Amendments Nos. 22 to 26, inclusive, are related and may be discussed together. Is that agreed? Agreed.
Historic and Archaeological Heritage Bill 2023: Report Stage (Resumed) and Final Stage
I move amendment No. 22:
In page 60, line 22, to delete “including” and substitute “and shall include”.
I second the amendment.
I will speak to the grouping.
I note this debate adjourns at 4.30 p.m., if not previously concluded.
Amendment No. 22 is a relatively minor amendment. It seeks to ensure a notice of a screening determination for the environmental impact assessment, EIA, would be published on the website of the Department, together with information on the procedure for seeking to have that decision judicially reviewed. The screening determination, which decides whether an EIA is needed, is something which can be, and sometimes rightly has been, challenged. I seek to ensure the notice is on the Department's website and it is clear to people what actions they can take if they believe the screening determination has been erroneous.
Amendment No. 23 seeks to insert a new subsection into section 34 to provide that, in respect of a Minister's determination in regard to a relevant application, the Minister would demonstrate due regard to the results of the EIA. We discussed this in another context. There are replications of other amendments in other parts of the Bill. The Minister of State pointed to places where he believed due regard is required. This amendment is an attempt to strengthen that. It seeks to make sure the EIA is not simply seen as a procedural point to be tipped through. We need to bear in mind this is something which is not always necessarily done by a Minister of State but can be done by a Minister. We need to ensure the EIA actively informs, and is demonstrated to inform, the Minister's ultimate determination.
Amendment No. 24 seeks to provide that, in section 34(6), if an applicant, before submitting an environmental impact assessment report, EIAR, to a Minister under the chapter, so requests it, the Minister shall, after consulting the applicant, the board and the local authority in whose functional area the relevant monument is situated, the regional assembly in whose administrative area such a monument is situated or any other person whom the Minister considers appropriate in the circumstances, give an opinion in writing on the scope generally and level of detail of the information to be included in the EIAR. The Minister will be aware that the question of how a local authority is engaged with is something we previously discussed at length. The reason I include the word "generally" is because I want to ensure there is no danger an applicant could claim he or she was not asked by the Minister to provide specific information and, therefore, there would be a reasonable method by which an applicant could not provide full information. It is a significant ask. It is one thing for a Minister to give guidance regarding an applicant, but that guidance should not preclude the general duties of an applicant in terms of the relevant environmental information.
Amendment No. 25 seeks to insert a new subsection into section 34 which provides that nothing in subsection (6), which is the subsection where the Minister is giving guidance to an applicant around some of the information the Minister wants to ensure is included, is seen as in any way precluding or limiting the obligations and responsibilities under the EIA directive, which is, of course, law in itself. We do not want a situation whereby it is the case that if you do not ask, I do not tell. We may come across that danger. If information is required by the directive which the Minister happens not to have mentioned in this advice to an applicant, it would be unfortunate if the information were not to be included.
Amendment No. 26 seeks to amend section 34(10) by deleting the phrase "the extent to which".
This arises from the same concern. While the phrase "the extent to which" can be viewed positively in that the Minister is making it clear that a minimalist approach to information would not be adequate, there is also a danger that the phrase could be seen as setting a limit in terms of how much is needed.
All of the amendments seek to ensure that "relevant opinion" would include additional information specified in Annex IV of the EIA directive and this will be contained in the environmental impact assessment report, EIAR, concerned.
Much of the language used in this section comes from the directive. While the directive is the context, it has been identified, including by citizens in the biodiversity forum and elsewhere, that Ireland has not always been the best at applying EU law and that sometimes there can be great creativity applied in finding ways to avoid the application of the letter and spirit of these directives. I am trying to copper-fasten the sections against such evasions, misinterpretations or genuine errors in terms of shortfalls of information. While I acknowledge the language used is taken from the directive, I hope my amendments, whether the Minister of State can accept them or not, offer an opportunity to signal how the Minister of State believes the directive should be interpreted. I would welcome his response.
In relation to proposed amendment No. 22, section 33(6) provides for the publishing of screening determinations for environmental impact assessments, including publishing notices on the Department's website. I can explore with the Office of the Parliamentary Counsel, OPC, as to whether subsection (6) could be rephrased so as to make it clear that the publishing of notices on the Department's website is a mandatory requirement. I can assure the Senator, however, that this will be the case.
There are a range of reporting requirements set out under the Bill, including requirements relating to appropriate assessment. This ensures compliance with the Aarhus Convention and Article 6 of the EIA directive. The Department's website is considered to be the preferred medium for publishing these types of notices from both end-user and internal administration perspectives.
Amendment No. 23 relates to the addition of text to section 34(2). This section requires the Minister to cause an EIA to be carried out where works proposed as part of a licence application meet clearly specified criteria. The proposed amendment requires the Minister to have regard to the result of an EIA when determining a licence application. This amendment is not necessary as section 37(3) already provides that where an EIA has been carried out, the Minister must take account of the results or findings of the EIA when deciding whether to grant a licence.
To make a general point in relation to sections 32 to 39, inclusive, the text used for the Bill's EIA-related provisions has been carefully drafted by the OPC in order to ensure the accuracy and completeness of the transposition of the EIA directive and also to align the Bill with EIA-related provisions found in other enactments.
Amendment No. 24 suggests a minor alteration to section 34 in relation to the Minister's relevant opinion that must be given upon request by the licence applicant in advance of submitting an environmental impact assessment report. The relevant text, as set in section 34(6), matches that found under Article 5 of the EIA directive. It would not be advisable to stray from the governing EU legislation in this instance.
Under section 37, the Minister will be responsible for the carrying out of an EIA in relation to a relevant licence application. In this respect, I do not consider amendment No. 25 necessary as the delivery of the Minister's relevant opinion to an applicant could not impact on the applicant's obligations regarding the submission of a corresponding EIAR or, indeed, the Minister's carrying out of a subsequent EIA.
In relation to amendment No. 26, the removal of the text "the extent to which" from section 34(10) is not considered workable. Subsection (10) gives effect to paragraph 3(c) of Article 5 of the EIA directive allowing the Minister to indicate the information that should be contained in an EIAR by way of various qualitative criteria listed under Annex IV of the EIA directive, for example, descriptions of non-technical summaries.
This is done in order that, If necessary, the Minister can request certain information from the applicant relating to the effects of the proposed works on the environment in order to help ensure the completeness and quality of the EIAR.
Finally, to move away from the proposed amendments momentarily, I wish to inform the Senator that upon reflecting on her previous comments regarding proposed monuments being solely of archaeological interest, I have instructed my officials to examine the possibility of broadening the criteria in order that "relevant things" of relevant interest other than archaeological interest may also be eligible to become prescribed monuments. If this is considered workable and provided there are no unforeseen issues arising from subsequent discussions with the Office of the Parliamentary Counsel to the Government, OPC, I intend to introduce the necessary amendments to section 12 on Dáil Committee Stage.
I thank the Minister of State for accepting and acknowledging that point regarding archaeological interest. It will be more in tune with later sections of the Bill, which recognise that broader scope – not just archaeological but historic, cultural and community that is spoken of later. Having that wider frame of "things" will be important. It will considerably strengthen the Bill and its legacy, impact and usability.
I turn to the amendments. On amendment No. 22, as the Minister of State made it clear that he is looking to how it will be published and so forth, that is fine, in that regard.
On amendment No. 23, it is just a slight difference. While the Bill states to have due regard, I am looking to “demonstrate due regard”. That is something that has not always been done. I will not overly press the amendment at this point but having due regard and demonstrating due regard are slightly different. On thing that is important in restoring public confidence in how EIAs are being used and applied and the effectiveness of Ireland’s application of them is that we have a record demonstrating that. It is quite a simple thing to include that in its record, rather than simply saying “We did the EIA and now here is our decision”. Instead, a cause and effect link would be shown.
I accept the points on the language of the directives in terms of amendments Nos. 24, 25 and 26. It is useful to have had the points underscored that the understanding is that the EIA directive, in its fullest sense, should be applied and reflected by the applicant, regardless of what advice they may get from the Minister. The Minister has indicated that. It may be one to monitor to ensure that if there are cases that emerge where the scenario I have outlined occurs, then perhaps it will be something that needs to be come back to. I hope that is not the case and that even stating it today makes it clear that applicants should not be coming with that as an excuse or reason.
I am happy to withdraw amendment No. 22.
Does the Minister of State have anything further to add before we proceed?
Amendment, by leave, withdrawn.
I move amendment No. 23:
In page 61, between lines 19 and 20, to insert the following:
“(3) In respect of the Minister’s determination of a relevant application, the Minister shall demonstrate due regard to the results of the EIA.”.
I second the amendment.
Amendment put and declared lost.
Amendment No. 24 not moved.
I move amendment No. 25:
In page 62, between lines 21 and 22, to insert the following:
“(7) Nothing in subsection (6) shall be regarded as undermining the responsibilities of the applicant under the EIA Directive.”.
I second the amendment.
Amendment, by leave, withdrawn.
Amendment No. 26 not moved.
I move amendment No. 27:
In page 69, between lines 23 and 24, to insert the following:
“(b) invite the public-participation network within the local authority in whose functional area the person proposes to carry out the relevant work to make (within such period as the Minister may specify) observations to the Minister in relation to the request,”.
I second the amendment.
I am seeking to insert a new paragraph in section 40(2) to provide that, where the Minister is making a determination on whether to grant an exemption from the requirements of sections 32 to 39, the Minister would, as well as seeking the views of the local authority concerned, engage or invite the public participation network, PPN, within the local authority in whose area the person proposes to carry out the relevant works to give its observations. This relates to the question of public participation and community empowerment as regards heritage. We have had some discussion on this matter. A question was raised about whether the PPN was the appropriate mechanism. We also discussed the extent to which the Heritage Council might consult other bodies. The Minister of State indicated his openness to the Heritage Council being more empowered or encouraged to consult relevant bodies, including local authorities.
While the PPN may not be the right mechanism, I am concerned that the Bill only refers to the local authority. In my engagement with the Minister of State's officials, we tried to tease out what is meant by the term "local authority". Is consultation with the local authority simply consultation with its chief executive, who is an employee of the Government to some extent? Most people and I would expect the term "local authority" to include the council, whose elected members are ultimately the local authority.
While the Minister of State may not be able to accept this amendment on the PPN, I urge clarity. The consultation with the local authority should not simply be a technical consultation with the chief executive, particularly given that the relevant works and the effect they have on local monuments and so forth affect the county development plans. Ultimate responsibility for local development plans and the collective vision of what a community is and what a local area values in terms of what should be protected and encouraged sits with the council members. Where there are activities that potentially have implications for local development plans, it is not adequate just to engage with the chief executive. It is important that local councillors, as elected representatives, be able to contribute.
Given our previous engagement on a similar amendment, the Minister of State might not be able to accept this one, but I would appreciate it if he teased out what is meant by "local authority" to ensure that we do not end up with a minimalist interpretation.
Amendment No. 27 proposes the addition of a new paragraph in section 40(2). Under section 40, the Minister may exempt proposed works from EIA requirements, as provided for under sections 32 to 39, subject to certain conditions. Subsection (2) relates to the consultation that must be undertaken before a determination on an EIA exemption request. A relevant local authority must be consulted in respect of the request and any submission made by that local authority must then be considered by the Minister.
I do not disagree that the relevant PPN could, or should, be consulted as part of this process. However, this should remain a local authority process that is best left to the relevant local authority to manage. In order to achieve the overall aim of the proposed amendment, I recommend utilising the guideline provisions under section 167. The latter allows for guidance to issue to all local authorities relating to the performance of their functions under the enacted Bill. The EIA exemption process is one of several areas where guidelines could specify that, where appropriate, local authorities should engage with their PPNs as part of the overall consultation process. While the requirement would not be enshrined in primary legislation as the Senator suggests, the enacted Bill will require local authorities to have regard to any guideline issued under section 167 in the performance of their functions.
I take this opportunity to confirm my intent to undertake meaningful engagement with local authorities when it comes to the creation of guidelines under section 167. Such guidelines will be important tools to help ensure practical assistance is provided to local authorities. One area I will concentrate on will be the determination of best practice as regards the internal local authority procedures to be carried out when dealing with various consultation obligations under the Bill. I expect this will deal with a lot of the concerns the Senator has. They are valid concerns, and it is important we get this right.
Furthermore, in respect of our previous discussions on city and county development plans and how they and their annexes should refer to monuments given the position that section 167 guidelines for local authorities are considered the most suitable approach to ensure development plans will incorporate monuments, I have instructed my officials to explore how this might be explicitly provided for under section 167. Again, pending discussions with the Office of the Parliamentary Counsel, my intention is to introduce appropriate amendments on Committee Stage in Dáil Éireann. I hope this is to the satisfaction of the Senator.
I thank the Minister of State. That would be a welcome strengthening of section 167 in the context of the collective ownership by the public of national and local monuments. Referring to them and including them in the annexe would be positive. I recognise the Minister of State's intent to set out in the guidelines best practice for that local authority engagement. In that context, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 28 and 29 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 28:
In page 70, to delete line 39, and in page 71, to delete lines 1 to 7.
I second the amendment.
The amendment relates to language I was concerned about in section 41(2), which states, "A person shall not question the validity of ... an act done by the Minister under this Chapter in the performance or purported performance of a function under this Chapter for which an EIA or an AA is required, or ... a relevant licence granted in relation to a matter referred to in this Chapter that is a matter for which an EIA or an AA is required but only to the extent that the licence relates to that matter, otherwise than by way of an application for judicial review".
I am concerned about the way this is phrased. While I do not think it is intentional, it almost suggests a person will not be able to question the validity of an act except through a judicial review process, which is a very substantial process. I believe, from my engagement with the Minister of State's officials and others, that the intention was that a person will not be able to take a legal challenge to the validity of a decision except through the mechanism of a judicial review, but the way it has been framed suggests that no questioning whatsoever of the validity of an act will be permitted. For example, civil society groups or NGOs might want to highlight a concern about an action, a pattern of decisions or a key component of an EIA directive not having been reflected. Similarly, they might even wish to highlight an inadvertent consequence that might arise from a certain kind of licence being issued. There are multiple ways that people, as good faith actors, might want to question whether a decision was the correct one that are different from the very substantial and expensive route of a judicial review. As the provision is currently phrased, we will lose the potential for learning. Not everybody has the means to pursue a case through the courts. It would be good if there were some other form of appeal. I would prefer if some form of appeal could be made but, at a minimum, questioning should be allowed.
Amendment No. 29 seeks to amend section 41(6) by deleting the phrase "with all necessary modifications" from the provisions of the Planning and Development Act 2000 that shall apply to the questioning of a decision referred to in the section that has been subject to an EIA, an AA or both an EIA and an AA.
The use of this phrase is highly unusual because it seeks to legislate in anticipation of potential changes to our planning laws that have not yet been legislated for. It seems extremely unusual to specify that future modifications would apply, especially given that if an amendment is made to law, it only becomes law once it is commenced. This is a real cart-before-the-horse situation. If this needs to be adjusted, it should be adjusted as part of that discussion.
As I said, and to be frank, there is a lot that is very positive in this legislation. I have at times sought to strengthen it and to improve its focus and effectiveness. However, the planning changes which are currently being examined by the committee are far more problematic and there are huge concerns in regard to them. I do not think we should anticipate. This seems extremely unusual, and I do not know that it is legislatively sound. I would hate to have a situation whereby this essentially very constructive and positive Bill, which puts forward a new vision in terms of historic and archaeological heritage, would find itself in some ways tied to the fate or commencement of other changes to other Bills.
What does the word “necessary” mean in the context of necessary modifications? The modification that may or may not be made to the planning laws will be made because they are agreed by the Houses, if they are agreed, and if they prove to be compatible with EU law, for example, or any other laws. However, the term “necessary modifications” is a subjective interpretive piece that has been included. It is not even saying that this is in anticipation of future legislation. It is just odd and would create a hostage to fortune. I would hate to end up in a situation, which I have seen happen, where there is good legislation and an entire section or part of it ends up not being commenced because it is in a weird limbo relating to something else. We do not want a situation whereby, effectively, that whole section ends up not being capable of being commenced.
That is a caution in the context of amendment No. 29. Again, I am sure the Minister of State will have other legislative advice in that regard but I urge that this matter be is examined in the Dáil because it could create an unnecessary hostage to fortune. I do not know why these amendments were grouped because they are quite different. Those are my thoughts on amendments Nos. 28 and 29.
Section 41 provides that notices relating to EIAs must inform the public that decisions may be questioned by way of judicial review. The intention behind amendment No. 28 is to delete subsection (2) of section 41. However, this is a very important provision that makes it explicitly clear that an act done by the Minister under Chapter 6 of Part 2 relating to EIA or AA or a licence granted under Chapter 6 relating to a matter for which an EIA or an AA is required can be questioned by way of judicial review. This provision applies to legal proceedings only and would not impinge on a person's right to make representations or any form of non-legal queries in regard to EIA or AA matters. That relates back to the Senator’s point in regard to civil society groups highlighting decisions or patterns of decisions, and it certainly would not impinge on their ability to do that. If the Senator has concerns over the phrasing of this provision, I will make a commitment to raise the matter with the Office of the Parliamentary Counsel with a view to making it as clear as possible.
Turning to the proposed amendment No. 29 of section 41(6), the phrase “with all necessary modifications” is required in order to apply the relevant provisions of the Planning and Development Act 2000 and the Environment (Miscellaneous Provisions) Act 2011 to the enacted Bill. These provisions provide clarification on costs of legal proceedings and ensure the costs protection rules for proceedings under the enacted legislation would match those under the planning and environment Acts.
I welcome that the Minister of State has indicated he is willing to look at that. I knew the intent solely related to legal proceedings but as the question is wider than legal proceedings, the matter may need to be clarified. I suggest that, ideally, it would not be solely a verbal clarification by the Minister of State and that the text should make it clear. We do not want to have an inadvertent chilling effect where even those who read the legislation feel they are not allowed to comment or organisations feel they are inhibited from making comments.
Perhaps the Minister of State could clarify the other issues. When he refers to necessary modifications, is he indicating that it includes only necessary modifications to date and not future modifications? Would stating "all modifications to date" make the language clearer and make it clear that it is not anticipatory? Is the Minister of State referring to such modifications as have been agreed up to this point? The phrase "necessary modifications" is change in that regard. We pass and change laws all the time. Some of it is necessary and some of it is not, but the main thing is that they are modifications to the law. Will the Minister of State clarify that point?
On amendment No. 28, I have committed that we will raise the issue with the Office of the Parliamentary Counsel to make sure it is as clear as possible. The Senator is correct regarding the necessary modifications required in order to apply for the relevant provisions of the Planning and Development Act 2000 and the Environment (Miscellaneous Provisions) Act 2011. It is as the Senator says.
Amendment, by leave, withdrawn.
I move amendment No. 29:
In page 71, line 28, to delete “, with all necessary modifications,”.
I second the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 30 and 31 are related and may be discussed together, by agreement.
I move amendment No. 30:
In page 93, between lines 13 and 14, to insert the following:
“(3) Such licences described in subsection (1) and (2) may not be granted where the granting of such a licence is likely to lead to the destruction or damage to the physical integrity of a national monument.”.
I second the amendment.
Amendment No. 30 seeks to amend section 77 of the Bill by inserting a new subsection (3) which would specify matters about the licences described in subsections (1) and (2). This is about the issuing of licences on lands which contain a national monument. It states that such licences may not be granted "where the granting of such a licence is likely to lead to the destruction or damage to the physical integrity of a national monument."
Amendment No. 31 is an alternative to amendment No. 30. It specifies the same point, that a licence may not be granted where it is "likely to lead to the destruction or damage to the physical, historic or cultural integrity of a national monument." At a minimum, I do not believe that licences should be issued in these cases. These may be licences for entirely unrelated activities. They may be for a fair to take place, for commercial activity in a particular setting or for extractive or financial activities. A wide spectrum of licences may be issued for land where there is a national monument. My minimalist approach is amendment No. 30, which ensures that we do not have a situation whereby a licence is granted which is likely to lead to destruction or damage of the physical integrity of a national monument.
Amendment No. 31 is a little wider because it talks to the historic or cultural issues too. We have discussed this at length and I will not go through it again, but if there is a holy well, for example, which is used on May Day, or a site which is a regular point of pilgrimage, such as a few around the country, there should not be a licence for an activity that effectively precludes that cultural activity. For example, such an activity might prevent a pilgrimage from taking place.
On historical integrity, it is about not having a licence that diminishes the historic value of a site. For example, we have sites that are quite solemn and sites of great historic loss and tragedy. It is about ensuring there is not a licence that damages or destroys that historical context.
As I said, amendment No. 31 is a little wider but amendment No. 30, at an absolute minimum, seeks to ensure we are not breaking things. I hope the Minister of State might accept these amendments as criteria attached to decisions around the granting of licences for various activities.
Section 77 permits the granting of a lease or licence in respect of land comprising a national monument in the ownership or guardianship of the Minister or a local authority. What is meant by a lease or licence under section 77 is permission by a property owner that permits a person to enter on lands without creating the relationship of landlord and tenant. It does not mean a licence under the Bill enabling the carrying out of works, as is made clear by the reference to section 151 in subsections 77(1) and 77(2). Section 77 also provides that the granting of a lease or licence must be compatible with subsection 75(1) regarding the maintenance of the archaeological interest, etc. of the relevant national monument.
I note the points the Senator made relating to the spiritual or cultural integrity of a site but this is quite specific. I will not accept amendments Nos. 30 or 31.
Section 75 is around maintenance, presentation and the active duties of relevant authorities in maintaining the various archaeological criteria and all of that, but the active duties they may have in that regard are slightly different from the protective pieces I am trying to insert. It is quite a reasonable bar. The bar outlined in my amendments includes the phrase "likely to lead". I am not looking for this provision in any case where there is a tiny responsibility that it might be but, rather, "is likely to lead" to damage or destruction. That is a reasonable bar. I will press these amendments because I believe we need to copper-fasten this.
The Minister of State mentioned the granting of a licence insofar as is compatible with subsections 75(1) and 75(2). Subsection 75(1) concerns that active duty of maintenance, which is fine. Subsection 75(2) is actually a dilution of subsection 75(1), as it states that subsection 75(1) "shall not prevent or restrict the doing of any act which results in the loss ... of the interest referred to" where it is justified on research or public interest grounds. These subsections are not protective. Subsection 75(1) relates to the general duty of maintenance while subsection 75(2) references maintenance but also that there are exceptions to maintenance on public interest or research grounds. Those subsections are not doing what is proposed in my amendments. They are not ensuring. In fact, if there is anything, public interest is very widely interpretable. It may be public interest to have commercial activity take place on a site. That is arguable. Subsection 75(2) could be used as justification for the issuing of a licence, for example. That is why I am trying to ensure there is a clear baseline, which is protective. Maintenance and exceptions to maintenance are not the same as ensuring.
I cannot see why we would not put something around physical integrity in the Bill. It seems to me that is a minimum point. Much as I value the cultural and historical pieces, which are things we can try to reclaim, the physical integrity piece seems to be a clear bottom line. Subsection 75(2) gives potentially too wide a scope. I understand there will have to be exceptions to the maintenance rules for research and other reasons. However, even if the Minister of State did not want to accept my amendment in full, which references damage and destruction, destruction should be a fairly basic line we should be able to ensure against.
Something the Minister of State could look to in the Dáil is ensuring that we do not have a situation where there is a licence that could lead to destruction. I understand with the research component of section 75(2), "damage" may be interpretable a bit more widely. However, I am not satisfied that there is adequate protection.
Again, I appreciate the points Senator Higgins is making, but section 75(1) is very clear around maintaining the archaeological interest. I think that, rather than maintenance, is what the Senator was referring to. Therefore, I do not think the amendments as proposed are necessary.
Amendment put and declared lost.
I move amendment No. 31:
In page 93, between lines 13 and 14, to insert the following:
“(3) Such licences described in subsection (1) and (2) may not be granted where the granting of such a licence is likely to lead to the destruction or damage to the physical, historic or cultural integrity of a national monument.”
I second the amendment.
Amendment put and declared lost.
Amendment No. 32 is ruled out of order. It does not arise out of committee proceedings.
Amendment No. 32 not moved.
I move amendment No. 33:
In page 102, after line 36, to insert the following:
“(3) The Minister shall carry out such consultation with such persons or communities most affected by the decision of a Minister relating to property, situated in the State, that is included, or in respect of which the Minister is satisfied that it has the potential to become included, in the World Heritage List under Article 11 of the Convention.”
I second the amendment.
This amendment seeks to ensure that where particular communities are affected - I have mentioned, in the past, people of particular religious faiths, and ethnic groups such as Travellers - that there would be consultation with those groups regarding something which has the potential to be included in the world heritage list. Article 5(a) of the convention indicates that each State party should "adopt a general policy which aims to give cultural and natural heritage a function in the life of the community, and ... integrate the protection of that heritage into comprehensive planning programmes".
This amendment seeks to include the voices of those most affected by decisions to protect monuments. In particular, I am thinking of local communities, Irish-speaking communities, Travellers, others, and both the geographically local or those who may have a particular relationship with a particular site. In that context, it is just to ensure that consultation.
Where this provision is getting inserted is an issue which I have discussed at great length with the Minister of State before, regarding things like easements and covenants. I welcome the discussion around easements and covenants. There is, generally, a lot of care given to property owners who are affected by issues. They are often seen as the key stakeholders. However, regarding issues of heritage, it is not simply those who may own properties or adjoining properties, or even those who have easements in relation to a property or site - though I have, as the Minister of State knows, argued for their rights in the past - who are significant. It is those who have other relationships and forms of relationship with a heritage site who need to be considered. This is going into Part 3 in respect of the Convention Concerning the Protection of World Cultural and Natural Heritage, but I think it speaks a little bit to some of the previous sections and protections which are robust.
Again, I hope the Minister of State could indicate the approach he plans to take regarding that aspect of the convention.
Section 92, which was amended recently on Committee Stage, provides comprehensive provisions for consultation regarding world heritage property, as well as property which has potential to become world heritage property.
In 2021, the world heritage operational guidelines provided comprehensive guidance on the role of communities in world heritage matters such as encouraging states' parties to include balanced participation with a wide variety of stakeholders and rights holders, including local communities, site managers, NGOs and other interested parties. That refers to some of the groups the Senator has referenced.
These operational guidelines are reviewed and updated by the world heritage committee in light of the strategic objectives and are considered an excellent source of advice and information on the operation of the World Heritage Convention. I would like to clarify that the term "property" in section 92(2) refers to world heritage properties such as Brú na Bóinne and the consultation under section 92 can involve different matters relating to world heritage and not just matters relating to the property. I am open to discussing the matters further with the OPC to see if this can be made clearer in the drafting. I hope this is of some assistance.
It could be made clearer. In a way, it would be quite simple. In section 93, the Bill goes on to give a definition of "World Heritage Property". If that was what was reflected in the language of section 92, almost as if they were the other way around, then we would be clearly talking about world heritage property. Given that the preponderance of the focus tends to be on property owners as the stakeholders, as the section simply says at the moment "matters relating to property", I am concerned that it could narrow the scope. We have been talking about things and about heritage in the wider sense. I welcome the indication from the Minister that he will endeavour to make it clear that the property referred to in section 92 is the "World Heritage Property" as defined in section 93. That would make it much clearer as we look to the legislation being interpreted in the future. Given that we know the emphasis placed on property rights and property law, we should try to avoid any inadvertently narrow interpretation in the future. I thank the Minister for his indication on that.
I appreciate the point that the Senator is making in relation to future-proofing this Bill. In that regard, it is important that we discuss with the OPC if there is a necessity to make it clearer in the drafting.
Amendment, by leave, withdrawn.
Amendments Nos. 34 and 35 have been declared out of order as they do not arise out of Committee proceedings.
Amendments Nos. 34 and 35 not moved.
I move amendment No. 36:
In page 148, after line 39, to insert the following:
“Report on alignment of development with protection and conservation
169. The Minister shall, within 12 months of the passing of this Act, lay a report before both Houses of the Oireachtas outlining a review of the proposals and objectives within the National Development Plan and their consistency with—
(a) the protection and conservation of built archaeological heritage, including ringforts and their surroundings,
(b) the protection and conservation of natural archaeological heritage,
(c) the protection and conservation of national monuments and prescribed monuments, and
(d) the need to prevent and reduce the release of embodied carbon and the role of natural, built and cultural heritage in climate action.”.
I second the amendment.
This amendment is quite simple and self-explanatory in what it is seeking to do. It is a report on the alignment of development with protection and conservation. The rationale for its introduction is that we know from the 2004 amendment to the National Monuments Act 1930 that there was a very large amount of destruction of our archaeological heritage and we have seen the impact that development can have when it is not adequately cognisant or careful regarding the protection and conservation of built and natural heritage. For example, in 2001 the Heritage Council carried out the last survey on the destruction of archaeological sites. It surveyed 1.4% of all known monuments in the State and found that 34% of ringforts had been destroyed since first recorded in Ordnance Surveys beginning in the 1820s. The rate of destruction increased over the decades, reaching 6.5% in the late 1990s. We need to ensure that such destruction is halted and that the objectives of the national development plan are aligned with archaeological conservation. I would note the changes whereby the Ordnance Survey and the property register have been combined. The Ordnance Survey has been one of our great resources and I raised this separately when the legislation was coming through in respect of the merging of those bodies. It is important to ensure that we maintain the continuity of records and that the functions in relation to our collective heritage, as well as to the registration of property, are fully and properly reflected in the new entity.
This is simply ensuring we ensure the national development plan is consistent with the protection and conservation of our built archaeological heritage. I named ring forts because they are an example of something that has been largely destroyed in a short period of time. Amendment No. 36 also speaks to the protection and conservation of our natural archeological heritage, the protection and conservation of national monuments and prescribed monuments and overall the need to prevent and reduce the risk of release of embodied carbon and the role of natural built and cultural heritage in climate action. I am glad that paragraph (d) is in this proposed report. The Minister will be aware my amendment No. 37, which I do not think I will get to speak to, I think it has been ruled out of order-----
It is out of order.
Amendment No. 37 specifically focused on climate, whereas embodied carbon and climate are part of amendment No. 36. Heritage has a massive role to play. I believe this, have argued for it in the Joint Committee on Environment and Climate Action, and it is reflected in the committee's reports. It is spoken of in a paper from Andrew Potts, which was published by the ICOMOS group. It warns that while climate change is one of the great threats to people's living environment and cultural heritage worldwide, heritage has a key role to play. When we look to conserve our heritage, we also look at the reuse, adaptation and changing of buildings. This is much more effective in terms of carbon intensity than building something that, no matter how energy efficient, might take between 80 and 100 years to replace the amount of embodied emissions. There is an argument for the reuse of buildings.
When we discussed the circular economy at the joint committee, there was a lot of focus on tech solutions. They tend to take centre stage. In fact, some of the time-intensive and care-intensive heritage skills, which cover everything from the building of shutters to the preservation and reuse of materials, are some of the most effective ways to minimise our resource use and ensure we have the most effective heritage solutions. A lot of climate solutions come not only from future and sometimes hypothetical technological solutions but also from some of the more employment-intensive and skill-intensive heritage practices, which should be supported as part of any programme of new climate investment and just transition. I am glad I got to speak to these issues, as they are also included in this amendment. I urge that it form part of the Minister of State's consideration. The national development plan perhaps touches on the embodied carbon piece more than the skills, but he might give his thoughts.
Since the mid-1990s, there has been more of a focus in farming on the protection of archeological heritage through the rural environmental protection scheme and its successors. They are now part of the code of practice and recognised as a staple part of a landowner's responsibilities. I have highlighted cases where land is sold, somebody comes into a new plot of land and does not know the history of it, and this being a danger point in some cases for certain archeological features. Perhaps there could be a liaison with auctioneers or the registry that, once land is transferred and there are archeological features on that land, there would be a notification to the landowners. The vast majority of people in this day and age would not intentionally do something, but things can happen where people are not aware of the presence of something in or the significance of an area. Somebody could buy land which has the remnant of a feature and that person would not know the significance of it. There could be some way of notifying as part of the process of sale or registration in that case.
I again acknowledge the value of reviewing and monitoring the operation of new legislation. With respect to the proposed amendment No. 36, however, I believe other mechanisms have already been established that provide for the reporting requirements outlined by the Senator in this amendment. First, it is worth mentioning that the post-enactment scrutiny process will require a report on the functioning of the Bill to be laid in the parliamentary library 12 months after the Bill's enactment. Importantly, this report will outline whether legislation has achieved its original policy objectives. In order to induce a reporting requirement on the operation of the enacted Bill, I will instruct my officials to engage with the OPC with a view to drafting a new provision that requires a report on the implementation and operation of the Bill to be laid before each House of the Oireachtas not more than three years after enactment, with comparable reports to issue every five years thereafter.
As regards the national development plan, NDP, the Project Ireland 2040 delivery board is responsible for guiding and overseeing the delivery of the NDP. It was recently announced, as part of a set of measures introduced to enhance the delivery of the NDP, that the board is to be reconstituted and will now be chaired by the Minister for Public Expenditure, National Development Plan Delivery and Reform, who will take a direct role in overseeing the delivery of the NDP. Direct reporting to Government on the delivery of the NDP is now in place on a quarterly basis.
Finally, with regard to reporting on climate change, under the built and archaeological heritage climate change sectoral adaptation plan, written reports are to be presented to the national adaptation steering committee for monitoring the progress of the national adaptation framework. We are one of the first countries in Europe to bring in this sectoral adaptation plan. It is a really excellent plan with which I know Senator Higgins is familiar.
If there are other specific matters not covered in the reports I have mentioned, I would be happy to engage further with the Senator. I take on board the points she made regarding our heritage and its role in climate mitigation adaptation. That is critically important. I am familiar with the work of ICOMOS in that regard. Certainly, many of the archaeological sites of importance across the country are important sites for nature as well. This legislation is important in that regard. The Minister, Deputy Darragh O'Brien, is due to appear before the Joint Committee on Environment and Climate Action on Thursday. It is important that he is absolutely familiar with the importance of these as well.
Senator Kyne raised some very good points in terms of notifying, which I will take on board. I am not sure, but there might be something in the legislation in that regard. It is an important point, however, and it has been noted.
I thank the Minister of State. As I have understood, he has indicated that separate from the normal post or automatic response, which tends to very much function as a "Yes" or "No" response as to whether it has been implemented and so forth, he is planning to bring forward a report and many of these matters might be reflected in it. In that context, I am happy to withdraw my amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 37 to 40, inclusive, have been ruled out of order as they do not arise out of Committee proceedings.
Amendments Nos. 37 to 40, inclusive, not moved.
Bill received for final consideration.
When is it proposed to take Fifth Stage?
Now.
Is that agreed? Agreed.
Question, "That the Bill do now pass", put and agreed to.
Cuireadh an Seanad ar fionraí ar 3.49 p.m. agus cuireadh tús leis arís ar 4.33 p.m.
Sitting suspended at 3.49 p.m. and resumed at 4.33 p.m.