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Seanad Éireann díospóireacht -
Tuesday, 1 Jun 2021

Vol. 276 No. 9

Maritime Jurisdiction Bill 2021: Committee and Remaining Stages

Section 1 agreed to.

I move amendment No. 1:

In page 6, lines 8 and 9, to delete “the text of Parts II, V and VI of which is set out in Schedule 1” and substitute “Schedule 1 contains the text of Parts II, V and VI of the Convention”.

I tabled my amendment because I am concerned there could be a perception that the impact and remit of this Bill and the jurisdiction and responsibilities of the State could be limited in respect of the convention. This is a concern that comes to all of my later amendments, where I talk about specific other obligations and responsibilities the State may have, in that the way Schedule 1 has been framed, instead of the Schedule being there for information and telling us the parts of the convention that are relevant, by putting the text as set out in the Schedule - it is literally almost a drafting piece - you could inadvertently limit the function of the Bill only to those things which are in the convention. Schedule 1 could serve as a limit rather than be an informative piece, and that is the context of this.

It comes to the fact I will speak about the other obligations the State has that might not be within the convention but I hope would be in this law. Even if they may not enter this law today, for this to be a functioning Bill that can be further consolidated and take on additional responsibilities, from the get-go we might want to leave space in the wording of the Bill to allow for additional responsibilities and remit to be included in the future. It is a drafting piece and I hope the Minister of State might take it on board or look at it in the Dáil.

I hope the Minister will take that on board and look at it again when the Bill is before the Dáil.

I thank Senator Higgins for her amendments and for engaging with officials yesterday. That was very helpful in terms of our understanding. I also had an opportunity to talk to Senator Higgins about the concerns that have motivated her amendments and can assure her that those concerns are met by the Bill. I am afraid the Government is not in a position to accept amendment No. 1. The amendment would alter the manner in which the reference to the Schedule to the Bill is made in the definition of the convention in section 2. The current drafting reflects the drafting approach taken by the Parliamentary Counsel.

I understand that the Government might not be in a position to accept the amendment today but would ask it to revert to the Parliamentary Counsel on it in the context of future-proofing the legislation. There are other conventions, including for example, the convention on biodiversity which is likely, when it is negotiated in November, to have a very strong marine component. Indeed, that is one of the key points of focus for the negotiations on a new convention on biodiversity at the UN. Much has been said about consolidating different bits of law. This amendment aims to future-proof the legislation so that other relevant items of law might be incorporated in the future. The Minister of State has said that the Government cannot accept this amendment but I ask him to ensure that a question is put to the Parliamentary Counsel as to whether a slight change in wording would potentially allow for greater incorporation of other legal responsibilities in the future and a more efficient legislative process. I understand that the amendment cannot be accepted at the moment but there may be a real concern here. The Parliamentary Counsel may not have looked to those future obligations in its drafting process.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 6, lines 22 and 23, to delete “for” in line 22 down to and including line 23 and substitute the following:

“being used in connection with the operations including activities servicing the operations of the installation at the time;”

This amendment is a slight expansion of some of what was talked about in terms of the installations. It relates to jurisdiction in respect of installations. As I said on Second Stage, this Bill was drafted at a point in time when certain kinds of installations were envisaged, largely to do with oil and gas exploration and so forth. I wanted to make sure that we are not constraining ourselves to the installation in terms of crimes being committed or laws being broken but that we would have a wider remit in the context of being used "in connection" with the operations, including activities servicing the operations of the installation. We need to apply the rule of law to installations but I am also trying to ensure that we capture, for example, a suite of service vehicles or activities that happen in relation, but not necessarily in direct proximity, to the installation but which are part of the installation's operations. I am trying to ensure we have an appropriately wide and functional remit. It should not be the case that a service ship that is related to an installation but happens to be outside a certain distance falls out of the appropriate rule of law. I ask the Minister of State to clarify the situation in regard to that issue.

My advice is that the proposed amendment would change the meaning of the definition of an installation by including a vessel used in connection with that installation, regardless of how far from the installation that vessel is located. International law only permits the exercise of jurisdiction over such a vessel if it is in the vicinity of the installation and then only where the jurisdiction is also exercised over the installation itself. Accordingly, I am not in a position to accept this amendment.

That is regrettable because some of the impacts of offshore drilling and exploration, for example, have been felt at some distance from the installations themselves but are very much related or connected to the same companies that own the installations involved. In that context, I will have to press my amendment.

Amendment put and declared lost.
Section 2 agreed to.

I move amendment No. 3:

In page 7, line 13, after “21” to insert “sitting”.

This amendment relates to the question of the laying of orders before the Houses of the Oireachtas and specifies that it should be done on sitting days. Regulations in this area are really important. This may be a somewhat technical issue but the period of time in which the House may annul regulations made by the Minister must be 21 sitting days rather than just 21 days. We do not want an order to be laid before the House on 1 August, for example, when there would be no capacity for the House to annul such an order without an elaborate return of Members in the middle of August, which I do not think anybody would want. Indeed, I think I may have been here for one such return in the past. The amendment addresses a technical issue which I hope the Minister of State can address.

I want to comment on this because I accept entirely the position of Senator Higgins and understand her concern. Obviously, a regulation could be made out of term but I do not think it would be usual for a "sitting day" provision to be put into legislation. This provision exists in lots of legislation and there has not been a problem with it to date. Perhaps the matter could be resolved by an undertaking or an indication from the Minister of State that there is no desire to try to circumvent this provision or that no controversial regulation would be laid at a time when either House is unavailable to sit.

On the notification to Members of such regulations, very often it is assumed that we are looking at the documents laid every day, that we are in the Oireachtas Library every day reading every document that comes in but of course, that is not the case. It would be beneficial if a notification of some kind was sent to Members, either through the Houses of the Oireachtas or the Minister's office, to let them know that a particular regulation has been signed into law. Then Members could consider whether they need to take action under section 3.

Amendment No. 3 would add the word "sitting" to the phrase "within the next 21 days" in which the House sits after the order is laid before the House. However, the section already makes it clear that the 21 days concerned are those on which the House sits. The amendment is therefore unnecessary and I am not in a position to accept it.

I ask the Minister of State to respond in respect of the very practical suggestion put forward by Senator Ward regarding a notification to the Houses. There has been considerable concern around a number of aspects of environmental regulations not being caught and dealt with early enough. In that context, the Minister of State might indicate whether he is happy to give us notification of any regulations that might be made. We do not need to put that into the law.

I take on board what Senator Ward has said and will try to determine if it is possible to do so.

Do you wish to press or withdraw the amendment, Senator?

I will withdraw the amendment for now but ask that the Minister of State comes back to us, before the Bill goes before the Dáil, to satisfy us that there will be a notification process.

Amendment, by leave, withdrawn.
Section 3 agreed to.
Sections 4 to 10, inclusive, agreed to.

I move amendment No. 4:

In page 9, line 24, to delete “2014.” and substitute the following:


(f) any relevant provision on offences in national legislation giving effect to Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds or Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, or an offence under the Wildlife Act 1976.”.

This amendment adds to a certain list of provisions contained in the EU birds and habitats directives. The Minister of State has indicated that he may be open to accepting a similar amendment if it is put forward in the Dáil.

I will look to colleagues to potentially bring this forward in the Dáil, but I am trying to highlight that laws have evolved since those made in the 1950s, 1960s, 1980s and so forth, which we are consolidating. As I said on Second Stage, responsibilities as well as rights are associated with maritime jurisdiction. In a way, inserting this amendment into section 11 is really about prosecution of a foreign vessel. As I understand it, boarding, arrests and so forth for crimes in relation to these acts on a vessel can in fact happen already. This amendment simply relates to the relationship the Minister for Foreign Affairs might have with the prosecution of such offences.

I thank the Minister of State for his willingness to engage in this area. I may well revert, or get others to revert, and bring this back at the Dáil stage, but I would like it even better and it might be even more constructive in making this legislation fit for purpose, if we were to find another place in the Bill where we could reference the EU directives and Ireland's jurisdictional responsibilities over them. Again, the amendment is an attempt to give visibility to those responsibilities within the Bill in this regard. That is why I referenced them in this section, but there may be better sections for them. Perhaps, given that the Minister of State has indicated in principle that he is open to incorporating recognition of those legal and jurisdictional responsibilities, we might engage between now and the Dáil Stages and find where in the Bill is the best place to give that visibility. I am not 100% sure that it is section 11.

I thank the Senator for proposing this amendment. It shows a very diligent approach to the legislation. I attended Second Stage yesterday when the Minister of State indicated the Government is willing to look at this to try to incorporate it on the next Stage. I thank Senator Higgins for the very fair manner with which she is approaching this. To be fair to Senators, if an amendment is worthwhile we should try, at best, to facilitate it coming through the Seanad. It is very fair on Senator Higgins's part that she is willing to go a different route and bring the amendment through another colleague in the Dáil. That needs to be acknowledged on this side of the House.

On the requirement for a certificate in section 11, is the authorisation of a particular statutory body, more often than not the Office of the Director of Public Prosecutions, DPP, required for a particular prosecution? I acknowledge this is a fairly common construct in legislation and I do not have a difficulty with that. However, in subsection (1), which requires a certificate to be granted by the Minister, that then becomes a necessary proof in any prosecution that arises. A further duty is, therefore, created for a prosecutor when this matter goes to court. I agree with Senator Chambers on the constructive approach to this. I appreciate what the Minister of State has said as well, but in the context of this amendment he might comment on whether the certification of the permission or the appropriateness of the prosecution is creating another burden that might be overlooked. For example, in the context of a prosecution, it might make it more difficult to get the matter to a decision in court.

I agree with the sentiments and objective of the amendment. I recommend to the Minister of State that he reach an accommodation with it, because the objective behind what the amendment seeks to achieve is important. I support the principle therein.

I echo Senator Chambers's comments in that I very much appreciate the way in which Senator Higgins has engaged on this and the interaction we had yesterday on this amendment.

Section 11 provides that any prosecution of a foreign national for an offence committed from a foreign vessel within Ireland's territorial sea requires a certificate from the Minister for Foreign Affairs certifying that the prosecution is appropriate. This is intended to ensure that, in accordance with the Convention on the Law of the Sea, a prosecution of a foreign national on a foreign vessel should be taken only in limited circumstances. These include circumstances where the consequences of the offence extend to the State or if the offence is of a kind to disturb the peace of the country or the good order of the territorial sea. Section 11 lists a number of offences which do not require a certificate from the Minister in order to be prosecuted. These include offences under the Fisheries Act and the Sea Pollution Acts where clearly the circumstances of offences do extend to the State or disturb the good order of the territorial sea.

For the prosecution of an offence under any other Act, the Minister need simply be satisfied that the consequences of the offence extend to the State or are of a kind to disturb the peace of the country or the good order of the territorial sea. I should add that the requirement for a certificate to enable prosecution in no way prevents the relevant authorities from boarding a foreign vessel and detaining any foreign national suspected of committing an offence in the territorial sea.

The Senator has proposed adding a list of offences for which no certificate is required under the EU birds and habitats directives in the 1976 Wildlife Act. As I indicated yesterday during the Second Stage debate, I am prepared to consider this amendment if the Senator can arrange - and I accept and thank her for looking to do this - to have it submitted as an amendment on Committee Stage in the Dáil. I understand that the birds and habitats directive may have been transposed in Ireland by secondary legislation so the precise offences will need to be clarified. I will have to consult with the Minister for Housing, Local Government and Heritage who is the relevant line Minister in this area.

I have the same concern as that articulated by Senator Ward. I checked with the officials in that regard. This would potentially make it easier by clarifying that this is not a concern or obstacle in that regard. It is a useful addition, but there may be other points in the Bill where reference to that directive might be made if we are looking for consolidating legislation that updates existing law. This amendment can be easily incorporated because it refers to existing law and is simply making visible that it was thought through during the processes. Again, I will certainly ask others to bring forward an amendment in the Dáil on my behalf but I will, potentially, look to other places in the Bill where this might be put.

I will highlight another issue that the Minister of State will be aware is a concern of mine. It does not relate specifically to him and I thank him and his officials for their engagement. I note there has been somewhat of a pattern of Ministers speaking on a Monday or Tuesday in the Houses and saying they cannot accept amendments on those days because it requires Cabinet discussion. I note this is not in fact the law and is not legal or normal practice. It is normally the case that any Minister who comes to the Seanad at any legislative Stage should be in a position to accept reasonable amendments. Again, this does not in any way apply to the Minister of State but it is a wider concern that we may need to examine in the Seanad. It would be a concern if we end up scheduling legislative business where there is an assumption that amendments might not be accepted. In that context, we could not schedule legislative business on a Monday or Tuesday, which would slow the whole legislative process down and nobody wants that.

In this context, I withdraw the amendment with a view to its being taken forward.

Amendment, by leave, withdrawn.
Section 11 agreed to.
Sections 12 and 13 agreed to.

Amendments Nos. 5 and 6 are related and may be taken together. Is that agreed? Agreed.

I move amendment No. 5:

In page 10, line 19, after “exploitation,” to insert “restoration,”

In listing the kinds of activities in which jurisdictional activity might be taken, "exploitation", which may be a legacy of our relationship with the sea, and "conservation" are both mentioned in the legislation. I seek to insert the word "restoration". In that context, the fact is, unfortunately, that research is showing us that large amounts of our marine habitats have been very significantly degraded.

Much as the same debates that we have on peatlands and many other habitats and environments here in Ireland, conservation in itself is not necessarily enough when we already have had processes of extreme damage in some cases. Restoration may be an area that needs jurisdiction and all of the actions that are associated with jurisdiction.

I understand from speaking with officials is that there is a concern that the language in the Bill echoes the UN convention and there is a desire not to stray further than that. While the UN convention sets our baseline, nonetheless, I suggest that we may look to interpret the convention. Let us remember that these conventions evolved through interpretation, so if the word "restoration" cannot be inserted, for example, then I ask that the definition and interpretation of "conservation" should incorporate a component that addresses the issue of restoration and would be conservation in that wider sense. I ask for this because we do not want to simply press pause on a situation that is already unacceptable in terms of environmental biodiversity.

There are wonderful restoration projects in Wicklow, Galway and other places. There are many brilliant initiatives that restore marine biodiversity and ecosystems, which are again in line with our obligations under the sustainable development goal, SDG, on life below water, which is also a UN obligation under the SDGs. My amendment seeks to bring our legislation up to speed with our UN commitments.

I support and applaud the objective of the amendment. Whether it is in a codicil or a definition of "conservation" that it is achieved or by the insertion of the word "restoration", I certainly think it is a reasonable proposition. Therefore, I appeal to the Minister of State to seek to achieve it, however it may be achievable linguistically, and to seek to incorporate the principle. It is a worthy amendment and one that I applaud.

Section 14 sets out the sovereign rights and jurisdiction of the State in the exclusive economic zone. It faithfully reflects the text of Article 56 of the convention of 1982 to which it is intended to give effect, and I acknowledge that Senator Higgins mentioned this in her contribution. Specifically the section provides that the State has sovereign rights for the purpose of exploring, exploiting, conserving and managing the natural resources of the zoned jurisdiction for the protection and preservation of the marine environment.

The amendment proposed by Senator Higgins seeks to ensure that the State also has the sovereign rights for the purpose of the restoration of natural resources and the jurisdiction for restoration of the marine environment. While I sympathise, like other colleagues here today, with the sentiments behind her amendment, I am advised that it is problematic. The term "restoration" used in the convention, insofar as the Bill is intended to give effect to the convention, should be consistent with the convention itself.

Second, as the Bill establishes a framework for sovereign rights and jurisdiction enabling the State to regulate activity at sea for different purposes, section 14, as presently drafted, is more than sufficient to enable the enactment of detailed legislation by the Oireachtas aimed at restoring the marine environment, if it is policy. In these circumstances, therefore, I am not in a position to accept these amendments.

Does the Minister of State believe that there is sufficient scope to address the restoration issues of the marine environment under the scope of management?

We will check this matter but I believe that section 14 enables legislation to be done for this. Obviously, the convention contains the terms of management, conservation etc. that the Senator mentioned.

I note that there are jurisdictional rights of the State in terms of the exclusive economic zone. Some provisions of this Bill go somewhat wider than that but I am happy to engage with the Minister of State on this matter.

Section 14(b)(iii) provides for "the protection and preservation of the marine environment" but restoration is not named and that is why I seek an interpretative statement or an indication that we expect, in these regulations that have been laid before us, a clarity that restoration is envisaged to be either part of the interpretation of conservation or management at this point, or for it to be made clear that this is incorporated within "the protection and preservation" provided under section 14. Again, it is just that word again. Unfortunately, some of these laws were drafted at a point when a lot of damage had not yet been done, whereas we are now playing catch-up in some situations with the marine environment, rather than protection.

I understand that the Minister of State has indicated that he believes these areas are sufficient to cover restoration. Perhaps he could indicate that this is the interpretation.

There is scope within the legislation to do what the Senator has talked about. I am conscious that the purpose of what we are trying to do here, which is what I mentioned in my initial reply, is very much around the consolidation of existing legislation. In that fact, I am trying to keep it to that as tight as possible.

I fully understand and sympathise with the points that the Senator made about restoration. She has made a valid case but the issue is covered within what is there.

That is fine. I note that this may be one of the areas of law that we will need to open up in respect of the UN Convention on Biological Diversity.

Amendment put and declared lost.

I move amendment No. 6:

In page 10, line 32, after “the” where it firstly occurs to insert “restoration,”.

Amendment put and declared lost.
Question, "That section 14 stand part of the Bill", put and declared carried.

Amendments Nos. 7, 9, 15 and 17 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 7:

In page 11, line 6, to delete “and” and substitute “or”.

My first few amendments are concerned with interpretation, and it may be the same issue throughout. The wording of the section is due to the language being mapped from the convention. However, the convention dates back to the 1980s and we have had a body of interpretation on same. That is why I want to be very clear about the Irish Government's interpretation of the convention.

My amendment relates to places where the section mentions the words "exploitation" and "exploration" and, therefore, seeks to insert the word "or" before "exploration" in order that offences may be so deemed if the act is done in connection with the economic exploitation "or" exploration of the non-living natural resources of the exclusive economic zone. To be clear, the provision should read "exploitation or exploration". I want the Minister to check the interpretation so that we do not have a situation where, for example, offences that are committed during the exploratory phase would somehow be excluded or slip through the net, pardon the pun, because they did not involve exploitation but simply exploration.

I tabled my amendment because there is solar research and other things that are not connected to financial exploitation or particular exploitation such as oil or gas extraction yet still be extraordinarily damaging and, therefore, can constitute offences. To be clear, I refer to acts done with exploration even if it is not associated with exploitation and, similarly, if we have acts of exploitation that are not connected with exploration. We must be clear that any one of those can be prosecuted under this provision and that it does not require a combination. My amendment seeks to address the Government's interpretation of the language, which I know is the UN convention language.

Section 15 deals with the criminal and civil jurisdiction of the State with regard to the economic exploration and exploitation of non-living natural resources in the exclusive economic zone. Section 19 deals with the same matters on the continental shelf. Senator Higgins has proposed four amendments that seek to substitute the word "or" for "and".

I am advised, however, that the term "economic exploration" is the term used in the convention. Insofar as it concerns exploration, this is limited to the exploration for the purposes of exploitation. Other types of exploration that do not have as their purpose economic exploitation, such as marine scientific research, for example, are not to be made criminal offences. I cannot therefore accept these amendments.

The key point is that it is not a matter of banning scientific research but rather of making it clear that if, in the course of scientific research, an offence is committed, it should constitute an offence. That would be reasonable and people would expect it in that regard. I am somewhat more concerned by the narrow framing of the interpretation. When the Minister of State brings this to the Dáil to look at the case law to see how this has panned out rather than a text from the 1980s. For example, we know scientific research has been conducted that has at a later point been sold to companies because it is beneficial to them. It would not necessarily have been commissioned by a company directly.

We also know of cases where investigation and exploration have damaged a habitat. This goes back to the point that an area may become so damaged it would no longer have an environmental benefit or value etc. We have seen that as well. This is not to say parties cannot explore or even exploit but rather that offences committed during the course of those actions should be prosecuted by the State. Offences committed during the course of exploration should be prosecutable by the State. The amendments are grouped and cover this area and the section relating to the continental shelf.

I urge the Minister of State to look to that interpretation. I imagine Members of the Dáil would like clarity around the interpretation and why such a narrow interpretation has been chosen by the State in respect of this.

I thank the Senator. I have no problem in considering the points she has raised today but, unfortunately, I am still not in a position to accept the amendments. I nonetheless take on board the points she is making quite clearly. I will look at them again before the legislation goes to the Dáil.

Amendment put and declared lost.

Amendments Nos. 8, 10, 16 and 18 are related and may be discussed together.

I move amendment No. 8:

In page 11, line 6, after "the" where it secondly occurs to insert "living or".

I realise that in all of this we are constrained by the mirroring of the language of the convention. All of these amendments seek to adjust the language. Conventions are living documents and we can add layers to them. We certainly should not be failing to achieve our goals under these conventions but we should look to apply and build a body of best practice of interpretation in this. My concern is where the language refers to "the economic exploitation and exploration of the non-living natural resources of the exclusive economic zone". My amendment will adjust this to including living resources.

This is not simply about fisheries as I am also thinking about the likes of seaweed. It is an extremely important factor and certainly when we speak about territorial waters, where I know we have somewhat more power. We can look at the wider parts of marine life and particularly what is also a UN obligation that we negotiated pertaining to life under water, particularly the specific obligations that the State has with real targets. As I mentioned, 2020 was a target for when we were meant to have 10% highly protected areas and to have active restoration measures in place. We are meant to hit much harder targets by 2025 under the UN sustainable development goals for life below water.

We have a mandate from the UN to specifically look at life under water, so it would be appropriate to adjust this section to include "living" resources. I understand there are concerns about language mirroring but I hope the Minister of State will work to find other ways to ensure life under water is being properly taken in with this.

I thank the Senator. I listened to her comments but I refer again to the primary purpose of the legislation, which is consolidation. The amendments would add the word "living", as the Senator mentioned, to references in sections 15 and 19 to "non-living natural resources". My advice is this would not be possible as the purpose of the relevant provisions of these sections is to make it an offence to do something in connection with the economic exploitation and exploration of the non-living resources of the exclusive economic zone and continental shelf which, if done on land, would be an offence.

As the living resources of the exclusive economic zone and the continental shelf are sea creatures, their exploitation on land does not arise. In any event, the activities that the Senator wishes to capture via her amendments are already offences under the Sea-Fisheries Acts.

Some but not all of the areas of marine life I refer to would be captured under the Sea-Fisheries Acts. This does not simply relate to fisheries. I recognise that section 14 of the Bill has scope to address some of these matters relating to protection and preservation of the marine environment but we do not have enough detail of how that would be done. This is all in the context of the kind of limbo we are in, where many of the planning measures are pushing ahead in the marine planning framework. Perhaps we should not have put the cart before the horse and had marine protected areas with proper legislation before all these suites of measures. I am very concerned by the Minister for Housing, Local Government and Heritage's powers in respect of planning - a check or balance in the planning area - being removed last week when two powers were consolidated. A number of checks and balances have been eroded around marine protected areas. Currently, we have very few protected marine areas, including the special areas of conservation that are Natura 2000 sites. There is a concern in this regard about the erosion of some of the measures we have for protection and the lack of a new and proper mandate for marine protection. It is probably why I am trying to get this Bill to do a little more heavy lifting than I would normally ask such legislation to do. That is the context.

Again, I recognise section 14 is the area where this might be addressed. I also note that the Minister of State is constrained by the language of the convention so I will not press the amendment at this point. Perhaps in the Dáil section 14 of the Bill might allow for some expansionary language because it is less constrained by the language of the convention.

Amendment, by leave, withdrawn.

I move amendment No. 9:

In page 11, line 18, to delete "and" and substitute "or".

Amendment put and declared lost.

I move amendment No. 10:

In page 11, line 18, after "the" where it secondly occurs to insert "living or".

Amendment put and declared lost.
Section 15 agreed to.
Sections 16 and 17 agreed to.

Amendments Nos. 11 and 12 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 11:

In page 12, line 16, after "of" to insert "restoration, protection or conservation of marine biodiversity or for".

Again, this relates to the rights and jurisdiction of a state in a designated area. There are two intersecting pieces, including the rights and jurisdiction of the State in a designated area. That is jurisdiction in the very widest sense.

That includes regulation and the power to determine what sovereign rights are and to exercise not solely whole but service rights and the right of jurisdictions in terms of regulation. Section 19 is on jurisdiction but from a civil and criminal jurisdiction point of view. That relates to offences.

I was trying to expand the powers in section 18, including those slightly wider framed rights around the jurisdiction of the State, which include regulations, to include reference to regulations in respect of the restoration, protection or conservation of marine biodiversity. Again, this comes in the context of this lacuna. We need to be very clear that there will be problems coming forward in terms of marine planning. We need to be clear that any problems that arise and any judicial reviews we see and so forth are going to have been necessitated by the fact that we have got the process wrong on this.

I mentioned the special areas of conservation, SACs, and it is important to do so because we do not have many marine protected areas. I mention the special areas of conservation that are Natura 2000 sites. I am looking at, for example, the Natura 2000 sites within Galway Bay. We had a check and balance in our legislation whereby if the Minister with responsibility for planning wished to allow for development in a way that would be damaging to a Natura 2000 site, which would include those marine sites, he or she would need to get agreement from the Minister with responsibility for heritage. Last week we made it be the case that the Minister with responsibility for planning no longer has a limit in requiring that the Minister with responsibility for heritage would agree.

I tried to insert such a check and balance within the Department. In that scenario, the Minister with responsibility for planning would need to get the agreement of the Minister with responsibility for heritage. That would have been true to the original spirit of different mandates and responsibilities. I am conscious of that check and balance having been removed and of the planning framework moving ahead of the marine protection agenda. In that context, it would be appropriate that we use any tool we can, including this maritime legislation, to strengthen the visibility of responsibilities in respect of restoration, protection and conservation of marine biodiversity. This is almost a protective measure that could be there in the absence of marine protected areas having been zoned.

Section 18 deals with the rights and jurisdiction of the State in designated areas of the continental shelf. Both of these amendments would add to the sovereign rights of the State in its jurisdiction, going beyond what is recognised in the convention. As we have commented so many times on the various amendments, the key issue around them is transposing the convention. The Senator is also looking at other areas beyond that. As the purpose of the Bill is to give effect to the convention, it is not appropriate to amend it as proposed and, accordingly, I cannot accept the amendments.

I understand the constraint on the Minister of State in respect of the convention. That is why wherever there is an interpretative approach, I am happy to look at that. I would like it if the Minister of State could indicate what the Department's timeline is for the review of this legislation so that it would mirror, for example, the marine protected areas or the convention on biodiversity. There will be new requirements on biodiversity coming through. That is likely in November. Is it foreseen that those other obligations, which will also be multilateral and international, will be reviewed to look at how they will be mapping into these jurisdictional issues?

The purpose of this legislation is the transposition of the convention. There will be other legislation and we addressed that on Second Stage. That will take care of other areas in the convention. I can look at what the Senator has raised and revert to her.

Would the Senator like to withdraw that amendment?

No. I will press the amendment.

Amendment put and declared lost.

I move amendment No. 12:

In page 12, line 16, after “of” to insert “the restoration, protection or conservation of the geology of the continental shelf or for”.

Amendment put and declared lost.

I move amendment No. 13:

In page 12, line 30, after “State” to insert “or other operator”.

This is on submarine pipelines. It states that we should have jurisdiction if another state is laying a pipeline but that we should also have jurisdiction if another body that is not a state is laying a pipeline. That is extremely appropriate in the context. The Minister of State might clarify if we have that jurisdiction if we have private actors that would seek to lay pipelines in the State's jurisdiction.

The amendment would also alter the terms of the convention, which would be reproduced here in section 18. The laying of a pipeline across Ireland's continental shelf would require a formal request, typically through diplomatic channels, by the state of nationality or registration of the pipeline operator. That is why only the term "state" is used here. Therefore, I am not in a position to accept the amendment.

That clarifies the issue for me so I will happily withdraw the amendment.

Amendment, by leave, withdrawn.
Section 18 agreed to.

I move amendment No. 14:

In page 12, between lines 34 and 35, to insert the following:

“Rights and jurisdiction of State in respect of the Continental shelf

19. Notwithstanding, section 18, in respect of the Continental Shelf, the State has—

(a) sovereign rights—

(i) for the purpose of the exploration, exploitation, restoration, protection, conservation and management of the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and

(ii) with regard to other activities for the economic exploitation and exploration of the zone, including—

(I) the production of energy from the water, currents and winds,

(II) the storage of natural gas and other energy products,

(III) the recovery of geothermal energy, and

(IV) the sequestration of carbon,


(b) jurisdiction with regard to—

(i) the establishment and use of artificial islands and installations,

(ii) marine scientific research, and

(iii) the restoration, protection and preservation of the marine environment.”.

This is probably the most substantial section I have. The amendment proposes to insert a new section on the rights and jurisdiction of the State in respect of the continental shelf. I mentioned the civil and criminal jurisdiction of the State in relation to the continental shelf, which only mentions offences. I look to widen that to include the rights and jurisdiction of the State. When I mention rights, I am also talking about responsibilities. This amendment would make it clear that the Irish State has responsibility for the vindication of what are in many cases international rights, best practices, obligations and commitments, and for the regulation of those in respect of the continental shelf area.

This amendment is stating that beyond the criminal prosecution of particular offences on a narrow remit within the continental shelf area, the State would have those wider powers, including the production of energy from water currents and winds, the storage of natural gas and other energy products, geothermal energy and the sequestration of carbon. We know that the sequestration of carbon will be a major activity that will be taking place in our marine waters. It is almost the other side of the energy provisions that were originally envisaged at the time of this convention being put in place. It was all about energy extraction and production but, in fact, energy conservation and sequestration will be what we will be looking to in the marine environment in the future. It is an appropriate extension of the original powers envisaged in the convention.

The amendment will provide that the State would have the same sovereign rights and jurisdiction on the continental shelf as it has in the exclusive economic zone. I want to point out that because international law and maritime zones are developed in a piecemeal fashion, it is not surprising that there are differences between the exclusive economic zone and the continental shelf. The continental shelf is the seabed of the exclusive economic zone. The legal regime of the exclusive economic zone is mainly concerned with sovereign rights and jurisdiction within the water column above the continental shelf. The legal regime of the continental shelf, on the other hand, is concerned chiefly with the mineral resources present there. In the Bill, the sovereign rights and jurisdiction which the State may exercise on the continental shelf are set out in section 18. These may be exercised in areas of the shelf designated by Government order. International law has created two separate legal regimes for the exclusive economic zone and the continental shelf and therefore it is not open to the State to take on for itself rights and jurisdiction that it does not enjoy under international law. I therefore cannot accept the amendment.

It would be appropriate and useful to others who may be taking these issues up in the Dáil to clarify where the responsibility for these issues on the continental shelf lie. There is a clear need that there would be jurisdictional or regulatory vindication of this. It is not just the case that we have rights. We also have responsibilities to vindicate international laws and practices. In order to avoid a limbo in this area it might be useful if before we have the Dáil debate, the State would indicate where these kinds of responsibilities lie and how our State intends to engage with those who have that responsibility if we do not have it.

Would the Senator like to withdraw the amendment?

No. I will press the amendment.

Amendment put and declared lost.

I move amendment No. 15:

In page 13, line 8, to delete “and” and substitute “or”.

Amendment put and declared lost.

I move amendment No. 16:

In page 13, line 8, after “the” where it secondly occurs to insert “living or”.

Amendment put and declared lost.

I move amendment No. 17:

In page 13, line 19, to delete “and” and substitute “or”.

Amendment put and declared lost.

I move amendment No. 18:

In page 13, line 19, after “the” where it secondly occurs to insert “living or”.

Amendment put and declared lost.
Section 19 agreed to.
Section 20 agreed to.

I move amendment No. 19:

In page 14, between lines 3 and 4, to insert the following:

“Protection, conservation and restoration of the territorial seas

21. The Wildlife Act 1976 is amended in section 15(1)(c) by the substitution of “State and that territorial sea above it.” for “State.”.

The Minister of State will be glad to hear this is an amendment that relates to this jurisdiction, does not cut across the convention and is, in fact, within our scope. This is an amendment specifically related to the territorial seas. We are no longer talking about the continental shelf or even the economic zone but just our territorial seas, the part closest to home, where we have a large amount of national discretion, aside from such powers as may be shared through the law of the sea. I propose to amend the Wildlife Act 1976 by expanding the interpretation to mean the "State and that territorial sea above it." I understand there are some interpretations of the Wildlife Act that indicate the sea may already be incorporated, by reference to the sea above the land, but this is again an area where there has been some ambiguity in interpretation in the past. I ask the Minister of State to clarify this issue.

I appreciate the sentiment behind the Senator's amendment. The term "land" is already defined by section 2 of the 1976 Act, including land covered by water. The amendment is, therefore, unnecessary.

It is land covered by water but does it include the water itself? This goes back to my point about life on water.

This obviously concerns the nature reserves and land owned by the State. It defines such lands, including any foreshore which belongs to the State and the land under the territorial sea of the State. Therefore, as I said, I cannot accept the amendment.

Amendment put and declared lost.
Sections 21 to 26, inclusive, agreed to.

I move amendment No. 20:

In page 16, lines 2 to 5, to delete all words from and including “2021;” in line 2 down to and including line 5 and substitute “2021.”.

Amendment No. 19 could potentially have been accepted. It might be useful, as this Bill goes to the Dáil, to clarify that the waters are incorporated in that sense because that issue must be clarified. This is not an area that is outside the remit of the State. The Wildlife Act very much sits within the remit, as do the territorial seas. This is again part of the raising of ambition that I was trying to impose in some of the other areas and which is entirely within our scope. Given the sustainable development goal on life in water, we should be aiming to strengthen that. Perhaps it could be looked at in respect of this.

Amendment No. 20 simply proposes to delete a number of words. I am happy to withdraw it for now and allow the issue to move forward. I should clarify that my amendment would have the effect of effectively widening the application of the Dumping at Sea Act.

Is the amendment being withdrawn?

No, I will press it.

Amendment put and declared lost.
Section 27 agreed to.
Sections 28 to 33, inclusive, agreed to.
Schedules 1 and 2 agreed to.
Title agreed to.
Bill reported without amendment.

When is it proposed to take Report Stage?

Bill received for final consideration.

When is it proposed to take Fifth Stage?

Question, "That the Bill do now pass", put and declared carried.
The Seanad adjourned at 12.46 p.m. until 9.30 a.m. on Friday, 4 June 2021.