Mr. Colm O'Donnell:

I thank the Chairman. Quite a number of questions were raised.

Deputy Ó Cúiv referred to a case of a commonage of 500 ha where sheep grazed all over it at different times of the year. Molinia or purple moor grass is a good source of protein and is palatable to cattle, sheep and horses from late May, through the summer period and into October. Sheep and cattle naturally migrate from Molinia areas towards the end of the year. This is a form of what we describe as mountain pastoralism in that it is a traditional practice in hill areas. It was fundamentally wrong of the Department to inspect this purple moor grass at a time of year when it had died away and become white grass and no stock will be visible. Molinia is regarded as fuel at another time of the year.

The Deputy asked whether the reference areas should stand for the 2015 application. This land is currently eligible. I fundamentally disagree with the statement issued by the ICA and IFA in which both organisations indicated they would work to have this land considered eligible again through the process of a commonage management plan. This land is currently eligible for payment, as the Minister has stated. There is no difference in the terms and conditions of the basic payment application and the single payment application. As such, the land is eligible.

The problem, however, is how one defines what is sufficient agricultural activity on this land. To this end, we called for the establishment of a technical working group which could bring in those with responsibility in this area, namely, the National Parks and Wildlife Service, the Department and farmers. This is not a job for the commonage implementation committee because it requires input from farmers. The technical working group may be able to achieve some short-term and long-term goals.

This land is eligible for payment but a definition of agricultural activity is required. As a member state, Ireland must define agricultural activity. The Department has not yet done so, other than by way of satisfying the definition of an active farmer as someone who is producing cattle, sheep or spuds or engaged in tillage.

Deputy Seán Kyne referred to the habitats directive. Article 6.2 of the directive imposes a clear regulatory obligation to provide protection for these areas. It spells out a requirement to avoid deterioration or disturbance of any species, flora or fauna within designated sites. As our submission notes, the Department appears to be unaware of the requirement to carry out an assessment process. Articles 6.3 and 6.4 of the habitats directive provide that, in advance of making a decision that could have a significant effect on the ecology of these areas, an appropriate assessment should be undertaken or, at a minimum, a screening carried out to identify whether an assessment is necessary. Did the National Parks and Wildlife Service consult the Department to ascertain whether an assessment was required? At a meeting with representatives of the service last week, it was unable to confirm whether such an assessment had been undertaken. If such an assessment had been carried out, it should have been on public record.

The precautionary principle is spelled out in regulation 27 and enshrined in the birds and natural habitats directives of 2011. Public authorities, including the Department and the National Parks and Wildlife Service, are under a clear obligation to exercise functions in compliance with, and in a manner that will secure compliance with, the requirements under the birds and habitats directives. I do not need to remind members that previous judgments by the European Court of Justice on breaches of the birds and habitats directives, in particular, regarding inappropriate levels of stocking on commonages in the late 1990s - an issue to which Senator Comiskey alluded - should have provided a clear signal to have careful and informed decision making on commonage issues.

Deputy Fitzmaurice mentioned the National Parks and Wildlife Service, which has a role to play. It should state whether it was involved with the Department of Agriculture, Food and the Marine in the process of reducing these reference areas dramatically. In some cases, we have brought independent experts who are skilled in assessing the environmental status of these places out to walk such areas. I will explain what will happen in a case in which half the number of animals are going onto an area that has been reduced from 100 ha to 50 ha. These wet and dry heath areas and upland grasslands will eventually scrub up.

Deputy Kyne mentioned the threat of abandonment of these areas. This is what could happen. We highlighted this in our opening letter to the Minister. We said it is inevitable that this will happen. We are proposing that what constitutes an "agricultural activity" in these areas should be defined. It would seem logical to use indicators of agricultural activity to do this, perhaps on a Molinia meadow where there is white grass in the winter time. It should be assessed on ecology just as much as on agricultural activity. It can be an indicator of agricultural activity. As I said, mountain pastoralism is practised in hill areas. We move the stock around. They move on to the long heather in winter time. This is what they survive on.

Somebody asked earlier whether mature heather can be grazed and the answer is "Yes". I live on one of these hill farms. My cattle and sheep survive on mature grazed heather. Regardless of whether mature heather is ungrazed or grazed, there can be a difficulty in the absence of physically seeing the livestock there. In his submission, Mr. Joyce offered solutions to the problem of how to go about indicating agricultural activity in these areas. Perhaps Mr. Condon will comment on the greening when he speaks. These lands are environmentally sensitive permanent grasslands. These areas are eligible for greening. Surely they should be eligible for the basic payment.

Reference was made to a fair blonde-haired lady auditor who came back to a site in Ireland on a few occasions. I think Deputy Fitzmaurice asked whether it was established during one of these inspections whether it was a designated site. As the Chairman has pointed out, the site in question is in the mid-west of the country. When this senior auditor was brought to the site, had it been designated as a special area of conservation or as a special protection area? Was that taken into account when the auditor made her judgment?

We are within seven weeks of having to make an application. I know I will be including my entire reference area. In my opinion, all of it is eligible for payment. I reiterate that all of us have a duty of care to get rid of this uncertainty. There is uncertainty in every walk of life, particularly from the perspective of politicians and farm organisations. We have to clear up this uncertainty so that the farmer can make an informed decision when he makes his application in good faith before the end of May.