The levelling of two ring forts in Killmurray, north Cork this summer led to a public outcry in the county with calls for our justice system ‘to flex its muscles'. A loophole in the law, however, means that over 126,000 recorded monuments and sites in Ireland have no legal protection because landowners have never been notified of the presence of these monuments on their lands.
The scale of the modern destruction of our archaeological heritage became apparent in 2001 when the Heritage Council studied seven areas totalling 600 square miles - or 2.2% of the land area in the Republic of Ireland. This showed that 34% of archaeological monuments known to have been extant within the previous quarter-century had been destroyed.
‘The destruction of known archaeological monuments in the Republic of Ireland has not slowed in recent years. On the contrary, it has accelerated dramatically', the Archaeological Features At Risk Report stated.
In the 140 years between 1838 and 1978 the Report calculated a destruction rate of approximately 2.1% monuments per decade. Between 1978 and 1997, the rate of destruction rose to 3.3%. Based on the one year 1997, the destruction rate for that decade will have been 10% of monuments in the study area.
Other studies in Tipperary and Meath support these figures. Ring forts and earthen works are obviously the most vulnerable. A 1989 study of the ringforts in County Wexford found that over 70% of known ringforts had been destroyed.
Major infrastructural improvements under the National Development Plans - roads, gas pipelines, building works, and urban renewal - are often cited as being the principle causes. And certainly roads are the headline grabbers; Carrickmines and Tara have entered the lexicon of protest. And these - particular National Roads Authority projects - are generally the best recorded. An ironic exception is Carrickmines, where even after a €6 million spend the archaeological report (a condition of a grant of an excavation licence) has still not been published.
The Heritage Council suggested that 60% of the destruction was due to agricultural activities. In fact studies related to agriculture rather than archaeology highlight agriculture as the overwhelming cause. UCD's 2006 Knowledge Society reported that ‘Greatly increased pressures on archaeology will arise due to land improvements, including the unrecorded removal of earthen banks, ditches and field boundaries'.
This study echoes the joint 2005 UCD, NUI Maynooth, and Teagasc ‘Rural Ireland 2025: Foresight Perspectives' which observed that the reduction in farmer numbers and enlargement of farms to the scale necessary to maintain international competitiveness will ‘result in the longstanding familial association with archaeological sites becoming significantly eroded. Thus the coming decade constitutes a high risk period for Ireland's archaeological heritage.'
It concludes: ‘Indeed, some evidence indicates that the rate of destruction of archaeological sites may be increasing in coastal areas, and especially in the commercial farming counties, due mainly to land improvements (removal of banks, ditches etc.) associated with more intensive grassland farming'.
Yet no one has ever been successfully prosecuted for the destruction of a listed monument. In fact, the family who levelled the two ring forts this summer four days after they purchased the north Cork farm (both ring forts marked clearly on the maps on the estate agent's website) were also responsible for the destruction of two other ring forts on the October 1993 Bank Holiday weekend. The Archaeological Survey's field notes recorded then that a souterain - an underground passage - was revealed by the destruction. Three officials from the Archaeological Survey were refused permission to enter onto the land.
Under the current legislation, the only offence that can be prosecuted is a failure to give two months notice of intended works to the Government. Even so, according to legal Opinions provided to our organisation it would be ‘very difficult' to maintain prosecutions under the Acts because landowners could claim they did not have the intent - ‘mens rea' - to commit an offence.
Both Opinions agree that the failure to provide for individual notification of affected landowners in the 1994 act ‘raises serious questions on whether the act infringes on constitutionally protected property rights by imposing obligations and limitations on property owners without express provision for individual notification or appeal, particularly where criminal liability may be imposed as a result of failure to comply with those obligations'.
Professor of Archaeology at UCC William O'Brien, who is also Chair of the Royal Irish Academy's Archaeological Committee, states what everyone knows but few will say: ‘Until all landowners have been legally notified of the presence of registered archaeological sites on their land it is not possible to have effective protection of these sites'.
As it stands, beyond the 6,000 sites under ‘national protection', our monuments are simply listed on the Record of Monuments and Places [RMP], and the onus is on the landowner to check the record before work is done. The list of sites on the RMP was published in local newspapers in the mid-nineties but has never been updated. While much good work is being done in the context of the consolidation of the National Monuments Acts, the Department of the Environment's September 2010 ‘Public Information Document' on the revised legislation shows no plans to address this loophole, and the national position remains that individual notification is not necessary. Letters from this organization to the Minister remain unanswered.
Internationally, however, the Government has just ‘inscribed' its list of 7 potential nominations to eventually add to the 2 existing Irish World Heritage Sites - the Skelligs and the Boyne. But while protecting - some would say exploiting - many of our frontline sites, the World Heritage Convention requires members under Article V of the Convention to ensure that an effective legal regime of protection is in place for ALL its archaeological heritage.
In replying to a request from this organisation not to accept further World Heritage sites from Ireland until this loophole is addressed, the UNESCO Europe and North American chief Mechtild Rossler said that UNESCO is enquiring about the notification issue with the Irish authorities as well as with its own Advisory Body of the World Heritage Convention and the International Council for Monuments and Sites.
The UN's powers are limited. If Ireland can decide which of the 7 sites it wishes to nominate first - and it has not yet made this contentious decision - it is likely to take two years to prepare the nomination and a further year for its consideration by UNESCO.
More pressing, however, is the response currently being prepared for the European Commission by Ireland to a European Court Judgment of November 2008. Here, daily fines are threatened if Ireland does not protect the ‘environmental sensitivity of geographical areas' while ‘paying particular attention to landscapes of historical, cultural or archaeological significance'.
Ireland's proposal is for landowners to notify councils of projects which while below the threshold for an Environmental Impact Assessment will still have effects that must be considered. Under REPs, farmers were specifically told of archaeological features on their lands. But REPs is limited in scope and has been greatly reduced.
FIE has asked the Commission how a landowner would know to seek advice from the Local Authority about possible assessment if he has not been made aware of a sensitive site on his land? The Commission has now informed us that it is registering this issue as a CHAP, the new complaint registration system operated by the Commission's Secretary General.
The Land Registry has all ownership recorded in electronic spatial data since 2006; the geographical coordinates of each SMR site are part of that record. It would be an ‘overnight job' for the Land Registry to provide the names and addresses of landowners with these sites on their lands.
In 2008 Brian Lenihian signed a Statutory Instrument waiving Land Registry search fees for ‘Government Ministers or the Commissioner of Public Works'. The task of notification itself is no longer either costly or time consuming. But without it, the pace of destruction of our heritage will continue to increase.
Tony Lowes is a Director of Friends of the Irish Environment