Proceedings of the Standing Senate Committee on
Transport and Communications
Issue No. 45 - Evidence - December 4, 2018
OTTAWA, Tuesday, December 4, 2018
The Standing Senate Committee on Transport and Communications, to which was referred Bill C-64, An Act respecting wrecks, abandoned, dilapidated or hazardous vessels and salvage operations, met this day at 9:30 a.m. to give consideration to the bill.
Senator David Tkachuk (Chair) in the chair.
[English]
The Chair: Honourable senators, this morning, we are continuing our study of Bill C-64, An Act respecting wrecks, abandoned, dilapidated or hazardous vessels and salvage operations.
We are pleased to have appearing before us today from the NATO Veterans Organization of Canada, Captain (Ret'd) Paul L. Bender; from Project Naval Distinction, Patrick White, Founder and Executive Director; and from the Canadian Maritime Law Association, Brad Caldwell, Lawyer and Chair of the Salvage and Wreck Committee.
Thank you for attending our meeting, gentlemen. The floor is yours, Captain Bender, to be followed by Mr. White and Mr. Caldwell.
Paul L. Bender, Captain (Ret'd), NATO Veterans Organization of Canada: Good morning, Mr. Chair and members of the Standing Senate Committee on Transport and Communications. Thank you for the invitation to participate in the committee’s hearings on Bill C-64.
My name is Captain Paul L. Bender. I’m a veteran of World War II, who served 10 years in the Merchant Navy, followed by 11 years in the Canadian Forces Naval Reserve. I retired from the public service of Canada in 1984.
I am representing the NATO Veterans Organization of Canada, whose members are veterans and whose mission is to speak for all veterans of the Canadian Armed Forces.
While it is evident that much useful work has gone into the drafting of Bill C-64, my reading of it tells me it is not the legislation the House of Commons’ Standing Committee on Transport, Infrastructure and Communities had in mind when it published its report entitled Canada’s Ocean War Graves. That committee’s first recommendation states:
That the Government of Canada draft new legislation similar to the United Kingdom’s Protection of Military Remains Act to protect Canada’s ocean war graves.
Bill C-64 does not do that. The U.K. act was adopted specifically to address the need to protect from unauthorized interference the wrecks of military vessels that had sunk with loss of its crew. The purpose of Bill C-64, on the other hand, is to, among other things, “promote the protection of the public.” I think the public need have no fear of ocean war graves.
The U.K. act does not protect the wreck as a grave, nor is the term “war grave” used at all in the legislation. The purpose of the U.K. act is to:
. . . secure the protection from unauthorised interference of the remains of military aircraft and vessels that have crashed, sunk or been stranded and of associated human remains . . . .
Importantly, the U.K. act provides that it is an offence to interfere with a wreck in any way, and it specifically prohibits diving or salvage operations. Arguably, it is the most developed example of domestic law that would protect Canada’s ocean war graves. Accordingly, it is recommended that the U.K. act be deemed to apply in and be the law of Canada, mutatis mutandis. The incorporation of British law into Canadian law was followed in, for example, subsection 5(2) of the Canada Prize Act.
In 2002, Germany approached the United Kingdom, asking that its Protection of Military Remains Act 1986 be applied to all the wrecks of U-boats that lay in U.K. territorial waters. The U.K. agreed. At the urging of the City of Quinte two years ago, I approached the U.K. with a similar request on behalf of the wreck sites of three Canadian corvettes, HMC Ships Regina, Trentonian and Alberni. There were 95 sailors lost in the sinking of those ships. They, like the U-boats whose torpedoes sank them, lay in U.K. territorial waters.
Unfortunately, my actions came to the attention of the Government of Canada, which promptly informed the U.K. government that it did not support what I was attempting to do.
Notwithstanding that French law does not provide for the concept of a maritime war grave nor for the recognition of a wreck as a memorial, five years ago, I turned to my contact in the French embassy in Ottawa for the purpose of seeking protection from unauthorized interference of the wreck sites of the HMC Ships Athabaskan and Guysborough. There were 179 sailors lost in those ships. They lay in French territorial waters.
France’s response came in only four months: In consequence, the wreck sites of these two war ships are placed under the protection of the Republic of France in accordance with her heritage code.
Just as French law protects Canadian warships, so does the Royal Commission on the Ancient and Historical Monuments of Scotland protect the Canadian-registered merchant ship Avondale Park, which was torpedoed and sunk with loss of life off the coast of Scotland just one hour before hostilities ceased in Europe.
The wreck sites of nine warships, 263 lives lost, and of 10 Canadian-registered merchant ships, 217 lives lost, have lain in Canadian territorial waters, the consequence of the six-year-long Battle of the Atlantic, which has been properly described as a “national historic event” for three quarters of a century. These 19 wreck sites, and indeed thousands of others that lie scattered between the Americas and Europe, are the final resting places of far too many who went down with their ship.
Bill C-64 simply does not recognize that an ocean war grave is not the kind of wreck to which it refers. An ocean war grave is the consequence of a ship coming to rest at the bottom of the ocean, sometimes at incredible depths, and the consequence of enemy actions or the perils of the sea while in battle. Perhaps the ship was torpedoed or bombed. Perhaps it was destroyed by shelling. Or perhaps it was destroyed by striking a mine, as my ship was — damage that was compounded by the explosion of the ship’s boilers or perhaps its ammunition.
The human remains of the sailors who were not able to escape on to life rafts or on to lifeboats; or who were fortunate enough to be rescued by another friendly ship, as I was, may be found not in segregated gravesites but anywhere within the twisted wreckage of the ship in which they once served; perhaps scattered throughout the ship, perhaps huddled together in one or more compartments, with no hope of escape. There is no headstone among the flowers for those who perish at sea.
These wreck sites are threatened by both natural forces and human interference. It is the intentional interference with these wreck sites that is of greatest concern. In a letter written five years ago, the Commonwealth War Graves Commission expressed its concern that technological advances are enabling a growing number of sport and recreational divers to dive deeper and to stay under water longer than previously.
Except in rare cases, the owning country of these wrecks — Canada owns its war ships in perpetuity unless it formally declares otherwise — did not, however, appear to have objected to these activities. The fact that they contained the remains of those who perished appear to have been of no concern.
The Institute of International Law is unequivocal in stating that countries signatory have an obligation to show due respect for the remains of any person in a sunken ship by, for example, implementing the establishment of the wreck as a war cemetery. Notwithstanding its timeliness, Bill C-64’s primary concern with the protection of the public, while admirable and deserving, in and of itself, as presently drafted, contributes nothing to the protection of Canada’s Ocean War Graves.
Honouring our dead is so common a cultural trait that it is essentially an act that defines us as humans. Just three weeks ago, thousands in Canada and elsewhere stood in silent remembrance of those who have made the supreme sacrifice. The phrase “ocean war graves” was not heard.
Lest we forget.
The Chair: Thank you very much, Captain Bender. On behalf of the committee, thank you for your service. Mr. Patrick White.
Patrick White, Founder and Executive Director, Project Naval Distinction: Mr. Chair and honourable senators, thank you for the invitation to contribute to the committee’s study on Bill C-64, An Act respecting wrecks, abandoned, dilapidated or hazardous vessels and salvage operations, with a specific focus on providing protection for Canada’s ocean war graves.
I am grateful to be here alongside and in collaboration with merchant —
The Chair: Could you slow down a bit because there is translation going on.
Mr. White: Certainly. I am grateful to be here alongside and in collaboration with Merchant Navy Captain (Retired) and Second World War Veteran Paul Bender, who has initiated and has led the fight to bring protection to Canada’s ocean war graves for the last several years. I am Patrick White, Founder and Executive Director of Project Naval Distinction.
Project Naval Distinction is an independent citizen-initiative working to ensure all branches of the Canadian Armed Forces are given proper recognition across Canada. As the Royal Canadian Navy faces a natural challenge in connecting with Canadians beyond Canada’s coastal communities, known as maritime blindness, our work has focused on ensuring the sailors of the Royal Canadian Navy are given recognition alongside the soldiers and aviators of the Canadian Army and the Royal Canadian Air Force.
Our major accomplishment to date has been having HMCS Haida, the “fightingest” ship in Canadian history, named as the flagship of the RCN, which occurred at a ceremony in May of this year. We are hopeful that this status will encourage Canadians to learn the incredible story of an often overlooked icon of our history.
Last winter, we presented before the House of Commons Standing Committee on Transport, Infrastructure and Communities to encourage the committee to amend Bill C-64 to include interim protections for Canada’s ocean war graves. Instead of agreeing to amendments, the house committee opted to complete a stand-alone report on Canada’s Ocean War Graves, adopting many of our recommendations.
We are pleased to note that in their response to the house committee’s report, the Ministers of Transport, National Defence and Parks Canada confirmed the government would be open to amendments to Bill C-64 relating to the protection of Canada’s ocean war graves. We are pleased to note Minister Garneau discussed amendments relating to protecting ocean war graves during his appearance before this committee in November.
There is a real and urgent need to enact legal protections for the final resting places of many of Canada’s sailors and merchant mariners. Given the great and much appreciated effort put into the house committee’s report, I will not repeat information that has already been captured. Instead, I would prefer to impart that this committee has an incredible opportunity before it to honour the lives of those who have made the ultimate sacrifice for Canada. This is important for the fallen just as it is for the living.
We are proud to point out that since the house committee’s report, we have been busy rallying public support for this cause and two petitions calling for the protection of Canada’s ocean war graves, signed by hundreds of Canadians from every province, have been presented in the House of Commons.
With the following broad objectives in mind, we respectfully request the committee to ensure that Bill C-64: one, defines ocean war grave; two, provides a mechanism to create regulations for the protection of ocean war graves; three, provides that, notwithstanding the location of an ocean war grave, i.e., in domestic, international or foreign waters, the regulations will apply; and, four, where possible, ensures the punishment for the desecration of an ocean war grave is in line with that for the desecration of land-based war graves.
To achieve these objectives, we request the committee to consider the following specifics: One, under section 2, include ocean war graves to be defined as follows:
The wreck of a registered merchant ship, warship, aircraft or other vessel lost through military action during military service and which contains or is expected to contain the remains of personnel (including their apparel and personal effects) associated with those vessels.
This definition is written so as to include the possibility that Canadian and foreign ocean war graves may be designated and protected and that no confirmation of remains needs be made before such designation can be given.
Two, update subsections 5(3) and 131(1) to allow the ministers to make regulations respecting ocean war graves, while distinguishing ocean war graves from wrecks that “have heritage value.” The goal of this distinction is to ensure that ocean war graves are recognized as final resting places deserving of respect and additional protections and not just heritage property.
Three, update section 110(5) to include the possibility of punishments that would apply to the desecration of land-based war graves, such as Criminal Code punishments, for contravention of regulations for the protection of ocean war graves.
I would like to conclude with a final and critical comment: Even with amendments to Bill C-64, the task of enacting full legal protections for ocean war graves and punishments for those who would desecrate them remains to be achieved. Stand-alone legislation similar to the United Kingdom’s Protection of Military Remains Act 1986, should be adopted by Parliament. Further, formal requests should be made to governments such as the government of the United Kingdom to apply their domestic laws, in addition to Canadian laws, to protect Canada’s ocean war graves located within their waters.
To borrow from the late Lieutenant Colonel John McCrae’s famous poem:
To you from failing hands we throw
The torch; be yours to hold it high.
Canada’s fallen sailors need someone in Parliament willing to hold the torch high until this mission is accomplished.
Thank you. I look forward to answering any questions.
Brad Caldwell, Lawyer and Chair of the Salvage and Wreck Committee, Canadian Maritime Law Association: Thank you, Mr. Chair and honourable senators, for inviting the Canadian Maritime Law Association to make a presentation today.
Before I begin, I would like to speak briefly about the war graves while we are on that topic. There is quite a bit of sympathy within the CMLA for the war graves initiative of Captain Bender. Unfortunately, we haven’t been able to deliberate it before our executive because our next meeting is not until January 18. I don’t know what the Senate schedule is on the bill and whether it’s too late for us to add anything to it at that time or not.
The Chair: We’ll leave that in the hands of the government, Mr. Caldwell. We don’t have a lot to say about that. We expect to finish our study of the bill by tomorrow, so we’ll see how it goes from there. It may not be passed until after that day.
Mr. Caldwell: As mentioned, I’m Chair of the Salvage and Wreck Committee of the Canadian Maritime Law Association, which is a non-profit corporation consisting of practising maritime lawyers and a number of other marine organizations. The mandate of the CMLA is to advance the development of effective modern commercial maritime law within Canada, and as such, one of its roles is to advance the development of both domestic and international laws with respect to the removal of wrecks and salvage of problem vessels.
We strongly support the implementation of the Nairobi International Convention on the Removal of Wrecks by Canada, and most of the measures in Part 2 with respect to the removal of problem vessels. It’s an obvious problem that has been plaguing our harbours for a long time and I think this bill does a pretty good job of giving the government the tools to remedy that problem.
The main focus of our presentation is one fairly small aspect of this bill, which is the criminalization of non-owners. There are three sections to the act, and I don’t see too many people with the bill in front of them, but I can paraphrase some of it. There is an example of one of the three sections at page 14, subclause 30(1), which is the prohibition. Essentially, it prohibits an owner of a dilapidated vessel from leaving it in one location for more than 60 days. Then going down to subclause 3(a), the one we are interested in, if somebody leaves a vessel there for more than 60 days, the minister may take these measures. It’s worth reading them carefully because they are quite significant. The minister can direct that the vessel be repaired, secured, moved, removed, dismantled or destroyed or otherwise disposed of.
It’s a big undertaking, not just a matter of showing up to take some passengers off a sinking vessel. It’s raising it, destroying it, dismantling it, a lot or work and expense. Subclause (c) says that if the minister doesn’t want to do it, he or she can direct another person or the vessel to do this, whether it is the owner of the vessel or not. This can be problematic.
The other section is 36(c), and that one deals with vessels that are deemed a hazard. And then 37(3)(c) is another dilapidated vessel one, but that is on government property. In any of these three situations, you can have this kind of direction. The direction is a good thing because it allows the Coast Guard or the Department of Transport to delegate the ability to deal with these vessels to the people who really have to deal with them, the harbour authorities, the port authorities, the municipalities. And it even provides money to indemnify them for the money they spend to look after these problem vessels, so these are good and useful provisions.
However, we think they overreach a bit when it comes to the penalty sections of the legislation. There are two penalty sections. One is clause 90, which deals with administrative monetary penalties and the other one is clause 110, which deals with regular penalties.
This is the problematic area, clause 110 lists all the things which are offences in the act and it is a long list. But within that long list are these three provisions I have referred to and it makes it a penalty if you are a non-owner and if you’re directed to do one of these many things and you don’t do it. Even if you do not do it the way they want you to do it, you can be in violation and it’s a criminal offence. And the offence provisions are draconian. In my paper, I referred to them. But if you’re a non-individual — and in most cases it will be a non-individual, a corporation or harbour authority — the fines range from a low of $100,000 to a high of $6 million.
They have what they call a continuing offence provision, which means for every day that the offence continues, it’s a new offence. The removal of vessels can continue for a lot of days, so it could be $100,000 minimum fine per day for a corporation that owns a boat. For individuals charged as an indictable offence, there are possible jail terms, quite draconian. It depends on the situation, but if you’re a director of a harbour authority or a port authority, you could be personally liable for those types of penalties for not following a direction to raise a boat. I understand that a representative from the Harbour Authority Association of British Columbia will be here tomorrow. So I will leave that to them to discuss how they feel about that.
The CMLA has an annual meeting with the government. Last March or April, we raised this problem with them. They pointed out that there is an immunity section in the act, section 128, which is quite a convoluted lengthy provision that is hard to understand, but if you piece it together, it seems to say something like this: A person other than an owner that is directed to take measures under these three paragraphs, or refraining from taking any measures, does not incur criminal liability unless it is shown that the person’s conduct was not reasonable in the circumstances.
So you have a double or triple negative in there. Basically, there is a reasonableness requirement, and that’s not much different from what they call a due diligence defence. Most regulatory legislation, like the Fisheries Act and the Canada Shipping Act, have a due diligence defence. It is a standard defence which is in almost all that type of statute. This is not a whole lot different from a due diligence defence and it is not a free ticket out. It’s not that easy to establish that you have been reasonable.I think in this case the government has to establish that they have been unreasonable, but not that many cases turn on the onus of proof.
If you are a harbour authority and you are deciding whether or not to obey a direction from the Coast Guard, and you have these types of fines hanging over your head and it is a matter of whether it’s reasonable or not for you to not obey the directive, there will be a lot of pressure upon you to obey a directive with those kinds of penalties and this vague reasonableness concept between you and being punished.
The CMLA thinks that it’s not fair or reasonable to impose these types of sanctions and penalties upon non-owners. I notice that when the Minister of Transport appeared before you, he emphasized a lot about how this legislation is about imposing responsibility on the owners of the vessels. That was his main drive and he didn’t mention anything about this, but this is non-owners who are facing these penal consequences.
That’s the one very small part of the act the CMLA thinks needs to be changed. We’re cognizant of the fact that it’s difficult to change legislation after it has already been before Parliament and we singled out the one really large thing we think is a problem.
Our recommendation in the paper we filed is that there be an amendment to clause 90, which is the administrative and monetary penalty section, and clause 110, to simply delete reference to these three provisions from the legislation. It would be a simple amendment to make. There might be a few minor changes. For example, in clause 89, the definition section, you would have to delete the references to section 36(c) and section 37(3)(c).
In the paper, we suggest that section 128 might need to be amended, but I’ve looked at it again and I don’t think it does. There may be some others. There may be one or two other things within the act which would have to be changed, fairly simple amendments. That’s all I have to say.
The Chair: On the question of the salvage operation, do the penalties take effect if they haven’t completed the project in 60 days or if they haven’t started it? How does that fit in when an order is given?
Mr. Caldwell: The 60 days is not to do with the direction. If a vessel is a dilapidated vessel, it’s an offence if they leave it in one area for more than 60 days. That’s different.
As far as the direction, I’m not sure. Presumably the department would give them a deadline, I would imagine. I’m not positive about that.
The Chair: I’ll ask one more question before I go to the list. You mentioned that you have annual meetings with the government.
The three of you represent three different organizations. Were you consulted by the government in the drafting of this bill?
Mr. Caldwell: We were consulted prior to the drafting, which is the normal way that works. We did present a paper, but we didn’t deal with that issue. This issue probably wasn’t in the discussion paper. Usually, because of cabinet secrecy, you don’t get a copy of the draft.
The Chair: Mr. Bender?
Capt. Bender: No, we were not consulted.
The Chair: Have you made representations about these issues previously? Obviously you have.
Capt. Bender: Well, to the House of Commons committee, yes.
The Chair: After the bill was done or on previous occasions?
Capt. Bender: It was before the bill was done.
Mr. White: I would simply say I’m not important enough to be consulted before the government drafts legislation.
The Chair: Thank you.
[Translation]
Senator Cormier: My first question is for Mr. Caldwell. Thank you for shedding light on this bill, which does indeed pose some challenges, particularly for small regions and municipalities, and I am thinking, for example, of small port facilities. You suggest that an amendment be made to remove this issue of penalties. Have you had any discussions with any municipal governments regarding this bill? What alternative measures do you propose to ensure that the department’s policies are implemented, whether on environmental or other issues?
[English]
Mr. Caldwell: With respect to municipalities, no, we did not consult with the municipalities. With respect to alternatives, we don’t really see the need for any punishment. A harbour authority is the main organization which will feel the brunt of this the most. There are many harbour authorities all over Canada. They are volunteer organizations run by directors. There is a piece of legislation, I forgot what it’s called, which gives the Government of Canada the duty to run these fishing harbours. The Government of Canada turns around and delegates all of that to the harbour authority. Then the harbour authority basically does the Government of Canada’s job of running these fishing harbours.
I don’t think you need to be punishing these people. They are basically doing the Government of Canada a favour by running their harbour authorities for them. You shouldn’t need to punish them to get them to do their job. I think it’s good enough to offer them some money to compensate them if they do it and ask them to do it. That’s their job, their mandate, to operate a fishing harbour for the benefit of the people of Canada. I don’t think a punishment is necessary. Same with the port authorities and municipalities. I don’t think it’s necessary to punish them if they don’t do it.
[Translation]
Senator Cormier: Mr. Bender, I want to thank you for your work, for your contribution to Canada and for this project on ocean burials. Have you had any reactions from environmentalists about maintaining wrecks, which could have an impact on the environment? Have you had any reactions from environmentalists about your project?
[English]
Capt. Bender: No, absolutely nothing from those people. Not from environmentalists, no.
[Translation]
Senator Miville-Dechêne: Mr. Caldwell, I’m trying to follow your reasoning. At the same time, if we don’t ask the port authorities to act quickly, if there is no pressure — and in this case, it is pressure that says that, if you don’t act, there will be punishment — is there not a risk of finding ourselves in the same situation as today, where wrecks will remain in ports for a long time without anyone caring? I would like to hear what you have to say about that. When you talk about non-owners of ships, other than port authorities, who do you think will be most affected by this bill?
[English]
Mr. Caldwell: Last question first, the other people. Municipalities have a lot of issues with problem wrecks. Perhaps the port authority, but I’m not sure about them. The port authorities have a few tools within their legislation. There could also just be people who own waterfront property as well who would like to deal with the wrecks that are sitting on their private waterfront property.
Now, I don’t want to steal everything that the witness from the Harbour Authority Association will tell you tomorrow. They will tell you more about their limited budgets and how they often don’t have the ability to respond, mostly because of money. I could say more, but I don’t want to steal the thunder of the person who will talk about that tomorrow. I’m sure you could ask the representative from the Harbour Authority Association of B.C. about the difficulties that they have with raising wrecks and responding.
Senator Miville-Dechêne: My question was more to the effect of how do you strike a balance? If there’s no constraint on port authorities, the situation could drag on.
Mr. Caldwell: My response would be, why should it be their responsibility? It’s not their boat. Somebody else parked it in their area. It costs hundreds of thousands of dollars to deal with these wrecks. They have a very limited budget. It is a problem, but I don’t know if we should force them to do something.
Senator Galvez: Good morning. Thank you very much for your presence and your statements.
I have two questions. I’m very sensitive and sympathetic to the problem that Mr. Bender has brought to us today concerning graves. I’m trying to understand whether you are proposing that we introduce this in this specific bill or if we push for an independent bill to protect the war graves in the oceans. This is my first question.
Capt. Bender: No. I think that to process an independent bill will take a long time. Already, 75 years have gone by and the ocean war graves and the sailors whose remains are in them have been forgotten for far too long. It is easiest to adopt the U.K. Protection of Military Remains Act. It has been applied to German U-boats and it is a tested piece of legislation, and it would serve Canada well. It would certainly serve my purposes very well indeed.
Senator Galvez: Do you think we can amend this bill in order to connect it with the U.K. legislation?
Capt. Bender: I don’t think that I want to get into how it should be done. I feel that it should be done, and there is a precedent for adopting British law into Canadian law, as I’ve given in my presentation.
The other aspect of it is that when I was working with the royal navy on getting the U.K. act to apply to three Canadian corvettes, the wreck sites being in U.K. territorial waters, the Government of Canada stepped in and said that it didn’t support what I was doing. If the Government of Canada had not stepped in, British law would now apply to the three Canadian corvettes that are in U.K. territorial waters.
Senator Gagné: Mr. Bender, thank you so much for your service to Canada; it is greatly appreciated. I hope that we could certainly bring this forward. We’ll see how the discussion goes.
I imagine that you are in support of the amendments that are proposed by Project Naval Distinction, by Mr. White?
Capt. Bender: I had no knowledge of those proposals until they were presented this morning.
[Translation]
Senator Gagné: Mr. Caldwell, I’m also trying to sort out what you’re proposing. What I understand is that, for all intents and purposes, port authorities, municipalities, building and rescue companies will be compensated for the work that will be done for an emergency and for wrecks. To the extent that these organizations are compensated for this work, they will be part of the solution. Now, when an order is issued, how do we ensure that it is respected, especially in emergency situations, if there is no sanction at the end?
[English]
Mr. Caldwell: There are two aspects to that question. One is the compensation. Although there are no regulations yet, so we don’t know exactly how it’s going to be, but it appears to me the organization will have to go and do the work and then come later and ask to be indemnified. That’s similar to what happens nowadays with the Ship-source Oil Pollution Fund. It’s a similar procedure, but you have to present your claim to them and they don’t always accept it. It’s subject to reasonableness and they don’t always pay you all the money that you spent. Usually you have to pay it with your own money ahead of time and wait quite a long time for payment. I think, especially for harbour authorities with limited, tight budgets, that’s going to be a very difficult thing to do.
The other thing is you have to remember these are non-owners. I think if you want to ask an owner to immediately do this, that’s fair. But to ask a non-owner, it might be a tugboat company that’s come in to do an immediate salvage to stop a vessel from running aground onto the shoreline. So they’ve held it back, stopped it from running aground, but it needs a lot of work. But maybe they have other uses for their boats. They’ve committed themselves to doing all sorts of other things with their ships and can they break all their contracts with their other customers to go spend maybe three months raising a boat that’s on the bottom or dismantling it or something like that? If the government wants somebody to do that work, they should put out a tender for bids and find people who are available to do the work, hire a salvage company to raise it, but don’t force them to do it under threat of penal consequences. They’re non-owners. From a business point of view, we don’t think it’s fair to do that.
The Chair: They’re almost contracted employees, are they not?
Mr. Caldwell: Who is?
The Chair: The harbour authority, on behalf of the government, right? Isn’t that what you said earlier? They’re employees of the harbour authority, but the harbour authority is another body?
Mr. Caldwell: Perhaps the witness tomorrow can explain it better, but basically they have a lease. It’s called a lease, but it’s not really a lease. They pay a dollar or $10 or something, and they have the mandate to operate and manage the harbour authority or the government docks. But they’re volunteer boards of directors. It varies from harbour authority to harbour authority, but there’s usually a full-time employee who manages it with boards of directors and that’s roughly the situation.
Senator Gagné: Are you aware of any problems right now, having port authorities or municipalities that are refusing to do the work around this?
Mr. Caldwell: There isn’t currently a directive regime, so they haven’t been directed; but they have lots of problem vessels that they haven’t dealt with because they don’t have the money to do it.
[Translation]
Senator Boisvenu: Captain Bender, I would like to express our gratitude for the services rendered to your country. I feel very uncomfortable as a senator to have a bill before me that misses an opportunity to recognize the sacrifice of hundreds of lives and to recognize those places where ships, both civilian and military, have sunk. In my opinion, we are missing a unique opportunity. I feel especially uncomfortable because other countries have recognized Canadian ships on their territory, when we, through this bill, could have recognized these human sacrifices.
Mr. White, how do you explain this missed opportunity?
Mr. White: Thank you for your question, senator.
[English]
We have not really had an opportunity to bring the issue to the spotlight. It was through Captain Bender’s initiative, research, efforts and some of the media attention that he received in early January 2018 that had really prompted some of my support for everything that he has done. All of the work that I’ve come and presented at committee today is certainly based on his research. There’s no credit to be taken other than to give it to Captain Bender.
Rather than, I suppose, speculating on why Canada has missed an opportunity here, one reason we might suggest is that our wrecks are currently in locations where there hasn’t been too much of an opportunity for major salvaging or desecration, although there has been some evidence that has come to light in the press that would suggest that some of our wrecks are at risk. If you were to look at some of what’s happening to royal navy ships, some Dutch ships in the Java Sea off of Indonesia, you’ll see mass graves, you’ll see bones put into plastic bags mixed together and left in very horrendous conditions and in a disrespectful manner. I would hope the committee would seize on the opportunity to at least move something forward here.
Senator Manning: If I could take a moment, back in another life I served on the harbour authority in my hometown in Newfoundland and Labrador, and it’s 100 per cent on a volunteer basis. As Mr. Caldwell touched on, we had a part-time employee for the fishing season that would clean the wharves, clean up the garbage, but basically it’s a 100 per cent volunteer basis.
The annual budget for our harbour authority wouldn’t cover the costs of this meeting here today. The budget was a collection of fees from people who use the harbour and so on. Some harbours were large, and some were small, but placing the responsibility on these volunteers would be the wrong thing to do.
I’ll keep my questions for the harbour authorities for tomorrow.
I would also like to add to the comments of my colleagues: Captain Bender, thank you for your service to our country and certainly your comrades, lest we forget.
I’m in the process of working on an amendment to Bill C-64 to address some of the concerns that Captain Bender has raised. I just want to get some clarification. There is some discussion about heritage vessels, and what “heritage vessel” would mean. Do you see any difference in what would be deemed to be a “heritage vessel” versus a military vessel that constitutes a war grave?
Capt. Bender: That’s a difficult question to answer. Because of my service, I come down on the side of warships and merchant ships as being ocean war graves. Whether they are of heritage value is an emotional decision or maybe a political decision. My concern is for the hundreds of Canadian sailors whose remains are contained in these ocean war graves and who have been ignored for three quarters of a century.
If you wish to call them heritage sites, that’s okay with me. As far as I’m concerned, I prefer to stick with the term “ocean war graves” and leave it at that.
Mr. White: To build on what Captain Bender has said, the significance of his idea of an ocean war grave is that heritage would capture the property aspects — the physical steel, the ships — in the same way you could say a coffin is a wooden or metal box. But the significance behind it is that there are human remains involved. That’s where I feel — and perhaps Captain Bender might offer the same opinion — that the heritage laws would fail to capture that significance. That’s why we would advocate for additional penalties relating to disturbing a body or grave site.
Senator Manning: Thank you.
Captain Bender, in your remarks, you said that the Government of Canada could draft new legislation similar to the United Kingdom’s Protection of Military Remains Act 1986 in order to protect Canada’s ocean war graves. But in that particular legislation, they don’t refer to them as “ocean war graves.”
Capt. Bender: No, they don’t actually use that term.
Senator Manning: But it’s the same thing, and at the end of the day, you believe this legislation, similar to that legislation, will cover that?
Capt. Bender: Yes.
Senator MacDonald: I thank the three of you for your testimony today. I’m going to direct my questions to Captain Bender. Before I ask you a question, I’m curious: On which coast did you serve in the navy — Halifax, Cape Breton or Britain?
Capt. Bender: I’ve served on both coasts. I served in submarines, on destroyers and frigates on the East Coast, and I actually took one ship from Halifax around to Esquimalt and served on the West Coast as well.
I joined the Canadian Forces Naval Reserve at HMCS Hunter in Windsor, Ontario.
Senator MacDonald: My father and his older brother both served in the Merchant Marine, and I had three other uncles in the navy during the Second World War. It always struck me — and I think this is part of the problem — that the Merchant Marine was never appreciated the way it should be, either in the early years by the Legion, quite frankly, and by the authorities in general. My father and his brother spent many dangerous months on the sea, sailing out of Louisbourg on the East Coast of Cape Breton during the war, with supplies. My father’s baby brother who served in Newfoundland was in the Army and deemed to be serving overseas. He was a full Legion member. My father and his brother could never be Legion members. They could he only be club members, although their work was much more dangerous at the time.
Why would the government speak to the British authorities and tell them they wouldn’t support this measure? What was their objection?
Capt. Bender: I really don’t know why the government objected. I have a copy of an email I received, which tells me what the Government of Canada did. I can read just a sentence, if you wish.
Senator MacDonald: Please.
Capt. Bender: It says:
I’m following up on the request of our office to provide a letter to the British High Commission regarding sunk warships. The Government of Canada will not be providing a letter in support for this project.
Senator MacDonald: Does it say what part of the government it came from — what authority?
Capt. Bender: This email comes from the office of Member of Parliament Karen McCrimmon.
Mr. White: I know officials from Global Affairs Canada are scheduled to speak next, but from my understanding, the express concern was the feeling that international law would have been sufficient to provide protection. So neither limited domestic law was necessary nor was a formal request on this matter. That might be something of interest for the committee to follow up on.
Senator MacDonald: But, of course, international law wouldn’t impact wrecks in domestic waters. I think of the SS Rose Castle. There were two people on it from my hometown who were drowned when it was sunk by a German vessel in 1942. Why wouldn’t those concerns apply?
Mr. White: That’s something I would be interested in receiving more information about. Our opinion would be that the best countries to enforce protections would be those who have the wrecks in their territorial waters.
Senator MacDonald: I would think so. Thank you.
The Chair: Global Affairs has cancelled coming. They sent an email around, which I’ll have the clerk distribute to everybody.
Senator Simons: Senator MacDonald stole my first question. I will say that although I’m from Alberta and sometimes suffer from maritime blindness, my late father-in-law, who was a Saskatchewan farm boy, also served in the Merchant Marine at the very end of the war. People on the Prairies are aware that we have oceans too.
I have questions for Captain Bender and Mr. White.
I understand perfectly what you’re saying about ocean war wrecks being particularly emotionally sensitive, but is there ever a point in your mind where there would be a historic or scientific justification for exploring a wreck? I don’t mean by some reality TV show where they go diving for bones, but do you think there would ever be a time when there would be a justification for an academic research project? As history gets further and further away from the present, at what point does it become a valid archaeological enterprise as opposed to a desecration?
Capt. Bender: I would have no objection to archaeological examinations of these ships. My concern is that the facilities for sport diving are so refined now that there are people diving down to these ships and taking things away, including human remains. That’s the thing I am concerned about.
There is certainly archaeological significance to some of these ships. I don’t think there is for any of the Canadian ships, because they are too small and relatively insignificant. The British, Dutch and U.S. ships that were sunk in the Java Sea, for example, are battleships and are significant in and of themselves.
The problem is there is evidence that none of these ships remain because people have dived down and taken every scrap of them. The only evidence is an indentation in the bottom of the ocean.
Senator Simons: Is there anything in the British legislation that allows for legitimate research?
Capt. Bender: Yes, there is. I’m not especially familiar with it. There are archaeological surveys going on all the time in the U.K.
Senator Simons: We’re talking about ships that sank during the Second World War. What if a miliary ship went down today because of an accident, not because of enemy action, or 20 years from now if it were because of enemy action, would this be as you’re imagining it, legislation specifically governing ships that were lost between 1939 and 1945, or would you imagine a piece of legislation that could be used into the future even if the sinking of the ship was not in combat?
Capt. Bender: My definition of an ocean war grave does limit them to ships that were lost during the Battle of the Atlantic, from 1939 to 1945. Now, not every ship was lost due to enemy action. Some ships were lost because of bad weather. I have a record of one ship that was lost because it was in collision with somebody. The essence is that every one of these ocean war graves contains the remains of sailors; therefore, they should be distinctive.
Senator Simons: Mr. White, what do you think about more contemporary tragedies? Should the protection go forward, in your mind?
Mr. White: Senator, I concur with Captain Bender’s comments. The benefit of the U.K. legislation is twofold. First, access to the wrecks would be limited to the discretion of the minister responsible. So the subjects or archaeological values or a documentary, those things could be allowed if a request was made to the minister and granted. So at least there is a control mechanism.
Second, the legislation that applies in the U.K. can be forward-looking. Our concern, as previously expressed to the house committee, is that the heritage provisions under Parks Canada would apply to wrecks that are 50 years old at a minimum. So if something happened tomorrow or in the future, it wouldn’t necessarily be covered. That is why we would view an amendment to Bill C-64 as an interim measure with hopeful stand-alone legislation in the future.
The Chair: Thank you, witnesses, very much.
Before I introduce the next guests, I would like to introduce Senator Donna Dasko who will be a new permanent member of the Standing Senate Committee on Transport and Communications. Welcome.
Our second panel is Ms. Ellen Bertrand, Director, Cultural Heritage Strategies; Ms. Mary Lou Doyle, Manager, Cultural Heritage Policies and Legislation; and Marc-André Bernier, Underwater Archaeology Manager.
Ms. Bertrand, I understand you’re starting. The floor is yours.
Ellen Bertrand, Director, Cultural Heritage Strategies, Parks Canada: Good morning, Mr. Chair and members of the committee. It is a privilege to appear before you today to discuss the role of Parks Canada in the protection and management of heritage wrecks in Canada in the context of this study of Bill C-64.
Parks Canada protects and presents nationally significant examples of Canada’s natural and cultural heritage, and administers 47 national parks, four national marine conservation areas and 171 national historic sites.
The Parks Canada Agency Act established Parks Canada as the federal lead for matters related to archaeology and built heritage. Over the past 50 years, Parks Canada has built an international reputation as a leader in the field of underwater archaeology through work on projects such as the excavation of the 16th century Basque whaling ship in Red Bay, Labrador. We’re the only government entity in Canada with an operational capacity for evaluating and managing heritage wrecks, an expertise provided by a team led by my colleague Marc-André Bernier. A high-profile example of this expertise is the recent research that his team has undertaken on the wrecks of Sir John Franklin ships HMS Erebus and HMS Terror in Nunavut.
Under the Canada Shipping Act 2001, which is still in force, the Minister of Transport and the minister responsible for Parks Canada have joint authority for the making of regulations for the protection and preservation of wrecks that have heritage value. These regulatory authorities came into force in 2007, but no such regulations have yet been introduced. Bill C-64 would transfer these authorities to section 131 of the new act. Regulations, whether developed under the existing or new legislation, would establish a definition of heritage wrecks that would be exempt from certain salvage provisions such as entitlement to a salvage award, which could include the wreck itself.
These regulatory authorities would allow for the creation of an inventory of heritage wrecks and a requirement to report new discoveries. They would also define activities directed at heritage wrecks that would require a permit, which could include searching for heritage wrecks, excavation and removal of artifacts.
Of the thousands of historic shipwrecks in Canada, a small but significant portion are military wrecks. In addition to the wrecks of vessels and airplanes belonging to Canadian Forces, Parks Canada estimates that at least 50 military wrecks belonging to foreign governments have been located in Canadian waters. Perhaps another 100 remain undiscovered. Approximately 90 per cent of historic military wrecks in Canadian waters are the property of foreign governments including the United Kingdom, France and the United States.
In some cases, Parks Canada has been identified by a foreign government to act on its behalf in ensuring the appropriate management of these wrecks. For example, the management of the wrecks of HMS Erebus and HMS Terror in Nunavut was governed by a memorandum of understanding between Canada and the United Kingdom until April 2018. At that time, Canada and the Inuit became co-owners of the two ships as a result of the United Kingdom’s official gift to Canada.
Under future heritage wreck regulations, Canada would be able to protect these foreign military wrecks from unauthorized disturbance if there were greater clarity regarding the application of regulations to military vessels.
As currently drafted subclause 5(1) of Bill C-64 excludes the application of the proposed legislation to military vessels and aircraft. This exclusion is intended to ensure that federal legislation does not interfere with military activities of naval vessels and to respect the sovereign immunity of foreign warships.
In the context of protecting ocean war graves, the Department of Justice has confirmed that there is legal uncertainty as to whether the heritage wreck regulations under the Canada Shipping Act, 2001 or as transferred to Bill C-64 could be applied to wrecks of military vessels and aircraft. An amendment to Bill C-64 would clarify that military wrecks can be included in the protections afforded by regulation and would allow Parks Canada to work closely with its counterparts in the Department of National Defence to determine how best to draft such regulations to ensure the protection of military wrecks, while at the same time ensuring there is no interference with the operational activities of military vessels.
Wrecks, as you have heard, are often the final resting place of those who perished on board. Almost all Royal Canadian Navy vessels that sank in Canadian waters have had at least one loss of life. However, human remains are found on other wrecks as well.
[Translation]
The sinking of RMS Empress of Ireland is witness to this tragic reality: When it sank in the St. Lawrence estuary in 1914, more than a thousand passengers and crew members lost their lives, making this the worst peacetime naval disaster in Canadian history. After years of plunder, the Province of Quebec adopted extraordinary judicial measures to protect this particular wreck.
For its part, the proposed heritage wreck regulations would automatically protect these underwater grave sites form unauthorized disturbance. This regulation would also help the Government of Canada to ratify international agreements to protect shipwrecks in international waters, many of which contain human remains.
In 2001, Canada and 85 other countries voted in favour of the UNESCO Convention on the Protection of Underwater Cultural Heritage. Currently, 58 state parties have ratified to the Convention. Prior to ratification, Canada would need to demonstrate that adequate measures are in place to protect underwater cultural heritage, including heritage wrecks.
[English]
Similarly, Canada worked with the U.S., the U.K. and France to draft an agreement to protect the wreck of the RMS Titanic which rests at the edge of Canada’s extended continental shelf beyond the 200 nautical mile limit of the exclusive economic zone.
Over 1,500 lives were lost on the Titanic. Since the wreck was discovered in 1985, explorers have penetrated the hull and over 5,900 artifacts have been removed, largely for commercial purposes. While the agreement is not yet in force, it promotes in situ preservation of the wreck as a memorial and an historic site.
The proposed heritage wreck regulations could be extended extra territorially to provide legal tools to regulate activities of Canadian nationals and vessels directed at the Titanic.
The introduction of regulations and an assurance that they could apply to military vessels would provide an effective solution to protect all heritage wrecks under Canadian jurisdiction including those that may be considered ocean war graves. To that end, Parks Canada is continuing to review past work in this area and has had preliminary discussions with Transport Canada, the Department of National Defence and Veterans Affairs regarding options to develop a regulatory regime for the protection of heritage wrecks under the existing joint regulatory authority.
Parks Canada has also been working with the Canadian Coast Guard to identify the links and gaps between the inventories of heritage shipwrecks and vessels of concern.
By providing a clear legal framework and management regime through Bill C-64 and its regulations, it would allow the Government of Canada to protect these important underwater cultural heritage sites.
Thank you. We’re happy to answer any questions you may have.
The Chair: Thank you, Ms. Bertrand.
[Translation]
Senator Cormier: Thank you for your presentation. The report on Canada’s ocean war graves contains a statement by Mr. White, which we heard earlier. It reads:
Mr. White made this point forcefully, arguing that regulations would not capture the symbolic significance of ocean war graves. He cautioned that “lumping” ocean war graves with other heritage property would fail to “capture the spirit of what an ocean war grave really is.”
In light of what we are hearing about the importance of graves and wrecks, would a regulation be enough? Shouldn’t we have legislation that would ensure the supervision and protection of graves and wrecks?
Ms. Bertrand: The regulatory framework, as described in the bill and in the existing act, would allow Parks Canada to create appropriate definitions for the protection of such wrecks. We could create a whole class of wrecks, perhaps in line with Mr. White’s aspirations or definition. We have the flexibility, within the regulatory framework, to create definitions and describe what types of wrecks would be protected in the future.
Senator Cormier: I understand that you work with Transport Canada, but how do you work with the people who are able to create these definitions? The task of defining categories of wrecks and graves seems to me to be quite complex. How is it done at Parks Canada?
Ms. Bertrand: Like any draft regulation, there is a whole consultation process. We have already held discussions with provinces and territories. After that, there is a public consultation process. In our efforts to build a regulatory framework, we would consult all stakeholders who have an interest and ideas to suggest with respect to definitions and other measures.
Senator Cormier: What kind of measures, for example?
Ms. Bertrand: For example, if Mr. White developed concrete definitions in these regulations, we would review and discuss them with him, the provinces and territories and recreational divers.
Marc-André Bernier, Underwater Archaelogy Manager, Parks Canada: On the one hand, we work very closely with the other departments involved, including the Department of National Defence and the Department of Veterans Affairs. You’re right that defining subclasses can be complicated, but our group has been working in the world of wrecks for over 50 years. We have a good understanding of the issues, dynamics and nuances related to oceanic or marine burial.
We often talk about a ship that was in military action. It is much more complex than that, because some ships have died in transit or in other operations. So how do you capture these ships? There are probably more than a hundred foreign ships in our waters. It is a question of adopting a more global and particular understanding. The expertise we bring to the table can help us define all of this in a general way, but also in a particular way. I think the regulations can help us with respect to the ships that may arise. We have the flexibility to intervene by adopting a global coverage or by specifically naming a wreck. We want to give ourselves this flexibility.
Senator Boisvenu: Welcome to our guests. I am very pleased to hear that you support the protection of these historic monuments, that is, the military ships that have sunk, if only out of respect for the Canadians who gave their lives for our country.
I have some more technical questions. You say that the regulations adopted in 2007 were never put in place.
Ms. Bertrand: The authority to create regulations has been in place since 2007, but no regulations have ever been tabled or enforced.
Senator Boisvenu: Why is that?
Ms. Bertrand: As you’ve heard, it’s very complex. There is an overlap of jurisdictions between the federal government and the provinces and territories. So that requires —
Senator Boisvenu: Even in the military field?
Ms. Bertrand: Not in the military field, but rather in the protection of wrecks and the jurisdiction of the provinces and territories and the federal government in the waters.
Senator Boisvenu: The captain said earlier that countries like France have protected Canadian ships in French territory as burial sites and that Canada doesn’t do the same for its own ships. Is it a matter of political will or regulations?
Ms. Bertrand: That may be a question for Transport Canada with respect to jurisdiction over navigation in Canadian waters.
Senator Boisvenu: When it is decided to recognize that a Canadian ship has sunk in Canadian waters, it is, in my opinion, a relatively “easy” gesture from a regulatory point of view. If we know that a ship sank at a certain location, that 50 or 100 people lost their lives, then we decree that this territory is a military grave, right?
Ms. Bertrand: There is currently no legislation that allows us to do so easily, except the Historic Sites and Monuments Act. There are a few wrecks, moreover, that have been designated as a historic site, which is quite rare, or as a historical event.
Senator Boisvenu: But not as a marine grave.
Ms. Bertrand: Not as a marine grave.
Senator Boisvenu: If Bill C-64 were amended and such a clause were introduced, would that make the work easier?
Ms. Bertrand: Yes, because we could create a sub-category of wreck that we could call a “marine grave.” At that time, there would be a precise definition and it would be a subcategory linked to a definition of heritage wrecks.
Senator Boisvenu: Thank you very much for that clarification. It’s helpful.
[English]
Senator Manning: I’m not sure I’m reading what you’re saying in regard to definitions of different vessels. What would we need to do to give the authority to your department or to some department — I know you work in collaboration with other departments — in relation to the definition of what an ocean war grave would be, and how we get there, or will we spend forever trying to find that definition? I have been around government and it takes a long time to get three or four different departments to agree on anything, let alone come to an agreement on a definition. Even if we amend this piece of legislation to address the concern of Captain Bender and others, can you tell us what the process will be and explain to us your thoughts on how long that would take?
Ms. Bertrand: The first issue is to ensure the regulations could clearly apply to military vessels. As the authority is in the existing act, and Bill C-64, it’s unclear. Bringing clarity so that the regulations could apply to military vessels as collaboratively defined is the most important step. Then the development of regulations and definitions therein can be relatively easy if there is a common objective, which is to protect these vessels that have been resting in the waters.
We thought about this over the years and one of the approaches that is quite widely accepted is a blanket definition, so vessels over a certain age would automatically receive protection. With the UNESCO convention it’s 100 years. In Canada, as we heard earlier, there is consideration for going back perhaps 50 or 60 years to ensure that we at least capture vessels that were active in World War II. By providing a blanket protection and then associating a whole permitting regime makes it a little easier. Now, the creation of a special definition for ocean war graves or a subset or category or identifying special conditions for those definitions is a bit more work. It would be our hope that we could have regulations developed and coming into force in 2020.
Senator Manning: You touched on the fact that there are vessels of other countries on Canadian coasts, that have sunk and, in some cases, would be deemed ocean war graves, I would think. Do other countries approach us and ask us? How are they protected? If a ship from the United Kingdom sank off of Canada’s coast, they have an act in the United Kingdom that protects ocean war graves. How does that implement on our side?
Ms. Bertrand: I will let Mr. Bernier reply, but that act applies in U.K. waters. Right now we don’t have legislation that applies in Canadian waters. Mr. Bernier has experience with helping to protect and survey ships that belong to other governments.
Mr. Bernier: Our first step — international law keeps sovereignty to the country. It rests then with the country where the shipwreck lies. Presently, we don’t have federal legislation to protect the wrecks of other countries although we are responsible to protect them. We’ve worked with provinces and territories to do that.
As soon as a military wreck from another country is discovered, and we know that is the case — sometimes it’s not that clear if we’re talking about historic shipwrecks, we contact that country and discuss the right path to protect them. Decisions about those wrecks come through discussions with the country.
So the path forward is to have dialogue with these four countries, and we have those. The legislation we need to protect would be strengthened through regulation.
Does that answer your question?
Senator Manning: In other countries, there’s no jurisdiction, it just applies to the domestic waters where it exists. Is there anywhere in the world where it expands beyond domestic coverage? We can’t determine something in Canada to protect a Canadian warship off the coast of Britain, for example?
Mr. Bernier: We have to rely on Britain to do that. That’s why the signatories of theUNESCO Convention on the Protection of the Underwater Cultural Heritage engage themselves in protecting those wrecks through the control of their nationals, if you will. If a Canadian ship goes out and tries to pillage some of these wrecks from other countries, then the onus is upon Canada to act on those.
[Translation]
Senator Gagné: Thank you. My questions are along the same lines as Senator Manning’s.
If I understand correctly, only the convention governs Canada with respect to the protection of heritage wrecks or even ocean war graves in international waters or abroad. Is that the case?
Mr. Bernier: In international waters, yes, but in the territorial waters of another country, we must work with the country in question. We rely on the laws of that country to protect these wrecks, and so the case of France, which has a law that covers all wrecks. At that time, the two Canadian wrecks were de facto protected. In England, special legislation protects these wrecks, and they must be requested.
In the case of Canada, the approach proposed in the regulations is a comprehensive guarantee, a “blanket coverage,” from a certain age, which automatically ensures that wrecks from other countries are protected. This also allows us, if we wish, to protect a sunken wreck from time to time.
Senator Gagné: What I understand from your interventions is that you propose to go through the regulatory framework to achieve your goal. You’re not necessarily proposing an amendment to the bill.
Ms. Bertrand: We can’t do that, as a federal agency, but if we wanted our authority to protect military vessels, we would need an amendment to this bill.
Senator Gagné: Thank you very much.
[English]
The Chair: Then why haven’t you done it?
Ms. Bertrand: Why haven’t we done what, specifically?
The Chair: Why haven’t you used the regulations to protect military gravesites? If you say it can be done —
Ms. Bertrand: The regulation-making authority, as it exists right now, does not allow them to be applied to military vessels in Canadian waters with certainty . That’s the issue right now. The Canada Shipping Act and Bill C-64, as they are currently, excludes the application of all parts of the act to military vessels to ensure no interference with military operations. That’s where there is uncertainty in our regulatory regime as applied to military vessels. We would need an amendment that clarified, in Bill C-64, that clause 131 could apply to military vessels or other government vessels.
The Chair: So the military vessels lost in wartime could be designated as gravesites?
Ms. Bertrand: Yes. We can create definitions of heritage wrecks categories and subclasses working with others who have an interest in this. The regulations, whether or not they include military vessels, would allow us to define heritage wreck in subcategories. This idea of a blanket protection of a certain age of vessels is one type of definition we could have. We could also create a special schedule where, should there be a wreck of a vessel of particular significance, whether two years ago or this year or 10 years ago, the minister would be able to place that wreck on a schedule, thereby offering it protection under this regime.
The Chair: Let’s put all that aside. Let’s talk about the issue that was brought by the previous panel which wants to protect the remains of soldiers or navy personnel who have been lost during wartime. Do you have the regulatory power to do that now? Let’s say it’s not a heritage site; it’s a war grave. Can you do that now?
Ms. Bertrand: Not with certainty, because the bill, as written, does not clearly include protection of military vessels through regulation. Should an amendment be put forward ensuring the regulations could also be applied to military vessels, then we have the flexibility and the tools to create definitions and to protect vessels that would be considered as ocean war graves.
Senator Galvez: I think you are bringing clarity. The previous panel presented with frustration their efforts over the last I don’t know how many years to protect these oceanic graves. It seems there were easy ways of doing this and more difficult ways of doing this. They didn’t get support for their request to the U.K. government. You just said that we simply ask, but they asked and the government said no.
Now what we have in front of us is Bill C-64.
[Translation]
What you’re saying is that, as currently drafted, subclause 5(1) of the bill exempts military vessels and aircraft from the application of the proposed legislation.
[English]
You are saying that is not enough. We need more clarity. What are the keywords that have to be in Bill C-64 to make an exception of —
[Translation]
— ocean war graves.
[English]
This is so later you can keep doing what you are saying you are going to do to protect them, and in what period of time? It seems there is some urgency because we have not been able to protect these wrecks in the way we should have done for the last many years?
Ms. Bertrand: I would humbly defer to the legal drafters of this bill to change the wording such that we could achieve our objective, which is to ensure military vessels could be included. If such an amendment were put forward, with the expertise of the legal drafters of this bill, then it would be our job, as a government agency working with other departments like National Defence and Transport, to build these regulations. As I said earlier, our hope would be to develop them in the coming year, in 2019, with a view of having them in force in 2020. That’s a relatively normal process and timeline for developing regulations, especially given there would be a lot of consultation with many stakeholders, including those we’ve heard from today, recreational divers, provinces and territories who also have jurisdiction over heritage within their borders.
Senator Galvez: Chair, are you aware such an amendment is being discussed? For example, Senator Manning said he is planning to do it.
The Chair: We talked about it at an earlier meeting and I think we’re going to talk about it tomorrow, before the last piece of legislation.
Senator Galvez: You are working on it. Okay.
Senator Manning: The wording is being worked on and will encompass what we’ve heard today.
The Chair: We’ll have a discussion tomorrow.
Senator Manning: It will go back to the drafters, by the look of things.
Senator Galvez: Thank you very much.
[Translation]
Senator Miville-Dechêne: I’m seeking clarification with my question, because I’m trying to understand.
You said that you have not adopted certain regulations since 2007 because of jurisdictional issues. Does this refer to war graves? I can’t understand the report.
Ms. Bertrand: No. The regulatory framework hasn’t been developed and implemented, because it is a fairly complex issue that requires a lot of consultation and discussion.
In the current context, this wouldn’t affect marine graves because there is no amendment, no framework that can apply to graves.
Mr. Bernier: In the case of wrecks, there is a dual jurisdiction, that is, under the Canada Shipping Act — and now with this proposed legislation — there is federal and provincial jurisdiction, because with respect to the seabed where the wrecks like, there are also laws that apply at the provincial level.
Each province has a different regime and approach. In some cases, the site must be identified as an archaeological site. In other cases, we are talking about all wrecks of a certain age. Therefore, discussions must be held with each province, which makes the process quite complex.
Senator Miville-Dechêne: We have ships that could become marine graves that are on the seabed where there are provincial regulations. I saw them in the outside waters instead.
Mr. Bernier: Yes, if a wreck is on the seabed, there is a provincial responsibility.
Senator Miville-Dechêne: Are there any?
Mr. Bernier: Yes, there are.
Senator Miville-Dechêne: Are there any military vessels?
Mr. Bernier: Yes, absolutely.
Ms. Bertrand: There is currently a contradiction with provincial and territorial legislation and the Canada Shipping Act. At the moment, this makes it possible to pick them up and get compensation. In addition, there is a conflict between provincial and federal laws. The provinces told us that they wanted to see consistency between provincial jurisdictions and what is being done at the federal level.
Senator Miville-Dechêne: Thank you very much.
[English]
Senator Simons: I realize this may be somewhat outside your jurisdiction, as it were, but you mentioned clause 5, which clearly excludes any military wreck from being discussed. Presumably that’s because if a ship went down tomorrow all full of secrets and super high-tech stuff, they don’t want people coming to look for it. But surely if we amend this act in the way we’ve been discussing, we would also have to amend clause 5 to put an exclusion for historic wrecks.
I understand that the military doesn’t want recreational divers poking around a military vessel. That’s obvious. But as I’m reading this and from what you’re saying, we would also have to amend clause 5 to put in an exclusion for historic wrecks.
Ms. Bertrand: That’s my understanding. One of the key amendments to clause 5 would be to ensure that it covers military vessels. Aside from military secrets, there are cases of unexploded ordinances, and other issues that we would need to work on closely with DND. We have experience working with DND on retrieving unexploded ordinances from sunken vessels in national park waters, so it’s familiar territory for us.
Senator Simons: I’m glad somebody knows how to do that because it sounds terrifying.
Senator Gagné: When we say “military wrecks,” we mean military vessels and aircraft?
Ms. Bertrand: Yes.
Senator Gagné: That is a distinction we have to make?
Ms. Bertrand: The definition is in Part 4, receiver of wreck, and it clearly identifies wrecks as water-going vessels and aircraft.
[Translation]
Senator Cormier: I would like to come back to my original question. There is the UNESCO Convention on the Underwater Cultural Heritage, and there are many countries that have adopted legislation, because these are important issues. I know you aren’t legislators, but could legislation that would regulate all these aspects be useful? Considering that Parks Canada is not alone in dealing with these aspects and that it affects many departments across the country, would it be useful for you to have legislation that would structure all these considerations?
Ms. Bertrand: I believe that the authority we have, in collaboration with Transport Canada, to create a regulatory framework could help us achieve all these objectives. There are many provisions in the current legislation and in the bill that would help us define and create a licensing system to allow for research or recreational diving. We firmly believe that the authority we have, in the current legislation and in the bill, would give us everything we need if there were an amendment to cover military wrecks.
[English]
The Chair: Was Parks Canada consulted on the bill?
Ms. Bertrand: Yes. We’ve been working closely with Transport.
The Chair: So this issue never came up?
Ms. Bertrand: There were discussions around interpretation of clause5. As I mentioned earlier, our legal counsel advised that there was lack of clarity. What we’ve been discussing with Transport over the last few months is how to ensure clarity.
The Chair: Wasn’t there a discussion of the fact that when ships went down, there’s a good chance there might be bodies in it?
Ms. Bertrand: No, I wouldn’t say specifically, because, as you know, Transport is very much focused on public safety, as we heard earlier.
The Chair: I know, but you’re not.
Ms. Bertrand: We are. That’s why we would welcome an amendment that would ensure the regulations could apply to military vessels so we could then work on a regime to protect and deter people from disturbing these.
The Chair: Did you argue for that amendment when the bill was being drafted?
Ms. Bertrand: We were probably not as involved as we should have been in the very early days of drafting of the bill, and as we became more and more aware of the transfer of the joint authority, we engaged our colleagues at Transport and they’ve been very collaborative in this complex, voluminous bill.
The Chair: Was your minister involved in it?
Ms. Bertrand: Not directly, to my knowledge. We mostly work at the officials level on this, but she is aware of this bill and her regulation-making authority.
The Chair: And she’s in favour of it, I assume?
Ms. Bertrand: Absolutely.
The Chair: Are there any further questions? If no further questions, thank you very much.
Before you leave, I want to mention to members the witnesses for tomorrow. The Shipping Federation of Canada has, for the second time, cancelled. I guess they’re not coming. Tomorrow we have the National Marine Manufacturers Association, Chamber of Marine Commerce and the Harbour Authority Association of British Columbia. So we have significant witnesses tomorrow, which is only one panel. After that panel is done, we’ll then go to clause-by-clause so that we can report the bill. We’ll go from there.
Thank you very much.
(The committee adjourned.)