Wildlife (Amendment) Bill 2016: Report Stage (Resumed)

Debate resumed on amendment No. 15:
In page 4, between lines 20 and 21, to insert the following:
"(c) have regard to any recommendations as may emerge from any relevant Oireachtas Committee in relation to climate action.".
- (Senator Alice-Mary Higgins)

When the debate adjourned on the previous occasion, discussion on amendment No. 15 had just concluded. Perhaps Senator Higgins will indicate if she is pressing the amendment.

Amendment put:
The Seanad divided: Tá, 11; Níl, 16.

  • Boyhan, Victor.
  • Conway-Walsh, Rose.
  • Daly, Paul.
  • Davitt, Aidan.
  • Higgins, Alice-Mary.
  • Kelleher, Colette.
  • Mac Lochlainn, Pádraig.
  • Murnane O'Connor, Jennifer.
  • Norris, David.
  • Ruane, Lynn.
  • Warfield, Fintan

Níl

  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Hopkins, Maura.
  • Lawless, Billy.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • O'Donnell, Kieran.
  • O'Donnell, Marie-Louise.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Reilly, James.
  • Richmond, Neale.
Tellers: Tá, Senators Alice-Mary Higgins and Lynn Ruane; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

I ask colleagues for order. For the record, one Senator voted in the wrong position by mistake.

(Interruptions).

There is no alteration to the result. We will now move to amendment No. 16. I neglected to welcome the Minister of State, Deputy Kyne, at the start of proceedings. He is very welcome. I ask for silence in the Chamber so that we can move on with our business. Amendment No. 16, in the names of Senators Higgins and Ruane, arises out of committee proceedings.

I move amendment No. 16:

In page 4, between lines 20 and 21, to insert the following:

"(c) carry out an assessment, in the area under consideration, of:

(i) the scale of biodiversity present; and

(ii) the quantity of carbon sequestered.”.

I second the amendment.

Are amendments Nos. 16 and 17 being taken separately?

The Minister of State has already recognised the importance of carbon sequestration as a general principle for reviews. This amendment deals, however, with the process involved in the making of particular decisions. It seeks to apply a stronger test to proposals arising from the review process, including an assessment of the "scale of biodiversity present" and the "quantity of carbon sequestered". The amendment is line with the spirit of other biodiversity amendments and the point I pressed on carbon sequestration in general. That point was accepted by the Minister of State. This is a practical amendment that seeks a specific assessment of any proposal for a particular bog to be de-designated.

I thank the Senators for putting forward this amendment. Government amendment No. 11 provides that the purposes of a review of natural heritage areas would take into account the "carbon sequestration potential of bog habitats and to actions, relevant to bog habitats, contained in a national plan or, as the case may be, plan for the island of Ireland for the time being concerning the reversal of pollinator decline".

I am conscious of the benefits of the restoration of peatlands for Ireland's commitments under international climate change ,targets and I am aware that functioning peatlands capture carbon from the atmosphere and store it in the form of peat and vegetation. The natural restoration programme for Ireland's raised bogs special areas of conservation, SACs, and raised bog natural heritage areas, NHAs, is contained within the National Raised Bog Special Areas of Conservation Management Plan 2017-2022, and this links with the peatland actions contained in the Government's Climate Action Plan 2019.

Restoration measures on raised bogs involve the insertion of peat or plastic dams to block surface water drains to restore more natural physical conditions and the rewetting of the bog to raise water levels close to the bog's surface to restore peat-forming conditions. Restoration measures may also include tree felling and scrub clearance. Site-specific conservation objectives have been published for the 53 raised bog special areas of conservation restoration plans drafted for all sites and to be developed further in partnership with stakeholders, including landowners and local communities. Site-specific restoration plans for the raised bog natural heritage areas are also being developed by the Department.

The Government already addresses the concerns of the Senator, so I will not be accepting her amendment.

Amendment put and declared lost.

I move amendment No. 17:

In page 4, between lines 20 and 21, to insert the following:

“(c) assess the potential for restoration of biodiversity.”.

I second the amendment.

Amendment No. 17 concerns the natural heritage areas that are being considered for dedesignation and provides for an assessment of the potential for restoration of biodiversity. There has been an acknowledgement of the need for a new set of actions and perspectives on biodiversity, and I understand that some resources, albeit inadequate, have been allocated to work in respect of biodiversity. I do not want bogs to be proposed for dedesignation under this Bill when, under another framework, they would be strong candidates for restoration of biodiversity. I am trying to ensure bogs are not measured in the unsatisfactory, comparative way they are measured later in the Bill when they have potential for restoration. Even if biodiversity is not fully present now, they could make a future contribution to biodiversity.

It had been intended to restore all designated raised bogs, including raised bog NHAs, within three cycles, with the first operating for the duration of the National Raised Bog Special Areas of Conservation Management Plan 2017-2022, which was approved by the Government and published in December 2017. This restoration programme links with the peatlands actions contained in the Government's Climate Action Plan 2019. In budget 2020, €7 million has been allocated to embark on an accelerated programme of peatland restoration and conservation funds, and some of this comes from the carbon fund set up in the budget. With the injection of this funding, it is intended to restore more than 1,800 ha of protected raised bog in 2020. The National Parks and Wildlife Service and the Department are undertaking restoration works on State-owned lands within the protected raised bog network. Restoration measures on State-owned lands have been completed within a number of raised bog special area of conservation sites, with preparatory work ongoing for an NHA site. Further restoration works on State-owned lands have been prioritised for 2020 on a number of raised bog protected sites, including for an NHA site.

Restoration works have also been completed on raised bog special area of conservation sites under a project funded under the EU LIFE programme, with restoration measures on other sites to be undertaken. I do not think this amendment is necessary, so I will not be accepting it.

Amendment put and declared lost.

I move amendment No. 18:

In page 4, line 26, after “subsection (4)(b),” to insert “any recommendations as may emerge from any relevant Oireachtas Committee in relation to climate action,”.

I second the amendment.

Amendment No. 18 mirrors the previous language by referencing recommendations that may emerge from any relevant Oireachtas committee relating to climate action, and it tries to ensure we have a joined-up approach. I have raised my concerns about this Bill going through today when on Wednesday, the Joint Committee on Climate Action will be discussing peatland strategy. We are putting forward legislation that will determine the process, priorities, mechanisms and values attached to natural peatland heritage areas in our country prior to hearing from a number of experts on peatland. In the committee tomorrow, we will look specifically at the deep importance of peatlands, nationally and internationally, in respect of our climate targets. It is a massive example of putting the cart before the horse, and this amendment tries to ensure that, at the minimum, the Minister will take into consideration future recommendations arising from the set of hearings beginning this week. I would have preferred this Bill to have been delayed to take proper cognisance of the discussion of these issues at the meeting of the Joint Committee on Climate Action.

This Bill has had a long gestation and we are in the process of selecting the most suitable bog habitats to be designated, or to cease to be designated, as NHAs. The Minister for Culture, Heritage and the Gaeltacht is bound to have regard to any strategic environmental assessment or any other environmental assessment that is undertaken, as well as to observations or submissions received during the public consultation. The public consultation process provides an opportunity for any Deputy, Senator or Oireachtas committee to make observations or submissions, including on climate action. This process is an essential component of any NHA review and the Minister for Culture, Heritage and the Gaeltacht cannot dedesignate an NHA without first having had regard to the observations or submissions received during the public consultation process. I will not, therefore, be accepting the amendment.

The core problem here is that while any individual can contribute to a public consultation on a specific bog, he or she can only do so after a review and after proposals for specific designations or dedesignations have been made. It fragments the process and does not allow for the policy in respect of natural heritage areas to take people's considerations into account. I accept that my amendment also allows for this to take place after the review, but I hope that the Minister will take on board recommendations for policy as well the view of individuals contributing to the public consultation. I hope a wide consideration will be applied to all proposals rather than relying on individual proposals in the public consultation.

Any NHA review would fit in the national peatlands strategy and the focus of any review would be on nature conservation, in terms of maintaining or restoring bog habitat. Public consultation will be an essential part of any such review. Any Government will be cognisant of changes in policy and recommendations that come through the Oireachtas and I cannot speak for what changes any future Minister will make to policy. We feel that, in the context of our strategy, there are enough safeguards in the legislation as it is.

The public consultation comes subsequent to a review of the process, and will be on the proposals arising from the review.

Amendment put and declared lost.

Amendments Nos. 19 and 38 are related and may be discussed together.

I move amendment No. 19:

In page 4, line 31, after “land” to insert the following:

“which can be of major benefit to a community, enhancement of a community, sporting projects or facilities, golf courses, sports fields, greenways, community gain or strategic infrastructural projects,”.

I second the amendment.

This is a common-sense amendment.

It gives some latitude to communities when they try to improve their areas. I recall some years ago the overgrazing of mountains was deemed to be a great issue. For some reason, there was a decision not to graze the mountains to such a severe extent as before. As a result, the water built up on the sides of the mountains and there was huge slippage. Vast areas on the sides of mountains slipped around Connemara, Leenane and such areas, destroying rivers, lakes, and bridges. It did more damage to that area than all the years of overgrazing.

This is a very common-sense amendment. I am sure that Senator Mulherin will explain what happened in Foxford and Ballina in 2016 and all the money that has been spent on that road.

I support the amendment. Much of the debate or the mood music has been to the effect that we are somehow irresponsible or that we are enemies of the environment. This designation of land as national heritage areas is above and beyond what we are strictly required to do under birds and habitats directives, which give us SACs and so on. We are actually being responsible.

We know there are issues in the environment. They receive coverage. We know that in areas such as biodiversity or climate change, things are not as they ought to be. However, sometimes the debate in the House becomes academic. What is happening on the ground around designated land is quite a different story. The amendment seeks to provide to the Minister permission to recognise that in some instances a community may gain from a project, which would override certain concerns. It is not that we do not mitigate to protect the environment or wildlife - we do - but that there is a greater objective. We should not be ashamed to say that in addition to conservation objectives and objectives around the public good, we acknowledge that socio-economic objectives are included in the public good. There is never a debate about that.

The western seaboard has a great deal of designated land and special areas of conservation, which has proven a serious impediment to the socio-economic growth of some areas. Senator Burke alluded to certain projects such as a national primary road, Cloongullane Bridge, which has been held up for some time while An Bord Pleanála grants planning permission because an area designated as a special area of conservation, the River Moy SAC, and the presence of freshwater pearl mussel and alluvial woodland. Prior to that, in 2010, An Bord Pleanála refused a major road project, the N26 phase 2, from Mount Falcon to Bohola. Some €5 million had been spent on that before it was refused because of hooper swans and overdesign due to SACs.

For anyone unfamiliar with the west and the particular areas we are discussing, the designation of SACs and so on can give the impression that we are discussing some wilderness away from people. It is not. The River Moy SAC passes through one major town, Ballina, as well as Foxford and Swinford. These are towns that have existed for hundreds of years with major population settlements and roads. We are unable to remove dangerous turns from the road because of environmental objectives being put over and above proper roads and infrastructure for people, which is what the Government wants to deliver. Nobody thinks projects such as the bridge at Cloongullane are not needed. Some €2 million was secured for a new bridge in Glenisland in Mayo where there is a bad road, the R312. Again, freshwater pearl mussel is an impediment. I do not have to tell the Minister of State about how environmental designation is proving an impediment. Think of the Galway ring road. For Galway to continue to thrive, it requires proper road infrastructure around it. Since the road was refused, I understand there is now planning permission for a road that requires tunnelling under Menlo and Ballybrittas. The road from Galway out to Clifden requires the bends being taken out of it. It is highly dangerous. There have been 18 consultations with the National Parks and Wildlife Service. An Bord Pleanála has never granted planning permission with more conditions.

The root of the problem is not with local authorities or the Government trying to ride roughshod over environmental objectives but with legislation that is so overwhelmingly in favour of habitats and the species in them. I am not saying that national heritage areas are exactly the same as SACs but I wish to put paid to the idea that if the House does not scrutinise and amend this, the environment will be degraded somehow. That is not correct. I can take anyone who is seriously interested in the issue through several projects. The Minister for Transport, Tourism and Sport, Deputy Ross, provided me with a good list of all the projects that have been held up. These areas have been left behind and it is costing the Exchequer millions. The people have to live too. There are ways to mitigate and we must be responsible. Many people in the country are proud and responsible when it comes to the environment.

Any time these planning applications or proposals for development go before the appropriate authorities, the county council, An Bord Pleanála, or other bodies such as the Office of Public Works, OPW, in the case of flood relief measures, they are afraid of their lives they will be sued and brought to the European Court of Justice because an i has not been dotted or a t crossed in relation to environmental designation. It is a quagmire. We are practically paralysed in the delivery of projects. People must examine and re-examine.

The Minister of State, Deputy Moran, was in Crossmolina. The town has been on the capital plan for the delivery of flood defences since September 2015. Prior to that, the OPW had a scheme in mind that it shelved. There was more environmental work done. It wanted to do a channel to bypass the town when the water reached a certain height. It is absolutely devastating there. If there is another flood there, and this has been threatened many times, no one has insurance and the town centre is old, so they are in a terrible predicament. After an environmental impact assessment report in May 2018, we thought there would be construction this summer, based on a response to me at a joint committee by OPW commissioners, although that was not written in stone. Needless to say, that has not happened. Last February they told us that we needed to do more environmental designation because they were going to put some sort of mechanical piece in the river. At some point we must call it. I am not disrespecting or saying that there is not a scientific need for certain things, but it will be poor comfort for people in the event that they are flooded again this winter. I sincerely hope nothing like that happens. No one wants that. No matter what one's political views, it is a terrible thing.

As such, it is grating to listen to some of the debate here on designating or not designating and that if the legislation is not phrased a particular way or if the Government is not stopped early on, it will do something highly reckless.

It will only be highly reckless if that means supporting people in the way they should be supported and getting the balance right. The balance is by no means right at present. If anyone wishes to talk about projects, I can speak about them first hand.

I support this amendment. It is very important to have a provision that allows for a community or a Minister, following the appropriate consultation provided for in the legislation, to decide there is a socioeconomic objective that needs to be pursued and fulfilled, where nobody is objecting to it and it is necessary to work around whatever designation is in place. Nobody is going to be reckless. There is such a thing as engineering mitigation and that is the way we need to proceed. I expect that these will be exceptional circumstances. That is the reality. People could be bewildered by this if they are watching the debate, as if we are going to become hooligans and do something terrible to the countryside. The west and rural Ireland is not a theme park or somewhere to go for the weekend. It is where people live and want to raise their families. They want to have a chance. The aim of Government policy, and everybody might not agree with it, is that we develop not just the big cities, but also rural areas in an appropriate fashion. We are all mature and responsible enough to do that. I fully endorse the amendment.

I strongly support this amendment. It is very much in keeping with the green theme. All the projects or exceptions mentioned in the amendment are green projects. It is not damaging the environment in any way, but basically bringing a few people around to enjoy the environment and the birds and the bees. It is common sense. Whether it is a greenway, a golf course or a sports field, we are not talking about massive constructions. We are talking about projects that fit into the magic environment that will be provided and bringing a few people to it. It is a no-brainer. It is not causing any damage to anything, but keeping rural Ireland open and keeping a few people there along with the birds and the bees.

I also support the amendment and the contributions made by my colleagues, Senators Paddy Burke, Mulherin and O'Mahony. This amendment is about achieving a balance. Of course, we must preserve our bogs, flora, fauna and biodiversity, but we must also support people and communities. In many cases, supporting people and communities requires infrastructure and basic infrastructure upgrades, and Senator Mulherin was quite correct in the examples she provided. Community facilities are necessary. This amendment seeks to achieve that balance, and to support people to live in rural areas and communities to thrive and flourish. I strongly support it.

First, perhaps we need a reality check of where we are at present in terms of the balance. It is scientifically acknowledged that we are in the midst of the sixth mass extinction. Some 200 species become extinct every day. Since 1970, humanity has wiped out 60% of mammals, birds, fish and reptiles. The assessment of the overall status of habitats in Ireland is that 85% of habitats are in unfavourable conditions and 46% are demonstrating declining trends. In terms of peatlands in Ireland, 26% of Ireland's mammal species utilise peatland. Some 75% of the world's organic store carbon is in peatlands. Blanket bogs are key. As regards our native flora and fauna, given that people talk about wanting to enjoy the birds and the bees, 49% of all endangered species are found on our peatlands and 23% of Ireland's endangered plants - the relationship between our pollinators and our indigenous plant life is key - are peatlands species. When talking about the balance we should be clear that the balance has been skewed. It has been particularly skewed over the last few decades because this generation has extracted peat at a level and in a different way from what previous generations may have done. It has been machine led. Let us be clear about that.

With regard to all these projects and development being discussed, we are not discussing all peatland in this debate, only peatland in the natural heritage areas. We are discussing peatland strategy as a whole, but the bogs that may be de-designated under this are bogs that have been identified as a small number of natural heritage areas which are of particular heritage importance. This is not to say that one cannot do anything in Ballina; it says what happens in these recognised heritage areas.

It was said that we would work around any designation. The Bill allows for there to be no designation. These areas would be de-designated and open to activities. The key point is the decision on de-designating them. The Minister has already made far too much of a concession to this amendment. We talked about regional, social, cultural and economic needs. They are already referred to in the Bill. The decision on de-designation and designation already involved a balancing of environmental criteria, which are poorly defined in my opinion, against economic, social and cultural needs. What this amendment seeks to do is not green projects, necessarily, but greens. It involves sporting projects or facilities. It refers to enhancement of a community, but that is already covered under social, cultural and economic needs. However, the amendment adds "sporting projects or facilities, golf courses, sports fields, greenways, community gain or strategic infrastructural projects". In talking about sporting and recreational needs, which is the Minister of State's version of it, I have yet to hear an assurance from him that he is not including golf courses in his definition. The definition he has added through the addition of sporting and recreational needs as a ground or one of the factors to be considered in de-designating a protected area covers all these things. That is the reason I will propose amendments later to explicitly exclude golf courses. A golf course is not in any way a green or biodiverse environment comparable to peatland. It is a straight misrepresentation to do this.

I also wish to appeal against the idea that this is about the west of Ireland versus others. I am from the west, and I have talked to people from Carna to Clare Island about this Bill. They care about their environment. They want community development and projects in their local areas, but many young people across the west want thought-through planning that works in terms of biodiversity, which means that they, their communities and the environment can work together. They have many brilliant new ideas on how that should be done. They are passionate about this and want it to be done.

Some of the projects will need to be changed. Flooding was mentioned. Bad planning without due regard to environmental considerations has been one of the massive contributors to flooding.

The Senator should come to east Galway and see the flooding there.

Not in Mayo. We have flooding-----

I advise Senator Mulherin that Senator Higgins has the floor. Allow the Senator to continue without interruption.

When we talk about this, it is not about not developing and nurturing communities. When we talk about rural areas, it is not about the town versus the environment. It is about having communities that are sustainable. That is why we have the sustainable development goals. I am referring to that joined-up approach. I resent the attempt to suggest there is a balance of environment versus society. Environment and society need to work together and to complement each other. We must address the fact that our environmental protection to date has been an inadequate. We cannot afford one single step backwards. If we see a golf course on what was formerly a natural heritage area in this State, that would be a step backwards and a red flag to all the generations concerned with respect to our climate and on an international level.

I thank the Senators for their comments and passion. Regarding amendment No. 19, Government amendment No. 11 provides that within the context of a review of natural heritage areas and selecting the most suitable bog habitats to be designated or to cease to be designated, regard would be had to recreational sporting needs, including greenways, appropriate to bog habitats as well as to national, regional and local economic, social and cultural needs, as already provided for in the Bill. I have also ensured that any regard to the recreational sporting needs appropriate to bog habitats in a review of a natural heritage area would be subject to a strategic environmental assessment, including public consultation in the carrying out of any other screening for assessment or, as the case may be, the assessment if required.

The Wildlife (Amendment) Bill 2016 strikes a balance between the need to maintain or restore bog habitats to a favourable conservation status, to live up to our EU obligations, and to work with landowners, turf cutters and local communities. I am endeavouring to ensure this delicate balance is maintained and there is not increased pressure to dedesignate certain sites where there is a valid environmental reason to keep such sites designated as natural heritages areas. If such dedesignations were to interfere with any national conservation objective target area for bog habitat within the special areas of conservation and natural heritage area networks, this would lead to difficulties, for example, with the European Commission.

Natural heritage areas are also part of the national conservation objective target, for example, for raised bog habitat within the special areas of conservation and natural heritage area networks. Therefore, in that way, natural heritage areas are linked to the habitats directive, and I understand natural heritage areas were designated in response to an infringement case by the European Commission against Ireland regarding national, regional and local economic, social and cultural needs, as provided for in any natural heritage area review.

Government amendment No. 11 provides that a natural heritage area review would have regard to recreational and sporting needs, including greenways. I believe we have taken cognisance of the concerns that were raised by Senators. I would have a concern that the amendment has the potential to upset the balance of the Bill and, therefore, I do not believe it should be accepted.

Amendment No. 38 reads:

In page 6, between lines 6 and 7, to insert the following:

“‘greenway’ means a recreational or pedestrian corridor reserved exclusively for non-motorised journeys, developed in an integrated manner for the purpose of enhancement of the environment and quality of life in the surrounding area;”.

The proposed amendment inserts a definition of “greenway” in the definitions within the Bill. This definition has been included on the advice of the Office of Parliamentary Counsel. It is taken from the Lille declaration of the European Greenways Association from 12 September 2000 and is also set out in Ireland’s national greenway strategy. There may be opportunities to develop recreational facilities such as walking routes or greenways within natural heritage areas building upon existing routes within these sites.

For a number of protected raised bog sites, local communities are already working with the National Parks and Wildlife Service at the Department in this regard. For example, under the peatlands community engagement scheme 2019 administered by the Department, funding has been awarded to a community group to carry out maintenance work under phase 2 of the enhancement work related to an existing bog road within a raised bog special area of conversation and to install interpretative and directional signage. The scheme aims to encourage local communities, groups, schools and interested parties to engage with the Department on the conservation of raised bog special areas of conservation, raised bog natural heritage areas and other raised bog areas to promote public engagement and awareness of our natural heritage.

The Minister of State might arrange for the carrying out of a study of areas where the displacement of species has taken place as a result of construction. I believe the species that have been displaced on numerous occasions have returned to their natural habitats. I have asked that such a study would be carried out on a number of occasions. We had the displacement of the snail many years ago when the Naas dual carriageway was being built. I wonder has the snail returned to that area. It is probably more than 25 years since work commenced on that dual carriageway. Species of birds were displaced when wind turbines were erected in my area, but they are now nesting under the turbines. What is the position with respect to the displacement of species and will the Minister of State have a study carried out on that?

On amendment No. 38, I understand the Minister is trying to provide further information on what is meant by a greenway, but I note his proposed definition specifically refers to non-motorised journeys. I would like clarification on whether this could possibly eliminate e-bikes and e-scooters from greenways.

That is certainly not my intention. As I said, the definition has been included on the advice of the Office of Parliamentary Counsel. It is taken from the Lille declaration and is also set out in Ireland’s greenway strategy. In my mind it would not include those. It would include motorbikes and motor vehicles but in terms of e-scooters, which are currently the subject of significant debate, I am not sure if the definition would need further scrutiny when the Bill goes to the Dáil.

Is Senator Burke pressing the amendment?

Amendment put.
The Seanad divided by electronic means.

Under Standing Order 62(3)(b) I request that the division be taken again other than by electronic means.

Amendment again put:
The Seanad divided: Tá, 17; Níl, 12.

  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Hopkins, Maura.
  • Lawless, Billy.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Marshall, Ian.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Domhnaill, Brian.
  • Richmond, Neale.

Níl

  • Boyhan, Victor.
  • Daly, Paul.
  • Davitt, Aidan.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Kelleher, Colette.
  • Mac Lochlainn, Pádraig.
  • Murnane O'Connor, Jennifer.
  • O'Donnell, Marie-Louise.
  • Ó Donnghaile, Niall.
  • Ruane, Lynn.
  • Warfield, Fintan.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Alice-Mary Higgins and Colette Kelleher.
Amendment declared carried.
Government amendment No. 20:
In page 4, to delete lines 37 to 39 and substitute the following:
“(a) inform the public of the making of the order by publishing or causing to be published a notice of the making of the order in Iris Oifigiúil, in a national newspaper, in at least one newspaper circulating in the locality in which the land to which the order applies is situate and on the website of his or her Department, and”.
Amendment agreed to.

Amendments Nos. 21 and 22 in the names of Senators Higgins and Ruane cannot be moved.

Amendments Nos. 21 and 22 not moved.
Government amendment No. 23:
In page 5, between lines 8 and 9, to insert the following:
“(vi) the Committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas to examine matters and make recommendations in relation to natural heritage,”.
Amendment agreed to.
Government amendment No. 24:
In page 5, line 9, to delete “(vi) the Commissioners” and substitute “(vii) the Commissioners”.
Amendment agreed to.
Government amendment No. 25:
In page 5, line 10, to delete “(vii) any planning” and substitute “(viii) any planning”.
Amendment agreed to.
Government amendment No. 26:
In page 5, line 12, to delete “(viii) an Bord” and substitute “(ix) an Bord”.
Amendment agreed to.
Government amendment No. 27:
In page 5, line 13, to delete “(ix) the Environmental” and substitute “(x) the Environmental”.
Amendment agreed to.

Amendment No. 28 in the names of Senators Higgins and Ruane arises out of Committee proceedings and has already been discussed with amendment No. 3. Is Senator Higgins moving the amendment?

In recognition of the Minister of State having made considerable efforts to address issues concerning the transparency of the process and online publication, his clarification that a national advertisement would be required, and his acceptance of my amendment No. 27, I will not press the amendment. I recognise the efforts the Minister of State has made to seek an appropriate compromise.

Amendment No. 28 not moved.

Amendments Nos. 29 to 31, inclusive, 31a and 32 are related. Amendment No. 32 is consequential on Nos. 29, 30, 31 or 31a. Amendments Nos. 29 to 31, inclusive, 31a and 32 may be discussed together by agreement.

I move amendment No. 29:

In page 5, between lines 18 and 19, to insert the following:

“(8) Where an area ceases to be designated as a natural heritage area under subsection (3)(b)(ii), without prejudice to turbary rights for household use, harvesting using machinery shall not be permitted.”.

I second the amendment.

May I clarify which amendments are related? It was amendment No. 31a and another amendment.

Amendments Nos. 29 to 31, inclusive, 31a and 32 are related.

In this set of amendments I have tried to approach the same issue in a number of ways. If the Minister of State indicates that he is amenable to any one of these approaches, I will be happy to withdraw the other amendments and press forward with the preferred approach. These amendments attempt to address the issue of what happens when an area ceases to be a natural heritage area. It is an attempt to address the fact that land that is de-designated under this Act could potentially be open to commercial exploitation. We know that the Government's overall national strategy is moving away from the commercial cutting of turf.

Amendment 29 provides that "without prejudice to turbary rights [...] harvesting using machinery shall not be permitted". This gets to the issue. Amendment No. 30 sets out clear criteria with regard to household use. I will be very clear, as I have been throughout proceedings, that I do not contest the importance of the relationship societies and families have with bogs and peatland. Many people have, for many generations, exercised their turbary rights. It is one of the lingering features of commonage. I understand the relationship we have with bogs right across the west of Ireland. I do not wish to automatically inhibit that relationship. I note that most natural heritage areas already allow for the exercise of turbary rights. Any area currently designated as a natural heritage area, and where turf cutting has previously been practised, can already allow for the exercise of turbary rights. There is already a precedent of good practice in this regard. In that sense, I wish these areas would remain natural heritage areas. Perhaps an examination of how turbary rights are exercised on those lands might be carried out. The Minister of State might look to that.

If areas are to be de-designated and no longer protected, we need to look to additional layers of protection or clarification. Amendment No. 29 suggests that harvesting using machinery should not be permitted. Amendment No. 31 specifically says that only peat extraction by sleán may be permitted. We have heard people speak very poetically in this house about their love of the birds and the bees, the days they have had on the bog, being out with the flask of tea, and all of the rest. I know of this too because my family has done it in Mayo. I know that it is part of people's experience and an experience they want to pass on, but we are increasingly moving towards a point at which turbary rights will have to recognised as part of a shared heritage. We cannot have people maximising exploitation. It is a very different thing to exercise one's turbary rights by cutting and spreading on the bog oneself or with one's family or neighbours as opposed to simply hiring a contractor and having a sausage machine come in and hoover up a section of bogland. My amendment seeks to respect turbary rights, but to clarify those rights and define inappropriate activity. That is why amendment No. 29 respects household use while not permitting harvesting using machinery. The Minister of State has previously indicated that there were questions and thoughts with regard to what kinds of machinery might be appropriate, especially as we move into an era in which carbon emissions are becoming a concern and scale is becoming an issue.

Amendment No. 31 provides that those who wish to cut by sleán can do so, but it makes clear that the use of machinery is not appropriate. Amendment No. 30 seeks to address another specific issue. Under this amendment, people exercising their turbary rights to extract peat for their household use is fine. That is what is envisaged by turbary rights. It is not envisaged that these rights be passed on to allow others to engage in the extraction or that people exceed what is understood by "household use".

I have tried to engage constructively and following discussions with the officials. Having read the transcripts of our previous debates, I tabled supplementary amendments to try to tackle the matter in a new way. It is my understanding that, in the past, in circumstances where people had turbary rights but the location had become a special area of conservation, for example, and turf cutting was longer allowed or appropriate under European law, compensation packages were put forward. In some instances, persons were informed that their turbary rights would effectively be relocated to new areas. Some of these areas may be de-designated under this Act. It is my understanding that people given the right to exercise turbary rights in new areas would be subject to a restriction whereby they would not be allowed to sell that turf and it would not be considered a part of the agreement that the State makes with somebody granted new rights of turbary access in an area.

This is an attempt to ensure that everybody, including those with long-standing or historic turbary rights in respect of a site, as well as those who have turbary rights relocated to a site, would have consistency and where an area ceases to be designated as a natural heritage area, any turf subsequently extracted may not be sold. These amendments are all trying to address not the activity of turf cutting but the way in which it happens, its scale and, in particular, the commercial aspect.

Amendment No. 32 is consequential and would be relevant if one of the others is agreed. Amendments Nos. 45 and 46 relate to something quite similar but they put the regulations base a little further down the line. If the Minister of State indicated an openness in respect of those amendments, it could affect whether I must press any of those in my name.

They are not part of this group; they will be taken in their own time.

Of course. I just wanted to indicate that to the Minister of State because it may be relevant.

This group comprises amendments Nos. 29 to 31, 31a and 32. It is proposed that when a natural heritage area is de-designated, domestic turf cutting may continue on the site while larger scale or commercial turf cutting will continue to be regulated through other consent systems, such as through the planning system and integrated pollution control licensing by the Environmental Protection Agency. Under the cessation of turf cutting compensation scheme administered by the Department, turf cutters seeking to relocate to a non-designated bog, may opt for the delivery of 15 tonnes of turf per year for household use while awaiting relocation. In addition, the legal agreement signed by each relocating turf cutter includes a provision that the turf extracted from the relocation site is for domestic use and is not to be sold. Other than that, it would not be appropriate for the Minister for Culture, Heritage and the Gaeltacht to endeavour to regulate turf cutting in non-designated sites. The focus of the Minister is on protected sites.

The Department of Housing, Planning and Local Government has advised that the development of a new regulatory framework for smaller scale peat extraction will be initiated and progressed. I am willing to write to the Minister requesting that his Department take into account the provisions of the amendments proposed by Senators in the development of this framework. I will not be accepting these amendments. With respect to amendment No. 31 specifically, it is a matter for the Department of Housing, Planning and Local Government. The current policy with respect to relocated turf cutting activity is that the turf could not be sold.

The concern is that I hoped to have consistency between those who have been relocated to a bog and those who may have an abeyance but where turbary rights exist. The Department's business is to protect those bogs but in terms of the decision as to whether a bog can continue to be protected, the Minister of State indicated that he will consider economic, social and cultural matters, as well as sporting and recreational needs. I wish he State had not made this concession to his colleagues, particularly in light of their incredible disregard for these matters in pushing through what will go down as almost an historically disgraceful amendment.

Anybody who voted for the amendment and claims to be concerned about the environment made his or her priorities really clear. It was a disgraceful decision by those backbenchers. Nonetheless, all these considerations are in play, including those brought by the Minister of State. There was a concession too far but I supported social, economic and cultural considerations. The addition relates to recreational and sporting concerns. There are a number of factors so how is the Minister of State considering social, economic and cultural factors while also examining what happens to the peat or to the ground after extraction? The bog may in future be used as a car park for a hotel or it may become an amenity and that is already allowed. I appreciate that did not come from the Minister of State's amendments. If there is an economic case and an economic benefit may come from the bog, it can be considered. The Minister of State is already considering what will happen afterwards. We could consider the case made locally in respect of economic, social, sporting or recreational considerations. We would be considering the future life of this potentially de-designated bog.

It is appropriate, given that the Minister of State is considering what happens next as part of the review, that he should also consider what happens next in terms of turf cutting. There is a logical consistency in that. I do not wish to press the Minister of State but it is an illogical inconsistency to say it is beyond the ambit of the Department to say whether the turf could be cut by machine afterwards or the bog could be opened to commercial exploitation. Whatever steps may be needed to avoid that likelihood is part of the Department's consideration.

The Minister of State mentioned there may be future regulation on small-scale cutting as every bit of cutting is still cutting, whether it is on a vast or a small bog. For example, the Minister of State could assure me no bogs would be de-designated prior to the existence of regulations on small-scale cutting but we do not have such an assurance in the Bill. Perhaps it is something people may put forward in the Dáil but I do not know that. Currently, a bog may be de-designated and there is a lacuna in the context of what happens afterwards. The Minister of State has recognised the issue in the contracts for relocation and I just seek consistency. I do not need to press all of these and I come with multiple approaches in the hope of finding one that is amenable to the Minister of State or which might work. Could he work with any of these amendments? What about local regulation?

The non-designated sites are not within the remit of the Minister for Culture, Heritage and the Gaeltacht. It may be regrettable that this sits with another Department but we are in charge of designated sites.

This deals with whether designated sites could be de-designated.

The de-designated sites fall within the remit of another Minister. We can contact the Minister regarding our protocol relating to relocation and the non-sale of harvested turf. We could advise the Minister that this could be the way to go with his or her amendments for legislation relating to small-scale peat extraction. It would also not be appropriate to regulate for turf cutting in non-designated sites within the Bill for that reason. Another Department is involved with that. There can be engagement and collaboration within the Departments with respect to best practice and advice to be taken, and this would be advisable. I can pass on the Senator's concerns and recommendations made to the Minister on the preparation of the regulations.

Amendment put and declared lost.

I move amendment No. 30:

In page 5, between lines 18 and 19, to insert the following:

“(8) Where an area ceases to be designated as a natural heritage area under subsection (3)(b)(ii), peat extraction may not exceed a quantity appropriate for use by a household of the person engaged in the extraction.”.

I second the amendment.

Amendment put:
The Seanad divided: Tá, 6; Níl, 14.

  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Kelleher, Colette.
  • Mac Lochlainn, Pádraig.
  • Ó Donnghaile, Niall.
  • Warfield, Fintan.

Níl

  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Richmond, Neale.
Tellers: Tá, Senators Alice-Mary Higgins and Colette Kelleher; Níl, Senators Gabrielle McFadden and John O'Mahony..
Amendment declared lost.

I move amendment No. 31:

In page 5, between lines 18 and 19, to insert the following:

“(8) Where an area ceases to be designated as a natural heritage area under subsection (3)(b)(ii), subsequent peat extraction may only be permitted by sleán.”.

I second the amendment.

Will the Senators claiming a division please rise?

Senators Alice-Mary Higgins, Colette Kelleher, Pádraig Mac Lochlainn and Fintan Warfield rose.

As fewer than five Members have risen I declare the question defeated. In accordance with Standing Order 61, the names of the Senators dissenting will be recorded in the Official Report and the Journal of the Proceedings of the Seanad.

Amendment declared lost.

I move amendment No. 31a:

In page 5, between lines 18 and 19, to insert the following:

“(8) Where an area ceases to be designated as a natural heritage area under subsection (3)(b)(ii), any turf subsequently extracted may not be sold.”.

I second the amendment.

Amendment put and declared lost.
Amendment No. 32 not moved.

I move amendment No. 33:

In page 5, line 24, to delete “includes” and substitute “does not include”.

I second the amendment.

This amendment deals specifically with the issue of special areas of conservation, rather than natural heritage areas, given special areas of conservation are explicitly mentioned in the Bill. The Bill states: "...includes a candidate special area of conservation or a special area of conservation, within the ... European Communities (Birds and Natural Habitats) Regulations". I have a concern about including these bog habitats in the Government's consideration. The Minister of State will tell me he is not at liberty to de-designate or remove protections from these areas. However, I am extraordinarily grateful for the fact the European Union is not opening them up because I have no doubt all kinds of wonderful plans might be made for these internationally recognised, massively significant areas of natural heritage, and there are many great schemes and many things people would like to do with them. However, that is not open to the Government as it is prohibited by the EU.

The danger, and my concern, is that the Bill later uses the method of simple comparison as the means by which to justify a de-designation. For example, in regard to de-designation, the Minister of State said the Government is going to be looking at any bog that is on the list for potential de-designation and comparing it to another bog, for example, a raised bog could be compared to another bog, and it is basically considering or comparing whether the bog has a better or worse environmental value than the other bog. Perhaps the Minister of State can address this concern and I will not have to press the amendment. My concern is that, effectively, natural heritage area bogs would be compared with special area of conservation bogs, and it will be determined that the special area of conservation bogs are of better environmental, habitat or other value, and that will be used to justify the de-designating of the natural heritage area bog.

Does the Minister of State understand my concern? We already have something that has been determined by independent actors to be of an additional level of environmental value and given that additional protection of special area of conservation. These have already been shown to have an even higher level of environmental importance than natural heritage areas. However, the existence of there being something more precious, under the provisions of the Bill, is used as a justification for de-designating, so we would rate our bogs and say one is of supreme importance and another is just of importance.

I understand that, in terms of general policy, the Government wishes to look at special areas of conservation as well. However, I want assurances that special area of conservation bogs will never be used as comparators to justify removing protection from natural heritage area bogs.

I understand this amendment seeks to exclude special a1reas of conservation, SACs, from the definition of "bog habitat" in the Bill. The Bill takes into account that, for the 2014 natural heritage area, NHA, raised bog review, more than 270 individual raised bogs were examined. The individual raised bogs examined comprised the 53 raised bog SACs, the existing 75 NHA raised bogs and more than 100 non-designated sites. Hence, within the Bill, the definition of "bog habitat" refers to the candidate SACs and special areas of conservation that contain bog, so that these sites may be taken into account in any future review, as has already been done for the 2014 NHA raised bog review.

I would like to take this opportunity to stress there is no provision in the Bill which provides for the de-designation of SACs, and I agree they have a special and higher level of importance. Any such proposal would have to come within the provisions of the European Communities (Birds and Natural Habitats) Regulations 2011, which require the agreement of the European Commission and would have to be in accordance with the habitats directive.

I will not, therefore, accept the amendment.

I ask the Minister of State to answer my question. Is it the case that special areas of conservation bogs may be used as comparators to justify the de-designation of a natural heritage area?

Any comparison must take account of the national conservation objective target for SACs and NHAs. It would be an overall review of the terms of this target, similar to the 2014 NHA review.

I wish to indicate that the Minister of State has not answered the question and that the matter may need to be addressed by way of amendment in the Dáil.

The Senator may contribute only once on the amendment.

Amendment put and declared lost.

I move amendment No. 33a:

In page 5, line 30, to delete “a comparison made between” and substitute “a consideration of”.

Does the Senator have a seconder?

Senator Paul Daly will second the amendment.

I will second it for the sake of conversation.

The amendment deals with the fundamental flaw in the Bill and the reason the answer he gave to my previous question is inadequate. He referred to elements in a review. The amendment relates to the main element of the environmental criteria that will be considered in deciding whether to designate or de-designate a bog. The section relating to raised bogs states: "'environmental criteria' in so far as it relates to a raised bog, means the conservation value of the raised bog taking into account a comparison made between the area, range, habitat, structure, function and ecological features of that raised bog and those of one or more than one other raised bog". All that is required in terms of the environmental criteria is to compare a bog from which one is about to remove protection with any other bog. It may be an expression of delight for people who think this is wonderful and they will all be in a particular project, but it is actually very sad. One simply compares a bog with any other bog. That is why I asked that question of the Minister of State on the previous amendment and why I believe it will need to be addressed in the Dáil. It may be subject of complaint in Europe if special areas of conservation are effectively used to justify de-designation.

Will it be the same bog? Will each bog of the 36 mentioned by the Minister of State be compared to the same bog? There are 100 de-designated sites. There are already far more unprotected sites. Let us be clear that protected bogland is in the minority. There are 100 de-designated sites which are not protected, but there are 36 natural heritage areas of raised bog. There is a similar number of quite specific protected blanket bogs. The Minister of State will be deciding whether to remove protection from a particular natural heritage area bog based on a comparison with another bog. Will each of them be compared with the same bog? Will one bog be chosen as a gold standard and each bog in question be compared to it? Will the 36 bogs be compared to all the other 36? Will the bog with which comparison is made be one of the 36 natural heritage areas or will it be a special area of conservation bog? This is a very rough tool. I appeal to the Minister of State to consider accepting the amendment. It would probably do more to improve the Bill than any other thing one could do at this stage.

The Minister of State outlined that he wishes to look at a consideration. Rather than comparing each bog with another and deciding which will be destroyed because it is assumed that one of them is up for the chop, perhaps each bog could be considered with reference to the factors outlined, including area, range, habitat, structure, function and the ecological features of each bog. Those are not necessarily the factors I would have included. Does each bog deserve consideration on its terms, values and contribution to ecology, biodiversity, habitat and climate, rather than using a comparator mechanism in making the decision? Once one goes into comparators, the game is over. One may decide to de-designate 20 bogs and decide which 20 of the 36 one wishes to de-designate. It is a very rough tool. I appeal to the Minister of State to consider replacing "a comparison" with "a consideration". It would mean a lot and it would make clear that, at least, each individual act of de-designation was given proper consideration on its own terms and value.

The Senator queried the definition of “environmental criteria” as it relates to raised bog. This definition was not drafted by me, as I am sure the Senator will accept. It was drafted by the Office of the Parliamentary Counsel, OPC, in consultation with the National Parks and Wildlife Service, NPWS. I do not think the Senator can question its bona fides in respect of the protection of bogs. I am not suggesting that she is doing so. That is the definition it put forward. If there is something we can look at in terms of-----

That is not the issue to which the amendment relates.

The definition is of the environmental criteria.

I have further amendments on that matter.

The various attributes set out within the definition link to national conservation objectives, favourable conservation status for bog habitats and the selection criteria set out in annex III of the habitats directive regarding the degree of representativity of the natural habitat type, the area of the site covered by the natural habitat type, the degree of conservation of the structure and functions of the natural habitat type concerned and restoration possibilities, and a global assessment of the value of the site for conservation of the natural habitat type concerned. These were utilised for the 2014 raised bog NHA review and, as set out in the Bill, would be utilised for any future NHA review. I will get further clarification for the Dáil debate on the matter and again consult with the Department and the National Parks and Wildlife Service. The definition was drafted by the OPC in consultation with the NPWS. Therefore, I will not be accepting this amendment.

With respect, the response of the Minister of State seemed to relate to an amendment other than amendment No. 33a. This amendment deals specifically with the issue of the comparison with one or more other bogs. It does not address the definition of environmental criteria, although I have tabled further amendments which deal with the definition. This amendment relates to why the Minister of State is not engaging in a consideration of a bog using the factors he listed, rather than comparing it to another bog. I am asking why he is using a comparison rather than a consideration as the mechanism. I am trying to help the Minister of State because his reply seems to address a different amendment.

This amendment relates to page 5, line 30-----

Yes, the comparison between-----

-----and the definition of "environmental criteria".

I am sorry; I cannot allow the Senator in again.

It is a point of order. It is a question of-----

It might not be a point of order.

It is. The Minister of State has-----

The Senator may think it is a point of order, but it is for me to rule on that.

The amendment states: "In page 5, line 30, to delete 'a comparison made between' and substitute 'a consideration of'."

It relates to the topic of environmental criteria which is referenced prior to the line of the Bill the Senator seeks to amend.

Yes, but the amendment refers to a comparison-----

I cannot allow a debate between the Senator and the Minister of State on the matter.

The Minister of State did not address the issue of comparison versus consideration.

Any comparison must take into account the national conservation objective of the target SACs. It would be an overall review with regard to the 2014 review. The purpose of the NHA review includes contributing to the achievement of nature conservation objectives for the habitats. This is an overall aim; it is not just a bog-by-bog comparison. That is made clear in the definition.

Amendment put:
The Seanad divided: Tá, 9; Níl, 15.

  • Boyhan, Victor.
  • Conway-Walsh, Rose.
  • Daly, Paul.
  • Higgins, Alice-Mary.
  • Horkan, Gerry.
  • Kelleher, Colette.
  • Murnane O'Connor, Jennifer.
  • Ó Donnghaile, Niall.
  • Warfield, Fintan.

Níl

  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Marshall, Ian.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Richmond, Neale.
Tellers: Tá, Senators Alice-Mary Higgins and Colette Kelleher; Níl, Senators Gabrielle McFadden and John O'Mahony..
Amendment declared lost.

I move amendment No. 34:

In page 5, line 31, after "function" to insert ", having regard to matters referred to in section 16(6)".

Amendment put:
The Seanad divided: Tá, 9; Níl, 14.

  • Boyhan, Victor.
  • Daly, Paul.
  • Davitt, Aidan.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Kelleher, Colette.
  • Ó Donnghaile, Niall.
  • Warfield, Fintan.
  • Wilson, Diarmuid.

Níl

  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Richmond, Neale.
Tellers: Tá, Senators Alice-Mary Higgins and Colette Kelleher; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.
Debate adjourned.