The Gazette 1974

of 18 March 1971 the said defendant agreed to sell these lands to the first plaintiff, Thomas Roche. By a second agreement of 18 March 1971 the plaintiff, Roche, agreed to form forthwith a limited company with a nominal share capital of £1 million. The con- sideration was £700,000 of which £200,000 was to be paid by the allotment of 200,000 £1 shares in the Company, and the balance was to be paid on dates mentioned in the agreement. The plaintiff Company, Bula Ltd., was formed in pursuance of said agreement. On 19 March 1971 Patrick Wright executed a con- veyance of the lands to the Company. Application was made to the Land Commission for their consent in the vesting of the lands to Bula, under Section 45 of the Land Act, 1965, but such consent had not been forth- coming in April 1973, when judgment was given in the High Court. At this time a prospecting licence had been granted by the Minister for Industry and Commerce to Tara Exploration and Development Co. Ltd. (hereafter called Tara). Mr. Roche was aware there had been drilling, and that minerals of value had been discovered. There were preliminary discussions between Mr. Roche and Mr. Wright at which it was stated that, to the best of Mr. Wright's knowledge, no order for compul- sory purchase of the minerals had been made. Finally, on March 18, in the office of the defendant's solicitors, the agreement to sell was signed, and £50,000 paid over. Later the second agreement providing for the formation of the company was signed and a further £150,000 was paid over. Later on the same day, Mr. Roche and his solicitor saw an official in the Depart- ment of Industry and Commerce, who told him that he believed a compulsory acquisition order had been made in respect of the minerals under the lands. Prior to the signing of the agreement, Mr. Roche's solicitor had been told by the Geological Survey that there were no orders affecting these lands. However, on March 15 the Minister made an order under Section 14 of the Minerals and Development Act, 1940, entitled "The Minerals Acquisition (Nevinstown and other Town- lands, Co. Meath) Order 1971" vesting in himself in fee simple all minerals, but notice was only published in Iris Oifigiuil on 23 March 1971. On 1 April 1971 the Minister, acting under Section 13 of the Minerals Development Act, 1940, undertook that under certain conditions, he would grant to Tara, or to its subsi- diary, Tara Mines Ltd., a State Mining Lease under Part IV of the Act in respect of Nevinstown. (I) The plaintiffs, Roche and Bula, claim that this Order of the Minister of March 15 is ultra vires, null and void, because : (1) A Minerals Acquisition Order under Section 14 can relate only to specific minerals, and not to all minerals, as stated in the Order. (2) The Minister could not know whether all the minerals under Nevinstown had been worked. (3) The Minister has no power to acquire minerals under Section 14 for the purposes of granting a State mining lease, because such a lease will not secure that, in the public interest, the working of such minerals shall be controlled by the State. The purpose of the Order was to enable the Minister to grant a lease, which is ultra vires Section 14. (II) Article 43 of the Constitution prevents the com- pulsory acquisition of property rights, unless the delimi- tation of the exercise of those rights is required by the Common Good. But the Common Good cannot require

the Minister to take the property of an Irish citizen, and hand it over to a foreign company, otherwise he would be contravening the Constitution. (III) In making an Order, the Minister is bound to act in accordance with the principles of Natural Justice. (a) He should give notice to the owner that he intends to make such an order. (b) He should give the owner an opportunity of mak- ing representations and of being heard. (IV) The provisions in relation to compensation are unsatisfactory, as they are based on a nugatory "roy- alty" rent. If the minerals under any part of Nevins- town are not worked, no compensation will be paid. (V) As the Minister did not comply with Section 15, by failing to publish the "Notice" "as soon as may be" and as the notice did not indicate precisely the nature and extent of the minerals acquired, such failure by the Minister to comply with the statutory requirements entitles Roche (and Bula Ltd.), as a person affected by the Order, to have it set aside. Section 7 of the Minerals Development Act 1940, dealing with the entering and prospecting for minerals; Section 8, dealing with prospecting licences; Section 15, dealing with the publication and services in respect of mineral acquisition orders; Section 22, dealing with licences in respect of State acquired minerals; Section 67, dealing with the basis for assessment of compen- sation in respect of minerals and ancillary rights and Section 68, dealing with the form of compensation for State acquired minerals and for unworked mineral licences are all quoted in full. The Minister, Mr. Patrick Lawlor, had given evid- ence on behalf of the defendant. He was satisfied from a discussion with his officials on February 19 that there were minerals under these lands that were not being worked. Prospecting licences had been given to Tara, as it had been established that considerable quantities of lead and zinc were to be found in the area, and he was most anxious to negotiate a lease for the working of the mines in the area. There would be fragmentation if he could not control the mining right in the area. The President thought that the minerals in the area should be owned by the State in order to ensure their orderly working. There was nothing sinister in the dealy in publishing the Order, yet the period of eight days before publication was unduly long. The fact that the Order was not published "as soon as may be" does not invalidate it, but the Minister might be liable in damages to anyone who in the interval had altered his position to his disadvantage. In this case, the decision of the Minister that miner- als should be acquired is an administrative one, and is thus not contrary to natural justice. The arguments under Article 43 are rejected, as in an appropriate case the common good may require that the Minister should acquire all minerals in a given area. The Minister did consider it desirable to acquire all scheduled minerals in the area and his primary purpose in doing so was to secure that they should be worked in an orderly fashion. However, the Ministerial Order must specify the nature, situation and extent of the minerals to which it relates. This is an all-embracing Order, and the Min- ister indicated that he intended to acquire all scheduled minerals. As regards compensation, no machinery has been devised to compensate an individual for the exis- tence of unknown minerals. The effect of the present order is to acquire all minerals, known and unknown, under the plaintiff's land. These minerals may include 207