Michael McNamara (Clare, Labour) | Oireachtas source

I have three primary concerns about the Bill, one of which relates to the refusal of felling licences without compensation. If one grows a commercial crop, regardless of whether it is wheat or Sitka spruce, one does so in order to bring it to market. If one cannot bring one's crop to market, then I am of the view that this is an interference with one's property rights. Those rights are protected under the Constitution. I examined this matter at the weekend, particularly in the context of J. M. Kelly's The Irish Constitution, which details the cases relating to this matter. Bizarrely, quite a number of them involve the Minister for Agriculture, Food and the Marine and relate to quotas, licences, etc.

It is complex but there is a general principle that if the State interferes with one's property rights, one is entitled to compensation for that. Under the planning Acts, as a general principle, if one is refused planning permission, one is not entitled to compensation. When one applies for planning permission, arguably one is seeking permission for a change of use of land or there is a possibility one is going to benefit from it. If one grows Sitka spruce, no one grows 10, 100 or 1,000 acres of it to admire the beauty of it because it is not particularly beautiful. It is not like an ancient oak forest. It is grown as a crop and if one cannot fell it, one's properties rights are being interfered with and no compensation is provided. It is very clear the Minister can refuse an application for a felling licence without compensation.

I want to contrast that with the provisions of the legislation in Britain, which does not have any written guarantees for the right to property, although it has an unwritten constitution. The legislation states: "The following provisions shall apply where application is made to the Commissioners [in Britain it is the commissioners, not the Minister, who grants felling licences] ... and relates to the felling of trees in accordance with the plan of operations or other working plan approved by the Commissioners under a forestry ... agreement, or otherwise approved by them in writing for the purposes of this section." It also provides that the commissioners shall not refuse the licence unless the Minister basically approves them in doing that. It further provides: "If the Commissioners refuse the licence, the applicant may by notice given to the Commissioners in the prescribed manner and within the prescribed time require them to buy the trees". Those provisions are very different from the position in Ireland where one can apply for a licence and be refused and there is no comeback and no possibility of compensation for a refusal.

I can appreciate the difficulty this would create for the Department but at the very least the Minister might incentivise forest management plans. They are referenced later in the Bill and they are compulsory. Even where people have a forest plantation in place, the Minister of State's officials can suddenly require them to have a forest management plan and it might or might not be approved by them. Why can this not be done by way of incentive in that if a forest management plan provides that the trees shall be felled at a certain stage, it cannot be refused without compensation, as is provided for in Britain. The Minister of State spoke about the lack of forestry in Ireland and how we need to incentivise people. One would be mad to plant 100 of 1,000 acres and run the risk of being told in 50 years time that we love the look of those Sitka spruce. Why would one take that risk? People want certainty. Forestry is an agricultural endeavour and people want a return for it. If they can be told that they cannot get a felling licence 50 years on, why would they bother? I would view that as a huge disincentive. I agree with what the Minister of State is setting out to achieve here, which is, first, to make forestry easier and, second, to make it more attractive, but this provision does neither.

I hope the Minister of State will consider for Report Stage how he can deal with the issues of refusals of felling licences, in particular whether he could introduce a provision similar to that in Britain with regard to where felling is envisaged as part of a forestry management plan. I note the Minister of State's official is shaking his head. All of us as legislators can choose what we vote and do not vote for. Some Ministers are captive to their officials and some are not.