Michael McNamara (Clare, Labour) | Oireachtas source

I thank the Minister for tabling this amendment and listening to what some of us argued on Committee Stage. It improves the Bill in many regards. The amendment introduces compensation in cases where an afforestation permit is refused, where a felling licence is refused or where a forest road is refused. That is welcome because the refusal of any of those is an interference with the property right. In certain circumstances our Constitution requires compensation for an interference with a property right. However, it is not just our Constitution which requires that. It is also required by the European Convention on Human Rights, which is incorporated into Irish law to the extent it is by the Human Rights Act. The European Convention on Human Rights is also incorporated into British law. It was for that reason, and I refer to the committee debates in Northern Ireland, compensation was provided in the event that a felling licence is refused in Northern Ireland. That was pointed out to the Minister on Committee Stage.

My clear understanding is that this compensation was introduced in Northern Ireland not necessarily because the State wanted to introduce it but the State felt it was required to be introduced to be compliant with the Human Rights Act. The property rights protections in the European Convention on Human Rights are broadly the same as the property rights in our Constitution. There is extensive case law on this matter to interpret those protections. Undoubtedly, it is possible to interfere with those property rights in the common good. The Constitution clearly states that. I refer to one of the leading academic commentaries on the Irish Constitution, the first edition of which was by the late John Kelly, a Fine Gael Deputy. The current edition states that it will be noticed that the cases presented so far sometimes referred to compensation as an element which may validate or make acceptable constitutionally what would otherwise be an objectionable inroad on private property or the absence of compensation as an element confirming the injustice of the interference.

For all those reasons I welcome that the Minister has introduced an amendment to these matters but amendment No. 71a hollows out the compensation provisions. It states that the Minister may introduce a statutory instrument to compensate for these matters but the Minister, by statutory instrument, will be able to refuse compensation if the refusal is based on certain reasons, and those refusals are very broad. If the refusal is because of environmental concerns, health and safety, a fear of interference with water quality or best forestry practice, and we heard earlier in the Chamber that best forestry practice is an evolving concept, there will be no compensation. It is difficult to understand how anyone could be refused for any reasons other than the reasons contained in the provisions. They are so broad it means that one is entitled to compensation, but one will not get compensation.

I have no problem with a refusal to grant an afforestation permit being excluded from compensation if it is for any of these reasons because that is more or less already provided in the Planning Act. If one is refused permission to build an estate of houses on one's land, one is not entitled to compensation for it because it is for the common good but I have a major problem with one aspect, and I question how it could be constitutional. If someone is issued an afforestation permit, the Minister for Agriculture, Food and the Marine can tell that person to go ahead and plant their ten, 100 or 1,000 acres of land and he or she will examine whether that is in the common good in terms of the environment, water quality and so on.

The State gives permission to do this, but it must be borne in mind that this affects not only the property rights but the right to earn a living. Say, for example that after having invested one's livelihood it has been 70 years since one planted as a young man and having reached the ripe old age of 90 and having thought one would never see such a day, one decides to realise the investment. At that point the legislation as framed allows the Minister to intervene.

I am not particularly worried that the Minister of State, Deputy Tom Hayes, has the power because, as we have already discussed, he is a benign Minister. However, this law will be there for future generations and it will give a future Minister the right to say that he or she has changed his or her mind. Moreover, because it is in the interests of best forestry practice which has evolved considerably over the years or because the reasons are environmental the Minister can then decide one cannot harvest those trees for which the State gave the person concerned the afforestation permit. The fact that there is no compensation for that, not the fact that a future Minister would be allowed to refuse a permit to fell those trees, but the fact that he or she can do so without providing compensation, seems contrary to what the Minister of State hopes to achieve by this Bill.

I heard the Minister of State, Deputy Tom Hayes, not today but on the last occasion this Bill was discussed on Report Stage, state that one of the objectives of this Bill was to get those who own a marginal piece of land to think about afforesting it.

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