Select Committee on Housing, Local Government and Heritage díospóireacht -
Tuesday, 2 Nov 2021

Maritime Area Planning Bill 2021: Committee Stage (Resumed)

Debate resumed on amendment No. 73:

In page 27, between lines 1 and 2, to insert the following:

“ “maritime spatial planning” means—

(a) a process by which the relevant Member State's authorities analyse and organise human activities in marine areas to achieve ecological, economic and social objectives, as defined in Article 3(2) of the MSP Directive, and in so doing the competent authority (M) or competent authority (D) shall—

(I) act within the context of the EU’s Integrated Maritime Policy (IMP) which includes, as its environmental pillar, Directive 2008/56/EC of the European Parliament and of the Council,

(II) support the sustainable development of seas and oceans,

(III) develop coordinated, coherent and transparent decision-making in relation to the maritime sectors, whilst achieving good environmental status, in accordance with Directive 2008/56/EC, and as set out in recital 2 of the MSP Directive, on the objective of the EU Integrated Maritime Policy, and

(b) that maritime spatial planning shall thus be informed by, and act within that constraint of achieving good environmental status, and shall—

(I) take into account land-sea interactions in accordance with Article 4(2) of the MSP Directive,

(II) contribute to the objectives listed in Article 5 of the MSP Directive, applying an ecosystem-based approach, and to promote the coexistence of relevant activities and uses,

(III) fulfil the requirements laid down in Article 6 of the MSP Directive in respect of how MSPs are developed, as required by Article 4(4) of the MSP Directive,

(IV) fulfil the requirements of Article 8 of the MSP Directive on what they shall identify and contain , as required by Article 4(4) of the MSP Directive,

(c) have due regard to the particularities of the marine regions, relevant existing and future activities and uses and their impacts on the environment, as well as to natural resources, and shall also take into account land-sea interactions, and

(d) may include or build on existing national policies, regulations or mechanisms, provided they are in conformity with, and consistent with, the requirements and objectives of the MSP Directive, and where such policies have been made and approved by the Oireachtas;”.

- (Deputy Cian O'Callaghan).

Minister of State at the Department of Housing, Local Government and Heritage (Deputy Peter Burke)

Part 2 as initiated, augmented with a number of technical amendments that I have proposed, provides the following: definitions and requirements of maritime spatial planning in sections 15, 16, and 17; comprehensive subnational planning through designated maritime area plans in chapter 3; extensive public participation in marine spatial planning processes through the statutory public participation statements in sections 18 and 23 for maritime spatial plans, MSPs, and designated marine area plans, DMAPs, respectively; provisions to facilitate Oireachtas engagement with future national marine planning framework, NMPF, and DMAP development processes in sections 18(6) and 23(6); ministerial oversight of the DMAPs in section 24; democratic approval of the marine spatial plans and DMAPs by the Oireachtas and, in the case of localised DMAPs, the relevant local authorities in sections 25 and 27, respectively; compliance provisions for public bodies under section 29 and ministerial direction-making powers under section 30 necessary as an enforcement mechanism to ensure such compliance if required under section 31 strategic environmental assessment, SEA, and appropriate assessment, AA, requirements for marine planning policy statements, MPPS, guidelines, section 7 guidelines, section 8 directives, the MSP and DMAPS.

In Chapter 8, there is a new public database to centralise information on all maritime consents issued by different bodies. This Part of the Bill is a restatement and augmenting of Part 5 of the Planning and Development (Amendment) Act 2018 whose provisions have already successfully delivered Ireland's first marine spatial plan. We can deal further with the detail of each element in the discussions on later amendments.

I will turn now to the grouping of proposed amendments that deals with definitions and MSP requirements. Unfortunately, they contain many of the same technical issues evident with earlier amendments and, if accepted, would not provide operable procedures. I apologise to Deputies for having to present such a critique. I appreciate the spirit in which these amendments have been put forward, but it is important to record why the amendments cannot be accepted.

Amendment No. 73 purports to define maritime spatial planning. Maritime spatial planning is defined in the EU directive. Section 13(2) of the initiated text ensures that the term has the same meaning in this Bill as in the directive. Deviating substantially from that definition, as proposed in this amendment, attracts significant legal risk of incorrect transposition that could imperil any plan made under this legislation. That is especially the case in this amendment where the syntax and structure of the proposed definition contain a number of technical deficiencies that render it inoperable or would have unintended consequences.

"Seas and oceans" is not a precisely defined term and not necessarily limited to Ireland's maritime area, as defined in the Bill. The proposal to "develop coordinated, coherent and transparent decision making in relation to the maritime sectors" is not a requirement of the directive and extends far beyond the scope of preparing a maritime spatial plan. This proposal could be construed as placing an obligation on the competent authority to reform decision-making procedures that are the responsibility of a range of Ministers and bodies under a range of regulatory and legislative regimes. Maritime spatial planning provides the context in which decisions are made but does not direct the form of decision-making procedures. Any reform of those procedures will have to be undertaken in the context of their respective legislative codes.

The syntax of the proposed measures in paragraphs (c) and (d) of the amendment are problematic, in that the terms "have due regard" and "may include" do not match the chapeau of "maritime spatial planning means".

Further and more fundamentally, these are matters that should be taken into account in the development of a plan and cannot form part of the definition.

The proposed paragraph (d) also limits applicable policies to those approved by the Oireachtas, which would be an unprecedented and inordinate constraint on any regulatory system. This would severely limit the scope of any plan made under this amendment and potentially conflicts with the requirements of the directive.

Amendment No. 74 proposes alternative objectives of a maritime spatial plan. These objectives are silent on key elements of Article 5(2) of the directive, namely, the sustainable development of energy sectors at sea, maritime transport and the fisheries and aquaculture sectors, and the preservation, protection and improvement of the environment, including resilience to climate change impacts. This legislation and any plan made under this amendment would be vulnerable to legal challenge. Section 16(4) of the initiated text captures all the required objectives.

Amendment No. 76 specifies the promotion of sustainable opportunities for the local fishing industry. As has been a recurring theme in these sessions, a single sector has been specified in amendments to the exclusion of others. We must retain neutrality in the legislation and the statutory procedures.

Amendment No. 77 is fundamentally flawed in a number of respects. The syntax and grammar of the proposed paragraphs (a) and (d) are not sufficiently clear and are not coherent provisions. The proposed paragraph (b) is based on a misreading of paragraph 2 of Article 5 of the directive, which provides that the member states, through the instrument of marine spatial plans, shall contribute to the matters set out in the paragraph. This amendment would make the competent authority the instrument of such contribution. Section 16(5) of the initiated text already provides for the matters set out in Article 8(1) of the directive making the proposed paragraph (d) redundant.

Acceptance of amendment No. 79 would also duplicate elements of section 17, leading to potential confusion and unacceptable risk.

Amendment No. 81 is expansive on a single pillar of sustainable development to the exclusion of the other two. The legislation and procedures must be neutral in this regard to allow for the right balance of the pillars to emerge from the development process and not be directed from the top down. I fully appreciate the importance of these environmental factors and considerations. Where relevant, they will be taken into account as a matter of course, in particular in the development of DMAPs covering specified locations where specific impacts on identified species and habitats can be identified and provided for. I draw attention to the proposals in section 21(2) for DMAPs, in particular paragraphs (c) to (f). These are broad enough to encompass the considerations raised in this amendment but may not be necessary for every single DMAP. I oppose this amendment

Amendment No. 75 proposes to replace the word "colocation" with the word "co-existence". This formulation is more consistent with the directive than the initiated text and I thank the Deputies for proposing it and bringing it to our attention. I will accept this amendment.

Deputy Cian O'Callaghan

I am delighted there was some good news at the end of the Minister of State's contribution. Perhaps he could have expanded on it. I apologise for being late. I came straight from making a short contribution in the Dáil. I want to make a few points on amendments Nos. 73 to 77, inclusive, 79 and 81. I will also comment on several points the Minister of State has just made.

The idea of these amendments is to provide an alternative definition and objective for the marine spatial plans, with a stronger focus on environmental and social requirements. These amendments seek to bring the objectives in line with the EU directives. What is encompassed by maritime spatial planning needs to be clearly set out in the Bill. It is very important that we do this to ensure the Bill is as robust as possible. Why is this important? I noted at the weekend there was coverage from people in the renewable wind energy sector that if they do not get the type of robust planning system they need, the consequent uncertainty could lead to judicial reviews and impact on investment. I do not favour the model of developing renewable energy being pursued by the Government. I would much prefer a much more public role in it. I accept that the model being pursued is reliant on private investment so it is very important, even from the point of view of getting investment into the sector, that we have robust legislation and that there are not grounds for judicial review. This is very important. These are complex environmental considerations and they must take into account spatial planning. This is not a discretionary matter that we can pick and choose.

With regard to the response of the Minister of State, I want to make several points. With regard to syntax and grammar, from my point of view if syntax and grammar need to be fixed in any amendment I table, there will be no issue with doing so. I will be happy to accommodate the Minister of State and the Department in that regard. It should not be an obstacle to any amendment we are tabling. It can be fixed as part of the process.

On amendment No. 74, the Minister of State said it is silent on Article 5 of the directive and on the uses being specified. I will read out a section of amendment No. 74. The new wording proposed in section 16(2)(b) states "by applying an ecosystem-based approach, and which promote the co-existence of relevant activities and uses, as required by Article 1 and Article 5(1) of the MSP Directive". Article 5 is specifically written in and the uses are specifically referenced. I do not accept the comments of the Minister of State that it is silent on Article 5. I ask him to expand on why he takes this view when we specifically have it written into the amendment.

Deputy Eoin Ó Broin

I also apologise for being late. It is one of those days when we are all running around trying to catch up with ourselves. I am sure if I had more time to catch a breath, I could have found a pithy remark at the start about co-existence between ourselves and the Minister of State but it is good to see he is accepting at least one of the amendments. It is not a small change of language but a significant change. Of course, co-existence is the language used in the directive and I thank the Minister for accepting it.

I am of the view, and I agree with the comments of Deputy Cian O'Callaghan, that the language of the directives is being weakened in the text of the Bill, more specifically with respect to the marine spatial plans. I will come to the DMAPs in a similar way shortly. Defining in legislation exactly what they are to be would be a much more helpful way of doing things and would potentially reduce the possibility of legal challenge in future. The concern some of us have, and to go back to the point we have been making from the start, is that we want to see a robust planning regime in the maritime area that facilitates multiple uses in this co-existence spirit, including offshore wind. If the legislative framework is not clear enough at the outset, it will be an open door to judicial review at a later stage, which we all want to avoid. Amendment No. 73 to section 13 is proposed to try to provide much greater clarity in terms of what a spatial plan is meant to do and contain. One of my concerns about some aspects of the language in the Bill is that it defines the process more than the detailed content and, crucially, the objectives.

I also want to reintroduce the issue we discussed previously, namely, the hierarchy and interrelationship between all of these layers of plan making, and I will come to it with regard to DMAPs shortly because there is still a lack of clarity. Amendment No. 74 is similar in the sense it is trying to set out the objectives for the marine spatial plan explicitly using the language of the directive, which I think is much more explicit and helpful.

The Minister of State is absolutely right that we are raising the issue of the inshore fisheries industry. There is a strong view in the Opposition that of all the sectors that have engaged in the public consultation on this to date, inshore fisheries is the sector that has been most left behind. None of us will apologise for continually raising the sector's concerns here. The Minister of State gave us a commitment on this the last time we discussed it.

We are urging the Minister to fully appreciate and understand the capacity deficit that may exist for small inshore fishermen and their businesses to fully engage in the technical complexities in front of us and, therefore, to find mechanisms to ensure their full participation in it.

Amendment No. 77 is about strengthening the language and making it more compliant with the directive.

As regards amendment No. 79, one of the concerns many members have, which we have expressed previously and will express again, is that these are not just spatial plans; they are temporal plans. That is why the issue of Article 6 of the maritime spatial planning, MSP, directive is so important. Although it is clear the framework plan as has been presented to date is spatial, that temporal issue is still very much missing.

The crucial issue in respect of amendment No. 81 is data and the need to ensure, as required under the directives, that we have the best-quality data and address the data gaps that exist. The amendment tries to specify some of those because it is crucial that once we get to the other side of the Bill, everything that flows from it is based on the most up-to-date, accurate and informed data. Unfortunately, as members are aware, Ireland is weak on that, particularly in the context of protected environments.

An issue on which I have not yet tabled an amendment but to which I may return on Report Stage is the definition of a protected site in section 13(1). I will wait and see whether that is an issue of sufficient concern for me to table an amendment on Report Stage. The issue relates to the whole interaction in terms of the time lag between protected areas mitigation measures that are put in at this stage and whether the definition of "protected site" in section 13(1) is adequate for those purposes. I am not necessarily looking to respond on this Stage, but it may be an issue we will return to on Report Stage.

Deputy Richard Boyd Barrett

The purpose of this series of amendments is to ensure that we have a proper planning approach, that is, a plan-led approach to the development and protection of our marine area and resources and, in particular, to ensure compliance with the marine spatial planning directives and the protections and requirements of those directives, which are about having a proper planning regime for managing our marine resources. Last weekend, I took the time to read the December 2020 report entitled Building Offshore Wind by the lobbying group on behalf of the wind energy industry. I did so in advance of a public meeting we held on this issue last night. It might be of interest to the Minister of State that the meeting was packed with people who are very concerned. The overwhelming sentiment at the meeting was that we absolutely need to develop offshore wind and address the climate crisis but there is deep concern and anxiety that we do not have a plan-led approach but, rather, a developer-led approach.

The detail of the report by Wind Energy Ireland, WEI, which has been lobbying very hard, is damning in this regard. In the document, WEI explicitly states on several occasions that we need a developer-led approach and rails against a plan-led approach. It explicitly states that private developers and the industry should decide site selection. This is a key issue. It came across very strongly at the meeting last night that if the industry selects the sites, then we can forget about the maritime area regulatory authority and all this legislation because there actually is a momentum under way which determines the outcome or is very likely to do so. This industry is explicitly saying it should decide how we do the development offshore and that we should not plan. However, the directives insist on planning and a plan-led approach. That approach should start with the selection of sites but that is not what is happening. It is not what is happening with the designation of projects. WEI is lobbying for a new category, one that does not appear anywhere in the directives, whereby the industry selects the sites.

Let us be absolutely clear that what is of concern to us and why we are trying to lock in specific protections and a sustainable approach that is contained in the marine spatial planning directives and the various directives such as the habitats directive, the birds directive and so on is that we have a plan-led approach. That means plans that take into consideration all of the environmental concerns and that the concerns in respect of sustainable and appropriate uses of the marine area should determine where things happen. Our concern is that is not what is going on. What is actually going on is that the industry does not want a plan-led approach and it seems that it is being facilitated in that regard, particularly under this notion of relevant projects. They are getting a special pass. The industry explicitly opposes a plan-led approach. We want this locked into the legislation to apply to all parties. We want it to start with the issue of site selection and go all the way through the process that there is a plan-led approach which is about appropriate development that ensures we protect biodiversity and marine resources and put things where they should be put rather than where developers who are concerned with profit want them. That is the logic behind this. It starts with planning, which is in the EU directives. A proper and appropriate plan-led approach, not a developer-led approach, should be locked in to the whole process from beginning to end. That is our concern. Anyone who reads the comments of WEI will see where our concerns come from.

Deputy Peter Burke

I remind members that we have already taken commitments from them on board. Amendment No. 75 is not the first to be taken on board. Where we can, we will work with members to make this legislation better, such as through giving commitments in the context of the resolution relating to the MPPS and getting information out in respect of public participation by communities that think this issue is very important. That has been the structure we have embarked on right through the four years it took to bring about the NMPF. Public participation is at the core of this mechanism. I refer to the three rounds of public participation in that process.

Obviously, the Government is very keen to protect fishermen in every way we can through Government policy. I make no apologies for saying that. I am trying to put forward a Bill that is neutral in the planning code to try to get the best possible outcomes for everyone who uses it.

As regards the directive, I have received clear advice from the Office of the Attorney General. A very senior legal drafter has been working on this legislation because of the complexity and magnitude of the Bill and what it will mean for the country in the future. The clear advice received meant that, in the first instance, we have stayed as close as possible to the MSP directive throughout, referencing articles on many occasions throughout the legislation. It is not necessary to reproduce every single word or section of the directive in the Bill or to reinterpret it through the Bill. We are not doing that. We have clear precedence for this in terms of Part 5 of the Planning and Development (Amendment) Act 2018 which gave birth to the NMPF. Obviously, we are going through this and embarking on this process again with this new legislation which will undoubtedly be ground-breaking. The advice I have received from the Office of the Attorney General gives me great confidence that we are taking the right approach.

I fully appreciate the concerns raised by Deputy Boyd Barrett.

I cannot get into individual cases but I will say that everything the Government does in this Thirty-third Dáil is to try to make our maritime area planning process plan-led. We are trying to ensure the plan recognises and respects all the vulnerable aspects of our maritime area, protects everyone, gets the best possible outcome and the fairest possible system to adjudicate independently on any applications that come forward in the future.

Deputy Richard Boyd Barrett

Is the Minister of State giving us a cast-iron guarantee that development consents will not be given until we have plans that designate what is and what is not appropriate, which areas of the marine are appropriate for particular types of development? Consents should not be given until applications have, if you like, gone through the proper process of environmental impact assessment, full compliance with the habitats directive, the birds directive and the marine spatial planning directive. In other words, we must ensure we have the plan first. We need to properly and forensically assess these matters to protect biodiversity, fishers, our coastal amenities, areas that need special protection and so on. Will the Minister of State guarantee that development consents will not be given until mapping of the marine area has taken place? Decisions must be made on the basis of proper marine spatial planning that complies with all the relevant directives and environmental impact assessments. Consents should not be given otherwise. Decisions must not be made by developers. Is it potentially the case that sites which have been selected by the developers themselves will get development consents prior to all of those assessments? That is the key question and what we need to know. I hope the Minister of State will give us assurances and we will not have huge developments that effectively become a fait accompli before we have done the mapping of what needs to be protected, what is sensitive, and all the screening, if you like, for environmental impact assessment that should take place if we are not going to repeat the Wild West approach to development we have sometimes taken on land. Those are the assurances we need. The reason for these amendments is precisely because we are trying to lock that in. In amendment No. 79, for example, we suggest that in accordance with Article 8 of the marine spatial planning directive, we should "identify the spatial and temporal distribution of relevant, existing and future activities and uses in the marine waters of the Marine Spatial Plan the competent authority is preparing". We want the thing mapped out. Where is it appropriate to do certain things and where is it not? We should ask has there been a proper process in making those decisions before we start lashing out development consents for big industrial development in our marine areas.

Chairman

I will bring in Deputy Cian O'Callaghan. The Minister of State gave comprehensive responses to all of these queries.

Deputy Cian O'Callaghan

I will come back in on a point I did not get a response to. The Minister said that amendment No. 74 was silent on Article 5 of the marine spatial planning directive. However, as I have said, amendment No. 74 specifically mentions Article 5 of the marine spatial planning directive. The Minister of State might explain or withdraw his comments in that regard.

Deputy Peter Burke

I said the amendment is silent on Article 5.2.

Deputy Cian O'Callaghan

I thank the Minister of State for that clarification. I want to agree with the comments of Deputy Boyd Barrett.

Chairman

I am going to allow the Minister of State to respond to Deputy Boyd Barrett's questioning.

Deputy Peter Burke

We are bringing about a new regime here. An agency will be independently assessing all planning applications that go before it. If anyone wants to delve into how the designated marine area plans, DMAP, process will work, it is clearly articulated on page 197 of the National Maritime Planning Framework, NMPF, document.

Bearing in mind the scale and size of our maritime area, this is the first time applications will be adjudicated on independently by experts who will take account of all directives currently in existence. I do not share the Deputy's concern in that regard.

Deputy Cian O'Callaghan

The Minister of State is not quite answering the question.

Deputy Peter Burke

I am clear on the question. I said applications will be independently assessed by the maritime area regulatory authority, MARA. A new consent regime is being put through in this legislation.

Deputy Eoin Ó Broin

That will be the case for any consent application once MARA is established. Deputy Boyd Barrett is referring to legacy projects. People are looking for some reassurance that the consent process by which the Minister is going to provide consent for those legacy projects will have the same level of scrutiny and independence because that process is not outlined in the same way. That is the concern.

Deputy Peter Burke

All those cases are going to An Bord Pleanála.

Deputy Eoin Ó Broin

Will the Minister of State give us a little bit of detail about that? It would be helpful to put that on the public record so that people know how the process will work.

Deputy Peter Burke

It is not relevant to the amendment before me. I will get that information for the Deputy and we can circulate it.

Deputy Eoin Ó Broin

That is perfect.

Amendment put and declared lost.

Sections 13 to 15, inclusive, agreed to.

SECTION 16

Deputy Cian O'Callaghan

I move amendment No. 74:

In page 27, to delete lines 34 to 36, and in page 28, to delete lines 1 to 6 and substitute the following:

“(2) The objectives of a Marine Spatial Plan shall be—

(a) to promote the sustainable growth of the State’s maritime economy, the sustainable development of its marine areas and the sustainable use of its marine resources, whilst achieving good environmental status, as provided by Article 1 and recital 2 of the MSP Directive,

(b) to consider economic, social and environmental priorities approved by the Oireachtas in a Maritime Planning Policy Statement which support sustainable development and growth in the maritime sector, by applying an ecosystem-based approach, and which promote the co-existence of relevant activities and uses, as required by Article 1 and Article 5(1) of the MSP Directive, and

(c) to establish a plan for the Government consistent with the methodology, constraints and requirements of the MSP Directive in relation to the sustainable management and development of marine activities and development, whilst achieving good environmental status.”.

Amendment put:

The Committee divided: Tá, 3; Níl, 6.

Tá

• Gould, Thomas.
• O'Callaghan, Cian.
• Ó Broin, Eoin.

Níl

• Burke, Peter.
• Duffy, Francis Noel.
• Flaherty, Joe.
• Higgins, Emer.
• Matthews, Steven.
• McAuliffe, Paul.

Amendment declared lost.

Chairman

Apologies were received from Deputy O'Donoghue. I believe the Minister of State indicated he agreed to amendment No. 75.

Deputy Eoin Ó Broin

I move amendment No. 75:

In page 28, line 5, to delete “colocation” and substitute “coexistance”.

Amendment agreed to.

Deputy Eoin Ó Broin

I move amendment No. 76:

In page 28, between lines 6 and 7, to insert the following:

“(e) to promote sustainable opportunities for the local fishing industry.”.

Amendment put and declared lost.

Deputy Eoin Ó Broin

I move amendment No. 77:

In page 28, to delete lines 15 to 18 and substitute the following:

“(a) consider economic, social and environmental aspects to support sustainable development and growth in the maritime sector, applying an ecosystem-based approach, and to promote the coexistence of relevant activities and uses,

(b) contribute to the matters specified in paragraph 2 of Article 5 of the MSP Directive,

(c) fulfil the requirements specified in Article 6(1) and 6(2) of the MSP Directive,

(d) identify the spatial and temporal distribution of relevant existing and future activities and uses in the marine waters of the Marine Spatial Plan the competent authority is preparing, which contribute to the objectives set out in Article 5 of the MSP Directive,

(e) take into consideration relevant interactions of activities and uses,

(f) organise the use of the best available data, and engage to organise the sharing of information necessary for maritime spatial plans, including in respect of the data specified in Article 10(2) of the MSP Directive, and consistently with Article 10(3) of the MSP Directive,

(g) support co-operation among Member States in accordance with Article 11 of the MSP Directive, and

(h) support co-operation with third countries in accordance with Article 12 of the MSP Directive.”.

Amendment put and declared lost.

Chairman

Amendments Nos. 78, 80 and 87 to 95, inclusive, are related and will be discussed together.

Deputy Eoin Ó Broin

I move amendment No. 78:

In page 28, between lines 18 and 19, to insert the following:

“(5) The Minister shall ensure a full public consultation on the MSP, in line with the State’s obligations under the Strategic Environmental Assessment Directive and the Aarhus Convention.”.

As the Minister of State will be aware, these amendments all deal with two key aspects of public participation in the drafting, amending or annulling of a marine spatial plan, MSP, or aspects thereof. I am still not clear as to how public participation is envisaged with respect to the marine spatial plan. It might be helpful if the Minister of State in his response not only reads his written reply on the deficiencies of our amendments but also puts on record how that public participation process is envisaged under section 18.

There is a relationship, which the amendments speak to, between the review of the NMPF and the drafting, amending or revoking of an MSP. I have a concern with the way in which the Bill is drafted in that public participation, in the context of the NMPF, will kick in at a later stage and, therefore, there could be periods in which there would not be adequate public participation, with respect to both the marine spatial plans and amendments to or replacements of marine spatial plans. If the Minister of State could set that out, it would be helpful.

It is important to ensure that where public participation is in place, there will be no undue or unnecessary obstacles to that participation. That includes ensuring information is made as widely available as possible, with no onerous fees that would block it. That is not something that is necessarily in our current planning regime but it can be seen in, for example, some of the new provisions of the forestry legislation. I accept that does not relate to the Minister of State's Department but it is still a worry for those of us who are concerned with access to public participation.

Depending on the Minister of State's outline of how he envisages public participation with respect to these, I might come back in. The amendments are about trying to ensure the maximum level of public participation at the earliest stage in the process in order that the public can be brought in to the plan-led approach the Minister of State outlined in his response to opposition earlier.

Deputy Cian O'Callaghan

Amendment No. 80, which relates to public participation, seeks to insert Article 9. That Article states member states shall establish means of public participation by informing all interested parties, consulting relevant stakeholders, authorities and the public concerned at an early stage in the development of maritime spatial plans in accordance with relevant provisions establishing legislation. It will also ensure relevant stakeholders, authorities and the public will have access to plans once they have been finalised. This is very important to ensure there will be proper compliance with the maritime spatial planning directive when a maritime spatial plan is being compiled.

On amendment No. 87, the Bill, as it stands, includes quite a complex system for public participation on maritime spatial plans, but the reason for this complexity is not clear. The amendment will provide that the consultation period will exclude public holidays and that it will both be online and use traditional methods to ensure inclusion. That is important to ensure no one will be disenfranchised in the context of the digital divide. It will provide also that there will be no charge for submissions or for inspecting materials made available online. They are all useful steps to take in regard to public participation being written into the legislation.

Amendment No. 88 will require a statement on public participation to be published after the Bill has been enacted to ensure compliance with the Aarhus Convention.

Amendment No. 89 seeks to delete the lines, "The competent authority ... shall take all reasonable steps to comply with the public participation statement". That wording would give the competent authority discretion not to comply with its own public participation statement. It is unclear what would constitute "reasonable steps" and the wording is arbitrary. It is not defined in the legislation and there could be difficulties in that regard. It is not a good wording to have in the Bill and it weakens it. In fact, an issue I have with much of the Bill relates to parts whose language weakens provisions unnecessarily. It reflects some of what is in the directives but it chooses wording that would allow for get-out clauses or weaker implementation.

Amendment Nos. 92 and 93 are similar to amendment No. 87. Amendment No. 95 sets out additional details on what should be classed as relevant documentation for this section. It includes reviews of and changes to the existing NMPF, MSPs and DMAPs, whereas the Bill includes only the draft MSP.

That is important in terms of this legislation.

Deputy Richard Boyd Barrett

The public feels developers are always not one but ten steps ahead in terms of knowledge of plans. It is felt that the public is the last to know about anything and, insofar as consultation takes place, it is a tick-box exercise. It is minimal and, as we noted earlier, often happens around August or December. People find out at the last minute that they are to be consulted and there is a feeling that many things are faits accomplis.

There is a need to tightly define and ensure the most thoroughgoing, rigorous, open, transparent process of public consultation and participation. I hate the world "consultation". There should be public participation in the planning of our regulation and management of our marine area and resources. People want that and they want to be confident. What is set out in the directives, the Aarhus Convention and so on is precisely that. The definition of sustainable planning and development is that the public is part of it. The public is not incidental to planning and development but a critical part of it and often has the greatest knowledge.

We will move onto MARA and the personnel who will oversee these things but who are the experts? One of the key groups of experts is the public, most often, or the stakeholders in a particular area. They are often not seen as such, but as a pain in the neck to be overcome, certainly by developers as demonstrated in some of their documents. We are trying to ensure that public involvement is thoroughgoing, that the public know and that there is no question of people not knowing.

The Minister of State looked favourably on the suggestion that we move from traditional newspaper media to radio advertising and stuff like that and hopefully that will be reflected in Government amendments before we get to Report Stage. It is so everybody knows something important is happening that affects the marine area where they operate or that is close to them. That is what we are looking for and no vagueness or get-out clauses, as Deputy Cian O'Callaghan pointed to. That is the logic of these amendments.

Deputy Peter Burke

The grouping proposes a number of changes to the public participation procedures and additional steps in the Oireachtas approval procedures.

I will take participation first. In part, I think these amendments have been proposed because members may not have fully grasped the intention and function of the initiated text as a whole. This is understandable as what is proposed is innovative in an Irish context and builds upon the experience of the development of our first national marine planning framework. I caution members not to fall into the trap of assuming that public consultation and participation are synonymous. Formal public consultation is only one form of participation. Participation in the first national marine planning framework was extensive throughout the development process and not limited to the final consultation on a draft document. The draft could not have been prepared without the input of the public, stakeholders, NGOs, industry, Departments and agencies.

This Bill, through the tool of the public participation statement, seeks to place such participation arrangements on a statutory footing. I urge members to re-examine section 18 of the initiated text setting out the detail of what is intended to be included in such statements, in particular subsections (4) and (5). Many of the concerns raised in sessions to date, such as best practice, inclusivity, Aarhus compliance and appropriate use of media, will be specified in regulations that will guide the preparation of such statements. We are also conscious of the consultation overload issue raised by Deputy Boyd Barrett at the last session and we intend, insofar as is possible given the complexity of such plans, to minimise the administrative burden on stakeholders. The publication of the public participation statement will be the first step in the development of the next iteration of the marine spatial plan so the public will have early and full sight of when and how it can engage with the development process.

On amendment No. 78, formal public consultation arrangements on the draft plan will be set out in a public participation statement. The use of the term “full” is deficient legally and is open to argument that no public consultation, no matter how comprehensive, could be considered “full” or complete. The plan will also be subject to consultation requirements under the SEA and birds and habitats directives via section 31.

Amendment No. 80 would duplicate the provision of section 18(1) in respect of Article 9 of the MSP directive. Amendment No. 87 further details arrangements for public participation that are not necessary in the context of section 18. Amendment No. 88 repeats much of the previous amendments but is not necessary in the context of section 18. Amendment No. 89 would remove the requirement for compliance with the statement, subject to taking “all reasonable steps” in section 18(2). This section is necessary because factors outside the control of the competent authority may result in an element of the statement not being fully complied with. It would be incorrect for a plan to be unable to be made and years of work, participation and engagement to be wasted in such circumstances.

Amendment No. 90 is an alternative to No. 89 replacing “reasonable steps” with “legally required actions”. It is presumed that this is intended to ensure compliance with participation obligations; however, the language is not so limited and risks unintended consequences. In any case, such obligations are expressed elsewhere in the Bill and would apply even if unstated. Any development procedure that failed to comply with such obligations would not survive judicial review.

Amendment No. 91 seeks to limit the ability of the competent authority to amend the public participation statement to account for emerging and arising issues and is too restrictive. Such amendments may be practical in nature and expand the scope of participation or introduce a new mechanism. I believe our practice to date and the provisions of section 18 highlight our commitment to the best possible participation in the development of plans for the future.

Amendment No. 92 further details public consultation arrangements that are not necessary as they will be set out in regulations and the public participation statement. It also repeats elements of other amendments and the existing text that would lead to confusion, inconsistency and lack of clarity.

Amendment No. 93 relates to regulations in respect of the statement and sets out matters which the competent authority is already obliged to comply with. It places a lesser obligation to “act consistently with” rather than to comply with the directives stated in the amendment. This opens up the risk that these provisions are considered part-transposition of those directives while not giving them full effect.

Amendment No. 94 proposes that the Minister “shall comply with” the principles and policies of section 18(5). "Have regard to" is the standard terminology for preparation of regulations. On a technical level, the amendment does not work; for example, it would result in a requirement to “comply with compliance with Article 9 of the Directive”.

Amendment No. 95 purports to replace existing provisions that are already sufficient. It is overly restrictive. Minor amendments are concerned which are provided for under Chapter 5 and consultation for DMAPs is provided for under section 23.

These amendments are not necessary. I point out to members that the national planning framework was a best-in-class view of how to deliver such a comprehensive document in terms of public participation at every step of the way. Page 196 of the NMPF details the number of public participation and consultation events held. Deputy Boyd Barrett will be happy to note none of them were in August or September.

There were also various meetings of our stakeholder advisory group. I had the pleasure of chairing three meetings from May 2020. The first of the meetings was in the Custom House in March 2018. The committee can see that this is four years of work through extensive meetings, through an advisory group and going around various areas including coastal towns to try to get the communities involved. We will take the workings from the Deputy's suggestions on how we do that into the future. With regard to Deputy Ó Broin's concerns on fees, we absolutely do not see that in any way being any part. It is very clear that if there is an amendment or change, once that is set aside, section 18 will be triggered and all of this consultation, which is the best in class and has been very wide-ranging, will be brought into action.

Deputy Cian O'Callaghan

It would be very useful if the Minister of State could give some detail on what exactly is a public participation statement and what is its purpose. It would be very helpful if the Minister of State could come back on that.

Section 18 of the Bill is about public participation and marine spatial plans, and our amendments here are seeking to strengthen this. Section 18 is very weak on public participation. It relies on this public participation statement. From my reading of it, probably the strongest part of it is the list of requirements the Minister may specify with regard to a public participation statement. There is a huge amount of discretion around that list. The section states: "The Minister may by regulations specify requirements with which a public participation statement (M) shall comply...", and then there is the list. There is no obligation and no wording saying that a public participation statement has to comply with these principles. The fact that it is resting on this public participation statement rather than being set out in the legislation is very problematic.

This comes at the heart of Deputy Boyd Barrett's point that public participation should not be done just to tick the box. It is often the case that the public and other stakeholders have the best knowledge of an issue in a marine area and they can know it in a way that nobody else does. I have seen this countless times where the developers come with highly paid consultants and all the rest and they miss absolutely key knowledge in the local area that is known by the local community, perhaps by the people who have been fishing it for years and have lived there for generations. If it is done right, public participation can actually get information that is in everybody's benefit in the long run. I have a lot of concerns about this.

It goes back to the previous points made that what we are trying to do with this legislation is to facilitate renewable energy, but we need to try to protect our marine biodiversity and environment at the same time. If we are not, then we are negating some of the positives that could come out of renewable energy. The importance of our marine environment has been well documented, not just in terms of biodiversity but also around its importance for carbon capture, in the context of marine life and cetaceans, including whales and dolphins, and with regard to the seabed. If renewable energy is not planned properly, if it is not plan-led, or if it is developer-led, it can lead to unnecessary destruction of our marine environment and the release of carbon, which of course is going against what renewable energy is trying to counteract.

It would be very helpful if the Minister of State will answer specifically what is a public participation statement and what are its purposes.

Deputy Eoin Ó Broin

I thank Minister of State for his reply. I do not believe that because what is proposed is innovative we are finding it difficult to understand. This suggests that somehow innovation is something that the Opposition cannot comprehend. It is because this is incredibly complex. The legislation does not lend itself to easy understanding of its outworkings, particularly when large aspects of what we are talking about are not specified in the legislation. It is specified by way of powers for the Minister.

The concern that motivates us to have amendments around public participation is that upon reading section 18 I am not clear on who a competent authority may be, and I am not clear what the status of a public participation statement will be. I understand what the Minister of State is describing it as, which is a series of intentions, but my big concern is to be found when we get into section 18(2), which states: "The competent authority (M) shall take all reasonable steps to comply with the public participation statement (M)." To me, this seems very vague and open. While a very good Minister with very good officials with a good track record of public participation will use the provision in a very positive way, this does not necessarily require it under law.

The Minister of State said there may be events outside the control of the authority. I would like to know what kinds of events are considered. I am not being awkward, but I ask the Minister of State to be more explicit in explaining what those outside events are that may mean a competent authority does not feel it is fully able to comply with the statement. What would be reasonable steps and what would not be reasonable steps, and who decides? Where will this be set out?

Likewise, section 18(3) refers to where the competent authority "considers it necessary or expedient" to revise the statement. This means that the public participation statement does not have to be fully adhered to, depending on what events outside the control of the competent authority happened to intervene. It can be amended. Again, I could be interpreting this wrong, but it seems there is lots of scope and room for manoeuvre in good ways but also in bad ways. This strikes me as problematic.

My final point speaks to our amendments, which are trying to specify what the public participation consultation will be. I will slightly add to Deputy Cian O'Callaghan's question for the Minister of State to tell us what a public participation statement will be. Clearly in the provisions for the regulation set out in section 18(4), the Minister of State or his officials must have some notion of what an appropriate time period for public consultation would be, what the arrangements would be for notifications and so on. Will the Minister of State give us some comfort as to what kind of public participation process it would be? What are the checks on the difficult aspects of sections 18(2) and 18(3), which I have outlined, that would prevent them from being properly used - I must choose my words very carefully - by a future Minister or future officials who are not as committed to public participation, as the Minister of State and his team have made the case here today?

Deputy Richard Boyd Barrett

I am very keen that the people who may be listening in to this debate will understand. We are genuinely interrogating this because we want to understand fully and for the legislation to be as good as it can be. When a development plan is being put together there are people in the council department, for example, who may have developed a knowledge and experience over many years in the particular parts for which they are responsible for the drafts. There is a certain experience and knowledge and so on. Then there is the established process, which we are always trying to improve, of public participation in that. We are in new territory here. One of the things I was very struck by in the industry lobbying, or their vision document, is that essentially they were saying "we have the expertise and nobody else has the expertise". This was their justification for having a developer-led approach: "we know the stuff and nobody else does". The question is about who the competent authority is and what sort of expert advice they will depend on for the drafting of plans. This notion that developers are experts - and one can see why they would want this - and that everybody else does not really know what they are talking about is not the way things are going to be. As we have said, the huge amount of knowledge and expertise we actually need to input into maritime spatial plans is that of the real stakeholders: the people who know the area, the people who live in the area and people like the fishers and others who know a particular maritime environment.

I echo the questions about the public participation statement and seek some elaboration on that. It is stated the Minister may, by regulation, specify those requirements so the Minister of State might explain why this is just "may". The logic of our amendments is to try to tie down the requirements in terms of public participation in the development of marine spatial plans.

Deputy Cian O'Callaghan

I have an additional question on section 18(1), which states "The competent authority (M) shall, as soon as is practicable after section 17(2)(a) or (3)(a), as appropriate, applies following a review referred to in that section and for the purposes of ensuring compliance with Article 9 of the MSP Directive, prepare and publish" the public participation statement. Sections 17(2)(a) and 17(3)(a) indicate "The Minister shall, not later than six years after" when referring to the existing national marine planning framework or a marine spatial plan. What does that mean in terms of timing for this public participation statement? Does it mean that, potentially, there would be no public participation statement for a period of six years? Is that what the proposed legislation implies? If it is, this section is completely reliant on the public participation statement and there is a potential delay of six years. Will the Minister of State explain the timing on this or is there a different way of reading the section so it does not potentially allow for a six-year delay before there is a public participation statement? The entire section of the Bill rests on that public participation statement. Are we talking about a potential six-year delay in this?

Deputy Peter Burke

I thank the members for their questions. There was a question on meaningful participation and consultation with various groups. I have been very clear about what we have embarked on with the birth of the national marine planning framework and it being absolutely best-in-class practice. It is genuinely disappointing to hear suggestions this is tokenistic.

One can look at appendix B. I noted references to developers and major initiators of offshore renewable energy projects but I can look through the list of people working on the advisory group. There are six or seven different bodies related to fisheries or seaweed harvesting. These are all people from the smallest boathouse to the largest renewable energy project and they were facilitated through our advisory group and participation. I am genuinely a little taken aback by the suggestion that what we were doing was not best in class because it is and has been.

There was mention of "all reasonable measures" but we have been in a pandemic. We can see that halfway through the consultation it had to go online. That was in May 2020 for the advisory group in the first instance and, in the second instance, for the consultation event. It was reasonable to have an event online to bring as many people as possible together. It was a reasonable measure to try to keep people safe and ensure we met obligations for consultation and to those who are participating. I had the privilege to chair a number of sessions of the advisory group, where I heard from and saw a screen full of people from every sector around the country. It was absolutely incredible. I can say to members that I have experienced this and because of that I know the process was robust. It was the best I have seen in terms of consultation and participation.

There was a reference to the competent authority and it is clear in section 15 that the Minister shall be the competent authority. That is in black and white.

The public participation statement is the birth of the process. It will be laid before the Houses of the Oireachtas and it will be for committees like this one to get involved and try to feed its own ideas into the process, as it has done in the past. I respectfully say that this would lead to valuable contributions to the process, which is what we want. Pages 29 and 30 of the Bill outline compliance and what is included in the public participation statement.

Chairman

There was a question on timeframes for the public consultation. That was from Deputy Ó Broin.

Deputy Eoin Ó Broin

There is a list of questions that Deputy O'Callaghan and I have asked that have not been answered. I can go back over them. I thank the Minister of State for indicating the competent authority and I thank him for that clarity.

I am not interrogating the public participation process for the national marine planning framework. I am looking at this legislation, which may outlive the Minister of State, his officials and all of us. It is therefore really important we get best practice locked into this as much as possible. I have heard the Minister of State talking about reasonable steps if there is another pandemic. Where is there guidance in the legislation to determine what a reasonable step would be to permit non-compliance with the public participation statement?

Likewise, there is mention of a Minister considering it "necessary" or "expedient" and where is that outlined or delineated? I also asked if the Minister of State could at least give us some flavour of what he expected to be in regulations. I share the concern of Deputy O'Callaghan, which he articulated much better than I did, with respect to the timeline and lead-in.

I have a further question. To what does the public participation statement apply? Will it apply just to spatial plans or will it apply to supplementary amendments or additions to the MSPs? Will it apply to the review of the national marine planning framework, etc.? The more information the Minister of State can share with us, the better for everybody.

Deputy Cian O'Callaghan

To clarify, I am not making any comment on the work done by the Minister of State and officials with respect to public participation so far. We appreciate a huge amount of work has gone into the area and we can see the Minister of State is very passionate about the work that has been done. We are taking a cold look at this legislation to see how it will operate with any Minister or group of officials. It is our job to do that, and it is not based on current or recent practice. It is not about making any statement on that.

My specific question concerned section 18(1). My reading of how it relates to sections 17(2) and 17(3) is that it could allow for a delay of approximately six years until a public participation statement is drawn up. It refers to being as soon as practicable after those sections are complied with and the sections allow for six years after the existing national marine planning framework's publication. It could be six years from now. Am I misreading that? Is it correct that we could be looking at a six-year delay for this public participation statement being drawn up? If that is the case, what is the reason, especially given that this is all about the public participation statement?

Chairman

The question is now clear.

Deputy Richard Boyd Barrett

I would like to hear the Minister of State's response on that. I have a supplementary question but he might answer those questions now.

Chairman

If the Deputy asks that question now, we can get a full response from the Minister of State. I am trying to reduce the amount of back and forth in the questioning.

Deputy Richard Boyd Barrett

Okay. The Minister of State is lauding the public participation process he went through and I take him at his word at some level. I was not particularly aware of how it all went. I am not commenting on the process. The people I am speaking to, however, who have a concern in this matter do not understand how the relevant projects got slipped in on that basis to the national marine planning framework. There is much concern and anger about that. Following from that, is it the case the extended public participation in the development of marine spatial plans is done and dusted for six years?

There is serious concern about the inclusion of these relevant projects in the national marine planning framework in advance of the sort of detailed marine spatial planning we need to have in advance of major developments in the marine. That is the concern. If it were six years, a lot can happen and a lot of damage can be done in six years. Another matter of considerable concern is the potential for Ministers to walk away from public participation statements that is created by the use in the Bill of language such as "may" and changes as "considered necessary or expedient" in respect of revising statements and so on.

Deputy Peter Burke

Article 9 in the MSP directive is the genesis of what we will try to do when we embark on public participation and draft our statement. That is what we are guided by in terms of how we engage with communities. The public participation statement is triggered on a review. It is part of the development process. It is not necessary to wait six years. A review of the plan triggers the public participation statement.

On the competent authority and checks and safeguards, the Minister is the competent authority. It is up to the committees and Oireachtas structure to hold the Minister to account for his or her actions in drafting the statement. I am leaving out someone. Did Deputy Ó Broin have another question?

Deputy Eoin Ó Broin

Yes, I asked a question relating to sections 18(2), (3) and (4).

Deputy Peter Burke

I am told that is standard wording to allow the Minister to prepare independent regulations attached to it.

Deputy Eoin Ó Broin

I am not being awkward. On the timeline, the public participation statement is triggered when the review happens. The review has to happen within six years. The Minister of State indicated it will happen sooner than that, but we do not know when. That means there could be a period of one, two or three years without that public participation statement. Meanwhile, marine spatial plans are being developed. What will then govern-----

Deputy Peter Burke

There is no process in place at that point in time if the review has not commenced.

Deputy Eoin Ó Broin

This is important for us in order that we and the public are clear on it. Will marine spatial plans only start to be developed following the triggering of the review of the national marine planning framework and the consequent publication of the public participation statement? If not, MSPs could be developed outside of a public participation statement.

Deputy Peter Burke

What Deputy Ó Broin is saying is correct. That is not the case.

Deputy Eoin Ó Broin

The MSPs can only happen after the triggering.

Deputy Peter Burke

That is part of the process. Its being triggered is the birth or start of the process.

Deputy Eoin Ó Broin

No MSPs can be developed until after the review of the national marine planning framework is put in place and after the public participation process.

Deputy Peter Burke

Any marine spatial planning process that kicks off has to have the full participation statement as its first port of call to start.

Deputy Eoin Ó Broin

I think the Minister of State is as confused as I am on this crucial point. If we understand the legislation right, the public participation statement only gets developed once the review of the national marine planning framework is instituted. We are trying to ascertain whether the MSPs, DMAPs or anything else can be developed before the review of the national marine framework is triggered and, therefore, in the absence of a public participation statement. If so, how is the public participation element of those crucial plans developed?

Deputy Peter Burke

My officials tell me they will examine the issue of when it is triggered and clarify the matter for the Deputy.

Deputy Eoin Ó Broin

This is not a criticism of anybody in this room but the fact such a fundamental part of this entire architecture is unclear at this point in the conversation gives me some cause for concern. I understand "reasonable steps" is a formulation used. Surely it would be reasonable to have some indication of what "reasonable" is as otherwise, it is completely at the discretion of the Minister. On page 30-----

Deputy Peter Burke

I gave an indication of what reasonable steps are when I gave the example of Covid-19.

Deputy Eoin Ó Broin

I get that, but I much prefer the scope of action for Ministers to be written down somewhere, whether by way of regulations or legislation.

Deputy Peter Burke

We are going by Article 9 of the MSP directive, which is written down.

Deputy Eoin Ó Broin

We then have a consequent problem because section 18(5), in referring to the regulations I queried in section 18(4), provides that the Minister shall only "have regard to" the various measures rather than having to comply with them. The word "comply" is much stronger. Having listened to the Minister of State, I am more confused now than I was. I appreciate he will come back to us in more detail. However, the absence of real public participation, or clarity on that participation, undermines some of the positive things the Minister of State said earlier. That gives me some cause for concern.

Deputy Cian O'Callaghan

I do not understand why Article 9 of the directive, to which the Minister of State referred, is not listed in section 17(1). Section 17(1) lists other articles in the marine spatial planning directive. It lists paragraphs 1 and 2 of Articles 6, as well as Articles 10, 11 and 12. Article 9, as the Minister of State noted, is about public participation. Given the importance of section 17 in terms of how it interacts with section 18 on public participation, surely it would make sense to list Article 9 here. Can that be addressed? I do not see why that would not work or how it would take from anything or cause any issues. Can we look at listing Article 9 in section 17(1)(a)?

Deputy Peter Burke

Section 18 is Article 9. It transposes Article 9.

Deputy Cian O'Callaghan

That is the Minister of State's read of it.

Deputy Peter Burke

It is what I am advised.

Deputy Cian O'Callaghan

However, when I read Article 9 and section 18-----

Deputy Peter Burke

It gives effect to Article 9.

Deputy Cian O'Callaghan

It may give effect, but Article 9 is quite specific. Why not list-----

Deputy Peter Burke

I do not understand the Deputy's problem. He accepts that the section gives effect to the article.

Deputy Cian O'Callaghan

From reading Article 9 and section 18, I do not see how the specifics of Article 9 are transposed. Section 18 all rests on the public participation statement, whereas Article 9 is specific on what needs to be done. We do not know what will be in this public participation statement. There is a list of things the Minister may specify as regards requirements. That is as far as section 18 goes, whereas Article 9 is very specific. This section would be much more robust if Article 9 were listed in it. We managed not to list other articles, as well as Article 9, for no particular reason that I can understand.

Covid is a legitimate example of reasonable steps but it is just an example of where this could happen. There is nothing in the legislation to tell us the extent of what is or is not reasonable and what the parameters are. The Minister of State gave a good example of something that would be reasonable, but it does not tell us anything else about what could be deemed-----

Deputy Peter Burke

Does the Deputy want me to predict everything that will or will not be reasonable in future?

Deputy Cian O'Callaghan

No, absolutely not.

Deputy Peter Burke

We need to be fair here.

Deputy Cian O'Callaghan

Skilled as the Minister of State is, I am not asking him to do the impossible. I am asking for the legislation to be clear in order that it is not based on him or anyone else predicting what may happen in the future. I am looking for clarity in this legislation. Why not specifically reference Article 9 of the directive in this section? That would makes the Bill more robust.

Deputy Peter Burke

The reason is that section 18 triggers the obligation for the public participation statement, which is referenced in Article 9. It does exactly what Article 9 is suggesting.

Deputy Eoin Ó Broin

I appreciate that we all need to be good-humoured about this. Nobody is arguing the Minister should provide a list of everything that is reasonable and unreasonable. That is not how legislation works. Even we in the Opposition, with our limited ability to understand innovation, get that, but, either in legislation or in regulations, there should be some way to determine whether something is reasonable; otherwise it is just left to the discretion of the Minister. One of my main concerns about section 18 is that subsection 18(5)(c) refers to the Minister only having regard to Article 9. The wording of section 18 is such that the Minister does not have to comply; he has only to have regard to the article and take reasonable steps to comply regarding the public participation statement, if he or she believes it is expedient or necessary to make changes to it. We do not know the point at which the public participation statement kicks in with respect to MSPs, DMAPs or anything else. The Minister of State can surely understand the concern we are articulating.

Deputy Richard Boyd Barrett

Article 9 of the MSP directive states, among other things, that "Member States shall establish means of public participation by informing all interested parties and by consulting the relevant stakeholders and authorities, and the public concerned, at an early stage in the development of maritime spatial plans". It goes on to state "Member States shall also ensure that the relevant stakeholders and authorities, and the public concerned, have access to the plans once they are finalised." That is pretty strong. Section 17(1)(a) specifies that the competent authority has to comply, or ensure compliance, with the requirements of MSP directive, but, for some odd reason, the strong statement in Article 9, which insists on a certain amount of public information, is omitted. There are other articles but Article 9, the one that is strong in the directive and which is on public participation, is omitted. While section 17 outlines that the competent authority must comply, or ensure compliance with the requirements of the directive, the section on giving effect, section 18, is a bit wishy-washy, in our opinion. That is the concern. The Minister of State has not really explained why Article 9 is not explicitly referred to so as to let us know what the competent authority must ensure compliance with in respect of the directive.

Deputy Peter Burke

On the triggering of a public participation statement, the position on DMAPs is set out clearly in page 197 of the national marine planning framework. On amendments to MSPs and designated marine area plans, DMAPs, the detail is in section 28 of the Bill. I said the article is about giving effect. That is my clear advice regarding public participation and the associated robust participation. I have also been very clear that the Oireachtas, as a body, can get involved in the process in respect of how it interprets or gives advice. The document has to be laid before the Houses of the Oireachtas.

If there are further points that I need to clarify, I will have no issue with doing so.

Amendment put and declared lost.

Deputy Eoin Ó Broin

I move amendment No. 79:

In page 28, to delete lines 19 to 21 and substitute the following:

"(5) A MSP shall—

(a) in accordance with Article 8 of the MSP Directive—

(i) identify the spatial and temporal distribution of relevant existing and future activities and uses in the marine waters of the Marine Spatial Plan the competent authority is preparing, which contribute to the objectives set out in Article 5 of the MSP Directive, and

(ii) take into consideration relevant interactions of activities and uses,

and

(b) make use of, and present the best available data in light of Article 10 of the MSP Directive.".

Amendment put and declared lost.

Section 16, as amended, agreed to.

SECTION 17

Deputy Cian O'Callaghan

I move amendment No. 80:

In page 28, line 26, after "Article" to insert "9,".

Amendment put:

The Committee divided: Tá, 3; Níl, 6.

Tá

• Gould, Thomas.
• O'Callaghan, Cian.
• Ó Broin, Eoin.

Níl

• Burke, Peter.
• Duffy, Francis Noel.
• Flaherty, Joe.
• Higgins, Emer.
• Matthews, Steven.
• McAuliffe, Paul.

Amendment declared lost.

Deputy Eoin Ó Broin

I move amendment No. 81:

In page 28, between lines 26 and 27, to insert the following:

"(b) take account of the assessment reports for the state provided in accordance with the following:

(i) Article 17 of the Maritime Strategy Framework Directive and consultation responses thereon;

(ii) Article 16 and 17 of the Habitats Directive and consultation responses thereon;

(iii) Article 11 of the Birds Directive and consultation responses thereon;

(iv) data gaps and deficiencies in respect of subparagraphs (i) to (iii);

(v) the latest Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) report, and its relevance and conclusions for marine biodiversity and relevant avian species including native and migratory bird species relevant for the area of the MSP;

(vi) migratory and foraging pathways for marine biodiversity and relevant avian species including native and migratory bird species, to and from, and through the MSP,

(c) take a precautionary approach to data gaps and deficiencies in respect of ecological surveys in respect of the MSP,

(d) take account of the effect of climate change on patterns of migration,".

Amendment put and declared lost.

Deputy Peter Burke

I move amendment No. 82:

In page 28, line 30, to delete "UNCLOS and the Act of 2006" and substitute "the Convention and the Act of 2021".

Amendment agreed to.

Deputy Cian O'Callaghan

I move amendment No. 83:

In page 28, line 31, to delete "six years" and substitute "one year".

This amendment changes the review period for the national marine planning framework to within a year instead of the six years proposed in the Bill. The reason is that significant changes such as this need to be reviewed early so that any teething issues can be addressed. Six years is a long period to review this. We must ensure that the national marine planning framework is robust and that this review is a fundamental input to ensuring that it is as robust as possible and informs the framework of this Bill. That is what amendment No. 83 is about.

Deputy Eoin Ó Broin

I fully support the amendment. If the Minister of State thought, for example, two years was better than one year and wanted to make the case, I am sure we would be open to being reasonable about that, subject to whether it fits the Minister of State's definition of reasonable or not.

Given that we have already passed the national marine planning framework, NMPF, some time ago, six years on top of the time that has elapsed is of concern. In responding to why the Minister of State will not support this amendment, if he is not to support it, there is something I would like him to explain. Obviously, we will have the marine protected areas legislation. There will then be a parallel process of either identifying areas that might have mitigation measures or the designation of areas. We were told, when we asked a question at an earlier stage, how designation of marine protected areas would be added into the NMPF. If that is not being reviewed for up to six years, how do we fully incorporate, for example, changes within that period such as designations?

Deputy Peter Burke

Amendment No. 83 proposes that the review of the recently made NMPF be undertaken within one year of its first publication. This timeframe is simply too short to accommodate the envisaged participation under this Chapter. I fully appreciate it was not the intention of Deputes to exclude or diminish the public's role in the development of the next maritime spatial plan, MSP, but that would be the effect of this amendment. As stated in earlier sessions, the first NMPF will be reviewed within six years.

I reflected on that through the debate and earlier committees. I stated we potentially will do it earlier, in a few years. Given it is a new policy and it is a significant policy, it needs a period of time to bed down first because it has to be looked at in the round with the other policies that, as mentioned through this Bill, will give effect to and work with a shared vision through it.

In response to Deputy Ó Broin, I understand that the Minister of State, Deputy Noonan, will come in to discuss his role in terms of marine protected areas and how they link in through this Bill.

Chairman

I confirm that when we were discussing the national marine planning framework it was strongly suggested that it would take place much sooner than six years.

Deputy Peter Burke

In my earlier remarks, I have been clear on that.

Chairman

The Minister of State, Deputy Noonan, has engaged extensively up and down the country with groups as well. There is broad and detailed public consultation taking place on the marine protected areas concerns as well.

Deputy Eoin Ó Broin

It is good we are all good-humoured in this committee. I can picture the Minister of State's overworked and underpaid officials late last night writing the briefing notes and having a little smile as they added that particular line. We appreciate the humour, and I mean that genuinely.

I accept one year is too short but I also accept six years is too long. Would the Minister of State consider, by way of an amendment on Report Stage, slightly shortening the time? That would still give the Minister of State the flexibility to have it sooner rather than later. All I am asking the Minister of State is to go away and think. Six years sounds impossibly long.

With respect to the question regarding the marine protected areas, the Minister of State, Deputy Noonan, will not be able to answer the question that I asked the Minister of State, Deputy Peter Burke, because it is not related to the marine protected areas legislation. It is specifically related to the national marine planning framework. I could be wrong, but changes to the national marine planning framework will only be possible consequent to the review, which could be sooner than six years but could be within that timeframe. If marine protected areas, MPAs, are introduced before there is the review, what is the mechanism in this legislation to incorporate those MPAs into the national marine planning framework so that when, for example, a marine spatial plan is being developed and there is a consequent public participation statement governing public participation they would be required to take into account that MPA designation, which does not currently exist? It is a reasonable question.

Deputy Peter Burke

There is already provision in the planning part of the Bill whereby they can be incorporated if they are produced. I will come back to the Deputy with the reference.

Deputy Eoin Ó Broin

Perfect. Is that something separate to the review of the national marine planning framework?

Deputy Peter Burke

Yes.

Deputy Richard Boyd Barrett

It is an impressive document. Well done to the officials. We have a sense of humour too.

Chairman

It has been out for ages.

Deputy Richard Boyd Barrett

I have read it online but I have not had a hard copy. I prefer hard copies.

A framework is not a plan. My concern is that six years is a long time before we have a proper plan with all the public participation, the environmental assessment and, as has been mentioned, the marine protected areas. Why six years? Can the Minister of State explain why we have this figure of six years, particularly because the concern is that a framework is a little vague whereas a plan is not so vague?

Deputy Peter Burke

It is a plan. Six years, I am told, is standard. However, I indicated clearly, in terms of my engagement with the committee, that we are looking at doing it earlier than the six-year period. I was very clear on that.

In terms of the policy pieces that have to come together through this Bill and others that have been referenced, a year is way too short a term to judge it from its inception because this is a big new instrument governing all of our maritime area. It is a huge instrument and it needs a reasonable amount of time to have proper assessments that the public will be core to of how it has delivered for and protected the area.

Deputy Richard Boyd Barrett

A framework is not a plan. That is the concern.

A framework is a framework for planning; it is not a plan. That six-year delay in having proper plans is a concern.

Amendment put and declared lost.

Deputy Cian O'Callaghan

I move amendment No. 84:

In page 28, line 32, after “thereof” to insert “in accordance with subsection (3)”.

I will speak to this amendment and to amendment No. 85, just to move things along. They are not grouped, but this is a technical amendment relating to amendment No. 85.

Chairman

The Deputy can speak to amendment No. 85 then as well, if he wishes.

Deputy Cian O'Callaghan

Amendment No. 85 sets out a list of factors that should guide the review of the national marine planning framework and who should be consulted during that process. The Bill does not require the Minister to consult as part of that process. This amendment seeks to create a situation whereby we will not have the Department checking its own work in this regard, and that is why we must have a list of bodies specified that should be consulted, including other Ministers and Departments. It would oblige the Minister to consider things like any gaps in the plan, such as migratory and foraging routes for marine and bird species, which are important. The amendment would also oblige the Minister to consider things like the requirement to deliver maritime spatial planning while also achieving good environmental status and the contribution of sea grasses, whales and other sea life to carbon sequestration.

That is an important point. As I said before, there is little point in us developing renewable wind energy on one hand and then, on the other hand, undermining the contribution that is going to make in respect of climate change mitigation and reducing our carbon emissions if we are causing damage via other carbon emissions in the process. Therefore, we must be mindful that we are not simply trying to achieve the generation of renewable energy just for the sake of it. There is a reason we must do that and, in that context, it does not make sense to do anything that undermines our wider goal in the context of reducing carbon emissions. Amendment No. 85 specifically sets out that the Minister would be obliged to consider those aspects.

Deputy Richard Boyd Barrett

This amendment is also in my name.

Chairman

Is the Deputy referring to amendment No. 84?

Deputy Richard Boyd Barrett

Amendment No. 84 is a technical amendment, so I am talking about amendment No. 85.

Chairman

Okay. That is fine. Amendment No. 84 is covered.

Deputy Richard Boyd Barrett

As has been said, many potential implications arise from the development of the marine area. All the relevant organisations, bodies and stakeholders should be consulted in any review of a marine spatial plan or the national marine planning framework. We mention in this regard examples such as heritage, which is incredibly important. One of the things pointed out at a public meeting last night was that there are many wrecks on the Kish Bank, where the construction of the Dublin Array offshore wind farm project is planned, including the HMS Leinster. In the area of heritage as well, Dublin Bay is also a United Nations Educational, Scientific and Cultural Organization, UNESCO, designated biosphere, and, again, this is the area that will be impacted by this proposed development. Therefore, we must examine all the possible impacts from every conceivable stakeholder perspective. We have listed in the amendment all the relevant Departments to ensure that there is compliance with the various directives relating to habitats and birds, environmental impact assessments, etc.

Perhaps the Minister of State or his officials could answer one question that I was asked in this regard. I did not know the answer when the query was put to me. Will the Environmental Protection Agency, EPA, have a role in assessing reviews of plans - in the context of the plans themselves - regarding proposals for development and the impact of any such development? I am curious because this question was asked and it seems like a good one.

Chairman

I ask the Minister of State to respond in respect of amendment No. 84 first and then on amendment No. 85. We can take both together.

Deputy Peter Burke

I will try anyway. Amendment No. 84 is a technical amendment to enable amendment No. 85, as Deputy Cian O'Callaghan said. Amendment No. 85 sets out new provisions for review requirements of the first NMPF. They contain many of the same issues as earlier amendments, including limitations on ministerial consultations, while also providing for particular pillars of sustainable development and sectors to the exclusion of others and thereby upsetting the neutrality of the legislation.

Reference is also made to matters relating to marine protected areas that this Bill simply cannot legislate for as they do not yet have a legal existence pending the introduction of the marine protected areas legislation. While I cannot dwell further on this matter because the Minister of State, Deputy Noonan, intends updating the committee in due course, I assure members that any review of the NMPF will be undertaken in the context of the pertaining regulatory environment and the best available information.

The EPA is a prescribed body in the context of strategic environmental assessment and therefore it will come into play in this regard. Equally, if we look at the national marine planning framework document, all the coastal built heritage sites are mapped out on page 90. All the UNESCO coastal sites are also mapped out in detail there. All the shipwrecks in Irish waters are shown on pages 92 and 93. Therefore, all that information is there in the document on those pages.

Chairman

I thank the Minister of State. When we were discussing the national marine planning framework, I commented that I would refer people seeking any information about our maritime area to that document, that the maps it contains are iterative and that we will be updating them as we go. It is a great asset that we have prepared in that respect.

Amendment put and declared lost.

Deputy Cian O'Callaghan

I move amendment No. 85:

In page 28, after line 39, to insert the following:

“(3) The Minister, in conducting a review of the NMPF or an MSP, shall address the following requirements and considerations in respect of the NMPF for the existing NMPF and for a MSP in the case of a review of a MSP—

(a) consult with—

(i) the Minister with responsibility for Natural Heritage,

(ii) the Minister for Environment, Climate and Communications,

(iii) prescribed bodies listed for the purposes of this Act and as specified in section 2, and

(iv) the public,

(b) consider how the NMPF or MSP complies with the following requirements of the MSP Directive in both what it provides and how it was made:

(i) Article 1;

(ii) Article 5;

(iii) Article 6;

(iv) Article 7;

(v) Article 8(1);

(vi) Article 8(2);

(vii) Article 10;

(viii) Articles 11,

(c) consider how the NMPF or MSP complied with Article 9 in how it was made,

(d) consider the data gaps and deficiencies in respect of ecological aspects of the NMPF, and the requirements of the precautionary principle and the extent to which the plan reflects this adequately,

(e) consider the gaps in the plan on migratory and foraging routes for marine and avian species and the requirements of the precautionary principle and the extent to which the NMPF or MSP reflects this adequately,

(f) consider the assessment reports conducted for the state in accordance with:

(i) Article 16 and 17 of the Habitats Directive;

(ii) Article 17 of the Maritime Spatial Planning Directive;

(iii) Article 12 of the Birds Directive,

(g) consider the requirement to deliver maritime spatial planning whilst achieving good environmental status as set out in the Marine Strategy Framework Directive and how this is complied with and ensured by the NMPF or MSP,

(h) consider the recommendations of the Joint Oireachtas Committee for Housing Local Government and Heritage in their pre-legislative scrutiny report on the Heads of the Marine Planning and Development Management Bill in respect of the need for interim protections for marine biodiversity pending the designation of marine protected areas,

(i) consider the adequacy of contingency arrangements and provisions in the plan to ensure areas which should be designated as marine protected areas are not encroached upon, when considered together with the provisions of this Act,

(j) consider the contribution of cetaceans and sea grass to carbon sequestration and how the plan protects and promotes such considerations given the State’s obligations in respect of reduction in emissions of Green House Gases,

(k) consider the impact of bottom trawling and mining on the sea floor on climate change and how the plan and this Act addresses such considerations given the State’s obligations in respect of reduction in emissions of Green House Gas reductions,

(l) consider the outstanding designations of Natura 2000 sites by Ireland in its Marine environment, and

(m) consider the practicalities of how the over 58 policies specified in the NMPF can be effectively and practically and clearly considered together with their interactions with each other by decision makers, the public and developers.

(4) In setting out any reasons for not deciding to prepare and publish a new MSP to replace the existing NMPF or an MSP as the case may be, the Minister shall set out his or her reasons as required by section 17(2) in respect of each of the consultations and considerations detailed in section 17(3).”.

Amendment put and declared lost.

Deputy Cian O'Callaghan

I move amendment No. 86:

In page 29, line 2, after “thereof” to insert “in accordance with subsection (3)”.

This amendment was not grouped with amendment No. 85, but I probably should have spoken on it then because it provides for the factors set out in that amendment to also be considered in the context of reviews of the maritime spatial plans.

Deputy Eoin Ó Broin

As with the two previous amendments, these next two amendments, Nos. 86 and 87, are technically linked. They were originally one amendment and were separated by the Bills Office, but the Minister of State and his advisers know that.

Again, one thing that might help to clarify some of the confusion some of us are experiencing would be if the Minister of State in his response, and in as plain a form of English as is possible, were to give a sense of the relationship between maritime spatial plans and the national marine planning framework. I ask that because I think that when many of us thought about a review of the national marine planning framework, we thought it would be a big-bang review in which the entire framework would be reviewed. That was partly the reason for the earlier amendments.

The more I hear, though, the more I seem to be hearing that it could be a big-bang review or it could be a series of incremental reviews as maritime spatial plans or other things are developed. If the Minister of State could explain some of the context a little more, that might allay some of the fears we have. To give an example, these amendments relate to a new maritime spatial plan, but if the national marine planning framework is itself a collection of maritime spatial plans, albeit being produced in one initial process, could the review of the NMPF then be a process where marine spatial plans amend and update the national marine planning framework and thereby constitute multiple reviews over time? Is that a correct way of understanding what this means? Is that one option that exists?

This aspect goes back then to the question I asked previously about the public participation statement.

If it is potentially a series of micro reviews of sub-geographical areas, then when the first marine spatial plan is produced that, in itself, would constitute the beginning of the review of the national marine planning framework, which would trigger the public participation statement. If that is the case, it would be helpful if the Minister of State could confirm that or explain it a little more clearly than I have tried to do.

Deputy Peter Burke

I will do my best. I have a note that does a fair amount of work in explaining it. I will read it, if I may.

Deputy Eoin Ó Broin

Excellent.

Deputy Peter Burke

The national marine planning framework prepared under Part 5 of the Planning and Development (Amendment) Act 2018 is Ireland's first maritime marine spatial plan. The plan sets out in detail the high-level spatial planning policies that will help support sustainable development of Ireland's maritime resource. It also sets out a series of detailed requirements for plan makers and project proposers alike in respect of the various headings set out in the Bill, for example, heritage and environmental protection. This plan will be superseded by the MSP under this current legislation.

Deputy Eoin Ó Broin

I was hoping there might be two or three more sentences.

Deputy Peter Burke

I can continue about DMAPs, as the Deputy referred to geographical areas. DMAPs will be prepared as a series of sub-national plans and will be made collectively with the MSP to form part of the national marine planning framework.

Deputy Eoin Ó Broin

I am not trying to put words in the Minister of State's mouth, but we are getting somewhere. That means, for example, that when a review of the national marine planning framework is triggered, that could be the development of one or more marine spatial plans which as they are developed, with their public participation statements informing the public participation, then amend the national marine planning framework. Likewise, within those MSPs there are DMAPs and they are amended, so it is a constant evolving process. The reason I am saying this is that if that is the case, that answers the question for which we were seeking an answer earlier. The moment either an individual MSP is to be developed or there is a macro review, the public participation statement kicks in and there is public participation.

Deputy Peter Burke

I already said it kicks in.

Deputy Eoin Ó Broin

Even if it is a single MSP.

Deputy Peter Burke

Yes, absolutely.

Deputy Eoin Ó Broin

That is quite important.

Chairman

Even I got it that time, Deputy Ó Broin.

Amendment put and declared lost.

Section 17, as amended, agreed to.

NEW SECTIONS

Deputy Cian O'Callaghan

I move amendment No. 87:

In page 29, between lines 10 and 11, to insert the following:

“18. (1) The arrangements for public participation on the review, preparation and amendment of a new MSP developed under this Act, and a review and amendment or replacement or revocation of the NMPF in place on enactment, and other relevant documents, shall be consistent with the requirements of Article 9 of the MSP Directive, relevant provisions in European Union legislation referred to therein, and the Aarhus Convention which is an integral part of the EU legal order, and in particular, Articles 3(2), 6 and 7 of the Aarhus Convention.

(2) The Minister may by regulations specify requirements relating to any of the following:

(a) appropriate time periods for public consultation, where—

(i) such time periods when calculated shall not include excluded time periods,

and

(ii) shall be generously specified to provide adequate time for the public and relevant authorities and prescribed bodies to plan and prepare so they can participate effectively,

(b) arrangements for the publication of notices relating to relevant documents where such requirements include—

(i) online notification systems including Government websites, and

(ii) more traditional methods including newspaper notices in both national and regional newspapers, given the need to provide for equal access and opportunities to participate in areas and amongst demographies where digital access may present barriers, and to reach the public on matters of concern and interest to the public at large,

(c) the contents of notices, including the following:

(i) public consultation timeframes, including periods during which submissions may be made;

(ii) information on how submissions received will be acknowledged, considered and published;

(iii) information on the proposed methods of public participation;

(iv) the fact that there is no charge to make an observation or submission;

(v) where the relevant information can be found online, and where it can additionally be inspected, and that there is no charge for access to either,

(d) specific additional arrangements (including, if the Minister considers it appropriate to do so in the interests of clarity, separate sets of regulations made under this section) in relation to MSPs that fall within section 16(3)(a), (b) or (c), and of consistent standard to paragraphs (a) to (c) of subsection (3).

(3) Where the Minister makes regulations under subsection (4), in addition to having regard to the other provisions of this Act, he or she shall also—

(a) act consistently with—

(i) the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1993;

(ii) Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC;

(iii) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment;

(iv) Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (Recast);

(v) Article 9 of the MSP Directive;

(vi) Article 10 of the MSP Directive,

and

(b) have regard to the following principles and policies:

(i) the opportunity to incorporate national and international good practices relating to public participation;

(ii) public participation in the process is inclusive;

(iii) the balancing of the administrative burden on the competent authority (M) and participants is considered, making use, where possible, of existing public participation processes and methods, while recognising any disproportionate burden on the public is neither desirable or permissible;

(iv) that public participation must be initiated at an early stage and continued throughout the development of MSPs;

(v) that appropriate use is made of a wide range of media to raise awareness to maritime spatial planning and public participation opportunities;

(vi) that appropriate use is made of information technology and is also accompanied by more traditional non-digital methods to ensure fair access is provided for;

(vii) particular additional requirements relating to MSPs that fall within section 16(3)(a), (b) or (c).

(4) In this section, “relevant document” means—

(a) a review of the NMPF in place at the time of enactment,

(b) an amendment or revocation of the NMPF in place at the time of enactment,

(c) a draft of a MSP that falls within section 16(3)(a), (b) or (c), or

(d) a draft of a DMAP or an amendment or revocation of a DMAP.”.

Amendment put and declared lost.

Deputy Cian O'Callaghan

I move amendment No. 88:

In page 29, to delete lines 11 to 17 and substitute the following:

“18. (1) The competent authority (M) shall, as soon as is practicable after enactment and for the purposes of ensuring compliance with the public participation requirements of Article 9 of the MSP Directive, and the Aarhus Convention in particular Articles 6, 7 and 3(1), prepare and publish on a website of the Government a statement (in this section referred to as the “public participation statement (M)”) of the approach and processes to be followed by the competent authority (M) for public participation on a relevant document.”.

Amendment put and declared lost.

SECTION 18

Deputy Cian O'Callaghan

I move amendment No. 89:

In page 29, to delete lines 18 and 19.

Amendment put and declared lost.

Deputy Eoin Ó Broin

I move amendment No. 90:

In page 29, line 18, to delete “reasonable steps” and substitute “legally required actions”.

Amendment put:

The Committee divided: Tá, 3; Níl, 6.

Tá

• Gould, Thomas.
• O'Callaghan, Cian.
• Ó Broin, Eoin.

Níl

• Burke, Peter.
• Duffy, Francis Noel.
• Flaherty, Joe.
• Higgins, Emer.
• Matthews, Steven.
• McAuliffe, Paul.

Amendment declared lost.

Deputy Eoin Ó Broin

I move amendment No. 91:

In page 29, line 21, to delete “or expedient”.

Amendment put:

The Committee divided: Tá, 3; Níl, 6.

Tá

• Gould, Thomas.
• O'Callaghan, Cian.
• Ó Broin, Eoin.

Níl

• Burke, Peter.
• Duffy, Francis Noel.
• Flaherty, Joe.
• Higgins, Emer.
• Matthews, Steven.
• McAuliffe, Paul.

Amendment declared lost.

Deputy Eoin Ó Broin

I move amendment No. 92:

In page 29, to delete lines 24 to 38 and substitute the following:

“(4) The Minister may by regulations specify requirements relating to any of the following:

(a) appropriate time periods for public consultation, where—

(i) such time periods when calculated shall not include excluded time periods, and

(ii) shall be generously specified to provide adequate time for the public and relevant authorities and prescribed bodies to plan and prepare so they can participate effectively;

(b) arrangements for the publication of notices relating to relevant documents where such requirements include—

(i) online notification systems including Government websites, and

(ii) more traditional methods including newspaper notices in both national and regional newspapers, given the need to provide for equal access and opportunities to participate in areas and amongst demographies where digital access may present barriers, and to reach the public on matters of concern and interest to the public at large;

(c) the contents of notices, including the following:

(i) public consultation timeframes, including periods during which submissions may be made;

(ii) information on how submissions received will be acknowledged, considered and published;

(iii) information on the proposed methods of public participation;

(iv) the fact that there is no charge to make an observation or submission;

(v) where the relevant information can be found online, and where it can additionally be inspected, and that there is no charge for access to either;

(d) specific additional arrangements (including, if the Minister considers it appropriate to do so in the interests of clarity, separate sets of regulations made under this section) in relation to MSPs that fall within section 16(3)(a), (b) or (c), and of consistent standard to paragraphs (a) to (c) of subsection (3).”.

Amendment put and declared lost.

Deputy Eoin Ó Broin

I move amendment No. 93:

In page 30, to delete lines 1 to 25 and substitute the following:

“(5) Where the Minister makes regulations under subsection (4), in addition to having regard to the other provisions of this Act, he or she shall also—

(a) act consistently with:

(i) the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1993;

(ii) Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC;

(iii) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment;

(iv) Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (Recast);

(v) Article 9 of the MSP Directive;

(vi) Article 10 of the MSP Directive,

and

(b) have regard to the following principles and policies:

(i) the opportunity to incorporate national and international good practices relating to public participation;

(ii) public participation in the process is inclusive;

(iii) the balancing of the administrative burden on the competent authority (M) and participants is considered, making use, where possible, of existing public participation processes and methods, while recognising any disproportionate burden on the public is neither desirable or permissible;

(iv) that public participation must be initiated at an early stage and continued throughout the development of MSPs;

(v) that appropriate use is made of a wide range of media to raise awareness to maritime spatial planning and public participation opportunities;

(vi) that appropriate use is made of information technology and is also accompanied by more traditional non-digital methods to ensure fair access is provided for;

(vii) particular additional requirements relating to MSPs that fall within section 16(3)(a), (b) or (c).”.

Amendment put and declared lost.

Deputy Eoin Ó Broin

I move amendment No. 94:

In page 30, line 2, to delete “have regard to” and substitute “shall comply with”.

Amendment put:

The Committee divided: Tá, 3; Níl, 6.

Tá

• Gould, Thomas.
• O'Callaghan, Cian.
• Ó Broin, Eoin.

Níl

• Burke, Peter.
• Duffy, Francis Noel.
• Flaherty, Joe.
• Higgins, Emer.
• Matthews, Steven.
• McAuliffe, Paul.

Amendment declared lost.

Deputy Eoin Ó Broin

I move amendment No. 95:

In page 30, to delete lines 30 to 35 and substitute the following:

“(6) In this section, “relevant document” means—

(a) a review of the NMPF in place at the time of enactment,

(b) an amendment or revocation of the NMPF in place at the time of enactment,

(c) a draft of a MSP that falls within section 16(3)(a), (b) or (c),

(d) a draft of a DMAP, or an amendment to or revocation of a DMAP.”.

Amendment put and declared lost.

Section 18 agreed to.

SECTION 19

Chairman

Amendments Nos. 96 and 97 are related and will be discussed together.

Deputy Eoin Ó Broin

I move amendment No. 96:

In page 30, to delete line 37.

I am confused by section 19(1) on page 30. It states, "This section shall not apply to a MSP to which Chapter 4 applies." Chapter 4 relates to "Laying of certain DMAPs before CPAs", not marine spatial plans, MSPs. Maybe I read it wrongly. It seems to me that it is an error in the Bill. If not, I am happy to withdraw the amendment.

On amendment No. 97, I will not repeat the long discussion that we had about the allegedly excessive nature of the Oireachtas oversight, scrutiny and decision-making but I want to make a point. I am not looking to fight the battle we had previously again. The Minister of State has said on a number of occasions and is right that the Oireachtas has an important role to play. The difficulty is that the Oireachtas and its committees are not always of the one mind. Many of us wanted to have a small amount of additional scrutiny of the national marine planning framework. We did not get it. We felt that was a limitation. That is at the discretion of the Government since the Government, unless it is a minority Government, controls a majority of votes when deciding to give time. While I am not in any way questioning the depth of the public consultation on the national marine planning framework, there are organisations that are on public record as having felt that, while they engaged, they were not necessarily listened to. That may or may not be the case. Not everybody can be listened to, heard and have their views incorporated all the time but it is much better if some form of Oireachtas engagement, oversight, scrutiny and decision-making is included for such important plans. I know the Minister of State will not accept this. He does not have to read out the same briefing note he had last time but I urge him to consider some greater level of formalised Oireachtas committee involvement in these developments because it would enhance the process.

When the national planning framework was being developed, the level of Oireachtas involvement was far greater, especially committee involvement. That was probably a reflection of the fact that it was a minority Government and therefore the negotiations with Government partners were different. My feeling as a committee member was that the committee did not have as much engagement with the national marine planning framework as we did with the national planning framework. Setting some of those things out in the context of MSPs and DMAPs in legislation would be a welcome thing for the Minister of State to consider.

Chairman

I thank Deputy Ó Broin. To clarify, as far as I can tell, the national marine planning framework was referred to the previous committee to look at.

Deputy Eoin Ó Broin

The final version was not.

Chairman

The committee scheduled that time. It did not allocate more time for it. Dáil time was made available for everybody. I just want to clarify.

Deputy Eoin Ó Broin

I am not looking to fight that again. It is slightly broader with this legislation.

Chairman

That was not a fight. The Deputy would be disappointed.

Deputy Eoin Ó Broin

I do not want my point to get lost. Those decisions have been taken. I am not looking to reopen them. I am saying that where the level of Oireachtas committee engagement is set out in legislation or by way of regulation, that would ensure that it happens. Where it is not set out, it is at the discretion of a committee, the Government or the composition of forces in the Oireachtas. Irrespective of where one stood on the amicable disagreement that we had previously, some of this should be specified more. That is clearly not an attempt to convince the Minister of State to support this terribly excessive amendment, as he called it, but we should have something better than we have at the moment.

Deputy Richard Boyd Barrett

Amendment No. 96 proposes to delete section 19(1), relating to a marine spatial plan to which Chapter 4 applies. It states that section 19 is not to apply to plans to which Chapter 4 applies, relating to the requirement to lay the intended development plan before the Oireachtas.

I would like to understand the rationale for that. I am guessing the Minister of State will say it is because it is the ones that are dealing with local authorities and where they intend to make plans. I would like to hear his explanation. I cannot see any reason to accept the requirement for the intention to make a marine spatial plan before the Oireachtas.

Regarding amendment No. 97, the Bill requires that an intention to make a marine spatial plan would be laid before the Oireachtas and will have regard for recommendations of any committee of the Houses of the Oireachtas, but it does not go as far as ours does in requiring that all committees be notified. That is quite important in that the impact of marine spatial plans can cross many areas. I suspect that many committees that might have an interest in the stuff we are discussing here are not even aware of how it may potentially impact them or for that matter how the national marine planning framework may impact things that are of concern to them. The requirement to alert all Oireachtas committees to any intention to make marine special plans is important so that they have the opportunity to give input into those and those inputs need to be taken seriously. There is a wider requirement for the public to be notified of any intention to make marine special plans. We should be thorough in ensuring that the public is made aware of that and has the opportunity to give input to such plans.

Deputy Peter Burke

There has to be a correction there in section 19: "MSP" should be "DMAPS" on page 30.

Deputy Eoin Ó Broin

We pay attention to these matters.

Deputy Peter Burke

Absolutely, and we work with Opposition Members.

Amendment No. 96 proposes to delete section 19(1) from the Bill. That subsection disapplies the Oireachtas approval procedure in respect of a specific subset of DMAPS set out in Chapter 4. I believe that the members may misunderstand the intention and function of this provision and may wish to withdraw the amendment following further explanation.

Chapter 4 is applicable to DMAPs where a local authority is the designated competent authority and the DMAP is within its proposed nearshore area. It could also apply to DMAPs where more than one local authority and nearshore is involved. Instead of Oireachtas approval, oversight and democratic legitimacy is provided by a vote in the local authority concerned. It is envisaged to be used in circumstances where a local authority may wish to develop a DMAP in parallel with county or local area development plans. There may be 31 county-based DMAPs and countless local plans. I do not believe that it is the members' intention that each single one be subject to Oireachtas approval. If accepted this amendment might mean the national Legislature does little else during its sessions.

We also need to be conscious of the message the Oireachtas would be sending to the local authorities by requiring both local and national democratic approval. In essence these Houses would be saying that a local authority cannot be trusted in terms of its jurisdiction.

Amendment No. 97 proposes revised procedures for Oireachtas approval. I believe that the measures set out in the Bill - early notification of the Oireachtas through the public participation statement - will enable Oireachtas engagement at a far earlier stage where any proposals made can influence and shape the development of plans. This will be far more effective and efficient than seeking to retrofit a plan towards the end of its development. The Oireachtas approval procedure set out in section 19 of the Bill is deemed sufficient.

Chairman

Is amendment No. 96 being pressed?

Deputy Eoin Ó Broin

Just to be clear, did the Minister of State initially say there was an error that needs to be corrected?

Deputy Peter Burke

Absolutely.

Deputy Eoin Ó Broin

I am happy to withdraw.

Amendment, by leave, withdrawn.

Deputy Eoin Ó Broin

I move amendment No. 97:

In page 31, to delete lines 1 to 12 and substitute the following:

“(2) Where the competent authority (M) proposes to make a MSP, he or she shall—

(a) cause a copy of the proposed MSP prepared under this section, to be laid before each House of the Oireachtas, together with any environmental assessment reports prepared thereon pursuant to obligations under the SEA Directive and the Habitats Directive, and associated consultation responses,

(b) notify each Committee and Joint Committee of the Oireachtas that—

(i) the proposed MSP have been laid,

(ii) any committee of the Oireachtas may submit a recommendation, report or proposed resolution in respect of the proposed MSP to the Minister and the Oireachtas, which must be considered before any motion to approve the proposed MSP is presented to either or both such Houses,

(iii) any member of the Oireachtas may submit a recommendation, report or proposed resolution in respect of the proposed MSP to the Minister and the Oireachtas, which must be considered before any motion to approve the proposed MSP is presented to either or both such Houses, and

(iv) the proposed MSP will not be made and have effect until—

(I) a motion approving it, has been passed by each Houses of the Oireachtas,

(II) a motion to amend it, has been passed by each House of the Oireachtas, with any associated revisiting of the environmental assessments necessary in the context, and

(III) until the proposed MSP has been subsequently published on a website of the Government,

and

(c) cause to be published on an appropriate website of the Government, and in two national newspapers in two consecutive weeks, and as soon as practicable after the proposed MSP, and assessments have been laid before the Oireachtas, a notice to the public that—

(i) such proposed MSP and associated assessments have been laid before the Oireachtas,

(ii) indicates the date on which they were laid,

(iii) any committee of the Oireachtas may submit a recommendation, report or proposed resolution in respect of the proposed MSP to the Minister and the Oireachtas,

(iv) any member of the Oireachtas may submit a recommendation, report or proposed resolution in respect of the proposed MSP to the Minister and the Oireachtas, which must be considered before any motion to approve the proposed MSP is presented to either or both such Houses, and

(v) any such proposed proposed MSP shall not have effect until—

(I) a motion is passed in favour of the proposal by both Houses of the Oireachtas, or

(II) the proposed MSP is amended further to a motion passed by both Houses of the Oireachtas, with any associated revisiting of the environmental assessments necessary in the context, and

(III) the approved proposed MSP are published on a website of the Government.”.

I am happy to withdraw with clarification of the DMAPs.

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 98 to 104, inclusive, 109 and 111 are related and will be discussed together.

Deputy Peter Burke

I move amendment No. 98:

In page 31, line 16, after “(5)” to insert “and (7)”.

I am just changing my folders.

Deputy Eoin Ó Broin

Does the Minister of State have folders-----

Chairman

He has a national marine planning framework.

Deputy Peter Burke

I am sure Deputies can get them if they head up to the stationery room.

Amendments Nos. 98, 104, 109 and 111 collectively provide that the competent authority "M" may also make DMAPs. This was the original intention but the text as initiated was inoperable in this regard. These amendments make the necessary disapplications and adjustments to procedures.

Amendment No. 98 is a technical amendment to enable amendment No. 104. Amendment No. 104 inserts a new section 20(7) to enable the delegation of responsibility for a DMAP to another competent authority "D" following its preparation and publication. This provision would enable another body to undertake a review of the DMAP in question.

Amendment No. 109 corrects a typographical error in section 24.

Amendment No. 111 sets out a new section 29 containing the technical revisions to the DMAP procedure necessary to enable preparation by the competent authority "M". These relate primarily to where the competent authority "M" had a procedural role regarding the preparation of a DMAP by the competent authority "D". It does not change the fundamental considerations or obligations in respect of making a DMAP. Proposal, publication, participation statement and Oireachtas approval all still apply.

Section 29(4) disapplies the designation procedure under section 20; modifies section 21 to allow the competent authority "M" to act as if it were the competent authority "D" and with the same obligations save that it does not have to approve its own proposal; modifies section 22(1) to allow for the publication of the DMAP proposal to serve in place of a designation under section 20; disapplies section 22(4) where a competent authority "D" could make a new proposal where the original was not approved; disapplies section 24 providing for oversight of the competent authority "D"; disapplies section 25(2) relating to section 24; disapplies section 26(2) relating to ministerial directives; disapplies section 28(4) relating to non-material amendments; and modifies 28(5) to provide for these changes.

I now turn to the remaining amendments in this grouping. Amendments Nos. 99 to 103, inclusive, collectively seek to limit who can be designated as a competent authority to Ministers of Government. Section 20 of the initiated text provides that any body that meets the definition of public body may be designated as a competent authority "D" to prepare a DMAP. This would be a severe restriction and would mean that a local authority would not be allowed to prepare a DMAP to align with its county development plan or local area plan. It would prevent bodies such as the Marine Institute, the EPA or even MARA to be designated.

We all want high-quality DMAPs that do all the wonderful things we have set out in sections 21 and 22. We all want those DMAPs to be developed in a comprehensive fashion. We all want that development process to have best practice participation. It is acknowledged that not every public body has the necessary capacity, competency or skill sets to prepare a DMAP and it is intended to be very mindful of these matters when designating. It should be noted that such designations would only be undertaken following an engagement process with the body concerned and, where relevant, its parent Department.

On review, we have inadvertently used too broad a definition of public body in respect of such a designation. As defined in the Bill it includes Ministers, local authorities and bodies established under enactment. It also includes companies. While appropriate in other contexts, it would not be appropriate for such a company to prepare a DMAP. I intend to propose a Report Stage amendment to so modify the definition of "public body" for the purposes of this section. The amendments proposed by the Deputies cannot be accepted. They may wish to withdraw these amendments in light of this further explanation.

Deputy Eoin Ó Broin

The Minister of State's amendments are quite helpful but given these very long amendments and the consequential amendments to different sections of the Bill, it would be helpful if we could introduce a little bit of plain English to the responses. That is not in any way criticising the Minister of State for reading the technical import of the amendments into the record because that has to be done. However, people sitting at home who have just listened to our series of conversations about the NMPF and the MSPs will be legitimately asking what a DMAP is and how it relates to the MSPs. I ask the Minister of State to provide us with some clarity on what a DMAP is likely to look like or involve, in terms of its geographical size, its sectoral import and whether it could be activity-related rather than geographical, etc.

Second, I would like the Minister of State to give us more clarity on the kinds of agencies we are likely to see designated by "M" as "D". I know that sounds like a James Bond movie but that is essentially what we are talking about here. I have no difficulty with a competent authority such as MARA being given a role but it is reasonable for the committee to get some clarity from the Minister of State because there is an intention here. I am speculating on this as much in the hope that the Minister of State will say I am wrong as that I am right. With respect to offshore wind, for example, could the competent authority be another Department that is responsible for regulation of energy? Would it therefore come under the Minister? Under what circumstances would MARA or a local authority deal with that? With local authorities it is a little bit clearer because they are more limited in their scope. Who is likely to be designated "D" by "M", or "M" by "D", and for what purpose? A little more information on that would help us to clarify and determine whether we press our amendments.

Deputy Cian O'Callaghan

Will the DMAPs provide for greater granularity and specification of an MSP? I ask the Minister of State to explain how the two interact. If the DMAPs are providing for further granularity and specification for an MSP, they will need to be developed consistently with the methodology requirements of the marine spatial planning directive and be properly approved by the Oireachtas. Will this happen?

Amendment No. 110 relates to mitigation measures, which are important. This amendment seeks to protect them and ensure that measures are included to avoid impacts on the integrity of European or Natura 2000 sites. The Bill allows for quite a lot of discretion and that could alter and affect mitigation and have an effect on the Natura sites so it is important to have this amendment. I previously referenced the importance of doing something like they have done in Scotland in terms of mitigation and renewable energy, where every licence contributes to the Scottish marine environmental enhancement fund. That is a good model of mitigation. There are other site-specific mitigation measures as well. That is what amendment No. 110 is about.

Deputy Peter Burke

For a body to be designated to bring forward a DMAP, it could be a Minister with responsibility for energy regulation, the NPWS if it relates to an ecological cycle or an area in which it has expertise, or the EPA. That is a snapshot of what type of body it may be.

I see the DMAP as a sub-national plan. It is like the terrestrial planning system for a county. There is the county development plan and underneath that, breathing life into the shared vision of the county development plan, is the local area plan. That may be around a town, an area or a community that tries to chart the development with key public participation of that community into the future that the members would vote on, where particular micro-pointed development would happen. That is on a more micro level and it is the same with the DMAPs. They breathe life again into the national planning framework. A DMAP is a more micro document that would be brought forward by an authority, as referenced, to try to give a more specific plan for that designated area. I refer to page 197 of the NMPF. I keep referring back to that document because it is so good. It states:

A DMAP will be a management plan for a specific area of our marine waters and can be used to develop multi-activity area plans; to promote use of specific activities; and/or for the purposes of the sustainable use and protection of particular marine environments.

Deputy Richard Boyd Barrett

As soon as this legislation is passed, can a public body seek to be designated? For example, if a local authority decided that it wanted a particular marine area, would that be limited to the nearshore area? If that area went beyond the nearshore, since it still had an interest could it request to be designated to develop this more localised form of plan? What happens if multiple public bodies have an interest in a particular area? How does that work? The Minister of State mentioned the energy regulator, heritage bodies and local authorities. They might all have interest in the same area and all wish to develop a DMAP for the same area or for areas that overlap. How will all that work? I ask the Minister of State to elaborate a bit on that. Can a body seeking to develop a DMAP for a particular area start to request designation to develop a DMAP as soon as this legislation is passed?

Deputy Cian O'Callaghan

As regards a Minister or a local authority doing this, they have a certain level of democratic accountability, but State agencies are a couple of steps removed in that regard. They can have accountability to Ministers and so forth but different State agencies, Ministers and Departments will come at this with different perspectives. Some could be particularly tied or may not be so neutral in how they look at this. Some could be very much geared towards one particular area, such as renewable energy or something like that. They could be looking at it just from that sphere and under this legislation they would have the ability to do the DMAP.

Does it not create potential concerns that they might not be neutral or that they might not look at the wider issues sufficiently although, obviously, they will do some of that? Does it also not create a bit of difficulty around competence and expertise in that it could be spread between too many different bodies and, thus, create a bit of inefficiency? Whereas some of these State agencies might have the competence and expertise in terms of marine biodiversity, others might not. Does that not create certain issues and, potentially, create a process where there could be some deficiencies? The Minister of State might address those points.

Deputy Peter Burke

On the application by a local authority for the nearshore or foreshore area, technically it could be both. With regard to different plans coming forward, we want to challenge agencies in the spirit of coexistence in our maritime area. It will be up to the relevant Minister to adjudicate on whether to permit the DMAP to go forward. Outside of the local authority system, a DMAP has to be approved by the Oireachtas. It is important to make that point.

Deputy Eoin Ó Broin

Is it by the Oireachtas or by the Minister?

Deputy Peter Burke

By the Oireachtas. Essentially, the Minister, as the competent authority, would adjudicate on the request where other agencies come forward. It is good to challenge agencies in terms of their competence in that spirit of coexistence in our maritime area. I think I have answered all of the questions.

Chairman

Does that satisfy Deputy Ó Broin?

Deputy Peter Burke

Once the Bill is enacted, the process of accepting proposals can start in theory.

Deputy Richard Boyd Barrett

What happens where different bodies have different interests or remits?

Deputy Peter Burke

The Minister would have to adjudicate on the matter.

Deputy Richard Boyd Barrett

The Minister would adjudicate.

Deputy Peter Burke

Yes. They would have to be consistent with the shared vision of the national marine planning framework.

Deputy Richard Boyd Barrett

On my question with regard to a local authority, I take the point that if it is beyond the nearshore area it has to go before the Oireachtas. Is it conceivable that a local authority could seek to be designated to develop a plan, even for an area that is outside of the near shore activity?

Deputy Peter Burke

Technically, it could.

Deputy Richard Boyd Barrett

It might well be the case that there would be two local authorities interested. Taking Dublin Bay as an example, there would be at least two Dublin local authorities that might have an interest in such a plan. How might that work?

Deputy Peter Burke

They could potentially come together.

Deputy Richard Boyd Barrett

Is that provided for?

Deputy Peter Burke

Absolutely.

Deputy Richard Boyd Barrett

Is it possible the local authorities and other bodies could come together to do a DMAP?

Deputy Peter Burke

There would have to be one agency or body that would lead the process and to collaborate and coexist with the other bodies that have a shared interest in that particular area. The Minister would have to make a determination as to the body that would lead the process.

Deputy Richard Boyd Barrett

Are semi-State agencies public bodies in that sense?

Deputy Peter Burke

Non-commercial agencies that are under the aegis of a Minister are public bodies for this purpose.

Chairman

I will allow questions now from Deputy Cian O'Callaghan followed by Deputy Ó Broin.

Deputy Cian O'Callaghan

This is useful in terms of clarifying the issue. We could have a State agency whose sole remit is to maximise the amount of renewable wind energy. Under this legislation, it would be perfectly okay for that agency to assume the role of preparing designated marine area plans. Am I correct that that could happen?

Deputy Peter Burke

I ask the Deputy to repeat the question.

Deputy Cian O'Callaghan

We could have a State agency whose remit is to promote, maximise and facilitate renewable wind energy in our seas and marine areas, which is a perfectly legitimate and valid remit, but it could then be entrusted with this role. While under this process it would have to consider other things beyond renewable energy, marine biodiversity and so forth, my concern is that its focus would not be on those areas.

Deputy Peter Burke

An agency or body cannot be singularly focused. It would have to go through all of the policies contained in the national marine planning framework. To develop a DMAP no agency or body can operate with a singular focus.

Deputy Cian O'Callaghan

I appreciate that. My concern is that the remit that drives the particular agency might be a singular focus. I appreciate that to participate such agency or body would have to go through a process but allowing for that in legislation does not appear to me to be the best process. I completely understand the local authorities having that role but not the State agencies. The fact that it could be any State agency is the bit that concerns me. I appreciate that the agency or body would have to seek permission to do it.

Deputy Peter Burke

It comes back to the Oireachtas as well.

Deputy Cian O'Callaghan

In terms of safeguards, an agency or body would have to get ministerial sign-off and the approval of the Oireachtas to initiate.

Deputy Peter Burke

Yes.

Deputy Eoin Ó Broin

I thank the Minister of State for the clarifications. I have read the section the Minister of State referred us to, but I am still not clear about the relationship between DMAPs and MSPs. My understanding of the text the Minister of State referred us to is that DMAPs are presented as regional or sub-regional action-type plans whether for single use or varied use. The Minister of State can correct me if I am wrong that we could have multiple marine spatial plans sitting underneath the national marine planning framework. Could we then have DMAPs which could crossover different MSPs? Is that possible?

Deputy Peter Burke

They would become part of the MSPs. They do not sit underneath it.

Deputy Eoin Ó Broin

They become part of it.

Deputy Peter Burke

Yes.

Deputy Eoin Ó Broin

In the review of the national marine planning framework, which covers the entire marine, you could have the development of an MSP that only relates to a part of the marine or you could have a series of consecutive MSPs that are contiguous. I presume the plan is to, over time, fill out all of the detail that is not yet there in the national marine planning framework with multiple MSPs. The boundary of a DMAP is not necessarily contiguous with any of that. It could be just a subsection.

Could you have a DMAP specifically related to the legacy projects for offshore wind prior to the establishment of MARA and MARA's process of consent to the planning authority or am I jumping too far ahead in terms of the function of DMAPs? I may have another question on that depending on the Minister of State's answer.

Chairman

I will allow a question from Deputy Boyd Barrett.

Deputy Richard Boyd Barrett

I would like first to hear the Minister of State's answer to Deputy Ó Broin's question.

Chairman

The answer might be incorporated into the Deputy's question. I am trying to make sure we are sticking to the same subject. Is Deputy Boyd Barrett's question not relevant to that point?

Deputy Richard Boyd Barrett

It----

Chairman

I am just trying to keep things moving.

Deputy Richard Boyd Barrett

I understand. I would not mind hearing the Minister of State's response. Is that okay?

Deputy Peter Burke

I will do my best. I will read the information I have on it. The Bill is to establish an updated marine spatial planning toolkit that will now include DMAP procedures. Step one is the enactment. As is the case elsewhere in the EU, national plans come first, followed by sub-national planning which may take many forms. Under the legislation, it is envisaged that over time there will be an ever-increasing body of DMAPs and they will all become part of the national marine planning framework. No decision has been taken on the form, location or extent of the first DMAPs. The focus is on enacting the necessary procedural toolkit set out in the Bill. Once the Bill is enacted, we will move on to the next phase and plan of the development.

Deputy Eoin Ó Broin

That is very useful but it does not answer my specific question.

On enactment, would it be possible, before MARA is set up and the formal process of maritime consent is initiated, that the Minister may decide to designate another Minister in another Department with responsibility, primarily, for offshore wind? That Department would, therefore, have a set of expertise in that area, with responsibility to lead a DMAP for the geographical, or sub-regional, area that currently incorporates the legacy projects. Is that possible and is it the Government's intention to do that?

Deputy Peter Burke

No. It is not the Government's intention. It is unlikely, but it is possible.

Deputy Eoin Ó Broin

Okay.

Deputy Richard Boyd Barrett

It is possible. Following on from that, as soon as this legislation is enacted there could conceivably be a massive race between various bodies to grab areas for DMAPs, depending on what their particular interests are. In fact, I am tempted to participate in that race in respect of certain areas. Is it a case of whatever body gets in first gets the area? If a particular Department, and the one mentioned is the very obvious one, states that it wants to get these projects through and it applies to be the competent authority for the development of that DMAP, which it might well do for that area, is it a case of "on your marks, get set, go" to grab particular areas? The local authority might state that it is concerned about the thing just out here, and that it is in a race against the Department that is primarily about advancing, for example, offshore wind. Is that the sort of scenario we could, potentially, face?

Deputy Peter Burke

No. We do not see it as a race. We see it as bodies that have to coexist in our maritime area and trying to achieve the best for it. All those bodies have to go through the rigorous and robust thresholds contained in the NMPF regarding all those areas. The Minister will have to make a determination on that, as will the Oireachtas, subsequently. There are significant safety catches in any decision that will be made.

Deputy Richard Boyd Barrett

Everything is in the NMPF. That is good on one level, but people might say that particular bits of the NMPF, such as the visual, tourism and heritage aspects, are in line with the DMAP they want for a particular area and they want to vindicate the objectives of the NMPF, but it might be, rather, precisely to prevent certain other types of usage taking place in particular areas. By the way, that might not be a bad thing, in certain cases. On coexistence, co-location and all of that, is it a requirement that every objective of the NMPF is in every DMAP for every localised area? Surely, it is not, because then there would be a requirement, for example, in every DMAP-designated area, to have a bit of this, that and the other thing, when it might not be suitable in certain areas to do certain things as against other things. I ask for a little clarification on that.

Deputy Peter Burke

There is detailed clarification in section 32, but every application would have to be assessed against the conditions set out in the marine planning framework. It is not that we will have one sector in the maritime area, at the cost of all other users or all other conditions. The Minister will have to make a determination based on the shared vision for the NMPF, policy, that the proposal meets the threshold on the requirements and that it is good policy for our maritime area. The Oireachtas will make a determination subsequent to that.

Chairman

I will allow Deputy Ó Broin to follow up. I will then put the amendment.

Deputy Eoin Ó Broin

I will not make a comment. I just have questions. I ask the Minister of State to return to my first question on the relationship between an MSP and a DMAP. I am not clear about that because it is not explained on page 197 of the NMPF.

With respect to section 23, the instigation of a DMAP, or the appointment of a public body for the purposes of drafting it, would constitute, essentially, the beginning of a review of the NMPF, if it came before a MSP, for the purpose of the public participation statement. Is it likely, however, that a DMAP would come first or is it more likely that a marine spatial plan will? It is just a technical question.

On section 25, the Minister of State is correct in stating that a report will be laid before the Houses of the Oireachtas for approval. Is it the intention, or hope, of the Minister of State with this legislation that the Oireachtas Business Committee will refer it to the relevant committee for consideration as we do, for example, with other planning matters? On foot of that, there would be a motion for approval, with or without debate. Does the Minister of State envisage a role for the relevant committee, depending on what agency is developing the DMAP?

Deputy Peter Burke

It is open to any committee, in theory, to have a query or say on the DMAP, or consideration of it.

On the Deputy's question regarding the instigation of a DMAP, each one would have its own separate public participation statement. Again, in the first instance, the DMAP is on a more micro level. The NMPF sits at the top of the tree, with the policy statement on top of that. We then get to a more micro area that has been designated for activity or activities as outlined in the relevant NMPF section or, for whatever other reason, the Minister may make an assessment on an application that comes before him or her. The Oireachtas will have to determine thereafter. It is on a more micro level and it then becomes part of the MSP.

Deputy Eoin Ó Broin

In the context of the use of the word "MSP", does the Minister of State mean the NMPF?

Deputy Peter Burke

Yes. It is the NMPF.

Deputy Richard Boyd Barrett

When the Minister makes the adjudication, if there are different people who have an interest in being the competent authority, does he or she have to take that discussion on the adjudication into the Oireachtas? Does the Minister have to consult the Oireachtas or the relevant committee before making an adjudication? If, for example, the National Parks and Wildlife Service is looking to do a DMAP and another Department is looking to be the lead body, or there are a few bodies and the Minister has to make that adjudication, does the Minister just make that decision or does he or she have to consult with the Oireachtas at some level?

Deputy Peter Burke

The Minister would make the decision based on the quality of the proposal and how it meets the requirements of the NMPF. He or she would also encourage other bodies that coexist to come together in line with the policy requirements that are in the NMPF.

Deputy Richard Boyd Barrett

Not necessarily consult-----

Deputy Eoin Ó Broin

Could there be more than one body?

Deputy Peter Burke

No. It is one body but it is about feeding into it.

Amendment put and agreed to.

Chairman

We are out of time. We will reconvene with discussion of amendment No. 99.

Progress reported; Committee to sit again.

The select committee adjourned at 6 p.m. until 9.30 a.m. on Thursday, 4 November 2021.