The Oireachtas has "flunked" its constitutional responsibility to protect the Hill of Tara and other national monuments by enacting new laws which give the Minister for the Environment an apparent unreviewable and unfettered discretion to sanction the destruction of such monuments, the High Court has been told.
This could be achieved by referring to a "public interest" nowhere defined in the legislation, Gerard Hogan SC said yesterday. The 2004 legislation meant the survival of national monuments found during road development was determined according to "the whim" of the Minister. This could not be constitutional.
Mr Hogan was opening a challenge by environmentalist Vincent Salafia to the proposal to route the M3 motorway near the Hill of Tara.
Mr Salafia, Churchtown, Dublin, wants to overturn directions given by Minister for the Environment Dick Roche in May 2005 on the treatment of 38 known archaeological sites along the proposed route. Mr Salafia claims the directions were unlawful because they failed to address whether the sites were a national monument requiring preservation.
He is also arguing that certain provisions of the National Monuments (Amendment) Act 2004 are unconstitutional because they undermine the State's responsibility to protect national monuments. Minister for Heritage Martin Cullen introduced the Act to deal with discovery of a national monument during development of an approved road project.
Key to the action, listed to last six days before Mr Justice Thomas Smyth, will be the extent of the Tara site. Mr Salafia argues that the area requiring protection and conservation extends beyond a 23- hectare (57-acre) site including and surrounding the hill itself.
He wants a declaration that the Hill of Tara/Skryne valley constitutes a national monument and a complex or series of monuments.
The court heard that Mr Salafia's archaeological experts believe the site extends significantly beyond the 23 hectares and that the Minister's directions have significantly interfered with the area of a national monument.
Mr Salafia also claims that a route between Navan and Dunshaughlin considered by the National Roads Authority and the council was a suitable alternative, 2.5km shorter and would not breach the complex.
The Minister for the Environment, Heritage and Local Government; Meath County Council; Ireland and the Attorney General all oppose the action.
Mr Hogan said Mr Roche's directions in 2005 were unlawful because they were issued under the wrong section of the Act (section 14.A.2) when they should have been issued under section 14.A.4 which required the council to report the discovery of a national monument.
The roads authority was not required to comply with directions issued under section 14.A.2.
Essentially, Mr Hogan argued, the Minister had applied the wrong legal test and failed to have regard to the State's obligation to preserve national monuments. The minister wrongly believed he was not free to issue directions which altered the route and also failed to consider whether national monuments had been discovered.
Even if the directions were correctly issued, they should be quashed because both section 14.A.2 and section 14.A.4 were unconstitutional as they provided that the Minister could sanction the destruction of a national monument by stating this was in the "public interest" which was was not defined in legislation, counsel added.
In affidavits for Mr Salafia, three experts on Tara agreed with Dr Pat Wallace, director of the National Museum, who advised Mr Roche last year that Tara was "a unique cultural landscape which has significance for our cultural heritage".
