Grace O'Sullivan (Green Party) | Oireachtas source

These amendments are about the very important issues of access to justice in environmental matters. They are intended to give effect to the Aarhus Convention. Unfortunately, I do not think they do so as well as they should or may be intended. Important aspects of the environmental and legal regime are being altered by Report Stage amendments with no information about the changes in advance and no opportunity for public input into the changes. This goes against the Aarhus Convention, in particular Article 8.

I am concerned about the substances of the changes in that they do not go far enough and do not take into account recent decisions of the Court of Justice of the European Union which are binding on the Minister. For example, the Minister of State proposes to maintain the reference in the Environment (Miscellaneous Provisions) Act 2011 to compliance failures which have caused, are causing or are likely to cause damage to the environment, despite the European Court of Justice holding in the recent North East Pylon case that such a derogation is not possible as a matter of EU law. This clause means a civic minded individual or organisation seeking to ensure the implementation of the law has an unnecessary and unlawful hurdle to jump before he or she can avail of the costs protections which we have legally committed to as a member state of the European Union and as a party to the Aarhus Convention.

The practical consequences for many is that they cannot take the risk of litigation or, at their own expense, prove damage beyond a reasonable doubt. I am sure the Minister of State would agree that where the law has been developed or clarified by the European Courts he is bound to take the earliest opportunity available to bring legislation into compliance in the interests of legal certainty so that the public can know precisely what their rights are.

It is welcome that the amendments are providing clarity in extending the cost provisions to the habitats directive. However, the references in the amendment seem to restrict the costs provisions to only some elements of the directive. I would like the Minister of State to explain this. For example, it seems that there would be no cost protection for a litigant seeking to ensure the implementation of the provisions for the protection of species in Articles 12 to 16, inclusive, of the directive or raising issues relating to the ministerial direction under regulation 28 of the birds and natural habitats regulations. Is my reading of this correct? Is this the intention of the Minister?