Special Committee Wildlife Bill, 1975 díospóireacht -
Tuesday, 15 Jun 1976

SECTION 12.

Question proposed: " That section 12 stand part of the Bill."

Mr. T. J. Fitzpatrick (Cavan)

This section is aimed at imposing a degree of control on (a) other Government Departments and (b) certain public bodies, that is, local authorities, Commissioners of Public Works and certain State-sponsored bodies and companies whose activities could be detrimental to State or privately owned nature reserves, sections 15 and 16; refuges for fauna, section 17; or lands which become the subject of management agreements, section 18.

As regards semi-State bodies and so on, however, it is not the intention that the section would automatically apply to all those covered by subsection (1) (c); it will in fact only apply to such of them as the Minister, under subsection (4), specifies at any time.

Subsection (2) is the kernel of the section in that it obliges Departments of State, other public authorities and relevant semi-State bodies—

(a) to consult the Minister before deciding on doing anything which is likely or liable to affect adversely the areas of special wildlife values mentioned above and

(b) to take all practicable steps to avoid or minimise the effect of such action.

Mr. Haughey

Again in subsection (3) you are caught in the middle of this very desirable section. Section 12 is of course a very desirable section, but unfortunately to a very large extent subsection (3) vitiates it. For instance, as Deputy Tunney pointed out, the Commissioners of Public Works carrying out arterial drainage could do irreparable damage. Subsection (2) does not apply to that.

Mr. T. J. Fitzpatrick (Cavan)

It is covered later on in another section of the Bill.

Mr. Tunney

But it is " need only consult the Minister" there too.

Mr. Haughey

Quite seriously why are the Commissioners and arterial drainage taken out? Subsection (2) (a) is not a very Draconian section.

Mr. T. J. Fitzpatrick (Cavan)

If the Deputy refers to section 43 he will find that it deals with land drainage schemes. I suggest that we deal with that when we come to it.

Mr. Tunney

The Minister said they would consult if the Minister would consult with them. If they do not agree the Minister cannot force them to do anything.

Mr. T. J. Fitzpatrick (Cavan)

Things will be improved as a result of the consultation.

Mr. Tunney

For example, unless civil servants are required to do something they will not do it.

Mr. T. J. Fitzpatrick (Cavan)

For example, it would be quite unreasonable if the Commissioners of Public Works announced that they were going to drain the Shannon and I said " You cannot do it".

Mr. Haughey

We cannot discuss section 43 at this stage but it seems to me that it is very limited in scope. It says:

. . . in respect of an area which includes land to which an establishment order, a recognition order or a designation order applies, or land to which an agreement made under section 18 of this Act applies, . . .

It is only in those cases the Commissioners need consult. That does not answer my question.

Chairman

It goes a little further, Deputy. It says: . . . and take all practical steps . . ."

Mr. Haughey

It is only in respect of those areas.

Chairman

Yes, but this is the one you are talking about.

Mr. T. J. Fitzpatrick (Cavan)

Those are the vital areas.

Mr. Haughey

They need not necessarily be. Arterial drainage is of enormous impact. What is happening here is that the Minister in section 12 is excluding arterial drainage from the safeguards which section 12 laid down, including the Commissioners of Public Works as far as arterial drainage is concerned; and in reply to my complaint in that regard the Minister refers me to section 43, which only deals with certain restrictive areas.

Mr. T. J. Fitzpatrick (Cavan)

I have been plain and blunt about that, Deputy. I would not ask the House to give me the right to veto arterial drainage schemes in any shape or form. That would be going a bit too far. I do not think it would be in the interests of the country or in the interests of getting the proper atmosphere for conservation of wildlife.

Mr. Haughey

There is no question of the House or of this Committee vetoing arterial drainage schemes. I am only asking the Minister why the safeguards in section 12 are not being applied to arterial drainage.

Mrs Hogan O’Higgins

Could you apply it to them.

Mr. Haughey

As I understand it, before an arterial drainage scheme is embarked upon there is a long rigmarole of statutory procedures that have to be gone through, including public inquiries. In those circumstances why can the Minister for Lands not have a function in arterial drainage?

Mrs. Hogan-O’Higgins

In practice, has he not? In the past arterial drainage has done enormous damage to wildlife. I think that if you are going to drain you have to choose between the two.

Mr. Haughey

I am quite certain that arterial drainage can be carried out in a way consistent with the preservation of wildlife. In fact, in so far as the matters arise, I think, by and large, the Office of Public Works so far have done a very good job.

Mrs. Hogan O’Higgins

They have, and they still do.

Mr. Haughey

I know of places where they have gone to great trouble to restore fisheries which they damaged in the course of arterial drainage.

Chairman

I have had practical experience of this. We have drained a thousand acre site and a two thousand acres site and I am advised that we have not interfered with the wildlife, because it is being done in consultation.

Mr. Haughey

Was it a slob land?

Chairman

No, it was where a lake was being drained.

Mr. Haughey

I remember a case where there was a big land reclamation scheme going on and the way we got over the difficulty was that we suggested to the Minister and to the Department that they buy portion of this land, which they fortunately did.

Mr. T. J. Fitzpatrick (Cavan)

That is the very sort of consultation that I envisage under this Bill.

Chairman

That is what is actually taking place to date. The Minister is only really giving statutory recognition to it.

Mr. T. J. Fitzpatrick (Cavan)

The Commissioners for Public Works are in here, unless in relation to the Arterial Drainaige Acts, 1945 to 1955. Arterial drainage is a very expensive operation and the Commissioners for Public Works cannot be prevented from drawing up an arterial drainage scheme without consulting and being unduly influenced by the Department of Lands in respect of every little section of a river or anything.

Mr. Haughey

The Minister is over-simplifying this. At the moment there is a fairly detailed procedure to be gone through before an arterial drainage scheme can be proceeded with. It is not as if we were going suddenly to impose all sorts of restrictions and limitations on arterial drainage. They exist already, and the Commissioners of Public Works have to satisfy them.

Mr. T. J. Fitzpatrick (Cavan)

Indeed the Department of Lands have to clear certain drainage schemes at the moment even as they stand.

Mr. Haughey

Why then is the Minster excluding them from section 12?

Mr. T. J. Fitzpatrick (Cavan)

I am excluding them from section 12 because they are specifically catered for in section 43.

Chairman

It is interesting to note the sanction that is there in subsection (2):

. . . take all practicable steps to avoid or minimise such effect or interference.

Those are the people who are not excluded. We agree that that is right. If you look at section 43 you will see the same words imported in there. So in fact it comes back to it again. I do not know why it is done that way. There is, the same sanction provided in section 43; it is just that they are taken as a separate category. There is some slight enlargement of it but the same vital words are there.

Mr. Haughey

It is taking arterial drainage out of the provision of this section and giving it a separate section which is a much more restrictive provision.

Chairman

I would not be too worried about it.

Mr. T. J. Fitzpatrick (Cavan)

If I may summarise the two sections. In another section of the Bill I will be setting aside various important areas of wildlife habitats, and section 12 and 43 are designed to ensure that there will be a minimum of interference with those habitats. That is a big step forward. There are various sections setting aside refuges and habitats in general. Deputies should bear in mind that up to now no protection has been afforded to wildlife habitats as such. The effect, broadly speaking, of sections 12 and 43 is to preserve them.

Mr. Haughey

What is the difference between section 12 and 43 in so far as the Commissioners and arterial drainage are concerned? Why is it deemed necessary to take them out of the ambit of section 12 and have a special section to themselves unless, as I suspect, the Minister does not want them to come under the same provision?

Mr. T. J. Fitzpatrick (Cavan)

Frankly, I did not come in here to try to push this through in any unreasonable way, or to conceal the effects of it. Section 12 (2) (b) obliges the Minister to take all practicable steps to avoid or minimise such effect or interference. Section 43 says: ". . . and take all practicable steps including, where appropriate, the limitation of the drainage scheme to minimise or avoid such effect or interference." One is as broad as the other. In fact, if anything, section 43 is stronger.

Mr. Haughey

Obviously the Minister had some purpose in taking them out. First he took out the Minister for Local Government. We will not argue very much about that. He took the Commissioners of Arterial Drainage out of the provisions of section 12 and put them into section 43. What was his motive in doing that?

Mr. T. J. Fitzpatrick (Cavan)

Section 43 deals with an area which includes land to which an establishment order, a recognition order, or a designation order applies.

Mr. Haughey

So it is more limited.

Mr. T. J. Fitzpatrick (Cavan)

It is limited. It is more effective in a limited way, if you know what I mean.

Mr. Haughey

That is the very point I made at the beginning. When I complained the Minister was taking the Commissioners of Arterial Drainage out of the provisions of section 12 he said: " Yes but look. They are under section 43." At that time I said to the Minister, through the Chair: " Section 43 is limited to these areas." That is the position. That is why he took them out of the general provision.

Mr. T. J. Fitzpatrick (Cavan)

I have given it more teeth in a limited way.

Mr. Haughey

I want to make a final point. At the moment the Commissioners of Public Works have a certain job to do. There are certain informal consultation arrangements. The Commissioners of Public Works feel fairly strongly that they are responsible for arterial drainage schemes which affect fisheries and other things. They consult more or less gratuitously at the moment. That is a reasonably satisfactory situation. I see this danger and I want to put it to the Minister. If that informal free and easy consultation type of arrangement which exists at the moment and gives us some protection is gone, and is supplanted by statutory arrangements, we may lose out. We may lose the benefits of the informal approach of the different bodies and they may confine themselves strictly to their statutory obligations under this Bill. Therefore, we might be worse off than we were if our statutory provisions are not strong enough. Do I make my point?

Chairman

Section 12 is fairly strong.

Mr. Haughey

A body like the Office of Public Works might be more forthcoming when there is not a statutory obligation.

Mr. T. J. Fitzpatrick (Cavan)

I would not see it that way. They are sections of a Department of State. If the Deputy looks at section 12 (2) he will see: ". . . Take all practicable steps to avoid or minimise such effect or interference." If he then goes to section 43 he will see: ". . . and take all practicable steps including, where appropriate, the limitation of the drainage scheme to minimise or avoid such effect or interference."

Mr. Haughey

The wording is practically the same.

Mr. T. J. Fitzpatrick (Cavan)

It is stronger in section 43.

Mr. Haughey

It is the more limited area.

Chairman

Sometimes the Commissioners are working in an area and some private individual brings a matter to their notice. Under this section they are put on notice themselves. Very often it is discovered by accident in some of these cases that there is some danger to wildlife, flora and fauna in the area. This is my experience of it.

Mr. Haughey

I suppose we have discussed it long enough. I am still not satisfied that the general provisions of section 12 should not apply to the Commissioners or Arterial Drainage the same as anybody else.

Mr. L’Estrange

Surely the Deputy will agree that, if the Bill is to be a success, there must be consultation and co-operation between Government Departments and land owners, and that common sense should prevail. For instance, Bord na Móna who do invaluable work may create silt which kills fish. The Office of Public Works ruined some fishing beds when they were cleaning some rivers. I am sure common sense will prevail.

Mr. Haughey

If common sense prevailed we would not need legislation. That is an Utopian view.

Question put and agreed to.