The European Commission has reprimanded the Government for its failure to classify Special Protection Areas (SPAs) as specified in the 1979 Birds Directive.
In a "reasoned opinion" sent recently by the Department of Marine and Natural Resources which formally reprimands the Republic for failing to protect the country's wild bird population, the Commission notes a "significant problem of partial classification".
This amounts to a failure to classify SPAs in accordance with ornithological criteria laid down in case law determined by the European Court of Justice.
In the Santona Marshes case, for example, in which Spain argued it did not need to apply safeguards to areas not designated as SPAs, the European Court takes the view that the Madrid government has responsibility to ensure bird life there is adequately protected.
Notwithstanding this and similar cases, says the EC's reasoned opinion, "in Ireland an unclassified area requiring classification does not enjoy the required protection even in respect of the actions of public authorities".
This was confirmed, it pointed out, by the decision of the Supreme Court on March 24th, 1998, in a case involving Galway Corporation. In that decision the Supreme Court found the corporation was not bound by the decision of the Birds Directive "in relation to a major infrastructure project within an SPA in respect of a period before national legislation on SPAs imposed obligations on the local authority".
In his judgment, Chief Justice Mr Ronan Keane noted "the relevant Community obligations were imposed on the member state and not on the local authority". As a result, he concluded the local authority, although "acting as an organ of administration, cannot be regarded as having been in breach of any requirement of the Directive during the relevant period.
A spokesman for the EC's environment directorate general, told The Irish Times that while the reasoned opinion was not disputing the ruling of the Supreme Court in respect of the local authority's prerogative, it insisted, none the less, that the Republic, as an EU member state, had responsibility for imposing SPA safeguards laid down in the directive.
"The Supreme Court decision might have been different had the case been taken against the Minister and his Department," the spokesman said.
In practice, non-compliance with the directive appears to be the result of a "pragmatic approach" taken by the Irish authorities in the period 1994-96 to limit classification to areas in public ownership "and leave out areas seriously contested by economic interests, in particular port-related interests", the Commission found.
The Bannow Bay SPA, "a sizeable sea bay on Ireland's south coast containing mudflats and salt marsh" which supports significant numbers of wildfowl and wader species, is a case in point: in 1998 the Commission registered a complaint against Ireland in relation to unauthorised mechanical shellfish harvesting there.
In 1995 an application for mechanical cockle harvesting had been refused by the Department of the Marine on the grounds of Bannow's SPA status. None the less mechanical harvesting began without authorisation - on a private foreshore: "D·chas was alerted but took no action. In December 1997, harvesting spread to State-owned foreshore; this required a licence from the Department of the Marine and Natural Resources." Despite appeals, the Commission noted, neither D·chas nor the Department took any action.
The Commission also expresses concern about "the expansion of aquaculture in the IBA at Lough Swilly". To the extent that aquaculture licence applications are considered "outside of classified SPA boundaries" for the area, the Birds Directive must be respected, it insists.
The reasoned opinion deals with a number of other developments the EC regards as critical. These include Big Meadow in Athlone, a housing scheme approved by the local UDC beside the Middle Shannon Callows SPA, "the most important surviving Irish habitat of the corncrake, Crex crex, the only globally endangered wild bird species found in the country".
Because of an administrative error, the SPA classification omitted counties Westmeath and Roscommon and therefore Big Meadow.
In July last year, the EC document notes, D·chas withdrew its earlier objections to the Big Meadow scheme. This the Commission finds "inconsistent with the previous position of D·chas confirming the area's importance".
