Michael D Higgins (Galway West, Labour)

I welcome the opportunity of speaking on this legislation. I appreciate that there are many useful proposals in the Bill before us, but is it sufficient to deal with the possibilities and prospects of foreshore development? I have to conclude that it is not. I recognise and support many of the practical administrative proposals in the Bill, but it misses some fundamental issues of principle which will, in turn, cut across any administrative achievements. It is depressing that this legislation is being dealt with on a Thursday in an almost empty Chamber, with a guillotine on Second Stage and all the amendments due to be tabled on Committee Stage in a couple of hours. It makes the case for a separate Department of the Marine, which I have often discussed with Ministers.

If we are ever to realise the full potential of our maritime resources, it will mean turning our faces to the sea again. Political scientists must wonder how an island nation could almost make it a matter for quiz games as to where the Department of the Marine is currently located. Coastal zone management is hidden in the Department of Agriculture, Fisheries and Food, while other functions are located elsewhere. That is a terrible reflection on administrative structures. A separate Department of the Marine is clearly required with an integrated set of functions and a coherent policy and philosophy.

Far from being negative, I am actually positive about a number of things that have happened, which give us great prospects. There have been successes in the negotiations at the international law of the sea conference. Significant work has also been done by the Marine Research Institute. Excellent work has been published by scholars working in the marine sector, and all of this is positive. However, some fundamental points have not been decided, and that indecision is extremely dangerous. Some of these matters flow from an absence of clear definition of ownership. There is an unresolved issue concerning the very definition of the foreshore. There are also unresolved issues concerning ownership.

Unlike Fine Gael, I am opposing this legislation not in terms of its detail, but because it is insufficient to deal with the great opportunities that lie before us. Whatever way one defines the foreshore, we are talking about 39,000 square kilometres, which is roughly 57% of the land area of the 26 counties. The foreshore is the people's resource. Section 6(1)(c) covering the Foreshore Acts 1933 to 2009 states that foreshore belonging to the State shall be construed as references to foreshore, which for the time being belongs to the State, including foreshore so belonging whether by virtue of Article 10.2 of the Constitution or otherwise. I strongly support that, but when I was a Minister with responsibility for defining heritage, I saw the State as holding this property on behalf of the people of Ireland. It is one of the important transitions from the 1922 Constitution, which can be seen in paragraphs 1, 2 and 3 of Article 10 of the current 1937 Constitution. We are talking about a resource which will be massively expanded beyond the conventional definition of the foreshore, in accordance with our well-framed arguments. It is to the credit of those who have made our case at the law of the sea conference.

One must expect to begin with what is in public ownership. Despite the time allocated for this debate, I do not have time to deal with the 17th century allocation by the English monarch of certain aspects of the foreshore to particular parties. Be that as it may, the Bill before us is exciting in terms of its provisions for energy and employment opportunities. If we do not begin with the ownership issue, we will find that existing arrangements concerning property development and ownership will creep out from the land into the sea. We are not simply discussing the four Foreshore Acts being amended by a new Act. It must be recalled that the legislation before us is also affected by recent legislation on planning, ports and harbours.

We can all agree that this resource belongs to the public, but it may be affected by the Planning (Amendment) Act 2000, for example. A planning function could be extended towards the foreshore, but it is extraordinary that elected representatives who sat on harbour boards in the old days are now gone. Such representatives are, in fact, absent from most of the consultation process mentioned in this Bill. One Minister is referred to, in talking to another Minister, as a consultee. I will come to that point in a moment. I regard that as insufficient. It will be a worthy amendment on Committee Stage to say, "that when the local authority's opinion is being expressed". The local authority is again changed in definition in the most recent planning legislation. Once again, it is not a reserved function, so we are therefore talking about a local authority without it being involved directly or extensively through elected representatives offering their opinions on projects. What if the local authority is involved in a partnership-type project and indulges in a type of consultation where it is required to put a little advertisement in the newspaper, consult the Minister involved and under the strategic infrastructure legislation, go straight to An Bord Pleanála?

I return to my phrase, "turning the face of the Irish people towards the sea again". We all began by imagining that this was a resource that belonged to all the people. What I have just described is a set of consultations that really does not involve the public in any significant sense. The Minister of State in his speech suggested that foreshore legislation had two functions. One was management, which I believe he might suggest includes a planning function. The other was the management of a resource, namely, property. How may one adjudicate between competing uses without creating mechanisms that are transparent and inclusive?

This legislation continues what I would term a philosophy of exclusive ministerial discretion. It has happened in the past that the foreshore found itself being extended inland with extraordinary consequences, as for example the people of north Mayo know. The Minister retains that type of discretion. How accountable is that? Again, this is primary legislation. The advice of the Attorney General was to the effect that the transfer of functions needs to be handled by primary legislation. I recall that type of advice when I was a Minister. It is extraordinary, however, that he stopped short and said, in effect: "I would strongly recommend that you begin at the basics and go from there", and God knows there was enough time to do that, but obviously he did not. He is really saying that when the functions are transferred to three entities, the Department of the Environment, Heritage and Local Government, the Environmental Protection Agency, as regards dumping at sea and the Department of Agriculture, Fisheries and Food in relation to agriculture matters, at that stage the Department of the Environment, Heritage and Local Government will begin the bigger task, which has all the prospects of not being achieved in my lifetime, regardless of how long I live.

The reality, therefore, is that a fundamental mistake is being made from the point at which one has begun. Again there are issues that are more specific as regards the ministerial power that is there. Addressing the Minister of State's point about management - and managing a property - leases are being given, and if I am wrong about this I am happy to be corrected. Both leases and licences can be given out. If a 99-year lease is given, for example, the ability of the State to recover from this is not very clear, even in this legislation. What, for example, is to be attached by way of condition? How are new scientific findings to be handled?

Now I come to the fundamental point. Several times during the Minister of State's Second Stage speech the "public interest" was referred to, as it is in the text of the Bill. How is this to be defined? If the public interest is to be defined without the ownership issue having first been established with certainty, then a process is in place which enables Ministers who hold disparate views to reach different decisions on the appropriate use of the resource. If this does not happen, there will be complete confusion. I found the absence of reference to the recent planning legislation which has been fundamentally changed extraordinary in the Minister of State's speech. What is the position where reclamation takes place? If I understand the last amendment to the planning legislation, and the reclamation is adjacent to an area controlled by a planning authority, will it not fall under the foreshore legislation? The Minister of State might address this in his reply.

The problem is that we have the consequences of irresponsible building in flood plains. We have the consequences of irresponsible building near estuaries. Some 60% of the population live within 10 km. of the sea. We have the opportunity and funding available to do research on climate change, linking that to the fine research already being done in our institutions. What provision is there in the Bill for addressing this? The Labour Party and I strongly support the proposals for dumping at sea. There are many other features we can support in this legislation, but it would be entirely irresponsible of us not to note the points that are not being dealt with.

Why did I mention the houses built in the flood plains and too near estuaries which are now at risk because of the extreme flooding? I did this because precisely the same thing could happen from the same motivation. The same people could drive a carriage through such planning legislation as exists already. On the development of harbours and ports, what is significant about all the recent legislation is the notion of "light regulation", with little delay involving the opinions of the people affected being taken into account. One could have a combination of developments around ports, for example, that could seek to advance themselves under strategic infrastructure, which might not necessarily be ecologically valuable.

I want to issue a warning to my colleagues in the Green Party, An Comhaontas Glas. Somewhat like the cuckoo, they do not normally appear after Tuesday, I believe, although I saw one today. They are as rare as the corncrake in some parts of Ireland and in referring to them I am mindful of the new buzzwords that came into use just a few years ago, "sustainable development". Just as important as sustainable development is the test of public benefit. These two phrases are redolent of the Bill. Public interest, which will be defined by the Minister and sustainable development as defined by the Department, do not deal with what every man, woman and child is entitled to insist on, namely: "This resource, not owned by landlords or strangers, but by us." Much more, it is established under international law as belonging to all the Irish people and given in their name to the State. Suddenly this State asset finds itself encroached upon by developers, one after the other, who have talked to local officials and argued that their proposals met the test of sustainable development. If they meet the test of sustainable development after the resource has been stolen from the people; this amounts to property being stolen from the people. In the event, the test of sustainable development does not mean much.

If the development proposed is such as to not balance all the different usages that exist in respect of the sea, many a manager would state that he or she granted the permission because it was in the public interest. Such a manager might state that he or she placed a notice in the newspaper and that furthermore, the Minister had eight weeks in which to express his or her opinion and he or she also thought it was in the public interest. My response is that this is not good enough. All these little processes are out of scale when considered against the asset's intergenerational value. I am one of those who accepts sustainable development because I am strongly in favour of intergenerational justice. It is the coming politics, wherein people will debate not taking an action, such as the development through Tara, for example, that one would visit upon future generations, who subsequently will pay the price.

We are only beginning to envisage what is possible in respect of the sea and the work being carried out by the Marine Institute is most exciting. I strongly support the contributions already made regarding energy sources but this really only constitutes the beginning in respect of food sources, the management of recreation and so forth. All this requires that one begins with the very principle encapsulated in the transition I described previously between the Free State Constitution of 1922 and the Constitution of 1937. Why are we afraid to state that we own it? Is it because we may be standing in the way of some chancers? I refer to those who believe that all one must do is to reclaim a bit, make a proposal, get it through one's local council, satisfy the Department and then, before one knows it, one has property. Such people are not inventing the seabed, the foreshore or anything else. They are in fact making a grab.

The legislation should define the foreshore, the seabed, the public ownership, the public interest and the transparencies. It should include the public with regard to public representatives and should curtail seriously the right of officials participating in partnership activities who in turn later will constitute the planning authority. In many cases, people are clearly conflicted in this regard. They are invited to take part in some grandiose projects. Their function simply is to wave it on because heaven is about to happen. Thereafter, they find themselves on the receiving end of a planning application from which they fail to disqualify themselves. If this does not then proceed, one might argue that because the people with the money are getting impatient, one should have the right to go to An Bord Pleanála straight away. An Bord Pleanála then will shorten the process and place an advertisement in the newspaper.

This is chaos and misery. This is the misery of the chancer's world. This is the Dublin Docklands Development Authority all over again. The reason I decided to oppose this Bill is simply because I did not want the Dublin Docklands Development Authority writ national. I seek transparency with regard to the national assets. I do not wish to see a replication of the appalling north Mayo notion whereby the foreshore heads inland at a rate of knots, depending on ministerial whim. Therefore, this is how one starts.

As for the arrangements regarding the transfer of functions, this is always a tricky issue in the public service. While some people want to give things away, others wish to retain them. I remember being in that position myself between 1993 and 1997. I recall an assistant secretary who told me that on hearing I was taking over X, he decided I would not even get the Department cat. However, on learning that he was being transferred himself, this senior civil servant was obliged to fire himself into reverse. When I asked him how successful he had been, the answer, of course, was "moderately".

I have raised a number of issues to which the Minister of State may wish to reply and I will put them to him now. The Minister of State should provide Members with a clear timeframe. For example, can the issue of the ownership of the extended Irish seabed come before the Joint Committee on the Constitution? Can the Minister of State provide Members with the timescale in respect of the fundamental legislation to which reference has been made? If the transfer of functions to the Department of the Environment, Heritage and Local Government takes place, what timescale will apply with regard to that fundamental legislation? Second, the Minister of State should explain how it is proposed to balance the Planning and Developments Act 2000, with particular reference to section 227(8), to the planning requirements pertaining to the foreshore? As for the constitutional issues pertaining to Articles 10.1, 10.2 and 10.3, is there a proposal to declare ownership in advance that is consistent with the case that was made to the law of the sea conference?

As I noted, I strongly support the proposals in respect of dumping at sea and I strongly support the work of the Environmental Protection Agency. The Minister of State's response should address the functions of the marine licence vetting committee, which advises on licences and which operates on a non-statutory basis. Is it proposed to give it either statutory or extended functions? Finally, is the Minister of State convinced he has retained sufficient flexibility to enable researchers to draw down funding and co-operate, for example, with international bodies on addressing issues of coastal management, even if this requires cancelling a licence that has been issued previously or an application that has been made within the terms of this Act for research?

See this speech in context