Environmental Law and Justice

Jamie McLoughlin

Introduction

It has by now been well established that Ireland – like the rest of the world – is facing grave climate and biodiversity crises. Indeed, the Dáil declared a climate and biodiversity ‘emergency’ in May 2019. The need for concrete action to tackle climate breakdown and biodiversity loss is beyond dispute. In this regard, one of the most practical and potentially significant policy ideas proposed in recent years can be found in a Private Members’ Bill introduced into the Seanad in May 2023 by Senator Higgins of the Civil Engagement Group. The Climate Action and Biodiversity (Mandates of Certain Organisations) Bill 2023 provided for reform of the duties and objects of the semi-State bodies responsible for management of bogs (Bord na Móna)  and forestry (Coillte) in light of the climate and biodiversity crises. Of course if managed correctly, bogs and forests are vital carbon sinks and sources of habitat for a diverse array of flora and fauna. Unfortunately, this Bill lapsed following the dissolution of the 33^rd Dáil in November 2023. The purpose of this short blogpost, therefore, is to draw attention to the provisions of this innovative Bill in the hope that it will be revived and receive the support of the new Government.

Current mandates of Coillte and Bord na Móna

When introducing the Bill in the Seanad, Senator Higgins noted the ‘very outdated and narrowly commercial mandates of Coillte and Bord na Móna’.  Section 17(1) of the Turf Development Act 1946 (as amended) lists the duties of Bord na Móna:

• ‘(a) to produce and market turf and turf products, and
• (b) to foster the production and use of turf and turf products, and
• (c) to acquire bogs and other lands, and
• (d) to manage, develop and work bogs and other lands vested in the Board, and
• (e) generally to do all such other things as arise out of, or are consequential upon, the duties mentioned in the preceding paragraphs of this section.’

Meanwhile, section 12(1) of the Forestry Act 1988 details the corporate objects of Coillte:

• ‘(a) to carry on the business of forestry and related activities on a commercial basis and in accordance with efficient silvicultural practices,
• (b) to establish and carry on woodland industries,
• (c) to participate with others in forestry and related activities consistent with its objects, designed to enhance the effective and profitable operation of the company, and
• (d) to utilise and manage the resources available to it in a manner consistent with the above objects.’

Clearly – given the economic and resource extraction emphases – the mandates of neither of these organisations were designed with the exigencies of the climate and biodiversity crises in mind.

New mandates proposed by the Bill

As indicated by its long title, the aim of the Bill is to reorient the functioning of Bord na Móna and Coillte towards ‘climate action and the protection and enhancement of biodiversity’. Accordingly, section 3 of the Bill proposes to replace section 17(1) of the 1946 Act (set out above) with the following:

‘1) It shall be the duty of [Bord na Móna]—

• (a) to manage, protect, rehabilitate and restore bogs in the State,
• (b) to acquire bogs and other lands,
• (c) to manage and develop bogs and other lands, including soils and water, in a manner consistent with and supportive of the State’s objectives regarding climate action under the Agreement done at Paris on 12 December 2015 and under the Act of 2015,
• (d) to ensure that its activities are consistent with the protection and enhancement of biodiversity and with obligations under the Kunming-Montreal Global Biodiversity Framework, agreed at the 15th meeting of the Conference of Parties to the UN Convention on Biological Diversity,
• (e) to adopt policies and practices which support a just transition for persons employed by the Board and communities within which the Board carries out operations,
• (f) to provide sustainable employment and recreation opportunities,
• (g) generally to do all such other things as arise out of, or are consequential upon, the duties mentioned in the preceding paragraphs of this section.’

Section 4 of the Bill would amend section 12(1) of the 1988 Act in relation to Coillte by substituting it with this provision:

‘(1) The principal objects of the company shall be stated in itsmemorandum of association to be—

• (a) to manage forestry and related activities sustainably and in line with best practice and legal requirements.
• (b) to establish and carry on sustainable woodland industries,
• (c) to develop and promote the planting and protection of native woodlands,
• (d) to develop and manage forestry and land, including soils and water, owned or used by the company and its subsidiaries, in a manner consistent with and supportive of the State’s objectives regarding climate action under the Agreement done at Paris on 12 December 2015 and under the Act of 2015,
• (e) to ensure that its activities are consistent with the protection, restoration and enhancement of biodiversity, including obligations under the Kunming-Montreal Global Biodiversity Framework, agreed at the 15th meeting of the Conference of Parties to the UN Convention on Biological Diversity,
• (f) to participate with others in forestry and other activities consistent with its objects, designed to enhance the effective and sustainable operation of the company and serve the public interest,
• (g) to provide public access and recreation opportunities, and
• (h) to utilise and manage the resources available to it in a manner consistent with the above objects.’

The Bill also – consistent with the Climate Action and Low Carbon Development Act 2015 (as amended) – expressly adopts the UN Convention on Biological Diversity definition of ‘biodiversity’, i.e. ‘the variability among living organisms from all sources including terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part, and includes diversity within species, between species and of ecosystems.’ There are a number of aspects of the proposed reformed mandates which could prove transformative in shaping the State’s response to the climate and biodiversity emergency. These will now be considered.

Potential significance of new mandates

To begin with, it must be noted that Bord na Móna and Coillte have the ability to contribute in a major way in terms of land use to addressing climate breakdown and biodiversity loss as between them they control 8% of the land in the State – Coillte being the single largest land owner in the State.

A duty on Bord na Móna to ‘protect, rehabilitate and restore bogs’ would stand in stark contrast to its current obligation to produce turf products, foster their use, and ‘work bogs’. The rewetting of bogs that would be entailed by their rehabilitation and restoration would contribute to carbon sequestration and aid the regeneration of highly degraded ecosystems. Similarly, the proposed object for Coillte of developing and promoting the ‘planting and protection of native woodlands’ would be highly significant in the fight against climate change and biodiversity collapse. It would be a catalyst for a shift away from non-native Sitka Spruce monoculture tree plantations – the folly of which has most recently been demonstrated by the damage inflicted to them by Storm Éowyn – to affording greater priority to establishing new and safeguarding existing native woodlands from the many threats they face, including from overgrazing by invasive Sika Deer and feral goats. Armed with the data from a recent study on ‘Mapping, monitoring, and protecting ancient and long-established woodland in Ireland’, Coillte could, for example, invoke this object as a basis for trying to acquire any of these ‘irreplaceable habitats of high biodiversity value’ not already in public ownership. It could also seek to purchase land adjoining these areas to enable natural regeneration and expansion of native woodlands which are also vital long-term carbon stores.

The inclusion of sustainability as a guiding principle in respect of the mandates of Coillte and Bord na Móna, and the explicit reference to a ‘just transition’ for workers and communities affected by the proposed change in mandate for Bord na Móna in particular, serve as important reminders that climate action should not be – and does not have to be – at odds with ensuring social and economic justice.

The specific identification of soil and water as part of the broader land management responsibilities of both agencies, and the requirement to manage them in accordance with Ireland’s international climate and biodiversity obligations is also extremely welcome given the risks posed to water quality by prevailing practices of planting and clear-felling non-native conifer trees on peat soils.

Finally, the enactment of this Bill into law would help to remedy the glaring exclusion of commercial semi-states like Coillte and Bord na Móna from the ‘Public Sector Climate Action Mandate’ which by virtue of section 15(1) of the Climate Action and Low Carbon Development Act 2015 (as amended) obliges all public bodies to perform their functions, insofar as is practicable, in a manner consistent with furtherance of the national climate objective to, inter alia, reduce greenhouse gas emissions by 51% by 2030. Ireland is currently on course to miss its emissions reduction targets by a substantial margin, attracting potentially enormous fines from the EU as a consequence.

Conclusion

The Climate Action and Biodiversity (Mandates of Certain Organisations) Bill 2023 was not opposed by the Government in the Seanad, with the then Minister of State with responsibility for Land Use and Biodiversity, Pippa Hackett TD, commenting that it was ‘consistent with Programme for Government commitments’. However, despite not being opposed by Government, the Bill did not complete the journey through the legislative process before lapsing with the dissolution of the last Dáil. The Programme for Government recently agreed between Fianna Fáil, Fine Gael, and a number of independent TDs unfortunately contains no commitment to enacting the Bill or to reforming the mandates of Coillte or Bord na Móna. Evidence that the Bill’s proposals are in line with public opinion can be found in the recommendations of the Citizens’ Assembly on Biodiversity Loss. The Assembly recommended that the ‘remits of Bord Na Móna & Coillte must each be reviewed to include a focus on Peatland restoration and rehabilitation projects, with targeted outcomes on biodiversity conservation’ and that the ‘goals and operations of Coillte’ must be fundamentally reassessed to ‘ensure biodiversity protection and positive eco-system services are core objectives’. It is therefore imperative that this Bill, which has the potential – by imposing concrete legal obligations on Coillte and Bord na Móna via reformed mandates – to transform the State’s response to the climate and biodiversity crises, receives far greater public attention in order to pressure the Government into supporting it.