Alice-Mary Higgins (Independent) | Oireachtas source

I am certainly looking forward to the public engagement. That is good and I hope there will also be - as has also been committed to previously - engagement directly with Members of the Oireachtas who have shown an interest in this area by the Department. However, I do still have outstanding concerns which are not really addressed. To build on what Senator Boylan has said, the context is that we did not have pre-legislative scrutiny, which would have been very important. In something such as this, it is always a concern when the Bill has not been through pre-legislative scrutiny first of all.

I appreciate that the Minister has indicated he is open to the kinds of points I have been raising, and I have no doubt that the Minister of State, Senator Hackett, is open to those points. The problem is that there is no guarantee for us, as we hand over the power to regulate away from the hard powers in the Forestry Act into the secondary power area of regulations. For example, it says that regulations "may" provide for different things. I know this from debating the climate Bill. We talked at length about what different language means. "Have regard to" is not in fact very binding language. Under this provision at the moment it is only requiring that they "have regard to" the requirements of the environment or environmental law. It is not "comply with" or "be consistent with" the need for increased planting of native tree species, public safety and others. Again, there is a concern there. This is why I was trying to improve this section of the regulations. There is also an overall concern that we do not know what will be in the regulations. We do not know if they will address properly those issues of the environment and environmental law.

The strategic environmental assessment and a public consultation is one thing, but I reiterate that it is not clear to me how a scheme can do an appropriate assessment with regard to Natura 2000 sites. Natura 2000 sites are specific and real places. The question then is, will what happens have an impact on them. Given that we do not know where these native tree areas will be, again this would be a very nuanced issue. Is it going to be a blunt measure of distance from a Natura 2000 site? What will the criteria be for assessing whether or not there would be an impact?

If it is simply about size, we have the case law that has come through. Case law in the European courts, specifically cases C-392/96 in forestry and C-66/06 on size-space thresholds, is very clear that simply because a thing is small or of a particular size this does not exempt it from having to go through the proper environmental considerations. How an appropriate assessment gets done on this scheme is the kind of detail we could have teased out if we had pre-legislative scrutiny. Perhaps the Minister will understand that this is the context in which I had looked for something that strengthened the appropriate assessment in my amendment. I really do not see how it is going to be done in a way that will be consistent with environmental law.

I also want to pick up on another issue with these regulations and the intent. I do not doubt the genuine passion of the Ministers who are putting it forward, but when one creates the power to make regulations they can change and they may or may not continue to serve the purposes as set out here. For example, we heard an appeal for this to be used for forestry. Then we would have crop planting being used and planted in a way that would bypass the forestry legislation, which is not something we should be aiming for. Once we make these powers, the Minister, Deputy McConalogue, or the Minister of State, Senator Hackett, or future Ministers, may use them. This is why it is really unacceptable that attempts to insert a sunset clause, or even a review and renewal clause, in this legislation has been blocked. This fundamentally undermines the democratic balance between Parliament, the Oireachtas and the Executive. That is a serious issue and I will be raising it at the Committee on Parliamentary Privileges and Oversight.It would set an extraordinarily dangerous precedent in terms of the transfer of powers between Parliament and Government. I wish to be clear on that. The Minister is in the crossfire on that issue but it is a concern.

To conclude, as most of my other amendments have been ruled out of order, I will not be coming in on many amendments. I wanted to come back to the biodiversity and ecosystem piece. The Climate Change Advisory Council was very clear about planting the right tree in the right place. The regulation does not specify exactly how we will determine, not the right size, but the right place when planting trees. That is a core issue we need to get to. Planting trees is good but not always. Any tree is not necessarily the right tree in a particular localised biodiversity area or ecosystem.

The Minister did not answer the question on continuous cover. It would be good if he could clarify that when he comes in again. I am somewhat concerned when I hear talk of potential felling of trees for timber. Will continuous cover be part of the criteria?