Special Committee Wildlife Bill, 1975 díospóireacht -
Thursday, 1 Jul 1976

SECTION 40.

Question proposed: " That section 40 stand part of the Bill."

Mr. T. J. Fitzpatrick (Cavan)

The special provisions relating to burning of vegetation near prime conservation habitats were made under section 39. The object of section 40 is to restrict the destruction of vegetation, whether by burning or otherwise, during the breeding and nesting season for fauna. Section 28 of the Game Preservation Act, 1930, being repealed, contains corresponding provisions relating to game but these are now being expanded and the period from 1st April to 14th July extended to meet the broader conservation purposes of the Bill which embrace all wild bird species, including game, and certain mammals. There are liberal exemptions, mainly in the interests of agricultural activities, provided the method of destruction excludes burning. The requirement under the 1930 Act that written Garda permission be obtained prior to destruction of vegetation is being dropped as being unnecessary, having regard to the clearly defined exceptions.

The section primarily aims at controlling the burning of heather, so as to eliminate as far as possible the destruction of ground-nesting bird species and their habitats during the breeding season. Now here we are restricting the right of destruction of vegetation, whether owned by the person who destroys it or otherwise, and we are limiting that within certain periods, from 15th April to 31st August, and, as I said, there are liberal exemptions given in subsection (2) in the interests of agriculture.

Chairman

Looking at the very last part of subsection (2) I understand burning is out altogether even outside that period unless it is licensed or permitted by some other section.

Mr. T. J. Fitzpatrick (Cavan)

The idea in excluding burning is that it is so indiscriminate and so hard to control once it starts.

Chairman

Can I just put one matter to you, Minister? Possibly your experts could advise you on this. I am dealing with flora now. Certain flora could be badly damaged and might be annihilated by allowing destruction after 15th August and prior to 15th April because not all plants germinate or grow during a specific period. I would be interested to know whether your Department had any representations about that end of it.

Mr. T. J. Fitzpatrick (Cavan)

As I understand it, the section we are dealing with now is a general section. The very rare species you have in mind, Chairman, will be protected under other sections.

Chairman

In other words, it does not preclude your power to protect. That is all right then.

Mr. Tunney

The only thing which I want to say about the section—and the Minister, in the course of his remarks, used this word on at least two occasions—is with regard to the word "liberal". The liberality of subsection (2) is such as to neutralise the effect of the whole section. Why would anybody be destroying, cutting or grubbing except in the interests of agriculture? If you allow that exemption you need not have the section at all.

Mr. T. J. Fitzpatrick (Cavan)

Burning is not permitted within the exemptions in subsection (2), to begin with. If that was not there people might want to burn a whole mountain just for the fun of seeing a blaze.

Mr. Brennan

This is the section where the practical farmers take issue with the sportsmen. Land which is neglected usually produces unwanted grasses and shrubbery and automatically becomes a rather attractive place for fauna and can become a sanctuary as a result of neglect. When a new owner moves in, or when a son inherits the land his ambition and objective is to reclaim the land that has been neglected for years and destroy the entire overgrowth that has resulted from bad husbandry down the years. That is likely to be stopped under the terms of this Bill.

Mr. T. J. Fitzpatrick (Cavan)

I find myself now having to try and satisfy Deputy Tunney and Deputy Brennan.

Mr. Brennan

I was coming to Deputy Tunney's point.

Mr. T. J. Fitzpatrick (Cavan)

If we read the Bill carefully we will see that both the Deputies' cases will be met in the section, because we are only prohibiting the destruction of vegetation between 15th March and 31st August. That is the period when birds are nesting and animals are giving birth to their young. Everybody can go bird-watching to their heart's content on their own land outside that period.

Mr. Tunney

If he burns during that period and claims that he did so in the interest of agriculture?

Mr. T. J. Fitzpatrick (Cavan)

No, he cannot burn during that period in the interests of agriculture. Subsection (2) of section 40 reads:

Subsection (1) of this section shall not apply in relation to—

(a) the destroying, in the ordinary course of agriculture or forestry, of any vegetation growing on or in any hedge or ditch;

(b) the cutting or grubbing of isolated bushes or clumps of gorse, furse or whin or the moving of isolated growths of fern in the ordinary course of agriculture;

(c) the cutting, grubbing or destroying of vegetation in the course of any works being duly carried out by a Minister of State or a body established or regulated by or under a statute;

(d) the destroying of any noxious weed to which the Noxious Weeds Act, 1936, applies;

(e) the clearance of vegetation in the development or preparation of sites on which any building or other structure is intended to be provided;

(f) the removal or destruction of vegetation required by a notice served by the Minister under section 62 (1) of the Act of 1946 to be removed or destroyed;

but this subsection shall not operate to exclude from subsection (1) of this section anything done by burning.

Mr. Brennan

Isolated bushes.

Mr. T. J. Fitzpatrick (Cavan)

Yes, isolated bushes.

Mr. Brennan

The exemptions in these subsections, the extent to which the drafters of the legislation are leaning over backwards is in itself indicative of their consciousness of this. This can be operated against the interests of farming. It is all right to say that this has never been done, but under this section if the Minister wanted to he could prevent a man from cutting his hay.

Mr. T. J. Fitzpatrick (Cavan)

No, Deputy. I cannot see anybody cutting hay before the date that is mentioned here.

Mr. Brennan

He cuts his hay between March and August.

Mr. T. J. Fitzpatrick (Cavan)

Yes. but he can cut away as long as he does not burn.

Mr. Brennan

It should not operate to exclude it. The destruction of vegetation on uncultivated land is restricted. If a farmer moves in before 15th March to reclaim his land, you do not get him then; it may be a sanctuary or a habitat for fauna. However, he reclaims and seeds the land and then you can get him when he goes out to cut——

Mr. T. J. Fitzpatrick (Cavan)

No, because it is in the course of cultivation.

Mr. Brennan

It is the most dangerous section for the farmer. Subsection (1) of section 40 states:

It shall be an offence for a person to cut, grub, burn or otherwise destroy, during the period beginning on the 15th day of April and ending on the 31st day of August in any year, any vegetation growing on any land not then cultivated or in course of cultivation for agriculture or forestry.

Mr. T. J. Fitzpatrick (Cavan)

In the course of cultivation.

Mr. Brennan

It could prevent a man from reclaiming his land. If you want to pursue it, the Minister must admit——

Mr. T. J. Fitzpatrick (Cavan)

No. Deputy Brennan is making two cases. He is saying that it can prevent a man from cutting his hay, and I do not accept that.

Mr. Brennan

That is an extreme example.

Mr. T. J. Fitzpatrick (Cavan)

I do not accept that. I also cannot accept that it can prevent a man from reclaiming his land. What we are doing under this section is only between 15th April and 31st August, which is the nesting and breeding season. Burning will be feasible from 1st September to 14th April in each year, and therefore the need for burning vegetation in the course of agriculture, forestry, game development or other operations is reasonably catered for without interfering to any appreciable extent with the breeding or nesting habits of fauna. I agree that there must be a balance here if this Bill is to be successful, and that is what I have been arguing all along. I believe we have a reasonable balance here. This Bill, as Deputy Brennan will know from his experience, was submitted to the Department of Agriculture and Fisheries and vetted by them and they do not see anything objectionable in it.

Mr. Brennan

It is a question of whose side you are on. We do know that there is a good deal of conflict between the interests of sportsmen and ornithologists and the farming community. A farmer, at the moment, has enough regulations to conform to. He would want to have a copy of this Bill on his mantelpiece so he could look at it every morning before he goes out to see what he can do.

Mr. T. J. Fitzpatrick (Cavan)

This has been there for the last several years. The dates have been changed slightly.

Mr. Brennan

This section was amended in the Seanad. Could I ask the Minister why it was not amended before that? The whole year was open for it.

Mr. T. J. Fitzpatrick (Cavan)

No.

Mr. Brennan

The amendment does not quite make sense.

Mr. T. J. Fitzpatrick (Cavan)

Heretofore it was the 1st of April to the 14th of July, and we have now made it the 15th of April to 31st August.

Mr. Kitt

In the Seanad when the Bill was introduced the dates read from 18th March to 31st July. It is the same number of days. We have gone from April to August. I should like to ask the Minister if he has received any representations from people interested in conservation with regard to those dates.

Mr. T. J. Fitzpatrick (Cavan)

We received no representations since, but we received representations before the amendment was made. The amendment was made as a result of those representations.

Mr. Kitt

I should like to make the point that many people in gun clubs in Galway pointed out to me that the mallard hatches out from mid-March to mid-April and they were anxious that the date should be put back to 1st April again. I wonder if the Minister has received any representations with regard to the date which has been changed since the Bill was introduced in the Seanad.

Mr. T. J. Fitzpatrick (Cavan)

I am told complete agreement on the new dates was reached with the National Association of Regional Game Councils.

Mr. Brennan

I could see that from the submissions made to us when they were lobbying. Would the Minister not consider putting in a subsection here saying that nothing in this section shall interfere with a farmer in the pursuit of his normal agricultural activities?

Mr. T. J. Fitzpatrick (Cavan)

I said that and I would argue that subsection (1) means that. Subsection (1) provides:

It shall be an offence for a person to cut, grub, burn or otherwise destroy, during the period beginning on the 15th day of April and ending on the 31st day of August in any year, any vegetation growing on any land not then cultivated or in course of cultivation for agriculture or forestry.

Mr. Taylor

I am firmly convinced that, as it is worded, there is a serious danger that it would be an impediment to the additional cultivation by a farmer of land which it is necessary to reclaim. It appears to me that it would need some amendment to allow that farmer the necessary freedom to do the work he considers necessary at a time when he is free to do it and which is not being cultivated for agriculture and forestry. The limitations seem to be coinciding with the period in which that particular landowner farmer would normally do this type of work.

Mr. T. J. Fitzpatrick (Cavan)

What work has the Deputy in mind?

Mr. Taylor

Any type of reclamation done on land not cultivated either for agriculture or forestry purposes. That is the type of land being brought into production. That is the type of land on which it is necessary to do the work at a particular period of the year. It is necessary to introduce an amendment to allow them to do it.

Chairman

What about subsection (2) (a)?

Mr. T. J. Fitzpatrick (Cavan)

Subsection (2) (a) which states:

. . . in the ordinary course of agriculture or forestry, of any vegetation growing on or in any hedge or ditch.

Mr. Taylor

It states specifically " not then cultivated . . . for agriculture or forestry ".

Mr. T. J. Fitzpatrick (Cavan)

You have to read both subsections together. Subsection (2) says:

Subsection (1) of this section shall not apply in relation to——

(a) the destroying, in the ordinary course of agriculture or forestry, of any vegetation growing on or in any hedge or ditch.

Mr. Tunney

There is some confusion in the interpretation.

Mr. Brennan

This refers to hedges or ditches.

Mr. Tunney

We must be concerned that we are dealing with legislation here that refers to conservation. We must accept that. I go back to what I said earlier. I remember some years ago in the course of my employment we gave grants to farmers for the purposes indicated here. I am not sure whether these grants still continue. A good farmer would have attended to the duties to which Deputy Taylor and Deputy Brennan referred before this date. I am directing my thoughts now solely to conservation, the very raison d’�tre of our being here at all. That is foremost with me. It is a pity—and here I agree with Deputy Kitt—that we are stipulating the 15th day of April. I said on another section that with the change in climatic conditions there is a general change in the life cycle. I should like to see a date earlier than the 15th. I have not the same knowledge of the flora situation but I have noticed that birds seem to be mating and nesting before 15th April. I do not think it is wise to pin ourselves to this date.

Mr. Kitt

To follow up that point, the Minister has not yet told me why the date was changed.

Mr. Brennan

To give the farmer a chance to live.

Mr. T. J. Fitzpatrick (Cavan)

We have a conflict here between those who say we should go all out for conservation and those who say agriculture should be our first consideration. I have to try to hold a balance and I respectfully say that is what I am doing. This section will not unreasonably interfere with any reasonable farmer in the pursuit of his agricultural activities. With regard to the point raised by Deputy Kitt as to why 15th April has been substituted for 18th March, I can only say that was done after consultation between the wildlife experts in my Department and the National Association of Regional Game Councils.

Mr. Kitt

They must have given reasons.

Mr. Tunney

If the experts are indicating that mating and bird nesting do not commence before 15th of April they are wrong.

Mr. T. J. Fitzpatrick (Cavan)

I am told one consideration was the improvement of grouse habitat and that this grouse habitat can be improved by burning the heather up to the date specified in the section.

Mr. Kitt

What would the Minister and his advisers say to the points made as regards the mallard and the pheasant?

Mr. T. J. Fitzpatrick (Cavan)

This is all very technical but I am told the earlier hatched birds have very little effect on the adult bird population in general. The later hatched birds are more important. As I said already, the dates were agreed in discussions with game and other interests. As regards mallard and pheasant, substantial numbers are hand-reared and I understand the provisions of the section will not hamper this operation.

Mr. Brennan

The main food for grouse is the early sprouts of heather. Burned heather produces these. The Minister has now made it known that the change of date is actually in favour of the whole spirit of the Bill, not the farmer.

Mr. T. J. Fitzpatrick (Cavan)

It happens to coincide.

Mr. Brennan

The Minister said we must strike a balance between the purpose of this Bill and the interests of farmers. We are all interested, I hope, in grouse and game preservation and in sport and all that derives from it. After all, the land belongs to the farmer and everything in this Bill is an encroachment and a trespass on him. He is rapidly reaching the stage where he will not know whether it is or not. We bring in so many regulations but when we talk about striking a balance we must remember, in the first instance, that the farmer's land is his. He is obliging us by letting us have legislation to ensure that he cannot do this, that or the other, in the interests of the preservation of game, flora and fauna.

Mr. T. J. Fitzpatrick (Cavan)

The sentiments expressed by Deputy Brennan are my sentiments. I expressed them on a number of occasions since we went into the Committee Stage of this Bill and the record will show that. I am setting out to put on the Statute Book a measure that will conserve wildlife in a reasonable way. In doing that, I realise I must have regard to the bread and butter activities of the people of this country. I must have regard to agriculture. I must have regard to industry. I must have regard to tourism. I am satisfied that the section we have here has due regard to all that, and is not putting any unreasonable burden or obstruction on the farmers. If it were, I would not be a party to it. If I were to adopt a big stick attitude towards the agricultural community we would not get anywhere with this Bill.

Mr. Brennan

When we make aesthetic provisions we are inclined to forget that the farmer has a precarious livelihood. The lands affected by this are rough pastures of poor farmers.

Mr. T. J. Fitzpatrick (Cavan)

We could go to the other extreme and scrap the measure and say we are not interested and allow a free for all.

Mr. Brennan

I do not mean that.

Mr. T. J. Fitzpatrick (Cavan)

Very few people will want to be burning vegetation within the prohibited period. It would be undesirable that they should. They would not know where the fire would end.

Mr. Brennan

It is sailing dangerously close to the wind. We should put on record that it is really encroaching on the rights of the owner of the land as to what he can do with his own land.

Mr. B. Desmond

I thought the Deputy's party believed the land of Ireland belonged to the people of Ireland, and that it was held in trust by individuals.

Mr. Brennan

That is a marxist doctrine.

Mr. B. Desmond

I am talking about Fianna Fáil's first programme in 1926.

Mr. Brennan

Settle as many people as possible on the land.

Mr. B. Desmond

I have been reading recently their celebratory proceedings and various statements. I have read them over the years. My father was a founder member of that party in 1926. They very clearly said the land of Ireland belonged to the children and people of Ireland and was held in trust by individuals.

Mr. Brennan

We said no such thing. We are opposed to the encroachment of the marxist doctrine on land.

Chairman

Could we get back to the relevant section?

Mr. Taylor

We are becoming frivolous.

Mr. Brennan

There is not one in the room who has an interest in the farmers.

Mr. B. Desmond

That is an introverted rural remark.

Mr. Taylor

There are other farmers here.

Mr. T. J. Fitzpatrick (Cavan)

I resent Deputy Brennan's remark. Some of our roots are very far down in agriculture. I would not be a party to anything that was using a big stick to beat the farmer or to restrict his rights in an unreasonable way. I would not be a party to that for one moment. It is true there are certain things nobody can do on the land. Private rights are restricted. If a person lights a fire on his land and it damages somebody else he is liable for it. If an animal on his land gets out and does damage, he is liable for it. I am reasonably satisfied that, in the section as now presented to the Committee, we have achieved a satisfactory arrangement and a good balance. However, I have listened to everything Deputy Brennan and others have said here and I am prepared to consider them seriously before Report Stage. I do not think I will be making any changes but, if I consider changes are necessary, I will make them.

Mr. Brennan

Under this section if St. Patrick came to Ireland now he would be prosecuted for lighting his fire.

Mr. T. J. Fitzpatrick (Cavan)

And he would have been prosecuted by Deputy Brennan's party.

Chairman

We have discussed this section enough.

Mr. J. O'Leary

I wonder does the exemption contained in subsection (2) (a) go far enough: ". . . in the ordinary course of agriculture or forestry, of any vegetation growing on or in any hedge or ditch." What about land?

Chairman

That is already included.

Mr. T. J. Fitzpatrick (Cavan)

That is one of the things we will be having a look at between now and Report Stage.

Mr. Brennan

I believe if a good occupier has slobland which is overgrown, or land he wishes to reclaim——

Chairman

Is the section agreed?

Mr. Brennan

No.

Question put and declared carried.