Mr. Bertie Wall:

Thank you, Mr. Chairman, for the opportunity to address the committee on the important and relevant subject of commonages. I am not sure whether committee members have read the document, but if not I will read it through.

Commonage land is land that is owned collectively or by one person over which land other persons have rights. That is the fundamental aspect of commonage as opposed to private land. These rights are exercised in common with all other rights holders. Common rights include the following, some or all of which may apply on a commonage. Pasturagerelates to the right to graze cattle or sheep. Turbaryrights relate to the right to cut peat or turf for burning as domestic fuel, and estoverrights relate to the right to take wood or timber for firewood. Commonage land legally is the common property of all the shareholders and its use by any other requires the express permission and approval of the shareholders. One very important point with regard to grazing rights is that the grazing right is only proportionate to the share of the land owned. According to the Central Statistics Office, CSO, figures for 2012 the total commonage area in the Republic of Ireland is 422,415 hectares, which accounts for 8.5% of the total utilisable land of the State. The CSO also provides a figure of 440,000 hectares in the same 2012 report. We are talking about a sizeable amount of land of approximately 500,000 hectares. The only other country where commonage is of such major importance is our near neighbour, Scotland, where there is 591,901 hectares of commonage, which amounts to 9% of the total utilisable land of that country. Currently 33% or 360,360 hectares of all commonage grazings in Scotland are unclaimed. In Ireland huge issues arise around the question of dormant or absent shareholders with some commonages having as much as 80% dormancy. The figure was extracted from the European forum on nature conservation and pastoralising report from June 2012.

Throughout the 1980s and 1990s most commonages were subject to serious overgrazing, mostly by sheep. That was as a direct result of EU agricultural policies operating at the time. In 2002, alarmed at the scale of the damage being done, a successful case was taken to the European Court of Justice which found that Ireland was in breach of EU nature directives. In particular the birds directive for permitting the destruction of red grouse habitats. In fact, the EU Commission at the time threatened to stop all agricultural support payments to Ireland's commonages unless serious corrective action was taken. The State was obliged to take immediate corrective measures to restore the damage caused by overgrazing and the restrictions were to remain in place until there was a near complete recovery of vegetation cover, flora, fauna and ground structure. Most of the restrictions were to remain in place until the end of 2013. As a result there are now around 4,500 commonage framework plans, CFPs, covering around 440,000 hectares. The figures were provided by the CSO. The framework commonage management plans have been implemented, monitored and re-monitored over the past ten years and as a result it can be fairly stated that commonages still vary in terms of their grazing conditions, that is, some are overgrazed, some are undergrazed and others have sustainable grazing involving the restoration of heath and heather and calcareous grasses. All of the above mentioned commonage management plans were carried out to meet the requirements of EC Regulation 1698 (2005) as amended by EU Regulation 65 (2011). Members are probably aware that an EU regulation is the most direct form of EU law. As soon as they are passed, regulations have binding legal force throughout every member state of the Union, equal to all national laws. National governments do not have to take any action to implement the regulations in their national parliaments; they are automatically transposed into national law.

In July 2011 the Minister for Agriculture, Deputy Simon Coveney, unveiled his plan requiring farmers on commonages to increase stocking rates. The plan set minimum and maximum numbers of ewe equivalents required to graze each commonage. It also included a draft agreement requiring each commonage shareholder to state their 2013 stock numbers. Included in this communication was the usual threat to farmers that failure to comply with the conditions and specifications, as outlined, would have serious impacts on their single farm payments and other payments. The Minister made it clear at the time that the plan was in support of his concept of what is termed the "active farmer". He further stated his intention to link future payment supports to the concept of the "active farmer" - an as yet undefined entity.

The United Farmers Association has the most serious concerns as to whose benefit the changes in stocking rates are meant to support. There is a deep suspicion that this is an underhand attempt to deprive thousands of west of Ireland farmers of their farm supports. In the west, commonage represents 19% of the total farmland area. At present there are 4,500 commonage framework plans covering the 440, 000 hectares of every individual commonage. The commonage framework plans being implemented at present were drawn up after careful study and physical examination of all commonages by geologists, agronomists and agricultural professionals and were only completed in 2005. With the full-scale implementation of the CFPs a new agricultural scheme was introduced - the National Parks and Wildlife Service farm plan scheme for designated areas and commonage. Under this plan farmers were compensated for the quite severe destocking, in some cases by as much as 30%, which had to be carried out. Farmers in the REP scheme on commonages got an additional €7 million a year and those farmers on commonage not in the REP scheme received an additional €5 million from Dúchas.

The whole situation is now in a state of confusion and uncertainty. The new plan from the Department of Agriculture, Food and the Marine and the National Parks and Wildlife Service now sets new stocking rates for each and every individual commonage, many of which stocking rates make no sense or logic. Contiguous commonages side by side will have very different stocking rates. Who agreed the stocking rates? Agreement on the stocking rates will have to have as a condition of the new scheme the full consent and agreement of all the rights owners on each individual commonage. However, in some cases there is an 80% absentee rate of rights owners. In addition, we have a property regime which invariably implies and encourages rivalry and non-excludability, and in many cases outright hostility on how that is to be achieved. We do not know what professional assistance, if any, will be provided. In the event that universal agreement cannot be reached between all the rights owners the present stock owners on commonages must undertake to provide the total stock numbers designated for the commonage. Therefore, if a commonage has 32 rights owners and at present only two stock owners farm their individual shares, unless there is total agreement those two stock-owning farming rights owners will be forced to provide all the stock to cover the requirements of the other 30. The stock must be of four specified breeds of sheep or cattle. One could ask whether there is sufficient stock for the purpose. Facilitating agreement even if it is possible to trace all the rights owners can take a considerable amount of time and effort. Experience in England has shown that this process took a minimum of one to two years. A more realistic timeframe to bring about such revolutionary changes on Irish commonages in terms of management structures, stocking and changes in stock types and breeds is probably five to ten years.

With increased stock on commonages bordering on county roads, who is going to complete the major fencing requirements, as newly introduced stock will simply wander all over the roads and neighbouring farms? Is there a market for all the extra light hill lamb that will be produced?

In the view of the United Farmers Association, UFA, there is a serious danger that the Minister's plan could concentrate all future payments on wealthy well-funded large operators who can afford to finance the restocking and management expenses that will be required and as a result deprive payments to those who cannot. It is the settled policy of the UFA that farmers, no different from any other citizen of this land, have a legitimate expectation of fair and equal treatment similar to all other citizens and that sudden and unreasonable changes of policy by public authorities which have as a consequence unforeseen and possibly damaging effects on the incomes and welfare of certain categories of citizens are null and void and therefore open to challenge. The practicable aspects of implementing a plan requiring such dramatic changes to a long established way of life by the Minister and the National Parks and Wildlife Service must only be carried out on the basis of ongoing consultations and discussions on the timescale and the implementation procedures for this scheme with farmers and their planners.

The Minister for Agriculture, Food and the Marine fiddled with this scheme from July of 2011 to November and sought to impose it on unsuspecting farmers and planners, giving little over two weeks to get it all sorted out under threat of withdrawal of payment, and then had to withdraw it. This is not the way to achieve success. It is UFA policy that the following are the absolute minimum requirements for the implementation of this scheme: first, commonage land needs targeted rural development measures and programmes to sustain this irreplaceable natural resource and avoid land abandonment with the inevitable consequential environmental disaster. Second, all development measures and programmes to be implemented in consultation with all stakeholders. Third, the collective agreement concept for the future governance of Irish commonages is a potential minefield. If not handled with care and attention to the sensibilities on the ground it will lead inevitably to conflict between different classes of stakeholders. Fourth, the concept that all farmers in a particular commonage are to be held responsible collectively for the actions or, indeed, inactions of all stakeholders on that commonage is an alien concept and, in the view of the UFA, is morally and legally deficient. Fifth, to penalise an individual farmer who has maintained the required minimum or maximum stocking rate because of under-grazing of that particular commonage due to dormant shares or the unwillingness of absent stakeholders to participate in any agreement is simply wrong and unjust. Sixth, with new breeds of stock being introduced which will require new husbandry practices, a five to ten year lead-in period is necessary. The whole farming system on commonage farms will have to be looked at. This may involve a change in the breeding and systems of sheep production to, for example, the production of light hill lambs for a target market or breeding replacements for lowland flocks. Seventh, the control of heather and scrub through burning and swiping has to be provided for. Eighth, the impact of all of the foregoing on recreational users of commonages and agri-tourism must constitute an important factor for consideration.

Ninth, native commonage sheep flocks have a strong home range tendency or natural instinct that is known as hefting. These native sheep flocks will graze selected areas without the need for fencing and with only the need for occasional shepherding. A further hidden advantage is that having become accustomed to grazing particular areas of the commonage these sheep develop resistances to certain parasites, mineral deficiencies and plant toxins. The knowledge of flock boundaries, location of optimal grazing and the location of shelters is passed on from ewe to lamb. A successful heft is normally dependent on sufficient numbers of ewes in adjacent hefts to maintain flock boundaries. All of this is an essential element in the farming of commonages and must be preserved as far as practicable, given the need for re-stocking under the new management regime.

Tenth, it has to be allowed that it may take four to five generations of newly introduced sheep with the need for constant shepherding to achieve a heft system of control and management. Eleventh, until the newly introduced sheep flocks have achieved a heft situation the serious problems of wandering, trespassing, wandering onto public roads, theft and rustling have to be provided for. Twelfth, there will be a massive financial loss to the Irish Exchequer if this new management system is not implemented properly and commonages currently unfarmed were to be permanently excluded from the national payments from the EU. Farmers will require financial assistance to buy dormant shares.

Point No. 13 is that adverse possession, or squatter's rights, as in section 49, does not operate in a commonage situation as it would in privately owned abandoned land after a 12 year period. Dormant shares have to be purchased. It is not acceptable to the UFA to allow cheque book individuals take advantage of this situation. Point No. 14 is that the costs of employing full-time shepherds to heft newly introduced sheep for a period of five years and the secretarial, accounting and bookwork costs associated with the new management system have to be provided for in the implementation of the new regime.

Point No. 15 is that the costs of tracking devices to help recover microchipped sheep which have been stolen here to be covered. Sheep stealing is a serious problem in certain remote parts of the State. Point No. 16 concerns an undertaking that there will be sufficient Garda resources in rural areas to protect the valuable resource of hefted sheep and the specific cattle breeds suitable to remote commonages. This is also of serious concern at present.

Finally, point No. 17 is that, specific to County Donegal, a binding undertaking is required with regard to the situation where State owned red deer from a national park in the north of the county are devouring whole areas of commonage without let or hindrance. Farmers cannot be expected to maintain any kind of stocking rates in this ridiculous situation.