This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 138, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister of State may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For Senators' convenience, I have arranged for the printing and circulation of the amendments. The Minister of State will deal separately with the subject matter of each related group of amendments. I have also circulated the grouping list. Senators may speak only once on each grouping. The only matters that may be discussed are the amendments made by the Dáil.
Minerals Development Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages
I call on the Minister of State to speak on the subject matter of the amendments in group 1.
Amendments Nos. 55 to 59, inclusive, place a ban on primary mercury mining, facilitating Ireland's ratification of the Minamata Convention on Mercury. The convention, agreed and adopted in 2013, is a global treaty to protect human health and the environment from the adverse effects of mercury. The convention focuses on a global and ubiquitous metal which, while naturally occurring, has broad use in everyday objects and is released to the atmosphere, soil and water from a variety of sources. Controlling the human sources of releases of mercury through its lifecycle has been a key factor in shaping the provisions under the convention.
The provisions of the Minamata convention include: a ban on new primary mercury mines; the phasing out of existing ones; the phasing out and phasing down of mercury use in a number of products and processes; control measures on emissions to air and on releases to land and water; and the regulation of the informal sector of small-scale gold mining. The convention also addresses interim storage of mercury and its disposal once it becomes waste, as well as broader health issues. Ireland officially signed the convention in October 2013 at the diplomatic conference in Kumamoto, Japan.
The amendments before Senators today insert a new Part 8 into the Bill which will effect a ban on primary mercury mining in Irish law - implementing one of a number of actions necessary to allow Ireland to ratify the convention in 2017.
The new section 224 provides definitions for a number of terms used throughout this new Part 8 such as "mercury", "mercury compound" and "primary mercury mining" - defined as "mining in which the principal material sought is mercury" - which reflect what is provided for in the convention.
Section 225 makes it clear that the holder of a prospecting or retention licence will continue to be allowed to search for traces of mercury where the purpose of such exploration is to assist in the identification of other minerals. In addition, the use of mercury or mercury compounds for laboratory-scale research continues to be permitted.
Section 227 proposes that a person who prospects for a primary mercury deposit commits an offence and is liable on summary conviction to a class-A fine of currently up to €5,000 or on indictment to a fine not exceeding €250,000.
Where the Minister authorises a person to mine any minerals or ores, such authorisation shall not permit extraction of mercury as a primary product or extraction of ores of mercury for the purposes of production of primary mercury. Extraction of trace quantities of mercury in the course of extraction of other minerals, ores or compounds will continue to be permissible provided the purpose of the extraction is not to produce mercury in metal or concentrate for sale or export. Such traces would be regarded as contaminants to be removed during the processing of the ore.
Section 228 proposes that a person who carries out primary mercury mining commits an offence and is liable on summary conviction to a class-A fine or on conviction on indictment to a fine not exceeding €250,000.
Amendment No. 60 focuses on a legal anomaly that the Office of the Attorney General has requested be addressed in respect of the Continental Shelf Act 1968. The issue arises as a consequence of past transfer of function orders and departmental title orders. The issue was identified in the context of drafting the provisions for the forthcoming maritime area and foreshore (amendment) Bill in regard to the introduction of a licensing regime for offshore renewable energy and offshore natural gas storage activities. The Minerals Development Bill, which is already amending section 4 of the Continental Shelf Act, represents the first opportunity to address this issue. The amendment will allow my Department to continue to progress proposals for offshore renewable energy and offshore gas storage. The Continental Shelf Act asserts the State's right to the seabed and subsoil outside our territorial waters, that is, our exclusive economic zone, EEZ, and designated extended continental shelf for the purpose of exploring such seabed and subsoil and exploiting its natural resources. Section 5 of the Act is a key element in the consent process for the placing of structures on the seabed in the EEZ and the continental shelf.
Sections 5, 7 and 12 of the Act currently reference two separate Ministers. Subsection (5) of the Act currently requires that the two Ministers each grant their consent for the construction of structures or the removal of objects from the seabed. Section 7 of the Act authorises one Minister, with the consent of the other Minister, to make regulations prohibiting or regulating the discharge of oil, sewage and other harmful substances. Section 12 relates to inquiry powers under the Act that can be exercised by either Minister. Over the years the functions of the two Ministers in respect of these three sections have come to vest with a single Minister, that being the Minister for Communications, Climate Action and Environment. However, the section continues to refer to two separate Ministers. In order to address this issue, the proposed amendments combine the references to the two Ministers into one Minister, the Minister for Communications, Climate Action and Environment. The amendments also propose to introduce a new subsection (2A) into section 5 of the Act, requiring that the Minister for Communications, Climate Action and Environment consult with the Minister for Transport, Tourism and Sport regarding the safety of an allocation before granting a consent under the section. These amendments will allow my officials, in liaison with the Office of the Attorney General, to proceed with setting legislative provisions to regulate offshore renewable energy projects and gas storage projects beyond the foreshore by way of the issue of consents under the 1968 Act.
Amendment No. 1 amends the Long Title of the Bill to reflect that the Bill includes provisions in respect of the Minimata Convention on Mercury and the Continental Shelf Act 1968.
Does any Member wish to contribute in regard to group 1? I ask the Minister of State to address the amendments in group 2.
Amendments Nos. 2, 3, 4, 63 and 64 delete dolomitic limestone from the list of substances regarded as a mineral under the Bill. In the schedule to the Minerals Development Act 1940, dolomite and dolomitic limestone were listed as substances to be regarded as minerals within the meaning of the Act. When developing the general scheme of the Bill, it was felt that this reference required clarification and consideration was given as to how best to define dolomitic limestone. This is quite a difficult technical proposition and the formula that appears in the definition of "minerals" in section 2 of the Bill was arrived at following discussion and consultation.
In the Seanad debate on the Bill, Senators raised several concerns regarding the practical application of the definition of "dolomite" and "dolomitic limestone". In addition, on Second Stage in the Dáil, several Deputies reiterated these concerns. My officials have advised me that the practical difficulties associated with establishing whether a deposit contains dolomitic limestone are such that it would be best to remove dolomitic limestone from the list of substances that are regarded as minerals for the purposes of the Bill. In respect of the mineral dolomite, I am advised that this does not present the same technical difficulties and there is no reason why this substance, which is of higher-end value than ordinary limestone, should not continue to be regarded as a mineral under the Bill.
Does any Member have a contribution to make? I call on the Minister of State to speak on the amendments in group 3.
Amendments Nos. 5, 7, 10, 16, 17, 27 to 30, inclusive, 32, 33, 35, 40 to 42, inclusive, 47 to 49, inclusive, 51, 53 and 61 are drafting amendments which reflect the 2016 change in ministerial and departmental title, that is, from Minister for Communications, Energy and Natural Resources to Minister for Communications, Climate Action and Environment in amendments Nos. 5 and 61, from Minister for the Environment, Community and Local Government to Minister for Housing, Planning, Community and Local Government in amendments Nos. 33 and 35 and from Department of Communications, Energy and Natural Resources to Department of Communications, Climate Action and Environment in the remaining amendments.
Does any Member have a contribution to make on group 3? I call on the Minister of State to speak on the amendments in group 4.
Amendment No. 6 provides the legal clarity that any licence, consent or approval granted under the legislation will not in any way diminish any requirement to obtain permissions, approvals or licences under the Planning and Development Acts 2000 to 2016, the Environmental Protection Agency Act 1992 or the Waste Management Acts 1996 to 2011.
If no Members wish to contribute, I ask the Minister of State to speak on group 5.
The amendments in group 5 are technical drafting amendments. Amendments Nos. 8 and 11 are proposed in the interests of consistency and clarity. These amendments will result in the alignment of text in section 9(1)(b) and section 34(1)(b) relating to the extraction of drill cores from land by the Minister in the case of section 9 and by the licensee in the case of section 34. In each case, prior approval of the landowner must be obtained and, where the landowner cannot be found, the permission of the occupier of the land must be sought.
Amendments Nos. 12 and 25 replace "is convicted of an offence" with "commits an offence" in sections 36 and 81, that is, a person renders themselves liable to a fine as a result of committing an offence and not on being convicted of an offence. Amendment No. 43 is a correction of a minor error in the wording of section 198(2)(b)(iii) where the word "licence", which should follow the word "mining", has been inadvertently omitted. Amendment No. 44 amends section 200(1), which clarifies that the Minister may bring summary proceedings for offences prescribed under sections 32(5), 33(4), 36(4), 191(4) and the proposed sections 227 and 228.
If there are no contributions to be made, I ask the Minister of State to speak to the amendments in group 6.
In respect of amendment No. 9, section 17 allows a new applicant to apply for a prospecting licence over an area which is already the subject of a prospecting licence or retention licence. However, both the application and the existing licence must relate to different minerals. The existing licensee whose interest is in, for example, minerals A and B has, in effect, a standing statement of interest over other minerals in the area of his or her licence. In the event that a new and different applicant applies for, for example, minerals C and D, the sitting licensee is entitled to be notified of the new application and afforded the opportunity to submit a competing application within a specified period. However, for reasons of commercial sensitivity, it is not considered appropriate that the identity of the minerals applied for by the new applicant be revealed to the existing licensee. Amendment No. 9 corrects an error in the existing text that would have required the Minister to notify the existing licensee of the additional minerals applied for in the new application.
Unless any Senators wish to speak on that group, I ask the Minister of State to make his contribution on the amendments in group 7.
Section 39 provides that the Minister may issue directives regarding adherence to good environmental practice in respect of mineral exploration. Compliance with the directives will be a condition of both the prospecting and retention licence. In accordance with custom and practice, any directives issued under this section would be reviewed at regular intervals to ensure they remain relevant. The Department currently issues guidelines for good environmental practice in respect of mineral exploration activities. On Report Stage in the Dáil, Deputy Stanley proposed that environmental practice directives should be reviewed by the Minister at least every five years. This amendment was accepted.
In regard to amendment No. 39, the new section will remove the provision that account be taken of public participation in the making of a decision and will instead stipulate that account be taken of public participation in regard to the preparation of a report. The original wording seems to be stronger. Why was the change made?
What amendment is the Senator addressing?
Amendment No. 39.
The amendment that came through was that the review should take place every five years. It had been left open in the previous text. In response to Deputy Stanley's amendment in the Dáil, we accepted that every five years was a good timescale to conduct a review.
Amendment No. 13 in respect of section 39 is fine and Sinn Féin appreciates his support for it.
I thought amendment No. 39 was included in this group. Am I incorrect?
On foot of the amendment made in the Dáil, the section now states, "The Minister shall review the environmental practice directives under this section at a minimum every 5 years."
Forgive me in that case. I apologise.
I call the Minister of State to address the subject matter of the amendment in group 8.
Amendment No. 14 requires that the licensee notify the Minister of a proposed joint venture agreement, JVA, at least ten days before it is entered into by the licensee. JVAs are commercial arrangements between licensees and the other potential investors to allow access to further funds for exploration. Typically, the incoming joint venture partner earns in by funding or by undertaking further exploration and if the project continues, they will be assigned a portion of the licensee's rights and obligations. It has always been the policy to encourage JVAs in efforts to maximise the potential for further discoveries. However, nothing in any such agreement can supersede or supplant the Minister's right to reduce the liabilities of the licensee. Nevertheless, it is considered appropriate that the Minister should be aware of the agreement in advance and that officials will be able to advise the licensee on provisions in the agreement that may present difficulties in the future. As originally drafted, the section did not allow for advance scrutiny of JVAs. Unless the joint venture results in an assignment which can only take place with the written consent of the Minister under seal, the licensee will continue to be responsible for all obligations under the licence notwithstanding any other agreement entered into by the licensee with third parties.
Unless a Senator is offering to contribute, I ask the Minister of State to address the subject matter of the amendments in group 9.
The Bill, as published, contained a number of references to the collective citation "Planning and Development Acts, 2000 to 2014". Amendments Nos. 15, 18, 23, 31, 45 and 50 propose the correcting of collective citation to "Planning and Development Acts 2000 to 2016", reflecting the enactment of the Planning and Development Act 2015 and the Planning and Development (Housing) and Residential Tenancies Act 2016.
Amendments Nos. 52 and 62 correct references to other legislation such as the Harbours Acts and the Planning and Development (Amendment) Regulations arising from amendments made since the Bill was drafted and published.
Unless a Senator is offering to contribute, I ask the Minister of State to address the subject matter of the amendments in group 10.
Amendments Nos. 19, 21 and 24 are technical amendments proposed in the interests of consistency and clarity. Amendments Nos. 19 and 21 to section 75 make it clear that the mining licence fee payable per annum through the life of the licence will also include an element that is payable on grant of the licence. Payment of this portion of the fee is a condition of granting the licence under section 64.
Amendment No. 24 to section 80(1) clarifies that the obligation on the licensee to provide information, such as production figures, is not only necessary to calculate royalties payable but also to calculate mining licence fees. Amendments Nos. 20 and 22 were proposed by Deputy Stanley on Report Stage in the Dáil. They amend sections 75 and 76, respectively, to ensure that regulations establishing mining licence fees and royalty rates are reviewed every five years.
Unless a Senator is offering to contribute, I ask the Minister of State to address the subject matter of the amendments in group 11.
Amendment No. 26 deletes section 82 of the Bill as published. The section provided that where the tonnage or value of State-owned minerals in a location is small, and where it is more efficient to do so, that rather than granting a mining licence, the Minister, with the consent of the Minister for Public Expenditure and Reform, may sell such minerals, these minerals becoming excepted minerals, that is, that the Minister would not have the exclusive right to work them. The provision was originally intended as enabling the efficient development of small-scale State-owned mineral deposits. On Committee and Report Stages in the Seanad, Senator Ó Clochartaigh opposed section 82 on the grounds that he did not wish to see privatisation of State mineral assets, no matter how small. He considered that it would be better for such minerals to vest in the Minister and for a mining licence to be required for their development. On Report Stage in the Seanad, the Minister of State, Deputy McHugh, accepted an opposition amendment to delete section 82. However, for procedural reasons in the Seanad, the amendment fell. This amendment now effects the deletion of section 82.
Unless a Senator is offering to contribute, I ask the Minister of State to address the subject matter of the amendments in group 12.
In broad terms, Part 5 is intended to address issues arising in respect of legacy mine sites. It empowers the Minister to designate an area as a rehabilitation area, allows for adoption of a rehabilitation plan and for persons other than the Minister to exercise the functions of a rehabilitation authority. Section 135 permits the Minister to delegate the functions of the rehabilitation authority to a person, a local authority or the EPA under such terms he or she considers appropriate. Since the Bill was published, responsibility for the EPA has transferred to the Minister for Communications, Climate Action and Environment and, therefore, the requirement under section 135(2) for the Minister to seek the written agreement of the Minister for Housing, Planning, Community and Local Government before authorising the EPA to act as a rehabilitation authority is no longer appropriate. Amendment No. 34 reflects this transfer of functions. Section 135(3) requires the rehabilitation authority to indemnify the Minister and the State in respect of the exercise of its functions as a rehabilitation authority. Amendment No. 36 amends section 135(3) to exclude local authorities and the EPA from the obligation to indemnify the Minister and the State as they are emanations of the State.
Unless a Senator is offering to contribute, I ask the Minister of State to address the subject matter of the amendments in group 13.
Sections 137 to 139, inclusive, address obligations under the Aarhus Convention, which has been ratified by Ireland, in respect of aspects of rehabilitation plans. Where any activity is permitted that may have a significant effect on the environment, the public has a right of participation in, and ease of access to justice to review, decisions. This would normally be addressed through the planning process but where planning is not applicable, the Minister is subject to the obligations under the convention in respect of any relevant decisions. General provision is made for this in sections 203 to 206, inclusive. These sections are intended to apply the same obligations where a person or body other than the Minister, that is, a person authorised under section 135, prepares, revises or adopts a rehabilitation plan. The Attorney General has advised that section 137 is no longer considered necessary and may be deleted. Environmental impacts in respect of rehabilitation plans will be dealt with through the planning process. Amendments Nos. 37 to 39, inclusive, effect this.
Amendment No. 46 is a technical amendment which has been recommended by the Office of the Attorney General regarding compliance with the Aarhus Convention in respect of public participation in activities that may have a significant effect on the environment. This amendment sets out the criteria which must be considered by the Minister in respect of exploration activities to determine whether an activity may have a significant effect on the environment, and thus whether article 6 of the convention in respect of public participation shall apply.
I have minor concerns about amendments Nos. 38 and 39. Amendment No. 38 deletes an entire section on rehabilitation plans and inserts a new section. This is in regard to a decision on whether such plans will have a significant effect on the environment. The Minister shall publish a determination under the section. The new section deletes all wording after "subsection (4)" and this means information relevant to the proposed decision in regard to taking account of the public interest is no longer defined. We have a concern about that.
With regard to amendment No. 39, which deletes lines and inserts a new subsection, the new section removes the phrase "take due account of the outcome of the public participation in its decision" and replaces it with "take due account of the outcome of the public participation in its preparation or, as the case may be, revision, of the rehabilitation plan". We are of the view that the original wording is stronger.
A comprehensive wording has been inserted on the advice of the Attorney General. It was also the Attorney General's advice to delete section 137 of the original Bill. The wording is as advised by the Attorney General to meet the spirit and the letter of the Aarhus Convention and he pointed out that it should be dealt with under planning.
I ask the Minister of State to address the subject matter of the amendments in group 14.
Amendment No. 54 was proposed by Deputy Lawless on Report Stage in the Dáil. Under existing minerals legislation, state mining leases require the lessee to fully work minerals under their lease terms. The modern mines at Navan, Lisheen and Galmoy have been better equipped to extract full mineral potential of the mine material than older mine sites. There is some industry interest in re-working of mine waste at legacy mine sites. However, this is at an early stage and will be driven by the economic potential. In 2015, the Geological Survey Ireland commissioned a short call project entitled An Economic Assessment of Irish Mining Waste, which was undertaken by Aurum Exploration Services. The project aimed to analyse samples from mine waste sites across Ireland.
Of the nine sites sampled, Avoca returned the most positive results, particularly the spoil heaps. The study recommended further analysis of waste dumped at Avoca. Unfortunately, the majority of historical mine sites sampled were reported to have no economic value. The provisions of the Bill facilitate the potential re-use of abandoned mines and associated waste. The definition of "minerals" in section 2 includes all substances, including scheduled minerals that occur naturally in or on land or that occur in extractive waste. However, Deputy Lawless's amendment identified an omission in the Bill as published - the important role of the Minister in promoting sectoral research and innovation. While the Department has commissioned research, such as the Indecon report, and it has facilitated research activities by the Irish Centre for Research in Applied Geosciences, iCRAG, on an administrative basis, it is important that this role is formalised within the Bill. The amendment also identifies two new focuses for research: research into recycling, re-using the reclaiming of extractive waste where this is environmentally sound, thus supporting the concept of the circular economy; and research that may create opportunities where re-use of mine waste could contribute to the rehabilitation of a legacy mine site. As a consequence, the amendment was accepted.