Article 10 of the Constitution declares that all natural resources and forms of potential energy belong to the State, subject to all estates and rights and interests therein lawfully vested in other person. The same also applies to royalties and franchises within the jurisdiction.
The Article declares that provision may be made for the management of property which belongs to the State under the Article and for the control of the transfer whether temporary or permanent, of that property.
Provision may be made for the management of lands, mines, minerals and waters acquired by the State after the coming into operation of the Article. A broadly similar provision applied under the Irish Free State Constitution.
Petroleum under the petroleum and other mineral developments legislation covers oil, gas and related substance. Petroleum and equivalent natural resources in the State and in territorial seas vests in the Minister for Marine and Natural Resources. Department of the Environment, Climate and Communications (DECC).
The Continental Shelf act asserts the State’s right to the natural resources of the continental shelf which are also vested in the Minister.
The Sea Fisheries and Maritime Jurisdiction Act 2006 provides that the State has the sovereign rights of exploration, conservation and management of resources of the sea bed and subsoil within the EEZ (the exclusive economic zone). Natural resources include oil and natural gas
The State grants rights for prospecting and extraction under licences and leases. It is an offence to engage in activities requiring a license without a licence or at lease from the Minister.
Mines refer to underground excavations for the purpose of obtaining minerals. They include strata, veins or aggregations of them. Mines cover most underground forms of working for minerals.
A quarry is a surface or opencast mine for the purpose of obtaining minerals. The expression “quarry” as with the expression “mine” is used in different senses, in legislation.
Minerals refer primarily to substances other than the agricultural surface. Minerals have been defined under the mineral development act and the petroleum and other minerals development act, the mines and quarry’s act and the mineral developments act 1940.
The Mineral Developments Act 1940 established a Mining Board consisting of the chairman and ordinary members. The chairman must be legally qualified. One ordinary member must be a qualified property arbitrator. The function of the Board is to hear claims for compensation under the Minerals Development legislation.
There is an administrative scheme for the compulsory registration of certain minerals. The Minister may refer consider applications for ancillary right licenses and preservation of support orders and if they are prima facie justified, the application may be referred to the Board. The Board may hold an enquiry. It may require witnesses to attend and examine persons under oath.
The rights to petroleum in the State in the continent shelf area is vested in the Minister of the government. Rights and minerals in foreshore vest in the State. Gold and silver mines also vest in the State.
The State owns a considerable amount of mineral resources for various historical and legal reasons. In addition, it has rights of compulsory acquisition in respect of unworked minerals and mining facilities. All gold mines and silver mines are vested in the State. All minerals in or under the foreshore are vested in the State.
The State became entitled to significant amounts of mines and minerals under the operation of the Irish Land Act. When land was vested in the tenant farmers under the legislation, it generally reserved the mines and minerals to the Land Commission. These was reserved onto the Land Commission the exclusive rights to mine and take minerals under land sold.
The pre-Land Act owner of the lands could have excepted and reserved mines and quarries which would have been worked at that time. The Irish Land Act 1907 allowed the Land Commission to lease rights of mining of minerals or the right to dig or search for minerals which were reserved to it under the Land Act, provided that on the vesting of the land under the Act, the exclusive right to mining and taking minerals and digging and searching for them was vested in State.
The Land Act 1923 transferred all tenanted (agricultural) land to the Land Commission subject for eventual redistribution. Mines and minerals which were being worked by the owner remained vested in him. Difficult questions may arise as to whether or not mines had been worked on the relevant date.
Minerals under the foreshore vest in the State under the Foreshore Act. The Minister for Natural Resources may grant rights for the removal of beach material. A foreshore license is required to work any materials under the foreshore.
See the separate chapters in relation to the continental shelf and the territorial sea of the State. Under the Continental Shelf Act, the right to exploit natural resources in it, including petroleum and minerals vest in the relevant Minister.
The presumed position is that mines and minerals in, under or part of the land belong to the surface owner. Other than those which belong to the State or have been reserved to third parties, the traditional presumption is that everything underneath the land vests in the landowner.
Mines under highways presumptively belong to the owners of the contiguous land where they own the subsoil and the lands concerned. Mines beneath rivers which are not navigable presumptively belong to the adjoining owners in the same manner as highways.
Ownership of the mines under canal and railways are generally held by the canal or railway company now Coras Iompair Eireann or its subsidiaries.
Strictly, lands acquired under railway legislation (now mainly vested in CIE) did not include the rights for minerals except to the extent necessary for the construction of the railway or as expressly provided. Any such owner would be required to notify CIE of intention to operate any such mines. CIE may permit the mine to be operated, pay compensation or may move the line.
Some railways were constructed under private legislation so that the particular private Act will determine the position.
Prior to the 1979 legislation the Minister was entitled to acquire minerals where it is desirable in his opinion in the public interest that the working of the minerals should be vested in the State. As a consequence of a court case in which the compulsory acquisition order was declared invalid for lack of specificity, the Minerals Development Act 1979 substituted the compulsory acquisition provision by vesting the exclusive right to work minerals in the State in the Minister except for existing workings.
The exclusive right to work minerals save existing developments and those registered as worked vest in the State. The right to grant licences vests in the Minister.
Questions have arisen as to possible unconstitutionality of the provision. The argument to the contrary is that it regulates the ownership of public/private right in the property in accordance with the requirements of the public good. The Constitution is likely to require compensation.
Disputes on compensation are referred to the Mining Board. A right of compensation vest in persons who are entitled to estate and interest in the minerals before the date on which the exclusive right vested in the Minister in 1979.
Where minerals have been worked and developed prior to 15, December 1979, an application must be made the Mining Board for them to be registered as excepted minerals. There is a right of appeal to the High Court. The Mining Board may cancel registration if it is satisfied on the application of the Minister that the minerals had not been worked. If a person fails to register, or the application to register is rejected or withdrawn, the right to work the minerals vest in the Minister.
The Mineral Developments Act 1979 provides that the exclusive right so working minerals is vested in the Minister unless otherwise provided by the legislation. This does not prevent the owner of lands from prospecting for such mineral This includes carrying out activities for the purpose of ascertaining the character extent and value of material. This includes taking samples for analysis, et cetera
The right of prospecting does not apply to
- minerals being worked by the Minister.
- Minerals subject to State mining lease a licence
- rights interfering with the working of minerals
The mineral development legislation deals with the development and working of the State-owned mineral resources. Minerals covers all substances in, under or over land including mines whether or not opened. Minerals do not include stone, gravel, sand or clay, other than to the extent of certain substances and materials listed in the legislation is incorporated in them.
Minerals exclude the agricultural surface of the ground, turf and peat. It includes the area formerly occupied by minerals
Minerals development legislation gives the State certain powers in respect of minerals already vested in it and those thereafter acquired. The State has comprehensive powers to
- open up the surface
- create underground wayleaves and rights-of-way
- construct mines, roadways and other plant equipment
- dispose of waste products
- divert rivers or watercourses take and appropriate water
- divert sewers mains and pipes divert roads
- demolish buildings
- remove strata
The Minister has powered the consent of the Minister of Finance to make a mining facilities acquisition order permanently or temporarily. The order may be made where he is of the opinion that it is necessary to do so for the efficient and convenient exploitation of the State minerals. Where an order acquires land, its extent and location nature and duration of rights must be specified. There are similar provisions in respect of the acquisition of ancillary rights such as rights-of-way and wayleaves.
Where the Minister proposes to make an acquisition order, it must serve notice of intention on persons who appear to have an interest in the property. Compensation must be paid for land or rights acquired. The application for compensation must be made within a two-month period which may be extended to four months in certain circumstances,