Analysis: how has Ireland addressed the moral and legal questions around the discovery of treasures within the State?

By Liam Sunner, Queen's University Belfast

Following his dynamic entrance onto the screen in Indiana Jones and the Raiders of the Lost Ark, Dr Henry Jones has instilled a love of archaeology and treasure hunting into the wider public. However, while the movies cover a great deal of action and adventure, they rarely address the question of legal and moral responsibility in relation to the treasures found. Instead, they went as far as glamorising cultural looting and for-profit treasure hunting, bordering on grave robbing.

But how has Ireland, a country with a rich history of monuments, archaeological sites, and continued historical interests, addressed this moral and legal question? And what can be done to resolve the issue, but maintain interest and appreciation?

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From RTÉ Radio 1's Doc On One, Digging for Gold looks at the story behind the 1979 discovery of the treasure hoard on an ancient monastic site in Co Tipperary that included the Derrynaflan Chalice. Who is entitled to this priceless find: the state or the person who found it?

To answer this, we must first examine what is meant by treasure. Treasure exists as a loaded and complex drawing on the relationship between places, practices and stories across the culture of a people, region, or country. As such, treasures can be viewed as "a complex nest of cultural and monetary values. These traditions and practices are drawn from deep-time historical traditions from the human past and our 21st-century regimes of enmeshing people and things".

In continental Europe, much legislation follows the Hadrian Division on treasure found, where half goes to the finder and half to the land owner. This approach has since been the subject of centuries of civil law development across multiple jurisdictions. However, this wasn't the approach taken in the UK and Ireland. From the 1800s, the rules for treasure troves were granted to Ireland, where the value of the treasure is split between the owner or person in control of the land and whoever finds it, on condition they are permitted on the land and do so with good faith.

The treasure trove rule was repealed under the current framework of the Free State and the subsequent National Monuments Acts 1936-2014, which explicitly removed this application. This rule still applies to a degree in the UK and their different "understandings" to finding treasure.

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From RTÉ Archives, Kevin McDonald reports for RTÉ News on the 1990 discovery of a priceless collection of Bronze Age gold items in Ballinesker, Co Wexford

But how has Ireland adapted its legislation to protect the historical sites within the State? According to reports, Ireland has over 130,000 such sites within its territory, including offshore shipwrecks with a cultural or historical association. It would be hard to imagine a town, parish, or collection of fields in Ireland that doesn't have some historical association. This is significant as the National Monuments Act focuses on what can and can not be done in areas considered to be heritage sites.

Under the National Monuments Act, it is illegal to be in possession and make use of metal detectors or similar devices on such historical sites. If found to be in possession or using such devices, there are significant penalties "on summary conviction, to a fine not exceeding €3,000 or, at the discretion of the Court, to imprisonment for a term not exceeding 6 months or to both". This can be increased "on conviction on indictment, to a fine not exceeding €10,000,000 or, at the discretion of the Court, to imprisonment for a term not exceeding 5 years or to both".

Additionally, in part as a result of the rich historical heritage of Ireland, there are a series of broader restrictions to prevent unlawful treasure hunting outside of these noted historical sites. In the general sense, it is illegal to use detection devices to search for items of archaeological value or significance within the State without the permission of the Minister for Culture, Heritage and the Gaeltacht.

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From RTÉ Archives, Barry Linnane reports for RTÉ News in 1986 on the implications of the court judgement on the Derrynaflan Chalice find. Report includes interview with former National Museum of Ireland director Breandán Ó Ríordáin on the notion of 'treasure trove’

To address the vast question of what treasure is, the National Monuments Act 1930-2014 broadly defines items of objects, irrespective of age, material, or degree of antiquity. The State's definition includes the estimated 15,000+ shipwrecks off the coasts of Ireland, as both the shipwrecks themselves and their cargo would fall within the meaning of items of archaeological value. It is also prohibited to advertise, sell, or promote detection equipment for treasure hunting.

But while we have focused on the legal aspect of treasure hunting, which implies the intention to search for archaeological items, the National Monuments Act includes a provision for the individual who happens upon an archaeological item without running into the above restrictions. They have 96 hours to report the find the National Museum of Ireland or the local museum. In doing so, they will be noted with the discovery and granted a token sum of the value of the item. Additionally, these prohibitions only govern private treasure hunting rather than organised excavation or work authorised by the state ahead of significant infrastructure development.

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From RTÉ Archives, Gerry Reynolds reports for RTÉ News on a 1989 attempt by British treasure hunters to challenge the constitutionality of the National Monuments Act

The rationale for restricting the individual from treasure hunting has a multifaceted benefit. Firstly, it protects the archaeological from exploitation and sale on the black market. This is a significant issue concerning heritage sites as "the looting of archaeology sites has become what is probably the world's most serious threat to our archaeological heritage".

Secondly, the restriction prevents the overzealous amateur from focusing on traditional items of value, such as coins or precious metals and damaging more mundane objects of cultural significance in their excavation. Finally, and in the inverse of restricting treasure hunting to authorised excavations, it can allow the organisers to present the excavation as a community event and offer additional information and expertise to those interested, in essence, educating the public and broadening the public understanding of the cultural value of objects.

Dr Liam Sunner is a lecturer in the School of Law at Queen's University Belfast


The views expressed here are those of the author and do not represent or reflect the views of RTÉ