(Cavan): This section is intended to enable the Minister to create rights of way over land with some aspect of wildlife conservation. The effect of the three subsections which go to make up section 60 is simply to adapt to the needs of the Bill the existing procedure in section 21 of the Forestry Act, 1946, relating to the provision of rights of way in connection with afforestation. This lengthy procedure involves, inter alia, an application by the Minister to the Lay Commissioners of the Land Commission, serving due notice on the servient land owner and hearing of the application by the Lay Commissioners with provision for an appeal by both the Minister and the landowners depending on the Commissioners’ decision.

I take it that this section is creating rights of way in order to enable the Minister or his agents to gain access to land?

(Cavan): That is so.

It could be a right of way over somebody else's land. Will it be restricted to the Minister and his agents or will it be a public right of way?

(Cavan): I would see it as being restricted to myself, my agents or my licensees.

Can the Minister give us a definite answer on this?

(Cavan): The right of way would not be public but would be confined to the Minister for Lands and his agents. Normally in the case of a right of way being acquired for afforestation purposes the beneficiary would be the Minister, his successors in title and his licensees. Section 21 of the 1946 Act so provides. In the case of rights of way required in the context of wildlife conservation it might be necessary to extend the beneficiaries to include the public generally or a particular section thereof. To meet this situation the said section 21 is being suitably amended, not under section 60 but under section 63, subsection (2). When we reach that subsection we will see that what is being provided is a more extensive right of way than would be necessary for the Minister in respect of afforestation.

We are touching on something important here. Is section 60 dealing only with rights of way for the Minister or his licensees?

That is the position as has been stated by the Minister.

(Cavan): What we are doing here is applying section 21 but we will be amending that section when we come to section 63 subsection (2) of this Bill.

Perhaps the Minister will tell us whether in circumstances in which land is important for the purposes of wildlife and, consequently, there is a right of way created across that land for the Minister or his licensees, compensation is payable? I am not talking here about the general public.

(Cavan): The general public could be my licencees if I gave them permission to cross the land. In such circumstances there is compensation in the ordinary way for landowners.

Subject to that the Minister would have an arbitrary right to create a right of way?

(Cavan): Yes.

Of course that is provided the Minister is reasonable and rational and not like some of his colleagues.

(Cavan): We could have a long discussion about Ministers past and present but that would not serve any useful purpose.

We must tease out this provision by which we are giving a Draconian power to the Minister to create rights of way over other people's lands.

(Cavan): Section 21 of the 1946 Act provides that where an order under subsection (1) has come into force the Minister shall be liable to pay compensation to the owner of the land over which the right of way has been created by the order. It provides that any compensation payable under this section shall in the further agreement be fixed by the Lay Commissioners on the application of the Minister or of the person claiming to be entitled to compensation. It stipulates that the Minister or any person claiming compensation under the subsection may within one month after the date on which an application to fix compensation has been decided by the Lay Commissioners appeal to the Appeal Tribunal. As the Deputy knows the appeal would be to a judge of the High Court.

Is there any legal process whereby a landowner could challenge totally the making of this right of way, apart from the question of compensation?

(Cavan): There is.

The procedure is not being changed but is merely being brought forward into this legislation.

(Cavan): That is so. In making an order I would proceed in the same way as I would proceed in respect of other acquisition orders.

And the position would be that the person concerned could oppose it ab initio or, after the order has been made, proceed to seek compensation.

(Cavan): That is so.

Will the creation of rights of way apply to foreshore areas?

(Cavan): The provision could apply to such areas.

In the event of such right of way being created would the ordinary person be prevented from using that passage to gain access to the foreshore?

(Cavan): The previous section would then come into operation.

I am not sure that this provision applies to foreshore areas because it states that "where the Minister either for the purpose of this Act or partly for such purposes . . ." The Minister does not hold the foreshore for that purpose. He holds the foreshore as of right.

(Cavan): Unless I own the foreshore.

There are certain areas where there is a charge either to park or to swim particularly along the east coast. What is the Minister's function in that regard?

(Cavan): I have no function in regard to any charges made at the moment.

Bórd Fáilte can create a right of way, can they not?

(Cavan): I could not say.

Are we clear that the Minister can only make rights of way——

(Cavan): If I own the land.

He cannot unnecessarily make a right of way for the foreshore?

(Cavan): Not per se.