Mr. Brian Breslin:

We had prepared a Powerpoint presentation but, I believe, for technical reasons we cannot use it. We have slides printed and we are making copies available.

Minerals exploration and development is currently regulated through the minerals development Acts 1940 to 1999. This is done through prospecting licences and mining leases and licences with the work being undertaken by the private sector. Mining means extraction of minerals and is referred to in the legislation as working of minerals as opposed to prospecting which is exploration.

The exclusive right to work minerals has been vested in the Minister under the Minerals Development Act 1979 with the exception of a small number of mines which at the time were in operation on a specific date since 1978. Ireland is one of the leading zinc mining countries in the world and continues to attract high levels of exploration expenditure. As explained by Mr. Frank Sheridan output amounted to €426 million in 2012. This is outlined in a study undertaken by Indecon consultants on behalf of the Minister in 2013. Exploration and mining companies contributed a total of €56 million in taxes to the Exchequer in 2012. The State also benefits from payments made by the prospecting and mining companies in the form of royalties, licence fees and other payments which amounted to €9 million in 2012.

It is well recognised that a single national system for regulating mineral exploration as well as clarity on the ownership of mineral rights is essential if private investment is to be attracted.

The proposed Bill will replace the legislation from 1940 which was enacted during the Emergency. The mining industry in Ireland is currently regulated by five statutes which are listed in slide two of the presentation. They are: Minerals Development Act 1940, Petroleum and Other Minerals Development Act 1960, Minerals Development Act 1979, Minerals Development Act 1995, Minerals Development Act 1999 - collectively referred to as the Minerals Development Acts 1940 to 1999. There is also a provision within the Energy (Miscellaneous Provisions) Act 2006 which relates to specific powers for the Minister on the question of rehabilitation of a particular mine. Those Acts include, inter alia, provisions for regulation of minerals prospecting and development, a statutory vesting of the exclusive right to work minerals in the Minister, subject to payment of compensation, compulsory acquisition of other rights necessary for efficient development of minerals, subject to payment of compensation; and the payment to the State of rents and royalties from the extraction of minerals.

The background to the Bill is a Government decision of 2 June 2006 which authorised the drafting of the Bill. It has been in the course of preparation for a number of years and its completion, as Mr. Frank Sheridan has said, has been interrupted on more than one occasion by diversion of drafting resources to other higher priority legislation. The initial motivation to prepare the legislation remains the same today.

The objectives of the Bill are to provide a modern regulatory regime for exploration and development of State minerals.

It will regulate, in accordance with principles of social justice, the exercise of private rights in respect of minerals and ancillary rights and will reconcile their exercise with the exigencies of the common good. It will provide for the continued vesting in the Minister for Communications, Energy and Natural Resources the exclusive right of working, selling or otherwise disposing of private minerals which are not in the course of development, subject to compensation, and it will provide for the preparation and implementation of rehabilitation plans for abandoned mine sites and to provide for consequential amendments.

The Short Title to the Bill is:

An Act to make further and better provision for the development of minerals in the State and for that purpose to repeal the Minerals Development Acts 1940 to 1999 (other than certain provisions of the Minerals Development Act 1979) and the Minerals Company Acts 1941 to 1950, to make consequential amendments to other Acts, and to provide for related matters.

The matters referred to in the Title relate to the procedures for compulsory acquisition in respect of ancillary surface rights; the method for the calculations of rents and royalties; and the basis for payment of compensation in respect of private minerals. The Bill will provide for greater transparency and predetermination of terms, including rents and royalties, which will streamline the permitting process and will bring other aspects of the regulation of the mineral sector in line with best practice, having due regard to the constitutional protection of property.

The Bill does not directly address environmental matters because these are considered more appropriate to the EPA and local authorities. In any event, the legislation which established the EPA specifically precludes the Minister from attaching conditions to mining permits which are designed to limit or control emissions to the environment. That is a matter for IPC Licensing. Nevertheless, our legal advice is that the Bill must take appropriate account of these matters, in particular to address obligations under the Aarhus Convention. This convention, which has been ratified by Ireland, relates to access to information on the environment and public participation in environmental decision making, in addition to access to justice in that context. The implications of the convention for exploration and mining were carefully considered in close consultation with the Attorney General and the provisions of the Bill in that regard have been drafted accordingly.

The Bill is divided into eight parts. Part 1, shown on slide 11, deals with preliminary and general matters. This part of the Bill provides standard provisions such as short title and commencement arrangements, scope and interpretation. It provides that the Bill would apply to all minerals within the State or within designated areas of the continental shelf and that, for the purposes of the Bill, as in previous legislation, "minerals" do not include stone, sand, gravel, clay, turf, peat or petroleum.

Part 2 deals with prospecting and sets out the administrative practice for prospecting licences from application to surrender. Provision is made for public notice and consultation prior to issuing prospecting licences and for the payment of compensation for damage or nuisance arising from prospecting for minerals. Provision is made for a new type of licence known as a "retention licence" where the holder of a prospecting licence has discovered a mineral resource that cannot, for a variety of reasons, be brought into production immediately. It also provides that the Minister, in assessing the public interest of an application, must take into account the economic benefits of the region as well as the environmental impact of the proposed exploration programme.

Provision is made for the Minister to make regulations regarding the setting of conditions to be attached to a prospecting or retention licence. A new requirement is that prior written consent will be required for boreholes, trenching and bulk sampling. While trenching required consent in prior legislation, the other two activities only required prior notice. Although the regulation of airborne geophysical surveying is a matter for the civil aviation authorities, provision is made for the Minister to be notified of such surveys and for the submission of data.

Part 3 deals with working minerals. The 1979 Act vested the exclusive right to work minerals in the Minister, subject to the exception of minerals being worked at the time and registered as such, and provided for the granting of that right by the Minister to third parties under licence subject to the payment of compensation to the mineral owners on extraction of the minerals. This arrangement will be continued under the Bill. It is a long-standing policy that an application for a licence to work minerals will only be accepted from holders of a current valid prospecting licence over the relevant area. This policy is now being given a statutory basis. The main objective is to eliminate the difference between private and State minerals from the developer’s perspective, providing greater predetermination and clarity of terms, both financial and non-financial. Where previously there were leases on licences to extract State or private minerals depending on the ownership of the minerals, there will now be a single instrument to be known as a "mining licence".

Part 4 deals with ancillary rights. In order to carry out extraction of minerals efficiently it is necessary to carry out a variety of other activities which are not strictly mining and these are referred to as "ancillary rights". The existing legislation provides that the holder of a State mining lease or licence is entitled, during the currency of such lease or license, "to enter on the land on or under where such minerals lie and use such land in such manner as may be reasonably necessary for the working of such minerals or for any purpose incidental thereto." This may well have been too broad in scope by today's standards.

Current legislation also provides for compulsory acquisition of land and rights over land necessary for the efficient working of minerals. The Bill will clarify what rights may be necessary for working minerals and will divide these into ancillary underground rights and ancillary surface rights for licences issued henceforth. It will also bring the compulsory acquisition procedures into line with modern best practice. While it is considered necessary to have these compulsory powers in place the truth is that they are rarely, if ever, used.

Part 5 deals with rehabilitation. In the case of current mine sites it is the responsibility of the mine operators to properly close and rehabilitate the sites when activity has ceased. Mine applications in the modern era, as part of the planning applications process, are subject to an environmental impact assessment and require properly drawn-up closure plans to be prepared, with financial sureties in place to provide for the implementation of the closure plan together with its aftercare monitoring and maintenance.

This part of the Bill, which is based on Part 9 of the Energy (Miscellaneous Provisions) Act 2006, provides that in certain circumstances the Minister may, having consulted with the Minister for the Environment, Community and Local Government, designate a mine site or adjacent land as a rehabilitation area. The Minister may make such a designation in respect of a site where a mine has been abandoned or where operations have permanently ceased if it is necessary for the safety of the public or animals or to address major environmental damage. On designation of an area as a rehabilitation area the Minister may develop or adopt a rehabilitation plan for the area and may implement the plan or authorise a local authority or the Environmental Protection Agency to implement one. This does not, however, affect any obligations of the former lessee or licensee, the owner or occupier of the mine site or any other person who may have obligations in respect of the site. The Minister also has the power to recover through the courts any expenditure incurred by implementation of the rehabilitation plan.

The Minister may, with the consent of the Minister for Public Expenditure and Reform, acquire private land either by agreement or compulsorily for the purposes of implementing a rehabilitation plan. The Minister is required to undertake a public consultation process before making such an order and may, if he or she considers it appropriate, appoint a hearing officer to hold an oral hearing to evaluate objections. These provisions relate only to legacy sites as modern mines are well regulated in this respect and closure planning takes place before the mine is opened.

Part 6 provides for the continuation of the Mining Board, which has been in existence since it was established under the Minerals Development Act 1940. The board adjudicates on various issues arising under the Acts, including compensation issues. It consists of a chairperson and two ordinary members who are appointed by the Government on the recommendation of the Minister. The chairperson shall be a practising barrister or solicitor of at least ten years' standing. Each ordinary member shall be a person who is a property arbitrator under the Property Values (Arbitrations and Appeals) Act 1960. The provisions relating to the board are being updated in line with current best practice. New provisions in the area of ethics are provided in line with current legislation regarding other statutory boards.

Part 7 deals with enforcement and miscellaneous provisions. It mainly contains standard provisions which are restated or updated where necessary. Penalties in respect of offences such as unlawful prospecting or working of minerals are brought up to date in line with current practice. Injunctive powers are being provided for in respect of continuing offences and in the case where the Minister might be prevented from undertaking certain works.

Provision is also being made for the appointment of inspectors to enforce the Act; a requirement to notify the Minister of bore holes drilled for reasons other than prospecting or mining, and in relation to data collection in respect of those; divesting of intellectual property rights in the Minister relating to processing of data collected under the Acts on this Bill; the registration of minerals which were exempt from the statutory vesting under the 1979 Act, and other miscellaneous matters. Part 8 deals with transitional provisions, repeals and consequential amendments. It provides for various transitional arrangements including the continuation of any licence or instrument granted under previous acts, on the terms under which they were granted, until renewed under the revised legislation. Applications for prospecting licences or mining leases and licences made before an enactment of the Bill will be deemed to be for licences under this Bill unless the Minister has already given notice of his intention to grant such a licence.

Chapter 2 sets out the Acts which will be repealed by the Bill and Chapter 3 lists amendments to other Acts as a consequence of this Bill. The Act also contains a schedule of a list of substances which, for certainty, are included within the definition of minerals. The list is not exhaustive as the definition of minerals, contained in section 2, describes the term as meaning "all substances including scheduled minerals". It may therefore allow other substances which are not on the list to be defined as minerals. There was a similar schedule to the 1940 Act which has been reviewed with some additions and deletions by our technical staff. Chalk, flint and chert for example have been removed because experience has shown that their inclusion is not particularly helpful. Mineral oils and natural gas were removed because the 1960 Act provided for separate regulation of oil and gas exploration and production. Other substances which were added are certain types of industrial minerals which were not important in 1940 but have since gained significance internationally, such as andalusite, garnite and sepiolite. The schedule also includes definitions of dolomitic limestone and silica sand to help clarify the meaning of those substances. That is the end of the Bill as such. The regulatory impact assessment has been prepared and copies have been circulated to the members.