and foster the heritage of the people.
The Irish State has an honourable legislative record in its efforts to protect this priceless heritage. In its time the National Monuments Act, 1930, was a reflection of the fledging Irish State's capacity, and will, to afford adequate protection to and preservation of national monuments and archaeological objects. However, the characteristics and needs of a society are constantly changing and evolving and what was sufficient in one era may no longer suffice in another. While the Act was updated in 1954 and again in 1987, it is no longer adequate for the task.
The finding of the Derrynaflan hoard on the afternoon of Sunday, 17 February 1980 by Mr. Michael Webb and his son, Michael, set in train a series of events which has gone down in popular folklore and created legal history. The event also highlighted the unpreparedness of the State in trying to deal with the problem in the later part of the 20th century with non-legislative administrative tools crafted in the middle of the 19th century. As we all know, the Webb v Ireland case led ultimately to an invitation to the Oireachtas from Mr. Justice T.J. Finlay, backed by the late Mr. Justice N. McCarthy and Mr. Justice B. Walsh, and outlined in the landmark judgment of 16 December 1987, to provide a statutory basis for the State's claim to ownership of objects of archaeological interest of national importance which are discovered with no known owner.
The judgment was of great importance, not just for establishing the right of the State to the ownership of a specific remarkable hoard rivalling in importance the great finds of the 19th century. The importance extended to the judgment's conclusions concerning all important objects of antiquity in the context of the State's overall role and purpose. In the judgment it was reasoned that the State had a right to the ownership of "treasure trove"— described by one leading legal authority as "gold or silver in coin, plate, or bullion found concealed in a house or in the earth or other private place, the owner thereof being unknown"— not as a result of any royal prerogative but as an inherent right of the people of Ireland. It is worth reminding ourselves of the words in which Mr. Justice Finlay's judgment are couched:
...the essential point is that by virtue of the provisions of the Constitution of 1922 what was being created was a brand new sovereign State and that the function, power or position of the king in that sovereign State was such only as was vested in him by that Constitution and by the State created by it.
The judgment went on to declare that the State's prerogative on behalf of the people of Ireland derived not just from the 1922 Constitution but also from Article 5 of the 1937 Constitution, Bunreacht na hÉireann, which declares that "Ireland is a sovereign, independent, democratic State", and from Article 10 which attributed to the State "all royalties and franchises within that jurisdiction". Again the words of Mr. Justice Finlay were infused with insight and clarity of vision when he said:
...it would appear to me to be inconsistent with the framework of the society sought to be created and sought to be protected by the Constitution that such objects should become the exclusive property of those who by chance may find them.
It is regrettable of course, and I frankly state this, that so much time has elapsed before the conclusions of this judgment could be moulded into a legislative form. If an excuse is to be offered then it would be that the implications of the judgment were so far reaching that much time and effort has, of necessity, had to be devoted to the task of absorption. I have been struck the late John Kelly's comments on this judgment, made in the context of a speech given in Trinity college to celebrate the 50th anniversary of the Constitution. In his opening remarks he said:
The three judgments..., if not a buried treasure, are a sort of open cast mine of material on the Constitution of the Irish Free State, the Constitution of Ireland, the incidents of sovereignty, the fate of the royal prerogative, the extent of rights of land ownership, the mode of conveyance of chattels, the interpretation of statutory words, the admission of non-statutory materials in explanation of a statute's reach, the bearing of the possible commission of an offence on the offender's possible rights at civil law arising in the same transaction.
This was only the preliminary list of the late John Kelly. Although Mr. Kelly went on to make an assessment of the judgment, with which there was much to disagree, nonetheless there was no doubting the importance he attached to it and its potential to effect the evolution of the State. Whatever one's political response, the fact remains that it is the judgment which stands as an integral part of the law of the land, clarifying as it does the scope of the State's power in this important area.
This Bill seeks to meet the court's call to action in relation to the ownership of "treasure trove" and to take on board the court's suggestions, in the interest of common justice, to expressly provide for the payment of a reward to persons reporting the finding of such objects. At the same time the Bill takes full cognisance of the State's continuing obligation to protect and preserve the heritage of the people as represented by all the antiquities of importance and not just treasure trove.
Accordingly, the main challenge posed by the judgment has been to ensure, while taking into account the constitutional rights of all, that the State is in the best position possible to preserve and acquire objects and artefacts which are important representations of our heritage, the fundamental requirement being that the people of the State have a right of ownership to archaeological objects which otherwise have no known owner.
The core provisions of the Bill are designed to ensure that all items found after the enactment of the Bill where there is no known owner must be reported to and are deemed to be the property of the State. The Bill redefines the term "archaeological object" to include the concept of treasure trove which was one of the suggestions made by Chief Justice Finlay. The possession, sale and acquisition of archaeological objects found after the enactment of the Bill is prohibited unless the State has waived its rights to ownership.
In addition, so that the State will at least be aware of every archaeological object there will be a requirement that all archaeological objects found in the State since 1930 and in private hands must be reported to the Director of the National Museum and that any transaction of such an object must be likewise reported. At present, by virtue of the National Monuments Act, 1930, there is only an obligation on the finder of an object in the State to report the discovery of an archaeological object. There is no parallel obligation on the possessor of such an object to make a report. The effect of these provisions will allow protection to be extended to all such objects in private hands while not affecting the right of an established owner to sell them. The Bill provides for offences and heavy penalties for breaches of these provisions, consistent with the seriousness of the offence.
In seeking to legislate for the ownership and improvement of the protection of archaeological objects and monuments it must be borne in mind that, although we known that such objects are beyond price, there will be those who will put a price on such things, those who will seek out such objects, remove them without any concern for the context in which they are found and sell them to the highest bidder, those who will collect such items without regard for or understanding of the right of people to the ownership of their own heritage — and that heritage is in question — and to whom individual possession of an object is their only enjoyment. That such behaviour is a sad feature of the past 20 years, in particular, is to be deplored, but we must face up to it. The National Monuments (Amendment) Act, 1987, took some important steps towards regaining control of a difficult situation, particularly regarding the unrestrained use of metal detectors. This Bill seeks to continue that process by closing the loopholes in the legal controls and by aiding co-operation between the main conservation agencies.
In addition, the Bill amends certain provisions of the National Monuments Acts, 1930 to 1987, by extending the protection given to monuments and historic sites under these Acts. Chiefly the Bill proposes to empower the Commissioners of Public Works to establish a record of national monuments and of sites where they believe national monuments may be located so that every known national monument in the country will be given the cloak of a basic protection and in such a way as to fully respect the rights of landowners.
I will now deal with the main provisions of the Bill. Section 2 expressly establishes the State's right to ownership of all archaeological objects which have no known owner found in the State after the Bill is enacted. The section also defines the term "owner" as the person who is entitled to the actual possession of the object. This is a key section which removes any doubt which might exist regarding the State's right to the ownership of archaeological objects found after the enactment of the Bill.
Section 3 provides the State with a waiver of its rights to ownership of an archaeological object. It is not necessary to retain possession of every artefact found. In many cases it will be sufficient simply to know the details and the circumstances of the find.
Sections 4 and 5 provide for restrictions as to the possession, sale, exchange or disposal of an archaeological object found in the State after the enactment of this Bill or objects not properly reported under the National Monuments Act, 1930. Section 4 in particular is designed to place a complete prohibition on transactions in objects found after the enactment of the Bill, unless the State has waived its rights to ownership. Section 5 is to ensure that the Director of the National Museum is made aware of the transactions in archaeological objects found at any time between the passing of the National Monuments Act, 1930, when controls on finds of archaeological objects were first introduced, and the enactment of this Bill. These sections also provide, of necessity, for heavy penalties arising from breach of these restrictions.
Section 6 permits the Director of the National Museum to designate a person to carry out his functions in relation to the receiving of archaeological objects, and to designate places where such objects may be placed for safekeeping. Section 7 provides for the seizure and forfeiture of unauthorised detection devices and diving equipment found at the site of a national monument or a site protected by an underwater heritage order.
Section 8 provides for inspections and excavations to be carried out by the Director of the National Museum. As I mentioned earlier, the physical context in which an object is found is often more valuable in terms of the information which can be gleaned than the object itself. It has been said that the objects are only the index of a great text book while the context in which such objects were deposited represents the text. It is vital that the Director or a person designated by him or her can respond quickly to reports of finds so the all important site of the find can be investigated and, if necessary, excavated before it is damaged.
Section 9 relates to the taking possession of, by the Director of the National Museum on behalf of the State, archaeological objects with no known owner found after the enactment of the Bill. The section also provides that this provision shall not apply to an object which is not, in the opinion of the Director, of sufficient historical or archaeological interest to justify its retention by the State.
Section 10 provides for the payment of a reward to a person finding an archaeological object, a reward for responsibility. The Director of the National Museum may make payment to any, or any combination of the following: the finder of the object, the owner of the land or the occupier of the land where the objects is retained by the State. Payments can be made under this section with the consent of the Minister and the Minister for Finance. While rewards have been paid in the past, this provision gives a statutory expression to the concept as suggested by Chief Justice Finlay in the Derrynaflan case. It is designed to ensure there is clear understanding that while rewards may be paid, there is no suggestion that the finder of an archaeological object can have any claim to its ownership conferred on him or her through the payment of a reward. The provision sets out the criteria which the Director of the National Museum may take into account when evaluating whether a reward should be paid, such as the intrinsic value and importance of the object, the circumstances of its finding and amounts paid in other comparable cases. Obviously the provision is designed to reward the conscientious finder of an object who reports the find responsibly to the Director of the National Museum rather than a professional treasure hunter who reports the finding of an object simply as a last resort.
Section 11 updates and extends the scope of the provisions of section 6 of the National Monuments (Amendment) Act, 1987, which deals with the acquisition either by agreement or compulsorily of national monuments by the Commissioners of Public Works by giving the Commissioners power to purchase rights of ways and other easements and by setting out in detail the mechanism and calculation of compulsory purchase.
Section 12 provides for the establishment by the Commissioners of Public Works of a list of all monuments and places where they believe monuments are located. This is a key addition to the protection which can be afforded to our immovable heritage. Monuments and sites recorded under this provision are immediately put under the protection of the Commissioners of Public Works. Two months' notice must be given before work of any nature can begin on sites recorded under this provision except in the case of emergencies and then only with the consent of the Commissioners. This provision creates a statutory breathing space which is designed to allow the Commissioners of Public Works time to decide if a recorded site should be afforded the protection of a preservation order or taken into the ownership of the State. The section also extends the prohibition contained in the National Monuments (Amendment) Act, 1987, on the possession and use of detection devices at a monument or place so recorded.
Section 13 sets out the penalties for non-compliance with the various offences. The penalties have been pitched at a level commensurate with the seriousness of the offences. Section 14 makes a key amendment to the existing definition of "archaeological object" by including the concept of treasure trove. Section 15 is a technical amendment requiring that archaeological objects found on or under the sea-bed, near a wreck perhaps, are to be reported to the Director of the National Museum and not to the Commissioners of Public Works, as heretofore.
Section 17 extends the protection of archaeological objects by providing for a general prohibition on forms of interference which, in the normal course, might not be regarded as "injury, defacement or destruction" but which can have an equivalent effect.
Section 18 formalises a process of consultation between the director of the National Museum and the Commissioners of Public Works before excavation licences are issued.
Section 19 clarifies that where a search warrant has been issued to a member of the Garda Síochána, in relation to a possible offence under the National Monuments (Amendment) Acts, such member may be accompanied by the director of the National Museum or other person so designated.
Senators will have appreciated by now that the Bill before the House is designed to deal with the fundamental requirements of identifying, acquiring and preserving our national heritage.
Cuireann an Bille atá ós comhair an Tí struchtúr cosanta ar fáil chun séadchomharthaí agus earraí gaolmhara a chaomhnú — struchtúr a bheidh láidir go leor, tá súil agam, do riachtanais an lae inniu chomh maith le riachtanais na nglún atá le teacht. Creidim féin go gcaithfear glacadh leis na forálacha seo chun cothabháil ár n-oidhreachta corportha — bíodh sí sonraithe i rudaí fisiciúla nó in imlínte na tíre — a chinntiú. Ní bheidh sé riachtanach amach anseo don Stát, ar son an phobail, brath ar dhea-thoil an duine a aimsíonn rud nó ar dhea-thoil úinéir na talún nó ar choincheapanna deacra dlíthiúla chun a cheart ar úinéireacht earraí seandálaíochta a bhaint amach.
We will have a clear unequivocal statutory right to our heritage and clear provisions for action against those who would seek to diminish it in any way. Most important, we will have gone a considerable distance towards fulfilling our duty as custodians of something which is far larger and more important than all of us. The poet, John Montague, described it as "that dark permanence of ancient forms".
Molaim an Bille don Teach.