Tuesday, 14 December 2021
Maritime Area Planning Bill 2021: Committee Stage
I move amendment No. 1:
In page 16, to delete line 5 and substitute the following:
"(6) The following limitations apply to the discretion of the Minister to commence by order the operation of provisions of this Act—
(a) Chapters 1and 3of Part 9shall come into operation on the establishment day,
(b) Section 79shall be excluded from any commencement order—
(i) until the Minister has conducted and completed the review required of the existing NMPF under section 17 (2), and
(ii) where a MSP to replace the existing NMPF has been prepared in accordance with section 17(2)(a).
(7) The Minister shall exclude from any commencement order section 101for a relevant maritime usage as defined in section 100, of the class defined under paragraphs (a)and (b)of relevant maritime usage—
(i) until the Minister has conducted and completed the review required of the existing NMPF under section 17(2), and
(ii) where a MSP to replace the existing NMPF has been prepared in accordance with section 17(2)(a).".
This amendment relates to the commencement of the Act.My amendment reads: "Chapters 1 and 3 of Part 9 shall come into operation on the establishment day".
Section 79 concerns the issuing of a maritime area consent. My amendment continues:
(b) Section 79 shall be excluded from any commencement order— (i) until the Minister has conducted and completed the review required of the existing NMPF under section 17 (2), and
(ii) where a MSP to replace the existing NMPF has been prepared in accordance with section 17(2)(a).
I reserve the right to table further amendments on the designation of marine protected areas. That is another area that should be a factor that results in a delay in the issuing of maritime area consents.
My amendment continues that: "(7) The Minister shall exclude from any commencement order section 101 for a relevant maritime usage as defined in section 100, of the class defined under paragraphs (a)and (b)" until a proper review is conducted.
The context here is that one cannot develop without a maritime area consent, MAC, in many instances. It is important to understand the Bill allows the Minister to determine the requirement for review up to six years after the publication of the existing NMPF and even then the Minister might determine that there is no action required under section 17(2)(b). This amendment effectively makes sure that one does not have problematic relevant projects that are just announced and may have been put into the NMPF's spatial plan without making sure that the methodology and the standards being set out in the marine spatial plan, MSP, directive are properly reflected and to ensure that any of the relevant projects that may be set forward or any proposed MACs are consistent with the delivery of sustainable development activity and ensure good environmental status in the marine environment.
Last week, the Department told a committee of stakeholders that a review would take place within two years. Again, if that is the intention then this delay in commencement is not unduly onerous. It would simply ensure that if the review was done, as is planned and proposed within two years, that we would then be in a position to ensure there is a better quality of consideration in terms of the issuing of MACs. There may or may not be an upgrade. We cannot assume what will happen with a review but at least it would leave us in a position to ensure that those might be reflected.
I refer to a separate issue that I may bring in at a later stage, that is, increasing knowledge that we have and new research emerging all of the time. For example, an area of research that has been very significant in recent years is the impacts of seismic and sonar activity in the marine environment. I am sure that the Minister of State is aware of the Informar research on the automated cetacean acoustics project and the study done by the Maritime Institute of Ireland. That would allow factors like that to have been considered, be part of the review and be reflected. There are issues that are not simply affected by actual development and planning but can be affected by maritime use and the kinds of things that might get consents under section 79. Again, the kinds of MACs under section 79 are the kinds of relevant maritime usages under section 100.
I hope the Minister of State will address these concerns. Perhaps he will recommit to the review and commit to solely delaying these sections of the Act until the review has been conducted.
Amendment No. 1 seeks to delay the commencement of significant parts of the Bill until such time as the national marine planning framework is reviewed. The review of the NMPF was discussed in detail on Dáil Committee Stage. As pointed out then, the NMPF is the first of a series of interconnected and related spatial plans for the maritime area. It is illogical to pause the commencement of the Bill for the review of the marine spatial plan, which was only published in July.
This Government takes marine management, decarbonisation and the protection of our maritime area seriously and we must move forward with this Bill. Section 17 requires that an NMPF is reviewed within six years. As stated on Committee Stage in the Dáil, the Government intends to carry out a review of this sooner, particularly for the first national maritime spatial plan. The review of the NMPF will be a significant undertaking, taking into account all the new data the Senator spoke about. It is important that it is given the time that is needed to carry out such a comprehensive review. This review should not be pressured by a Bill that is waiting to commence. We must focus our resources on getting the system up and running and I am happy that the existing NMPF underpins this system appropriately in its current form.
The Senator is correct that a lot of good data is being collected, particularly seismic and acoustic surveys. A lot of this will be dealt with in the legislation on designation of marine protected areas. Therefore I oppose this amendment.
It is important to clarify that this amendment does not seek to delay the commencement of the Bill. It simply relates to certain sections of the Bill. It is a substantial Bill and a huge amount of work needs to be put in place, including entire new bodies that must be constructed and so forth in terms of the maritime area regulatory authority, MARA, and others. It is important to be clear that about two years of work could probably be done on the other sections of the Bill, without commencing. Section 17 is around the application and granting of maritime area consents, MACs. A huge amount of work could be done. This amendment relates to specific sections of the Bill and specific actions of bodies that are being established by the Bill. A two-year timeframe is being looked at for a review and that is a realistic pause to put on the grants. The infrastructure and mechanisms around the granting of MACs can be set in place. We should not then move to the point of granting them and then maybe six months later complete a review which might set out a different set of concerns. At that point the problem is that MACs would have been granted.
It is not the commencement of the Bill that is at issue but the commencement of a specific action under the Bill. Could the Minister address that? That is the crux of the matter. We should put in place the infrastructure and all the various aspects over the two-year period, while also conducting a review to ensure we have the best information feeding into those structures and processes that are being set up. Then we should move towards the issue of the granting of MACs. To my mind that seems to be sensible. The cart has been put before the horse a lot in this process. This maritime planning framework has been brought through at a time when Ireland was meant to have 10% marine protected areas last year and we are due to have 30% nine years from now. We are behind the curve in that. This is a good faith attempt to suggest that at least within this part of the process we would try to get the sequencing right so that it is more effective and so that better decisions are made.
I disagree with the Senator. The Government has committed to and ensured in the drafting of this Bill that this and marine protected areas would be inter-related. The NPWS has been centrally involved in this process, as has the Department of the Environment, Climate and Communications. All of this is an interconnected framework that we have to move forward with. It is critically important for biodiversity as well as for decarbonisation. We have given a commitment to carry out a review sooner and that commitment is sufficient.
Garret Ahearn, Jerry Buttimer, Malcolm Byrne, Maria Byrne, Micheál Carrigy, Pat Casey, Martin Conway, Ollie Crowe, John Cummins, Emer Currie, Mary Fitzpatrick, Robbie Gallagher, Róisín Garvey, Seán Kyne, Vincent P Martin, John McGahon, Erin McGreehan, Pauline O'Reilly, Barry Ward.
I move amendment No. 3:
“In page 17, between lines 15 and 16, to insert the following: “ “excluded consultation periods” means that the following days are not included in the counting of any public consultation provided for under this Act or required by any action or decision taken under this Act where they fall within the public consultation period proposed:
(a) public holidays or bank holidays in the State;
(b) the period between 24 December in any year and 2 January the following year inclusive;
(c) the first two weeks of August;
(d) such other additional dates which the Minister may prescribe in a public participation statement or in regulations made under this Act;”.”
I will move the amendment but I will not press it on this occasion. Amendment No. 3 relates to the accounting of days. I understand it might not be necessary at this point, insofar as I believe there has been movement on the public consultation. The amendment is to highlight the phenomenon with which we are all familiar, whereby the Christmas period and periods of bank holidays become the periods in which there are opportunities for engagement. That has an impact for civil society, for example, for those who may be workers, their allies or their colleagues who can engage in processes. It even has an impact on the awareness of the opportunities for engagement and consultation.
This is sometimes a wider issue of public consultation right across government. We have seen the phenomenon of the Christmas public consultation and the August summer public consultation. The goal should always be for the best possible public consultation and for real opportunity for engagement. The goal should not be to get through a public consultation with as little inconvenience from the public as possible by not having engaged, although I know that is not the intention. I understand there was some positive engagement on the public consultation matter in the Dáil.
Amendment No. 34 is around the arrangements for participation in the review of, preparation for and amendment of a new marine spatial plan, MSP. Amendment No. 34 provides that the Minister of State might by regulation specify requirements relating to appropriate time periods for public consultation and arrange for the publication of notices related to relevant documents. These are big documents. They are significant sets of decisions. Of course, they are directly related to the Aarhus Convention and the right of every person to participate in environmental decision making. This amendment suggests areas in which regulations and measures might be put in place in order to ensure that we have the best possible public participation in the development of any new MSP. It sets out certain particular directives that are important in that process. I mentioned the Aarhus Convention. There are also directives on industrial emissions. That is particularly important now, given that Scopes 1, 2 and 3 and the tracking of corporate and industrial emissions, are becoming particularly important. I also note integrated pollution prevention and Articles 9 and 10 of the MSP directive. I believe these principles and policies should be reflected in the public engagement, as well as the opportunities for public engagement, around an MSP. I hope that the Minister of State might be able to accept amendment No. 34.
I will comment briefly on amendment No. 3. Nobody disagrees with the importance of public consultation, but significant periods are set out statutorily in the legislation for that. To select periods, such as the first two weeks in August, as the periods in which consultation is not allowed is not appropriate. While the first two weeks in August might not suit certain people, they might suit other people. Who is to say that the third and fourth weeks in August are not more appropriate, or that the first week in September, when kids are going back to school, is not the most appropriate? We set out statutory timelines for public consultation processes for a reason. Different times of different years will suit different people. It is just inappropriate to try to exclude certain periods.
There was much discussion on Committee Stage in the Dáil around public consultation and the need to exclude certain periods.This is consistent with the Planning and Development Act 2000, as amended. Section 54 of the Bill also provides that the Minister may, by regulations, specify further public holidays. On the passage of this Bill, my Department will begin preparing all relevant regulations to support it. The Minister of State, Deputy Peter Burke, has already committed to discussing these regulations, when drafted, with the relevant joint Oireachtas committee, if it so wishes.
I would like to address the points raised by Senators Higgins and Cummins. There is no doubt that there is huge demand on the public in terms of public consultation. The dates are one thing, but the method of how we engage with communities and various stakeholders is critically important as well. We need to move towards participative engagement and away from linear type consultation processes. Senator Higgins referenced the Aarhus Convention, which is very important in terms of environmental projects and environmental obligations. The Government has committed to that, in particular around the marine protected areas. There was significant public engagement, including with fishers and communities. There has been a good opportunity for engagement on this. We need to ensure always that there is that sufficient level of engagement. While this proposal is important in terms of the dates, the method of engagement and how we engage with communities and stakeholders are vitally important too. I oppose these amendments.
I accept the Minister of State's bona fides in respect of amendment No. 3 because I know there has been movement on that. In the text of amendment No. 34, subsection (3)(b)(iii) deals with the administrative burden that is placed on the public. There should be no battle or difficulty in terms of the administrative burden that is placed on the competent authority versus the public and its participation. We need to consider how we can make that easier. I appreciate that the Minister of State, Deputy Burke, has offered to engage with the relevant committee but I ask that the Minister of State, Deputy Noonan, expand on that and indicate a willingness to engage with interested parties and smaller groups which will not necessarily have a member on that committee but are concerned and passionate about the issue of public participation. For example - this is only an example because others are also very keen - this is of great interest to the Civil Engagement Group and civil society organisations with which we try to work.
If there was an indication of engagement around those regulations, that would be helpful. I would like the Minister of State to accept amendment No. 34 because I believe it sets out a lot of very useful concrete ideas. I hope the content of the amendment will be borne in mind in the development of the regulations as described by the Minister of State. I will not press amendment No. 3, but I would welcome a final comment from the Minister of State in regard to amendment No. 34 as I do not we believe we will get to discuss it again.
I move amendment No. 4:
In page 18, between lines 12 and 13, to insert the following:
" "Marine Strategy Framework Directive” means Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive);".
I do not see any reason the Minister of State could not accept amendment No. 4. It is a technical amendment to provide that when referencing the marine strategy framework directive we would be clear about what directive is being referenced. We have done this in regard to other directives. The amendment is seeking consistency in terms of including a definition and a specific reference. This is important because this is the directive which provides for the designation of 30% of marine areas as protected by 2030. It is a crucial directive in this context.
I hate to press on it, but it is a real concern that we do not have the marine protected areas in place. The Minister of State will be aware that I am also concerned that other amendments that have been ruled out of order sought that we, at least, put in place interim protections. This is a crucial period. In setting out a marine planning framework, which I am aware will be reviewed in two years, we are planning on a framework for the long-term but there is a particular sensitive period, which is the period in which marine protected areas are not yet designated.That is why, although it is ruled out on grounds of cost, there is a requirement or a need for interim protective measures in order to ensure that we do not lose ground, albeit ground beneath the sea. We know that, especially with biodiversity, sometimes when something is lost, it is lost. Sometimes it can be recovered but at others it cannot.
We can look to things like migration patterns and so forth. I am aware the marine planning framework is being reviewed but there were not some of the substantial kinds of scrutiny needed within it. That is a little wider than the point. The main point is that amendment No. 4 is it is quite technical. It is specifically about naming that directive by its EU name in order that it will be clear that we are not talking about some different marine planning framework. I know that is not the intention; it is just a technical clarification.
Amendment No. 16 provides that when preparing, amending or revoking guidelines under section 7, the Minister's actions should be consistent with Article 1 of the maritime spatial planning directive, the objectives of the birds directive, the objectives of Article 2 of the habitats directive and the methodologies and the overall requirements of the maritime spatial planning directive, which we have just discussed. That again is an opportunity because amendment No. 16 gives the Minister scope to be anticipating that there will be 30% marine protected areas. In that sense it would be very useful to the Minister in his or her preparation of guidelines. The amendment also covers any programme of measures for the State specified under maritime spatial planning directive. It also provides that when preparing and developing such guidelines, the Minister shall have regard to the national marine planning framework. Again, in the development of such guidelines, the Minister can be anticipating aspects that may need to be further reviewed and identifying gaps or issues that brings to light.
Amendment No. 16 further provides that the Minister consult with "the Minister with any delegated responsibility for natural heritage". In this instance, that is the Minister of State. He will be aware that in either the spring or the autumn of last year, we had a very lengthy discussion about this matter. An unusual thing has happened whereby as part of our planning infrastructure previously, the Minister with responsibility for housing and planning had particular constraints on him or her. Those constraints also involved both Ministers to engage with a Minister with responsibility for heritage. It was a kind of belt-and-braces or checks-and-balances mechanism internal to the Cabinet to ensure that the Minister with responsibility for planning would bring his or her perspective into play, but would also consult the Minister with responsibility for heritage in order to get his or her perspective.
We now have same Minister with responsibility for both areas. That is why I am suggesting the Minister with responsibility for planning and development would consult with the Minister of State in his or her Department. That is currently the Minister of State present, who has delegated responsibility for natural heritage. This comes down to ensuring that even if a checks-and-balances mechanism between Departments is not there, it is still there within a single Department, given the different mandates Minister and Minister of State might have and, indeed, the different perspectives and expertise each might bring.
This also relates to the Minister for the Environment, Climate and Communications. The amendment also refers to the input and consideration that should be given in the development of guidelines to input from consultation with the public and with public bodies that have been consulted under the guidelines, to include any proposed revocations of those guidelines.
Amendment No. 35 would insert Directive 2008/56/EC on the framework for community action in the field of marine environmental policy into the Bill. This is really appropriate and, again, in spirit with what the Minister of State said regarding the importance of engagement. This directive might not seem to be a direct part of this. However, it relates to community action in marine environmental policy and is one of the things that the actions of the competent authority should be consistent with. I am hopeful the Minister of State will actually be able to accept amendment No. 35 because it is very simple and constructive.
Amendment No. 36 would insert into the Bill the requirement in the maritime spatial planning directive to address marine spatial planning while ensuring good environmental status.It would make the directive something that the actions of the competent authority should be consistent with. This is also very much consistent with the just transition and climate justice principles and the international conversations that are happening in the context of the sustainable development goals regarding life under water and ensuring that we do not simply have discussions about the regulation of industry and what industry may wish to do with maritime areas. Rather, we must see the engagement of community and society in respect of marine and environmental matters and recognise that the relationships in this regard are important. Let us not, for example, focus solely on the economic relationship that certain actors may have with maritime areas because community engagement is also important. The Minister of State will be aware that this is part of the international conversation in terms of marine planning and marine protection. It would be a positive signal for Ireland to place the directive within the scope of the matters for consideration.
Amendment No. 42 is similarly based on the framework for community action in the field of marine environmental policy. This is the kind of measure that we know provides ownership, connection and meaning. It creates a dynamic whereby, in advance, this would be complementary to effective and successful maritime planning, but it is also going to be important down the line for marine protection and for this to be a positive framework that works. I hope the Minister of State might look to the opportunity presented by the directive and include it in the sections as proposed in amendments Nos. 35, 36, 40 and 42.
This was already addressed on Committee Stage in the Dáil. There is no requirement to conflate the marine spatial planning directive with the marine strategy framework directive in one piece of enabling legislation. Indeed, the most recent global international guide on maritime spatial planning prepared by UNESCO and the EU Commission and published this year reinforces the distinction between these two maritime governance tools.
Both directives will need to be provided for in the Statute Book. We know that and we are taking action in that regard. If we keep picking articles, we run the risk of leaving others out. The national marine planning framework is in line with the maritime spatial planning directive and all other maritime spatial plans and DMAPS must also be in line with the marine spatial planning directive. I take on board the points the Senator makes but I am confident that the Government has robust direction on this.
In terms of the consistency with the habitats directive methodology and anticipating the advance of marine protected areas, MPAs, it is the case in the expert group report that was led by Professor Tasman Crowe, and the public consultation that took place around that, and the legislation for marine protected areas, that we are confident, as I said previously about the interrelatedness of it and anticipating MPAs both in legislation and in their designation we are doing the right thing and that there are good checks and balances. That is a given in terms of the consultation with the Minister with responsibility for planning and development and the Minister with responsibility for heritage. Those checks and balances are in place across the Government regarding all of this. I am confident that we are taking the right direction and will be opposing the amendments.
I move amendment No. 5:
In page 19, between lines 16 and 17, to insert the following:“ “prescribed bodies” as referred to in this Act for the purposes of consultation, shall include at least the following:
(a) Fáilte Ireland;
(b) the Marine Institute;
(c) the Environmental Protection Agency;
(d) the National Parks and Wildlife Service;
(e) the Heritage Council;
(f) An Taisce, the National Trust for Ireland;
(g) Inland Fisheries; and
(h) such other bodies concerned with environmental protection as the Minister considers should be included;”.
This amendment would insert a new definition into the definitions section in order to ensure that we provide a list of bodies. It is an indicative list not a closed list and allows for others to be involved.The Minister of State might reference the fact that others may emerge that need to be included, but the amendment provides an indicative list of bodies that have environmental expertise and should be considered prescribed bodies for the purposes of consultation. This is part of good practice in consultation and planning and is recognised in other aspects of our planning legislation. The Minister of State will hardly argue with the relevant expertise of the suggested bodies. I hope that he will be amenable to accepting this amendment and including these bodies as " "prescribed bodies" ... for the purposes of consultation". I note that the amendment does not prohibit the addition of further prescribed or expert bodies as may emerge, and are emerging, in the marine area.
Section 2 of the Bill provides for interpretations. The proposed amendment would limit the range of bodies that could be prescribed for certain functions in regulations by providing a limited interpretation in section 2. The appropriate place to expand the list of prescribed bodies for certain functions will be in the regulations. My Department will begin preparing all relevant regulations to support this legislation once this Bill is passed.
I will add that all the bodies listed in the amendment were engaged at the early development of the NMPF and the proposed marine planning system. Most of them were on the NMPF advisory group, which is still in place. We believe in early and continuous engagement rather than a set-piece arrangement at the end of a process that, at this stage, is somewhat old-fashioned and reductive. This is why the NMPF has been so well-received and it is our intention to repeat this method for future marine spatial plans. In that regard, I will oppose this amendment.
I am afraid I will have to ask the Minister of State to give a further reply. His response is not accurate in the sense that this amendment does not preclude the addition of further measures. I note that it is quite specific in stating "shall include at least the following". It does not close the list and it is very clear. I was not going to belabour it, but the amendment sets out Fáilte Ireland, the Marine Institute, the Environmental Protection Agency, the National Parks and Wildlife Service, the Heritage Council, An Taisce, the National Trust for Ireland, Inland Fisheries and "such other bodies concerned with environmental protection as the Minister considers should be included". Even that is not exclusive. This is not a closed list. I have to ask that we are accurate. The amendments do what they can, and I know we will disagree at points, but it does matter.
I am a little concerned by the phrase "old-fashioned". We have established bodies with significant expertise and years of experience that have done incredible work, in many cases, long before there was proper acknowledgement of marine-related issues. It is a little loose to say that we may provide regulation. Certain voices need to be heard. That is reasonable. Are we saying that it should be left to see whether bodies such as the Environmental Protection Agency, the National Parks and Wildlife Service, the Marine Institute and the Heritage Council are included? Under the sections in this Bill, these bodies are not prescribed for the issuing of MARA licences. The list of prescribed bodies to be considered in decisions by An Bord Pleanála has not been updated to reflect some of the marine context. There is bit of a parallel process here so it is important that there is belt and braces on that.
There are other organisations, such as the National Inshore Fishermen's Association - other people may address those and other actors - but I will be very clear for the record that this is not a closed list. It is a list naming very credible actors with long track records that should be consulted with. The amendment leaves it wide open for the Minister of State to add in any other such modern and contemporary, and not old-fashioned, bodies that may wish to be added. I am sorry to push back on this but it is important. These are the voices that have led the way on this issue and theirs is the expertise that I certainly want to know will be consulted.
Everyone's views are important, be they from any of the bodies that are suggested, or not, by Senator Higgins, or from individuals.I come from a coastal county, namely, Waterford, and this is relevant for everyone who lives along our coastline and anybody who lives in Ireland. The Minister of State is correct to point out that many of these bodies have been engaged extensively throughout this process. We have done a huge body of work at the joint committee on this matter and many of these issues have been teased out on Committee Stage at select committee. Whether a body is prescribed or not, there is nothing precluding any individual or any body from having an input into any stage of the process, though the Minister of State may correct me on that. That is right and proper. It is sufficient and whether one is an individual in Dunmore East, An Taisce, the EPA or the National Parks and Wildlife Service, one has a right to have a say on any of these matters. That is what the legislation provides for.
Senator Cummins has pretty much summed up my response. In response to Senator Higgins, I repeat that the functions around prescribed bodies will be in the regulations. When we are talking about outdated consultation methods, we are really talking about consulting with a prescribed body for a prescribed period. That work is done. It is open and closed. We are providing for a longitudinal process that is inclusive and continuous. We are ensuring it is as broad as possible. The list can only be amended by primary legislation.
Organisations like Coastwatch and other fantastic organisations across the maritime area have engaged extensively on this over the past 18 months and beyond. Their input has been valuable and helped shape this legislation. We want to ensure that process continues and that engagement continues with those bodies. I cannot accept this amendment.
I move amendment No. 6:
In page 20, line 3, after “record” to insert the following:
“, but a record shall not be confused with information held, particularly for the purposes of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC or the Freedom of Information Act 2014”.
The Minister of State will be aware there is consideration regarding the issues of rights of way and the foreshore. That area will be considered by another Department next year. I want to signal the issue of the nearshore and how it relates to access to the foreshore, which is a key consideration under the review of conveyancing legislation under the question of prescriptive and other rights of way. That area might require some consideration. It is an important area of overlap in terms of complementary review and legislation that may be coming in the spring.
I move amendment No. 7:
In page 24, between lines 15 and 16, to insert the following:“(c) the National Heritage Plan;”.
I welcome the Minister of State and his officials who have done a lot of work on this area. Amendment No. 7 aims to include the national heritage plan. I am conscious that there is a national heritage plan 2030. The Minister of State waved a copy of it at us at the committee the other day. It is done and dusted. There may be a little bit of tweaking. I think it is an important document. We do not think enough about marine heritage. Ours is very rich and we have a rich aquatic life. There is so much under the sea.
I want to acknowledge the National Maritime Museum and the work it does. There is great interest around national heritage and our marine heritage. It seemed obvious to insert reference to the national heritage plan.
I did a search in the legislation for keywords such as "Aarhus" and "heritage". It is interesting how rarely some of these turn up in what is a very substantial document. I would like to think we can include this. The Minister of State might ask if we need to be repeating ourselves but we cannot repeat ourselves enough when it comes to our national heritage. We will have a plan. I know this is legislation and the Minister of State will not necessarily want to date the legislation but 2030 is a long way out in terms of our heritage plan. The amendment does not state the national heritage plan 2030 but "the National Heritage Plan". I know that the Minister of State thinks a lot about our heritage. He has been designated with responsibility for heritage. We should bear in mind how many counties are impacted by maritime activity, even in Kilkenny. I hope that we can include the amendment.
Amendment No. 8 relates to European Union instruments and directives which are really important. The integration of coastal zone management and the recommendations on the integrated coastal zone management defines the principles of sound coastal planning and management. The Minister of State and his officials will be aware of them. They are EU instruments. The need for such a tool has come from the realisation that despite increasing deterioration of the natural, social, economic and cultural resources of our European coastal zones, coastal planning activities or planning activities or development decisions still take place in a very sectoral or fragmented way leading to inefficient use of resources, conflicting claims on space and missed opportunities for more sustainable coastal development. It makes sense. I think it should be incorporated.
Sea for Life is another instrument of the EU. It is a marine strategy framework directive, more commonly known as the marine directive. It is an encompassing piece of EU legislation specifically aimed at the protection of the marine environment and natural resources and creating a framework for the sustainable use of our marine waters. The directive involves many implementation challenges, which are addressed through a common implementation strategy between the Commission and the member states and a regional approach to the implementation of its objectives. These are clear. Anyone who has done any research on maritime directives, the EU and the instruments will know these are critically important. I am interested to hear the Minister of State's response.
I wish to support amendments Nos. 7 and 8. They are extremely constructive. Integrated coastal zone management is missing. The national heritage plan is very relevant when we are talking about our natural and other types of heritage. The marine heritage intersects a little with those points.I refer to the question around the role of community because that is part of heritage as well.
My amendment No. 9 is also in this group of amendments and it attempts to highlight the question of interim measures. We have heard a lot about who has been spoken to in the development of this Bill but the question is, when the legislation is in place with all of its mechanisms, what happens next? Most importantly, what happens in that interim period where we do not have marine protected areas designated but we do have a marine planning framework in place? My amendment seeks to highlight this question and perhaps the Minister of State could clarify what the interim measures will be. I am not referring to the cut and thrust of the general processes that will be there in the long term but for this particular period when we have a particular vulnerability, when we have particular areas that are vulnerable now and which should be marine protected areas. Unless those areas are afforded interim protections in the next two to four crucial years, they could be degraded. We saw that happen in relation to peatlands and other areas on land. Where there are no interim protection measures in place, we can almost create an incentive for areas not to be valuable and then they are degraded. I am interested in interim measures as referenced in amendment No. 9. I was not prescriptive in that amendment but wanted to give visibility to the question of interim measures. I seek assurances from the Minister of State in this regard. If he does not want to include this in the legislation, I ask him to outline the plans in relation to this matter.
I thank the Senators for their contributions. The marine planning policy statement is a high-level document that sets out the Government’s principles and priorities for maritime planning. Section 6(5) of the Bill sets out a brief list of the high-level policy framework that will be taken into account when preparing the statement. However, this list is not exhaustive and any matters that inform this high-level policy document will be considered. Heritage is one of the many areas that will be considered as part of the preparation of the statement. Section 6(5) requires that regard is had to the national marine planning framework. Chapter 7.3 of that framework is dedicated to heritage assets. Accordingly, since heritage assets are included in the national marine planning framework to which the Minister must have regard when preparing the marine planning policy statement, and section 6(5)(h) of the Bill requires the Minister to have regard to any current policy of the Government relating to maritime planning, which would include the national heritage plan, it is not necessary to make separate provision here for the national heritage plan. I thank Senator Boyhan for his comments and for consistently raising the issue of heritage in this House. It is the case that Heritage Ireland 2030 will go to Government shortly after Christmas and this will automatically update as new policy for the period up to 2030. In that regard, it is not necessary to make a distinctive, separate provision in this legislation for it.
On amendments Nos. 8 and 9, the EU recommendation on integrated coastal zone management is not referenced and therefore, it would not be appropriate to include it here. Section 6(5)(h) of the Bill requires the Minister to have regard to any current policy of the Government relating to maritime planning, which would likely include any EU recommendation on integrated coastal zone management. The marine strategy framework directive is already included in section 6 of the Bill at section 6(5)(e). The suite of environmental policies included in the national marine planning framework will afford protection to the marine environment and this would include any interim measures to protect areas of the marine environment as agreed by Government. As I said earlier, the marine protected areas legislation is in the drafting process at the moment. We are also considering the huge volume of submissions we had in relation to the expert group report and are confident that we will have a complementary set of objectives around marine protected areas with our marine planning framework. Environmental protections are already included in the legislation, vis-à-vis planning applications, environmental impact assessments and so forth. The marine protected area process has been really inclusive and broad and will certainly support any of the actions and objectives that Senator Higgins is striving to achieve in the context of marine protection and biodiversity.
The Minister of State said, "would likely include", if he goes back to the comments that he put on the record. These are European Union instruments. We are signed up to these. I see no difficulty. We are talking about protecting marine diversity, mitigating climate change for the protection of coastal areas, issues of carbon sequestration by marine organisms, the need for healthy ecosystems, best international practice, EU instruments, unified structures, shared language, and a consistent approach, using evidence-based understanding of where we stand on marine, ocean and sea protection. We are also talking about marine planning and how it will interface with city and county development plans but that is a bit away.
Deputy Noonan is the Minister of State with responsibility for heritage. This is his opportunity to put his stamp on this legislation. I have no doubt that he has and that we are not privy to all the goings on with regard to it, except to say that I am on the Joint Committee on Housing, Local Government and Heritage, and have dealt extensively with this legislation. We had a pre-legislative report. We did not see all the recommendations incorporated into it, which I accept is part of the process. The Minister of State is telling the House that it is not necessary to include these. I am always conscious when we are here, debating these issues, that we are choosing our words carefully. We are setting a chain of events and a record of words. Words mean things. There may be a time when we have to revisit this through an external body. A European institution may wish to revisit the conversation that we are having here today. To be clear, the Minister of State is assuring the House and me that these resolutions are not required. He and his officials are fully confident that these two European Union instruments are fully bedded down, will be secured and full regard will be had to them in the legislation. Will the Minister of State tell me that, if possible?
I do not doubt that there are conversations about how this planning legislation will intersect with marine protected areas. The question is which fits into which. Will it be the case that marine protected areas will fit into a planning framework? I do not necessarily take comfort from the fact that there will be consideration of how these things overlap, because I think there needs to be clear prioritisation. We have talked about different EU directives and legislative obligations, as Senator Boyhan has done. There is also the core EU precautionary principle, which is what the interim measures idea, of doing no harm, is trying to get at. It is not really enough to say that we will look at these two matters and how they intersect. If, for example, a maritime area consent, MAC, is granted for an area and it turns out to be of deep importance to cetaceans and is an area which environmental scientists and others say should be a marine protected area, what happens to the maritime area consent and to planning and development that may have been given the go-ahead in a recognised area? This is what I mean about the two things intersecting.
It is also an issue of predictability for business. The technical document produced by the Climate Change Advisory Council refers to the importance of this legislation, of wind energy, and so on, but it also clearly talks about the importance of things being sited correctly, in the right locations and with clarity about the impact on biodiversity and other matters. I do not doubt that the two matters are in conversation with each other. There is no way that they would not be. There is still a question of which takes precedence. The interim measures were a chance to create space if that conversation has not already happened, so we are not then talking about accommodating marine protected areas in marine planning legislation that may already have been commenced.I do not know whether the Minister of State can answer that.
In relation to Senator Boyhan's point, I wish to give that commitment. The Senator is correct. The national marine planning framework has a dedicated chapter on heritage assets. The language used is that the Minister must have regard to it when preparing a marine planning policy statement. Whatever the current policy is, when the policy statement is prepared or whenever Heritage Ireland 2030 is implemented, it must have regard to the national marine planning framework. I am giving that assurance and I hope it is sufficient for the Senator.
It is critically important that the Senator raised this issue. As he said, this is not only natural heritage but cultural heritage. It is coastal communities which are part of our heritage. We cannot have a natural heritage without communities being part of that. We have good conversations with coastal communities in recent months on what they want to achieve out of this. There are coastal fishers, heritage fishers and many community groups involved in activities in coastal areas that require support and protection as well. We want to ensure that is included. It has been outlined well in the high-level report of the marine protected area advisory group led by Professor Tasman Crowe, as I said. That is very much reflected in the report.
In response to Senator Higgins, I again give that assurance around the marine protected areas and the marine framework. The marine protected areas are not a planning tool. They are features we are seeking to protect. The marine planning will have to adhere to that once we have the legislative part of it in place because we do not have a definition of marine protected areas in an Irish context. We want to do it specifically to an Irish context that recognises those coastal communities that we are talking about. In that regard, we are not saying that activities cannot take place in MPA zones but they may be limited to or have mitigation in place around certain species or features that we are trying to protect in those MPAs, be it the marine birds, corals or other features in the marine environment.
I give an assurance in that regard that these are interrelated and not separate processes. The work being done by the marine unit in the Department of Housing, Local Government and Heritage, is interrelated with the planning side of it and with the Department of the Environment, Climate and Communications. We are quite clear. We have gathered significant data on what we need to try and protect. As I said, the expert group report gave a large volume of information on how we do this in an Irish context. I give that assurance in relation to that.
On amendment No. 8, which relates to the European Union instruments, I mentioned in some detail integrated coastal zone management and the marine strategy framework directive, more commonly known as the marine directive. Is the Minister of State saying this Bill will have full regard to those? I am simply proposing that they be included but for some reason there seems to be a difficulty with including them. We have signed up to them. I do not want to draw this matter out. I am somewhat taken aback that the Government has a difficulty with including two simple EU instruments in the legislation. I do not quite understand that. Is it that there is repetition, which I would understand, or is it that the Minister of State does not feel it is necessary or important? I ask him to elaborate on that.
I want to be helpful and constructive. I want to put these issues to bed as much as possible now rather than introduce further amendments on Report Stage. The more clarity we have, the better. This is a democracy and this is a chamber for democratic debate. If I could have a greater understanding of the logic and rationale behind that decision, I would be happy to rest my case. I need clarity as I simply do not have the answer. That is why I am asking.
I again want to give assurances to the Senator. The recommendation is not referenced and it would not be appropriate to include it here. Section 6(5)(h) of the Bill requires the Minister to have regard to any current policy of the Government. The specific line refers to the current policy of Government relating to maritime planning and that would likely include any EU recommendation on integrated coastal zone management. I hope that gives assurance to the Senator.
I move amendment No. 8:
In page 24, between lines 20 and 21, to insert the following: “(f) European Union instruments:(i) EU Recommendation on Integrated Coastal Zone Management;
(ii) Marine Strategy Framework Directive, which offer a comprehensive and integrated approach to the protection of all European coasts and marine waters;”.
I move amendment No. 10:
In page 24, after line 38, to insert the following: “(10) Subsections (2), (3), (5), (6), (7)(a)shall, with all necessary modifications, apply to an amendment made to or a revocation of a Marine Planning Policy Statement issued under this section as those subsections apply to a marine planning policy statement issued under this section.”.
Amendments Nos. 10 and 11 are very similar. Amendment No. 10 is probably the preferential framing but I always try to provide options. This amendment addresses and corrects section 6, where there is a strange anomaly at the moment. While there are requirements for the development and approval of a marine planning policy statement, there do not seem to be the same kind of processes and checks and balances around changes to the statement thereafter. That is inconsistent. According to this amendment, amendments or revocations of marine planning policy statements would be treated in the same way as the original marine planning policy statement in how they are developed and approved by both Houses of the Oireachtas. It does not make sense to create a back door into the process whereby a marine policy planning statement goes through the process of approval by both Houses of the Oireachtas and then a Minister independently makes changes to it thereafter without those kinds of checks and balances. It is not in the spirit of things and it creates an ambiguity. Others would question whether the policy statement is an appropriate instrument at all. Some environmental NGOs have highlighted that question but for now, if there is a policy statement, at the very minimum it should be subject to proper scrutiny, in whatever form that ends up.
I welcome that the Minister of State has responded previously to some concerns around the Bill as initiated as regards amendments or revocations. Specifically, there was some shift on policy directives but the marine planning policy statement is still subject to that same loophole. Having addressed some of the concerns about policy directives, I ask that the Minister of State be consistent and ensure there is proper scrutiny for marine planning policy statements.
Amendment No. 11 is another version of my proposal in amendment No. 10. Amendment No. 18 relates to exactly the same issue but with regard to ministerial guidelines. I am proposing that there be proper oversight and a proper process in order that, when ministerial guidelines are changed, they be subject to appropriate scrutiny. Otherwise, I worry we might have a base point policy statement or guidelines wherein points that might have invited proper Oireachtas debate and scrutiny could be introduced later simply by ministerial discretion.Could the Minister of State address those issues, particularly regarding amendment No. 10 on the policy statement and amendment No. 18 in terms of guidelines?
I thank Senator Higgins for bringing these amendments to the House. I will touch on amendments Nos. 11 and 18 concerning the revocation of the ministerial guidelines and the revocation of the marine planning policy statement or proposal to revoke a marine planning policy statement. I would like greater clarity and would really like to hear the Minister of State's response.
The marine planning policy statement is a high-level document that sets out the Government's principles and priorities for maritime planning. Section 6(5) sets out a brief list of the high-level policy framework that will be taken into account when preparing this statement. However, this list is not exhaustive. Of course, any matters that inform the high-level policy document will be considered. Similarly, section 8 applies to ministerial guidelines and any amendments to those guidelines. In that regard, I will be opposing these amendments.
The Minister said these are high-level principles. Surely if high-level principles are revoked or modified, it merits the same kind of process and scrutiny given that Ministers change. We do not want to have lots of debate and discussion around what those high-level principles should be in terms of marine policy planning, be it the precautionary principle, and then for that policy statement to change without due scrutiny and engagement. Ministers and priorities change, which is why we have a process of parliamentary engagement with the Executive on these matters. I recognise it is being addressed in terms of policy directives but not I understand in terms of policy statements or guidelines.
Regarding section 10, where the Minister proposes to prepare, amend or revoke the marine planning policy statement, he or she shall publish a notice, which is among the three items the Minister needs to publish, in not less than one national newspaper inviting members of the public to make representations in writing thereon to the Minister not later than four weeks after the date of publication of the notice in the newspaper or if the notice is published in more than one such newspaper, the last date of publication at an address. The mechanism is there for members of the public to make an input into that.
As I understand it, the approval of the Oireachtas is required regarding a marine planning policy statement so, again, there is a difference between being able to give a submission as a member of the public and having that agreement between the Parliament and the Executive. Could the Minister of State provide some clarification? I believe it is the case that the approval of the Oireachtas is required regarding the initial marine planning policy statement. Again, it is around ensuring that same consistency. Could the Minister of State seek clarification so I can address that issue on Report Stage because it is very important to be consistent? As I recognise, the Minister of State has sought to be consistent in some of the other amendments in similar and parallel processes in the engagement in the Dáil. Perhaps we can engage on this on Report Stage. I will withdraw the amendment and reserve the right to introduce it on Report Stage.
I move amendment No. 12:
In page 25, to delete lines 6 to 12 and substitute the following: “(b) stating that a copy of the proposed statement, amendment or revocation may be inspected on a website of the Government, and available for inspection at a local authority planning office, and
(c) inviting members of the public and prescribed bodies as follows: a local, regional or planning authority, the Commissioners of Public Works (OPW) and a body referred to in Article 28 or 137 of the Planning and Development Regulations 2001 (as amended), to make representations in writing thereon to the Minister, not later than six weeks after the date of publication of the notice in the newspaper (or, if the notice is published in more than one such newspaper, the last date of publication), at an address (which may be an electronic address) specified in the notice.”.
At subsection (b) of my amendment I have added the phrase "and available for inspection at a local authority planing office". I am sure the Minister of State and all of us know the importance of a local planning office. It is a reference point for communities in terms of planning. It is where many planning issues are co-ordinated and put on public display. Other Government agencies and Departments use a local planning office as a hub for information on planning issues. That is right. I always try to bring everything back to local and community matters. They are the natural planning authorities in the 31 local authority areas and, therefore, it is not too much to stipulate "and available for inspection at a local authority planning office".
The second part of my amendment reads: "(c) inviting members of the public and prescribed bodies as follows: a local, regional or planning authority, the Commissioners of Public Works (OPW)". The Minister of State will know what prescribed bodies means. It was important that I included the OPW in the list because we underestimate the work of the OPW in terms of maritime development. For many years I was a director of the Dún Laoghaire Harbour Company and we had a very close working arrangement with the OPW. Indeed, the Office of Public Works ran and administered the harbour very successfully for many years.
My amendment continues:
..and a body referred to in Article 28 or 137 of the Planning and Development Regulations 2001 (as amended), to make representations in writing thereon to the Minister, not later than six weeks after the date of publication of the notice in the newspaper (or, if the notice is published in more than one such newspaper, the last date of publication), at an address (which may be an electronic address) specified in the notice.
There has been much talk about engagement and I know the Minister of State is committed to that. It is important that we have public participation, which has been echoed by everything he has said about heritage and planning. That is right and we, as a House, are committed to that. My amendment is very simple, obvious and practical and I hope it has the support of the Minister of State.
My amendment No. 13 has been grouped with amendment No. 12. I agree with everything Senator Boyhan said with the slight exception that I do not believe six weeks is adequate and I do not believe the four weeks that is currently stipulated in the Bill is adequate. Let us bear in mind that a marine planning policy statement, MPPS, as the Minister of State said, has high-level principles. It is quite wide-ranging and has significant implications. There may well be a requirement for a strategic environmental assessment, SEA, and certainly an appropriate assessment, I would imagine, of the implications, any significant changes or significant matters in an MPPS. The four-week timeframe that we might apply to a building is just not appropriate for something so significant and it creates an inequality of arms for the public.
Again, people say everybody is able to go in through these public processes. They are there and it is important that everybody is able to go in. It is part of the public's democratic right. Also, that is why prescribed bodies and their expertise are important. It should not be that this is only available to those who can afford to do so. We know that companies may have a large number of full-time staff and be very well resourced. These for-profit organisations will be in a position to produce and turn things around very quickly. For the public to engage in something so significant and wide as an NPPS will take time because, for many people, this is an extra thing that they do but they have an important insight to give. I am asking that the Minister of State would make it 16 weeks. Such a period would allow for the conduct of SEAs or AAs and the knowledge that comes out of those. It would also allow for members of the public to conduct their own research and, perhaps, agree positions. If, for example, we have coastal communities that are trying to work together or respond to something significant, it would allow for better decision-making and engagement by those communities, which would then engage with the process. If the Minister of State accepts Senator Boyhan's amendment, which involves a six-week period, I will bow to that because there is so much else that is good in his amendment. However, I urge the Minister of State to consider the fact that a period four weeks is deeply inadequate in the context of this process.
I hear what Senator Higgins is saying. Clearly, four weeks is not enough. I have to remind Senators and the Minister of State of something, and it is not because he is a member of the Green Party. I know many of his colleagues and his party's counsellors and I am aware that they became politicised through their advocacy for planning, environmental and community issues. They were to the fore on that. There are six or seven of the Minister of State's party colleagues on my local county council. That is testimony to their work, commitment and advocacy on the environment, especially the marine environment. All of them had track records in community and environmental advocacy initiatives before they were ever elected to the council. It followed that they then got elected, which is a fantastic achievement and I have been talking to some of them.
While a period of four weeks is proposed in the Bill, I am suggesting a moderate increase of two weeks in order to make it six. Four weeks is very tight and I am suggesting six. It would be fantastic to have a 16-week period but that will not happen; it is an increase of 12 more than I had am suggesting. It would be unreasonable if a modest increase from four weeks to six weeks was not facilitated. I know that it is the end of the year, that the Minister of State is completing the cycle of this Bill and that he does not want to go back into the Dáil and bring in changes but that should not limit the scope for getting this right. It is two weeks of additional time to allow the citizens that the Minister of State and I represent to prepare. I am suggesting six weeks with a heavy heart, but I am trying to be practical and realistic and more importantly I am trying to be pragmatic.
I thank both Senators and agree with them on public consultation and how hugely important it is. Senator Boyhan and I have spoken on a number of occasions in this Chamber about the importance of good, robust public engagement and how that brings about better outcomes for all parties. That is something we agree on. However, I consider that much of what is proposed in these amendments would be more appropriately addressed in secondary legislation. When the Bill is passed, my Department will commence the preparation of regulations, which will include further detail on public consultation. This will also include identifying prescribed bodies for specific functions of maritime planning. This is similar to the Planning and Development Regulations 2001, as amended, which support the 2000 Act and set out the detail for prescribed bodies and timeframes.
I would again take the opportunity to highlight that the Department, throughout the process of developing the current marine planning policy statement and the NMPF, has consistently engaged early and often with all bodies which have a role to play, including the environmental NGOs that are hugely significant and important to us, relevant public sector bodies, and many more. This is the correct way to develop policy rather than by means of the top-down approach of old. The proposal to increase the public consultation period for the marine planning policy statement from four weeks to 16 weeks is considered excessive. We have a continued and significant engagement with all parties as well as the mechanism of online engagement. There are many mechanisms that we have learned about, particularly during Covid, which have allowed us to have good and robust engagement with all sectors and with NGOs, which are significant in all of this as I said.
Senator Higgins referred to public research in coastal communities and to having parity and a level playing field.It is embedded in the Aarhus Convention and many national NGOs particularly have developed a very good means of engagement both at a political level and with the officials on this particular piece of legislation. In that regard, therefore, I will not be accepting these amendments.
I must say I am disappointed and will be calling a vote on this because I believe it is a very important principle.
The Minister of State spoke about the Aarhus Convention, under which we know the public has a right to participate effectively - "effectively" is the key word - and in a reasonable and timely manner in the decision-making processes with regard to all environmental, planning and sustainable development matters. Public authorities and State agencies should enable the public to comment in a reasonable time, for example, on proposals and projects affecting the environment or plans or programmes relating to the environment by the Government. The outcome of the public participation process should be taken into consideration in all decision-making. This is the backbone of the Aarhus Convention that is so much talked about.
When we come to actually putting in the votes and legislation to support that, however, we seem to back off. Everyone is talking about the Aarhus Convention and decision-making and engagement but somehow it does not go further in terms of the legislation. It is important, therefore, as the Minister of State rightly said, that a public participation process should take into consideration the decision-making process. We need to facilitate information to be made freely accessible and available to members of the public particularly but also the NGOs, environmental networks and all the other prescribed environmental bodies with which the Minister of State will be very familiar, and which have high hopes for Government and particularly for him and the Minister responsible for driving this legislation through. There is a great expectation that we here would stand in solidarity with people. It is important, therefore, that we have participation in the decision-making process. People need a reasonable amount of time, however, which is what we are talking about here. As the Minister of State knows, the four-week period is only part of this amendment. It is a very important amendment. I believe it will potentially be the subject of litigation and will possibly be referred further afield for some determination and argument. I think it right that we have on the record where people stand regarding this key amendment because it is an important one.
I take it from the Minister of State's summary that he is suggesting, and I am open to correction so correct me if I am wrong, that he would see a possible situation that there might be secondary legislation for NGOs and other organisations affected, and in the secondary legislation, the Department and his officials might be mindful of a possible six-week period. I am only saying six weeks because I suggested that. It may be longer; I do not know. I need some reassurances on that, however. Is it being suggested that it would be in secondary legislation? If that is the case, is the Minister of State committed? The Green Party is in government. As I keep saying, it is an important aspect of Government. That is one of the key issues. Green Party members are unashamedly environmentalists and are very proactive. The Minister of State personally and his party are very proactive with regard to the Aarhus Convention so we want to send a message clearly here. Am I right in saying the Minister of State is in favour of extending the four-week period possibly out to six weeks and perhaps even more? Is that the direction the Minister of State feels he would like to go? Would he be absolutely committed to driving that in terms of his own agenda within the Department?
The fact, which has been very well articulated, is that the Aarhus Convention requires that there be appropriate time to the scale of the decision and, again, this is not a small environmental decision in terms of marine planning policies. That is a very substantial aspect of environmental decision-making. I believe the timeframe is disproportionately short. The Minister of State may not wish to embrace my 16 weeks but I certainly suggest that a further amount would be considered. I urge the Minister of State to consider that.
As I said, we know Ireland is often reviewed under the Aarhus Convention as falling a little bit short and it has been challenged on that matter. Therefore, simply in terms of best practice of the precautionary principle, the Minister of State would be advised to try to ensure it ends up that we have a week too long because that is less of a problem than if it turns out we have a week too short in the timeframes that are required.It is important that we have an adequate timeframe.
There have been references to consultations with non-governmental organisations, civil society and all of that. However, it has happened in an amorphous way. All of those groups have been part of a large process to come up with the Bill. We are looking to the processes under the Bill. Those are the process that will come next. We are not talking about how this legislation was arrived at but about what happens on an ongoing basis. Some relevant organisations were not mentioned as prescribed bodies, as we discussed earlier. I do not see where those organisations will be included. Perhaps there will be supplemental legislation and statutory instruments in which those bodies will be named. However, I do not know if those bodies will be anywhere near any of the rooms where anything is being decided.
As Senator Cummins articulately put it, all of these organisations which have a key voice and are key environmental actors are not a substitute for the public. Each individual member of the public should have a say. That includes somebody who may never have thought about marine planning but who knows a section of coast and has a view on a particular species, who cares about birds, for example, or some other specific aspect of biodiversity and knows that the place of such a species might be affected by a shift or change in its circumstances or by a particular marine planning policy statement. Such people may have an important input. They may wish to talk to their neighbours. They may then wish to gather. It will not only be organisations that already exist that will wish to have an input, although the input of such organisations is important because they comprise a depth of expertise. It is also important that each individual has adequate time to engage with the process on an equal footing.
I know the Minister of State has referred to that idea and I am sure he is committed to it. However, the timeframe does not allow for it. Four weeks is too little. It is hard enough to submit an opinion about a specific building within four weeks. Four weeks to engage around an entire marine planning policy is a very tight window of time. If the Minister of State will not accept our amendments, I encourage him to consider coming back to us on Report Stage with an adjustment to that time period. I do not know whether he can be flexible when a period of four weeks is written in the legislation. I do not know what can be done about that. However, if there is any scope for the Minister of State to extend or supplement that period within other aspects of the legislation, even through pre-consultation or other means, I encourage him to do so. I worry that the timeframe is inadequate.
It is important to say that any periods of time we are adding to this process has implications. We all say we are in favour of meeting our targets in terms of wind energy, for example. However, this amendment, as is the case with many of the proposed amendments, will add time to the process. We must be realistic with the public and tell them that will have a tangible impact on our ability to meet our targets. If that is what is being proposed, I think we need to be honest and say that is what is being proposed. I have a real fear that if we keep adding time to the process, it will have negative consequences. I accept the bona fides of Senators Boyhan and Higgins in terms of what they are trying to achieve but we must also be honest about the implications of the changes they have proposed.
I had another point on which I am now drawing a blank. Perhaps other Senators will be able to jog my memory when they return.
I do not know if I will be able to jog Senator Cummins's memory. I would say that if we are being honest, we must be honest and factual about what has delayed this process. The failure to get the process right and deliver it properly has often contributed to delays. In the area of forestry, we know the issue was that Ireland was found not to have done proper environmental impact assessments and used other environmental tools. Those tools and obligations were there but Ireland did not use those tools or meet those obligations. That is what led to the position whereby it was being reviewed and whereby the Forestry Appeals Commission was getting a number of appeals. As the then Minister with responsibility for agriculture acknowledged in this Chamber, the European Union rightly called Ireland out for not applying a proper process at the beginning. This is a case of the more haste, the less speed. If we get the process right at the beginning, we will get better outcomes, people will be happier with the decisions and we get more buy-in from people on major shifts in marine policy, which we may have.
Similarly, judicial reviews only review whether a process was done properly. They are not differences of opinion about a judgment but challenges to whether the proper process was conducted. An Bord Pleanála consistently loses judicial reviews because it does not apply the proper process. It is constantly found to have disregarded an EU directive here, to have glossed over an obligation there or to have skipped a stage in the consultative process somewhere else. We are trying to help in order that we have better and clearer planning that anticipates the issues that will arise and where people will get it right earlier. That is the whole issue and the goal. Ultimately, that will speed up the making of good decisions that stand.
I want to bring the focus back to the section. We are dealing with the marine planning policy statement. I take on board what Senator Cummins said. I know he is committed to the maritime area. He lives on the wonderful Waterford coast. I live in Dún Laoghaire, one of the finest harbours in Europe, if not in the world.
It is truly an amazing place, as anyone living in the area will say. As a former councillor, Senator Cummins knows about public participation. He advocates it strongly when we discuss county development plans, local government, regional government and national government. I have no doubt everyone here understand the importance of public participation. We would not be successful politicians if we did not engage and advocate strongly with our electorate regarding public participation in decision making. For this reason, I do not know what the big problem is.
Amendment No. 12 proposes to include a new paragraph (b): "stating that a copy of the proposed statement, amendment or revocation may be inspected on a website of the Government, and available for inspection at a local authority planning office". Surely the Minister of State does not have a problem with that. Is he, a Minister in the Department of Housing, Local Government and Heritage, going to tell me there is a problem with that? Let me break it down and simplify it. All that is being requested in paragraph (b) is that copies be available for inspection at the statutory local planning offices which have planning hubs and a mechanism to facilitate the public display of proposals. I want to hear the Minister of State tell me if he is against that.
The amendment also proposes to include a new paragraph (c) providing for the invitation of "members of the public and prescribed bodies as follows: a local, regional or planning authority." Those are arms of the State. Paragraph (c) also provides for the invitation of the Office of Public Works. We have a designated Minister of State with responsibility for the OPW. I am surprised. I would say the Minister of State would be shocked if he thought we were excluding the OPW. Paragraph (c) further provides for the invitation of a body referred to in the prescribed bodies and for a period of six weeks for the making of representations. The Bill, as drafted, provides for four weeks but I propose it be six weeks. An additional two weeks is not a long time.
I would like to think we could put this Bill to bed today rather than defer it. However, I am happy to come to the House on Friday and tease this matter out further. Let me break the amendment down into three simple asks. It is about the local authorities, the Office of Public Works and moving the time allowed for the making of representations from four to six weeks. Taking each segment of that, will the Minister of State tell us with what aspect of that proposal does he have a difficulty?
He cannot take little bits of it to suit the agenda of the day. I am sure the Minister of State will reply on that.
I wanted to make one other point regarding the Senator's original comments. He said he was aware this legislation would be challenged in the courts. That is very disappointing if that is the case.Senator Boyhan is aware that already before we as Oireachtas Members pass legislation, there are already bodies and people lining up to challenge the legislation in the court. That is a disappointing situation if that is in fact that the case. Senator Boyhan put it on the record of the House that he is aware that this is the case. I am saying here that it is disappointing that we as legislators are not being given the space to pass legislation before people are lining up to challenge it in the courts.
This is about the amendment. This is a reference to how my colleague suggested that it was going to be considered. Everything is going to be considered. Indeed, I might even consider it myself. Let us not deal with someone outside the room. Let us take it inside the room. I may myself decide to do so, if necessary, as is the right of a citizen. Let us not shake our heads because that is the right of a citizen.
For clarification, I do not take an item of legislation and break it up. That is why I had subsections (b) and (c). I broke up the points and I did not put them all in one amendment. I clearly set them out. The first one states "available for inspection at local authority planning office". That is simple for anyone to read and is in my proposed section 6(10)(b). As subsection (c) is another section, this is not all a conglomerated effort. However, we are having a healthy debate here and we are having banter. I am a democrat and will I go along with the decision about this amendment. The bottom line is that I would like to think that the Minister of State could support this amendment. If he does not, I will call for a roll call vote. This is because this is too important to have bits of hearsay and then everyone goes out of the room and talks about the Aarhus Convention. Let us call a spade a spade. We are either for it and we support it, or we do not.
I would like to again address the Senators' queries and their concerns about the issue of public consultation. It is our view that this could be addressed by secondary legislation via regulations. That is what we are saying. We will commence the preparation of regulations which will include, as I stated in the opening statement on this particular amendment, detail on public consultation. What is in the legislation is there as a minimum. It is not limited to that. I am giving assurance to the Members present this afternoon that within the regulations, details on further public consultation can be clarified and teased out in relation to some of the points raised by Senators Boyhan and Higgins.
We have had significant challenges around public consultation over the last 18 months. We all accept that, particularly in and around Covid-19. That is not to say, however, that public bodies have not responded positively. These include Departments across Government. First, the Government was formed during Covid-19. Many public consultations have taken place online and in other spaces. Our city and county development plans have largely been led through online portals. They have led to huge engagement from members of the public in prescribed time periods. We should take the lessons from that. Many members of the public and the organisations that have been part of those processes have found them useful. There is much to be gained from that, not just from time periods for engagement, but from how we engage. That is critically important here. It is important that we move away - as Senator Boyhan and I have discussed on a number of occasions - from linear consultation to more participative and inclusive methodologies, whether at local level, or in high-level legislative items or policy, such as the marine planning policy statement that we are talking about here this afternoon. I want to give that assurance to the Senators.
I know that Senator Boyhan will press this amendment. However, again, we consider that the detail on public consultation should be included around the drafting of regulations. The Aarhus Convention has been mentioned on a number of occasions here. It is significant and important from the point of view of people's engagement, communities’ engagement, access to environmental information and access to environmental justice. The Government takes this seriously.
I move amendment No. 18:
In page 25, between lines 37 and 38, to insert the following: “(9) Subsections (5), (6), (7) and (8)shall, with all necessary modifications, apply to an amendment made to or a revocation of a Ministerial Guidelines issued under this section as those subsections apply to Ministerial Guidelines issued under this section.”.
I move amendment No. 19:
In page 26, between lines 3 and 4, to insert the following:“(3) The Minister shall ensure any new policy directives, or revocation or amendment of policy directives made under this section, shall first be subject to a screening determination for both Strategic Environmental Assessment and Appropriate Assessment, and such assessments shall be conducted where the screening concludes they are required.”.
This amendment ensures that where there are amendments and revocations of original policy directives, a SEA or AA will be required in respect. There may be cases where new SEAs are required.That was the issue I hoped to highlight in this. In the interests of time management, I will move past it for now unless the Minister of State wishes to comment on the matter.
I move amendment No. 21:
In page 27, to delete lines 27 to 36.
I am open to clarification on this. I had a concern that, where approvals were granted for applications before new subsections were in place, some such approvals may have been granted under previous regimes which did not have many of the considerations we are putting into place in this regime. I understand there is a desire to maintain that but I worry that inappropriate approvals may have been granted and may effectively continue under this carve-out.
I am also conscious of some of the activities and usages involved. We have had situations where people have been granted exploration licences and been approved for certain activities. Based on that previous approval, they claim, I would say incorrectly, legitimate expectations of continuance and so forth. I want to give the State as much scope as possible to ensure best practice. If best practice required the revocation of an approval which turned out to be contrary to our overarching goals, I want to make sure that scope is there. I do not know if the Minister of State can comment again. I am uncertain on this and may bring forward a more detailed amendment on Report Stage on it but I wanted to check the scope was still there and we did not have situations where we are not told we are tied in to bad practices that may have received approval under a previous regime.
While I appreciate the motivation behind the amendment, section 226 of the Act refers to the local authority development on the foreshore. This amendment would effectively nullify existing permissions for local authority development and have significant consequences for the delivery of essential public infrastructure such as wastewater treatment facilities. I am certain the Senator would agree that we have to move on such infrastructure. I oppose the amendment.
I will not press the amendment but suggest it is important there might need to be a review of some of them. I appreciate we do not want approvals falling off a cliff but we also might need to ensure, as part of that engagement with local authorities we have discussed at other points, that there is a review. Something that might have responded to a need identified by a local authority now has to be considered with regard to its intersection with multiple other needs. The issue can be teased out and I do not want to create an inadvertent cliff effect in terms of existing approvals but it is important that we looked at the mechanisms in local authorities for reviewing previous uses. We know it is an area where practice, learning and information available evolve all the time
I move amendment No. 22:
In page 29, between lines 8 and 9, to insert the following: “(b) to contribute to the preservation, protection and improvement of the environment, including resilience to climate change impacts,”.
There is a real omission here. I do not really understand why these factors are not reflected in the objectives of marine spatial plans. I propose to insert that a key goal of our marine spatial plans is "to contribute to the preservation, protection and improvement of the environment, including resilience to climate change impacts,”. That should be there already. It is important that when we talk about maritime spatial plans we name and centre the preservation, protection and improvement of the environment as something that needs to be addressed.
We talk about achieving ecological, economic and social priorities. We can use a very extractive and utilitarian approach in relation to our strategic planning. Sometimes it is not about usages or taking and using but about protecting, preserving, supporting and creating resilience. I recognise that the ecosystem-based approach is there "for the purpose of supporting proper planning and sustainable maritime usages in the maritime area" but it is all about use and what nature will do for us and how we can get it to deliver for us.
I recall the Conference of the Parties in Madrid, the one before Glasgow, which was more disappointing than Glasgow in some ways. There was an idea that nature must almost have to audition for everything: should we consider preserving a bit of seaweed? Only if we can designate exactly its use and purpose. Even whales were considered in terms of how much carbon one can store in one. Our spatial plans would benefit and would be more complementary to the marine protection regime we hope to put in place if we made it clear that our marine spatial plan is thinking about the marine space. I reserve the right to bring in an amendment on Report Stage. There are strategic development goals on life under water. There are things that are just good and important that we should plan for and protect that are not necessarily usages. Perhaps it is a philosophical point but it is important. Our relationship with nature affects how we plan for nature. Therefore, I hope the Minister of State will consider amendment No. 22. I will not move amendment No. 23.
On amendment No. 24, I recognise that these are issues that were already debated at length in the Dáil. This is about trying to ensure that the MSP directive would be more centred in the process and that we would make visible the considerations around the MSP directive. They are in the background but it might be advisable and useful for the State to make it clear in the process.
I am speaking to amendments Nos. 22 and 24, since the Senator withdrew No. 23. I thank her for making those significant points about nature. I appreciate that.
Amendment No. 22 proposes to cherry pick elements of Article 5(2) of the MSP directive. This is contrary to the directive. Article 3 of the MSP directive defines maritime spatial planning as “a process by which the relevant Member State’s authorities analyse and organise human activities in marine areas to achieve ecological, economic and social objectives”. The Senator referred to that. Article 5 requires member states to consider economic, social and environmental aspects to support sustainable development and growth in the maritime sector. The preservation, protection and improvement of the marine environment, although hugely significant, is not the only objective to be pursued. The Bill has been crafted to ensure that it transposes the directive consistently recognising the need to achieve ecological, economic and social priorities. I would invite the Senator to read through the NMPF and she will see that the first section is dedicated to ocean health. The first 21 marine planning policies of the 80 odd policies instruct decision makers to have regard to ocean health.If we do not have a healthy marine environment everyone suffers, including those making a living from the sea. The points were well made by the Senator in relation to COP25 and while there were significant disappointments with regard to COP26, there were also significant gains, particularly with regard to the marine area. The Irish Government participated virtually in COP15 on biodiversity in Kunming in China. We will be participating again next year with a suite of policies and our objectives around the marine area and marine protection will ensure that we have the high-level ambition that we consistently speak about. The complementarity to which the Senator refers will be embedded in all of the work we do and within that, the adherence to the sustainable development goals is something of which we are critically aware. In particular, we are focused on sustainable development goal No.17 which refers to the partnerships for the goals, which is what we have achieved in our discussions and deliberations here this afternoon. We are very clear that this is a partnership approach, with Government leading on policy but also working with the State and semi-State sector, industry and NGOs to ensure that we have a thriving blue economy and thriving nature and biodiversity protection in our marine space. This is something of which we are consistently mindful in this legislation and in the work we are doing on marine protection. I am really delighted that the Senator has raised it here this afternoon.
Specifically with regard to amendment No. 24, I am confident that the wording of Article 16(5) adequately addressed the requirements of the directive. I remind the Members that the directive states that while it is appropriate for the European Union to provide a framework for maritime spatial planning, member states remain responsible and competent for designing and determining the format and content of such plans. Any marine spatial plans or designated maritime area plans must meet the requirements of the national marine planning framework and in so doing the requirements of the Maritime Spatial Planning Directive. While I appreciate the spirit of these amendments, I am confident that all of these aspects have already been covered in the Bill and, therefore, I am opposing these two amendments.
Again, I would note the subtle difference between maritime activities and maritime usages. The Minister of State read from the directive itself and maritime activity is a bit different from maritime usages. I appreciate his engagement on this and his good faith on the matter but I will press this amendment because it is important to put down a marker. Again, I thank the Minister of State for referencing those points of concern to me, including the sustainable development goals. Indeed, that is something I would have liked to see in our Climate Action and Low Carbon Development (Amendment) Bill as well. It would be no harm to put the sustainable development goals into more of our legislation because it copper fastens them and in that way we are not reliant to the same extent on the goodwill of individual Ministers in their consistency and engagement on it but so be it.
I move amendment No. 25:
In page 29, line 34, after “Articles” to insert “7, 8, 9,”
Again, I was just trying things down with regard to Articles 7, 8 and 9 of the Maritime Spatial Planning Directive but we have had a good engagement on that matter and in that context, I will withdraw amendment No. 25.
I move amendment No. 26:
In page 30, to delete lines 1 to 9 and substitute the following: “(2) Not later than one month following the passing of this Act, the Minister shall commence and carry out a review of the existing NMPF to—(a) review its compliance with the MSP Directive,(3) Notwithstanding anything elsewhere in this Act, no Maritime Area Consent or Development Consent can be granted pending the conclusion of the review under subsection (2).
(b) provide for interim protections for the marine environment, and
(c) in respect of the inclusion of relevant projects in the existing NMPF—(i) to specifically review the compatibility of the inclusion of the relevant projects in the existing NMPF with the requirements of the MSP Directive,
(ii) to address consequences arising from the delayed implementation of marine protected areas and adequate designation of sites under the Birds Directive and Habitats Directive.
(4) The Minister shall conduct a public consultation as part of the review and shall also consult with at least with the following organisations:(a) the Marine Institute;(5) The Minister shall assess the compliance of the existing NMPF including in particular how the existing NMPF complies with the following articles of the MSP Directive:
(b) the Environmental Protection Agency;
(c) the Heritage Council;
(d) Fáilte Ireland;
(e) An Taisce, the National Trust for Ireland;
(f) Sustainable Water Network Ireland.(a) Article 1;(6) The Minister shall consider the implications of at least the following assessments in reviewing the adequacy and compliance of the existing NMPF and the need to provide for interim protection areas, pending the designation of further sites as marine protected areas under Article 13(4) of Directive 2008/56/EC:
(b) Article 4(4);
(c) Article 4(5);
(d) Article 5(1);
(e) Article 5(2);
(f) Article 6;
(g) Article 8(1);
(h) Article 8(2);
(i) Article 10;
(j) Article 11;
(k) the requirements of recital 2 relating to the overarching constraint that development and decision making in marine environment has to be done whilst achieving good environmental status as set out in Directive 2008/56/EC.(a) Article 17, 10 and 11 of the Maritime Strategy Framework Directive;(7) The Minister shall detail his detailed reasons and rationale for amending or not amending the existing NMPF including in light of the criteria and considerations above.”.
(b) Article 16 and 17 of the Habitats Directive;
(c) Article 10 of the Birds Directive;
(d) any data gaps and deficiencies in the assessments highlighted in the consultation responses to paragraphs (a)to (c)above;
(e) the latest Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) report, and its relevance and conclusions for marine biodiversity and relevant avian species including native and migratory bird species relevant for the area of the MSP;
(f) migratory and foraging pathways for marine biodiversity and relevant avian species including native and migratory bird species, to and from, and through the MSP;
(g) outstanding and or inadequate designations in the marine environment or in coastal sites under both the Birds and Habitats Directive;
(h) the requirements for the strict protection of species and habitats listed under Annex IV of the Habitats Directive;
(i) take account of the effect of climate change on patterns of migration; and
(j) take a precautionary approach to data gaps and deficiencies in respect of ecological surveys in respect of the MSP.
The Minister of State is aware that there will be a review of the national marine planning framework within the next six years. We want the review to be sooner than that. The Department and the Ministers will know this. Can the Minister of State tell us when the review will happen? We would like to see it happen within 12 months.
This is the question of the review which we discussed earlier. Six years is too far away for a review. The Minister of State indicated, and maybe he will confirm, that his intention is to have a review within two years. This amendment is saying that, ideally, it should be sooner than two years and it should be as soon as possible. This is the precautionary principle and the idea that while a full review should ideally be commenced and carried out within the immediate period, there are a couple of key areas of high concern which should be reviewed, even pending a fuller review. One is compliance with the maritime spatial planning directive. We have quoted that directive back and forth to each other. The Minister of State can hear the real concern about the detail of that directive and how that is reflected in these processes. It is not enough for it to be there in the background. It is a matter of making sure that the processes under our national marine planning framework are fit for purpose and fully compliant with the marine spatial planning directive. I have made my case about interim protections.
The Minister of State has expressed positive sentiments that agree with me about many matters but I have not really had assurance about what happens in the meantime. New research has recently discovered new coral reef areas and shark habitats. How do we protect them and ensure that nothing happens to them, pending a proper review or marine protected areas being designated? The projects under the current national marine planning framework need to be consistent with the marine spatial planning directive. This is all in the context of the delayed implementation of marine protected areas. I should point out that marine protected areas are not the only thing that we are waiting on. There is also the question of sites designated under the birds and habitats directives. Moving from sea to land, there are many areas designated as special areas of conservation. I urge the Minister of State, who has the power to designate special areas of conservation, to move more rapidly on this if it is to happen within the term of this Government. All of these processes are in play. This is a set of urgent reviews to make sure that we do no harm in the interim.
What was the grouping?
Amendment No. 26 proposes that a review of the national marine planning framework be commenced within one year of enactment of this legislation.These proposed amendments contain deficiencies. These include providing for particular pillars of sustainable development and sectors to the exclusion of others, and thus upsetting the neutrality of the legislation, requiring compliance with very specific and selected provisions of directives other than the MSP directive - some of which are already covered elsewhere in the Bill, such as the birds and habitats directives, as referenced by the Senator - and other matters outside of the requirements of the MSP directive, which this Bill is giving effect to.
It appears that the intention is to up-end a plan that has only been adopted and is not properly embedded. This simply is not acceptable to the Government. I understand that the Senator is not happy with the NMPF but it is Ireland's national marine plan, the first of a series of interconnected and related spatial plans for the maritime area. We will simply not go back four years to the beginning of the process, holding off progress on all aspects of the NMPF. This Government takes marine management seriously and we take decarbonisation seriously. We need to move forward with this Bill.
The requirement in the Bill is that the review will be carried out within six years but it is our intention that we will carry out this review sooner, particularly for the first national maritime spatial plan. Now we must focus our resources on getting the new system up and running. I am happy that the existing NMPF underpins this system appropriately in its current form.
In terms of the detail of the proposed amendment, it has the effect that no maritime area consents or development consents can be granted pending the conclusion of the aforementioned review. This would simply have the effect of rendering significant parts of the Bill inoperable for a period of time.
This proposal, in itself, is extremely concerning as it would also mean that where one is currently permitted to obtain planning permission on the foreshore under Part 15 of the Planning Act, this right would effectively be removed. Just to be clear, under this amendment, no harbours could be expanded, no boathouses constructed, or no recreational jetties or pontoons erected pending a review of a national plan that would only be six months old.
As to the bodies that should be consulted during the proposed review, many of these bodies were already central to the production of the NMPF and sat on the marine advisory group for the four-year period in which the plan was being prepared. The NMPF has, I should note for the record, been broadly and widely welcomed by the members of the advisory group and further afield.
I appreciate the Senators' intention to ensure participation of certain organisations. This is why public participation, including the input of relevant organisations, is stitched into the very formulation of maritime spatial plans, ensuring that relevant views are taken into account throughout the entire process.
As regards specific points raised by Senator Warfield but particularly by Senator Higgins, they referenced the habitats and birds directives and the Wildlife (Amendment) Act. Some of those will be brought forward again early next year. There are also mechanisms by which certain species can be afforded protection under the Wildlife Act and those can be given consideration. We are certainly of the view that these processes are fully compliant with the NMPF directive. In that regard, I will not be accepting this amendment.
I will address a couple of the other amendments so.
In terms of the amendment which the Minister of State has replied to, there is one aspect which I neglected to mention and which it would be useful to get a response to. There has been a concern about whether there was adequate and robust sensitivity mapping in the development of the current NMPF. If I was satisfied that that had been adequate these concerns would not arise but the opportunity was missed in that development for doing more sensitivity mapping.
One area that I specifically wanted to highlight is the issue of the migratory and foraging pathways in terms of marine biodiversity. I am always concerned. The studies of cetacean sonar, for example, has been an area of real importance. The Minister of State will be aware of the research on that matter.
The migratory patterns are very significant and we know that there has not been adequate consideration. In a separate debate, which we do not have to have, we have seen the issues arising at Annacotty Weir in terms of the migratory patterns of marine life. I will not make the Minister of State answer on the Annacotty Weir right now but it relates to that same issue of the migratory patterns. Is the Minister of State satisfied that those matters are properly being captured in the framework as it is? Amendment No. 29 proposes that the review under the NMPF be carried out in accordance with section 17(3), which provides for the review of the MSP six years after it is published. It is basically trying to ensure that the review of the NMPF be carried out in accordance with the same criteria as set out in section 17(3) for the review of an MSP.
I again thank the Senator for her contribution. Going back to the point on marine protected areas, this Bill does not legislate for this. Marine protected areas are the subject of separate legislation, as we have discussed previously. There is no requirement to conflate the MSP directive with the marine strategy framework directive in one piece of enabling legislation. The latest MSP global international guide on maritime spatial planning, prepared by UNESCO and the EU Commission and published this year, reinforces the distinction between the two maritime governance tools. This is a national plan and further iterations of it will cover the localised issues the Senator has raised.
Migratory species have been, and are being, covered in the marine protected areas, both in the legislation and in how we design the MPAs. We are conscious of species such as basking sharks, which migrate from the North Sea to the west coast of Ireland and how they are protected as a species when they enter Irish waters. There will be a clear level of protection there for iconic species like that but also other species that migrate.
I appreciate that these will be part of the marine protected areas but my concern is about the marine planning framework, especially with regard to annual or biannual migration patterns. They will not wait for the marine protected areas to be declared. Migration patterns cannot be damaged or disrupted. It is one of those areas where that kind of interim measure of protection is a concern. While it is fine that this issue might come under the marine protected areas, is the Minister of State confident that, until we have them, there are measures within the marine planning framework that will give due and appropriate consideration to this factor? Will it be considered in the granting of MACs and the drawing up of other things or is that something the Minister of State intends to address in guidelines?
There are several layers of protection there. If the Senator wants to consider it in terms of an interim measure we can give and are giving active consideration to statutory instruments, particularly around species like the basking shark, in order to include them as a listed species under the Wildlife Act. There is a possibility of using that mechanism to protect specific species across Irish waters.
I move amendment No. 30:
In page 30, between lines 9 and 10, to insert the following: “(3) Within two months following enactment, the Minister shall implement a process to provide for interim protection in the marine environment of the existing NMPF to ensure the designation of marine protected areas in accordance with Article 13(4) of Directive 2008/56/EC is not compromised and notwithstanding anything elsewhere in this Act no Maritime Area Consent or Development Consent shall be granted until that process is completed.”.
This was touched on in the previous contributions. Separate to this Bill is the marine protected areas legislation. We think such areas should be designated in parallel with the planning regime. It would be better if we knew what a marine protected area was or was not, for example, when it comes to wind developments.That is not the case and we are not going to get that marine protection legislation for another two years or so. In the meantime, what measures is the Government is taking that go above and beyond the existing protections - the existing planning schemes - to ensure we do not have more biodiversity loss in our marine environment? We think more protections are needed and we have put forward amendment No. 30 in this respect so I would welcome the Minister of State's response. I know Senator Higgins co-signed this amendment.
Amendment No. 2 probably has better wording in respect of this but, unfortunately, was not deemed to be in order. I know there are imperfections in the wording of amendment No. 30 but I think the principle is really important, namely, that there would be a process to provide for interim protections. This is all about what happens in between. Simply stating that we are happy with this process and will be happy with the next process regarding the marine protected areas is fine but the space is that space in between. While I understand the Minister of State's personal interest in and engagement in all of these areas, I am still not satisfied as to what the interim measures may be. Perhaps it is not a pause, as some of our amendments have looked to, that is, that there would be a pause pending the proper things being put in place. Certainly there should be interim protections to ensure that the designation the Minister of State hopes to do in terms of marine protected areas is not compromised. I will be really frank and this is not so much on the Minister but rather everybody who has had a role in this area. The delays in designating special areas of conservation in Ireland have led to areas becoming degraded and damaged. In respect of the delays in marine protection area designation and the failure to achieve the very basic 10% we were meant to achieve last year, we lose ground, space and opportunities. Biodiversity loss can be significant. The kind of things that may be allowed for under the marine planning framework have real impacts. I reserve the right to introduce an amendment on this issue on Report Stage. I will certainly engage with the Minister of State regarding the regulations on this. It involves things like the kind of surveys done regarding maritime usages and the kind of activities around even applications for maritime usages. All kinds of things may happen.
Again, what I am trying to suggest here is that the Minister of State should put interim measures in place to ensure that the position our maritime areas are in at the point when our marine protected areas are introduced does not in any way deteriorate between this moment and when that legislation comes in. This is where the interim protections come in. Maritime area consents, which, again, allow for different maritime usages, have the potential to compromise biodiversity. Even the very act of the surveys associated with maritime usages have had a knock-on effect. We know of multiple companies conducting annual surveys again and again. The survey on cetacean audio impacts has been quite significant in that regard. It is a similar case with development consents because if we issue them, there is that concern. I know this is not perfectly worded but if we have that situation, it is very hard to roll back on something. There is a reluctance to do that. We saw it even with the Climate Action and Low Carbon Development Bill. Frankly, it is ludicrous that we are prohibiting certain kinds of things in the Climate Action and Low Carbon Development Bill but then say, "If you've already had an exploration, we should allow you to potentially go on and apply for an extraction licence." There are knock-on effects. We create legal liabilities.We do not want to be in a position where in two or three years' time we are told that, unfortunately, X, Y or Z company on legal advice mysteriously from the Attorney General, which none of us can see, states we are not a position to address something as the horse has bolted on that and our legal advice is that we cannot do X, Y or Z. We have seen the chill effect in that regard in lots of areas. For example, the banning of liquefied natural gas which should have happened already. I am not going to go into other areas of environmental planning but these are examples. Amendment No. 30 seeks to ensure that we avoid creating hostages to fortune and we do not lose ground.
I will give the response and just try to specifically address the concerns that were raised by both Senators.
Again, this amendment conflates the MSP directive with the marine strategy framework directive and seeks to up-end the implementation of one over another. Both will need to be provided for in the Irish Statute Book. We know that and we are acting on same.
On marine protected areas, the progress to deliver the commitments contained in the programme for Government has been significant and encouraging. Following on from the independent expert advisory group, which was led by Professor Crowe, a report was published in January of this year. In tandem with the review and analysis of the huge amount of submissions that were received through the subsequent public consultation process from February to July, we have now commenced work on developing a general scheme for the new marine protected area legislation. The development of this legislation is expected to continue into 2022. Officials from my Department provided a progress update on marine protected areas to the Oireachtas Joint Committee on Housing, Local Government and Heritage at the end of November. I urge Senators to read the transcript of that contribution because it gives significant reassurances concerning the common thread that we have spoken about here this afternoon. I refer to the interrelatedness of these policies, Bills and legislation.
The substance of the amendment is about the protection of the marine environment. It requires that nothing happens in the maritime area until such time as interim measures are put in place to protect these potential MPAs. First, I am not sure that the Senators fully appreciate the impact of this amendment on local coastal communities. I have said previously that this Bill is for all maritime users. This amendment would have significant and severe consequences on local fisheries, ports, harbours, tourist facilities, local boat clubs and persons who privately own parts of the current foreshore. None of these could be expanded, amended or improved until the work referred to in this amendment was completed. Existing rights under Part 15 of the Planning Act could be lost. Where is the justification for this severe action? Where is the timeline for these measures? How will the public know when they can start to interact with their maritime area again? There is an overreach here that impacts all maritime users, the net has been cast too widely in our view and please excuse the pun.
Second, there is no definition of exactly what these interim measures are or how they would interact with the relevant provisions in either the MAC assessment criteria, or the criteria that coastal planning authorities and An Bord Pleanála must have regard to when assessing planning applications. There is no indication as to how they would relate to the maritime licensing system being proposed, which is separate from both the MAC and planning parts. This is extremely important from a legislative point of view. How would it work? It appears that there are no express obligations to have regard to these so-called interim measures in decision making and no further thought put into their operation.
Third, the amendment presumes that there are currently no environmental protections in the maritime area and this is not the case. Not only are there existing designated European sites, the NMPF, which is a live and implemented plan, contains a suite of environmental policies to ensure that applicants and decision makers alike clearly demonstrate in a detailed and objective way how proposals can co-exist with the marine environment. I would draw the Senators' attention, in particular, to Chapter 5 of the NMPF in this respect. We have said continuously that any application in the maritime area will be subject to rigorous environmental assessments commensurate with the nature and scale of what is being proposed and where it is being proposed. This can and will be added to through the designated maritime area plan process in a new and innovative way. Indeed, I have previously committed to looking at how this can be done. The DMAPs will form part of the decision-making policy framework as legislated for but we need an operable Act in order to do that.
I will not accept an amendment that not only affects so many maritime users without any indication as to when they might be allowed to resume their plans for their local coastal communities, but also runs contrary to other work that my officials are currently undertaking to implement the marine strategy framework directive. I oppose the amendment. Again, I urge Senators to read the transcript of the meeting of the Oireachtas joint committee that took place in November. I urge Senators to read the contributions made by our marine environmental unit. Significant assurance was given in that regard in terms of marine protection and how all of these plans are interrelated.
It is a bit disingenuous to state that we do not have specifics. We provided many detailed specifics in amendment No. 2, which related to interim protections. That amendment was ruled out of order because our dictating such matters to the Minister would constitute a charge on the State. We suggested a timeline of two months for beginning the review. The matter of how long such a review would last would have been the prerogative of the Minister. The Minister could state that it would be a six-month process if he or she so wished and he or she could give that certainty to coastal communities and others. While we outlined in amendment No. 2 what we considered might be the kind of interim measures that need to be considered, in amendment No. 30 we leave scope in that regard to the Minister and we are not overly prescriptive.
The big issue is the gap in interim measures. The Minister of State talked about the considerations. I will look back at what the marine environmental unit is saying between now and Report Stage, but I would like to see interim measures that do not just relate to the general process and system that are in place. Some things can be improved and given a fresh start and then they can be changed again. Protection, by its nature, needs to be done each minute, week, month or year in the interim period. I understand the considerations that will be feeding into the processes, but this amendment is loosely worded in order to give the Minister scope to put in place a plan for interim measures. It is designed to allow the Minister to set something out and not to simply say that we should trust the officials and their goodwill and intentions, the processes and so forth. The Minister of State should give us, as parliamentarians, an assurance that as we let this legislation through, there is a plan for interim measures. I would much prefer it if the Minister of State was bringing forward an amendment - maybe he will do so on Report Stage - indicating clearly that he recognises that this law is landing at a certain time when certain important decisions have not yet been made and that he understands that there is an interim period when particularly sensitivity might need to be applied, including the precautionary principle and so forth. That is where the gap lies.
We have a detailed proposal in amendment No. 2, which, unfortunately, cannot be debated, and we have a very loose proposal in amendment No. 30. The latter includes a proposal to give the timetable over to the Minister such that the process would commence in two months, would last for as long as the Minister would consider to be necessary and would involve such interim measures as the Minister might deem to be necessary. I agree that it is looser than we might like but it was seeking to strengthen the hands of the Minister, as well as seeking to strengthen our understanding and confidence as we vote for this legislation. If we are to vote for the Bill, we should know that the position regarding interim measures will be addressed.
I thank the Senators for the general thrust of what they are trying to achieve in the amendment. I assure them that these matters are interrelated. I will continue to reiterate that, and it is important to say that. I do not see this amendment as being loose. It is quite prescriptive in the sense that it states: “notwithstanding anything elsewhere in this Act no Maritime Area Consent or Development Consent shall be granted until that process is completed.” It will cost considerable-----
As I have outlined, the MPA legislation is moving along significantly. We hope that the legislative draft will be ready in the first half of 2022. We are moving on that with significant pace. It is important to look back at the transcript of the meeting of the joint committee that took place in November, which focused on MPAs. That engagement with marine environmental unit gave significant reassurance to members of the committee on how these interrelate.
I move amendment No. 34:
In page 30, between lines 18 and 19, to insert the following: “18. (1) The arrangements for public participation on the review, preparation and amendment of a new MSP developed under this Act, and a review and amendment or replacement or revocation of the NMPF in place on enactment, and other relevant documents, shall be consistent with the requirements of Article 9 of the MSP Directive, relevant provisions in European Union legislation referred to therein, and the Aarhus Convention which is an integral part of the EU legal order, and in particular, Articles 3(2), 6 and 7 of the Aarhus Convention.
(2) The Minister may by regulations specify requirements relating to any of the following:(a) appropriate time periods for public consultation, where—(3) Where the Minister makes regulations undersubsection (4), in addition to having regard to the other provisions of this Act, he or she shall also—(i) such time periods when calculated shall not include excluded time periods, and(b) arrangements for the publication of notices relating to relevant documents where such requirements include—
(ii) shall be generously specified to provide adequate time for the public and relevant authorities and prescribed bodies to plan and prepare so they can participate effectively,(i) online notification systems including Government websites, and(c) the contents of notices, including the following:
(ii) more traditional methods including newspaper notices in both national and regional newspapers, given the need to provide for equal access and opportunities to participate in areas and amongst demographies where digital access may present barriers, and to reach the public on matters of concern and interest to the public at large,(i) public consultation timeframes, including periods during which submissions may be made;(d) specific additional arrangements (including, if the Minister considers it appropriate to do so in the interests of clarity, separate sets of regulations made under this section) in relation to MSPs that fall within section 16(3)(a), (b) or (c), and of consistent standard to paragraphs (a) to (c) of subsection (3).
(ii) information on how submissions received will be acknowledged, considered and published;
(iii) information on the proposed methods of public participation;
(iv) the fact that there is no charge to make an observation or submission;
(v) where the relevant information can be found online, and where it can additionally be inspected, and that there is no charge for access to either,(a) act consistently with—(4) In this section, “relevant document” means—(i) the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1993;and
(ii) Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC;
(iii) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment;
(iv) Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (Recast);
(v) Article 9 of the MSP Directive;
(vi) Article 10 of the MSP Directive,
(b) have regard to the following principles and policies:(i) the opportunity to incorporate national and international good practices relating to public participation;
(ii) public participation in the process is inclusive;
(iii) the balancing of the administrative burden on the competent authority (M) and participants is considered, making use, where possible, of existing public participation processes and methods, while recognising any disproportionate burden on the public is neither desirable or permissible;
(iv) that public participation must be initiated at an early stage and continued throughout the development of MSPs;
(v) that appropriate use is made of a wide range of media to raise awareness to maritime spatial planning and public participation opportunities;
(vi) that appropriate use is made of information technology and is also accompanied by more traditional non-digital methods to ensure fair access is provided for;
(vii) particular additional requirements relating to MSPs that fall within section 16(3)(a), (b) or (c).(a) a review of the NMPF in place at the time of enactment,
(b) an amendment or revocation of the NMPF in place at the time of enactment,
(c) a draft of a MSP that falls within section 16(3)(a), (b) or (c), or
(d) a draft of a DMAP or an amendment or revocation of a DMAP.”.
I move amendment No. 35:
In page 34, between lines 30 and 31, to insert the following: “(c) Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive),”.
I move amendment No. 36:
In page 34, between lines 30 and 31, to insert the following: “(c) the requirement of the MSP Directive to address marine spatial planning whilst ensuring Good Environmental Status the objective of Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) and where Good Environmental Status is as defined therein,”.
I move amendment No. 37:
In page 35, between lines 4 and 5, to insert the following: “(c) as appropriate the species and or habitats or ecosystem features or characteristics of the area of the marine the subject of the DMAP which are to be protected,”
I understand Senator Warfield will move amendment No. 39 in the same grouping. Amendment No. 37 provides that the draft DMAP specify species or habitats and ecosystem features and characteristics of the area in the DMAP that is to be protected. The draft DMAP would provide the kind of detail that would become useful, in terms of species, habitats, ecosystem features and characteristics, and might specify not simply that we are in a marine environment that needs to be protected but the specifics of what needs to be protected in the area in question. This will lead to a better quality of care and thought, be it with regard to a migratory species that passes through the area.It should not be the case that a list of factors qualifies an area. There must also be real consideration of the granular detail. As we know, each thread in an ecosystem does different work and is of different importance.
Amendment No. 39 highlights other matters that should be respected notwithstanding the use of a designated maritime area plan for any particular development purpose or activity. I will let Senator Warfield speak further to amendment No. 39.
I am conscious that the Joint Committee on Agriculture, Food and the Marine has completed six or seven sessions on this Bill. At three hours per session, that means 20 or 21 hours of work has been done by the committee and I commend the committee members on that. I also know that this issue was discussed at length on Committee Stage in the Dáil.
There is a hierarchy of plans, and sitting at the top of it is the EU legislation. Beneath that is the marine spatial planning directive and other directives. Beneath those is the Twenty-six Counties marine planning framework. The marine policy statement is the practical implementation of the planning framework. Beneath that again are the spatial plans, which can be in the areas of the seas. Beneath those are the DMAPs, which can be regional or sectoral. When doing a marine spatial plan, there are a lot of processes that need to be gone through to ensure full consultation while adhering to EU requirements. We would prefer if the rigorous approach that is applied to the maritime spatial plan was also applied to DMAPs. I know this was discussed on Committee Stage in the Dáil but we still do not understand why the same process that is used for a maritime spatial plan is not being used for a DMAP. We were not completely satisfied by the Minister of State's response in the Dáil and I would appreciate a more detailed answer here on Committee Stage in the Seanad.
What needs to be highlighted here is that the State intends to create management plans for areas within the maritime area. It is not simply a case of defining a boundary and specifying what activity will take place in this zone. In its development, the management plan for the area must take into account all activities that currently use that area or could potentially use that area in the future. It must also take into account environmental aspects of the area. All data generated in this development will be collected under the ethos of collate once, reuse many times, and will be added to the maritime database as set down previously in the Bill. This is a considerable shift in how we protect an area, a tailored product that puts the environment at the heart of the management plan. Furthermore, all DMAPs will have to undergo screening for strategic environmental assessment and appropriate assessment.
Amendment No. 39 effectively seeks to apply the requirements of the national maritime spatial plan to what is the comprehensive subnational planning process, namely, DMAPs. It would, in my view, upset and interfere with the intention of the DMAP concept.
In accordance with section 20 of the Bill, DMAPs may be prepared in respect of specified activities for one or more than one designated geographical or sectoral area or for both. The procedures set out in the Bill are sufficiently flexible to enable the development of regional, local or sectoral plans by a designated competent authority subject to the oversight of the Minister for Housing, Local Government and Heritage and Oireachtas approval. DMAPs will be prepared in the context of the existing national marine planning framework and are required to specify the objectives of the national marine planning framework that it seeks to attain.
The DMAP concept differs from the national maritime spatial plan, which provides an overall framework for the entire maritime area, incorporating ecological, economic and social priorities. The national marine planning framework provides a holistic, overarching policy position in relation to the maritime spatial plan in Ireland and is the State’s primary response to commitments under the maritime spatial planning directive. DMAPs should not duplicate this but operate within the general framework and enhance it by responding to more specific maritime planning needs, be they sectoral or localised. It is, therefore, not appropriate to apply all of the requirements of a national marine plan to a sectoral or geographically specific plan as to do so would undermine the purpose and functionality of a DMAP.However, in accordance with section 21(4), it is the Minister's responsibility in reviewing a DMAP proposal to consider whether it satisfies requirements of the MSP directive and, again, when reviewing the draft DMAP.
In effect, the overarching objective of this amendment to comply with certain provisions is provided for by reference to the NMPF in sections 21, 22 and 28 and the MSP directive in sections 20, 23, 24 and 28. In addition, the requirements referred to in section 17(1) will already flow through from the NMPF and MSP in any event. While they may not be applicable to every DMAP being proposed, where they are relevant they will absolutely be adhered to.
In short, these amendments, as proposed, would undermine the flexibility required for the DMAP concept and are not necessary and, as such, I am not in a position to accept them.
I move amendment No. 38:
In page 35, line 10, to delete "colocation or".
This amendment relates to language introduced on Report Stage in the Dáil that is a little concerning. It relates to the phrase "colocation or" in subsection 2(f). The paragraph currently states "any proposed colocation or coexistence of the maritime usages referred to in paragraph (c)". I am a little lost in my thinking on this. I had it clearly in my head earlier. The concern relates to the word "or" between the word "colocation" and the word "coexistence" and the preference, from our side, is that the word "and" would be used rather than the word "or" to ensure maximum protection in terms of both scenarios.
Amendment No. 38 seeks to delete "colocation" from section 22 in relation to proposed maritime usages within a DMAP. The inclusion of both "colocation" and "coexistence" here is designed to reflect the intended versatile nature of DMAPs. I am sure the Senator can appreciate that. The proposed amendment would unduly limit the scope and potential of DMAPs.
Flexibility is required in this regard. Once again, I remind Members that what we are doing here is creating a framework within which plans can be made. It is important we do not use primary legislation as a development control tool. I note to colleagues that this is a new system that is revolutionary in its approach. We want to enable competent authorities to create plans that are all encompassing. We would negate that paradigm by building in inflexibilities such as those suggested in this amendment.
This section was amended on Committee Stage in the Dáil to provide for colocation and coexistence. As such, I am opposing this amendment.
My concern relates to the word "colocation". There are cumulative impacts that can happen. I am a little concerned when I hear the word "revolutionary" used in the context of the new system. If it is revolutionary we should definitely get the reviews in place first, if new major pieces are going into it. In the interests of saving time because I understand the constraints we are under, I will not press the matter further. I will wait to address further issues I have with DMAPs. I am concerned about that matter and having heard the Minister of State's response I am no less concerned about it.
I move amendment No. 39:
In page 35, between lines 24 and 25, to insert the following: “(3) Notwithstanding anything elsewhere in this Act, the competent authority (D) shall prepare a DMAP, or any amendment to a DMAP, in accordance with the following sections, and as if the reference to “MSP” in those sections was construed to read “draft DMAP”, and the references to “competent authority (M)” was construed to read “competent authority (D)”:
(a) Subsections (2), (4) and (5) of section 16, and
(b) Subsection (1) of section 17.”.
I move amendment No. 41:
"In page 37, to delete lines 33 to 39, and in page 38, to delete line 1 and substitute the following:
“(3) Where the Minister ascertains an inconsistency referred to in subsection (2), he or she shall—
(a) make a recommendation in writing to the competent authority (D) to amend the draft DMAP to address the inconsistency, or
(b) in relation only to an inconsistency in respect ofparagraphs (b) to(e)of subsection (2) give notice in writing to the competent authority (D) of the inconsistency and in that notice state that the draft DMAP does not need to be amended to avoid or mitigate the inconsistency,
as the Minister thinks fit in all the circumstances of the case, and shall state their reasons in full for such a decision.”."
The Minister of State signalled that there are all these other considerations in relation to DMAPS and mentioned section 24 in that regard. Section 24(3) is of real concern. Section 24(2) states that the Minister will ascertain whether there are inconsistencies between a draft DMAP and all of the aspects we have said are important, such as the MSP directive, the national marine planning framework and all of the different guidelines and policy directives. However, under section 24(3)(b), the Minister can write to a competent authority to say there is an inconsistency in a DMAP, that a DMAP is inconsistent with the MSP directive or with the national marine planning framework, but that it does not need to be amended. It states that the Minister is notifying the competent authority of the inconsistency but that the draft DMAP does not need to be amended to avoid or even mitigate the inconsistency.What is the point in telling us that section 24 has all these checks with which DMAPS will line up if there is a straightforward get-out clause where the Minister will say to a competent authority that an inconsistency can effectively be disregarded and that not only do measures not need to be in place to avoid it but that it does not even have to put in measures to try to mitigate the inconsistency? That is a serious concern.
Amendment No. 41 seeks to limit the Minister's ability to issue a direction in respect of a DMAP. It would specifically limit the Minister’s ability to not require an amendment to a draft DMAP to those matters referred to in the preceding subsection that are not in the MSP directive. In other words, where there is an inconsistency with the MSP directive, the Minister must require an amendment to the draft DMAP if it is issuing a direction on that basis. The Minister has a responsibility to comply with the directive.
This matter was discussed at great length on Dáil Committee Stage. The Minister cannot issue a direction that would run contrary to the MSP directive. While I understand where the Senator is coming from in this case, or at least her intention, this amendment is wholly unnecessary. If there were a serious inconsistency between the DMAP and the MSP directive, the Minister of the day would have to act accordingly. That is a given.
This amendment would essentially tie the Minister’s hands from issuing certain directions, if the Minister finds inconsistency with compliance which differs from different parts of the MSP directive that would not perhaps amount to a direct contravention of the directive or that could be resolved some other way than amending the draft DMAP, such as perhaps amending the public participation statement or engaging in further consultation. It is our view that this amendment is not only unnecessary, but that it is inappropriately limiting and confusing, because it carves out a specific reference to the MSP directive. In that regard, I cannot support this amendment.
It straightforwardly states that the Minister will be writing to say that there is an inconsistency and then it states that it does not need to be amended to avoid or mitigate an inconsistency. It does not say alternatives for avoidance or mitigation would be put in place. It is strictly a disregard clause. I have no trouble telling the Minister of State that it should not be able to bypass all of these factors. We should not have ministerial direction telling a competent authority that an inconsistency does not matter. That sets a poor precedent. Given that it was debated at such length in the Dáil, it should have been improved by the Department before it came here. I will press the amendment.
I move amendment No. 44:
In page 49, between lines 25 and 26, to insert the following: "(e) relevant EU law and policy including the Habitats Directive, the Birds Directive and the Aarhus Convention.".
Again, this is relevant to EU law. In the interests of time, and as the issues have been addressed elsewhere, I propose to withdraw it for now.
I move amendment No. 45:
In page 52, to delete line 25.
I raised this issue with the Minister, Deputy Darragh O'Brien, on Second Stage. It applies in general to State boards, but to the specific exclusion of members of local authorities from serving as members of State boards. This makes perfect sense in the case of Members of the Oireachtas who have been involved in the legislative process in the setting up of this body and so on, but I do not see any reason a member of a local authority should be excluded from consideration to be a member of this authority. This also relates to consideration of such members for the role of chief executive of MARA.
I am not saying that just because somebody is a member of a local authority he or she would be automatically appointed. I certainly do not believe it should be the case that a councillor would be allowed to ask a Minister to appoint him or her to a board. If at some stage in the future we have a councillor who is an eminent marine biologist, a specialist in the engineering of wind turbines or who has an intricate knowledge of marine matters I do not believe he or she should be excluded from being allowed to sit on the board of MARA on the basis that he or she is a councillor.
I am asking that the relevant provision around local authority membership would be removed from this legislation. I note in particular that even though local authority members are being excluded, the legislation provides for a representative of the City and County Management Association. This does not make sense. The argument that may be made is that local authorities have some involvement in the early stages of the planning process. It would be extremely peripheral if there is, but we are excluding councillors on that ground while allowing for a chief executive of a local authority to be appointed. The language used within the legislation is "representative" rather than "nominee", which is also of concern. It is not making sense to me.
I will give an example with regard to Wexford County Council, with which I am familiar.Let us say we had elected somebody with an extensive knowledge of the marine as a councillor. That is perfectly possible in some of our coastal communities in say, Kilmore Quay or up in Courtown or wherever. He or she is qualified to be a member of this authority on all other grounds but because he or she decided to serve his or her local community by being elected to a local authority, he or she is automatically ruled out of consideration. Despite this, the chief executive of Wexford County Council, who, arguably, might have far greater say in the planning process in any licensing or foreshore issues that emerge could be considered for appointment. Frankly, I do not think that is fair.
By the way, I do not have a problem with a chief executive being there but it is completely unfair to exclude members of local authorities simply because they are serving. The request here is not about the Minister being allowed to appoint any member of a local authority. The individual concerned should be qualified. This must apply to all State boards. A habit has developed in recent years where we exclude local authority members from everything. As the Minister of State will know from his other role with the electoral commission legislation, we are trying to get some of the best people into local government. We are trying to encourage them. We should also be trying to encourage the best people onto State boards but we should not be forcing extremely qualified and skilled people to have to choose between the two.
I raised this the Minister, Deputy Darragh O'Brien, on Second Stage and privately. He said the case I was making was interesting and compelling. I am interested in hearing the Minister of State's response. I do not believe there are solid grounds as to why, all else being equal, members of local authorities should be excluded.
I find myself in the extraordinary situation that Senator Malcolm Byrne and, I take it, Senator Fitzpatrick, who are both Government Senators, and I have, without any collaboration, proposed exactly the same amendment. That makes for a very interesting dynamic in the House. We look forward to the outcome of our proceedings.
I absolutely agree with Senator Malcolm Byrne. Rather than the bigger question of city and county councillors and other boards, I wish to stick with this particular issue. We are dealing with the board of MARA here. Let us be clear that MARA will not be granting planning permissions directly. It is ultimately the board. We need to be clear because there was a case made by some officials when I discussed this with the Minister. He said there was always that potential conflict and mentioned the planning tribunals and the distance between the elected members and planning decisions. However, while MARA will be granting licences, it will not be granting planning permissions. That is an important point. I served two terms on the Dún Laoghaire Harbour Company. There were four councillors nominated to it from the local authority from all parties and we did an exceptionally good job. I am familiar with Galway, Waterford, Wexford, Drogheda and all the ports around the country. We all know councillors play a meaningful role. They are elected but they also have their finger on the pulse. They understand the community. They understand the connection it has with the sea, be that to do with leisure and recreation, the new dimension and dynamic added to the coast with the 5 km, which will be falling back into the planning authorities and the challenges with renewables, as well as all the potential they bring. It is going to be an enormous thing. Elected city and county councillors have skill and local knowledge and they represent people. We talk about bringing people with us and councillors are elected by the people and they should have a meaningful role in this.
Ultimately however, this legislation was passed in the Dáil and I cannot see the Minister of State coming in here and changing it and then going back to the Dáil tomorrow or the day after. Here we are now with Government Senators suggesting we amend it. It is an interesting dynamic and an interesting debate. I am absolutely supportive of it. I never apologise for making the case for city and county councillors in relation to their role, function and for valuing them as people who represent the community.I support Senators Malcolm Byrne and Fitzpatrick. I hope we will get agreement across the House on this important initiative.
I also want to speak to support the amendment, which Senators Byrne and Fitzpatrick are not involved with, which is amendment No. 46. It states: "In page 52, lines 27 and 28, to delete “or a local authority"." Yet again, there is a reference to the local authority, which I propose should be removed. We need to do business with local authorities. They are the planning authorities and they have a whole load of other functions.
Amendment No. 52 is included in this group of amendments. Again, it has been tabled by Senators Malcolm Byrne and Fitzpatrick and it refers to elected members being chief executives. I draw the line at that. I am fully supportive, but there are many other skill sets required. A person could not be both, but he or she could be a sitting member of a city or county council and be a member of MARA. I do not see any conflict there. Senator Byrne must tease out the amendment further. That said, I support him. I hope the Minister of State will agree with him. No doubt this will then go back to the Dáil if it is accepted here today.
I support the amendment as well. Senator Boyhan mentioned the Dún Laoghaire Harbour Company on which he served a number of terms on the board. When I first became a member of Dún Laoghaire-Rathdown County Council in 2009 I was selected by the council at that time to be a member of the harbour board, but before I had a chance to take up the position these Houses changed the law to remove the involvement of local councillors in harbour boards, so I never got a chance to take the seat. That happened just a month after I was elected.
The experience we had in Dún Laoghaire is that thereafter – I cannot speak to a great extent of what happened before that – the members of the local authority, and by extension the population of the local authority area, were excluded from the management of the harbour company. The Minister of State will be aware of what an important asset Dún Laoghaire Harbour is for the local community and for Dublin as a whole. It is an area of enormous historic and heritage importance. During my 11 years on Dún Laoghaire-Rathdown County Council, I saw an enormous decline in the management, maintenance and use of Dún Laoghaire Harbour. Part of that is linked very closely to the departure of the ferry service to Holyhead, which cut off a revenue stream, but to my mind there was a body of people who had a real interest in maintaining the harbour in the local authority, who were completely excluded from involvement in it. This is part of a greater malaise at the heart of central government that ignores the capacity of local government to deliver for the local community. It is not just in this Bill, but it is a whole raft of legislation that excludes elected people, including Oireachtas Members. The amendments are primarily about councillors and members of local government. It excludes them from positions like this.
When Senator Boyhan and I were on the council together, he spoke often about conflicts of interest. Officials often talk about a conflict of interest, as if, for example, there would not be a conflict of interest if the chief executive of the local authority was serving on the board. Exactly the same conflict would exist. One would hope it would exist because one would hope that the chief executive would have similar goals and interests in terms of delivering for the local community, although I suppose that is not necessarily true.
There is a problem with the overarching view that somehow councillors do not have something to contribute, that they could not deliver at that level or that unlike officials they would not be able to spot the conflict of interests and excuse themselves, even though they are expected to do so at council level all the time, and they do so all the time.
What these sections and provisions in the Bill ignore is the fact that at local government level, in the 1,000 or so people who are elected to be city or county councillors around the country, there is an enormous body of experience and expertise and perhaps, most importantly, connection to the local area. By excluding them through what is put into section 48 and later sections, what this totally fails to recognise is the added value they could bring to such a board.
I mentioned Dún Laoghaire Harbour Company because I believe that one of the major problems the company suffered from during my time on the local authority was the disconnect with the local authority and by extension with the local community.As a result of that, we saw a harbour in decline. There were major governance problems during that time. I say that in circumstances where I am not pinning blame on any person in particular, but the fortunes of Dún Laoghaire harbour declined significantly over that decade or so. It just so happens that I do not think it is a coincidence that the council and its councillors were cut out of the deal during that time.
We need to have a reckoning with the powers that are afforded to local councillors and local government. We need to recognise the position acknowledged in Article 28A of the Constitution and we need to acknowledge the fact that there is a role for these people. Gone is the day when councillors were people without expertise, education and their own skill set. In fact, councillors have an enormous skill set that is frequently ignored. People of enormous qualification and education will be found on local authorities throughout this country. Even those who are not are generally people of enormous experience. They have something to add to a board like this. It is incredibly myopic, if the Minister of State does not mind me saying so because it is not his fault, to continue with this legislation in circumstances where there is this kind of blanket exclusion of Members of the Oireachtas and members of European authorities and local authorities, which is repeated in much of our legislation. It is an arbitrary "see no evil, hear no evil" approach that totally fails to recognise the role these bodies could have.
The conflict of interest argument does not stand up. It was said already that these are not planning authorities. Even if they were, councillors have been cut out of the deal on planning at local level in any event. If there is a conflict of interest, as does arise from time to time on local authorities, councillors are well able to distinguish themselves from that situation. What is more important, they bring with them expertise and connection to the people who are supposed to be served by MARA and the people who are supposed to be the beneficiaries of the outcomes of these authorities. I support the amendment not only because of that contradictory element but, as a general rule, we are cutting off our noses to spite our faces, if we say councillors can never be involved despite the fact that they have a great deal to add.
I support the amendments. It is particularly egregious if an inequality is created through city and county managers being unable to engage on the one hand, while board members who are, in effect, employees of a Minister, represent a local area where representatives might not. It is part of a general concern with the Bill and the movement on planning, unfortunately, where local authority members, and those structures people have created to represent concerns and democratic expression, are precluded. Many people ran for a local authority because they were concerned, had views and expertise, and brought that to the service of their community in areas such as planning. Those people will be precluded and yet, at the same time, those who may have business interests in these areas are simply trusted and are not precluded. The Bill may preclude people with business interests, in a limited way, from the CEO role, but they can just recuse themselves when they have a conflict of interest relating to a particular decision. They can still be in the room most of the time. That creates an inequality.
Section 110, which we will come to, is another example of where there are concerns around access to justice and the democratic piece, which are the pieces we already have in planning that include access to justice principles and engagement in the planning process. We will come later to the section where I have concerns about some of the things on costs. The costs of cases creates an inequality. This is not to create a conflict because there is a lot to be contributed, but those who may have commercial and business interests and so forth are able to be in the room and recuse themselves using their judgment, as described by Senator Ward, whereas local authority members whose key role and mission is the mandate of expression are placed in a position where, in fact, caring and serving disqualifies them from being able to contribute.
As I said, I have similar concerns about access to justice and issues around participation in legal action, which will become potentially become more difficult for citizens under this Act.
A number of points have been raised by the Senators. I will try to get through the ones primarily relating to the governance element of MARA first. I will then speak specifically to the elements raised by the Senators, in respect of local authority members in particular.I served 16 years on a local authority, was elected on four occasions and feel proud of the work we achieved in my time there. Local government has consistently proven itself, especially over the time of Covid. It stepped up and was counted. The Government and the three Ministers in our Department value the role of elected members at local level. They are critical to the success of our collective actions around climate and biodiversity amid the huge challenges we face into the future.
During the Committee Stage review of the Bill in the Dáil, Deputies were advised that to ensure confidence in the governance arrangements for the maritime area regulatory authority, MARA, a governance review of the establishing provisions was being undertaken. That review focused on the code of practice for the governance of State bodies to ensure that MARA is established applying a best practice approach to achieve the highest possible standards of corporate governance. The code of practice for the governance of State bodies covers such matters as the role of the board and chief executive, codes of conduct, ethics in public office, MARA's relationship with the Oireachtas, Minister and parent Department as well as business and financial reporting requirements.
The governance review was completed in advance of the Dáil Report Stage and a number of amendments were proposed on Report Stage and accepted which reflected the best practice recommendations arising from the review. Some of the amendments proposed on Report Stage related to terms of office of board members, placing the board as decision-maker with regard to the employment of chief executive officer and reducing the time for the production of corporate strategies from five years to three. I am fully satisfied that MARA as it is set out in the text now provided will operate with a best practice approach to governance from the first day of its establishment.
There may be requirements in the future to review the composition and corporate structure of MARA but that review should only happen once MARA has had the opportunity to show what it can achieve, when it has become operational and existed in a physical rather than purely legislative form. Following the governance review, I have assurances that MARA as provided for in the text is sound and balanced. I cannot accept these amendments, which seek to trouble this balance.
I will speak to the issues raised by Senators, particularly Senator Malcolm Byrne, who moved this amendment. On amendment No. 52, local authority members can apply for a chief executive role but if they are successful, they cannot hold both positions at the same time. They have to make a decision. Local authority members can and will be invited to sit on MARA committees, where they can have significant input at a local level. The issue of Dún Laoghaire has been raised, and that is where it is most important to have that local decision-making. The chief executive of MARA will review the governance arrangement and can review this again when appointed.
Another important point is that local authorities will be responsible for DMAPS in their own areas. This is devolving responsibility to local government where it matters, at local level. From the point of view of local authority members having a role on behalf of the communities they represent, the mechanism is there to do that. That should be recognised.
Senator Higgins raised democratic expression and access to justice. These themes have run throughout this afternoon's proceedings. I have an interest in and passion for that, particularly around Aarhus. In the early days before Aarhus was transposed into Irish law, I took cases around protection of costs in environmental actions taken by NGOs. This is core to our democracy, to what we are trying to achieve and to the function of NGOs and their participation. This Government has supported NGOs in their ability to carry out their work and be critical of Government. It is their right to do that. The support to ensure NGOs and communities play that vital democratic role in our planning system is important.
I cannot say enough about the role of elected members at local level. That role is hugely important and valuable.That has been shown time and again, both in our planning system and in how our development plans or policies come about. It is also part of what we are trying to achieve in the next decade and beyond. They have a vital role to play and they will do so in this space.
Respectfully, I will not disagree with anything the Minister of State said but he avoided the core issue. There will be input at local level and so on. However, he spoke of the chief executive reviewing the governance. The chief executive cannot change what is within the legislation, and the legislation is clearly excluding from the board of MARA anyone who happens to be a member of a local authority. Conversely, it ensures that there will be a chief executive of a city or county council on the board. Senator Ward is correct that the level of skill and qualification of councillors throughout the country is top class. It is not about any councillor being appointed. It is if someone, all else being equal, is able to serve on the board and they are only being excluded because they are a member of a local authority.
I will provide an example. The Minister of State's colleague, Deputy Leddin from Limerick, who is Chairman of the Joint Committee on Environment and Climate Action, is an engineer who specialises in renewable energy. He is the kind of individual who in normal circumstances would be an excellent appointee to the board of MARA. He is someone who has a deep understanding of many of the areas around renewable energy. If he was to apply and came out on top over all the other candidates, were he was still a member of Limerick City Council, he would be excluded from being considered for appointment. That is wrong. All we seek with this amendment is that the exclusion on that basis be removed.
I do not have a problem with a city or county manager sitting on MARA, but I am sure that the Minister of State will see where the problem lies. I have raised this matter but I have not received guidance on it. It is a fairly minor issue. It is not about someone tugging at the Minister of State's sleeve who says "I am a councillor. Appoint me to the board". This is about ensuring that we get the best people on the board and if one of the best people happens to be a councillor that they will not be excluded. I know the Minister of State is in agreement with us. I ask him to accept the amendment.
I want to make two points in the context of the Minister of State's reply. I respect what he said about the importance of the local authorities. He said that a local authority member is not precluded from becoming a chief executive of MARA. With respect, that is a slightly silly comparison. The people who get involved in local authorities do so because they have an interest in getting involved. Earlier, I referred to a problem with myopia across the Government. Another problem is the failure to recognise that there is a very particular type of person who makes the sacrifices they make to get involved in local government, and we should make no mistake, that is what is involved. We are making it harder and harder for people to make that sacrifice. We are closing more and more avenues for those people by this kind of a provision in legislation which, as I said, exists in several pieces of legislation. It means that if you want to work as a councillor, you are precluded from doing other things that you might be interested in doing or in which you might have a professional or academic interest or be qualified to do. I do not think there is a solid basis for that.
I agree with Senator Malcolm Byrne. Obviously, I accept the Minister of State's bona fides as a former local authority member - he served on a local authority for longer than I did - but there is a general move on the part of the Government away from granting powers to local authorities. The Minister of State spoke about giving powers to local authorities. I do not think that is the case. I do not agree that you can say that they can be involved in committees but not on the board. I do not think that is empowering them. It excludes them from the central decision-making body. The end result is it excludes them from the decision-making process. My experience in Dún Laoghaire has shown that to be a bad thing. There is also the issue that we are telling people that if they become a member of a local authority that they must shut down lots of other aspects of their life, which is a regressive thing to do.As Senator Malcolm Byrne said, what we really want is to have the best people available in the pool of individuals who can be made members of board but the provisions in section 48 and other sections specifically preclude that. The Government is saying that it does not want councillors, whether they are on committees or not, and it is refusing to acknowledge the role they could play. It is also refusing to widen the pool to the extent that it would include all of the people who might do a very good job.
This is not, as happened in the past, about jobs for the boys and girls, an issue of public concern. This is something that is thrown around but in actual fact, we know very well that the Government has put in place a whole load of structures to ensure that the application process is rigorous. People have to go through interview and qualification processes conducted by independent civil servants who do not give jobs to the boys. It is not about that.
In Dún Laoghaire-Rathdown County Council there are people, for example, who are very well acquainted with issues in the harbour and who have specific skill sets who are precluded from being on the board and the board suffers as a result. I do not understand the logic behind pushing this section and saying that we must preclude members of local authorities. I also do not understand why Members of the Oireachtas and of the European Parliament should be excluded but I can see a certain practical logic to that because they are removed from local communities in a way that councillors are not. Specifically with regard to members of the local authorities, they are close to the ground and close to the very people we hope will benefit from a MARA. They are connected to the community in a way that an official or ordinary member of the board never will be. I say this in the context of all kinds of local government activities. The chief executive, the director of services or the local engineer will never knock on the door of local residents, introduce themselves, ask the residents how they are doing, what they think of something and how they can help. That is not their job but it is the job of the councillor. The councillor can transmit the views of the ordinary citizen, the residents of the area, the business owners, the concerned key stakeholders or whatever one wants to call them, right into the centre. Obviously, assuming they are the type of qualified person we want on the board, they will either accept or reject what people are saying or suggest ways in which we can accommodate public opinion. One of the real dangers that comes with the MARA is to put in place an authority that is either ignorant of or unconcerned about the issues facing local communities, including residents and businesses. Having a member of a local authority as a potential member of the board is important. I am not saying that they should automatically become members of the board in the way, for example, that the old harbours legislation provided but having the option to have an appropriately qualified and positioned member of a local authority as a member of the board is a tremendously important opportunity for the MARA and for this Bill. It would make this legislation more inclusive and more all encompassing and would ensure that the Bill genuinely does what it seeks to do.
I understand what the Minister of State has said on this. I understand that the legislation has already gone through the Dáil and that we are in the last week of term. There may be a particular view in terms of getting this through but that does not mean that it cannot be done. It does not mean that the amendment cannot be accepted on a reasoned basis. It could then be put to the Dáil for approval. It is a very simple, net issue that could be put to the Dáil if deemed appropriate. It is very important to recognise that this amendment does not come from a place of trying to cause trouble. Its aim is to improve the legislation, the board of the MARA and the effectiveness of the authority in order to allow it to function in the best possible way. I agree with my colleagues that to arbitrarily lock out members of the local authorities who could add so much to the board is a problem. To do so is a myopic action by Government which will discourage people from getting involved in local politics. It will discourage people from getting involved in that side of their local community because it shuts them out of so many areas unnecessarily. I hope the Minister of State will reflect on this and acknowledge that it is a reasonable amendment that could be accepted to improve the legislation.
I will be as brief as possible. I agree with many of the comments of my colleagues. I was a member of a local authority from 2009 and while I never served on a harbour board, my father did. He worked in Bell Lines shipping company and had a very good, in-depth knowledge of the area. Indeed, he had an all-encompassing view and served on the Waterford Harbour board and Waterford Harbour Commissioners.There is a distinction between appointing a person to the board because he or she is a councillor and allowing people independent of their role as a councillor to apply for a position and, all things being equal, if they are qualified and come through the process, that they should not be precluded from that position. That is an important distinction that is being made by Senators. Perhaps that can be reflected on for Report Stage.
As it is now 5 p.m. I am required to put the following question in accordance with the order of the Seanad of this day: "That amendment No. 45 is hereby negatived in Committee, that section 48 is hereby agreed to in Committee, in respect of each of the sections undisposed of, the section is hereby agreed to in Committee, Schedules 1 to 12, inclusive, are hereby agreed to in Committee, and the Title is hereby agreed to in Committee".