Pat Deering (Carlow-Kilkenny, Fine Gael)
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I welcome Dr. Cecil Beamish, assistant secretary at the Department of Agriculture, Food and the Marine, Mr. John Quinlan, principal officer, Mr. Batt Whelton, assistant principal officer, and Mr. Kevin Hodnett, assistant principal officer.

I draw attention to the fact that witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable.

I invite Dr. Beamish to make his opening statement.

Dr. Cecil Beamish:

I thank the members of the committee for the invitation to meet with them today to discuss the management of aquaculture licensing. This opening statement is intended to provide committee members with a broad overview of the aquaculture licensing system and how it operates. I will be glad to take any questions from the committee members afterwards.

An aquaculture licence is required by law for the cultivation of finfish, shellfish and certain marine plants such as seaweed. Some aquaculture takes place on land but the vast majority of aquaculture activity takes place in the marine environment on the foreshore. In Ireland, almost all foreshore is in public ownership and aquaculture activity therefore requires both an aquaculture licence to conduct operations and a companion foreshore licence to lawfully occupy the area of foreshore in question. Even in the rare case of private foreshores, an aquaculture licence is required to engage in aquaculture activity. In effect, aquaculture and foreshore licences are a package. The foreshore effectively grants property rights to state land and the aquaculture licence determines what one can do on the land.

The foreshore is measured from the high water mark out to 12 nautical miles and is approximately 39,000 square km in overall size. It is roughly equal in size to just over 50% of the land area of the State. However, the areas suitable for aquaculture represent a small fraction of the foreshore and, in the case of finfish cultivation, are exclusively on the western seaboard.

The Department considers all applications for aquaculture licences in accordance with the following legislation: the Fisheries (Amendment) Act 1997; the Foreshore Act 1933; the EU habitats directive 92/43/EEC; the EU birds directive 79/409/EEC; the consolidated environmental impact assessment directives 2011/92/EU; and the public participation directive, the Aarhus Convention. The licensing process involves consultation with a wide range of scientific and technical advisers as well as various statutory consultees. The legislation also provides for a period of public consultation. In addition to the above legislation the Department must adhere to a wide range of regulatory requirements and other legislation which impact on the licensing process.

The public participation directive has emerged as a crucial factor in the roll-out of the licensing system as it applies to individual cases. The key aim of this directive is to grant the general public specific rights regarding access to information in governmental decision-making processes on matters concerning the local, national and transboundary environment.

There are three broad types of aquaculture licence applications: applications for finfish or shellfish cultivation in the marine environment, which are approximately 94% of applications; applications for land-based aquaculture activity, making up approximately 5% of applications; and applications for aquatic plant cultivation, mainly seaweed, which is approximately 1% of applications. It is important to note that the harvesting of wild seaweed is licensed by the Department of Housing, Planning, Community and Local Government. Within this typology there are a number of subsections including applications for the cultivation of multiple species in the one production area, known as multitrophic aquaculture. A small number of licences for research purposes are in place.

A key component of the aquaculture licensing process is a series of measures designed to address the impact of aquaculture on the environment. This series of measures is known as the appropriate assessment process. The appropriate assessment process arose from a European Court of Justice case against Ireland in 2007. The ECJ declared, in case C418/04, that by failing to take all the measures necessary to comply with Article 6.3 of the habitats directive in respect of authorisation of aquaculture programmes, Ireland had failed to fulfil its obligations under that directive. The EU habitats and birds directives led to the designation of certain bays by the National Parks and Wildlife Service as special areas of conservation and-or special protection areas for birds. These are known as NATURA 2000 sites and most aquaculture takes place within them or adjacent to them.

In the negotiations from 1997 onwards to address the ECJ judgment the Department agreed a process with the EU Commission and NPWS which would govern the State's processing of aquaculture licence applications. This became known as appropriate assessment and includes various steps. One is data collection in relevant bays, which can be quite comprehensive and involves the collection of data on benthos, the sea bed, the bathymetry of the bay, the substrates on the sea bed, the fauna and communities living in the bays, migratory animals coming to the bays and the birdlife around the intertidal areas of the bays.

There is then detailed analysis of the raw data when it is collected. In some cases, multi-year data is needed. The setting of conservation objectives by the National Parks and Wildlife Service has to be done in respect of each of the sites. Following that, the appropriate assessments are carried out to assess the aquaculture sought or being undertaken in that bay against the conservation objectives. That is done by the Marine Institute. The final situation is the determination of licences based on the outcome of the appropriate assessment process.

In broad descriptive terms, it is possible to say the appropriate assessment phase of the application process represents the first major environmental challenge or hurdle for any licence application. The AA process is therefore an essential precursor to the further consideration of most aquaculture licence applications. The AA process is managed in the main by the Marine Institute via environmental-scientific contractors commissioned by the institute to carry out the necessary field work and desk analysis. To date, the Marine Institute has submitted appropriate assessments to my Department in respect of 21 bays. I have provided a list of those, which I do not propose to read out, in my opening statement.

Following completion of the appropriate assessment for a given bay, the licensing consideration process has been estimated to take between 43 and 81 weeks in the case of shellfish aquaculture. It should be noted that the indicative timelines do not relate to finfish licence applications in respect of which a separate environmental impact statement is mandatory under European law and can require a lengthy timeline for completion by the operator. My opening statement sets out the various steps to be gone through in the processing of shellfish licence applications. The steps are in the statement for viewing by the committee.

Some of the key figures that may be of interest to members of the committee are set out in my opening statement. We had the court judgment in 2007. We also had legislation in 2007 which allowed people engaging in aquaculture at that time, whose licence was running out due to the effluxion of time and who were seeking a renewal, to continue their aquaculture licensing activity pending a determination on that renewal. People were able to continue their aquaculture licence activity through this period. Between 2007 and 2011-2012, the process of working out how to cope with the judgment was put together. This included working out how to gather the data that was required across the bays, which, in some cases, was multi-year data if it involved bird life or migratory animals; analysing that data; having the National Parks and Wildlife Service draw up the conservation objectives for that bay; and carrying out the appropriate assessment. All of that process was put together in the 2007 to 2011 period. After that, we began to get to the point where we could begin to start the licensing process. The figures for the number of licensing determinations made since 2012 when that process kicked off are set out here. There were 492 licence determinations made, that is 492 aquaculture operations licensed since 2012. In terms of applications currently on hand, we have a mix of continuing renewals in some of the bays that have not yet been appropriately assessed or where licence determinations have not been made and new applications coming in. That figure is there. There are 612 licence applications currently on hand. It is important to note that in those applications on hand which relate to renewals that have occurred simply because of the passage of time, the operators are allowed to continue their operations pending a determination on those applications.

On 20 December 2016, the Minister for Agriculture, Food and the Marine, Deputy Michael Creed, appointed a three-person independent review group to conduct an independent review of the aquaculture licensing process and the associated legal framework. The Minister set out the terms of reference for the review having regard to existing Government policy for the sustainable development of aquaculture as outlined in the Food Wise 2025 report and the national strategic plan for sustainable aquaculture development. The review group will aim to identify changes required to the aquaculture licensing process and its associated legal framework that will deliver licence determinations in a timely manner, having regard to international best practice; support achievement of the actions and priorities in Food Wise 2025 and the national strategic plan for sustainable aquaculture development; facilitate enhanced transparency in the licensing process for all stakeholders; and ensure legally robust licence determinations having regard to EU and national law. The independent review group is currently holding a public consultation to invite submissions on matters relevant to the review, which will run until 10 February.

I hope this statement is of some assistance to members and I will be happy to respond to any questions.

Pat Deering (Carlow-Kilkenny, Fine Gael)
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I thank Dr. Beamish. I call on Senator Mac Lochlainn and Deputy Pringle.

Pádraig Mac Lochlainn (Sinn Fein)
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I thank Dr. Beamish for coming before us today. I have a number of questions. On the independent review, it is my understanding there has been a number of reviews carried out in the past into the licensing system. Will Dr. Beamish outline what the recommendations were from those reviews? I assume he has some of those recommendations to hand. Were they implemented? My understanding is they were not implemented. The public cannot have confidence in reviews unless an organisation has a history of implementing reviews. Will Dr. Beamish outline the reviews he is aware of in the past number of years? If Dr. Beamish bears with me a second, I will locate the specific name of the review I am referring to. I understand there has been number of reviews. The Cawley report was carried out in 2006. What were the recommendations that Dr. Beamish recalls? Were they implemented and, if not, why not?

I recommend that the committee sends a copy of the transcript of this meeting to the independent review to feed into its process because we are ahead of the deadline.

We had a situation in Donegal where there was an application for an oyster farm in the Inishowen peninsula. The oyster farm in question got planning permission in the Linsfort beach area of Inishowen. It got planning permission and virtually nobody in the local community had any knowledge of the application. The reason for this was the company in question, which had applied for this licence, was advised by Department officials to put the advertisement in the Donegal Democrat newspaper. Anyone present who knows the geography of Donegal will know the Inishowen peninsula is quite distinct from the rest of the county and very few people in the Inishowen peninsula read the Donegal Democrat, perhaps those from the south of the county who have come to live in Inishowen. There are three newspapers that cater for the Inishowen peninsula and not one of those was requested by the Department to run the advertisement. The advertisement that was published in the Donegal Democratdid not specify the location. It said it was on the shores of Lough Swilly. That could have been anywhere on either side of Lough Swilly. It could have been anywhere from Fanad Head down to Ramelton, Rathmullen, right round to Clonmany at the very top of Inishowen. It could have been anywhere. It was Dr. Beamish's Department's instruction to put it into a newspaper that would not have been read by the local people who may have been interested and did not give specific information about the location. Even though that was the case, when people found out about this in the area and had objections and concerns, they were rejected. There was no acknowledgement of wrongdoing or a failure to ensure appropriate consultation. The Department just said no, that it would not open it up again and that was the end of the story. That is totally wrong. Whatever view the Department may have on oyster farms or aquaculture licensing, it has to ensure a fair process. That did not happen in this case. People are very angry about that in the area.

There is another aspect.

The company which applied for the oyster farm did no wrong. It was a legitimate business which had every right to apply. It took a hell of a lot of abuse up there because it was seen that it had done things by stealth. However, when I investigated the matter, the company advised me that everything it had done had been on instruction from the Department. I need an explanation as to how it happened.

There are people who have concerns and are not happy with the process and how it is carried out, but at the other end of the spectrum the people in the industry are not happy. Departmental officials talk about Food Harvest 2020, aquaculture and its role in creating jobs, and the Department has had companies out to markets across the world. However, the Department is not making decisions in an acceptable timeframe and is not accountable for the timeframes in place. The Government is bringing companies out to these countries in Asia to make those new business deals and create jobs in Ireland. How can a company do that if it does not know what licence it will have and where it will operate from one year to the next? It cannot plan. Why is there not a timeframe in place? Whatever decision the Department makes, to grant a licence or take on board the views of objectors and refuse a licence, which is the Department's business, can it not do so in a reasonable timeframe?

The Department is failing the industry. The industry is not happy with the Department at all. It is not happy with the licensing process and how long it takes. On the one hand, communities are not happy with how they are consulted with and the process and the fact they are not being listened to. On the other hand, the industry is not happy with the Department and feels it is failing them. They feel the Department is regulating rather than facilitating job creation and the development of the industry. On all levels, the Department is getting it wrong. That is why the review is welcome. Will the Department implement the recommendations in the review? It has not done so in the past.

Dr. Cecil Beamish:

I would very much like to respond. We should try to be factual. I am not aware of any reviews of the licensing process during the period in which it all changed, which was after the European Court of Justice judgment in 2007. I am fully aware of the Cawley report, which was not a review of the aquaculture licensing process but on how to develop the seafood sector. It made a range of recommendations on issues in 2006 under Noel Cawley's chairmanship, and many of them have been implemented. It was a development report on how to develop the seafood industry and how to drive value.

Food Harvest 2020, Food Wise 2025 and the National Plan for Sustainable Aquaculture Development have all been taken forward since then, but they are all development reports. They are routes to development. Licensing is important in the context of development. However, after the Cawley report we got the ECJ judgment and the new legislation. Things changed after the Cawley report. The Cawley report was not a report into aquaculture and licensing but into the development of the seafood sector.

Pádraig Mac Lochlainn (Sinn Fein)
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Dr. Beamish said there were other reports into the development of aquaculture. How many were there?

Dr. Cecil Beamish:

They were not reports into the development of aquaculture but into the seafood sector. They include Food Wise 2025, which was produced 18 months to two years ago. The relevant recommendation was to carry out the review on licensing, which is on the way. There was the National Plan for Sustainable Aquaculture Development, which was produced just over a year ago. It also had a recommendation on the review of licensing, which is under way. There are no other reviews that I am aware of. They were not specifically reports on the licensing process, which they did not go into. They were about the development of the sector. There are no reviews in the time period which we have not implemented.

It would be useful for the Deputy to try to understand the process. Then he could understand the timeframes. After 2007, there was no possibility to license aquaculture in a manner compliant with the judgment and the EU directives. The reason was that the infrastructure did not exist to do it. We did not have the scientific data on the bays that had just been designated, the conservation objectives that were to be protected in the bays or the ability to do the appropriate assessment. All the infrastructure had to be built. The licences in question were given during the ten years that followed the 1997 Act, mostly between 1998 and 2000. The industry got licences for ten years. In 2007, 2008 and 2009, we had an ECJ judgment and it happened that those licences were falling for renewal during that crucial period. There was no ability to make a decision.

The Commission has not progressed in taking daily fines or requiring the aquaculture to be taken out of the water on the basis that the future licensing will be done in compliance with the habitats and birds directive. The national guarantee existed from the 1997 legislation to allow the operators to continue operating. People have not been stopped from operating. They were there and they continue to operate. What was required was that any decision that was made on a renewal of a licence would be done in a manner compliant with the requirements under European legislation.

There were discussions with the Commission in 2008 and with the NPWS and others who had roles in it as to how we could reach a position in which we had the machinery to consider licensing. In the meantime, everybody who had been operating could continue to operate. The only way forward was if the Department of Agriculture, Food and the Marine took on the full role of collecting all the data in the Natura 2000 sites, and that is what the Department did. The data are as valid for anybody else who wants to license something else in a Natura 2000 site as they are for aquaculture. They are a national asset for anybody else who wants to do licensing in those areas. They can use the data. The data detail what is in the areas, what is to be conserved, where it is to be conserved, etc.

The Department started what is probably the biggest data collection in the marine environment that has happened anywhere right across all the relevant bays. In some cases where we were dealing with protection areas for migrating birds that may arrive for only two to four weeks in the year, we had to build up a time series of data. We could not make a judgment on whether putting oyster trellises in a certain area would affect a particular species of bird. There was no way of speeding up the process. To be compliant, we had to collect the data. The data had to be built up over a period. Only when we had an adequate amount of data could we get the conservation objectives specified by the NPWS. Then we could do the appropriate assessment. This understanding must be taken on board.

Pádraig Mac Lochlainn (Sinn Fein)
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Could I clarify something? These directives and legislation apply across Europe. Is that correct?

Dr. Cecil Beamish:

Yes.

Pádraig Mac Lochlainn (Sinn Fein)
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Has the Department compared its delivery time with that of government departments in other states? Is the Department happy it has the requisite staffing resources? I have spoken to departmental personnel in the past about licensing and they do not think the Department has the necessary staffing resources.

Dr. Cecil Beamish:

Can I stay with the other questions first and then answer those?

Pádraig Mac Lochlainn (Sinn Fein)
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Absolutely. Please do.

Dr. Cecil Beamish:

Through the period up to 2011 or 2012 was when we began to reach the point at which the first of the conservation objectives could be specified and the appropriate assessments made. In the meantime, renewal applications rested and could not go anywhere. For four years, they just built up. Given that they had all been licensed during the period 1998 to 2000, and they were all ten-year licences, they all dropped into it, as it were. However, they could all still operate. This is the crucial point. Nobody was stopped from operating and we kept the industry going through that combination.

The appropriate assessments started and the determinations could start to be made. The members have the figures in front of them as to what happened in the years as we, one by one, worked through the bays. There are 22 bays done in terms of appropriate assessment and there are 35 bays to be assessed in total.

That is where we are in terms of the first stage of the process.

We have outlined in our opening statement the steps to get from the point where the appropriate assessment is completed to determinations. There are 23 steps for a shellfish case. In the meantime, other legislation has been added to the obligations such as public participation, the Aarhus Convention and environmental legislation. Other legislation elsewhere comes up when we conduct a statutory consultation, as we are required under the legislation, with a range of other players. For example, the people who work in the natural heritage sector say we have obligations to underwater archaeology. When one wants to put oysters somewhere or if there are oysters in the area and one is considering renewing them, we will be asked to conduct an underwater archaeology survey to see if there is something archaeologically important underneath. We must do many different things for various parts of the State as a result of this process, all of which take time. The steps have been set out. We have been very transparent about what is involved.

The independent review group is now considering the process of getting to the point where one has an appropriate assessment and one can begin the licensing process. This work has taken up the bulk of the time but the process is two thirds complete. The group is considering the process from that point to the point of determinations and deciding what can be done.

Aquaculture all over the EU has either been static or declining. The European Commission has conducted a report on the matter. Aquaculture outside of the EU is advancing pretty rapidly. Ireland would like its aquaculture to advance. We are building a completely new licensing framework and structure that will stand the test of time once completed. Once we get through this batch of licences, people will have ten-year licences or longer. We will not have to go through the same procedure again.

Senator Mac Lochlainn has stated the Department is not accountable in respect of the timeframe set in place. No timeframe has been set in place and the reasons are as follows. If one stops in the middle and one needs an environmental impact statement, EIS, then the operator must get one. Various points are raised by statutory consultees. One arm of the State is in the process of handing over State land to one user for ten years or something similar and they have property rights. It is only right when doing so that other users have an input and a say in the process. The Senator will know from the debates on aquaculture licence applications that different users have different sets of interests and all must be accommodated.

In terms of timetables, we certainly are not the fastest. We work under a judgment laid down by the European Court of Justice while others do not. Sooner or later they may end up working under one of those judgments. We want to keep the industry in place, keep it going and make it fully compliant. We must work under the arrangements with which the Commission is comfortable while a negative judgment is in place. We must work in the context of a negative judgment.

Does the Senator want me to talk about the oyster farm at Linsfort?

Pádraig Mac Lochlainn (Sinn Fein)
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Yes, please.

Pat Deering (Carlow-Kilkenny, Fine Gael)
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I shall allow the Senator to comment afterwards.

Pádraig Mac Lochlainn (Sinn Fein)
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Yes, I appreciate that.

Dr. Cecil Beamish:

The Senator made a lot of statements about what happened at Linsfort beach. The Department has adhered to everything that was required by the legislation under which we must work. All of the statutory requirements were adhered to in that case. I will not go into all of the details on an individual basis because we have hundreds of cases. The legislation requires that we advertise in a newspaper that is circulated in the area. The requirement is as vague and as general as that. We do not necessarily know which newspaper does best in a particular sub-part of a county. In this case we advertised in the Donegal Democrat. There is also a statutory consultation process that went through in full. As the local authority is part of that statutory process, as are all of the other statutory consultees, one cannot say that the local authority was blind about this process. The Department fully adhered to all of the legislative requirements.

There is a possibility to appeal the decisions made and lodge an appeal with the Aquaculture Licences Appeals Board, which is completely independent of the Department. If people, for some reason or other, did not participate in the licensing process, which mostly we have been told has too much consultation and takes too long, they then have the possibility, once a decision is made, to go to the Aquaculture Licences Appeals Board. Nothing has been lost. People can have a second bite at the cherry, if they so wish.

Pádraig Mac Lochlainn (Sinn Fein)
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What is the timeframe for the appeals board?

Dr. Cecil Beamish:

It is 28 days from the published decision.

Pádraig Mac Lochlainn (Sinn Fein)
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Can I come back in, please Chairman?

Pat Deering (Carlow-Kilkenny, Fine Gael)
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Yes.

Dr. Cecil Beamish:

The timeframe has been set out in legislation. We follow the legislation.

Pádraig Mac Lochlainn (Sinn Fein)
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The witness is a doctor and is a man of learning.

Dr. Cecil Beamish:

Yes. I am not sure where the Senator is going with his comment.

Pádraig Mac Lochlainn (Sinn Fein)
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I have outlined the following to the witness. The advertisement was published in a newspaper read by very few people who live on the Inishowen Peninsula. Indeed, the local authority in the county and in other countries stipulates which newspapers can carry advertisements for planning permissions. Donegal is a large county and there is a great distance between Killybegs, where Deputy Pringle is from, and the top of the Inishowen Peninsula where I am from. There are 15 or 16 newspapers that cover the county of Donegal. A bit of basic research would have led people to realise that the Donegal Democratwas entirely the wrong newspaper to carry the advertisement. The advertisement did not specify the location. Legislation stipulates that the location must be stipulated. Only the shores of Lough Swilly was mentioned but the location of the oyster farm was not specified.

Dr. Beamish has told me that people have a right to lodge an appeal. How can people exercise their right of appeal in 28 days if they did not see the advertisement in the first place?

Dr. Cecil Beamish:

I shall hand over to my colleague, Mr. John Quinlan, to reply.

Mr. John Quinlan:

Dr. Beamish has set out the factual position and I am not sure that I can add a whole lot more to what he said.

Pádraig Mac Lochlainn (Sinn Fein)
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I set out the factual position too.

Mr. John Quinlan:

The Senator has pointed to something that we encounter all of the time in terms of aquaculture. There are a number of perspectives involved. The Department's perspective is determined by the legislation. We do not enact the legislation but we are obliged in law to implement it. It is not open to us to depart from it as it would be a breach of the law and would amount to maladministration.

The case was on my desk for a long time last year so while I am reasonably familiar with it, I am recalling it from memory. Therefore, if I make a mistake in my statement I shall correct it quickly afterwards.

The question of the newspaper became a topical issue. The legislation stipulates a newspaper circulating in the area. The Donegal Democrat, as a matter of fact, does circulate in the area and we checked that it can be purchased. It is general for us to use that particular newspaper in Donegal, as it is with other local newspapers in other regions. At the time we received some comments that we should have used a number of other newspapers, one of which was published outside of the jurisdiction. There is a question here of what is practical and reasonable.

I should also point out, as Dr. Beamish has, that the statutory consultees, including the local authority, were consulted in this case in the normal way. Also, the Minister's decision, when it was taken, was published in the normal way. Again, the opportunity for going to the Aquaculture Licences Appeals Board, ALAB, is 28 days or one month. I am open to correction about the time but it is about that length of time. That, too, is set out in legislation.

The Department cannot - I repeat cannot - depart from what is said in legislation because it is there to protect the public and the individual member of the public who has applied for an aquaculture licence. If the Department had departed from the legislation it rightly would have been held to account either through ALAB or a judicial review of procedures. I know that because of the interest that existed at the time, an enormous amount of examination of the Department's procedures took place. They were not found to be at variance with the legislation. I hope my explanation has been helpful.

Pádraig Mac Lochlainn (Sinn Fein)
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Can I comment?

Pat Deering (Carlow-Kilkenny, Fine Gael)
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Very briefly because I have already given the Senator a fair chance.

Pádraig Mac Lochlainn (Sinn Fein)
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It is important to probe this matter. Dr. Beamish is telling me the legislation guides the Department whenever it is identifying the location of an aquaculture licence so that all it had to say in respect of the application in Linsfort outside Buncrana, County Donegal, for example, is "The shores of Lough Swilly". Does Dr. Beamish know how extensive the shores of Lough Swilly are? Nevertheless, the Department does not have to specify where the licence relates to along those shores. That is the legislation according to Dr. Beamish. Dr. Beamish referred to a newspaper outside the jurisdiction, the Derry Journal. He should check its circulation in Inishowen versus the circulation of the Donegal Democrat. By the way, they were both owned by the same umbrella group.

I put it to Dr. Beamish that the Department did not ensure there was full consultation with the local community and made a mess of the situation up there. I find the failure to acknowledge that here incredible. There is no degree of regret or any sense that the Department failed the people up there. Indeed, the Department failed the business because it left it in bad stead with the local community.

Dr. Cecil Beamish:

Clearly, the Senator has his own opinion on this. We did not get advance notification that of the 492 determinations we made, we would have a detailed discussion on one. As such, we do not come armed with all the information that would be needed. Nobody has found through due process that the Department's process did not stand up in this case. If they have found that through due process, we are not aware of it. Otherwise, it is an opinion.

Pádraig Mac Lochlainn (Sinn Fein)
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The Department does not regret the process.

Pat Deering (Carlow-Kilkenny, Fine Gael)
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We will move on.

Pádraig Mac Lochlainn (Sinn Fein)
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The Department has no regrets and no apology.

Pat Deering (Carlow-Kilkenny, Fine Gael)
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He has answered it, in fairness.

Pádraig Mac Lochlainn (Sinn Fein)
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He has answered it all right. It says it all.

Thomas Pringle (Donegal, Independent)
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To add to the conversation about the newspaper circulation in the area, Donegal County Council has been pulled up by the European Commission for using the Donegal Democratfor public notices in the Inishowen area as it is a paper which does not circulate widely in the area. An assessment of newspaper circulation in the area should feed into any review process. It is one thing to say a newspaper is available in an area but a separate issue is whether it is widely circulated. Comparison wise, the Donegal Democratmight sell one copy in Buncrana whereas the Inishowen Independentor Inishowen Newssell hundreds of copies. That is just for the information of the committee.

In regard to the applications assessment programme, the fisheries division of the Department is responsible for the licensing of aquaculture as well as for the development and growth of aquaculture and fishing industries across the country. Does the Department see any potential conflict of interest between the fisheries division processing aquaculture licence applications and its role as a development body or policy-setting body for aquaculture within the State? At least two of the statutory consultees, BIM and the Marine Institute, are funded directly through the fisheries division as well. Is there a potential conflict of interest there in terms of their freedom to express views on aquaculture licensing?

As with all other planning processes, environmental impact statements are required to be completed in this context by the operators. I have yet to see an EIS which recommends that a development should not take place. I have a very strong sense that he who pays the piper calls the tune. If I commission somebody to do an EIS on my development, that EIS will come down favourably on my side. Is there merit in the idea that the Department should fund environmental impact statements rather than the applicants and charge applicants for that in the application process? It would be a far more robust system and more compliant with European law on aquaculture licensing.

Dr. Beamish said 25 bays had the appropriate assessments set for them and that 35 bays in total have to be done. Is that 35 bays which already have aquaculture? As I understand it, there are 90 Natura bays in the country all together which require appropriate assessments. I could be wrong. In regard to that process, there will be a need to update the data that has been gathered since 2008 and 2009 on the environmental measures within those Natura bays. Is there a process to go back and update that data and will it be an ongoing process into the future?

A number of determinations were made very recently in regard to Braade Strand in Gweedore Bay, County Donegal. Some nine licences covering over 100 acres of the bay have been determined. In my view, there is a need for a management plan for the bay to set out all the criteria. Does the Department simply accept continuously licence applications for a bay in a piecemeal fashion? Would it not be appropriate to prepare a strategic management plan for the bay highlighting appropriate areas for licensing rather than having a free-for-all process where anybody can apply for a licence within a bay? Is that not something that would figure in the management system as well?

Paul Daly (Fianna Fail)
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As somebody from Westmeath, I will not be parochial about bays. The delegation might be reassured to hear that. Looking at the document here before us, there were 492 determinations with 612 outstanding. It is simple to calculate that if it has taken the Department four years to determine 492 applications, one is looking at five years to deal with the other 612 applicants unless there are big changes. That is not even taking into consideration ongoing renewals. Dr. Beamish said in regard to renewals that people can continue with production where there is a lapsed licence on foot of a delay in the Department. As such, it is not putting people out of production. What monitoring of their practices and the terms and conditions of the original licence takes place during that consideration? I was thinking when Dr. Beamish said that about people being allowed to drive on the roads without licences if local authorities were not able to renew them because of red tape or other delays. It is hard not to make that comparison. What monitoring is done on those outfits which are operating without licences during that term?

In answer to Senator Mac Lochlainn, Dr. Beamish said aquaculture was static or declining across Europe. Is that because of the inefficiencies in licensing? If there was a faster, more efficient and appropriate licensing process, would the industry be thriving?

Michelle Mulherin (Fine Gael)
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The biggest issue is environmental concern in regard to industrial-scale fish cages at sea. Many concerns have been expressed by anglers and their associations who are fearful of damage to wild salmon and other wild fish stocks. Inland Fisheries Ireland has expressed concern too. When one hears those concerns being rightly expressed, one wonders to what extent they are proven to be founded. From what Dr. Beamish has said, however, it appears we are only in the process of establishing the environmental implications with appropriate assessments only having been carried out in 21 bays. I would be interested to hear the number of bays that remain to be assessed.

Dr. Beamish highlighted 492 determinations. What does that mean? Were some of these refused? How many were refused? How many were granted licences? Once the Department gets this information on the different bays, for example, the 12 bays, does the Department look retrospectively at some of these installations and fish farms to see what the environmental impact is and what steps towards mitigating an adverse environmental impact might be undertaken? We must be environmentally responsible.

We heard a presentation recently from Inland Fisheries Ireland, IFI, and I have discussed the matter with it. Aside from issues around sea lice, it sounds as though these salmon can have a devastating impact on wild salmon, including through interbreeding with them. They do not seem to follow the pattern or course as wild salmon and, ultimately, do not end up reproducing in the same fashion. It seems like we must take protective measures. I know it is not Dr. Beamish's field but there seem to be other issues around high levels of mercury, polychlorinated biphenyls and dioxins in farmed salmon and the fallout in areas with salmon cages. Obviously, the Department is not considering the issue of human health. Why, when it seems to be the best course of action scientifically to mitigate the impact of these fish farms, are people not being asked to put them onshore? Steps must be taken to reassure the public, which has legitimate concerns about the environmental impact, that we are managing it as best we can. Could Dr. Beamish identify how many applications have been refused? What applications are refused on environmental grounds? Are they basically all being refused on environmental grounds or, as has been raised here, because of the other procedural issue? Are some applications being refused on procedural grounds?

I agree with Deputy Pringle. What we tend to do offshore seems to be very ad hoc, be it aquaculture or renewable energy. Do we not need a more schematic approach in the same way as we have a development plan regarding granting planning permissions and national planning guidelines? Seeing as we have so much territory offshore, we need a better plan than what is there currently so that we can all subscribe to the direction in which we are going and appropriate environmental protections are in place.

Dr. Cecil Beamish:

I will respond in reverse order. Senator Mulherin raised the impact, or lack thereof, of salmon farms on wild salmon. This issue has been subject to much discussion. The primary area of concern over the years has been sea lice. Sea lice, which are naturally occurring parasites in the marine environment that have been there for hundreds of millions of years, can build up on salmon farms as a host. Therefore, there is a danger of cross-infection of wild stocks. Alternatively, they may initially get the infection from wild stocks and it builds up. Ireland has a system for monitoring the level of sea lice on every salmon farm. There are 14 inspections every year on every salmon farm. Those inspections are carried out by the State and the results are put on the web and are available for anybody to see. There are trigger levels, which are at a low level by international standards. If the number of sea lice on the animals on the farm is higher than those trigger levels, a formal notice to treat all the animals on the farm is issued to bring the level below the trigger levels. This process is transparent and open. Ireland is the only country I am aware of that has fully transparent system operated by the State. In other countries, it is the operators who report.

Salmon is a food. It is grown as a food and must be safe as a food and we are concerned about that so it goes through all of the regulatory procedures that food goes through to be safe. Senator Mulherin mentioned some of the substances she thinks might be in farmed salmon. I do not think farmed salmon producers would be very happy with that. It is not the case. Norway, which is not a country known for environmental despoliation, produces 1.2 million tonnes of farmed salmon and hopes to increase that to 2 million tonnes. Scotland is growing about 160,000 tonnes of farmed salmon and Ireland has been producing about 12,000 tonnes. A figure of 12,000 tonnes relative to the Norwegian figure is 1.2 million per year so we need to keep a perspective. Almost all of Ireland's salmon farms have organic status and get a premium in the market by virtue of retaining their organic status so it is very important for them that quality is high. On the basis of the scale at which we are producing relative to competitors, they survive on the basis of going for that organic niche. They apply organic standards to that. All the other residue testing is done as well in terms of food production from those farms. We are still not producing enough to meet all the processing requirements and we still have processors importing salmon to smoke it and so forth so we are not even meeting that demand but salmon farm production is growing again. We should be very careful in respect of our statements about the organic farmed salmon we produce here, which is of internationally high quality and gets premium product on the market.

All finfish farms must carry out an environmental impact statement, EIS, before they can be licensed. Any EIS that is produced goes through a full assessment by the statutory authorities as to whether it stacks up so it is not just a case that somebody produces an EIS and nobody looks at it. It is assessed by the statutory authorities as part of the licensing process.

Forcing all salmon farming to go on shore is premature. There is a technology known as recirculating aquaculture systems that has been developed on a trial scale and involves the question of whether one would grow salmon on tanks ashore. The vast bulk of salmon grown around the world is grown in open pens at sea. Ireland has a high energy cost environment and relatively warm temperatures for salmon growing. I do not think Ireland would be the easiest place to bring in a recirculation system. If Ireland did that, it is almost certain that farms would lose their organic status and, therefore, their niche in the market. That would make them particularly uncompetitive. It is a matter for the applicant to decide-----

Michelle Mulherin (Fine Gael)
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I am glad Dr. Beamish has offered his opinion on this. He uses the word "organic". Is it not the case that these salmon are still in cages? They are still in the same environment. It is just that what they are being fed is not the same. They get certified as organic on the same basis.

Dr. Cecil Beamish:

No, there are other standards they must meet. Stocking density requirements are lower. There are a variety of other things they need to get to meet the organic certification. It is not as simple as the food but the food is part of it. In any event, it is the applicants who decide whether they can viably undertake an operation of a particular kind. It is a commercial activity. There are applications and operations in place for sea farming in Ireland as there are in Norway, Scotland, Canada and other competitor countries. Salmon production here is small relative to the other countries we spoke about. It may be the case that this technology may evolve and become better and that it will show advantage. It is not there yet. BIM and others are looking at that and keeping track of it to see whether it becomes a viable possibility but it is not a proven commercial alternative at this point.

Michelle Mulherin (Fine Gael)
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Before Dr. Beamish moves on, perhaps he could speak to the concerns of Inland Fisheries Ireland, which is charged with salmon conservation, about aquaculture proposals and in particular, projects on which it has made submissions and on the effect on wild salmon. It is a State agency. It is not just me or some group saying it.

Dr. Cecil Beamish:

It is a statutory consultee in the process.

Michelle Mulherin (Fine Gael)
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Yes. It has expressed concerns.

Dr. Cecil Beamish:

In each individual case, Inland Fisheries Ireland, IFI, has the possibility and the entitlement to submit observations which must be considered in the context of any determinations that are made. It is not that IFI is operating in some completely separate sphere. It is a contributor to the licensing process and it makes its views known and they are considered in the context of those decisions.

Senator Paul Daly asked about 492 determinations made since the beginning of putting in place the new structure for licensing. The Senator quite reasonably asks how long will it take to get the other 600. The target number we are working to go through this year, if everything comes right, is 235. There is a speeding up of the process. The appropriate assessments etc., are beginning to come through. That is what we are working to go through this year. Hopefully, in two to two and a half years, everybody who had ten-year licences which have come up for renewal will have gone through it. It is not likely to continue like that. Once the industry has gone through a licensing round, it will be ten years before the first of those return for a licensing decision. In the meantime, there will be some new applications coming in and those will have to be dealt with in the intervening period.

Senator Daly asked whether aquaculture is static or declining and whether licensing is a determinant of that factor. Licensing is one issue but, as I said, everybody who had a licence is able to continue operating. They have not been stopped from doing the operations that they had been doing prior to the expiry date on the licence. It is like a kind of extension to the licence. They are still subject to the same terms and conditions under which they operated the licence during that continuing period and they are not totally free to do anything. They operate under the same terms and conditions. If they break those terms and conditions, they could fall into a different status and the guarantee is effectively not there. There is ongoing monitoring of aquaculture operations, whether they are in the period originally stated on the licence or in the continuing period.

Deputy Pringle talked about a fisheries division and a conflict of interest. There is no fisheries division. There is a marine side of the Department of Agriculture, Food and the Marine, which contains five different divisions that do distinct things. There is one division, which is under Mr. John Quinlan's leadership, which does aquaculture and foreshore management. The division engages in licensing on the aquaculture and the foreshore. They do not have any developmental role other than the aquaculture and foreshore management role. The main developmental role rests with Bord Iascaigh Mhara, BIM. It is the development agency. It is a statutorily independent agency. The scientific adviser, the Marine Institute, is statutorily independent and gives advice on that basis. In the same way that the Department of Agriculture, Food and the Marine generally has a developmental policy and a regulatory role, one can say that about a lot of different Departments. The Department of Agriculture, Food and the Marine hosts both of those. It does so, on behalf of BIM, in the same way. The reality is that there can be no development without good regulation. These both are intertwined. This is the production of food from clean seas. If the seas are not clean, the food is not clean. If the food is not of a quality, it does not make the markets. It does not survive. The regulatory and the developmental are not two separate arms. In this area of food production, they are heavily interlinked and we do not see them as two completely separate issues.

I addressed earlier the issue of the EIS and who carries out the EIS in the context of Senator Mulherin's comments. The EIS is done but the EIS is subject to assessment then by the statutory consultees, such as the Marine Institute and others.

As for the facts on the bays, there are 21 bays where the appropriate assessment has been done. There are 35 of the Natura 2000 bays where aquaculture is an issue. A larger number - it is a matter for the National Parks and Wildlife Service, NPWS, to give the committee the exact number - are Natura 2000 but do not have any aquaculture in them and, therefore, do not come into play in this.

The Deputy raised, and put down parliamentary questions on, the issue of updating of the data. Most of this data have only been captured in the past couple of years. With a lot of the data - the mapping of the bays, the bathymetry of the bays, the sub-straits that are in those bays on the seabed on which things grow and the communities that are growing on those bays - often one is talking about whether one allows one type of activity to happen on top of something, for example, eelgrass or a reef area. That world will not change with time - not in the human time that we are dealing with. Once we have mapped that, and mapped all the communities producing very detailed maps, we have effectively done a form of planning because we have found out where the areas one is trying to conserve are within the bay, what areas are suitable for aquaculture and what areas are not from an environmental perspective. A lot of this does not need to be updated. Others will need to be updated but that will be done on a rolling basis going forward. The issue now is to get all of the bays to that initial level of appropriate assessment where one has all of the data on the seabed, the communities and everything else and where one has identified all the conservation objectives. One will then know what it is we are conserving in those 35 bays and then one will make judgments with all the technical and scientific advice on which areas of those bays would be suitable for what. That is a form of planning. It is a different form of planning because it is scientifically driven but it is a valid form of determining the suitable areas.

On the wider issue of marine spatial planning, of course, the sea area that Ireland controls is ten times the land area. It is an enormous area. It is much bigger than the foreshore. There is a discussion ongoing in the Government - not in our Department but in another Department - on whether to bring forward marine spatial planning legislation. Such legislation would seek to set out in a more directed way how that whole marine estate might be planned and plan-led. It is, of course, much more complex than terrestrial planning. Everybody is used to and knows land use planning which is a two-dimensional exercise. This is a three-dimensional exercise. One has 200 m of water column, what is on the seabed, what is under the seabed, what is in the water column and who uses the surface of the water. These are all different uses and there is a variety of consenting and international legal authorities that govern that. For example, the Common Fisheries Policy determines what is done with the living marine resources that are in the water column or on the seabed and it determines, through a range of other processes, how they will be managed, which areas will be protected, etc. That is an international process. There is a range of international operators. Ireland is not the biggest player in terms of the impact on those, as Deputy Pringle, from Killybegs, will be aware. Similarly, there are rules about what is done underneath the seabed in terms of extraction of resources, exploration etc. for which there is an entirely different governing framework. There are rules about traffic and transport, who can move across different sea areas and everything back to the by-laws that the local authority will have on the near shore. It is not as straightforward as terrestrial planning and that is why it has taken longer. However, there is an ambition to try to move to a greater degree of marine spatial planning, not only for aquaculture but generally. It will happen over time.

In the meantime, in the Natura 2000 areas where most of the aquaculture is happening, there is a much more detailed framework happening now as to what can be done where without damaging a particular area or interest. We should have brought along some of these maps to show the committee.

The maps show in great detail what is in the various places within the bay, what area must be avoided or have a buffer zone placed around it, what area is safe for bottom mussel farming, oyster or whatever, and that drives the licensing process.

Thomas Pringle (Donegal, Independent)
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With regard to licensing, what consideration is given to the number of licences applied for and granted, or in the process of being applied for and granted, in respect of a particular bay when new applications are being examined? Will the licensing continue until the area available for licensing is filled up? When examining an application, what consideration is given to the residential amenity of the people living on the bay and who use the bay for recreational purposes other than that it does not physically obscure them walking on the beach? Is that a factor in the determination or do the appropriate assessments deal mainly with the flora and fauna, the coral structures and so forth in the bay?

Dr. Cecil Beamish:

The Deputy is correct. The appropriate assessment is about the natural environment, so it is driven by flora and fauna, migrating animals and so forth. The licensing process takes account of the wider set of operations such as navigation, safety, safety on the beach, lighting, existing users, fishing, leisure and so forth. The consultation process is intended to bring up and include all of the wider concerns people have. In the case of one licence, there were 1,700 objections or submissions. They bring up all of the wider areas that must be considered. It is like another planning process where the views, walking rights and all of the other user conflicts can be put on the table and considered.

Thomas Pringle (Donegal, Independent)
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With regard to spatial planning within the foreshore, is it the view of the Department that legislation will be required to enable that to take place?

Dr. Cecil Beamish:

Yes, if it is the wider marine spatial planning. That could cover all sorts of things, such as exploration for minerals, dredging, dumping at sea, fishing and so forth. Any of the activities that can impact in any way would be covered within a marine spatial planning approach. It would be likely that any such approach would have to take on board the other legislative processes in place. For example, what is being done in the Natura 2000 sites is going to be the infrastructure on which one decides on the natural environmental impacts in a given area and how one might zone that area for an activity. However, we are not there yet. We do not have the primary legislation yet and we have not built the plan. That is being examined by the Department of Housing, Planning, Community and Local Government at present.

Thomas Pringle (Donegal, Independent)
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It cannot be done without the legislation.

Dr. Cecil Beamish:

Legislation is required. We cannot just arbitrarily decide to zone areas. We would have no basis for doing that, above and beyond what is being done in the Natura areas at present.

Michelle Mulherin (Fine Gael)
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Do the aquaculture licence determinations include both approvals and refusals? Can the witness provide figures on refusals and the reasons for refusals?

Dr. Cecil Beamish:

They are determinations, so they can be positive or negative. I do not have the figures with me but-----

Pat Deering (Carlow-Kilkenny, Fine Gael)
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Can you supply them to the Senator?

Dr. Cecil Beamish:

Yes, we can. However, I wish to give the context for it. As the process is so long and thorough, many of the issues are screened out along the way. If they get to the point where a determination is put to the Minister, many of the problem issues have been resolved at that stage. They are predominantly, although not always, favourable determinations, but they are not how they started. Today's meeting is a precursor to the committee's meeting with the Aquaculture Licences Appeals Board. The members will find from the board that the Minister's determinations can be varied, rejected or accepted. There will be examples of all of that in the Aquaculture Licences Appeals Board report. That is a second round determination of the issue.

Michelle Mulherin (Fine Gael)
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It sounds as if very few are refused when they get to that point because the Department has worked through the issues. With regard to the ones that are refused, I presume a refusal would be on environmental grounds or do they withdraw before they get to that point?

Dr. Cecil Beamish:

Yes, or they are adjusted through the process. There is a variation as to what is actually approved.

Michelle Mulherin (Fine Gael)
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Are there any refusals?

Dr. Cecil Beamish:

Yes, there are refusals, but not many because in most of the applications the negative elements have been removed, varied or adjusted. Somebody could apply to licence all of this room, for example, but they might only get a licence for this part of the room because there are many things in the other part of the room that have to be protected or are not appropriate. The determination is not exactly the same as the application.

Michelle Mulherin (Fine Gael)
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My question is not unduly complicated. Would refusals, even if they are few, be based on environmental concerns?

Mr. John Quinlan:

Dr. Beamish is quite right. The process is so lengthy that the application can change slightly through the process. It can be reduced, but it will not be expanded. Under the legislation it can be reduced. As a result of the statutory consultation process or the public consultation process. mitigation measures could be put in which would substantially change the nature of an application. For that reason, there would be very few refusals by the time they reach that stage. It could be on environmental grounds but there can be other important reasons for refusing. They can include navigation issues in the area in question or other public policy areas such as outstanding fees in a renewal application or company law issues relating to the establishment of the legal entity that is applying. There can be multiple reasons beyond the environmental concerns. The licensing process is hugely driven by environmental concerns because of the protection of the foreshore, but many other serious public interest concerns are comprehended by the licensing process. It is correct that the refusal could be due to environmental concerns but, in practice, it could be for some other reason as well, such as fees, navigation issues, sites being outside licensed areas and a multiple of business related issues where the Department would seek to make a negative recommendation to the Minister. In practice, as we approach a negative recommendation, an applicant will largely comply with what the Department wishes so it is ironed out strictly in accordance with the legislation and we are in a position to make a positive recommendation, but perhaps not for everything the applicant wants.

Michelle Mulherin (Fine Gael)
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Where there is a substantial change to an application to meet the Department's requirements, is it re-advertised?

Mr. John Quinlan:

Not if it is reduced, because the public consultation will be on the basis of the application as it is. The Minister would not seek to extend anything. It would be reducing a footprint, tonnage or something of that nature and there is no requirement in that case. For example, anybody who is going to object to X number of hectares is unlikely to object to something smaller. Certainly, if there a material change that would make the application bigger in some way, that would be the subject of a new application process which would definitely have to go to public consultation.

Michelle Mulherin (Fine Gael)
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A reduction in scale is not deemed material.

Mr. John Quinlan:

That is my understanding, although I can confirm it. I emphasise that the application will already have gone through the public consultation process.

Dr. Cecil Beamish:

It is still open to appeal.

Michelle Mulherin (Fine Gael)
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I understand that. In the context of regular planning legislation, if there is a material change, people need to know so the public can once again engage.

Pat Deering (Carlow-Kilkenny, Fine Gael)
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Our guests might clarify that.

Mr. John Quinlan:

We can clarify it. I believe it is correct but I have other colleagues who are more familiar with it.

My understanding is that where the application ends up being for a smaller amount, in one way or another, the public consultation is not required but if there is any other change, most definitely public consultation is required and is insisted upon.

Pat Deering (Carlow-Kilkenny, Fine Gael)
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If Mr. Quinlan gets an opportunity he might inform the committee of the figures to which the Senator referred. Are there any other questions?

Thomas Pringle (Donegal, Independent)
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In the context of the backlog in the number of licences being granted for bays because of the appropriate assessments, does that mean in ten years' time all of those licences will be due for renewal at the same time? If that is the case, there will be a big backlog again. Will steps be taken to ensure that the process continues to function?

Dr. Cecil Beamish:

Yes, I hope not. That is certainly not the intention. The opening statement contains a reference to the licences that have been determined through each of the years from 2012 to 2016. They will fall due chronologically within the ten years so it does not mean they will all fall due within the one year, plus we will not be back in the same situation in which we found ourselves in 2007, with a negative European court judgment and having to build the entire infrastructure from scratch, as was required. The system is in place. The licences will roll in on that basis, plus whatever new licences come in at that time. It should not happen that we will face a full backlog, as was the case in 2011. Everything had built up so that by 2011 and 2012 the entire industry, which in effect, was in Natura areas needed to be licensed and that is what we have been working through.

Thomas Pringle (Donegal, Independent)
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I thank Dr. Beamish.

Pat Deering (Carlow-Kilkenny, Fine Gael)
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As there are no further questions, I thank Dr. Beamish and his colleagues for coming before the committee. We had a very enlightening discussion on the current situation. As there is no further business, the meeting stands adjourned.