James Browne (Wexford, Fianna Fail) | Oireachtas source

The acceptance of the amendment would delete section 3 of the Bill, which refers to special restriction periods for State lands and for foreshore. Senator Boylan spoke to amendment No. 6 but Senator Higgins spoke to amendment No. 7.

I must make a couple of important points. As with the earlier amendments seeking to delete section 2(b), this proposes a significant shift in established policy and a change on that scale would require careful analysis. I suggest it is not suited to this type of Bill, especially one that has to move through the Houses very quickly, as has been stated, to avoid effective legal chaos in this area.

The Law Reform Commission recommended the longer 36-year prescription periods for State-owned land in its 2002 report on prescriptive easements and profits à prendre, pointing out that it is significantly more difficult for the State than for a private person to be aware of any prescriptive use affecting its widespread and fragmented land portfolio. That difficulty applies in particular to the foreshore, given that of its nature it is frequently submerged or difficult to access. There is also public interest in showing there is effective State control over the foreshore. When we talk about State lands, we are talking about lands that are in effect owned by the citizens and residents of this country. It is important to reiterate that the Bill is concerned with prescriptive rights which are private rights, it does not address public rights of way. I know genuine concern was previously raised about public rights of way. It is a concern that affects almost anybody in communities across the country. The Bill is addressing the issue of private rights. It is also used to address some other concerns that were raised in previous debates to ensure there is clarity for those who are following this legislation.

The 2009 Act would have reset the clock to zero on 1 December 2021, with new claims for prescriptive rights only taking account of user periods starting on or after that date. However, this Bill does not do that. It was already mentioned that prescription periods that were completed before 1 December 2009 will be decided under the pre-2009 rules, including a 20-year prescription period for State lands and foreshore, as will all claims that are pending before the courts or the Property Registration Authority on 30 November 2021. In respect of claims regarding State land and foreshore that are brought after 30 November, the longer prescription periods will apply but section 3 expressly specifies that the claimant may rely on any period of 30 years or 60 years for foreshore, so established use before 30 November will still be counted.

No seaweed harvester with a vested right over the foreshore, and no water holder with a prescriptive easement or profits à prendreof any kind will lose their rights. The example I gave in a previous debate of seaweed harvesters who can prove 30 to 40 years established use before 30 November is not an example of rights being taken away by this Bill. They will not be. In fact, under the Bill, those users are better protected. The rights of those users who had completed their 20-year prescriptive period under the old law before 1 December 2009 have vested and, under section 2(a) of the Bill, they are entitled to have them validated after the Bill comes into operation. Under the 2009 Act, they would have lost their rights if they had not applied to the Property Registration Authority before that, but that is not the case under the Bill, which improves their position.

I will go further and I assure Senator Boylan that the matter can be re-examined under the review process. Looking at the Bill and the additional rights that are included in it, seaweed harvesters are protected but there is no difficulty examining the matter again when the situation is being reviewed as part of the wider review that will be carried out.