Friday, 18 December 1998
Seanad Éireann Debate
Minister of State at the Department of the Marine and Natural Resources (Mr. Byrne): In commending the Fisheries and Foreshore (Amendment) Bill, 1998, to Members for approval, I am particularly concerned to ensure that we will have aquaculture licensing arrangements which will endure and withstand legal challenge. We owe that to the aquaculture industry and the public.
For far too long, there was uncertainty about aquaculture licensing. I am committed to making the Fisheries (Amendment) Act, 1997, work as intended and, therefore, endorse the Minister's and the Government's proactive approach in the Bill to removing legal doubts which have emerged since that Act was passed by these Houses. Sections 2 and 3 of the Bill address those doubts.
I propose to deal with the Bill first in detail before proceeding to wider policy and strategic issues relating to aquaculture generally. The particular urgency of the Bill relates to aquaculture licensing, as I shall now explain in some detail. It was only in the past month or so that some legal doubts began to be mooted with my Department, by some aquaculturalists and others, as to whether the Fisheries (Amendment) Act, 1997,  did, in fact, achieve what it set out to do in sections 74 and 75.
Section 74 of the 1997 Act was intended to carry forward for consideration under the 1997 Act all undecided aquaculture licence applications for marine sites made since 1980, but made under the 1959 Fisheries (Consolidation) Act. Some people have argued that the applications could not be regarded as proper applications in the first place, as the 1980 Fisheries Act, providing for designation of marine sites for aquaculture, was the proper framework for such applications, although inoperable where marine sites were not designated under the Act.
Section 75 of the 1997 Act was intended to carry forward licences for aquaculture in marine sites granted since 1980, under the 1959 Fisheries (Consolidation) Act or the 1933 Foreshore Act for aquaculture purposes, as if they were granted under the 1997 Act. Some people have argued that those licences should not have been granted at all on the grounds that only the 1980 Act was available for that purpose.
The efficacy of sections 74 and 75 of the 1997 Act has been most carefully considered by my Department's legal advisers in consultation with counsel, and sections 2 and 3 of the Bill have been carefully crafted to remove all such doubts.
My Department's legal advisers have also recommended the replacement of section 11 of the 1997 Act, so as to prohibit from the date of publication of the Bill, which was 10 December 1998, persons from commencing aquaculture operations pending the grant of an aquaculture licence after due process under the Act. This section is obviously needed to protect the rights of duly licensed aquaculturalists, as well as third party rights generally, and will ensure due process in relation to proposals for new aquaculture operations, fully in accordance with the spirit of the 1997 Act. The original section 11 could not have been commenced without applying to many of the existing licence applicants of some years standing, who proceeded with aquaculture operations in the reasonable expectation of licensing without the long delays which have arisen because of litigation which culminated in the replacement of all earlier aquaculture licensing legislation by the 1997 Act.
While the particular urgency of the Bill relates to aquaculture licensing — sections 2, 3 and 4 refer — the Government considers that the other provisions of the Bill — sections 5 and 6 — should also be put into law at an early date.
Early amendments of sections 12, 13 and 14 of the Foreshore Act, 1933, are needed to protect aquaculture and the foreshore generally from unauthorised development and the deposit of harmful and other materials and so on. Section 5 of the Bill refers.
Those are the first amendments to those protective sections of the 1933 Act and are needed to deter deliberate or careless actions prejudicing the proper use and enjoyment of foreshore. Here, again, the Government is taking a proactive precautionary approach so as to ward off  unacceptable interference with national resources before serious problems arise. The penalties proposed for offences are the same as those provided in the Fisheries (Amendment) Act, 1997, for unauthorised aquaculture structures and other offences under that Act.
Section 5 of the Bill is without prejudice to the fundamental review of the Foreshore Acts, 1933 and 1992, which the Minister for the Marine and Natural Resources, Deputy Woods, has instructed our Department to carry out in the context of preparing new legislation for better coastal zone management. This involves consultation with the other Departments and statutory and other organisations concerned. While it is not possible at this juncture to predict the content of such new legislation, the aim is to have substantive legislative proposals for Government decision in the course of 1999.
Section 6 is required to protect from legal challenge long standing leasing and other arrangements for fishery harbour centre property for purposes not directly related to fisheries — for example, for purposes of local social and economic development — and to provide for flexibility in addressing current and prospective needs of local communities, without interfering with the essential fisheries capacity of the fishery harbour centres. The existing legislation dating from 1968 is too restrictive for present purposes.
Section 6 is without prejudice to the fundamental review now under way in the Department of the Marine and Natural Resources of the funding and management arrangements for fishery harbour centres under their existing 1968 to 1992 Acts. Proposals for new legal and other arrangements for fishery harbour centres will be announced by the Minister for the Marine and Natural Resources, Deputy Woods, as soon as the Government decides them, which it is hoped will be early in 1999.
Sections 1 and 7 of the Bill are standard definitional and interpretation provisions which require no further comment. Having ministerial responsibility for aquaculture licensing I am directing my Department to make an all out effort to ensure that all licence applications on hand, approximately 600, are duly processed as quickly as possible. We are committed to processing all existing applications to a conclusion in the course of 1999. The assessment of all applications must be thorough, as the 1997 Act rightly requires. Much progress has been made to date in considering applications, with 90 applications ready for formal decision as soon as this Bill becomes law. Another 30 applications are being finally assessed by my Department and its advisers, following necessary public consultation, prior to making a recommendation to me for licensing and the specific conditions to apply in each case.
All going well, decisions on 120 applications will have been made and publicly announced by the end of next month. A further 100 applications  have already been subjected to preliminary assessment to identify any gaps to be filled before they could be meaningfully considered by the public in the essential consultation process required by that Act. I should add that many applications may have to be refused because of unsuitability or non-availability of sites, due to navigational, proper husbandry or heritage protection reasons, which will only become apparent at the public consultation phase.
The current value of the aquaculture industry, in terms of direct output, is £58 million per year and direct employment of over 3,000 people. This has to be safeguarded and consolidated by aquaculture licences which withstand legal challenge. The aquaculture industry has to continue to apply the highest standards possible to all aspects of fish farming.
The potential for further growth of the industry is enormous, and I will continue my efforts to foster that growth. Aquaculture can provide worthwhile new jobs in many rural areas with few other opportunities. Secure aquaculture licensing arrangements are essential for drawing down valuable EU and Exchequer financed funds for the development of aquaculture operations. I am especially conscious of the investment requirements of aquaculturalists and of the financial pressures on them. I will ensure that licensing decisions will be made as quickly as possible to allow funding to flow to all aquaculturalists with sound business plans for the future and likely to make a significant contribution to output and job creation. I must, however, caution that having a licence does not necessarily entitle an operator to EU or Exchequer funds. Such funds have to be targeted at commercially viable projects.
I recently appointed the Circa Group, a team of top level economic consultants to undertake a strategic study of the aquaculture industry. The study will identify the strengths, weaknesses and opportunities of the industry, and the threats to it. It will make recommendations as to how the industry in Ireland shall be secured and developed with particular emphasis on overcoming perceived constraints on competitiveness. I believe the study, after involving consultation with all of the key interests in the sector, will point the way forward for this industry to thrive into the new millennium.
Earlier this year I established the aquaculture industry forum to improve existing communications between the State agencies and the aquaculture industry, which is now largely represented by the fish farming section of the IFA. To date, there have been four meetings of the forum. I attended its first and last meeting in November and I am pleased to report that it is working effectively and has already covered a wide range of issues, including fish health, safety on fish farms, environmental matters, the public image of fish fanning and the operational programme for aquaculture.
I believe that all those attending the forum, many of them engaged in aquaculture operations on a day-to-day basis, would agree that the forum  has been a useful vehicle for the industry and State services to exchange views. The forum has established two expert groups to address two issues of concern to the industry at present — the problem posed by infectious salmon anaemia, ISA — in Scotland and the difficulties being experienced in disposing of mortalities after disease outbreaks.
I will continue to support the forum and attend the meetings whenever Government business permits and to listen carefully to the views being expressed on all sides. In this way, I intend to remain alive to the needs and demands of the growing aquaculture industry and to ensure that appropriate controls apply to aquaculture operations.
From what I have said, Members will be in no doubt about my energetic commitment to fostering a thriving and responsible aquaculture industry while fully respecting the legitimate interests of the public. The Bill contains essential precautionary measures to ensure that the Fisheries (Amendment) Act, 1997, will work as planned in the overall national interest. I, therefore, commend it to the House.
Mrs. A. Doyle: I welcome the Minister of State and take the opportunity to wish him and his family a happy and peaceful Christmas and all the best for 1999. I extend these greetings to the public servants in his Department who have been responsible for the preparation of the Bill.
The purpose of the Bill is to remove any legal doubt about the status of 600 applications for aquaculture licences which have been made over a number of years and are awaiting decision and also to remove any legal doubt about the status of another 160 licences for aquaculture purposes which were granted between the enactment of the Fisheries Act, 1980, and the coming into operation last year of the comprehensive aquaculture licensing provisions of the Fisheries (Amendment) Act, 1997. I compliment my former ministerial colleagues, Deputy Barrett and Deputy Gilmore, for their work on that legislation.
The Minister rightly points out that as concerns have arisen since the enactment of that legislation, the main purpose of the Bill is to ensure that the aquacultural licensing arrangements put in place by the Act, which incorporates earlier legislation, would be able to endure and withstand any legal challenge.
I suspect there may have been a legal challenge. Is a judgment on the books or is one pending? Could or should the Minister of State be more specific with regard to the details of a legal challenge following which it has been deemed necessary to introduce this Bill? While I appreciate it may be difficult to elaborate on these points, could he explain how the legal doubts have arisen with regard to the last year's legislation?
The Bill contains several sections. I may refer to sections 1 and 7 on Committee Stage. Sections 2, 3 and 4 deal with the aquaculture licensing  arrangements. Section 5 amends and strengthens the Foreshore Acts, brings them up to date and deals with unauthorised developments, such as dumping of dangerous, prohibited or unsightly materials of any kind on the foreshore without due authorisation.
What would be the status of pre-1963 developments on the foreshore? These would include developments that pre-date the planning laws. There are what may termed holiday chalets and various other buildings along the Wexford coastline. They have been there so long they almost form part of our vernacular architecture. Will everything be removed or will there be any respect for what could almost be entitled squatters' rights or entitlements as they were understood in pre-planning and pre-licensing days? What will be the status of such developments and what will be the obligations on their owners when the legislation is passed?
I am not sure that the definition section, section 1, is sufficiently encompassing with regard to what constitutes aquaculture. Is there a difference between aquaculture, mariculture and fish culture? Is there a difference, for example, between an aquaculture licence and a fish culture licence? The terminology used has changed in the period between the enactment of the original Act, the introduction of legislation last year and the emergence of the Bill before us. Are the definitions of these pursuits sufficiently clear in the other legislation referred to in this Bill, particularly the Fisheries Act, 1980, and the Fisheries (Amendment) Act, 1997? Do they contain clear definitions of an aquaculture licence as distinct from a fish culture licence? If those definitions are being omitted from the definition section in the Bill, should the Bill not at least refer to a definition in another Act? There is precedent for that.
I accept that the Bill is not stand alone legislation but a Bill to amend last year's legislation which in turn incorporated the 1980 Act and the Foreshore Act, 1933. Given that this legislation is introduced to remove legal doubts and to avoid challenges to any aspect of licensing, I would be happier if the definition section defined aquaculture. If an aquaculture licence is being granted, what is meant by “aquaculture”? Is it the same as “mariculture” ? Are they different? Does this legislation only relate to sea fishing? Is there a licensing system for freshwater fish farming, or whatever one should call it? We must be precise about these terms particularly if the objective of this legislation is to remove legal doubts about legislation that was enacted only last year. I am not happy with the strength of the definition section. We should either redefine an aquaculture or fish culture licence or we should refer to those definitions in the previous legislation.
I welcome the Bill. I support the sustainable development of aquaculture, as I understand the term pending the Minister of State's definition. The industry must be ordered and there must be structures to regulate it properly. However, in regulating this fledgling industry which has grown  so much in recent years and has the potential to grow further, we must be careful not to strangle skills and practices that have existed through many generations of fishermen.
I refer here to concerns that were raised among eel fishermen in Wexford when Wexford Harbour, among other areas along the coast, was designated a special area of conservation. I am not sure what definition of aquaculture applies in this context or whether eel farming comes under the definitions in the Bill. However, there were questions about the right of eel fishermen in Wexford Harbour to continue the practices they have followed for many decades now that we are regulating and licensing their operations. I would not like to see longstanding, traditional aquacultural practices, which have stood the test of time environmentally, which have proven to be sustainable in the areas we are designating — the practices have obviously done no harm, otherwise the areas would not be fit to designate — and which have operated in balance with nature and respected the life cycles of the flora and fauna in the areas in question, brought to an end because those who operate them were refused licences on technical grounds.
Will the Minister of State provide further information on his Department's relationship with Dúchas in terms of assessing applications in this area? If Dúchas denies an application because an area has been designated as an SAC, is there a right of appeal? Who has the final say in respect of the granting of licences in heritage areas, Dúchas or the Department?
People are concerned that we will not respect traditional practices and operations which have patently not impacted on the balance of nature in the areas in which they are used. I know that the relevant authorities have many field officers but someone at a desk in Dublin might decide they could not officially sanction the continuation of the operations to which I refer. A blind eye has been turned to these operations, which are important local industries, for many years.
The Minister of State must provide assurances that these traditional aquacultural practices and operations, which have survived the vicissitudes of interference from game keepers, fisheries inspectors and local authorities and competition from the sea-based leisure industry, will be allowed to continue. He must also ensure that the officials in his Department responsible for assessing applications on these traditional “kitchen” industries and practices will possess a knowledge of them and an appreciation of their importance to local economies and the individuals who operate them. These small industries may only provide seasonal employment to between two and three people in an area but they are local, traditional practices which have enriched life on different parts of our coastline and in our harbours. I would like to see them continue. How will a balance be struck with regard to the decisions made in respect of these practices?  Will the imperatives of Dúchas outweigh those of the Department?
Mr. T. Fitzgerald: I thank the House for taking the Bill which, because of pressure of business in both Houses, was in something of a “stop-go” situation earlier in the week. I thank Senator Avril Doyle and her party for agreeing to take all Stages today because the Government side has been accused of rushing Bills through the House at the last minute.
Senator Doyle recognises the importance of the Bill. As she stated, former Minister of State at the Department of the Marine, Deputy Gilmore, introduced the original legislation which was aimed at regularising the situation in respect of aquaculture and mariculture. Senator Doyle raised an interesting question which I have also pondered for some time, namely, what is the difference between aquaculture and mariculture? I am sure the Minister of State will provide an answer in that regard. I have always been under the impression that the term “mariculture” refers to the marine while “aquaculture” is a more general term.
As Senator Doyle and the Minister of State indicated, the Bill is designed to remove legal doubts in the area of mariculture. The mariculture industry is worth almost £60 million. I welcome any developments in this area because 90 per cent of all mariculture activity takes place on the western seaboard. There is not much of it in Kerry, but all along the west coast, in places sometimes forgotten by Government, this is a welcome initiative. There are many families being looked after by the 3,000 people working in mariculture on the western seaboard.
Mariculture is suitable for some places, but not others. I remind the Minister and the House that I have been advocating assistance for places, on a voluntary basis, such as the oyster fisheries in Fenit for many years. Oyster fishing there simply involves controlling the oyster beds and issuing licenses to people to dredge the area.
Mussel farming consists of barrels floating in the water with ropes hanging down and can be unsightly. At Cromane, near Killorglin, and at the end of Dingle Bay Harbour nothing is visible. These are probably some of the most lucrative mussel farming areas because the mussels grow on the seabed and the locals dredge them up during the season. There are a number of inlets, as there would be in Senator Doyle's county, where one could develop natural mussel or scallop beds.
Mr. T. Fitzgerald: I look forward to the day when the present practice of drift netting and draft netting for salmon will come to an end. The fishermen who make their living from this method of fishing should, however, be properly  compensated. I hope to talk to the Minister about a salmon ranching scheme involving local fishermen. Under this scheme, they would control the number of fish entering of leaving the tidal mouth of a river, work on a co-operative basis and, at the same time, make sure the salmon come back every year and that enough are left to keep the angling fraternity as well as the fishermen happy.
We heard the good news of the major deal struck in Brussels by Minister Woods over fish quotas, which involves the North as well as the South. This comes at an opportune time, particularly as agreement appears to have been reached yesterday on the Northern Ireland Assembly. All of this is great news.
Minister of State at the Department of the Marine and Natural Resources (Mr. Byrne): I thank all the Senators for their contributions which were very helpful. I thank Deputy Gilmore, the former Minister of State at the Department of the Marine with responsibility for aquaculture, and Deputy Barrett the former Minister for the Marine. They introduced very exciting legislation and both Ministers guided it well through the House. This legislation will complement their activities.
Senators Doyle and Fitzgerald raised some interesting matters, particularly about the definition of aquaculture. Under the 1997 Act, aquaculture is defined as the culture or farming of any species of fish, aquatic or invertebrate animal of whatever habitat, or aquatic plant, or any aquatic form of food suitable for the nutrition of fish. I hope that is suitably confusing.
Mr. Byrne: At all times we consult with Dúchas on aquaculture licence applications. Heritage legislation giving effect to EU legislation has to be respected, otherwise the EU would take court proceedings against us. My Department works closely with Dúchas to ensure traditional and new aquaculture is not prejudiced. Practical solutions are being achieved through such consultations on a case by case basis.
The foreshore is outside the scope of the Local Government (Planning and Development) Acts, 1963 to date. The exceptions are parts of Bantry Bay and the Shannon Estuary. Planning permission is required for the part of the development on the mainland that adjoins the foreshore, such as a clubhouse or a jetty.
 Senator Fitzgerald mentioned the deal made last night. Everyone here knows that, when going to Europe seeking to halt the decline in fish quotas, all Governments face a difficult task. I am delighted to say that the Minister, Deputy Woods, secured increases in fish quotas worth about £9.5 million to Irish fishermen. It is significant that the deal incorporated North and South. Senator Doyle will be happy to hear that the people of Kilmore Quay and the other many harbours along the coast of Wexford will benefit from it to some degree. The Minister achieved a substantial development of the fishing industry and should be complimented for that.
I thank Senators Doyle and Fitzgerald, and the House, for allowing us to have this legislation in place before Christmas because of the number of people who are ready and waiting for licenses. We all agree that aquaculture is an industry with tremendous potential. The number of jobs and income of £60 million from this area can be increased. Those jobs would be in remote areas where there might not otherwise be employment. The aquaculture industry will thank us all, including the Opposition and Opposition Whips and spokespersons, for being so responsible. There is nothing sinister about the Bill. It will clear up a legal doubt which may exist.
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