Thursday, 5 April 1979
Seanad Eireann Debate
An Cathaoirleach: Before we take up consideration of the Committee Stage of this Bill, I should indicate that amendment No. 1 in the name of Senator FitzGerald is out of order as it is not permissible to insert a Preamble in a Bill which did not contain a Preamble when initiated.
Mr. Alexis FitzGerald: It must be many years since that ruling was given, and I would be interested if the Chair would tell us the basis for the ruling.  How many years ago did a Member table a proposal to introduce a Preamble to a Bill and for what reasons did the Chair at the time rule it out of order?
An Cathaoirleach: It is not usual for a Senator to object to a ruling of the Chair, but if there is any matter the Senator wants to discuss regarding the question raised by him he can do so in the office.
Mr. Alexis FitzGerald: With respect I accept the Chair's ruling. There is no question of that whatever, but I am entitled to ask for enlightenment. A Bill has been circulated, it will be discussed by the Committee of the House, which is what we are. My docility before the Chair would become greater if I knew the reasoning behind the Chair's ruling, which I am sure must be based on a precedent.
An Cathaoirleach: The Chair appreciates the concern of the Senator, but it is not the practice to question the ruling of the Chair in the House. As the Chair has already said, we would like to facilitate the Senator in the office if there are questions regarding this.
Mr. Alexis FitzGerald: If I did not want this matter to be private between the Chair and myself, but wanted to have the enlightenment spread among all the Members of the Seanad as to the reason for this, could the Chair assist me as to how I would seek that enlightenment?
Mr. Alexis FitzGerald: The ruling of the Chair will be observed. Can the Chair not assist me as to how I can get the Members of the Seanad informed, for future performance, as to why they must approach a matter of this kind, where the Preamble has been designed with no purpose in mind other than to make the proposals of the Bill more acceptable to the court which will be endeavouring to interpret it? The whole purpose of the Preamble, as I explained  in the Second Reading, was to make this more extensive, that there would be a full acquisition of mineral rights, but I am accepting what is in the Bill. To make it more acceptable to the court I indicated that I thought it desirable to have a Preamble and I then worked on a Preamble. It would be a help to other Senators to know why the Legislature is deprived of providing assistance to the courts in determining the constitutionality of the Bill, which may well be queried. This is a very important matter. This Preamble may be very different from what has ever been in mind before in a Preamble or a table. Other Senators would be assisted in understanding the mind of the Chair, which is not, I know, arbitrary and proceeds according to due reason and with proper principle.
Mrs. Robinson: I support Senator FitzGerald in seeking guidance from the Chair in this matter. Senator FitzGerald indicated at the Second Reading why he would be tabling this amendment. He has obviously taken a great deal of care to formulate the Preamble to the Bill and, like him, I think it would be desirable to have some guidance. He is not disputing, nor am I, the ruling of the Chair in the matter. We cannot all go in for private sessions in turn——
Mr. Alexis FitzGerald: For clarification of the Chair's ruling and to assist the Minister, am I correct in understanding that the meaning of the ruling is that if the Minister cared to propose a Preamble it would be open to him to do so?
Mr. Alexis FitzGerald: I have a number of points on this section and I should like to address the House, perhaps slowly, because the points are not unimportant. The principle of the Bill which has been accepted at Second Reading is that the Minister is going for an exclusive right of working minerals; he is not going for the acquisition of minerals. That principle is accepted although I expressed doubt about the wisdom of not going fully for the minerals. It is my sincere wish that this Bill, will stand up if challenged, that the Minister will get for the benefit of the State what he is looking for. I am concerned about the definition of “working” and in particular the inclusion in that definition of the words “searching for”. If the Minister is to seek to argue in the courts that he is not taking the minerals, that he is only taking the right to work the minerals, his argument will be very weak. If he is denying the owner of the minerals, who he is saying is remaining the owner, the right to search for what he owns, the right to ascertain the extent of his own property which the Minister is saying he is leaving behind with him, this seems to purport to deny such a  primary right of ownership as to make it likely that the Minister's argument, that he is not taking the ownership, will fail. I do not want it to fail; I want it to succeed. To make it succeed it is desirable to leave behind with the mineral owner that primary right of identifying what he owns. What is its nature, its extent and its value?
The word “working” in this definition includes—and the word “includes” means that the definition is not exhaustive, but if it were “means” it would be exhaustive—11 different types of activity. “Digging”, “searching for”, “mining” and “taking” are four words which have been taken out of the 1903 Act in regard to the exclusive right and which were repeated in the 1923 Act. The other seven words which are added include the words “sale” or “other disposal”. The remaining words, except these two “sale” or “other disposal”, are taken—that is to say, the “getting”, “raising”, “carrying away”, “treating” and “converting”—are taken from the 1940 Act. They have added the words “sale” or “other disposal” which were not in the 1940 Act. A question arises in my mind with regard to the introduction of these words: “State minerals” is defined as including an exclusive right of working minerals. Therefore, the right of working minerals is itself a mineral as defined. “Working” here includes, and may be held to mean, the sale or disposal of the right to work.
This raises an interesting question as to the policy of the Minister. Does the Minister intend to be given, as he appears to be given, the right to sell or dispose of his exclusive right of working? In the 1960 Act he is expressly given the right of sale of minerals. The definition of “minerals” in this Act, taken as a context as the definition of the right of sale in the 1960 Act, seems expressly to give him the power to sell the exclusive right of working. Is it so intended? Is it in mind that, having taken over the exclusive right of working, there is to be a process of complete alienation, a process of sale or disposal of that right? Under section 18 of the 1940 Act he has the power to surrender an exclusive mining right, which will be and which includes the exclusive right of working. He has  under one Act a right to surrender—to whom it is not specified nor is it clear—the right of working and under another Act he has the right to sell or dispose. These matters ought not to be unclear.
Mr. Keating: I want to follow Senator FitzGerald but in the language of the layman—I might add a layman who has been into this awful bog of mineral rights in Ireland and who had to try to contend with what seems to be a fundamental difficulty that is not being overcome in this Bill. I wish the Bill success because I recognise the difficulties and the need for legislation, but my doubt is one that I will be expressing now and on some future relevant sections.
I have a fundamental question. “Working” in section 2 is widely defined. The definition given, as Senator FitzGerald said, is not a finite definition. It indicates that the term “working” may include other activities in addition to those listed—those listed are very considerable. Those listed constitute almost everything that one can do in regard to minerals, but the right of ownership, as I understand it, remains with an individual owner.
The central effort of the Bill is to reconcile the private rights which are guaranteed in the Constitution with the exigencies of the public good on the one hand, and more specifically with the rights of the Minister for Industry, Commerce and Energy. The question on this word “working” is the following. If it is so widely defined and if all the things defined as “working” are vested in a person, other than the owner, will a court hold that the owner remains the owner? If you take away all the substance of ownership, all the power to act that ownership is normally taken as conferring, will a court hold that the right of private ownership remains? Therefore, I ask the subsequent question; are we not in danger with this legislation of getting into the bog of litigation on constitutionality that bedevilled me in my time, my predecessor and the present Minister up to the introduction of this  Bill? In other words, is the constitutional issue solved, or do we have to face the question that the 1937 Constitution is inadequate from the point of view of mineral protection in this regard and we need to change the Constitution?
Minister of State at the Department of Industry, Commerce and Energy (Mr. R. Burke): The possibility of prospecting for minerals coming within the scope of amending the Bill to provide specifically for working does not comprehend prospecting. This has been examined in very considerable detail by the parliamentary draftsman from the point of view of experience and practice in the Department over the years, since the 1940 Act came into operation. If it is excepted that activities which are exclusively prospecting and are divorced from any kind of development or mining operations, constitute working, then as the Bill was originally drafted two problems arose. Firstly, the Minister would be acquiring the exclusive right of prospecting under section 12, and secondly, persons who were engaged solely in prospecting could possibly claim exemption under section 13. This latter point appears to have been taken care of satisfactorily by an amendment already made to section 13 which makes it clear that in order to be in a position to claim exemption for particular minerals a person would either have to be actively mining the minerals or have acceptable and definite plans to develop them.
The question which remains therefore is whether as well as acquiring the exclusive right to work the minerals in the mining sense, the Minister is also acquiring the exclusive right to carry out the kind of operations which are regarded in the industry as appropriate to the prospecting phase. To examine the question it is necessary to look at the definition of “working” in the Bill, but more particularly to look at a number of provisions of the 1940 Act. For practical purposes the definition of “working” in the Bill is the same as in the 1940 Act.
Mr. R. Burke: The words about “sale” and “disposal” have been added mainly by way of clarification. I am advised that a person enjoying the right of working minerals as defined in the 1940 Act would in law have the right to sell or dispose of the minerals in question. The position is therefore that if there is a problem about prospecting being within the definition of “working” then the problem existed under the 1940 Act.
Part II of the 1940 Act deals with prospecting and section 7 (1) (a) of that Act in effect defines the activities which constitute prospecting. That paragraph empowers the Minister to enter on land and to engage in certain activities for the purpose of ascertaining the character, extent or value of the minerals in the land, including the taking of samples for analysis. This right is defined in section 7 (5) as the right of entering and prospecting. Section 7 (1) (b) empowers the Minister in the alternative to grant a prospecting licence in respect of the minerals and under section 8 the licensee is given precisely the same powers as are given to the Minister under paragraph (a) to which I have already referred.
Subsection (1) of section 11 of the 1940 Act specifically provides that it shall not be lawful for any licencee under a prospecting licence to work minerals. I am advised that it necessarily follows that activities which comprise prospecting only should not be regarded as constituting working for the purpose of the 1940 Act or of this Bill, both of which are to be construed togther as one Act. Reference to section 14 of the 1940 Act strengthens this interpretation. This is the section which provides for compulsory acquisition of minerals, or of an exclusive right of working minerals, now being replaced by the mechanisms provided for in the Bill. It is clear from section 14 that “working” in that part of the Act is used in the context of exploitation of minerals.
To summarise, the legal advice is that while the definition of “working” comprehends  activities of a prospecting nature, the carrying on of prospecting activities only, and of no other, would not bring such activities within the definition of “working”. The position is, as I said, very clear where such prospecting activities are carried out under a licence issued by the Minister. I am advised, that it is reasonable to rely on the foregoing interpretation to conclude that even after the new Bill becomes law it would be lawful for a person to prospect on his own for minerals which were his property, provided that this did not conflict with any rights exercised by the Minister or assigned by the Minister to another person under section 16 of the Bill.
It may sound reasonable to suggest that given the interpretation to which I referred, we should include a specific provision in the Bill to put this interpretation beyond any shadow of doubt. This possibility has been very carefully considered, but there are certain problems. The Bill, when enacted, and the 1940 Act will be construed as one Act and, therefore it is necessary to be very careful not to do anything which will have unforeseen implications under the 1940 Act. As has already been emphasised, the purpose of this Bill is to deal with one specific problem. The matter cannot be dealt with simply by excluding prospecting activities from the definition of “working” since it is necessary that such activities should continue to be regarded as working, where they were being carried on in conjunction with mining operations or mine development.
I conclude by repeating that the clear burden of the legal advice which we have is that the best and safest course would be to rely on what seems to be the proper interpretation of the 1940 Act that a distinction is drawn between activities which are solely and exclusively prospecting and activities which constitute working. So far as the administration of the 1940 Act is concerned, it has been the practice to draw this distinction. At the purely exploration stage a prospecting licence is issued conferring the right of entering and prospecting. If a State mining lease is granted for development of minerals the leasehold  area is excluded from future prospecting licences and any further prospecting in the leasehold area is done under the terms of the lease. It would be the intention to continue this practice when leases or licences are granted under this Bill.
Mr. Alexis FitzGerald: The distinction between this Bill and the existing code which this Bill, when enacted, will amend with regard to prospecting is that nowhere in the existing code is there a claim to an exclusive right of searching for minerals. Everything may have been sailing along extremely happily in the past, but there has long been a question among lawyers as to whether the Minister has power that would prove to be effective if it were challenged, and it never was challenged, to entitle prospectors under prospecting licences to prospect in those cases where the minerals were not State minerals. What happened in the past if it is inducing some type of calm in the Department should not be relied on. We have discovered that late in the day weaknesses can be probed in these codes and that passage of years without probing does not indicate that they cannot be probed. In this case we are saying that working which is to be exclusive of every other person, includes searching for them. I know that section 8 of the existing code has to be construed with section 11. The only activities which are allowed under prospecting licences are such activities as enable the man to know whether his search has been successful or not. He cannot go off and dig and sell. He can dig for the purposes of discovering if this is what he thought he was getting. The Minister should bring the matter back to his lawyers, let them think about what has been said and not be satisfied at this stage with the answer. Let them consider afresh what I am saying. It is in the Minister's interest that they should reconsider it. That is all I am asking. I may be entirely wrong but I do not believe I am. The matter should be looked at again.
The way that the Minister is doing the matter of including in State minerals the exclusive right of working minerals is inexpert and not as clear as it should be. I would prefer to see—and I would.  recommend it to the Minister—a simple amendment of section 5 of the 1940 Act. Instead of saying State minerals include, without prejudice to the generality of the meaning assigned by section 5 of the 1940 Act, an exclusive right to working minerals, he should simply amend section 5 because it is the generality, not of section 5 which he does not want to prejudice, but of one paragraph of section 5, paragraph (b). Again, that suggestion is made in aid of the Minister and in aid of the success of this legislation. I do not think it should be rejected. It ought to be looked at.
There ought to be a definition of development. It is a word which varies significantly. After all, the accepted minerals are those which in section 13, are being worked or developed. We have a definition of “worked” but there is no definition of “developed”. In subsection (2) of the same section a person is deemed to be developing a mine if certain things happen. We are not told what developing a mine consists of. It is very important because there may be very rich ores which the Minister is not taking the exclusive right to work. He is leaving behind the exclusive right to developers who are doing something called “development” without the word “developed” being defined in this Bill or without having the benefit of “development” being defined in the 1940 Act or the 1960 Act.
Mr. R. Burke: On the question of prospecting, it is a matter of opinion as to whether the Senator's interpretation is correct or the Minister's legal advisers' interpretation is correct. My position is that we can only take what is before us at the moment and the advice that we have before us. However, I have no doubt——
Mr. Alexis FitzGerald: The Minister should take the best advice available to him. I am not purporting to advise the Minister. I suggest that the Minister should give an opportunity to his lawyers to see what Senators have to say on this matter.
I find the words “surface of land” difficult to understand. I do not know whether any Senator can assist me. Section 3 of the 1940 Act defines minerals as all substances other than the agricultural surface of the ground. Is there a distinction between agricultural surface and surface? This is not just a trivial point. Does “minerals in land” mean minerals in the surface, whether it is an agricultural surface, turf, peat or some other kind of surface? It arises in regard to the existing definition of minerals which says “means”, it does not say “includes”. There is an express exclusion of agricultural surface. Can—if there are scientists present let them speak up—minerals be through agricultural surface? Can they be through turf or peat or are we excluding the minerals if they are in? Are we depriving the Minister of the right to exclusively work the minerals that are in the agricultural surface? This Bill includes for the first time minerals on or under the surface of land. Is that sufficient to amend the definition of section 3 which excludes agricultural surface and excludes turf or peat?
The matter is important enough to have it clarified. It may need a redefinition or an amendment to the definitions section in the 1940 Act. Perhaps it might be useful for Senators if I read out the definition, which has only been amended by the 1960 Act to exclude petroleum. It states:
... “minerals” means all substances (other than the agricultural surface of the ground and other than turf or peat) in, on, or under land, whether obtainable by underground or by surface working, and includes all mines, whether they are or are not already opened or in work, and also includes the cubic space occupied or formerly occupied by minerals, and, for greater certainty but without prejudice to the generality of the foregoing,  the said word includes all scheduled minerals.
Mr. R. Burke: As far as the last point the Senator has made with regard to the word “surface” is concerned, I am sure there are legal minds that could argue this one out for ever and a day to get interpretations. I can assure the Senator that it is highly unusual to have any significant minerals in the first couple of inches of the top soil. As far as the exact interpretation is concerned, I will get it cleared and come back with clarification on Report Stage, which it now looks like we will not be getting today, for the Senator's benefit. As far as development is concerned, this is being left to the mining board who will consider exemptions at a later stage.
The term “State minerals” as defined in section 5 of the 1940 Act, denotes minerals that were formerly Crown property, minerals the mining rights of which were reserved for the State under the Land Purchase Act since 1903, minerals acquired by the State under acquisition orders made by the Minister for Industry, Commerce and Energy under section 14 of the Act of 1940, minerals or mining rights acquired by any other means since the passing of the 1940 Act, foreshore minerals and mines of gold and silver.
In view of the foregoing provision exclusive rights to work minerals vested in the Minister under section 12 of the Bill automatically become “State minerals”. The inclusion of a reference to State minerals in the Bill is essentially a reminder to the reader of the general definition of State minerals and underlines the fact that these exclusive mining rights become State minerals within section 5 of the Act of 1940.
Since it was, and will continue to be, the practice to make no distinction between minerals or mining rights vested in the State by the various mechanisms specified, there seems to be considerable merit in retaining the omnibus description of “State minerals” introduced in the 1940 Act.
Mr. Alexis FitzGerald: This was my view but I only raised questions. My view was that there was no need for this  reference to State minerals and the only effect of it was to confuse. I would have taken the meaning of section 5 of the existing Act as making this exclusive right State minerals. This merely confuses things. An argument could be created for somebody or other to say exclusive rights are one thing and the Crown rights and things that come under the Land Act and so on are something else. I found myself worried, when going through the different sections, as to whether, because of this, the Minister would be in a position of not having a common description for the whole lot of them. It would be far better to drop this definition because it is quite clear from section 5 that it includes this. It states:
Any minerals and any exclusive mining right which, on or after the passing of this Act becomes, by any means, the property of or vested in the State or the People or become vested in a Minister of State, as on and from the date upon which they become such property or become so vested;
This is an exclusive mining right and it is quite clearly, therefore, within the definition of State minerals. Why say again in a complicated and rather confusing way what is already said in the existing Act?
Mr. R. Burke: As the Senator is aware, the two Acts will stand together when this one is passed. The advice and the decision that was taken by the Minister was to leave this in as a reminder. I accept the Senator's right to his point of view but I cannot accept it.
Dr. West: On the point Senator FitzGerald raised regarding the agricultural surface and the possibility of excluding minerals that could be found in deposits of turf or peat, it is not sufficient for us to say that so far it has been extremely unusual or unknown to find minerals, for example, in a peat bog or in turf. We do not have to go any further back than our own education 20 years ago when the common teaching in school was that Ireland was a country bereft of minerals. Of course, this has changed and the position is likely to change again as other minerals, which have no particular commercial interest  at the moment, become commercially valuable. One could have situations arising in which there were valuable deposits on the agricultural surface of the ground or within the first couple of inches, or indeed through turf or peat. I do not feel that the definition in section 3 of the 1940 Act excludes the minerals which might be found in a turf or peat bog. It just refers to the substances turf and peat. Minerals that might be found in turf or peat deposits would not necessarily be excluded, as I read it. I would be slightly more worried about the phrase “agricultural surface”. One certainly could envisage open-cast mining for minerals which we may know about at the moment to be commercially viable and for minerals which we, as yet, do not know about. They could easily be there. That is the only part of this clause in the definition which worries me.
I have another worry, which I will keep until we discuss section 3, concerning the term “land”. On the agricultural surface, I agree with the Minister that one could spend a lot of time trying to define the top section of the subsoil and whatever we mean by it. The one thing that worries me somewhat is that it might, in some way, be seen to preclude open-cast working in an agricultural area.
Mr. Keating: For myself, I often find the things that are written down by legal people indicate a great mastery of words but an extraordinary lack of knowledge of reality. I suggest that subsection (2) of section 2 is entirely without meaning. This is the one that says: “‘in land’ shall be taken to include reference to minerals on or under the surface of the land”. What is the surface? A surface is a place where two things meet each other. The surface of the land is the place where the land and the air above it are in contact.  There can be nothing in a surface. If one has the surface of the land and then one has some minerals on top of it, the old surface is obliterated and a new one is formed. In speaking of things being on the surface, nothing can be on the surface except the air above the surface. That is all that is on it.
Mr. Keating: I am not talking as a lawyer here obviously as I am not a lawyer, but there is a real semantic difference. That section has no meaning as far as I am concerned. If one puts something onto a surface one forms a new surface, the old one is obliterated. The only thing on the surface of the land is the atmosphere above it. I do not expect Bills or Acts to be sensible and I do not expect all of the words to mean things. I am not really surprised by this but I would be interested to hear the Minister's comments.
Mr. R. Burke: In preparing myself to handle the Committee Stage of the Bill in the Seanad I must say that in or on the surface of the land was not one of the items that I thought was going to create a problem. I accept that Senators are concerned about the need for clarification on this point. I have already assured Senator FitzGerald that I will clarify some other aspects on Report Stage. I do not see it as a matter of substance. The terminology here is the terminology that the parliamentary draftsmen, in their wisdom, put in. They did not put it in just for the sake of adding another subsection to the Bill.
Dr. West: The point I wish to make arises on both sections 2 and 3 but more appropriately on section 3. It concerns the word “land” in the definition section.  I sought some advice on this section particularly in connection with the Schedule to the 1940 Act in which minerals are listed. It is not an exclusive list. This point has to be clarified: the Schedule is a list, but just because minerals do not occur in the Schedule does not mean that they come under the aegis of this Act. There is a clause in section 3 of the 1940 Act which reads:
I take it that that means that the Schedule is a list which does not have any real legal significance in the sense that, if a mineral is found to be workable and important but is not in the Schedule, then it comes under the terms of the definition of section 3. This is a point of great importance and I should like the Minister to clarify it.
The second point is simpler and concerns the term “land”, “in or under the land” which is the wording in section 2. It applies in the definition section. The point that has been brought to my attention is that it is not clear whether this includes minerals which are under the sea but are in our territorial waters. To make this absolutely clear, my advice is that a clause should be inserted in either section 2 or section 3 of the Bill to make it clear that “in or under land” includes the minerals which may be found under our territorial waters. My advice from scientists concerned is that it is highly likely that the major mineral discoveries—these are minerals rather than petroleum—in the next 50 years will be under the seabed. We should make it absolutely clear that in our territorial waters the minerals under the seabed are included in the terms of this Bill.
Mr. R. Burke: The question of minerals under the sea in our territorial waters will get a definition under the Continental Shelf Act. This question will also be clarified on Report Stage. I am sorry to be so hazy on this but I have not got the advice here with me.
Dr. West: If an amendment is needed to sew up this point of view, whatever  the Continental Shelf Act says, then we should be able to make the amendment on Report Stage. I am not clear on this but the geological advice which I have received concerning the point “land” is that it is not a priori clear that this covers minerals which would come under our territorial waters. Obviously, we would look real fools if there was a strike in our territorial waters and it turned out that the minerals deposit found therein was not covered by the terms of this new Bill. This is something that we need to be very careful about.
Mr. Alexis FitzGerald: On that last point, the number of old Irish landlords who are on the Continental Shelf is probably quite small, so we need not be frantically worried about their interests in acquiring exclusive right of working, which is what this Bill is about. There is not a property problem.
Mr. Alexis FitzGerald: I am very interested that the Senator raised this point. I should like to hear more about it, as I had completely forgotten about it. I do not find section 3 of the Act of 1940, as amended by section 69 of the 1960 Act the right way to do it. What section 69 of the Petroleum Act states is that the provisions of the Principal Act shall cease to apply in respect of petroleum. That is not an amendment of section 3 of the 1940 Act; it is a declaration in respect of petroleum. The whole Act does not apply. That should be dealt with in another way.
If one is referring to something which has been given a particular set of words with a particular meaning in another Act, one should use those words. Scheduled minerals are already defined in the existing code. That ought to be the way to refer to them and not as a list of  minerals mentioned in the Schedule to the Act. “Scheduled minerals” is the expression and that ought to be used. Scheduled minerals do not include minerals compounds and mineral substances as defined by section 2 of the 1940 Act.
If we are saying that stone, gravel, sand or clay is not included except to the extent that stone, gravel, sand or clay is a scheduled mineral, or any part of a scheduled mineral, should we not also be saying, “or is a mineral compound”, which means any substance formed by the chemical combination of one scheduled mineral substance with any other such mineral, and should we not also be saying “or a mineral substance”, that is, any substance of a similar nature to any scheduled mineral. We are limiting it to the scheduled minerals. If we are leaving stone, gravel, sand or clay outside this time, when we did not leave them outside before, but are not leaving them outside to the extent that they are scheduled minerals, surely we should not leave them outside to the extent that they are either something which is of a similar nature to a scheduled mineral with another. I would be glad to know whether that is correct or not.
Is there a reason why there is not in this Bill and there has not been in the existing code, any power for the Minister to add to the list of scheduled minerals? I do not know why we have scheduled minerals at all. What purpose is served by them? I understand why for taxation purposes, we have to list certain minerals. There is a different schedule to this code than to the taxation code. We have a general definition of minerals. Why do we have scheduled minerals? Presumably, we must be putting into the scheduled minerals something that would not be caught within a general definition of minerals. To be quite sure that it is caught we are putting it in there. But, we are not putting in mineral substances or mineral compounds. If that is so why has the Minister not the power to modernise this. I do not know a thing about what one would find anywhere. Presumably people know more about what is going on under the surface of the  earth now than they did 40 years ago. If they know more about it perhaps other things might be added that might not be caught by the general definition. There might be some marvellous thing there that the Minister might doubtfully have the right to work because it is not on the list.
Mr. R. Burke: The need to make the amendments just mentioned was never seen in the past and still is not seen at the moment by ourselves. As to the actions of the men in 1940, I will be responsible for 1979 actions not for 1940 actions. Essentially, the schedule is a comprehensive list of all the known minerals, mineral compounds and mineral substances, the mining rights of which are deemed to have become vested in the State under the Land Purchase Acts, excluding, of course, common stone, gravel, sand, and clay which as already mentioned, were specifically exempted from the vesting under those Acts. The Senator's point is really a point for the parliamentary draftsman. I am beginning to feel that the parliamentary draftsman should be sitting here arguing the contents of this Bill with the Senator. I am sorry to be so unhelpful, in relation to many of the points that the Senator is raising, but they are strictly legal interpretations which I will come back to on the Report Stage.
Mr. Mulcahy: I was inspired listening to Senator West about the question of the seabed. It struck me that another problem might arise, which the Minister might look at before Report Stages. The inspiration comes from the fact that when we were passing the Fisheries Bill through here yesterday it arose that people, have rights say, over oysters on the seabed. How do the rights of oyster farming in agriculture conflict with the rights of those working on the minerals?
Dr. West: I would ask the Minister to refer to the question of the Schedule in the 1940 Act. It is not meant to be a comprehensive list, because of the clause in section 3 of the 1940 Act which I have quoted. In common with Senator FitzGerald I find it hard to see what the point of that schedule is now if one is not going to update it. Perhaps the Minister's plan is just to leave it alone and ignore it because of this all embracing clause in section 3. Certainly my advice is that the names in the schedule are out of date and that the list should be revised. It is not easy to make a comprehensive list, but I can give a suggested, more comprehensive list to the Minister. But even a comprehensive list drawn up in 1979 may be very inadequate even in 1980. There are names that are out of date as the Minister will know. I do not pretend to be an expert in this area but it is important to clarify the position of the schedule. My reading, and Senator FitzGerald's reading of the schedule is that it is now a meaningless list.
Mr. R. Burke: Before we proceed along this line of picking out the defects in the 1940 Act, in the preparation of the Bill before the House we went after a specific problem, and we did not look at a lot of the defects in schedules and things that Senators are talking about. We did not open up the whole section of the 1940 Act to examine it and to make the alterations that may be necessary at this stage. We went after a specific problem and that is what this Bill is all about. I am not doubting that the Senator has a valid point.
Dr. West: I am not really worried about the Schedule, provided I am absolutely clear that every mineral, including the many minerals which are not in the Schedule, are included under section 3 via the clause. This is the important thing, that they are included in the  clause, and that there is a general definition which includes everything, with the Schedule being only a reference list.
Mr. Alexis FitzGerald: I made the point about assessors before and I am satisfied that the Minister has power to regulate that. When one thinks of what they will have to do under this Bill, is a propertied man a man who will be able to assess, in all the circumstances, including such proportion of the net profits arising in consequence of the working as is attributable to the minerals as they existed in their natural condition. I went back to the code which established this body and it is entirely on qualifications in property. I know a lot of people with qualifications in property and they would not know “B” from a bull's foot. That would know as much as most Senators about minerals in their natural and unnatural condition and the profits arising from them. I wonder are they the right people for this?
Mr. Alexis FitzGerald: A fundamental point here is, is the Minister wise to throw away the power? So that my point will be understood, I have to direct Senators to the schedule, and the repeal  of section 14 of the Minerals Development Act. Section 14 of the Act must be written on the very heart and soul of Senator Keating. Whatever about improving section 14, is it wise to throw it out? If the position is that the exclusive right of working is going to be unconstitutional, would it not be highly desirable, if something was found, that there should be some power to acquire it. Throwing it away is throwing an argument to someone who wants to say that the reality of this exclusive right of working is that the Government have taken away the power to take from him what is now worthless—that is why the Government are not concerned about having a right to acquire what he has, because it is worthless. I am in considerable doubt about the operation of the compensation part, Part III of the code. It may be desirable to buy out this fellow rather than to pay him periodical payments which overhang the whole mine. It may be that the person or group of financiers who want to put in £100 million or whatever would want to get this chap out of the way, and it would be highly desirable to buy him out at a fair value. After all, at this stage all he will have is a right to get compensation. It might be desirable and, in the national interest to take that right from him to compensate him and take over the property interest and the right to the compensation. I have doubt about the wisdom of repeating Section 14 but there is a lot to be said for improving it.
The second point is a technical one. In the Schedule section 33 (2) is being amended by the deletion set forth in the third column, and there is a consequential amendment in 33 (5) which I do not see. I would like to draw the Minister's attention to it. If I am right, then it can be cleaned up on Report Stage.
Mr. R. Burke: I have no doubt there  are many things the Senator is right about. The question of the retention of the mechanisms for the compulsory acquisition of the unworked minerals under section 14 of the 1940 Act was considered at the time of the drafting of the Bill. However, the Minister's legal advisers felt that since the acquisition provisions of the 1940 Act are constitutionally suspect and could not be relied upon in the event of a subsequent successful challenge to the Bill after enactment, the retention would be to no purpose. Indeed, it will be recalled that it was the constitutional doubt about the acquisition provisions in the 1940 Act that prompted this measure.
Question proposed: “That section 12 stand part of the Bill.”
Mr. Alexis FitzGerald: This section reads:
The exclusive right of working minerals is hereby vested in the Minister,
There should be a saver here for the “searching for” position of a man who is being told he remains the owner of what he is now told he cannot search for under the definition of “exclusive right”. That ought to be taken care of in the drafting. I am not satisfied with it. Surely the vast amount of working minerals is already vested in the Minister?
Mr. R. Burke: Yes.
Mr. Alexis FitzGerald: Why does the Minister say “is hereby vested in the Minister” when it is already vested in the Minister? Is not all the stuff set out in section 5 already vested in the Minister? Is the Minister not entitled to work? Should it not be “other than” what is already vested in the Minister? Is this not a strange way of saying that one  is going to take one's neighbour's garden and one's own, having already had one's own?
Mr. Keating: I offer the Minister thinking time by reiterating Senator FitzGerald's question in a slightly different way, with a slightly different emphasis. Let us take the concrete circumstance where someone owns land and, on investigation, it turns out that there are privately-owned minerals of which he is the owner. Section 12 says: “The exclusive right of working minerals is hereby vested in the Minister ...”. “Working” is defined in line 7 of page 4 as “searching for”. That seems to take away from the right of an owner of private minerals the power to find out what he may be sitting on. He says “Yes, I own the land, and I have been legally advised that I own the private minerals as well, but I may not try to find out what is there, only the Minister can do that.” That seems to me, as a total layman, such an invasion of the rights of private property which are enshrined in our Constitution, as to be capable of being challenged. Did the Minister get legal advice on the constitutionality of this? Is it possible so to alienate the right of a private owner that he may not investigate what he has? The Government may say, “You may not mine it and you may not market it”, but is it possible to take away his right of “searching for” as defined in the definition of “working”? Is that not simply inviting the sort of constitutional challenge that has bedevilled previous legislation, and worse than that, has bedevilled the desire to get on and employ some people and make some money in the mining sector?
Mr. R. Burke: We have examined it and we have got legal opinion on this. We are not in this Bill taking away the right to only prospect; we are not taking away the prospecting rights, they still remain within the Bill.
Mr. Keating: I am pleased to have that clarification. Then, what is the overlap in relation to “searching for” in the definition in line 7 page 4, section 2 (1)? If “working” includes “searching  for” and the Bill says that only the Minister may work, then how can one say that the private owner may not search for but that he may prospect? That may be perfectly good in law but in my layman's approach those definitions do not tally.
Mr. R. Burke: I went into this in great detail earlier when we were on section 2. This Bill together with the 1940 Act will have to be read as one and the point is covered when the two are read together.
Mr. Alexis FitzGerald: This is a matter that must be examined. The approach of the Minister and what the Minister has been advised is not at all satisfactory. What Senator Keating has said in a layman's view is correct. One cannot define work as this Bill does. One cannot say that “working” includes “searching for” and to go on and say in the same document that the Minister has the exclusive right of working. That is to say that the Minister has the exclusive right of searching for. One cannot say that “working” in section 12 does not include “searching for”, as “working” has been defined. If that is so, the Minister has that exclusive right. All that stuff about the prospecting licenses under the existing law and about the prospector not being entitled to work is badly drafted. The courts would not be forced to give a meaning to the section about “working”, in relation to prospecting, under that code. Under this, which is a new thing altogether, the exclusive right is being taken by the Minister. There was no attempt to take an exclusive right in the 1940 Act although there were references in that Act to existing exclusive rights or other exclusive rights they might get, or acquire, by processes of one kind or another. But this is to take the exclusive right to search from somebody who is still being told that he is the owner. That will not help the Minister.
Mr. R. Burke: This part has to be read in the context of the over-all Bill.
The Senators are reading this in isolation and not in the context of the over-all Bill. The advice we have, which has been examined on a number of occasions, is  that what is included in the Bill is correct. However, in the light of the concern expressed by the Senators and in view of the fact that I must come back to Senators on Report Stage, I will once again have a look at it. My feeling, having looked at it, is that it will stand. However, I will not pre-judge that. I will get the draftsman to look at it again and I will come back on Report Stage.
Mr. Alexis FitzGerald: For clarification and to understand the scheme, I take it that the subsequent parts of this Act are intended to preserve the positions of existing State lessees. I take it that they come under section 13, as being lawfully working or developing a mine and are accepted to the extent of their interest under the lease. I do not know whether there are any existing undertakings. I do not want the Minister to be put in a position where somebody can say, “You are going back on whatever you settled up with a lot of us”. This is so important that I am sure the Minister cannot have overlooked it. I would just like to understand the way in which it is proposed to treat it. With regard to prospecting licences, I am not frightfully worried because they can be revoked at any time although it would not be the policy or practice of a Minister to do that. In what way does the Minister see the status of existing prospecting licences fitting into this new structure? I am not terribly worried because I take it that the policy would be to keep them going if any are operating.
Acting Chairman: Is Senator FitzGerald referring to section 12 or 13?
Mr. Alexis FitzGerald: Section 12. It arises—“except as provided in this Part”. I want to know the general policy of other sections of the Part.
Mr. R. Burke: The clear intention is that they should carry on but we have not yet got legal advice as to whether they should be specifically exempted or not.
Question put and agreed to.
 Question proposed: “That section 13 stand part of the Bill.”
Mr. Alexis FitzGerald: I am unhappy with the words “of any description”. What do these words mean? Minerals are defined and State minerals are defined by precise and exact definitions and suddenly we are faced with the phrase “minerals of any description”. Do they mean, for example, the stone, sand, gravel or clay which is excluded by section 2? It is no use saying what they were intended to mean. It seems that they could mean that. Do they include minerals on or under the surface of land? Do they include minerals on or under turf or peat? Do they include petroleum as a mineral of any description? That is the first point. Secondly, presumably, what the person must do to have himself deemed to come within subsection (1) is to be lawfully developing a mine, but there are actual penalties in the existing code for developing a mine not lawfully. “Proves”—to whose satisfaction? It is not clear to me. Is it the satisfaction of the Minister? Is it the satisfaction of the Mining Board? Presumably Senator Keating and Senator FitzGerald cannot both prove to the satisfaction of the Mining Board that they had plans still in their minds, that, standing on the date of the passing of the Act, they both had plans for development of the same minerals. I take it somebody has to prove that he had plans exclusive of any other person. Presumably what is intended in this case is that he has an interest in the minerals which he is planning to develop and it is only in such a case that the Minister thinks he should be deemed, under subsection (2), to come under subsection (1).
Mr. R. Burke: A number of points raised are covered under subsection (4) of section 14. I would refer the Senator to that. So far as the question of minerals is concerned, obviously common stone quarrying and sand and gravel pit developments are not registerable activities for the purpose of this subsection.  The word “minerals” is already defined in the Bill.
Mr. Alexis FitzGerald: Should we just drop the words “of any description” as it is only confusing?
Mr. R. Burke: At this stage they are there for——
Mr. Alexis FitzGerald: ——the purpose of confusion?
Mr. R. Burke: I am sorry if they confuse the Senator; they are there to strengthen the Bill.
Question put and agreed to.
Question proposed: “That section 14 stand part of the Bill.”
Mr. Alexis FitzGerald: Perhaps the Minister could expand on what he has said. Is the position that the lessees of the Minister at the moment, for example—presumably there are persons with leases—have to come into the mining board? Do they come in under subsection (1)? How do they get themselves established? What is the theory behind it? What is the policy with regard to this? I do not know how many of these kinds of leases there are, or whether they are expected to do something, to rank themselves, or what is intended. If such persons forgot all about this point and did not register, would they find their leases lost? I do not know and should be interested to know what is involved.
Mr. R. Burke: The people concerned have a lease to work the minerals and it is clearly intended that they would be exempted; whether they actually have to be exempted or not in a formal wording is something at which we will have a look. That is the clear intention.
Mr. Alexis FitzGerald: I thank the Minister. This is the most important point I have to make on this. The view has been formed in legal circles—and I can tell the Minister of its existence—that it is absolutely vital to the  success of this Bill that it be found to be constitutional if tested by people who do not register their interests and bring themselves under section 13 as accepted developers, and find their exclusive right of working is gone. That view is confidently expressed and I need go no further than to say that there is a serious danger about this provision if the timing is left to ministerial regulation. The time within which this registration is to be effected must be specified in the Act itself and not left to ministerial power. I give the Minister the benefit of that information.
Mr. R. Burke: I thank the Senator for the information he has given. It is a very important item in the Bill. It is the clear intention that they would be allowed to continue on working. I shall come back to the Senator on Report Stage and am very grateful to him for his comments.
Mr. Alexis FitzGerald: I find it a little difficult to understand a lot of this. I apologise for being tedious about it, but I suppose I have to be until I understand it. Is it intended that the Mining Board will have a hearing when there is an application? What way is this registration to go on? Is it the general belief that nothing much will happen; that three or four people will come in and say “We are developing mines and that is all about it” and the exclusive rights of working will pass over to the Minister? Would it not be better if the section had a graver kind of look and had serious machinery set out for anybody who wants to come in and claim that he should be excluded? Would it not help afterwards the defence of the structure legally if it could be shown that there would be formal hearings and so on? I am a little concerned about that.
Mr. R. Burke: It is the intention to leave the Mining Board to make their own regulations. However, if they are found in practice not to be working properly, if they are found to be ineffective, the Minister can make regulations.
Mr. Alexis FitzGerald: I just draw the Minister's attention—and I am sure he will consider this—to the 1940 code,  where he will find quite a number of provisions of a detailed character in the Act itself providing for the hearing of applications, what happens and so on. Some of these provisions clearly are carried over into this code. Having regard to the language in the opening sections of some of these parts, I am not satisfied that all of them do. If the Minister has this examined I shall be satisfied about it.
Mr. R. Burke: I can assure the Senator of it.
Mr. Alexis FitzGerald: It seems to be important. I came in to do an amateurish job on it.
Mr. R. Burke: I can assure the Senator I shall have it examined.
Question put and agreed to.
Question proposed: “That section 15 stand part of the Bill.”
Mr. Alexis FitzGerald: Should the Minister not strengthen this a little bit? It says: “...the minerals are not being worked.” It is very easy to be doing a little work and say you are working. By introducing the words “or worked efficiently”, this could be done. The Minister may want to cancel the situation where someone is only ticking the thing over so that he can say he is working and the Minister cannot get it cancelled because of that situation. It is similar language, or, as another Minister states: “I have lifted that” from the existing minerals development code being worked, or being worked efficiently. It might be helpful to be able to get cancellation, even in the case of a working where the working was not efficient and was being merely formal to keep the Minister at bay.
Mr. R. Burke: I shall consider the point made. I am getting some advice on it but I shall not go into it now.
Mr. Alexis FitzGerald: Thank you very much.
Question put and agreed to.
Section 15 agreed to.
Question proposed: “That section 16 stand part of the Bill.”
Mr. Alexis FitzGerald: In subsection (1) the words used are “a licence to work”; in subsection (2) the words are “a grant of a right to work”. Are they to be two separate things? It grants a licence to work under subsection (1). I am sure the Minister is well briefed on this, because I raised this matter on Second Reading. I can assure the House I have tried to understand this but I am having extreme difficulty. I should be very greatly helped if I were told what is the plan in this regard. There is a provision in section 13 for an undertaking for provision of a State acquired minerals licence and for the provision of a grant of a State mining lease. What does it mean by saying “the following provisions”? “These provisions shall apply to a licence under subsection (1).” What does “The references in Part IV of the Act of 1940 to a demise of the minerals shall be construed as including the grant of a right to work minerals” mean? I find this word “demise” only in one section, section 26, of the 1940 Act, but then I did not spend my life reading it. Why do we not say what the Minister is going to do? A lot of half-crazed lawyers have been going around in circles trying to find out what was the Minister's intention. Why adapt all this, if you are going to do something different?
Mr. R. Burke: I am afraid I am not clear as to what exactly the Senator's point is.
Mr. Alexis FitzGerald: I can be very clear in telling you I do not understand it. “The following provisions of the Act in 1940 shall apply to a licence under subsection (1).” What does that mean? Why take one subsection? Section 26  provides the grant of a State mining lease. Does that mean that the Minister can demise a State mining lease of the State minerals, if he has any? He can do that because they are State minerals, without shoving in this confusing language. Is that what it means?
Mr. R. Burke: I will try to help the Senator. The object of this subsection is to apply a number of related provisions in the Act of 1940 to a licence granted under subsection (1). Section 13 of the Act of 1940 empowers the Minister to enter into an undertaking with the prospecting licensee to grant such licensee a State mining lease under Part IV of the Act where the prospecting has been successful and the terms and conditions of the prospecting licence have been observed and performed. Subparagraph (a) of this subsection merely extends this power to the Minister to enter into an undertaking to grant a licence to work minerals in similar circumstances if he so wishes, and regularises what otherwise would be an anomalous situation. Subparagraph (b) of this subsection enables the Minister to apply the appropriate extant provisions, those not repealed, of Part III of the 1940 Act in a situation where the right to work the minerals would be granted by means of a licence. Subparagraph (c) enables the Minister to apply the provisions of section 26 of the 1940 Act to a licence to work any State minerals as if the instrument were a State mining lease. Effectively, this means that the Minister could apply the provisions appropriate in the case of a State mining lease in place of those at section 24 of the 1940 Act which has to do with the terms and conditions under which a licence to work minerals may be granted.
No provision is being made for the alternative licensing system. The probability is that the present invariable practice whereby State minerals are demised by way of lease is likely to continue and to operate in relation to the granting of rights to work minerals which become State minerals by virtue of the vesting under this Bill. However, it was the view of the parliamentary draftsmen that since there might be exceptional occasions where a licence  rather than a lease would be the more appropriate instrument, provision should be made accordingly especially since it merely involved application of existing provisions in the 1940 Act.
Mr. Alexis FitzGerald: I am the brightest thing on God's earth but I cannot say that I fully understood all that. I understand one part of it, which is that you can go on as you have been doing and give undertakings and give State mining leases out of what you have because you have got an exclusive right of working what you are saying is a State mineral and you are going to give an undertaking to give a lease in relation to that to a prospector and you give the lease. Are you contemplating, apart from a prospecting licence, giving a licence to work, which is something different from a prospecting licence, something different from a lease and coupling with that licence to work an undertaking to give a lease, or are you contemplating an existing prospector turning up trumps and dashing into you looking for an undertaking and you will say, “You have a prospecting licence, I now undertake not to give you a lease but to give you a licence to work.” That would be fine if we knew what a licence, I to work was. At least in the case of the prospecting licence the provision under the State mining lease provision said all sorts of stuff about what can and should be in it, and clauses about renewal and so on. I do not find anything about what would be in the licence to work unless the idea is that there will be exactly the same thing as the licence to work which can be in the mining lease. Is that what they are trying to do?
Mr. R. Burke: Yes.
Mr. Alexis FitzGerald: I do not think it is a very good way of doing it.
Mr. R. Burke: Maybe not, but that is another thing.
Mr. Alexis FitzGerald: I think it should be spelled out. It would be much safer. I have another very much more important point of real practical significance here. I gather the Minister is  afraid to go to the courts to find out whether this is constitutional or not and will not drive the President to do it. The President is fully entitled to make up his own mind but also the Minister can have a view about it which could be expressed in some kindly fashion to the President. If we got the thing clear by finding, we should be fine. I gather the situation is that this Bill is going ahead without having been found to be constitutional. Somebody makes a marvellous discovery. I apprehend then that there are the usual hundreds of millions of pounds required to do the thing. I apprehend that people are going to say, “Well now, what happens if at the end of the day this exclusive right of working is dubious? What is our protection?” It seems to me highly desirable that the State be in a position that the Minister has authority, clear and express, to give such a title.
Is there a private lessor, for example, under that conveyancing law? If he uses certain words in the lease “demises as lessor” that implies that he has the title to it and he has to pay the lessee if he has not the title to it. Somebody taking a lease in that situation would be safe; he would be able to recover damages if he lost his hundred million; the Minister would have been authorised to give that demise. I should like the position to be clearly that the person who receives the document which the Minister would seal in that situation, would be advised: “This is safe even if the stucture of the 1979 Act collapses in terms of the exclusivity of the right of working which the Minister has got, because the Minister is indemnifying you against loss by virtue of his having given this lease to you. You are safe; you can go on with the development. The Minister will take the risk of this Bill being a dud.” From a practical point of view this is really important and I recommend the Minister to consider it, not now but hereafter.
Mr. R. Burke: No. I could say a few words on it at this stage. The point the Senator is making relates not only to this legislation but could relate to every other legislation that comes before this House. Maybe the sums of money involved  would not be the same. How could a Minister give a written guarantee to anybody to cover him in the event of the Supreme Court making a particular decision?
Mr. Alexis FitzGerald: I know.
Mr. R. Burke: The Senator is going into deep water here, right across the whole structure of government.
Mr. Alexis FitzGerald: I assure the Minister I am not doing that.
Mr. R. Burke: No Minister can indemnify anybody against the decisions of the Supreme Court.
Mr. Alexis FitzGerald: I am afraid I have failed to make myself clear. My point is simply this: assuming we are in El Dorado and the minerals are all there and we want somebody to go and do what he should about it, we want to give him proper title. The Minister will have no power to give him proper title unless he is authorised by this Legislature to do so. If he is a private operator, under the Conveyancing Act, some of these documents that you all think are mad, include certain words which imply certain covenants. I am suggesting merely that the Minister would find it wise to be empowered to do so. He need not do it if he does not want to. I am suggesting that he ask the Legislature to give him the power to do this in a dicey case. He need never use it.
Mr. R. Burke: It is very much as the Senator said, the layman looks differently at some of the documentation. The wording is not always perfectly clear. I shall have the parliamentary draftsman look at this particular point.
Question put and agreed to.
Question proposed: “That section 17 stand part of the Bill.”
Mr. Alexis FitzGerald: Having regard to the way State minerals are being defined, if the Bill said “to work any State minerals” it would be all right, but if you are going to say “work any minerals which are State minerals by virtue  of section 12” I am afraid you are going to have to say “or part of which are State minerals by virtue of section 12.” Another part of them you may have as State minerals already and they may not become State minerals by virtue of section 12 at all. May I add that section 12 does not make them State minerals, in my view? It is section 2 which makes them State minerals. The next thing is to ask is why does——
Mr. R. Burke: Just on that point, what is the Senator's case exactly?
Mr. Alexis FitzGerald: I think it should be “work any minerals or State minerals or part of which are State minerals by virtue of section 12.”
Mr. R. Burke: I am sorry to have interrupted.
Mr. Alexis FitzGerald: It is like an injection, a restoration of life to have a question like that put to me.
Mr. R. Burke: The Senator is well and truly alive. There is no doubt about that. I get the point the Senator has mentioned.
Mr. Alexis FitzGerald: Here is a general question which I think arises, probably on the next section. On this point alone, if we could anticipate—why is the Minister adopting the policy which is not in the existing code? When the Minister has State minerals that he is entirely satisfied are State minerals, he does not give notice of his intention to give a State mining lease to somebody to entitle everyone in the world to come in and say why he should not give these blackguards a mining lease. Why is the Minister deciding—and it is great news for the lawyers of Dublin and some other people—that the process of exercising the powers, the proposal to work any State minerals, or to give an undertaking, or to grant a lease, that he has to publish all these things and listen to representations for all sorts of people, about what is not specified incidentally, and in the next section he is to go and do the same again, or something like it? At least, he has to give notice the next time  he commences to work. Under this section—and I am only anticipating for the purposes of making this particular point which is relevant to both sections—when he proposes to work under this section, or he commences to work under the next section, in both cases he has to publish notices. Why should he obstruct himself in this fashion? The nation is hungry to get at the gold and get people working at it. Why should it all be held up while we listen to a rentier complaining about the pollution that will result from turning Ireland around the corner. What is the reasoning behind this?
Mr. R. Burke: The reasoning behind this is to be as specific as possible and to try to let people reading this Bill know exactly what their rights are. We tried to spell it out as clearly as we possibly could in the Bill. That is why we went into such detail.
Mr. Alexis FitzGerald: Having got the thing going, I do not think the Minister should hold himself up. It seems an intolerable business that the Minister should take the exclusive right to work, take on the burden of paying compensation for this. Having done that, he is not free to work in the manner he chooses. He is not free to get other people to develop as he decides might be right for the country. He is not free to give undertakings to them unless he publishes notices and has inquiries. Then having done this, if he is going to work it himself, he has to publish again the fact that he is going so. I do not see really why this should be so. The Minister ought to think again about this. Presumably, what we are at here is that we want to get legal machinery into existence which will make progress in the matter of development, and that there will not be clogs. I do not think this adds very much to the virtues of the Minister's position if he is thinking of defending some assault on the constitutionality of it.
Mr. R. Burke: Well, the advice we have available is that it does defend the situation if there is a constitutional issue.
Mr. Alexis FitzGerald: All right. Prudence is all. If he could think of some way of doing it whereby he would not be held up, I think it would be very good. Assuming that we go on with this, I would like to know who can come? Can competing companies come in and make objections? On what basis do people make representations? When they have made their representations and the inquiry is duly heard and the board furnish their report, what is the Minister supposed to do with it?
Mr. R. Burke: He makes up his mind if there is nothing binding in it.
Question put and agreed to.
Question proposed: “That section 18 stand part of the Bill.”
Mr. Alexis FitzGerald: I repeat the point I made on State minerals. He should be entitled to do this before he commences working. If he wants to give notice, before or after, or within two or three months he might do so but he ought to be entitled to get on with the working, to issue prospectuses and licences to work without delay. The thought behind this is that if anybody has an interest he should not be prejudiced but should be given an opportunity of seeing what his rights and so on are. That he can do afterwards. He need not do it before.
Mr. R. Burke: In the preparation of this legislation there was considerable legal advice taken from a group of legal advisers. They specifically, and very strongly, were of the opinion—and this is why it is included—that notice should be given.
Question put and agreed to.
Section 19 agreed to.
Question proposed: “That section 20 stand part of the Bill.”
Mr. Alexis FitzGerald: Is there any intention to keep a register of people entitled  to compensation? How does a person establish his right to get compensation? When does it vest in the Minister? Does it vest in the Minister immediately this is enacted? Is the compensation to relate to the time it was vested in the Minister? Does the compensation relate to the value at the time he starts working it? What is the position—again I am thinking of a constitutional assault—if he does not work? It would be strange to have the right to work minerals taken from you and no indication that you will ever get anything out of it.
Mr. R. Burke: He would appeal to the mining board and if he is dissatisfied with their view he appeals to the courts.
Question put and agreed to.
Question proposed: “That section 21 stand part of the Bill.”
Mr. Alexis FitzGerald: I am troubled about subsection (4)—the right to review. As the entire section stands, a person could fight his way to the High Court on determining what should be settled, and immediately after it is settled, he can apply again under subsection (4) to have it reviewed. There should be some time limit. When a matter is determined, that should stand. The landlord and tenant legislation is providing five years or seven year reviews. There should be some stability. I should have thought that somebody coming into a development situation would want to know that this is fixed.
Mr. R. Burke: The mining board will be expected to act sensibly in this as in all other matters and would be expected to accept——
Mr. Alexis FitzGerald: But the man might not act sensibly.
Mr. R. Burke: The inclusion of subsection (4) is to defend this Bill against a constitutional assault.
Question put and agreed to.
 SECTION 22.
Question proposed: “That section 22 stand part of the Bill.”
Mr. Alexis FitzGerald: This section may take the rest of the afternoon. It is very important. What criteria will the mining board use with regard to the determination of compensation? What is the justification for the Minister getting any part of this, if the minerals are owned by the mineral owner? On what basis is the mineral owner to get part, and the Minister to get another part? I should have thought that the criterion would be that taking the exclusive right of working made it possible to work and that is a ground for the State getting a dividend out of it. How are we going to work it if there are half a dozen different interests in the same State mine? Who is going to determine that out of that corner comes that percentage of the net profits? How does the percentage vary from one year to another, if that corner is exhausted and this corner is not, or if it is all tackled in different proportions? I do not think the Minister has faced this at all. There must be some criteria specified for the mining board on this.
Mr. Keating: I find myself saying what Senator FitzGerald said but from another point of view—he is a lawyer and I am speaking from the point of view of someone who wrestled with a past situation and who very much wishes to see the unsatisfactory legal framework within which I tried to work made into an effective framework for the present Minister and for his successors.
This is the last section but it is the nub of the Bill. The great two-word question which is the most important in all commercial transactions simply says “how much?”. We want to have legislation that will enable things to happen quickly, and that was always a constraint in my thinking. By quickly I do not mean a matter of weeks, I mean that we do not get into years of delay. I have seen years of delay. At this moment we see a circumstance which became apparent in the autumn of 1970 still unresolved, almost nine years later. We are now talking about legislation where, from  reading the official reports of the Dáil, and from everything the Minister of State has said today, the preoccupation constantly in the minds of the drafters is with the question of constitutionality. Will it not be a lovely circumstance where we have these interminable delays that we head off again to the Supreme Court, and we know how fast the Supreme Court works. Is any Minister faced with the pressures of the people on the ground saying “we want jobs”—and they are perfectly right to say that— going to say “we will go to the Supreme Court”. That will take another year, it will be appealed and that will take another two years. Ministers cannot face delays like that because the public will not face them. That means we get an effort to patch it up by negotiation, which is necessary but never satisfactory. The question is “how much?”
There is a mechanism that says: yes, there is a defined mining board and they will say a sum of money. Then you go to the High Court and maybe it will be adjusted. I am not certain whether, any Act of this kind, if it is promulgated, can take away the right of further appeal from people who are not satisfied with the High Court decision. They may be able to frame an appeal to go further. Then you are into another indigenous court. When that is exhausted, we have other levels outside the country.
What I find so unsatisfactory is that this Bill does not seem to solve things. We all understand the circumstances that have prompted the drawing up of this Bill. I know it does not aim to be comprehensive, it aims to solve a particular problem, but we have to ask ourselves if it does.
Let me take a concrete instance and apply section 22. You find an ore body which is technically a nice ore body in the sense that it is readily mineable, the transport is good. the quality of the ore is good, and the mineral is one the world is clamouring for. Let us say there is 100 million tons of ore, that each ton, when the mine body is assessed and averaged, contains minerals—it will not be pure—that are worth £1,000—and you know they are worth £1,000 when you have done the first assessment. You can play all sorts of games and discounted  cash flows, and guess what that particular mineral would be worth in 25 years time but how much of that 100 million multiplied by £1,000—because that is the value of the ore body in money—is the owner going to get? How is that fraction going to be divided? If the fraction turns out to be a sum of money like £500 million or £1,000 million—and it is perfectly thinkable with current mineral prices that it should do—is the owner going to get that sum out of Irish public funds? If that mechanism sets itself in train and results in a compensation like £500 million for somebody, the Minister has no mechanism for backing out, he has to pay the man. It ought to be said that we all understand it will not come to big sums of money like that, but this seems to be looking into two positions, one of uncertainty, where we all assume it will only be £10, £20, £50 or £100 million, thinkable sums, and we go ahead, but if it gets to astronomical sums, are they paid? If there is an understanding that the amount will never be astronomical, how do we know that? What are the criteria by which a mining board, and subsequently a High Court and subsequent courts, will actually fix a sum of money? It comes back inevitably to the question of “how much?” The reason that it comes back to that question is that in the end the product of this human endeavour is a metal which is sold on a domestic or world market at a price. If that price does not show a profit it vitiates the whole enterprise and people will not undertake it.
We wish a solution to this problem. While sometimes in the last few hours it seemed as if we were picking on small things, it was in a spirit of wishing validity, wishing precision, wishing usability to this legislation, but when it comes to section 22 I do not know where it will end. I do not see it providing a solution. I have gone on too long to say that, but I wanted to say it sometime.
Mr. R. Burke: The subsection provides the basis on which compensation of awards may be assessed by the  mining board or the court, and indicates for the guidance of the board and the court matters which should be taken into account for the purpose of an award. Essentially this would reflect the preextraction value of the minerals in terms of their contribution to the mining operation. The compensation provisions in the 1940 Act, if I can get the thing in perspective, require the mining board to assess compensation on the basis of what would be fair and reasonable as the consideration for a bargain between a willing grantor and a willing grantee, taking account of the conditions under which the minerals were held prior to acquisition by the State, and also the condition under which, and the period for which, they were so acquired. For the purpose of the hypothetical bargain referred to each party, the applicant and the Minister, is deemed to have had at the time of the bargain full notice of all such information bearing on the nature, value, extent and situation of the minerals, the subject of the compensation claim, and available for public inspection in the Office of the Geological Survey in Dublin.
Some criticisms were expressed about the above scheme of compensation in the court proceedings of 73-74 concerning the Navan ore body. It was criticised because of the uneven disposition of information pertaining to the minerals, the subject of a compensation claim. The Minister could be put in possession of information not open to public inspection nor available to a claimant for compensation, because of the inadequacy of such information as a basis for the formulation of a compensation claim due to a lack of provision. In the preparation of this Bill various formulae were looked at, various ideas were tossed around, but in the final analysis there is no substitute for the knowledge and the good sense of the members of the mining board.
Senator Keating mentioned the fact that we do not know what awards could be made—£500 million, £1,000 million. We can only presume on the good sense of the members of the mining board that we will not end up with that sort of figures. We have to take it that there is no substitute for the good sense of the members of the mining board.
Mr. Keating: I accept of course that a reasonably constituted board of statistically normal decent people will exercise good sense. Of course they will. You could not run a State or an economy if you could not presume on that, and 99 per cent of the time you can. In what the Minister read out there was mention of a willing—I am not using his words exactly, but that is the sense of it—seller and a willing buyer. In other words, it is a market place value. If we go back to the Navan ore body, what would have been the value the State would have had to pay for the whole of it? Let us assume that it was not partly State and partly private, that it was totally private and that instead of a purchase price as fixed by assessors of 25 per cent, the State would have to buy the whole of the ore body, not one-quarter or one-fifth of it, then the sums would be absolutely astronomical. With the good sense on the part of a mining board there would have been incredible sums of money.
The net effect of what the Minister is saying is: yes, the Minister for Industry, Commerce and Energy may see that things are proceeded with, but he may see that they are proceeded with with full compensation to the people who are, by chance, private owners of the minerals. Therefore, we are no further ahead than the position that says: “We will buy all the private minerals in the country.” One could buy them by negotiation, and that would be all there was to it. One could buy the remaining minerals and would get them cheaper if they were bought before assessments had been done on them. One could go to landowners and say: “will you sell any mineral rights you may have for such and such a price before we go and see what is there?” With the scale of ore bodies where one is talking about hundreds of millions of tonnes of ore, and with the valuation of the mineral content of those ore bodies, one readily gets into thousands of millions of pounds. That is a price a willing buyer would pay if that willing buyer was one of the great mining corporations of the world at a time when there is scarcity of that particular mineral.
Is the Minister going to buy an exercise of good sense undefined? Good  sense is a necessary concept that we all function by, but it is not much use in law. The Minister is hoping that, by the exercise of good sense by a mining board, those thousands of millions of pounds will become manageable sums of money that the State can contemplate paying.
Mr. R. Burke: If we take the situation that the mining board comes up with a decision on a compensation claim of a vast sum of money which is totally out of proportion to what the real worth of the compensation should be, the Minister has the right to appeal to the court. If the court still comes up with this excessive compensation award, the Minister has the right to decide if it is in the common good not to go ahead. He can divest himself of the mining lease. He does not have to continue if he decides that the payment of such excessive compensation would not be in the national interest.
Mr. Alexis FitzGerald: The Minister is saying that it is deliberately intended to have the right to sell or alienate the exclusive right of working?
Mr. R. Burke: I am not saying to sell it, but to restore it.
Mr. Alexis FitzGerald: There is no way of restoring it except by selling it.
Mr. Keating: I can only say now that I am curiouser and curiouser. These astronomical valuations will be given precisely in relation to the most valuable orebodies. Let us assume some valuable orebodies—a few more Navan orebodies. It is a perfectly reasonable assumption. One gets a valuation, and the Minister says it is too much. One can do one of two things: either the mineral is left in the ground and not proceeded with, or it is proceeded with by the private owners. What is the object of all our legislation if it does not attain the end of it being done through the control of the State and with a very large amount of State benefit in it?
Mr. Alexis FitzGerald: The State will own a great chunk of this mine by virtue  of other provisions. The person in the middle will be the person who will get his chunk. The way in which an individual interest is to be determined is enormously important so that the mining operation can go ahead and he can get just treatment in his portion of the shareholding and that there will not be an over-hanging lump sum. It is contemplated that compensation should be primarily in the form of periodical payments. It might be wise to have express powers to give a block of shares in the concern in satisfaction of this interest, rather than to have any cash payment which might weigh down the enterprise. Let him take a share of the equity. There can not be a more handsome reward for having the minerals. The basis on which to distinguish what the Minister gets for the State and what the owner gets for the ownership of the minerals, has to be clearer in our minds before this legislation is passed.
Mr. R. Burke: Assuming that the decision on the compensation award is fair and reasonable, it would be good sense for the Minister to proceed as is envisaged in the Bill. I take it the Senators are talking about an excessive compensation being given by a decision of the mining board. If the Senators care to put down particular amendments to improve section 22, I will consider them at Report State.
Mr. Keating: I do not propose to pursue this at great length. The Minister of State has been contrasting two things as if they were different: he said, on the one hand, what is a fair and reasonable award and, on the other hand, an excessive award. Those terms, without the spelling out of criteria, are without meaning. If you take a concrete instance of a 100 million tonne body of rich ore with a valuable mineral, then an award which would be fair and reasonable in terms of the total value of the asset would be excessive to the extent that you would have rioting in the streets if the State tried to pay those hundreds of millions of pounds to a private owner. The  terms fair, reasonable and excessive are not mutually exclusive. Were they the identical sums of money, and described by an arbitration board, whether a mining board or a court, as fair and reasonable, they would be described by the plain people of Ireland as excessive, so excessive as to be not capable of being done in a democracy. The contrasting of them is to me without meaning.
Question put and agreed to.
Question proposed: “That the Schedule be the Schedule to the Bill.”
Mr. Alexis FitzGerald: Section 17 which is being repealed contains provision for an offence. I presume the repeal section will be maintained in case somebody has committed an offence under subsection (4) so that he can be prosecuted for it. Is there a saver for section 16, that is, the Minister's liability to pay compensation? If there be any such case, presumably that liability is continued, notwithstanding the repeal.
Mr. R. Burke: I will look at it between now and Report Stage.
Question put and agreed to.
Title agreed to.
Bill reported without amendment.
Report Stage ordered for first sitting day after the Easter recess.
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