Holly Cairns (Cork South West, Social Democrats)
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490. To ask the Tánaiste and Minister for Justice and Equality if persons who do not register their seaweed harvesting rights established by long usage will lose those rights if they are not registered under the Land and Conveyancing Law Reform Act 2009 by 30 November 2021. [57617/21]

Helen McEntee (Meath East, Fine Gael)
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I understand that the Deputy is referring to traditional seaweed harvesting rights based on long use, which constitute prescriptive profits à prendre within the meaning of the Land and Conveyancing Law Reform Act 2009.

A profit à prendre is a private right of one person, exercised over land owned by another person or entity, to take a natural product of that land, such as wild game, fish, turf, or minerals, which meets the conditions for such a right laid down by law.

A prescriptive profit à prendre is one which is established by long use as of right, but which is not recorded in a written deed of grant by the owner of the land concerned, or where the written deed has been lost.

Under the 2009 Act, a person who has not applied by 30 November 2021 to register seaweed harvesting rights established by long usage before that date would risk losing those rights.

However, under the Land and Conveyancing Law Reform Bill 2021, I am proposing to repeal the major changes made by the 2009 Act, and put new legal rules in place by 30 November 2021, to avert the legal cliff-edge that would otherwise occur on that date.

The Bill has completed its passage through the Seanad, as well as Second Stage in the Dáil, and is scheduled to complete Committee and Report Stages in the Dáil on 24 November. It will then be sent to the President. Subject to the President’s signature, section 7 of the Bill provides for it to come into operation on 30 November.

The effect of the Bill will be that:

- Firstly, the law applicable to prescriptive profits à prendre will largely be reverted to the judge-made law that applied before the 2009 Act (the ‘doctrine of lost modern grant’), which is considered as the most satisfactory and familiar set of pre-2009 rules, in the interests of clarity and certainty.

- Secondly, it will still be possible to validate and register a prescriptive right after 30 November 2021: either by applying to court, or by registering it directly with the Property Registration Authority. But this will be optional, as it was before the 2009 Act, rather than a mandatory requirement to avoid losing any rights acquired through long use.

- Thirdly, the Bill does not ‘reset the clock’. User periods dating before 1 December 2021 can still be counted, in a claim first made after 30 November 2021.

One point that is relevant to seaweed profits à prendre is that the user period required to establish a prescriptive right against State owned foreshore is the same under the Bill as under the 2009 Act – 60 years, compared to 20 years against privately owned land. (This reflects recommendations made in 2002 by the Law Reform Commission.)

However, under the Bill:

- any user who had already completed 20 years’ use as of right over the foreshore before 1 December 2009 will be entitled to have their claim decided under the pre-2009 Act rules, where 20 years’ use as of right is sufficient;

- any user whose court proceedings, or application to the Property Registration Authority, to register a claim over the foreshore is still pending on 30 November 2021, will be entitled to have it decided under the pre-2009 Act rules, where 20 years’ use as of right is sufficient;

- a user who first makes a claim against the foreshore after 30 November 2021 will need to show 60 years’ use as of right (as would have been the case under the 2009 Act), but in contrast to the 2009 Act, they can rely on periods of use before, as well as after, 30 November 2021 and the clock is not re-set.

Effectively, therefore, seaweed harvesters with established rights or established periods of use before 30 November 2021 are better protected under the Bill than they would have been under the 2009 Act, and will not lose their rights or their established user periods.

I have also secured Government agreement to establish a time-limited review to examine the overall law relating to prescriptive easements and profits à prendre, after the Bill comes into operation, and determine whether any further changes are desirable to ensure that the law in this area is placed on a sustainable long-term footing. As I mentioned during the Second Stage debate on the Bill, I am happy to engage with Deputies, through the Joint Committee on Justice, in relation to the terms of reference for the review.