Joe McHugh (Donegal North East, Fine Gael) | Oireachtas source

I wish to acknowledge the role that the former Minister for Communications, Energy and Natural Resources, Deputy Pat Rabbitte, has played in the preparation of this Bill. It is an extensive Bill and he has remained interested in it and has been in contact with me.

Tá acmhainneacht mhaith ag baint le geolaíocht ilghnéitheach na hÉireann ó thaobh fosuithe breise barainneacha mianraí a aimsiú de. Tá córas cuimsitheach rialaitheach i bhfeidhm againn do gach céim ó thaiscéalaíocht go forbairt mianraí, lena n-áirítear pleanáil le haghaidh dúnadh agus feabhsú mianach faoi dheireadh. Tá sé seo fíorthábhachtach agus is cúis mhuiníne san earnáil é. Déanann an reachtaíocht nua seo comhdhlúthú agus nuachóiriú ar an gcód sin in aon reacht amháin. Tá ár ngealltanas an cód rialaitheach a choinneáil cothrom le dáta ar na príomhchúiseanna a mheasann suirbhéanna idirnáisiúnta Éire a bheith ar na tíortha is fearr maidir leis seo go leanúnach.

I am very pleased to be here in the Seanad again and to have this opportunity to present the Minerals Development Bill 2015 for the consideration of the House. This Bill will repeal a suite of Acts dating from 1940 and will replace them with more up to date legislation so as to provide a modern regulatory regime for exploration and development of minerals, whether in State or private ownership. At 251 sections, it is one of the largest and most comprehensive Bills to come before the Oireachtas.

Before proceeding with a summary of the detailed provisions I would first like to offer some background to the minerals sector and existing legislation. Minerals exploration and development is currently regulated through the Minerals Development Acts 1940 to 1999. Exploration for economic deposits of minerals is carried out under prospecting licences, while mining of any such deposits requires a State mining lease, in the case of State minerals, or a State mining licence for privately owned minerals. Both exploration and mining are undertaken by private enterprise, although the Bill does retain a power for the State to undertake prospecting also.

I would like to make two things clear at the outset. In this Bill, the term “minerals” does not include water, stone, sand, gravel, clay, turf, peat or topsoil. Nor does it include petroleum, which is regulated under separate legislation. There are, therefore, no provisions in this Bill relating to oil or gas exploration and development, or to any techniques used in that industry such as hydraulic fracturing, or fracking. Hydraulic fracturing is not a technique applied to prospecting or mining for minerals. I know that many Senators and Deputies have previously voiced their opinions and concerns on hydraulic fracturing but that is a matter for discussion on another occasion. The term "mining" refers to the extraction, or development, of mineral deposits, and in the Bill this activity is also referred to as "working".

I will now turn to the context of mining and exploration in Ireland to give some background. Ireland is one of the leading zinc and lead mining countries in the world and continues to attract high levels of exploration interest and investment. An assessment of the contribution of the minerals sector to the Irish economy, which was published in 2013, indicates that it is an important sector and a vital contributor to the regional economy in the vicinity of operating mines. The report, by independent economic consultants Indecon Limited focused on 2012, when there were still three operating zinc - lead mines.

Indecon made the following key findings. In 2012, Ireland was Europe’s largest producer of zinc metal in concentrate and the tenth largest in the world and still holds that position today. In that year, Ireland was Europe’s third largest producer of lead metal in concentrate and 12th in the world. The direct output value of mining in Ireland in 2012 amounted to €426 million. During the same period exploration and mining activity supported over 1,300 jobs directly, with another 1,900 supported indirectly. Braitheann breis is 3,000 míle duine go díreach agus go hindíreach ar thaiscéalaíocht. These jobs are provided on a broad regional basis, which is important.

Exploration and mining companies contributed a total of €56 million in taxes to the exchequer during 2012. The State also benefits from payments made by mining and prospecting licence holders in the form of royalties, licence fees and payments which amounted to €9 million in 2012, and from indirect taxes and revenues. The broad contribution to the economy was estimated to be over €800 million, when the direct and indirect impacts of the wages and salaries of workers and the exploration expenditure of the companies are taken into account.

I will now turn to current legislative provisions.The minerals sector is significant therefore, and in order to continue to attract private investment a single national system for regulating mineral exploration, as well as clarity on the ownership of mineral rights, is essential. The Bill will replace legislation, dating from 1940, with modern streamlined statutory provisions. The minerals industry is currently regulated by the Minerals Development Acts 1940 to 1999 comprising five statutes: the Minerals Development Act 1940; Part III of the Petroleum and other Minerals Development Act 1960; the Minerals Development Act 1979; the Minerals Development Act 1995; and the Minerals Development Act 1999. Those Acts included provisions for: regulating minerals prospecting and development; a statutory vesting of the exclusive right to work minerals in the Minister, subject to the payment of compensation; acquisition of other rights necessary for efficient development of minerals, subject to payment of compensation; and payment to the State of rents and royalties from the extraction of minerals.

The main objectives of the Bill are: to provide a modern regulatory regime for exploration and development of State minerals; to provide for regulating, in accordance with the principles of social justice, the exercise of private rights over minerals, and ancillary rights, while reconciling their exercise with the exigencies of the common good; to provide for the continued vesting in the Minister the exclusive right of working, selling or otherwise disposing of private minerals which are not in course of development, subject to payment of fair compensation; to provide for preparation and implementation of rehabilitation plans for abandoned mine sites; and to provide for consequential amendments.

The Short Title of the Bill is, "An Act to make further and better provision for the development of minerals in the State and for that purpose to repeal the Minerals Development Acts 1940 to 1999 (other than certain provisions of the Minerals Development Act 1979) and the Minerals Company Acts 1941 to 1950, to make consequential amendments to other Acts, and to provide for related matters."

The principal changes introduced by the Bill relate to the modernisation of the legislative code applicable to the minerals sector; the procedures for compulsory acquisition of ancillary surface rights; the basis for calculation of rents and royalties; and the basis for payment of compensation in respect of private minerals. The Bill will provide for greater transparency and predetermination of financial terms which will streamline the permitting process and will bring other aspects of the regulation of the minerals sector into line with best practice, having due regard to the constitutional protection of property.

The Bill does not directly address environmental matters because these are considered to be more appropriate to the Environmental Protection Agency, EPA, and local authorities. Moreover, the legislation which established the EPA specifically prohibits conditions in mining permits designed to limit or control environmental emissions. Nevertheless, my legal advice is that the Bill must take appropriate account of these matters, in particular to address obligations under the Aarhus Convention which has been ratified by Ireland. The Aarhus Convention concerns access to information on the environment, public participation in environmental decision-making and access to justice in that context. The implications of the convention for exploration and mining were carefully considered in close consultation with the Attorney General’s office, and the provisions in the Bill in that regard have been drafted accordingly.

The Bill is divided into eight Parts and the following is an overview of each Part. The first Part of the Bill provides standard provisions, namely, the Short Title, commencement arrangements, scope and interpretation. It provides that the Bill will apply to all minerals within the State or within designated areas of the continental shelf and that, for the purposes of the Bill, as in previous legislation, minerals do not include stone, sand, gravel or clay, turf or peat, or petroleum.

Part 2 addresses the administrative practice for prospecting licences from application to surrender, including public notice and consultation prior to issuing of licences and payment of compensation for damage or nuisance arising from prospecting activity. It introduces a new type of licence, known as a retention licence, where a prospecting licence holder has discovered a mineral resource that cannot for the time being be worked due to environmental, access or other difficulties. This Part also provides that the Minister, in assessing the public interest of an application, takes into account the economic benefits to the region as well as the environmental impact of the proposed exploration programme. It provides for making regulations setting out conditions for a prospecting or retention licence. A new requirement is that prior written consent will be required for boreholes, trenching and bulk sampling. Airborne geophysical surveying is a matter for the civil aviation authorities but provision is made here requiring prior notice of such surveys and submission of data.

Part 3 relates to working minerals. The Minerals Development Act 1979 vested in the Minister the exclusive right to work minerals, with the exception of a small number of existing mines in operation at the time. It also provided for the granting of that right to third parties under licence, subject to the payment of compensation to the mineral owners. These arrangements will be continued under the Bill.

It has long been stated policy that an application for a permit to mine will only be accepted from holders of a current valid prospecting licence over the relevant area. That will now have a statutory basis. The main thrust of the changes in this area is to eliminate the difference between State and private minerals from the development perspective, providing greater predetermination and clarity of terms, financial and non-financial. Previously, there were leases to extract State minerals and licences for private minerals. Now there will be a single instrument - a mining licence.

Part 4 deals with ancillary rights. To extract minerals safely and efficiently it is necessary to carry out a variety of other activities, referred to as ancillary rights. Existing legislation provides that the holder of a State mining lease or licence is entitled to “enter on the land on or under where such minerals lie and use such land in such manner as may be reasonably necessary for the working of such minerals or for any purpose incidental thereto”. By today’s standards, this gives too broad a scope. Current legislation also provides for compulsory acquisition of land and rights over land necessary for efficient working of minerals.

The Bill will clarify rights necessary for working minerals and will divide these into “ancillary underground rights” and “ancillary surface rights” for licences issued henceforth. It will also bring the compulsory acquisition procedures in line with modern best practice. I consider it necessary to have these compulsory powers in place even though they are rarely, if ever, used.

Part 5 deals with rehabilitation. This Part is based on Part 9 of the Energy (Miscellaneous Provisions) Act 2006 and deals only with “orphan” legacy sites. It is the responsibility of current mine operators to properly close and rehabilitate the sites when activity ceases. Mine operations, through the planning process, are subject to environmental impact assessment which requires detailed closure plans, with financial sureties to fund their implementation, aftercare monitoring and maintenance.

Part 5 provides that, in certain circumstances, the Minister may, having consulted with the Minister for the Environment, Community and Local Government, designate a former mine site or adjacent land as a rehabilitation area. The Minister may only designate such a site where a mine has been abandoned or where operations have permanently ceased and it is necessary for the safety of the public or animals or to address major environmental damage.

Once an area is designated as a rehabilitation area, the Minister may develop or adopt a rehabilitation plan and may implement it or authorise a local authority or the Environmental Protection Agency to do so. That does not affect any obligations of former lessees or licensees who had been responsible for the mine site, owners or occupiers of sites or any other person who may have obligations. The Minister may recover through the courts any expenditure incurred by the implementation of the plan.

The Minister may, with the consent of the Minister for Public Expenditure and Reform, acquire private land, either by agreement or compulsorily, for the purpose of implementing a rehabilitation plan. The Minister must undertake a public consultation process before making a rehabilitation acquisition order. If considered appropriate, the Minister may appoint a hearing officer to hold an oral hearing to evaluate objections.

Part 6 relates to the Mining Board. The Mining Board has been in existence since it was established under the Minerals Development Act 1940 and adjudicates on various issues arising under the Acts, including compensation to private mineral owners. This Part provides for the continuation of the board which consists of a chairperson and two ordinary members who are appointed by the Government on the recommendation of the Minister. The chairperson shall be a practising barrister or solicitor of at least ten years' standing. Each ordinary member shall be a property arbitrator under the Property Values (Arbitration and Appeals) Act 1960. The provisions relating to the board are being updated in line with current best practice. New provisions in the area of ethics are provided in line with current legislation regarding other statutory boards.

Part 7 relates to enforcement and miscellaneous issues. This Part mainly contains standard provisions, restated or updated where necessary. Penalties in respect of offences, such as unlawful prospecting or working of minerals, are brought up to date in line with current practice. Injunctive powers are being provided for continuing offences and in the case where the Minister might be prevented from undertaking rehabilitation work. Provision is being made for the appointment of inspectors to enforce the Act. A requirement to notify the Minister of boreholes drilled for reasons other than prospecting or mining is a restatement of existing provisions in the 1940 Act.The vesting in respect of intellectual property rights in the Minister relating to the processing of data collected under the Minerals Development Acts and this Bill is also being provided for. This Part also deals with the registration of minerals that were exempt from statutory vesting under the 1979 Act and other miscellaneous matters.

Part 8 of the Bill, which involves transitional provisions, repeals and consequential amendments, provides for various transitional arrangements, including the continuation of any licences granted under previous Acts on the terms under which they were granted until they are renewed under the revised legislation. Applications for prospecting licences or mining leases and licences that are made before the enactment of the Bill will be deemed to be for licences under the Bill unless the Minister has already given notice of his intention to grant a licence. Chapter 2 sets out the Acts which will be repealed by the Bill. Chapter 3 lists amendments to other Acts as a consequence of the Bill.

The Schedule contains a list of substances which for certainty are included within the definition of "minerals". This list is not exhaustive, as the definition of "minerals" contained in section 2 describes the term as meaning "all substances, including scheduled minerals". It may, therefore, allow other substances to be defined as "minerals". A similar Schedule to the 1940 Act has been reviewed with some additions and deletions. For example, chalk, flint and chert have been removed because experience has shown that their inclusion was not helpful. Mineral oils and natural gas have been removed because the 1960 Act provided for the separate regulation of oil and gas exploration and production. Other substances have been added, including industrial minerals that were not important in 1940 but have since gained significance, such as andalusite, garnet and sepiolite. The Schedule also includes definitions of "dolomitic limestone" and "silica sand".

Government approval for the publication and introduction of this Bill was given subject to any technical or drafting amendments that may be agreed between the Minister for Communications, Energy and Natural Resources and the Attorney General. My Department has been liaising with the Office of the Attorney General in the interim. I propose to introduce a number of such amendments on Committee Stage. In particular, amendments will be proposed to give effect to certain obligations under the Minamata Convention on mercury, which was signed by Ireland in 2013 and will prohibit primary mining of mercury. Other amendments will take account of legal advices in relation to the Aarhus Convention and will refine provisions that are already included in the Bill.

I look forward to early consideration of this Bill on Committee Stage in the Seanad. I ask Senators to table any proposed amendments as quickly as possible to allow time for their full and fair consideration. I will consider all amendments that are tabled. I look forward to an informed, positive and constructive debate on the Bill in this House and a fair wind for its passage through the Dáil. This Bill is important to improve and consolidate the legal framework underpinning our minerals sector, which has been of great economic and social benefit in the past, as it will continue to be in the future. I am happy to commend it to the House.