Oireachtas Joint and Select Committees
Tuesday, 6 February 2018
Joint Oireachtas Committee on Agriculture, Food and the Marine
Aquaculture Licensing Process: Department of Agriculture, Food and the Marine
This committee is now in public session. Before we begin, I remind members and witnesses to make sure their mobile phones are completely turned off. I would like to welcome from the Department of Agriculture, Food and the Marine Dr. Cecil Beamish, assistant secretary; Mr. John Quinlan, principal officer; and Mr. Kevin Hodnett, assistant principal officer. I thank them for appearing before the committee today to discuss the status of the recommendations of the review of aquaculture licensing process carried out by the independent aquaculture licensing review group.
Before we begin, we have to deal with the issue of privilege. I want to bring to witnesses' attention that witnesses are protected by absolute privilege in respect of the evidence they give to the committee. However, if they are directed by the committee to cease giving evidence in relation to a particular matter and they continue to so do, they are entitled thereafter only to a 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 they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, or entity by name or in such a way as to make him, her or it identifiable. Members are reminded that under long-standing parliamentary practice that members should not comment on, criticise or make charges against a person outside the House, or an official by name, or entity by name or in such a way as to make him or her or it identifiable.
I invite Dr. Beamish to make his opening statement.
Dr. Cecil Beamish:
Thank you, Chairman. I thank members of the committee for the invitation to meet with them today to discuss the status of the recommendations of the independent aquaculture licensing review group. This opening statement is intended to provide a broad overview of the aquaculture licensing system and how it operates; the key issues associated with the licensing backlog, which gave rise to the review; a brief overview of the key recommendations of the review; and implementing the review. I will be glad to take any questions from the committee members.
The aquaculture licensing system operates as follows. 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 for the activity being licensed - that is, to conduct the operations - and a companion foreshore licence to lawfully occupy the area of foreshore in question. Even in the rare case of private foreshore, an aquaculture licence is required to engage in aquaculture activity.
The foreshore is measured from the high water mark out to 12 nautical miles and is approximately 39,000 sq. 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 legislation covering aquaculture is that the Department considers all applications for aquaculture licences in accordance with the following legislation: the Fisheries (Amendment) Act 1997; the Foreshore Act 1933, as amended; the EU Habitats Directive of 92/43/EEC; the EU Birds Directive 79/409/EEC; the Consolidated Environmental Impact Assessment Directives of 2011; 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 trans-boundary environment.
It is important to note that while attention has been given to difficulties associated with licensing, the industry itself is in fact a buoyant industry with good employment potential. BIM survey data show that there was an overall increase in output from Irish aquaculture of 10% across all the species over the 2015 to 2016 period. We are also likely to see that continue over the 2016 to 2017 period although the final statistics are not available at the moment. On that basis, in 2016, the industry produced approximately 44,000 tonnes of high-value seafood. Not only did the volume of output increase, so did the value, which reached a level of €149 million at first point of sale at the end of 2015, and €168 million at the end of 2016. These figures reflect the growing global demand for seafood which in turn is underpinned by a strong demand for differentiated, quality assured seafood products within the EU 28. While some areas such as rope mussel production are relatively static since 2008, oyster production increased in volume from 2007 to 2016 by over 25%, with a value increase in the order of 128% over the ten-year period. The salmon farming sector also experienced an increase in production in the order of 60% from 2007 to 2016, reaching 16,300 tonnes. However the increase in value for salmon is quite striking with an increase of over 100%, reaching nearly €105 million in 2016.
The major complaint from the aquaculture industry and farmers on licensing relates to the backlog that has developed in the processing of licence applications. The background to the backlog is that in 2007, the European Court of Justice issued a negative judgement against Ireland for breaches of the EU birds and habitats directives. In total, some 71 marine sites had been designated in previous years as Natura 2000 sites and most aquaculture takes place in those sites, although significant aquaculture is really only present in about half of these. A large element of the judgement from the European Court of Justice, ECJ, concerned a failure by the State to put in place a system for data collection, definition of scientific interests and adequate assessment of aquaculture licence applications in the Natura 2000 areas.
At the time of the ECJ case, national legislation was put in place to ensure that Irish aquaculture operations operating under pre-existing licences, and which were seeking renewals could continue to operate under those licences until the Minister could make a determination on their renewal application in compliance with the Natura 2000 directives. In the negotiations with the European Commission to address this negative ECJ judgement, a process was agreed with DG Environment, known as the roadmap, and this is being implemented and has been rolled out since. The issues were how to give the Commission comfort so as not to move to daily fines or to requiring aquaculture to be removed from the bays and to find a way forward whereby aquaculture could be licensed in compliance with the birds and habitat directive.
That process of licensing includes data collection, the setting of conservation objectives by the National Parks and Wildlife Service, the identifying the scientific interests to be protected in these Natura 2000 bays, the carrying out of appropriate assessments of the licence applications against those scientific interests, and appropriate licensing, taking account of, among other things, the Natura requirements. The production of these appropriate assessments has been resource intensive and very time-consuming, not least because of tidal cycles and seasonality issues relating to data gathering on bird migrations and other environmental phenomena. In many cases multi-year time series data had to be collected.
Data collection in the relevant bays can be very comprehensive. It involves collection of data on the benthos, the seabed, the bathymetry, the contours on the seabed, the substrates, the gravels and muds and so forth on the seabed, the fauna and the communities living in the bays, the migratory animals such as cetaceans in the bay, and the birdlife around the tidal area of the bay. For example, the data collection work involved 123 survey events carried out in 71 Natura sites by ten contractors.
In addition, the profiling of aquaculture industry activities was carried out for all of the bays to define the likely interactions with the conservation features of sites. In many instances there was very little data or published literature on the likely interactions between the aquaculture activities and the conservation features. A number of targeted studies and reviews were commissioned by the Department to investigate responses of conservation features, such as birds and-or habitats for specific aquaculture and fisheries activities. Many of these have subsequently been published in primary literature. All of this preliminary work was necessary to prepare the groundwork for consideration of licensing and such work took place from 2009 onwards.
I am glad to report that most of this data collection, definition of scientific interests and the appropriate assessment process is almost complete. The appropriate assessment reports have been received by the Department from the Marine Institute, which was contracted to carry out this work in respect of 27 bays. Those bays constitute the bulk of the aquaculture activity. The work that has been carried out since 2009 has permitted licensing to commence, in compliance with the Natura 2000 directives and the European Court of Justice, ECJ, judgment. Since licensing commenced under the new system, a little over 600 licensing decisions have been made on aquaculture sites located around the coast.
I will give a brief overview of the key recommendations of the review. Dealing with the Natura elements has been the major focus for all involved in the licensing process up to recently. There are other issues, including legislative reform, the streamlining of procedures and the optimum use of technology associated with licensing that also need to be addressed. Due to these elements, the Minister commissioned the independent review of aquaculture licensing in December 2016 and a report was delivered at the end of May 2017.
The review group carried out a detailed examination of the existing aquaculture licensing process, undertook comprehensive stakeholder consultation and considered comparative national and international consent systems to determine best practice for managing a complex licensing process in a transparent, environmentally appropriate and legally robust manner. The group's report has been published and is available to view on the Department's website. The report contains 30 separate recommendations which can be broken down as follows: 15 recommendations contain immediate actions in the short-term under the current legislative framework; five recommendations focus on the licensing authority and who should be responsible for aquaculture licensing; two recommendations are on tackling the licensing backlog and the future of licensing; two recommendations are on licence duration, terms and conditions and request that a dedicated procedure be put in place for scientific and trial licences; five recommendations relate to the wider issues of licensing; and one recommendations focuses on future legislative reform.
Since receiving the report the Department has engaged in a detailed consideration of all of the 30 recommendations with a view to preparing a comprehensive implementation plan. The draft implementation plan takes account of legislative, environmental, technical and public interest issues that have a bearing on the sustainable development of the industry.
As has been stated, it is possible to break down the recommendations into a number of key areas. The Department's implementation strategy has accorded priority to the recommendations on the basis of the following criteria. They represent key goals for industry representatives and are, therefore, likely to be the subject of strong expectations on their part. They represent a necessary initial stage that will lead to the implementation of the report as a whole. They require immediate commencement in view of their overall medium and long-term implications and the potential effect that implementation can have on the reduction of the licensing backlog.
As members will be aware, the core concern that gave rise to the review was the licensing backlog. Accordingly, the elimination of the backlog is the highest priority. The implementation of the report's findings, coupled with the substantial work done to date, will represent a new departure in the regulation of aquaculture which will facilitate the establishment of a well-functioning licensing system. Implementation will also help to achieve the necessary balance between the very legitimate needs of industry and public expectations in terms of environmental protection.
The Department is actively working towards the achievement of 300 licence determinations for 2018 with a further 300 projected for 2019. Achieving this will require the co-operation of a variety of other parties who have an input in the licensing process.
Achieving this level of licence determinations will meet a core recommendation of the aquaculture licensing review group. While there will always be licence applications in the pipeline, the achievement of 600 determinations during the next three years will effectively eliminate the backlog as an issue.
The Department's implementation plan is very much a working document and will be subject to ongoing change as we make progress in addressing the various recommendations made. The Department will consult and has consulted the industry and initiated consultation in the implementation of certain recommendations. I can confirm that we have already met industry representatives from both the shellfish and finfish sides of the industry to discuss implementation of the strategy and I have no doubt that the close engagement will continue.
In addition to the Minister's commitment in respect of licence decisions in the next few years, he has also put in place substantial financial and other supports for the industry. The financial support is supplied under the European Maritime and Fisheries Fund operational programme and directed toward three main areas - sustainable aquaculture production, knowledge innovation and new technology, and more effective governance of marine planning. In addition to the direct financial support, BIM provides a range of technical supports for the aquaculture industry to assist in the development of existing business, address industry-wide issues such as disease management and the introduction of new technologies.
The aquaculture licensing industry has been developed sequentially since the judgment of the European Court of Justice and is being further reformed on foot of the review to deliver a system for timely, robust and compliant aquaculture licensing in Natura 2000 areas where most of the aquaculture occurs. It will be a significant asset in the development of the industry. The fundamental business case for the aquaculture sector remains sound as a strong market demand for its products continues to grow and as increasing global demand for high quality differentiated seafood intensifies.
I hope this statement has been of assistance. I will be glad to respond to questions committee members may have.
Unfortunately, the licensing system has not been working for the industry or those with environmental or other concerns. I have been examining the statistics for Scotland which has been subject to the same environmental directives which I hope will not change following Brexit. Apparently, the period in which licence application decisions are made rarely exceeds 20 months, whereas it is six years plus in Ireland. Will the delegates explain why it takes so long to administer and make a decision on a licence application?
We discuss objectives for our produce. We know that 60% of all seafood consumed in Europe is imported. There is, therefore, significant potential to increase prosperity and jobs across the west. How does it tally that, on the one hand, the Department and other agencies funded by the State talk about the need to develop the agrifood sector and set targets and that officials accompany the Minister on visits to markets across the world and that, on the other, it has taken more than six years to come up with ideas for aquaculture? How can someone develop a market for aquacultural products when one does not know if one will have a licence in five or ten years' time? There is no certainty in that regard. One cannot guarantee that one will have a licence. Do the officials have a view on the inherent contradiction in the case of aquacultural produce?
Arising from the review, there is a proposal to establish separate offices for the issuing of licences and monitoring compliance. Apparently, this is the position in the EPA in which there are two separate offices. It is proposed that the proposal be supported by the industry, concerned NGOs and, of course, the review group. Do the officials support the recommendation and will they implement it to ensure there will be a separate office for the issuing of licences and another for monitoring compliance? It makes absolute sense to me to ensure there would be no conflict of interest in that regard.
Who or what office is responsible for making sure that the regulatory framework for the industry is updated? This is a critical issue for the industry and for those concerned about environmental standards, at both sides of the equation. Who is responsible for making sure it is updated on an ongoing basis, that everything that is being done in the industry is keeping up with necessary environmental requirements and that it is flexible and dynamic? Who is responsible for that within the Department; who makes sure that is happening?
The next question relates to renewals. The following point has been made to me and it makes absolute sense. If one has this dynamic proactive regulatory framework, overseen by the Department, and the environmental standards are being checked all the time, and rightly so in terms of those who are in the industry, why do we need a renewal process? Why does one need to renew one's licence and go through everything again in terms of environmental studies and so on? How can one have certainty? I mention the analogy of the driving licence in that one proves one's competency once. It is not the best analogy in the world but one does not have to renew it again and again. The issue here is that if the Department is monitoring this and if a person has a clean bill of health again and again and is complying with the standards, why does that person need to go through the renewal process? How can one give certainty to a market?
The final question relates to the other side of the equation, those who have environmental concerns and local communities that wish to, and have the right to, object. The Aarhus Convention was referred to. I can only speak with authority about Donegal but we have heard complaints that licences have been granted without local communities being aware of it and that it has been too late to appeal. I have raised this issue with the Department before and raised it again recently.
Let us just take the example of Donegal which is a very large county. Deputy McConalogue and I are from the Inishowen Peninsula while Deputy Pringle is from Killybegs, the other end of the county. People living on the Inishowen Peninsula read the following three newspapers: the Inishowen Independent, theInish Timesand theDerry Journal. Donegal is quite parish based. If one wants to make sure the local community knows what is happening and has a right to object, one must stipulate clearly that these are the newspapers in which the Department must advertise. However, the Department stipulates only the Donegal Democrat. The only people who read the Donegal Democratin Inishowen are the people from south Donegal, a handful of people. That is just the reality created by having that rule. I have given a practical example from Donegal.
I want to give an example of where this fails in a community, and we have dealt with this before at this committee and I will revisit it today because the Department is refusing to address and review this issue. I refer to the planning permission given at Linsfort for an oyster farm. I can tell the officials that the promoters of that oyster farm were told - they did not choose to do this - that they must advertise in the Donegal Democrat, which meant minimising the ability of people to be aware of it The wording of the application stipulated "on the shores of Lough Swilly". I am sure the Department is very aware that the shores of Lough Swilly can swing from Malin Head down to Inch Island and right back up to the Fanad Peninsula; they could be anywhere. A huge coast hugs Lough Swilly but that is what the advertisement stated. The Department insisted the advertisement be placed in the Donegal Democratand that it state "on the shores of Lough Swilly" rather than "Linsfort Beach, Buncrana, County Donegal", thus providing specific information.The advertisement was not placed in a local newspaper which people would read. This was raised with the Department the last time it was here. In the last couple of weeks, I was told that the Donegal Democratwas fine and that it was the newspaper the Department insisted that people advertise in. That is just a practical example of how the system is not being fair to local communities and giving them a chance.
I want to be very clear. I support the potential of aquaculture. I have seen it creating jobs in my home county of Donegal, so I support it happening along the coastline. However, there has to be fairness to those who wish to object. Let them make their case and then a fair and an efficient system can make a decision in relation to it. I highlight to the Department the concerns and frustrations of industry, and the concerns of local objectors. I hope the Department can address the issues I have raised.
I thank the witnesses for coming in and for their presentation. I have read through the review of the aquaculture licence process and it seems to be a very good document. To someone who is not an expert in the field, the recommendations in it are common sense. They set out a pathway forward to try to resolve this issue. I was shocked To learn the length of time it takes for a person to get a licence. One would have qualified as a doctor by the time one would have got a licence to set up in the aquaculture industry. It is mind-boggling how it can take so long. That being said, this document sets out recommendations to change that and to move it forward.
I refer to the recommendation - I think recommendation No. 10 - on the need to put in place an implementation plan to implement this report. Have we got that implementation plan? Does it set out a timescale as to when all the recommendations in this report will be in place?
I am particularly interested in the timescale for the application for the licences. There should be a time limit. One of the recommendations - I think it is recommendation No. 8.1 - is that a six month time limit be set in which to determine a licence and it should apply to all new licence applications submitted by 1 January 2018. Is that in place yet? When people apply for a licence, do they get a timescale as to when it will be dealt with so that they know what they are dealing with?
The Minister has committed, and it was mentioned in the presentation, that 300 licences will be dealt with and issued this year. How long have those licences been there? Do they going back six years or more? How long have these people been waiting to get licences?
Senator Mac Lochlainn mentioned modern practices. There have been huge changes and scientific advances within the whole industry. Does the licensing process take all that on board? Does it recognise the advances that have happened in the whole aquaculture sector and how these changes will impact on the sector?
If it is the case that 600 licences have not been dealt with and we are going to deal with 300 of them in one year, one would have to ask how has it taken so long for this to be done? Nobody is casting any aspersions on anyone's competency or anything else, but it seems mind-boggling to me or to any independent person. If we can deal with 300 licences now and set a target for that, why in the name of God were these people left in limbo for years? These people and the public deserve a clear explanation. I think that is very obvious.
I refer to the future and what we can do from now on. Clearly, there is huge potential in this industry. There are also people who have concerns and they are entitled to have them. Nobody wants to see the foreshore or anywhere else polluted or any issues in that regard. The people who have concerns must have the opportunity to make them known and to object or whatever they wish to do. At the moment if somebody has a licence for an oyster bed in a specific place but the oysters are failing as a result of disease, to solve that problem the person just needs to move it up the bay a little bit. However, if they do that, they will be in breach of the licence. There is no flexibility at all in regard to what people can do.
In other words, they either have to breach their licence, which gets them into a lot of trouble with the Department, or sit back and watch their business go down the Swanny. In any situation, and we discuss issues relating to agriculture all the time as well as farmers in trouble and the problems they have, there is always some solution, there is a bit of flexibility and there are people who are prepared to do something to resolve the issue. However, from what we hear from the people in the aquaculture industry, the Department is absolutely Stalinist in its approach in that one does it its way or else. We need to be assured that these recommendations will be implemented in full, that there will a be change in attitude, that people will find there is some flexibility when they are being dealt with and that they are dealt with in an appropriate manner in the circumstances in which they find themselves.
Dr. Cecil Beamish:
I will try to cover all the questions but members should come back to me if I do not. First of all, I will take Deputy Kenny's point that people are entitled to understand why it is taking so long, and they absolutely are. I tried in my opening statement to explain that the whole issue started and can only be understood in the context of the European Court of Justice judgment, which covers almost all the area. Once the judgment was made, the negotiations, which went on in 2008 and were settled in 2009 with the Commission on what would happen, were crucially important to the industry and those discussions were centred on whether the Commission was going to move to daily fines on the State in which case the Commission would also have potentially moved to require all aquaculture activity in the State to be moved out of the Natura 2000 bays until there was licensing compliance with the directives. A roadmap was agreed with the Commission where a series of steps would be taken that would enable the State to make licence decisions in compliance with birds and habitats directives and there was a provision put into national legislation allowing people to continue their aquaculture activities in those areas under the terms and conditions of the licences they had, pending a decision on renewal. All those who was operating could continue to operate on the terms and conditions of their own licences, pending a renewal. People were not stopped from operating.
Moving on to how one can make licence decisions in compliance, the infrastructure did not exist in the State to do this. It was not a matter of bureaucrats taking their time or something like that. All we had was a red line around the areas that had been mapped by a person in the National Parks & Wildlife Service for Natura 2000 sites. Nobody had done detailed internal mapping of what was in those bays, what was on the seabed, what was growing there, what was to be protected, what was in the intertidal areas and what substrates were. The Department, therefore, commissioned this enormous data collection exercise to map those bays, to map what was on the seabed which had never been done, what was growing on the seabed, what type of substrates there were, whether it is was mud, gravel or whatever, what was in the intertidal areas, where the migrating birds were feeding and so on, and where the cetaceans, the dolphins and so on, were moving. Once that data became available, and it became available sequentially, it could then be analysed and presented to the National Parks & Wildlife Service which identified the scientific interest being protected in the bay and where it was. The Department then had to take all the aquaculture that was in the bay - we are talking about bays that can be 30 to 40 miles long and 20 to 30 miles wide - and map it over the environmental data that was then available, which are called shape piles. Once the National Parks & Wildlife Service had identified the scientific interests to be conserved and the aquaculture had been mapped on to that, which relates to what I said earlier on the impact particular types of aquaculture have on particular types of environmental features and whether they can or cannot coexist, then appropriate assessments had to be carried out for that bay for all the aquaculture taking place there in order to know what could and could not, from an environmental perspective, be licensed there.
If one is dealing with oysters, oyster trellises are often placed in the same place in which the migratory birds feed. To have any basis on which the National Parks & Wildlife Service can assess the impact of the aquaculture on these migratory birds, which may be a protected species and for whom there may be a protected habitat, one needs to have some sort of time series. One is talking about gathering information for four or five years.
Two things were happening. The aquaculture was not stopped from happening and it continued on as it had before, but no new licences could be given while all that infrastructure was being built up. The appropriate assessment of a particular bay could be 500 or 600 pages of dense detailed data. All that had to be created. Only when one got out the other side of the appropriate assessment process could one then deal with the normal licensing things like navigation, safety, cage structures and all that sort of thing. There was a period from 2009 to 2012-2013 when there was no infrastructure on which one could license as it was being built. We have now got to the point since 2012-2013 where we have begun to start producing licences out of this new infrastructure, this new system, and 600 licences have been decided through that process to date. It has been sequential and it has been built up and we now have 27 bays where the appropriate assessment process, which is the end of that Natura 2000 process, has been gone through and we are clear that the scientific interests have all been identified, etc., so the foundations on which to make decisions are now there.
There are 600 licences awaiting renewal and all these people have been operating over the interim period. The figures I gave members on output give the facts on that aspect. The ability to do the licensing is now possible because all that infrastructure is in place as without that one could not do it. The target is to do 300 in 2018 and 300 in 2019. It is not just the Department which has to step up to the plate on that. There will also be the scientific advisers, the Marine Institute and BIM.
Things happened along the way that were not foreseen. Once we started doing the appropriate assessments and started looking at the licensing in bays, the people who deal with underwater archaeology showed us the new legislation that had been brought in by the Legislature on underwater archaeology and they required us to do underwater archaeology surveys on the bays before we would license. Quite a lot of people benefitted as this process moved along. Things stopped in a number of bays until we could get the underwater archaeology surveys done for those bays. There are reasons behind this; it was not just somebody being tardy.
That system has now been built. The 600 licences that went out from 2013 until now went out more or less evenly over the years. We were dealing with a situation where the 1997 Act had led to licences being written in 1998 to 2000, largely for a ten-year period. They all fell for renewal just as the ECJ judgment issued. At the very time when one would have had a logjam of renewals, one had the ECJ judgment, and that stopped matters and it took until to 2013 to get all that infrastructure in place.
Those ten-year licences will fall for renewal year by year from here on. If all the actors that are being pulled together can deliver the 600 licences over the next two years, then we will have cleared the backlog about which we talked. There will, of course, be new licences and in a few years' time, we will be back to renewal issues.
That is the explanation to the very understandable questions as why this happened and why it takes so long for someone to get a licence. Those people who were operating when all this happened were able to continue to operate. They will now get decisions on renewal. That explains the length of time and the process. The industry was at least able to continue to work through that period but there was nothing ideal about it.
Senator Mac Lochlainn asked about Scotland. In Scotland, one needs - it is all written up in the report - five to seven consents to start an aquaculture operation.
One also needs a fore-seabed and foreshore lease from the Crown Estate, a planning permission, an environmental impact assessment from the local authority, a marine licence from Marine Scotland, an authorisation to carry out aquaculture business from Marine Scotland, a controlled activity regulation from the Scottish Environmental Agency and a habitats regulations appraisal. The review group looked at the Scottish model and came back saying that there was a balance to the Irish model, where one needs two licences - an aquaculture licence for the activity that is taking place, and a foreshore licence for the foreshore one is occupying.
I talked about delays of over six years in the Irish case - in Scotland, it is 20 months. What the Department is saying is that now it has dealt with the implications of the ECJ ruling, moving forward under two decision-making authorities, the timeframe will be much less than the Scottish timeframe? Is that what it is saying?
Dr. Cecil Beamish:
The timeframe being talked about is being taken from the court case when everything ground to a complete halt, which was a completely abnormal situation, to the point where the infrastructure was built that could now deal with the licences. We are not going to be in that position again, in so far as one can see into the future. I refer to the issue of the delay and the issue of the bureaucracy and whether the Scottish system is less bureaucratic than the Irish one. As I said, the review group looked at that, and it is in the report. It looked at the five to seven licences one needs under the Scottish system and came to the view that there were advantages to the Irish system where only two licences were required.
Dr. Cecil Beamish:
It is hard to give an answer to that but it should be comparable. I do not see why it would be greatly different. Scotland is not working under a European Court of Justice negative judgment, at least at this point it is not. Perhaps it will not be going forward. That is the unique circumstance in Ireland.
Senator Mac Lochlainn raised the issue that we have development reports for aquaculture, and we absolutely do. We have a national sustainable development strategy for aquaculture. We have a whole series of schemes in place to support the development of aquaculture under the European Maritime and Fisheries Fund, EMFF, in the Department. We do both regulatory and developmental work within this. We have the Food Wise 2025 targets. We can see no contradiction between having a sustainable licensing system, which is fully compliant and which will be a marketing asset and so on to the industry, and assisting the industry in selling internationally. We have oyster products going to China and we have a whole lot of aquaculture products going around the world to 80 or so markets. It is a very international business in Irish products. If one looks at the price of Irish farmed salmon, we were getting maybe €6.50 per kilo in 2016, although it is probably higher now. Norway is held up as being a great example in terms of aquaculture but the Norwegians were getting about €4 per kilo while the Scots were getting about €5 per kilo. It is a high quality product and it has development potential.
As these licences are completed, another quid pro quois that people get full access to all the support funding. Under the ECJ judgment, that was limited until one got the licensing system in place. The funds in the EMFF programme have been back-loaded to take account of this, so that if all of the licensing backlog is cleared over the next 24 months, then everybody will have access to all the funding arrangements which will be back-loaded.
In terms of the licences and the ability to update, anyone can ask for an amendment to the licence.
The legal responsibility on the Department is to respond to the application that it gets, and it is driven by what it is legally supposed to be doing under the legislation. The consideration is on the basis of what somebody applies for. If somebody has a licence and wants to change that licence, they can apply under the legislation to do so. If it is a material change to the licence, then they must go through public statutory consultation because things one does in the marine environment and things one does on the foreshore impact on other people.
Deputy Kenny brought up the case of a person who found that the oyster ground that had been licensed was not very productive and they wanted to move. They can apply to move but it must go through the statutory public consultation process because other people may have an interest in the area of the foreshore to which they may want to move. They are not precluded from applying for change, but the change must go through the whole process.
There is an awful lot of transparency in this report. Every step in the licensing process is set out in flow charts in the back of the report. I was asked a question on the six-month timeline. The flow charts in the report, which were prepared by the Department, explain to people that the steps in the process are all legally required steps in the legislation under which we must operate. Each of those steps has a legal obligation, a legal timeline, etc., that one has to work under. It sets out how one moves through the process, if it is a material change.
Under the Irish system, people do not own the foreshore, they simply lease it from the State. It is publicly-owned property. If they want to move to a different piece of foreshore, there has to be consideration that other people have interests in that issue.
Dr. Cecil Beamish:
The recommendation on that says that in preparing new legislation, consideration be given to assigning the aquaculture licensing function to an independent body, either a new body set up for the purpose or one of the existing environmental regulatory bodies. When that new legislation is prepared, that recommendation says that consideration be given to it at that point.
The Department's submission talks about 15 recommendations that can be implemented in the short term without legislation, but the Department does not spell out what these 15 recommendations are. It is a very general presentation and is lacking in specific timeframes. I asked the witness if he supported the recommendation that there be two separate offices, and I will do so again. Does he support that recommendation?
Dr. Cecil Beamish:
The recommendation says that in preparing new legislation, consideration be given to assigning aquaculture licensing functions to an independent body, either a new body set up for the purpose or one of the existing environmental regulatory bodies. All it is saying is that consideration be given to it.
There are two other questions the witness did not answered. There is a clear conflict of interest in having an office that issues licences and that deals with compliance and monitoring. There are other examples where that is not the case. Does the witness agree that is a conflict of interest? Does he support the recommendation to change that? Those are the questions I asked at the outset.
Dr. Cecil Beamish:
There are many areas in the State where the entity granting the licence or giving consent is also responsible for enforcement. Deputy Kenny talked about agriculture earlier, and we are part of that bigger Department.
There are many examples where the Department sets the terms of schemes and various other things but it is also the enforcing body, which is not a unique or unusual scenario. The industry is very small and there are limits. All of what I talked about earlier - the data collection, mapping and appropriate assessments - was carried on the public purse. If it was a different type of development then the developer would have to carry out an environmental impact statement and so on. There are limits to the amount of bureaucracy. My division is relatively small and it is one of many in the Department that deals with this matter. My division is focused on dealing with the backlog first and foremost, which is what industry wants.
With all due respect to Dr. Beamish, he has not answered my question. I assume his answer to my question is "No". I assume that he does believe there is a conflict of interest and there should be two separate offices.
Dr. Cecil Beamish:
When there is new legislation, all of that will fall to the Legislature to decide. We do not see a conflict of interest, at the moment, in granting the licences and overseeing same.
We have an inspectorate that looks at various aspects of the marine engineering division. We inspect them and they are part of the Department. It is a separate division but it carries out inspections. The enforcement activity is recommended through the licensing division.
Dr. Cecil Beamish:
I thought I had gone towards answering the first question on a dynamic framework. The legislation requires the Minister and the Department to consider the applications that it receives on their merits and make a decision. That is what the person applies for. If a person has a licence but wants it changed then the legislation permits him or her to apply to do so. If the change is a material change then there is requirement to go through public and statutory consultation, etc., because it is on public property and other people have an interest. That is how the dynamism exists.
Dr. Cecil Beamish:
Last year, we had a long conversation on a specific case. The requirement in the legislation, which the Minister and the Department must work to, is that the applicant should publish in a newspaper circulating in the vicinity of the location. This time last year we had a long conversation about the Inishowen Independentversus the Donegal Democrat, etc. l can repeat our conversation but I do not think it would be fruitful.
The Garda Reviewis circulated in Inishowen, for God's sake. Publishing in two or three newspapers will ensure that the notice is read by somebody who lives in the community and will be affected by the decision. I have made that basic point before yet it still has not been accepted by the Department. In recent weeks I received a letter that still says that the Donegal Democratis a newspaper that circulates in the region. I am sure Deputy McConalogue will have more to say about this matter in a minute. Persisting with the same publishing policy is just madness.
Dr. Cecil Beamish:
In many other parts of the State advertisements are placed in national newspapers on the basis that national newspapers are national. Whether they are heavily read in a particular area is not tested, I do not think, in that situation.
We have tried to use provincial or local newspapers but there are very many such newspapers. There is a legal requirement to publish in newspapers that circulate in the vicinity of the location.
Dr. Cecil Beamish:
Yes. We are working through all of these and trying to establish a hierarchy. The report recognises that the primary legislation will take too long in terms of dealing with the backlog issue. The first priority is to clear the backlog, then there will need to be new legislation and we will start consideration of the new legislation. There are only three pages of recommendations and I tried to categorise them in my presentation. It is not an inordinately long list of recommendations and some of them are easier to implement than others.
Deputy Martin Kenny asked a reasonable question about the six-month time limit.
Dr. Cecil Beamish:
In the report one will see the annexes that have detailed flowcharts on the different steps that are legally required to grant a licence. They are all there because they are legally required to be there. We cannot remove them. It is difficult to see how one can fit with the six-month time limit yet meet the legal requirements. Those are the sorts of issues that are being considered.
The report talks about the pre-application process. Let me outline one of the issues. I think the Department started out being very helpful to aquaculture applicants because it is a relatively new industry and people may not submit full or complete applications, site maps would have to be sorted out and other things would have to be sorted out. We have not traditionally dealt with it in the way that a planning authority would do so and return an application to the applicant if a comma or full stop was missing. That has not been the culture up to now. Part of the implication of not having that culture is that things take longer due to sorting out the applications, working with the applicants to source site maps, which they would not have necessarily, marine mapping, surveying, etc.
One of the recommendations is that there would be a much stricter pre-application process. One of the considerations is whether BIM would take on the role of assistant. I am thinking in terms of farm advisers and people who help people to complete applications in the agriculture sphere. If BIM takes on that role then it cannot be involved in the post-application processes. We, in the Department, primarily work with two agencies - BIM and the Marine Institute. The Marine Institute advises us on scientific and technical matters and BIM advises us on development and other technical aspects of the industry. For example, when we need to get the underwater archaeology done we would work through BIM to get those surveys done. If BIM were to be involved in the pre-application process it could not legally get involved in post-application processes. If we took on that recommendation today we would weaken the ability to deal with the existing backlog as the measure would take one of the players out of the game. Nothing is straightforward but that is life. If we got past the backlog of existing licences then one could move. I think we would generally favour a much clearer and stronger pre-application process because it takes a lot of time to straighten out applications.
While I understand that there is a backlog to deal with, there seems to be resistance - and I would be delighted to be corrected - to the implementation of this report. There seems to be an attitude that the Department will deal with and implement the report when it has completed the other work of issuing the 300 licences that it wants to issue. I would like reassurance that that is not the case and that there is a commitment to implement the recommendations of the report, notwithstanding that the Department needs to get the new licences issued.
Dr. Cecil Beamish:
There is absolutely no resistance to the report. The Minister commissioned the report and the Minister and Department are one and the same. He commissioned the report for a purpose. A central recommendation of the report is that the backlog should be cleared by the end of 2019. That involves a threefold step-up of the rate of determinations on licence applications each year, in 2018 and 2019. That has never been achieved under this system. It is the central short-term recommendation to be done. We are accepting the timeline and making every effort to try to step up to that timeline. There is no question of not accepting the report but even if one reads the structure of the report, it talks about what can be done in the short term and what can be done in the longer term.
I thank the officials for coming in and for their presentation today. It is a very timely meeting and it is important that we have it because it is crucial that the independent report commissioned by the Minister is moved on and that we see those recommendations acted upon and implemented. As I know, and Senator Mac Lochlainn and Deputy Pringle will know, there is potential in aquaculture, in my own county in particular - we are among the most impacted by it - for an increase in employment as a result of the development of oyster farms. There has been an increase in production and also the tremendous employment provided by Marine Harvest in the Fanad Peninsula in an area where there is not much other employment. There is much more potential there if we can get our licensing system motoring, renewals completed and new applications streamlined so that there can be prompt decisions. The Marine Harvest plan in Fanad is operating at well under its capacity. It does most of the processing for the rest of the country and could do much more but it is stymied by the fact that these licences have been on hold for the last period and the opportunity to expand is not there. There is an onus on us as the State to ensure that we push that forward.
I have a few questions on the independent review. One of its key recommendations is that an implementation plan would be published. The independent review was commissioned in December 2016 and it was published in May 2017. We are now in February 2018 and the implementation plan is not in place. Whatever about getting all the recommendations implemented, the actual plan as to how we will implement them has not been published or finalised. Although progress may be made on the recommendations, the key overarching plan has not been agreed. I know the witnesses have referred to the draft implementation plan. Is it possible for us, as committee members, to be privy to where that is, what the Department's position is and what the plan currently is? It is important that the 300 licences in 2018 and the extra 300 in 2019 are issued. I acknowledge the tremendous amount of work that will be involved in that for the Department. That will indeed be a significant objective for it. The Department is saying that there are 600 licences in hand at the moment to be renewed. How many have been renewed up to this point? In 2018 and 2019, we are talking about 300 each year. That is 600 renewals. What number of new applications are we talking about at the moment, or amended applications where an entity seeks to amend a licence it has been working off for the last years since the court decision?
I want to comment on and seek further clarity about two or three of the recommendations. Senator Mac Lochlainn and Deputy Kenny have touched on recommendation 8.1, which states: "A six month time limit should be set in which to determine a licence and that this should apply to all new licence applications submitted after January 1 2018." Are we in a position to achieve that for new applications? I presume that is for applications which are on hand but it indicates that we should achieve a six-month timeline for new applications as of now. Where are we with that? I know the witnesses commented that they feel the recommendations of the report relating to the six-month timeline may not be compatible with the legislative obligations that have to be met with regard to a licence application. Will they flesh out which parts of the licence application they believe are not compatible with that six month objective? Are there steps that we can take to try to ensure that compliance with the legislation becomes possible within the six months?
Recommendation 8.16 recommends that work should commence immediately on new aquaculture legislation. Has that work commenced? Where are we with that work and that new legislation? Recommendation 8.7 indicates that consideration should be given to assigning the licensing function to a new body. This is the first occasion we have had today to properly discuss that. Given that this independent report has been available since May, I think these issues need to be crystalised promptly with regard to fleshing out that idea. That feeds into the implementation plan and where we go with that. Following on from that, how many of the 30 recommendations does the Department agree with? That is not clear at this stage. The report is there but we do not know, point by point and recommendation by recommendation if the Department agrees with or intends to pursue them and bring them forward.
A comparison was made to Scotland. The Scottish industry has developed and expanded at a much faster pace than ours. There is a consideration there that, post-Brexit, if it leaves - we hope it does not, but it is making such a mess of it that there is a real possibility that it will not work out how we like - the current requirements, restrictions and regulations on the Scottish industry, for example, will be removed and it will be able to proceed at pace and develop even further. I know there is the European court decision which has tremendously impacted on our situation. What did the Scots do differently from us which has meant that they did not have similar court decisions against them and have been able to grow at a faster rate?
With regard to salmon fishing licences versus aquaculture oyster licences, for example, are salmon licences up for renewal? Are they all being included in that 300 this year and 300 next year? Does the Department wish to deal with all of them? Is there a differentiation in how it views those?
A significant body of work has been carried out about the appropriate assessments. Were there existing licences which fell outside of areas which required appropriate assessments or are we talking about appropriate assessments being required for all areas where licences were in place? Has the Department been able to continue to issue them in some areas which were not affected by the court judgment?
Senator Mac Lochlainn made a point about the newspapers. He indicated that it is dictated by law that there should be information in papers published in the vicinity of the area. Will the witnesses give us further detail on that? I believe people have been directed to certain papers before.
Is there a schedule of newspapers held by the Department which it provides to those making applications to outline which newspapers they are required to publish in? If so, is it possible to amend and update it? It is very important to develop the sector. It is also important that we take communities with us and that people have the opportunity to participate in the process. There have been issues and difficulties in Inishowen. Linsfort is a case in point where people did not feel they got that chance. It is very important there is a streamlined system.
On the foreshore licence applications, where are we at on the timeline involved? How promptly is it being dealt with?
Will Dr. Beamish comment on the Department's position on the oyster industry along Lough Foyle, given there is no jurisdiction over it?
Dr. Cecil Beamish:
Deputy McConalogue asked how many of the licences we have renewed since the new system got up and running. The answer is that 600 licence decisions have been made under the new system. He asked if there were areas outside of Natura. There were but they are limited. Bantry Bay is the largest non-Natura area; most of the rest are Natura areas. We dealt with Bantry Bay in 2012 to try to clear the decks of the non-Natura areas before we got into the Natura ones.
He asked me about Scotland and the ECJ. I cannot answer that. The Deputy would have to ask the Commission that question. I do not know the specifics of the situation.
The Deputy talked about finfish and salmon. The salmon situation is a little different because under the environmental impact directives, an environmental impact statement has to be produced for each salmon application. There are only 38 finfish licences. There are only one or two new ones so the rest are operating as they were under their old licences. An environmental impact statement has to be produced and there are only one or two of those on hand and they are only on hand about a couple of weeks. We are awaiting environmental impact statements on the rest before we can advance the renewal process and the decisions on those applications.
The growth in salmon I talked about in my opening statement has occurred in the context of people operating under their existing licences. There are estimates that we may get to 19,000 tonnes for 2017 but it is an estimate at this stage. It was 16,300 tonnes in 2016 and 12,000 tonnes in 2012. People have been operating under the licences they have.
The Deputy talked about the salmon industry in Norway and Scotland. There are some things happening there which are different. For the past five years, salmon production in Norway has plateaued. It has been pretty static for the past five years and equally so in Scotland. In Norway, there are essentially no new licences in the existing areas. There are some possibilities for what they call green licences where one is using a new technology or new species or for going offshore into deeper water. They are beginning to hit some limits in terms of their capacity to grow. Salmon production in Scotland has been static for the past five years as well. There are things happening to people and the story is evolving from where it was which was one of rapid growth.
In terms of the 600 applications we are targeting to decide over the next 24 months, the estimate is that about 40% will be new applications that are on hand and 60% will be renewals. That is an estimate. I do not have detail on it but that is what people are saying.
I will address the issue of newspapers, which seems to be a big issue, as it was last year when we appeared before the committee. The legislation is very simple. It says the applicant should publish in a newspaper circulating in the vicinity of the location. We cannot publish in every provincial and local newspaper. I do not know the total number but there are up to seven in some bigger counties. We have tended to pick the biggest in a county. We discussed the Inishowen issue in detail. It may well be that that model has to be reviewed, for example, if there are new technologies. In new aquaculture legislation, it will have to be done differently. One of the alternatives is to publish in national newspapers so we would not have this issue, but that is not a very satisfactory either.
Dr. Cecil Beamish:
We do not have a schedule. We keep it under review. We are open to keeping it under review. We have a budget, but like everybody else, we have limits. There have been some publications in the Inishowen Independent. I do not know if we can sustain it but it has happened. We will keep it under review. We are listening to what is being said. We are well aware of what is being said.
Lough Foyle has always been a complex issue. The aquaculture licensing legislation does not apply to Lough Foyle. Under the Good Friday Agreement, the Loughs Agency is envisaged as having future functions in aquaculture licensing in Lough Foyle. The issue underlying everything in Lough Foyle is the fact there has been no settlement on jurisdiction on Lough Foyle. Before the Good Friday Agreement and the referendum, under Articles 2 and 3, it was all considered to be part of the State. Subsequently, it changed with the changes of Articles 2 and 3. There has not been a resolution of the jurisdiction issue. It impacts on the foreshore. The aquaculture legislation does not apply. There is ongoing interdepartmental work on Lough Foyle, which has been going on for some time. There are contacts with the United Kingdom authorities, although the jurisdiction issue is primarily a Department of Foreign Affairs and Trade issue, to try to see if there is a way forward. Until the jurisdiction issue is resolved, it is difficult to see how the foreshore issue can be defined and how the functions can be given over to the Loughs Agency because there remains the issue of how the foreshore will be dealt with. In the UK, the Crown estate owns the foreshore and that is quite different from Ireland. The Crown estate is an independent entity. It regards it as its real estate, wherever the boundary is. The United Kingdom authorities have to deal with the Crown estate as well as part of that discussion. It is not resolved. There is active work going on. It is not something on which a timeline can be set for a resolution.
I have a couple of other questions. I refer to foreshore licence application timelines and the implementation plan following on from the recommendations of the report. How are we going to implement it? The other thing is the six-month timeline. What issues does the witness feel are blocking that? Has the new aquaculture legislation started? The recommendation was that would commence work immediately. Dr. Beamish dealt with issue of the new licensing function in a previous question, but obviously that has to form part of the implementation plan as well.
Dr. Cecil Beamish:
It is driven by the aquaculture. The person is asking for the piece of property to carry out the aquaculture activity. There is no point in pre-granting that piece of foreshore if a decision has not been made on the aquaculture. They are separate files because they are separate legal entities. However, the Minister makes a decision, in an individual case, on both the applications for an aquaculture licence and a foreshore licence simultaneously.
Dr. Cecil Beamish:
I think I responded to Deputy Kenny on the six-month timeline. The recommendation is that a six-month limit should set. If we look at page 66 and onwards in the report, it sets to the process that is pursued at the moment to grant a licence. Each one of the steps timelined in the flow charts is what is legally advised and required. That does not reduce the six months. I am not saying six months is not the right aspiration. However, it does not reduce the six months. We are looking at whether there is any way to be legally compliant and get through the process in that timeline. The report itself does not explain how that could happen. That is the issue being looked at.
Dr. Cecil Beamish:
It is 43 to 81 weeks, depending on what is required, including environmental impact statements, EISs, etc. If we compare that with what is said in the report about timelines in other countries, we see a whole variety of situations up to 25 months etc. It is in months rather than weeks just to complicate it. The Scottish case was a couple of years. The backlog that arose from the ECJ is exceptional. There is no doubt about that. However, so was the agreement to maintain aquaculture activity during that period. If we have the architecture on which we can now build a decision, such as the appropriate assessment, data collection and scientific conservation interests identified, it is a much more streamlined process. It cannot be started without that.
Dr. Cecil Beamish:
Yes, from start to finish.
If we went for a much more stringent pre-application process, like there might be for another kind of development such as in terrestrial planning, where everything has to be absolutely perfect when submitted or it is sent back to the applicant, we could shorten times because we do spend a good bit of the licensing division's time straightening out applications with the applicant. It was a more friendly way of doing things.
Many of the traditional aquaculture operators are relatively small farms, new in the business or they were at one time. Much of the information they require would not be easily to hand privately. Traditionally, it is expensive to get. We helped with mapping and so on in the past. However, with the recommendation to go for a much more demanding pre-application process, the post-application process can certainly be shortened. When comparing one country with another, those are the kinds of things that might give different results.
Dr. Cecil Beamish:
In the finfish case the requirement has come in through the EIS directives and there has to be an EIS in all finfish cases. In shellfish cases, a pre-screening is done by the Department and its agencies, and a decision is taken as to whether an EIS is required. In most cases it is not and that shortens the process for shellfish. For finfish it is mandatory under EU law. There has to be an EIS and that takes longer. One of the other reasons there are different figures for those timelines is public and statutory consultation. Depending on what arises in those consultation exercises, there may need to be feedback loops, adjustments and so forth, and that can take longer.
Dr. Cecil Beamish:
The recommendation is to look at an implementation strategy. We have been doing that both in the Department and with our Minister. We have not created a document for publication. However, we have been working internally on a strategy to deal with these. It is easy to go through the recommendations and talk about them and what consideration is going into them. It is quite clear, however, that we and others will not be able to do everything immediately and clear the backlog. There are a limited number of people who work in this area. The Legislature will take some time to do a whole new aquaculture framework. It tends to be a high-interest group activity. I am sure there will be a lot of amendments and adjustments when we are doing it. The report is quite open about that. It recognises that some things are longer-term than others.
Anything that we can adopt relatively quickly, get in place and that will drive the clearing of the backlog is being done. We have started work on things like developing electronic systems and e-licensing with our IT people. We have also started work on a draft aquaculture management information system that would do an e-mapping system. However, we are a long way from being in a position to have anything that would be capable of being issued and relied upon in a legal process. All the things listed that can be started and moved along are being looked at and we are trying to be move them along. The report does not say that everything has to be done. The ones with the timelines are the backlog. That is accepted and that challenge is being taken up.
Dr. Cecil Beamish:
Yes, if they can. With some of them it is challenging to see how they can be implemented with the range of legal obligations imposed on the Minister and the Department. These are not optional and cannot be removed easily. They are European requirements etc. There are some immovable objects that a recommendation simply will not get past. If there are other ways of doing it or faster ways of doing it, it might be possible. Much of what we are discussing is a historical problem. We could have been having this conversation in 2007 or 2008 when we were really in trouble with this project with the negative judgment and no architecture. We have almost addressed a problem that is getting closer to resolution. We are a good way down the road of resolution of many of the problems, although not all of them. There will always be new problems.
I thank Dr. Beamish for his comprehensive answers. I am concerned about the need for the implementation plan to be finalised and published. I take his point that many of these recommendations will be more medium term and so on and that some will be more achievable. The priority has to be to get the licences renewed and issued. Resources need to be allocated to that. Some of these recommendations may have a longer timeline than we might like. At this point it is crucial to see what the plan looks like. We need to see the timelines and the Department's views on the various recommendations - whether it accepts them and wants to put a timeline on them or if it does not think they are feasible. Given that the independent review was published last May, we should have seen the implementation plan before now, including a formal response and plan of action from the Department.
I fully support what Deputy McConalogue has said. Obviously the recommendations are listed, as Dr. Beamish has said. Will he supply the committee with a response to each recommendation and a timeline for implementation or, if they cannot be done in an acceptable timeframe, the reasons for that? If he says there are difficulties, that is fair enough. He needs to let us know the difficulties.
Dr. Cecil Beamish:
I can certainly look at it. We have been working actively on some of these, including the resourcing of ALAB. ALAB has been given additional resources since this. There is a request for a service level agreement. There are legal issues about that because it is an independent body. Putting a burden on it for delivery on operational independent legal decisions does not sit with the primary legislation. However, we are looking at drafting a governance agreement with ALAB if we can within legal advice. That has been ongoing. It is dynamic and probably anything we might give the committee would probably be out of date shortly after it is given to the committee because it is all changing.
I want to emphasise that point because otherwise it is fudging it. It needs to be crystallised. That implementation plan with targets set needs to be prioritised and put in train, understanding that there are resource implications and certain things will be given priority over others. It is not acceptable to kick that can down the road.
Many of my questions have been dealt with in the previous contributions. I would be interested to see the implementation plan when the Department publishes it. It would go a long way towards setting the process in train for us.
This whole process arises from the European Court of Justice recommendation. Dr. Beamish had told us that the intention in Europe was that this system would be rolled out across the rest of Europe. How close is it to being rolled out across the rest of the European Union so that everyone will be on a level playing field in future?
The public has a role in deciding the application process. It has not been mentioned much in Dr. Beamish's presentation. I think there was one sentence out of four or five pages, which is a retrograde step. The Department is the licensing authority. It has responsibility to the public and to the people applying for licences. Therefore it should take on board the views of all and ensure that everybody is taken care of. Obviously, people involved in aquaculture licensing or in any sector do not like to see the public being involved because they see it as a difficulty that has to be dealt with. They do not like to see the licensing people doing that. It states that a common theme in the submissions received during the public consultation process was inadequate public notification of applications. It is there and it is vital. It is very important that the public has faith in the process as well as the industry having faith in the process. I do not think the two are mutually exclusive. I think they actually work together. By having both sides fully on board with the process, at least we can know that the process can stand up. I would be concerned that the public consultation is seen as a nuisance rather than being a vital part of the process.
I probably know the answer to this and it may also be contained in the document. Increasing the licensing period from ten years to 20 years probably makes sense. Will Dr. Beamish outline his views on it?
I presume the aquaculture appeals process is separate from the procedure outlined here and that is probably why it is not covered in it. Will there be a similar process for that or will it also be a streamlined process? Will Dr. Beamish outline his views on that?
On the timeline for implementation of all the report's recommendations, the legislation seems to be long-fingered. Will Dr. Beamish expand on that? The focus is probably rightly on clearing the backlog of outstanding decisions. What about the legislative measures? The report recommends that the two happen in tandem and that work should start straight away on that. Has that happened? If not, when will it happen?
Has the environmental impact assessment directive been taken into account? I know it came in after the final report was drawn up. Has that been taken into account? It will probably have an impact on the licensing process in the future. This has to be a dynamic process to keep track of how the EU legislation is changing.
Deputy McConalogue asked about the Lough Foyle licensing. I know Dr. Beamish said the foreshore is caught up there. What is happening to the produce of Louth Foyle? I accept the licensing cannot happen, but production is taking place there and I presume the product is going somewhere. What role does the Department have in the produce from Lough Foyle?
The debate has been very informative on both sides. We have heard from eminent people with great knowledge and from the Department whose officials have exceptional knowledge of the issue. It has been very helpful. The backlog has been the biggest issue the Department has homed in on. It has expressed the hope that most of these issues will be resolved in the very short term, not the medium term. It hopes to resolve 600 cases in the next two years. That is 300 a year if I am to believe what I have heard today. How is the Department going to resource that from a manpower perspective given that 600 cases is what it managed to deal with in the period from 2012 to date? It will mean an enormous drive to make the necessary changes to the Department's structures, manpower and efficiencies to manage as many cases in the next two years as it has managed since 2012. Will the Department explain in detail how it will manage this? Will it be through computerised courses, budget changes or staff increases? How will that move forward?
Dr. Beamish mentioned BIM and whether it should be involved with the industry itself first before it comes to the Department. Dr. Beamish reckoned there might be a conflict of interest in that regard. Is there a need for a Teagasc-type organisation to be set up for the process? In the agricultural sphere, Teagasc has a relationship with the Department to some degree as the funder and it advises farmers on a day-to-day basis regarding grants and how they work. On the other side, Teagasc provides an information service to inform the development of national policy. Is there a space for a Teagasc set-up in Dr. Beamish's industry to help streamline applications and assist the Department with the system? If such an institution were set up, how should it be constituted?
I also want to ask about the process agreed with DG Environment to address the issues in the judgment of the Court of Justice of the European Union. In particular, I refer to the environmental impact of industrial-scale fish farms and how the concerns around that are addressed. Part of the process involves the National Parks and Wildlife Service setting conservation objectives.
The area I am from has a bountiful river for salmon fishing, the River Moy. I do not know if I heard it at the committee or elsewhere, but I have often heard IFI concerns about fish farms and the possibility of escaped farmed salmon carrying lice and disease and interfering with the breeding patterns of wild salmon. Indeed, a farmed salmon was found on the river. There appears to be some contamination in the wild. The IFI has expressed concern and it is the body which is charged with the conservation of wild salmon. On the other hand, the Marine Institute does not seem to be as concerned about it. Who takes precedence? Who decides what is a priority and what balance should be struck? How does the National Parks and Wildlife Service arrive at a determination on priorities?
How are the rights of traditional seaweed harvesters being accommodated, recognised and protected or, indeed, limited in the licensing process? Many concerns have been raised about the rights of people with a long-standing tradition of cultivating and cutting seaweed from the shore.
I should have added the following to my first question.
I refer to the situation with onshore as opposed to offshore fish farms. I understand the former are environmentally preferred. What are the pros and cons there and why is it not the natural choice? Is it simply a matter of cost?
We have talked about marine harvest and we have objectives here for aquaculture. That is what the Department is dealing with. It gives out licences so that we can hit targets in this strategic economic activity in the food sector. On the other hand, an issue which is coming more and more to the fore involves the Government's objectives on renewable energy. That will include marine energy generated from waves, tides and, possibly, offshore wind. The Government is looking at the possibility of providing support tariffs to offshore wind. I know solar is up. With reference to the Department's aquaculture licensing function, how does it reconcile competing interests? Is there a de factomarine spatial strategy? To what extent will there be conflicts of interest as we move more towards offshore renewables, for which there is a greater public appetite than for onshore renewables? Has that been considered at all?
Dr. Cecil Beamish:
Deputy Pringle asked about a level playing field in the aquaculture licensing process. The issues we have been talking about today relate to the habitats and birds directives. The European Commission is the guardian of the implementation of those directives and it took Ireland to the Court of Justice of the European Union. I am not privy to its interactions with other member states. The large competing states are the UK and, to a lesser extent, France on some of the shellfish. Norway is an EEA country and in a different situation. We are not privy to the interactions and communications on enforcement between the Commission and other members states but they are subject to the same rules and should be meeting the same obligations.
Dr. Cecil Beamish:
Others have judgments on other things but we are dealing with the judgment we have. The other way to look at it is that once the system and its architecture is built, we will have a very significant aquaculture asset to help us know what we are doing. Any food product one is selling requires a high level of environmental certification. It is increasingly the case in the wild fish area that if one does not have environmental certification, one loses a very significant portion of the price. Our aquaculture industry will be in a better place by virtue of having this, albeit it is a painful child to give birth to.
Dr. Cecil Beamish:
They are bound by the same obligations concerning birds, habitats and so forth. The ways in which member states deal with them are very different. We talked about Scotland where there are between five and seven pertinent licences. In that jurisdiction it is broken up into many authorities which have to provide consents. The separate authorities add different pieces of the jigsaw, so to speak, whereas things are much more unified in Ireland.
Dr. Cecil Beamish:
The birds and habitats directives are what they are. The obligations should be the same for all member states. It is the European Commission that decides on the enforcement actions and whether the way a particular member state is dealing with them is satisfactory. That is standard to any European law.
Dr. Cecil Beamish:
Having almost built a system to completion, we do not really want to revise it again. The Deputy mentioned the issue of public involvement. I have just looked at the presentation. A lot of it is concerned with the Natura 2000 scheme and the environmental dimensions because that is what much of the licensing report is about. That was the core issue. However, I did mention that the legislation provided for periods of public consultation and I talked at some length about the public participation directive. Of course, the public are stakeholders. It is a public good and public property.
Dr. Cecil Beamish:
They do. We have had applications in respect of which we have received 1,700 or 3,000 objections. The public are actively engaged in the process. There is a process of public consultation for every licence application and each view has to be assessed, dealt with and considered in the decision-making process. The public are intimately involved in the process. Members of the public are often involved in appeals through the Aquaculture Licensing Appeals Board.
The Deputy asked about shortening licensing periods from 20 years to ten. This is something on which we have had initial consultations with the industry because the report makes the recommendation and it is legally possible to receive a 20-year licence. There is a variation of interests. The non-governmental organisations, NGOs, have lobbied to have three-year licences, but we have tended to stick with a ten-year period as a middle ground. It is not only an aquaculture licence but also a foreshore licence. Normally, applying for a 20-year foreshore licences involves obtaining a valuation from the Valuation Office and there are five-year rent reviews. A mid-term environmental impact statement will probably be required because environmental factors are likely to change over a 20-year period.
As such, we have tended to operate using a ten-year period, with standard fees for foreshore licences. Certainly, if we were to change to a 20-year period, it would not be possible to clear the backlog because we would have to obtain Valuation Office valuations for every one of the licences. There is no possibility of having 600 of them done in anything like the timeframe we are discussing. Moreover, we would have to draw up formal leases for such a period, which would involve rent reviews, etc.
We have started a consultation process with the industry to obtain on their views on this issue. It is possible to change to a 20-year period, but it would have implications. It would have significant cost implications and we have supplied some indicative comparative costs of what might happen in such a situation. One option is to deal with the applications in hand in the way the other applications have been dealt with and then examine a prospective move to issuing longer term licences. There would also be other considerations in having 20-year licences. Effectively, somebody is sterilising an area which is very large in the case of some aquaculture licences. If the company is not capable of performing adequately, a 20-year period would create a long-term rather than a short-term problem.
Dr. Cecil Beamish:
The industry has been talking to us about the recommendations made in the report. That is the source of that conversation, but we have not proposed to make the change. These are the kinds of implication that follow from the recommendations and they must be fleshed out. It is very easy to say changes should be implemented immediately, but we need to assess what the implications might be.
Dr. Cecil Beamish:
For many shellfish farmers, there would be a question of viability because of the costs that would arise if the changes were to be made.
The aquaculture appeals process has been mentioned. There is separate primary legislation governing the Aquaculture Licence Appeals Board which is completely independent in its operation, as it should be. There was a period during which there were no licence applications and no appeals. There has been a period of growth and the current workload is being processed. There is no proposal to start a separate review of the Aquaculture Licence Appeals Board. It might be premature to do so.
There has been discussion of the recent changes to the environmental impact statement directive. The changes are being considered and dealt with.
In the case of Lough Foyle, responsibility for product and food safety rests with the Sea-Fisheries Protection Authority which has worked out arrangements to ensure the product generated from Lough Foyle which is marketed from Ireland goes through the necessary food safety mechanisms.
Dr. Cecil Beamish:
It is not illegal to produce an aquacultural product because there is no legislation which requires an aquaculture licence on Lough Foyle. The production of aquacultural products at Lough Foyle is not illegal, but it is not regulated in the same way as it is elsewhere in the State. That is what the legislation states. It is true; there is something unique about Lough Foyle and it is something that will have to be developed over time. It is a jurisdictional issue which has to be resolved. It has not been resolved in the history of the State, to date, but the situation was probably different prior to the Good Friday Agreement.
Dr. Cecil Beamish:
Much of the UK Scottish salmon industry is exporting to the EU. In the seafood area, there are higher tariffs on some of the farmed salmon products. That might be an issue of concern on the UK side. The tariffs are not at the level of those on beef, but they are at the higher end of the seafood tariffs. That may have implications.
Dr. Cecil Beamish:
We are trying to focus first on the things that can be done in the shorter term, which is what the report recommends.
It is recognised that it will take time to prepare and draft primary legislation on aquaculture. We need to consult, prepare and draft a Bill to bring to the Oireachtas in due course. It is a recommendation and it is accepted that it will need to be done at some point as soon as it can be.
The focus is on the short and medium-term work. There are comments in the report about why the primary legislation element will need to be done later. Resolving the historic issues cannot wait and we must deal with them. First we must deal with the backlog.
Dr. Cecil Beamish:
Obviously. We are not saying it does not start. We are considering it. It could be a case of eaten bread is soon forgotten. We are trying to step up threefold the number of licence determinations in each month of the next 24 months. That requires an input not just from us but from external bodies. It is not just the licensing division that will have to deal with it, there are other external bodies that will have an input into the licensing process who equally have to step up the pace, in terms of delivering scientific and technical views. All of that has to be delivered. That is the first and primary challenge. We will be in a different space after that. The industry will be in a different space.
Dr. Cecil Beamish:
It cannot move at the same pace straight off. Simply saying that we will do 300 licences does not do the 300 licence determinations that have to be done. All the building blocks will have to be delivered to do that.
I will now respond to the questions put by Senator Lombard. We had a discussion earlier on the infrastructure that had to be built to enable licensing to happen. That is largely now in place. That is what enables a stepping up of the licensing process. In itself it does not achieve it but it does enable it.
In his contribution Senator Lombard spoke in terms of the role of Teagasc in an advisory capacity where it advises applicants for grants and so forth. BIM does that in the seafood area. BIM works with applicants on the preparation for grant and other schemes, advising on how the schemes run and how they apply. The issue of BIM working in an express way on the pre-application process is that BIM is a statutory consultee when that application comes in at present. BIM helps the Department on some of the things that we might need to do. I spoke earlier on the underwater archaeology earlier. It seems to us that if BIM were to do the kind of pre-application role that farm advisers may do, that would seem to have implications for any post application involvement. It is a question of the balance of advantage. Is the balance of advantage to make that move at this time when one is trying to up the rate of decision determination?
Dr. Beamish is correct. However, let us look at Teagasc model. Teagasc is a statutory body that advises the Department, but a farmer can bring his agricultural adviser from Teagasc to the appeals hearing. The crossover is not quite so drastic as Dr. Beamish is stating.
I see a great similarity between the role of the BIM and Teagasc. I see it as something that needs to be looked at. The benefit from the agricultural point of view to having that independent body coming to a person through a process is very helpful.
Dr. Beamish states how open he is to working with the applicant. While that must be acknowledged, there is a place and time in the industry for looking for a Teagasc-style body to be put in place so that those in this sector can benefit from it.
Dr. Cecil Beamish:
It may well be. I am saying we will look at those suggestions. We have to consider them before making any move. I think it was Deputy Pringle who raised the question of public opinion. The public often has a very strong interest in this and has a very clear view about whatever decision might be made about a licence and it may be challenged legally. People are entitled to do that. The process needs to be clean in terms of any arguments about being involved in pre and post and so on. It is an area in which there is a high level of interest group involvement in any decisions made. We do not want to get into a situation where the licensing is being done faster but the licences themselves have less of a possibility of withstanding challenge. That is not in the interest of the applicant, whatever licence decision is made.
Dr. Cecil Beamish:
Senator Mulherin raised the issue of industrial-scale fish farms. I think from her previous contributions her interest is primarily in salmon farming, and that would be understandable in the context of the Moy. I spoke about the National Parks and Wildlife Service, NPWS, setting conservation objectives in relation to NPWS defined Natura 2000 areas. If in a Natura 2000 area there is a large area of eelgrass which is a habitat for a lot of young mussels, that might be identified as the scientific interest to be preserved by NPWS. In an area of marl, which is a sort of cold water coral, the NPWS may say this is an area that needs to be defined out from an aquaculture activity. The role in the State of defining the scientific interest and the lead role on Natura areas is with the NPWS. What I have outlined are the type of scientific interests that the NPWS is dealing with in this process.
Let me clarify a matter. The State set conservation objectives for salmon which were implemented when the State bought out the draft nets at sea. This was done to preserve the wild salmon stock. Are these measures taken into consideration now in the granting of licences that could adversely impact on wild salmon?
Dr. Cecil Beamish:
The NPWS is dealing with specified areas, designated as Natura 2000 areas that have now been mapped. All the features in those Natura areas have been mapped. The NPWS is saying that within this bay, which could be 30 miles by 20 miles, there are these areas of particular interest. These are the things that this area was designated to preserve. Those areas must be taken into account in the licensing system. There might be other areas where there are no such implications or interactions with the scientific interest. We are talking about spatial considerations. Salmon conservation is primarily the function of the Department of Communications, Climate Action and Environment. Inland Fisheries Ireland, IFI, comes under that Department. IFI deals with the policy on the conservation of wild salmon. It has set the objectives for salmon. When it is proposed to establish a salmon farm or there is an application for renewal of a salmon farm licence, an environmental impact study must be conducted and an environmental statement provided.
It must go through statutory and public consultation, of which IFI is one of the consultees. All of that is fed into the decision-making process. There are management measures in place dealing with things like sea lice. There is a system in place and protocols that govern all salmon farms. There are 14 inspections a year on the farms and all the results are available on the website. There are treatment trigger levels set under the protocols which require treatments to happen when lice levels go above a certain level in those inspections. There are consequences if those treatments do not work. There is a ratcheting-up system. The lice are endemic and have been there for millions of years. They are endemic in the marine environment in about 40 different species. They build up on salmon farms on occasion and they have to be managed. It is in the interest of both salmon farmers and wild salmon interests that they be managed and kept at low levels.
I raised the concern because IFI has raised the concern and it knows more about salmon conservation than I do. Notwithstanding my respect for the Marine Institute and its wealth of scientific knowledge, I am concerned when the IFI has concerns because the salmon and trout stock and so on is its primary concern.
Dr. Cecil Beamish:
IFI is a consultee in every application. It is a statutory consultee which inputs into the process. I do not know of anybody in the State system saying there cannot be a co-existence between salmon farming and wild salmon. It is about management and various other elements around that.
Dr. Cecil Beamish:
Onshore fish farms have so-called RAS systems, which are relatively new and experimental. Bord Iascaigh Mhara, BIM, did a study of them in the past couple of years and the commercial reality of salmon farming on contained systems is not established. Norway produces 1.2 million tonnes of salmon a year in sea cages and has not transformed into an onshore system. There is work going on looking at the possibility that the salmon smalls would be kept growing for a longer period in the hatcheries and grown to a bigger size before they go to sea. To move everything onshore is not proven anywhere at this point. The vast bulk of salmon farmed around the world is farmed at sea. In the Irish context, we have a high-cost energy environment and a relatively high temperature which are particular challenges in Ireland. Technology is evolving. It may well be that this is where it goes or it may go there for different stages of the life cycle. That is not a proven scenario at this stage.
Is the Department actively looking at the possibility of onshore and the pros and cons of doing it? We will always find people who have sometimes extreme environmental concerns who see everything going pear-shaped very quickly but it has been explained to me and I have seen footage of very problematic offshore fish farms in Canada where it seems to have caused environmental disaster. I understand they have to be placed in a certain place where there is current so it can disperse the excrement or whatever is coming from the salmon but it raises legitimate concerns that we get the right balance here. I want to know, because it is raised so often, if we are looking at the possibility of onshore fish farms.
Dr. Cecil Beamish:
Through BIM, the State has funded a study into recirculating aquaculture systems, RAS, and there is a lot of international research activity looking at it. There are a number of technological challenges that will need to be overcome before economic viability can be proven. At the end of the day, it is a private sector enterprise that only operates on a profit basis. If it is not viable it does not happen. To incentivise these types of developments, the Minister increased the grants under the EMFF sustainable aquaculture scheme in December 2016 to the maximum possible rate of 50% for applications in 2017.
He also doubled the maximum grant amount permissible. The incentivisation to do the research and to look at this is in the schemes we have but that does not mean it has proven viability. It is a private sector industry. We do not have applications on hand. We have applications for sea farming but we do not have applications on hand for somebody to do a commercial recirculating aquaculture system.
I presume if it was overwhelmingly environmentally preferable, or even quite preferable, to have it onshore, Government policy would incentivise onshore as opposed to offshore and it would then become more commercially attractive. We dealt with these types of issues with renewable energy. We have to support renewable energy at the moment. As it goes along and technology develops it becomes more self-financing and self-sustaining.
Dr. Cecil Beamish:
It is only being done since December 2016. The maximum grant amount was doubled in May. I do not have that information to hand but I do not think it has been taken up. There are about 1.2 million tonnes being produced in Norway and it has not moved in large scale to recirculating systems and neither has Scotland which produces 160,000 tonnes a year. We have to compete in those markets. It is a competitive market scenario. It is still a young industry and it is evolving. We have been farming for thousands of years but we have only been farming at sea for the past 30 or 40 years. The species, the technology and the ways of handling things are evolving constantly. The demand for aquaculture product is almost exponential. The EU is importing two thirds of all the seafood it needs which is not a sustainable position going forward so we will see a growth. We are seeing rapid growth globally. Farmed seafood is very close to exceeding captured seafood. Captured seafood has its biological limits. Globally, we will see a big growth in aquaculture. We are seeing it year on year. It is a very young industry. The way it is done and the species involved will evolve.
Dr. Cecil Beamish:
We deal with the growing. If somebody wants to set up a seaweed farm and that activity is under way, we deal with the licensing of it but the management of the foreshore is all managed by the Department of Housing, Planning and Local Government, as is taking anything off the foreshore whether it is sand, rocks, gravel or seaweed.
With regard to the question on renewable energy, there is an EU directive on marine spatial planning. At the risk of being wrong, because I do not have the date here with me, we have to have a marine spatial plan in place by 2020 or 2021. Work has commenced with the Marine Institute on doing all the scientific research to underpin such a plan. The Department of Housing, Planning and Local Government will ultimately publish the plan and we will be moving forward on the basis of planning and development and working within the framework of the marine spatial plan.
While it is evolving, it is not there at the moment in respect of renewable energy, oil, gas, aquaculture or fisheries. It is much more complicated than terrestrial planning because one is operating in a three-dimensional environmental - what is underneath the seabed, what is sitting on top of it, what is in the water column and what is on the surface. A variety of consenting bodies, some national and some international, govern this. In fisheries, for example, everything is covered by the Common Fisheries Policy of the EU. One cannot simply make a plan and zone fishing in one area or another or restrict it. One must go through a process of interacting with the other affected member states before anything like that can be defined, given that it would impact on their interests and rights.
A directive, a commitment and a timeline for producing a marine spatial plan are in place. Ironically, much of the mapping that we did under Natura will feed into that because many of the inshore bays have been mapped by virtue of that process in a way they never were previously. That information has been reused. A wider mapping exercise of our seabed, called INFOMAR, has also been under way for a number of years. Ireland is probably well ahead of everyone else in that respect. All of that will be pulled together by the Marine Institute as the scientific advisory body to the Department of Housing, Planning and Local Government on this issue. That work is under way.
I will be brief. Similar to the Chairman, I am from a landlocked county and am not nearly as knowledgeable on this issue as my colleagues, all of whom are from coastal counties. I have learned much from today. It was a good presentation and there were good interactions, from which basis I will ask a couple of questions.
Based on the fact that the Department has been rolling over licences since the 2007 judgment, I presume that the monitoring of their terms and conditions has happened based on the original terms and conditions. As such, it would not have taken into consideration the results of the mapping, scientific research and so on under the habitats and birds directive that were required as a result of the ruling. Is there a chance that there has been an ongoing negative environmental effect while licensed?
Prior to the judgment, how many licence applications were unsuccessful? Will that figure increase after the new terms and conditions have been taken into consideration?
Not in this case. I welcome the witnesses. I am not a member of the committee, but I represent a constituency with a large fishing industry. That is why I am present. Aquaculture is of considerable importance to the people of Cork South-West.
In fairness, Dr. Beamish went through the question of the delay in the issuing of licences in detail. I will take him at his word, but it still seems a long time in light of everything he said. There will be 300 licences this year and 300 next year. Given the long delays, could those applications be expedited? In many constituencies, aquaculture is a large industry and employer, which has a domino effect in those regions.
Does Dr. Beamish have any comment to make on the granting of the licence in Bantry Bay to harvest 1,860 acres of native kelp? I have spoken at three public meetings in the area in recent months.
There is considerable public anger over the issuing of the licence.
I want to ask a supplementary question. I have reviewed the transcript of the committee's February 2017 meeting with the witnesses, at which we also we dealt with the matter of Linsfort beach. Unfortunately, the issues that I raised a year ago - ensuring full public access to an application - have not changed as of recent weeks. I will read from the Fisheries (Amendment) Act 1997, with which Dr. Beamish will be familiar. It stipulates clearly what must be published in a newspaper advertisement - the name of the applicant, the address, the structures to be used, the species to be cultivated and the location of aquaculture proposed. Is it acceptable that, in this case, the Department worded the application for the applicant and instructed the applicant to state that the site's location would be the shores of Lough Swilly? I made this clear at the previous hearing and was not contradicted. The advertisement of the location that the Department insisted upon related to the shores of Lough Swilly. Did referring to the shores of Lough Swilly rather than Linsfort beach, Buncrana, County Donegal, comply with the legislation and the Department's requirements under it?
Dr. Cecil Beamish:
I will address Senator Mac Lochlainn's question last. It is difficult for us to speak about individual cases because applicants have their rights, including a system for dealing with appeals, etc. We are not here to present on individual cases. There is a system that deals with them, including appeals.
Dr. Cecil Beamish:
I am sorry. We will be constrained in what we say on that. There have been 600 licence determinations since 2013 and we do not have with us all of the information on each of those. As such, what we will say will be constrained to general statements. My colleague, Mr. Quinlan, will address the matter in a moment.
Senator Daly used the term "rolling over licences". I will work from memory. Under the amendment made to national legislation, an applicant whose licence had expired by virtue of the effluxion of time, had applied for a renewal and was awaiting a determination on that could continue to operate within the terms and conditions of the licence previously held. It is not the applicants can operate freely. Rather, they must operate within the licence's terms and conditions.
Dr. Cecil Beamish:
Yes, pending a determination. That determination might grant the same licence, refuse it or vary it. What the outcome would be at the point of determination must be free and based on the evidence. A decision on whether that particular activity in the area was doing harm to the environment would be made on the licence's renewal, which is when all of the information would be to hand. That is how that works.
The Senator also asked how many applications were unsuccessful in previous rounds of applications. Most of the previous licences were given out under the 1997 Act in the period from 1998 to 2000. I do not have information on the number of applications refused, varied and so on at that time. Of the applications that we have been dealing with to date under the new system, 32 have been refused and a good many - I do not have the exact number - have been varied, in that they would have got a different set of-----
Dr. Cecil Beamish:
There are some new ones. I do not have the detail on the 600 that have gone by but on the 600 that remain, about 40% are new and 60% are renewals. Many applications would have been varied. I note from January decisions that there were 60 applications in determination, of which ten were varied. That would be higher than normal but there are variations in applications. If one goes through all this process, one gets conditions attached or adjustments to the area applied for and so on.
Deputy Murphy O'Mahony asked a few questions. She mentioned the frustration people have with this system. I would venture that the people who have been trying to deal with this system since 2007 and subsequently are frustrated. Some of my colleagues here are probably among most frustrated in this regard-----
Dr. Cecil Beamish:
-----because it has been very difficult and has generated much negative comment and input. We have tried, however, to explain as honestly as we can all the steps that have had to be taken to build a system that could meet the requirement. While people have been frustrated they have been able to continue operating. As I set out earlier, in the areas where there has been economic advantage and where the markets have been good, there has been expansion over that time period. If there was a system where new licences had been granted, there might have been additional expansion.
Dr. Cecil Beamish:
There are constraints. One operates under the terms and conditions of one's old licence. Obviously, one undoubtedly would prefer to have a new licence, an extant licence but that could only be done by the State in compliance with the habitats and birds directives as that is a requirement.
Dr. Cecil Beamish:
The Deputy asked me to comment on the granting of a licence for the harvesting of natural kelp in Bantry Bay on which, unfortunately, I will have to give her a very short answer. Like any other observer, I am aware of the concerns. I can make no comment. Our Department did not grant the licence; that was done by the Department of Housing, Planning and Local Government and it would not be appropriate-----
Mr. John Quinlan:
In point of fact, I do not believe we can. I am speaking from memory on this and I believe we had a lengthy dialogue on that particular case at the previous meeting when we appeared before the committee. We are constrained in what we can say about individual cases, and rightly so. I am speaking from memory on this, as it has not been possible for me to check the full facts, and I am relying on some of my colleagues here, but there is a system in place for people in the area to appeal the licence. I do not recall whether that happened but it was available to people. I am aware of the controversy there was around it at the time. We discussed this at length on the last occasion. The only point I would made in concluding on this is that the procedures adopted by the Department have not been found to be at fault by anybody to date, the licence has not been overturned and it is a sound and valid one. That would say something about the procedures. Decisions, whether one refuses or grants a licence, can be controversial. The important point is that there are procedures in place whereby applicants for a licence who are disappointed, or members of the public who may be disappointed at the decision, have recourse to the procedures that are in place. That was entirely the case in the instance referred to by the Senator. My understanding, and I am speaking purely from memory on this, is that whatever systems were there were exhausted. As far as I know the licence is in place and the procedures have stood up to the scrutiny.
I will quote from the transcript with respect to what Mr. Quinlan said at the last hearing. He said: "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." He clearly said that the Department cannot depart from what is said in legislation. I will frame the question clearly for Mr. Quinlan. Does he understand that with respect to the legislation referring to a location, the actual location must be specified, not the shores of Lough Swilly but the actual location, in this case, Linsfort beach? Would that be his interpretation of the legislation, that an actual location must be stated? It is clearly the interpretation that I would take from it and my reading of it.
Mr. Quinlan referred again, as he did on the previous occasion, to people not appealing. They could not appeal because they did not see the advertisement as it appeared in a newspaper very few people in that area would read, but I will not go back over that ground. If Mr. Quinlan does not want to deal with the specifics of that issue, does he believe generally, in terms of the legislation, that when his Department guides an applicant, that the location should be the actual district electoral division, the actual townland where it is taking place, or the general bay? What is the usual practice in terms of legislation when an application is being submitted? I remind him of what is said in the legislation which is there to protect the public and the individual member of the public who has applied for an aquaculture licence. I asked the question, being mindful of that and having repeated Mr. Quinlan's words that the legislation "is there to protect the public [which is the basis of the issue I am raising] and the individual member of the public who has applied for an aquaculture licence".
I would like to get clarification on two points, if that is possible. Of the 600 licence applications that are in backlog, did Dr. Beamish say that 40% of them are new? Are the remaining 60% of them renewals? Is that the approximate position?
It has been ten to 11 years since the judgment and these people's position has been frozen. Were they entitled to, or have they received, grant aid through the programme? They could continue to operate under the terms of the old licence as they did not have a new licence, but were they entitled to get grant aid and to apply for it through the normal mechanisms throughout that time?
Dr. Cecil Beamish:
We have to go back to the discussions with the Commission in 2008 and 2009, which resulted in an outcome whereby there was a roadmap for building this system for licensing and compliance, which could not be done other than by getting all that data. There was also tolerance on the part of the Commission in terms of pulling back from taking all the aquaculture out. The aquaculture area continued on the terms and conditions it was on. Equally, the funding mechanisms are cofunded by the Commission, and it has been very clear all the way through this, and was clear back at that time, that if an activity was operating in a Natura site but was not licensed in compliance with the Natura habitats and birds directives, it could not receive development funding. I tried to address that earlier in saying that the current funding round that is in its place, the European Maritime and Fisheries Fund, has been back-loaded in the aquaculture area. Most of the funds are still available. If the backlog can be cleared, the development funding can be drawn down. However, it is true that if an operation was not licensed in compliance with the birds and habitats directives, it could not draw down development funding, and that was a reality and a difficulty. Of the 600 applications that have gone through and on which determinations have been made, it is open to those people who have got licences draw down funding. I checked with Bord Iascaigh Mhara, BIM, in the past few days and the level of interest in, and demand for, the schemes is going up all the time. If the backlog can be cleared, those people who will get determinations at that point will be able to pull from the schemes that are there, the EMFF schemes.
Dr. Cecil Beamish:
They were not approved. I cannot say people did not apply. BIM runs the grant schemes but they were not approved because the Commission had made that very clear.
All of the grant aid schemes are monitored by the operational monitoring committee on which the Commission, industry and everybody else sits. The Commission has repeatedly made it clear that, unless the licence is compliant with EU legislation, it cannot get development funding. It is a position out of which we are working. That was one of the implications.
Mr. John Quinlan:
Yes, I can but I am in a bit of a quandary and I am very much in the Chairman's hands. I have since read what I said the last time. I can only repeat what I said last year. I stand over it and I said it last year far better than I could have hoped to say it today. I am conscious the Senator is referring to a particular case, as he was at that time.
Mr. John Quinlan:
The Senator was referring to a particular case. The answer I gave the last time was absolutely the correct answer. It is the only answer I can give today. For the record, if the Department had departed from the legislation, at the time, it rightly would have been held to account, either through ALAB, the Aquaculture Licences Appeals Board, or through a judicial review of the procedures.
I know, because of the interest which existed at the time in the area over this case, that an enormous amount of examination of the Department's procedures took place. They were not found to be at variance with the legislation. I can say no more today. The licence is standing. It speaks for itself.
The legislation clearly stipulates the applicant must name the location of the site. How can my question be interpreted as asking the Department to depart from the legislation? The legislation states the location must be named. What does the Department interpret that to be? Is it the exact location, such as the district electoral division, DED, the townland or the general bay? I am not asking the Department to depart from legislation. I want it to give me its understanding of what the legislation requires.
Mr. John Quinlan:
The level of specificity for each application will be as varied as the applications themselves, the townlands therein, and the bays in which they are situated. In every individual case, the Department will look at the actual description given by the application and many other things. In every single case, the Department specifies the location to the extent possible. If anybody has a difficulty with that, there is an avenue in the legislation open to him or her to proceed. In the case referred to by the Senator, that was done and it was not found to be at variance.
Mr. John Quinlan:
I apologise. May I answer? This is precisely the point I am making. It was a contentious case in the area. It gave rise to a considerable amount of correspondence and examination. Had there been a difficulty with the procedures, this would have been pointed out. I have no doubt about that. Appeals would have been lodged. The fact that this did not happen in itself would be at least one indication that the Department's procedures were found not to be at fault. The systems in place for people to use were not utilised in a situation where there was much local public interest in the case.
This is more or less what I said the last time and it remains the position. The Department does not depart from legislation, at least consciously so, as I presume there are occasions when mistakes can be made. I am not aware of one. There are procedures for people to hold the Department to account. I am not aware that anybody in the area was deprived of those procedures. It is what it is.
I appreciate that but this is a matter of considerable public concern. Mr. Quinlan referred to being asked to depart. Nobody asked him to depart from the legislation. The witnesses are highly qualified people. If legislation asks to stipulate a location, what would be their understanding of location? If I asked them where they are right now, would they say they are in Ireland or in a committee room in Leinster House? I cannot be clearer than that. Does Mr. Quinlan believe that it would be expected of an interested party that the term "location" would stipulate the exact location or the general bay area?
Mr. John Quinlan:
Not particularly. I understand the Senator would have a different perspective and he has articulated it very well. For the avoidance of all doubt, I regard the Department as having adhered fully to the legislation. The circumstances, as they have rolled out since that licence was issued, would, I suggest respectfully, support my view.
I thank the officials are attending today and having an informative and interesting discussion on this matter. Coming from an inland county, this is not a particular issue on which I would be dealing with every day. However, it has been an informed debate today. I also thank members for bearing with us during this lengthy meeting.