Denis O'Donovan (Fianna Fail)

We were discussing lack of consultation in the process. This is an Opposition amendment and I wish to express my disquiet regarding the lack of consultation. I cannot comment on behalf of Fenit, County Kerry, or other places but I can comment on behalf of Bantry, County Cork. The kernel of some of the amendments which I have proposed later in section 18 could be resolved if the issues regarding lack of consultation were resolved. I refer to a letter sent to the then chairman of the board of Bantry Harbour on 16 September 2004, signed by the then Minister of State with special responsibility for the marine, Deputy John Browne. The letter might elucidate in better terms the problem I have with the system of consultation. It was written by Vivian O'Callaghan, a former Member of this House. It states:

Dear Chairman, As agreed at our meeting on 6 September last, I am writing to set out my understanding of the outcome of the meeting and of how to ensure that the dialogue between the Department and Bantry Bay Harbour Commissioners can be progressed in the future on a positive basis.

As stated at the meeting, the interruption of the dialogue with the Commissioners and the referral of the matter to the Attorney General was a direct consequence of the unilateral decision by the Commissioners to place a contract while discussions with the Department on the viability of the project were ongoing. Up to the point of interruption of the dialogue, the Department had been satisfied that a project was viable and would not have resulted in serious financial harm to the Commissioners. For this reason, Department officials were most surprised at the decision taken by the Commissioners at the time to enter into the contract in March 2002, [That is historic now. I am not saying the commissioners were wrong or right on that occasion, but I am talking about the area of consultation and dialogue.] given that there was not a shared understanding of the viability of the project, in respect of which the Department was asked to provide support.

I am keen that the Commissioners and the Department re-engage in a constructive and fruitful manner, having regard to previous expressions of support for the project. I can assure the Commissioners that the service of the Department and myself will be applied positively to this end.

From our discussions, I understand that the Commissioners believe that the business environment for the project has shifted from that originally envisaged. As you are aware, the project costs have escalated since the consideration of Exchequer support of €1.9 million by the former Minister. [That was announced in April 2002, but of course it was never spent.] Furthermore, no progress appears to have been made and the conditions contained in the former Minister's letter of 15 May 2002 (copy attached) which letter expressly instructed the Commissioners not to enter into any contractual commitments, pending a report on progress in relation to the two stipulated conditions. (In the event, the contract had already been placed.) Accordingly, I would propose that the project be reviewed in terms of its viability, the financial implications for the Commissioners of increased borrowings for the project due to its escalated cost and the risks to the project posed by the dominant position of the terminal operator. To this end, I invite the Commissioners to submit for consideration a fully detailed updated proposal for the project, including a comprehensive business plan with financial projections. The Department is available to assist the Commissioners in elaborating its requirements in terms of the proposal.

I was a member of the board at the time, and much of what happened was due to the over-enthusiasm of the Bantry Harbour Commissioners to pursue this project. I am trying to convey to the Minister the importance of the consultation and dialogue and linking it to what is currently happening, which is a volte face.

The letter continues:

You will be aware that the Oireachtas decided in 1996, through the passage of the Harbours Act 1996, that the latter represented the best legislative model within which a commercial port should operate. It is thus a matter of long-standing policy that the Harbours Act 1946 is no longer regarded as a suitable instrument for the management of State harbours. Accordingly, it is proposed over time to effect the dissolution of all the harbour authorities currently operating under the Act, and where appropriate, to transfer responsibility for the control and management of each harbour to a local authority or to a port company.

I regard Bantry Harbour as a significant port in terms of business and location in the south west. It is therefore firm policy to maintain the harbour, and where possible and appropriate, to develop it. Consideration has been given to the best means of ensuring that Bantry harbour is positioned and equipped to fulfil its commercial port functions in a modern, professional way. It is essential, in that context, that Bantry has available to it the best marketing, project management and technical and general management skills as befits its importance and potential. [This will be very important when I get to my own amendments later.]

It is my view that the harbour should be operated within the provisions of the Harbours Act 1996. This Act, together with the Code of Practice for the Governance of State Bodies, will provide the necessary framework to ensure the effective corporate governance of the State body concerned. It is the Department's view that the business associated with the harbour falls below the minimum level of activity necessary to justify the establishment of a new company when compared to the alternative available to the State and that the Port of Cork Company is ideally positioned to ensure that Bantry has access to the best regional port management expertise, marketing skills and strategic development planning.

I would urge the Commissioners to assess fully the pros and cons of the options mentioned above and to explore fully with the Port of Cork the conditions which might surround any amalgamation of Cork and Bantry, which would protect the interests of Bantry. I fully appreciate that the Commissioners will enter any discussions with the Port of Cork Company on a 'without prejudice' basis and I can assure the Commissioners that no final decision will be taken other than in full consultation with them.

Again we are hearing the word "consultation". That consultation process consisted of very brief meetings with the Port of Cork Company in Bantry. We were told that when the due diligence report was done, that everybody would sit down together, including the Minister. That consultation has now been hijacked. We were told that the consultation would take place, but I am saying it has not taken place. The publication of this Bill clearly tells us that the Department is not interested in consultation, or if it is interested, it will shoot first and ask questions later. That is the perception of the general public in the area I represent and the perception of the 11 board members, who do no want a shot-gun marriage with the Port of Cork Company unless there is consultation.

The town commissioners sold off the railway pier for less than market value to the harbour commissioner, while the owner of the main pier, Cork County Council, has not been consulted. Last weekend I had an opportunity to meet with the manager for west Cork, who I shall not name. I met her about a different issue, but I brought up this matter and she was amazed at how this was proceeding. She said that the council own the pier and has a specific interest in the development of Bantry. She had set up a consultation process and a strategy whereby the town council, the county council and the harbour commissioners would work together with the Department in developing the inner harbour and the pier. If this Bill is enacted, we are in the lap of the gods as to when the Port of Cork Company will take us over.

I apologise to the Leas-Chathaoirleach for being leadránach, but this is a critical issue. I compliment Senator Donohoe from Fine Gael on raising the matter. He probably did so under a completely different context, but it acted as a catalyst for my grey matter.

The letter goes on to state:

As was agreed at our meeting, Mr Michael Guilfoyle, Assistant Secretary General, will work with the Commissioners in identifying the issues to be addressed in relation to the pier development and the future of the harbour. He would envisage, as agreed at our meeting, meeting the existing Board again (or a subgroup) on these issues at an early date.

What meetings have taken place since this letter was issued, either with a sub-committee of the Bantry board or otherwise? That is a critical matter. With all due respect, my view is that if such meetings took place they were on other issues, not on the critical issue of Bantry being nicely put into bed with Cork Port, for reasons of corporate governance or suitability. It does not suit those concerned.

The letter continues: "Prior to that meeting, it would be useful and productive if the Commissioners had progressed a project plan for the pier development and had some discussions with the Port of Cork." Those discussions took place. In all the consultations with regard to the port of Cork, it amazed me that on the area of due diligence the port of Cork seemed to know what was going on daily and monthly. The harbour commissioners in Bantry were told nothing by the Department while, at the same time, this was what was happening in tentative meetings. The port of Cork could tell us what was happening, yet the Bantry harbour commissioners were in the dark. I attended a specific meeting to which certain Oireachtas Members were invited to state what was happening. That is another example of the lack of consultation involved.

The Minister of State must forgive me for saying that there was a premeditated decision based on bad reports of what was happening in Bantry in the 1980s and 1990s, when the port was a dead duck in the water. If this deal had been offered to us at that time we would probably have taken it, but from approximately 1994 onwards Bantry has emerged as a profit-making port of some significance. However, a premeditated decision has been taken by someone, either politically or otherwise, to get rid of Bantry Port for whatever reason. They want to move irrespective of consultation, but that sticks in my throat.

The letter goes on to discuss by-laws in Bantry, as follows:

As you are aware, the powers of harbour authorities to make bye-laws for the good rule and government of a harbour are set out in section 60 of the Harbours Act 1946. Specifically, in relation to pilotage bye-laws, the Attorney General advises my Department that no further bye-laws can be made under the Pilotage Act 1913 following its repeal.

Pilotage in Bantry is critical because large tankers are bringing crude oil, bunker oil and diesel into the bay. The knowledge of local pilots is therefore crucial. Apart from Whiddy Island, the pilotage situation is critical. I will refer in my subsequent amendments to a legal issue which has not been addressed. With reference to the costs arising from the Whiddy Island disaster, the area of pilotage and harbour safety is critical.

My forefathers sought to sell stone excavated from Hungry Hill and ship it abroad. The greatest exportation of stone from the Thirty-two Counties is from Bantry Bay. Pilotage is important in this respect because big ships take the crushed rock from the local mountain in Leighale, near Adrigole on the northern shore of Bantry Bay, to England and sometimes to mainland Europe for road building.

The letter continues:

In relation to past proposals of the harbour authority for bye-laws to be made under section 60 of the Harbours Act 1946, the Department's file indicates that there has been ongoing correspondence between the harbour authority and the Coastal Zone Management Division of the Department. [I referred to them earlier, although I do not know where that division has gone in this debate]. Arising out of this process, the Commissioners were invited in August 2003 to submit redrafted bye-laws taking into account objections received and changes agreed with the Coastal Zone Management Division.

Has all that been sorted out? Have the coastal zone management and bye-laws for Bantry inner harbour or bay been resolved? Bye-laws are critical in respect of where boats can be moored, be they large yachts or small punts, in addition to tourism-related water sports such as water-skiing and surfing.

The letter from the former Minister of State, Deputy John Browne, to the then chairman of Bantry Bay Harbour Commissioners, Mr. Vivian O'Callaghan, who is no longer on the board, continues:

I can assure you that we will deal expeditiously and constructively with any resubmitted bye-laws and will address concerns regarding pilotage in that context. [This is all to do with consultation on pilotage and bye-laws]. You should contact [a named person] Assistant Principal, at ...

I do not want to go into that because it is just a contact number. The letter concludes by referring to the proposed sale of foreshore at the inner harbour. This again comes down to bye-laws. It states:

As the Commissioners are aware, under section 159 of the Harbours Act 1946, the sale of surplus land requires Ministerial consent. Also directly applicable is section 5 of the Code of Practice for the Governance of State Bodies which deals with disposal of assets and access to assets by third parties. Specifically, the Code states that it should be standard practice that the disposal of assets with an anticipated value at or above a threshold of €70,000 should be by auction or competitive tendering process, other than in exceptional circumstances. The Code provides guidance in relation to the determination of the anticipated value. A copy of section 5 of the Code is attached for ease of reference.

The letter also states that some other person in the Department, who shall remain nameless, can deal with any queries. It continues: "I wish the Commissioners well in their remaining endeavours; I assure them of my continuing support and thank them for their important contribution to making the Harbour a successful and strategic element in the State's port infrastructure." That letter was sent out on 16 September 2004, which is not 100 years ago, to the then chairman on certain issues. Perhaps the reason the letter was sent out is not the one I am discussing, but in most paragraphs it refers to the area of consultation. The final paragraph of the letter concerns consultation. I accept that some of the Bantry harbour commissioners are not professional, but they did not act maliciously. In one instance, which is referred to in the letter, they purchased a piece of foreshore, which was critical. The status of the foreshore of Bantry Bay is something which sticks in my craw because it should not be the case. The issue of who owned what rights also arose in the case of Lismore, County Waterford.