Malcolm Noonan (Carlow-Kilkenny, Green Party) | Oireachtas source

I thank Senators for their contributions. I welcome the guests to the Public Gallery and thank for their interaction in respect of this important Bill.

Before I give the official response, a few points were raised by Senators Boyhan, Clonan and Higgins with regard to the protection of heritage. I will not go into the specifics of the McKee Barracks case. It is an issue. It is built heritage. These are buildings that should be on the record of protected structures at local authority level, which provides a different set of protections. I agree that we have lost much of our built heritage in the past 50 or 60 years. There is no doubt about that. This Government is committed to trying to address that through the supports and funding mechanisms we are putting in to protect built and archeological heritage. This Bill seeks to address issues Senator Boyhan raised around compliance and consistency and we are confident that the Bill goes some distance to putting in a suite of protections and a layer of protection around archeological heritage that has not been there heretofore. That also applies to the points raised by Senator Higgins. We are confident that the Bill gives effect and adheres to the objectives in the Valetta Convention. We are quite clear about that and note the points about the Aarhus Convention and the European Landscape Convention.

As previously discussed, the direct references to the Valetta Convention as set out in this proposed amendment are not considered necessary. I reiterate that the Bill has been drafted to give effect to the relevant articles of the Valetta Convention. Nothing in the Bill runs contrary to anything in that convention. One of the primary purposes of the Valletta Convention is to ensure states parties have a legal system in place for the protection of archaeological heritage and this Bill provides for that legal system. Allow me to go into some detail here and give some specific examples of how the Bill achieves this.

For the first time, the Bill introduces the mandatory reporting of finds of monuments. The Bill provides for the creation of inventories, covering archaeological heritage, architectural heritage and wrecks of historical interest. The Bill will provide for the authorisation of archaeological excavations and the licensing regime helps to ensure a range of activities are carried out in an appropriate manner. The Bill also provides for the appropriate storage of archaeological objects. It will ensure that licensable activities are only carried out by suitably qualified persons. Under the Bill, the use of detection devices for searching for archaeological objects will be a licensable activity. These are some examples of how the Valletta Convention is hardwired into the Bill. The Bill not only avoids any conflict with the convention, it is the essential vehicle the State will use to comply with its relevant obligations under the Valletta Convention.

It is important to note that several other international treaties have direct relevance to the Bill. Examples include the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, usually known as the Aarhus Convention, which was mentioned by Senators Boyhan and Higgins, the Convention for the Protection of the Architectural Heritage of Europe, also known as the Grenada Convention, the Convention on Environmental Impact Assessment in a Transboundary Context and the Convention Concerning the Protection of the World Cultural and Natural Heritage, better known as the UNESCO World Heritage Convention. As multiple relevant conventions exist, it is not considered appropriate to include specific provisions for one international treaty from the list of international treaties that have relevance to the Bill. Part 7 of the Bill acknowledges this in the context of licensing, by requiring licensing authorities to have regard to the provisions of all international treaties that are aimed at promoting or securing the protection of archaeological, architectural or historic heritage.

Finally, and perhaps most importantly, what the Senator proposes would unfortunately create uncertainty and legal doubt. If accepted, this amendment would mean an Act of the Oireachtas would be subject to being interpreted by the Irish courts, not in line with the Irish Constitution and Irish law, but by reference to an international treaty the text of which is loosely and sometimes unclearly drafted. Many international conventions, such as the Valletta Convention, establish broad policy aims rather than specific legal requirements. I will look at it again on foot of today. The issues around conservation and the enhancement of archeological heritage, the goals of urban and regional planning policies, co-operation around town and regional planners and public access to archeological sites, as set out in the Valetta Convention, are all contemplated in this Bill.

Leaving aside the legal and constitutional difficulties which might result from subjecting Irish law to an international treaty in the manner proposed, the likely result will be ongoing litigation in which the courts are called on to interpret the Valletta Convention with a precision it was simply not drafted to provide. The convention contains little by way of specific detail to enable the Minister’s compliance to be measured with any precision, thus giving rise to a great risk of litigation in which the courts are called on to determine the Minister’s compliance with little to guide them in that regard. It is for these reasons that I am not in a position to accept this amendment but if there are any matters in the Bill that are not considered compatible with the Valetta Convention, I would certainly welcome this information as now is the time to address such matters. Again, I ask the Senator, if there are issues that are not compatible with the Valetta Convention, that he would draw my attention to them while the Bill is in progress.