REGULATIONS FOR THE PROTECTION OF HERITAGE WRECKS

Transcription

1 CANADA SHIPPING ACT 2001 (CSA 2001) REGULATORY REFORM PROJECT PUBLIC CONSULTATION REGULATIONS FOR THE PROTECTION OF HERITAGE WRECKS CANADIAN MARINE ADVISORY COUNCIL (CMAC) DISCUSSION PAPER Fall 2004 Please forward your comments to: Keith Bell Regulatory and International Affairs Transport Canada, Marine Safety Tower C, Place de Ville 11 th Floor, 330 Sparks Street Ottawa, Ontario K1A 0N8 Tel.: (613) Fax: (613) Web site: RDIMS Transport Canada Transports Canada

2 This Discussion Paper has been prepared for comment and discussion INTRODUCTION Canada has a rich maritime history. From the bark canoes that allowed fur trading to flourish to the steam-powered engines that carried immigrants and exports, our waterways have helped to shape Canada s economic and social character. Canada s rivers, lakes and coastal waters contain vestiges of the past in the form of wrecks of heritage value. Canada s underwater cultural heritage, like our land-based cultural heritage, is important to Canadians. Heritage wrecks, including shipwrecks and aircraft wrecks, form an invaluable and irreplaceable resource. Individual and collective action is required to protect and manage Canada s heritage wrecks. Underwater cultural heritage, both in Canada and around the world, is increasingly threatened by new technologies and exploration techniques, which make the bed of rivers, lakes and coastal waters accessible to many more people. At risk is the loss of irreplaceable heritage for the study of the history of Canada and the world. States are increasingly aware of the importance of their underwater cultural heritage and many have taken measures to protect and manage it within their territorial waters. Canada is about to have a new law governing shipping and navigation, the Canada Shipping Act, 2001 (CSA 2001) 1. The CSA 2001 will come into force when regulations needed to support it have been developed, likely in The CSA 2001 also addresses matters dealing with wrecks, including heritage wrecks. Under CSA 2001, responsibility for the development and administration of regulations for the protection of heritage wrecks is shared. Transport Canada and Environment Canada through the Parks Canada Agency will be developing these regulations. This document is meant to initiate consultations between the Federal Government and interested stakeholders such as the provinces and territories, dive groups, the Canadian Maritime Law Association and others, on the regulations for the protection of heritage wrecks to be developed under the CSA The Canada Shipping Act, 2001 (2001, c.26) is available on-line at Page 1

3 THE IMPORTANCE OF HERITAGE WRECKS When a heritage wreck is properly protected and studied, everybody benefits. For example, the archaeological project conducted by the Parks Canada Agency of a 16 th century Basque whaling vessel, the SAN JUAN, in Red Bay, Labrador, opened up a whole new chapter on the early exploration of Canada. Federal and provincial governments, along with avocational groups, have also effectively cooperated to protect and manage heritage wrecks, such as the shipwreck from the 1690 Phips fleet discovered in L Anse aux Bouleaux on the north shore of the St. Lawrence River, Quebec. THE PURPOSE OF REGULATIONS FOR THE PROTECTION OF HERITAGE WRECKS The regulations for the protection of heritage wrecks will go a long way toward helping Canada protect and manage this important aspect of its heritage. They will also, along with provincial, territorial and any new federal archaeology legislation that may be developed for nonwreck aspects of underwater cultural heritage, such as submerged settlements, isolated artifacts, wharves and piers, help put in place key building blocks necessary for Canada to consider ratifying the UNESCO Convention on the Protection of the Underwater Cultural Heritage, Regulations for the protection of heritage wrecks will be developed to: clarify the role of the Federal Government in protecting heritage wreck; introduce the first regulatory regime for heritage wrecks designed to protect this important aspect of Canada s heritage, while encouraging its sustainable enjoyment; and facilitate cooperation with a range of stakeholders including provinces and territories, avocational divers, heritage professionals and the general public. 2 The UNESCO Convention on the Protection of the Underwater Cultural Heritage, 2001 is available on-line at Page 2

4 REGULATORY AUTHORITIES The following section presents the various regulatory authorities identified in Part 7 (Wreck) of the CSA 2001 for heritage wrecks (2) The Governor in Council may, on the joint recommendation of the Minister and the Minister of Canadian Heritage, make regulations (a) (b) (c) (d) (e) (f) (g) specifying wreck or classes of wreck that have heritage value respecting the protection and preservation of wreck or classes of wreck that have heritage value, and providing for issuing permits to access such wreck authorizing the designation of enforcement officers to ensure compliance with the regulations made under this Part and specifying their powers and duties authorizing the Minister and the Minister of Canadian Heritage to jointly enter into agreements or arrangements respecting the administration or enforcement of any provision of the regulations made under this subsection and to authorize any person or organization with whom an agreement or arrangement is entered into to exercise the powers or perform the duties under those regulations that are specified in the agreement or arrangement exempting wreck or any class of wreck that has heritage value from the application of any provision of this Part exempting any geographical area from the application of regulations made under paragraph (b) or (c) respecting the setting and payment of fees, and the determination and payment of expenses, for services provided in the administration or regulations made under this subsection Page 3

5 TOPICS FOR CONSULTATION 1. Principles and Concepts A number of principles and concepts could be considered for developing regulations for the protection of heritage wrecks, and the administrative regime to enforce them, including, but not limited to: Using compatible approaches to protecting heritage wrecks as found in the UNESCO Convention, including its Rules Annex, and in provincial and territorial heritage legislation. For example, this could involve adopting the UNESCO Convention activities directed at concept, which would focus a protective regime on those activities which have heritage wreck as their primary object, and which may, directly or indirectly, physically disturb or otherwise damage a heritage wreck. Adopting in-situ preservation as the preferred first option before any authorization to direct activities at a heritage wreck is considered. In this case, the activities directed at the heritage wreck would be authorized in a manner consistent with the protection of that heritage, and, subject to that requirement, would be authorized for the purpose of making a significant contribution to the protection, knowledge or enhancement of the wreck. Encouraging responsible, non-intrusive access to observe or document in-situ heritage wreck to create better public awareness, appreciation, and protection of this heritage, except where such access is incompatible with their protection and management. Fostering partnerships in order to protect and ensure the sustainable enjoyment of heritage wreck. Retaining the recognition of the sovereign immunity of naval and State wreck as per the UNESCO Convention and international law. Q1: What are your views on these principles and concepts? What activities do you think are detrimental to the protection of heritage wrecks? Are there other principles and concepts you feel should be considered as well? Page 4

6 2. Definition of wreck or classes of wreck that have heritage value The definition of a wreck or classes of wreck that have heritage value, and hence what is to be protected under the law, is key to the development of the new regulations. A blanket approach to a definition would define a heritage wreck as one which has been submerged for a prescribed minimum number of years, such as 50, or 75, or 100 years. This is the approach taken in the UNESCO Convention, where underwater cultural heritage is considered to mean all traces of human existence having a cultural, historical or archaeological character, which have been submerged for more than 100 years. In Australia, and in some other countries, 75 years is the benchmark. We should ensure that the number of years submerged is consistent, as much as possible, with existing heritage legislation and is the most practicable number in a Canadian context. Perhaps the 100 years used in the UNESCO Convention is too exclusive (eliminating aircraft wreck, for example), while 50 years may be too inclusive. A blanket approach could potentially exclude wrecks designated by federal, territorial or provincial authorities for protection if they did not meet the submerged time criterion. Consideration could be given to adopting an additional option in the definition of a heritage wreck to allow protection for an important wreck, which may not meet the submerged time criterion. Building on the CSA 2001, Part 7 definition of a wreck, a possible definition could be heritage wreck includes a vessel or aircraft, or any of its associated objects, which have been: a) partially or totally under water, periodically or continuously for at least X years; or b) designated by a federal, territorial or provincial authority. Q2: What are your views on the blanket approach to defining a heritage wreck and the suggested submerged time criterion? Are there other approaches that should also be considered? Page 5

7 3. Permit System and Implementation Issues Along with arriving at a definition of a heritage wreck, the key to the administrative regime for the regulations for the protection of heritage wrecks will be to develop and implement an effective permit system to control activities directed at heritage wreck, and to form the basis for developing a register or inventory of those wrecks. Examples of permit systems from many jurisdictions are available, both in Canada and internationally, that could be used as models to develop the heritage wreck permit system. In addition, the Rules Annex of the UNESCO Convention could be helpful in developing various parts of the permit system and its concomitant administrative regime. One approach could be that a permit would be required anytime one wishes to direct activities at a heritage wreck that would damage, or potentially damage, a heritage wreck. This would imply that a permit would be required for any activity, including an initial assessment or documentation of a wreck, if the activity would damage, or potentially damage, the wreck. Decisions on whether or not a permit would be issued for activities directed at the wreck would depend on an assessment of the proposed activity, taking into account a range of factors such as the fragility of the wreck, the heritage value of the wreck, the nature of the proposed activity and the results of any impact assessment. There may be other factors which should be taken into consideration. The age of a newly discovered wreck is sometimes unknown. Until such time as the age of the wreck is determined, a protective zone around the wreck could be considered, using regulations or administrative agreements, as an interim measure for the protection of the wreck. The CSA 2001 also includes legitimate salvage provisions. Procedures would need to be considered to avoid confusion with the legitimate salvage provisions of CSA 2001 for other, non-heritage wrecks. The legal requirement to report materials under the salvage provisions may need to be addressed through a permit for activities directed at a heritage wreck. The Receiver of Wreck will have a key role to play in this scenario. Q3.1 What are your views on a permit system? Are there other approaches that should also be considered? Page 6

8 Paragraph 163. (2) (d) of the CSA 2001 opens up the potential for agreements with various entities to help administer and enforce the regulations for the protection of heritage wrecks, for example, with several federal departments; with federal/provincial/territorial governments; with Aboriginal societies; with avocational dive groups; universities and so on. Q 3.2 What are your views on shared administration and enforcement of the regulations? Paragraph 163. (2) (e) of the CSA 2001 opens up the potential for exemptions from any aspects of Part 7 (Wreck) of CSA 2001, which is the Section dealing with all aspects of wreck, whether modern or heritage, and the role of the Receiver of Wreck. For example, a heritage wreck could be exempted from Section 156, which deals with salvage rewards. Other types of rewards or recognition could then be considered for those who discover a heritage wreck and report them. Q 3.3 What are your views on exemptions from Part 7 (Wreck) for heritage wreck? What types of rewards or recognition could be considered for those who discover a heritage wreck and report them? Paragraph 163. (2) (f) of the CSA 2001 opens up the potential for exemptions for geographical areas. Examples of exempt geographical areas could include provincial and territorial waters with legislative mechanisms in place to address heritage wreck within their jurisdiction; federal areas with other protective measures in place such as found in Canadian National Parks and National Marine Conservation Areas; Aboriginal lands; areas with dangerous conditions for diving; and, certain harbours and canals, including those that are National Historic Sites. Q 3.4 What are your views on exempting geographical areas? Why would we wish to exempt certain geographical areas? What criteria would need to be developed? Paragraph 163. (2) (g) of the CSA 2001 introduces the issue of how the administration or regulations would be paid for. One way could be to have those who request a permit to direct activities at a heritage wreck pay for the permit and/or other aspects of the administrative regime. Q 3.5 What are your views on the setting and payment of fees? What criteria would need to be developed? Page 7

9 SEEKING YOUR INPUT Regulations for the Protection of Heritage Wrecks The protection and management of Canada s heritage wrecks require the individual and collective effort of Canadians. The Government of Canada is determined to engage Canadians in developing ways to protect and manage our underwater cultural heritage. For that reason, your comments are not only welcome but they are essential in developing practical and effective regulations for heritage wrecks. Readers are asked to consider our questions and to provide feedback or fresh ideas. Ongoing dialogue and consultations are cornerstones in our approach to developing regulations that affect Canadians. Collectively we can honour and safeguard our rich maritime heritage, which helped to shape Canada s economic and social development. Please forward any comments to: Keith Bell International and Regulatory Affairs Transport Canada, Marine Safety Tower C, Place de Ville 11 th Floor, 330 Sparks Street Ottawa, Ontario K1A 0N8 Tel.: (613) Fax: (613) bellk@tc.gc.ca Page 8