Archeological Objects
Ownership and Disposal
The Historic and Archaeological Heritage and Miscellaneous Provisions Act 2023 t provides for State ownership of archaeological objects in the State (i.e. the land mass of the State and its territorial sea) with no known owner. Subject to remedying a number of possible uncertainties in existing law, the Act is essentially a restatement of the legal principle established under section 2 of the National Monuments (Amendment) Act 1994, which in turn built on the principles set out in the Supreme Court’s decision in Webb v. Ireland [1988] I.R. 353. Provision is included to ensure that the rule operates without prejudice to any rights the State might have to objects found before the coming into effect of the Act of 1994.
Clarity is also provided that landowner or finders will not acquire ownership rights to finds of archaeological objects, while at the same time ensuring that dishonest removal of such a find from possession of the landowner or finder may constitute theft. In line with the guarding of any rights the State may have to archaeological objects found before the coming into effect of the Act of 1994, express provision is made for the possibility of seeking Court orders declaring State ownership of archaeological objects found between the foundation of the State and the coming into effect of the Act of 1994. Provision is made to ensure that the Statute of Limitations 1957 will not impede actions by the State (whether arising under this legislation or otherwise) to recover possession of archaeological objects or to cause the title of the State to such objects to be lost.
Acquisition by State
Statutory clarity is provided that the law of treasure trove will not apply to finds of archaeological objects. The law of treasure trove was a common law principle whereby finds of objects made of precious metals which had been hidden with intention to recover it could be claimed by the State. Its continued existence is doubtful in light of the Webb case and in any event it is incompatible with the principles set out in the Act of 1994 and this legislation. Its formal disapplication is consistent with the ending of Coroners’ jurisdiction in relation to treasure trove.
The 2023 Act provides for the possibility of acquisition by the State of archaeological objects the ownership of which is not held by the State under the above provisions and for the disposal in an appropriate manner of archaeological objects owned by the State. The power to acquire will be a discretionary power. It may be done by agreement or compulsorily; in the latter case appropriate compensation will have to be paid.
Provision is included to ensure that archaeological objects brought lawfully into the State and with the agreement of the Minister and of the Board of the National Museum of Ireland (e.g. for purpose of loans or temporary exhibition) will be excluded from compulsory acquisition and that actions to recover such objects on behalf of the State must be approved by the relevant State bodies. This ensures that appropriate loans of material to cultural institutions in the State are not inhibited.
In cases where, in accordance with stated criteria, it is not considered appropriate for the State to retain archaeological objects, procedures are available to dispose of such material in an appropriate manner in accordance with conditions specified in a consent from the Board of the National Museum of Ireland. Where disposal is by way of transfer of ownership, conditions binding all future owners may be imposed. Disposal otherwise than in accordance with these procedures will not be permitted, other than where done in accordance with other existing specified legislation governing the national cultural institutions.
Finds of Archaeological Objects
The 2023 Act provides, in place of existing similar law, for a requirement to report finds of archaeological objects to either the Board of the National Museum of Ireland or to An Garda Síochána. A 72 hour time limit is provided for making preliminary reports, with power for other time periods to be set out in regulations where appropriate. This will ensure that the reporting system can work across a range of circumstances to protect finds without imposing unreasonable requirements.
Following the making of preliminary reports, persons making such a report will be required to make a detailed return setting out specified information and the Board of the National Museum will be required to inspect the relevant location, unless (in either case) the Board considers this not to be merited. Finds made in the course of an activity licensed under the 2023 Act will be exempt from the reporting requirement set out under the section, provided that the relevant licence is subject to a condition requiring a report on the licensed activity to be submitted to the licensing authority containing information on finds made (though it will be possible for the normal reporting requirement to be reinstated by way of licence condition).
The introduction of these safeguarding provisions strengthens the law on reporting finds of archaeological objects; as the law formerly stood. Ffinds made in the course of licensed archaeological excavations are automatically exempt from reporting requirements regardless of whether any conditions attach to the particular licence.
Safeguarding Finds
There is provision for the protection and safeguarding of finds of archaeological objects. The general rule will be that it will be prohibited to interfere with a find of an archaeological object other than in accordance with a licence under the 2023 Act (with power for the Board of the National Museum to disapply this provision in appropriate cases).
However, removal by the finder of an archaeological object required to be reported will be permitted where necessary to safeguard the object, provided it is placed as soon as practicable in a place designated (whether permanently or temporarily) by the Board of the National Museum for the purpose of safeguarding archaeological objects. Provision is made for the Board of the National Museum to take custody of archaeological objects that have been found (provided there is no known owner) and to retain them on behalf of the State or dispose of them under the Act.
Coroners shall consult the Board of the National Museum in relation to human remains that may be archaeological in nature (and therefore archaeological objects). It further provides that where the Board is satisfied following such consultation that the remains are archaeological objects then the provisions of the 2023 Act in relation to archaeological objects shall apply and the coroner shall take no further action in relation to the remains.
State Retention & Rewards
In an innovation compared to existing law, retention on behalf of the State will (in appropriate cases) be able to take the form of keeping the object at the site where found or another site with a natural environment conducive to the protection of the object (subject to the agreement of the owner of the site in question). This is an alternative to retention in places designated by the Board (as noted above) for the safeguarding of archaeological objects.
In a clarification of the law compared to existing law, it is made clear that the Board is under no duty to take custody of finds of archaeological objects made in the course of activities required to be done under licence under the 2023 Act until the Board is satisfied that relevant licence conditions have been complied with or (if no licence was obtained) criminal or civil proceedings have concluded.
The 2023 Act provide for the designation by the Board of the National Museum (with the consent of the Minister) of local authority museums. Such designated museums must comply with prescribed standards set by the Minister (in consultation with the Board and the Heritage Council). While such museums remain designated, the Board may decide that archaeological objects that are primarily of local interest, or are in particular of local interest, may be kept there. Provision is made to ensure that objects so placed may not be disposed of inappropriately.
The 2023 Act provides for the payment of rewards to finders of archaeological objects or owners of land where such objects are found, this being subject to specified exclusions (for example, cases where the find took place as part of a licensed or licensable activity). Criteria are specified to assist in determining the amount payable that need not be the market value.
Dealings & Alterations
The 2023 Act prohibits possession of archaeological objects found after the enactment of the National Monuments Act 1930 other than where the relevant requirements of the legislation is in force at the time of finding and have subsequently been met in regard to such finds or possession is otherwise authorised. Provision is made to enable the Minister to prescribe exemptions from this prohibition. It requires (subject to appropriate exemptions) any person proposing to dispose or acquire an archaeological object to give 30 days’ notice to the Board of the National Museum which may, on receipt of such notice, require the notifying person to provide evidence that the object is held lawfully. Provision is made to enable the Minister to prescribe exemptions from this requirement.
The 2023 Act prohibits the alteration of archaeological objects other than in accordance with a licence issued by the Board of the National Museum. Provision is made for other licences issued under the 2023 Act (e.g. licences issued to authorise works to monuments or other licensable activities) to permit the alteration of an archaeological object if the Minister for Housing, Local Government and Heritage and the Board agree on this. Provision is made for the Minister to be able to prescribe exemptions from the requirement for a licence to alter an archaeological object, in accordance with specified criteria.
Illegally Exported Cultural Objects
The 2023 Act enables the State, should the Government so determine, to accede to (i.e. become party to) the 1995 Rome UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, the text of which is set out in Schedule 5 of the 2023 Act. The Convention sets out a common set of rules regarding how the states which have become parties to the Convention will deal with claims made for return of stolen or illegally exported cultural objects to their country of origin, whether these claims are brought by other states parties or private persons resident in such states being owners of the objects in question.
The term “cultural object” has the meaning assigned it under the Convention. Provision is made for the Convention to have effect in the State as set out in Chapter 9. Claims under the Convention will be brought in the Circuit Court, which will be conferred with the necessary jurisdiction, including powers to make interim and interlocutory orders. The times limits for the making of claims will be those set out in the Convention in place of any time limits the Statute of Limitations would otherwise impose.
Court orders for the return of stolen cultural objects will not result in any accompanying order for compensation to the current possessor (though such possessor who had obtained the object in good faith would retain any pre-existing right to take legal proceedings against another party who had transferred the object to them). Court orders for the return of illegally exported cultural objects will only be accompanied by an order for payment of compensation to the current possessor if the Court determines, in its discretion, that it is fair and reasonable for such compensation to be ordered and is satisfied that the current possessor has acted in good faith at all material times, neither knew nor ought reasonably to have known at the time of acquisition that the object had
been illegally exported, and is not the person who illegally exported the object from the requesting state. Any compensation ordered will not need to be the market value. Where compensation was ordered to be paid to the current possessor of an illegally exported cultural object, it would be payable by the requesting state (not by the State).
Provision is made to ensure that EU law on the return of cultural objects remains (where applicable) the governing law. Persons or states bringing claims in the State under the Convention will retain causes of action under any other legislation or under common law.
UNESCO Convention
The 2023 Act enables the State, should the Government so determine, to ratify (i.e. become party to) the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the text of which is set out in Schedule 6 of the 2023 Act. While much of the Convention can be implemented through administrative action, a number of its provisions require (if the State was to be in a position to become bound by them through ratification) enactment of specific implementing legislation.
Provision is made for the Minister to prescribe (i.e. set out in regulations) what will be cultural property for the purposes of the Convention as implemented in Ireland. In doing so, the Minister will be guided by criteria set out in the 2023 Act , and these have been drafted with the aim of achieving consistency and compatibility with other relevant heritage legislation currently in force.
So as to ensure that the State can comply with Article 6 of the Convention, the Minister will have power to prescribe requirements for certification of exports from the State of cultural property. However, to avoid duplication of existing export control provisions, the Minister will also be able to exempt from such certification procedures cases of export governed by licensing procedures under the 2023 Act or the National Cultural Institutions Act 1997.
So as to ensure compliance with relevant provisions of the Convention, the 2023 Act creates specific new criminal offences relating to importation into the State of cultural property stolen in another state party to the Convention in specified circumstances and the possession or dealing in of cultural property stolen within or outside the State, illegally exported from another state or which has been exported or had its ownership transferred under compulsion in circumstances arising from the occupation of one state by another state. “Cultural property” for the purposes of these offences will include, where relevant, cultural property designated for the purposes of the Convention by another state party.
The 2023 Act the purposes of complying with Article 10 of the Convention, enables the Minister to prescribe requirements to be complied with by antique dealers in terms of keeping a register of dealings in cultural property prescribed under section 126.